View Full Version : 9th Circuit and 2A Incorporation

Al Norris
October 6, 2008, 10:34 PM
From the "In case no one is watching Dept."

After the flurry of cases filed in the aftermath of Heller, we all thought it would be a few more years before the matter of incorporation would reach any Circuit, let alone the SCOTUS. Well, we were all wrong.

The following are the briefs filed in the ongoing Nordyke, et al v. King, et al case, before the 9th Circuit as of 10/03/08:

Litigants Briefs:
10/3/08 SUPPLEMENTAL REPLY BRIEF: RUSSELL ALLEN NORDYKE; et al. (http://www.calgunlaws.com/images/stories/nordyke_appellants_supp_reply_brief.pdf)
10/3/08 APPELLEES’ BRIEF IN REPLY TO SUPPLEMENTAL BRIEF OF APPELLANTS [opposition brief] (http://www.calgunlaws.com/images/stories/nordyke_appellees_supp_reply_brief.pdf)

Amicus Curiae Briefs:
10/01/08 Amicus Curiae: The National Rifle Association of America and California Rifle & Pistol Association brief (http://www.calgunlaws.com/documents/NRA_Amicus_Brief.PDF)
10/01/08 Amicus Curiae: Professors of Law brief (http://www.calgunlaws.com/documents/Law_Professors_Amicus_Brief.PDF)
10/01/08 Amicus Curiae: Professors of Law, History, Political Science or Philosophy brief (http://www.calgunlaws.com/documents/Amicus_Brief_Professors_of_Law.pdf)
10/03/08 Amicus Curiae: SECOND AMENDMENT FOUNDATION, INC. (http://www.calgunlaws.com/images/stories/saf_amicus.pdf)
10/3/08 SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE (http://www.calgunlaws.com/images/stories/alameda_lcav_amicus_brief.pdf)

The one I would like to comment upon, is the Brief filed by the SAF. As it is the most presuasive of the amicus briefs filed.

On 2 Oct. 2008, the Second Amendment Foundation (SAF) has submitted an amicus curiae brief in the revived Nordyke case that is now before the 9th Circuit. Alan Gura is the counsel for the Amici and has written one heck of a brief.

There are 5 points to the brief.

1) The Court (9th Circuit) is required by Heller to consider the question of incorporation, and that such a question cannot use Cruickshank, et al, as they are relics of the pre-incorporation era, and that the previous controlling precedents (i.e.Fresno) of the 9th are now obsolete, via Heller.

2) Makes the argument that under modern incorporation doctrine, the 2A is already incorporated, and that is is only required for the Courts to acknowledge this. This argument stems from the fact that the SCOTUS has ruled that the right in question is a fundamental right. Such a right, under incorporation doctrine, is necessary for the ordered Liberties of a free society.

3) That the 2A does nothing to interfere with the normal police powers of the State. Here, Gura equates what Alameda County really wants is a police-state, and this is untenable under the Constitution.

4) That the BOR was to be and is an improvement over the English Bill of Rights. It was never meant to be the same or less than their English counterparts, which is the argument of the appellee's.

and 5) That lawful commerce in arms is a protected subsidiary right of the 2A. That is, the State may not curtail the working implements of the right without running afoul of the right. In this, the power to regulate firearms does not reach to the power to deny firearms. A crucial holding in Heller.

Incidently, it is in this section (5) that that the amici brief states that the only reason for the prohibition of gun shows at the county fairgrounds, in light of other lawfully entertained permissions (literally, exceptions to the gun regulations), is to deny (suppress) the exercise of 2A rights.

I particularly liked the first section, as it deftly kills any reliance upon Cruickshank, Presser and Miller as any kind of valid precedent under current incorporation doctrine. Along the way, Gura makes the argument that the 14th was a direct response to Barron (by overturning it through amendment) and how the Court has begun (and continues) to correct its Slaughter-House decision.

To those of you (absolutists) that did not like some of Gura's holdings in his briefs and Orals in Heller, you will likewise take exception to some things said in part III.

