Incorporation Thread - Nordyke is out!! - Page 3

grymster2007 · April 22, 2009, 02:14 PM

Quote:

WildletsallemailthebradybunchtoaskaboutitAlaska

Done.

I asked them why they were not reporting on an apparent victory for their cause. After all, the 9th circuit affirmed the lower court's summary judgement against the Nordykes.

JuanCarlos · April 22, 2009, 03:10 PM

Quote:

It's not on the news because they would have to explain what "incorporation" is, and they don't even understand it themselves. Explaining the application of the bill o' rights to the states would be a long, boring (to dullards) segment and a million people would reach for the remote to see shiny colors and screeching on another network.

I'd hope every media outlet's news room would have somebody on hand who understands the concept of incorporation. I mean, I know enough "random dudes on the internet" that do, so I'd assume so. I agree, however, that explaining the nuance of this to the audience would be an exercise in futility.

So far, aside from (apparently) Lou Dobbs, the only other mainstream news source I'm seeing anything about this in is the San Francisco Chronicle.

My other guess is something WildAlaska touched on, but only in passing...it's too academic. At this point, this decision has had basically zero impact. California residents may now challenge gun laws, but it's not like any of them are immediately impacted by this decision (the only specific gun law involved was upheld). Compare this to Heller, in which D.C.'s actual handgun ban was being immediately challenged.

To some extent, as far as the average mainstream news consumer is concerned (again, the same consumers who don't know what incorporation means), this isn't news. The cases that this leads to will be news.

orchidhunter · April 22, 2009, 04:04 PM

Yep, it's binding in the 9th Circuit. Can be cited in other
Circuits, which they would take into account, but doesn't bind them.
Note that "binding" is often more theory than fact, since there are
ways to get around a binding decision (distinguish it -- facts in
this case are somewhat different from facts in that case -- or
sometimes outright ignore it, or call for en banc review by all the
judges in the circuit and try to get them to overrule the prior
decision). And a well-reasoned opinion from one circuit can carry
weight in others. And a circuit split, where some circuits go one way
and others go another, is a good basis for asking the Supreme Court
to take it on and settle the issue. orchidhunter

**Al Norris** · April 23, 2009, 12:34 AM

Too Academic?

Then explain to me all the post Heller analysis that explained how the case only affected D.C, even if it did foreclose the collective rights interpretation.

Has everyone forgotten that?

Wildalaska · April 23, 2009, 01:23 AM

Good point

WildmaybethemsmhopesthedecisonwillgoawayAlaska TM

sholling · April 23, 2009, 03:03 AM

The San Fransisco Chronicle has a pretty straight shooting analysis.

B. Lahey · April 23, 2009, 08:03 AM

Quote:

I'd hope every media outlet's news room would have somebody on hand who understands the concept of incorporation.

They don't. They may have lawyers they could ask, but in the boiler room? Not a chance in hell. Contrary to popular belief, journalists are not intellectuals. They don't think, they just write.

maestro pistolero · April 23, 2009, 12:47 PM

Quote:

Then explain to me all the post Heller analysis that explained how the case only affected D.C, even if it did foreclose the collective rights interpretation

That's the first time I've seen that argument. But, leave it to liberal media to take a clear expansion of liberty and spin it as a contraction.

rwilson452 · April 23, 2009, 12:56 PM

Someone refresh my memory. Didn't the 2nd circuit take a different view?

Yellowfin · April 23, 2009, 05:34 PM

The 2nd Circuit had a numbskull (pun intended) who ran a pro se case (ALWAYS a mistake) challenging a NYC ban on nunchaku. It had little standing, poor arguement, and little hope for success. The Nordykes had considerable standing, a better arguement, and one of the best lawyers in the country representing them and a coalition of all the top 2A minds within several hundred miles AND Alan Gura working on it.

Also, the 9th had a few decisions on file that specifically hinged on the collective rights 2A view which Heller blew out of the water. All they had to do was rule that those decisions no longer were good because Heller said individual right. We got a GREAT judge on the opinion.

maestro pistolero · April 23, 2009, 06:37 PM

Despite all the zeal of the day, does anyone share my concern about this ruling emboldening local government to undermine the newly won incorporation with flimsy claims that nearly any public area may considered a "sensitive place" in the context of the Heller decision?

I am not at all convinced that we should let this stand. I will be very interested to learn the strategy of the Nordykes going forward. Obviously, any approach going forward should not endanger the incorporation, which would be hard to imagine, given the courts' broad reasoning behind incorporation.

grymster2007 · April 23, 2009, 08:25 PM

Quote:

does anyone share my concern about this ruling emboldening local government to undermine the newly won incorporation with flimsy claims that nearly any public area may considered a "sensitive place" in the context of the Heller decision?

I do. That was my first thought on reading the ruling and in fact I posted on it. How long could the states play those shenanigans before some high court makes a determination on what constitutes "sensitive"? I image that could go on for some time, especially since defining sensitive isn't going to be easy.

maestro pistolero · April 23, 2009, 08:57 PM

Schools and government buildings were the terms Scalia used, if I recall. This court extended that to a county fairground (building, I assume) which although technically a government building, is almost certainly not the type of 'sensitive place' the USSC majority was referring to.

Public housing is also a government building, but also a domicile. If 2A applies anywhere, it clearly applies in the home, whether government owned or not.

Are we to believe that a county fairground building is a more 'sensitive place' than a government apartment building, sleeping babies and all? I'd like to see someone try to make that argument.

carguychris · April 23, 2009, 10:24 PM

Quote:

Are we to believe that a county fairground building is a more 'sensitive place' than a government apartment building, sleeping babies and all? I'd like to see someone try to make that argument.

Therein lies the best argument for making an appeal to the SCOTUS and overturning this decision.

However, as I pointed out earlier, the main problem is that this particular case isn't directly about self-defense; it's about holding a gun show.

OTOH it's only a matter of time before another case emerges that addresses this issue head-on.

maestro pistolero · April 23, 2009, 10:37 PM

Quote:

it's only a matter of time before another case emerges that addresses this issue head-on.

Right. The challenge now seems a little narrow for the breadth of the ordinance. It's almost as if they were asking for an exception to the ordinance, instead of addressing the issue head on as you describe.

But when the case started out, there was no Heller decision, and, of course, no incorporation. Now there's both.

This case was about a gun show, but the ordinance challenged says no guns on any county property. That's a ban, in my opinion, because county property is everywhere.

What's next, no guns on city property? And by the way, no guns on federal land either!

The court seems to be contending that all county property is 'sensitive' in the sense that the Scalia meant it in Heller. It is overreaching, to say the least.

cold dead hands · April 24, 2009, 03:43 AM

Quote:

I strongly oppose widespread restrictions on gun sales, but OTOH I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

There is no Government Land. It is "we, the people" land. We the people have a right to private commerce (that is open to the public...yes, the twain shall meet) wherever we choose to have it, provided it doesn't interfere with the standards of common civility...i.e. no having it on Main Street at rush hour . Not to mention that the ability to bear arms (and they cannot be bourne unless purchased, seeing as how the average citizen has no firearm manufacturing skills, for most regular type folks) has nothing to do with being forced into a storefront property.

If a large group of folks want to come together for a gun bazaar and a large(r) group want to attend the bazaar how is it that this is repugnant to the 2A. There will be lots of "bearing of arms". Last time I checked, this was perfectly legal.

If you really want to get down and dirty about it...FFL's smack in the face of the 2A.

A person spends private money on guns. He sells them for a profit. Where does the ATF fit in to this? Private property being transferred has no business in .fed hands.

Fine...he has to pay taxes on his profits. Explain how any of the gun trade is more than an IRS issue...assuming you believe that the IRS is a good thing...

publius42 · April 26, 2009, 12:01 PM

The 9th circuit opinion did comment that it was "odd" to consider a parking lot a "sensitive place" as Scalia used the term.

The Nordykes argue that the Ordinance is overbroad
because it covers more than such sensitive places. They list
the areas covered: “open space venues, such as County-owned
parks, recreational areas, historic sites, parking lots of public
buildings . . . and the County fairgrounds.” The only one of
these that seems odd as a “sensitive place” is parking lots.

It's not the only one that seems odd to me, and given the history presented at the case, it seems that a sure way to prevent any future shootings at the fairgrounds would be to hold a gun show there that never closes.

April 23, 2009, 12:34 AM	#54
Al Norris Staff Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 8,756	Too Academic? Then explain to me all the post Heller analysis that explained how the case only affected D.C, even if it did foreclose the collective rights interpretation. Has everyone forgotten that? __________________ Listings of the Current 2A Cases: http://thefiringline.com/forums/showthread.php?t=416973

April 23, 2009, 03:03 AM	#56
sholling Senior Member Join Date: May 19, 1999 Location: Hemet (middle of nowhere) California Posts: 4,254	The San Fransisco Chronicle has a pretty straight shooting analysis. __________________ Proud Life Member: National Rifle Association, California Rifle & Pistol Association, and the Second Amendment Foundation. Annual Member: Revolutionary War Veterans Association (Project Appleseed) and the Madison Society.