In light of Heller, it will be interesting to see how the appellee's climb out of this hole that has been dug. As it is, the appellee's only real argument is that the 2A is not incorporated. None of their arguments state why (with any credibility) it should not be incorporated within the Due Process Clause of the 14th.

Granted, there are some serious arguments against incorporation, but this case has the best chance, as the panel that is reviewing the case has all but said they would incorporate.

October 7, 2008, 09:22 AM
That's a good analysis of Gura's brief, Al. Upon reading it, the brief clearly shows that Alameda permits certain gun-related activities while banning those it does not like.

I'm reading the opposing SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE and it is not terribly persuasive.

1. They argue that the 2nd isn't incorporated so the appeal is already settled. :p But they cut their own throats by saying the judge in Fresno said that until the Supreme Court’s previous decisions in Cruikshank and
Presser are overturned the 2nd applies only to the federal gov't. (Hey, guess what, folks!:cool:) In Heller the court made it clear that both cases were no longer controlling due to modern incorporation standards.

2. They take the stance that, even if incorporated, because Nordyke is engaged in commercial sales Heller doesn't apply because there is no claim of violating possession in the home. Intead they claim that the case is about regulation of commercial sales; prohibiting carrying of arms in sensitive locations...such as government buildings; which Gura trashed in his brief. They also miss the point. They show there are "other venues" for purchasing a firearm in Alameda county (29 FFL holders) but fail to address which of these are capable of either hosting a gun show or providing the ability of hundreds of people to assemble for the same purpose as a gun show. It's like saying "We can ban any assemblies of persons on public grounds because you can always use private property or have their discussions on the Internet."

3. They argue that "Strict Scrutiny" is not correct and that the "reasonable regulation" standard is, mostly because that is what has been used in the past. They entirely neglect the fact that "past precedent" was based on the lack of the 2nd being defined as a fundamental, individual right as found in Heller. This entire section crumbles when faced with the need to treat the 2nd Amendment as a fundamental right.

4. Their claim that Alameda can manage it's own property as it sees fit and/or that it has a duty to maintain safety and order on government property falls far short. Gura points out there is little evidence of unsafe or unlawful conduct at gunshows. Additionally, while the county is not obligated to allow use of the fairgrounds for any purpose, the record shows the intent is to deny exercise of 2nd Amendment rights by prohibiting the selling, trading or purchasing of firearms as Gura's brief describes.

5. They make a claim that the "carrying" and "possession" of firearms in a public place has long been prohibited. However, the laws they describe refer to loaded weapons and/or inciting fear by possessing a firearm, not safely carrying an unloaded firearm to a place where it may be sold, traded or appraised by a dealer. By their definition, one could not transport a weapon between home and a dealer or range without violating the law.

Their arguments follow only the most narrow parts of the SCOTUS decision, claiming that the 2nd only protects rights "in the home" because that's how Heller was decided. The completely neglect having to adjust scrutiny standards, ignore the implications that the right to own a firearm must be accompanied by the right and ability to purchase one and that the county cannot show a "compelling public interest" in prohibiting guns shows on the grounds of "safety".

October 7, 2008, 02:04 PM
In the the supplemental reply brief (I haven't read the opposition brief yet) I found:
Next, like a magical incantation, Appellees keep citing a brief
phrase from a footnote in a ten year old book by Justice Scalia

Can someone point me to what Scalia wrote?

Al Norris
October 7, 2008, 02:34 PM
"Second, as Justice Scalia has explained, “properly understood, [the Second Amendment] is no limitation upon arms control by the states.” Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law, 136-137, n.13 (Princeton University Press 1997)." Page 2 of the Appellees Brief.

Al Norris
October 7, 2008, 02:38 PM
The 9th Circuit panel consisting of Judges Alarcion, O'Scannlain and Gould that first ruled on Nordykes facial challenge, have retained jurisdiction. In light of Heller the question is now presented as an as applied challenge.

What is clear from the prior ruling (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FCCA5E5E7F2EBF2088256CD1005B853B/$file/9917551.pdf?openelement) is that the panel strongly suggested (and Gould's concurrence stated plainly) that it did not believe that the previous Second Amendment rulings in Hickman (http://www.guncite.com/court/fed/81f3d98.html) and Silveira (http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/gunlawsuits/silvlckyr120502opn.pdf) were good law.