April 23, 2009, 12:56 PM	#59
rwilson452 Senior Member Join Date: June 10, 2004 Location: Tioga co. PA Posts: 2,276	Someone refresh my memory. Didn't the 2nd circuit take a different view? __________________ USNRET '61-'81

April 23, 2009, 05:34 PM	#60
Yellowfin Senior Member Join Date: January 7, 2007 Location: West Upstate NY Posts: 2,303	The 2nd Circuit had a numbskull (pun intended) who ran a pro se case (ALWAYS a mistake) challenging a NYC ban on nunchaku. It had little standing, poor arguement, and little hope for success. The Nordykes had considerable standing, a better arguement, and one of the best lawyers in the country representing them and a coalition of all the top 2A minds within several hundred miles AND Alan Gura working on it. Also, the 9th had a few decisions on file that specifically hinged on the collective rights 2A view which Heller blew out of the water. All they had to do was rule that those decisions no longer were good because Heller said individual right. We got a GREAT judge on the opinion. __________________ Students for Concealed Carry on Campus http://www.concealedcampus.org New York gun owners unite! Join now! http://www.nyshooters.net May Issue is the new Separate but Equal.

April 23, 2009, 06:37 PM	#61
maestro pistolero Senior Member Join Date: August 17, 2007 Posts: 1,896	Anyone share my concern? Despite all the zeal of the day, does anyone share my concern about this ruling emboldening local government to undermine the newly won incorporation with flimsy claims that nearly any public area may considered a "sensitive place" in the context of the Heller decision? I am not at all convinced that we should let this stand. I will be very interested to learn the strategy of the Nordykes going forward. Obviously, any approach going forward should not endanger the incorporation, which would be hard to imagine, given the courts' broad reasoning behind incorporation. Last edited by maestro pistolero; April 23, 2009 at 06:59 PM.

April 22, 2009, 04:04 PM	#53
orchidhunter Junior member Join Date: December 1, 2008 Posts: 320	Yep, it's binding in the 9th Circuit. Can be cited in other Circuits, which they would take into account, but doesn't bind them. Note that "binding" is often more theory than fact, since there are ways to get around a binding decision (distinguish it -- facts in this case are somewhat different from facts in that case -- or sometimes outright ignore it, or call for en banc review by all the judges in the circuit and try to get them to overrule the prior decision). And a well-reasoned opinion from one circuit can carry weight in others. And a circuit split, where some circuits go one way and others go another, is a good basis for asking the Supreme Court to take it on and settle the issue. orchidhunter

April 23, 2009, 01:23 AM	#55
Wildalaska Junior member Join Date: November 25, 2002 Location: In my own little weird world in Anchorage, Alaska Posts: 14,174	Good point WildmaybethemsmhopesthedecisonwillgoawayAlaska TM

April 23, 2009, 08:57 PM	#63
maestro pistolero Senior Member Join Date: August 17, 2007 Posts: 1,896	Schools and government buildings were the terms Scalia used, if I recall. This court extended that to a county fairground (building, I assume) which although technically a government building, is almost certainly not the type of 'sensitive place' the USSC majority was referring to. Public housing is also a government building, but also a domicile. If 2A applies anywhere, it clearly applies in the home, whether government owned or not. Are we to believe that a county fairground building is a more 'sensitive place' than a government apartment building, sleeping babies and all? I'd like to see someone try to make that argument. Last edited by maestro pistolero; April 23, 2009 at 09:37 PM.

April 26, 2009, 12:01 PM	#67
publius42 Senior Member Join Date: February 9, 2002 Posts: 1,869	The 9th circuit opinion did comment that it was "odd" to consider a parking lot a "sensitive place" as Scalia used the term. The Nordykes argue that the Ordinance is overbroad because it covers more than such sensitive places. They list the areas covered: “open space venues, such as County-owned parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds.” The only one of these that seems odd as a “sensitive place” is parking lots. It's not the only one that seems odd to me, and given the history presented at the case, it seems that a sure way to prevent any future shootings at the fairgrounds would be to hold a gun show there that never closes.