Gould deliberately proceeds to show how he would view arguments for incorporation. Under Heller, Fresno (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/fresno_club_v_vandecamp.txt) would not be controlling.

I believe that Don Kilmer (attny for appellants) and Gura both address all the issues Gould laid out. By inference, all three Judges would incorporate. Whether the as applied challenge would succeed in whole or in part is another story.

October 7, 2008, 04:33 PM
Ya know; I’m a pretty simple guy and certainly could not be considered even remotely knowledgeable in the field of law. But I can read (yeah, yeah – surprise to some I’m sure:)) and when I read this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

I have to wonder how it could possibly be construed to mean anything other than incorporation of the entire BOR.

That aside, I’ve been reading the briefs and find them fascinating.

Al Norris
October 7, 2008, 06:04 PM
A lot of us, use FindLaw.com to research and read about many of the cases we talk about. I have found that Cornell University uses a much better format, when you can find the case there.

grymster2007, to understand how the P&I clause (the one you quoted) was read out of the amendment (and thus, out of the Constitution), you should read the decision that did this.

Slaghterhouse Cases (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0083_0036_ZO.html) at Cornell. You can contrast what Justice Miller writes in his majority opinion and contrast that with the 3 dissenting opinions.

To help save you time: Justice Miller spends a few paragraphs on the civil war and its aftermath. He expounds upon how the 13th, the 14th and the 15th were passed in regards to giving only the Negro or African race the rights of all free men. Then after expounding upon the meaning of the phrase, Privileges and Immunities, he writes:

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

What he is saying is that the nature of the relationship between the Federal Government and the State Government cannot have been meant to change in the manner the amendment suggests. The majority of the Court rejects the plain meaning of the amendment, as it would apply to all and not just to the former slaves.

That is how the P&I clause has been read completely out of the Constitution by a single case before the Supreme Court. A Court that refuses to believe change can happen.

October 7, 2008, 09:21 PM
What he is saying is that the nature of the relationship between the Federal Government and the State Government cannot have been meant to change in the manner the amendment suggests. The majority of the Court rejects the plain meaning of the amendment, as it would apply to all and not just to the former slaves.

Thanks Al. That's what I thought he said, it was just that the circuitous route he took left me wondering if I had followed it all.

So how is it that a single decision, made more than one hundred years ago, continues to thwart the explicit intent of the 14th amendment? Was the decision ever tested? If so, how did it survive?

Al Norris
October 8, 2008, 05:40 PM
grymstr, the best I can do is to point you to this (http://www.cato.org/pubs/pas/pa326.pdf) document (PDF) from the Cato Institute.

Bartholomew Roberts
October 9, 2008, 06:12 AM
So how is it that a single decision, made more than one hundred years ago, continues to thwart the explicit intent of the 14th amendment? Was the decision ever tested? If so, how did it survive?

Slaughterhouse was pretty plainly a Court resisting the clear intent of Congress expressed in an amendment - at the same time, they were able to do that because there was wide popular support for not giving minorities the same rights as whites despite the 14th Amendment.

My own opinion would be that this is a case of overruling stare decisis without actually overruling it. Around the 1930s, the doctrine of selective incorporation through due process was invented to apply the Bill of Rights to the states. This didn't overrule Slaughterhouse, which still remains a good point of law to this day on the extent of the P&I clause; but it sure did come up with a different outcome than a strict following of Slaughterhouse would allow.

This basically let the Supreme Court selectively apply the Bill of Rights to states piece by piece - rather than trying to swallow the elephant whole, it let them carve it up bit by bit and eat it a piece at a time.

By the time it was politically practicable to actually eat the rest of the elephant, there wasn't much point left to it because there was just a couple of bites left (one of which is the Second Amendment).

I think this case has great potential though. A recent ABA article noted that facial challenges have had a very difficult time with this Court and that as-applied challenges are much more successful. On top of that, I think a supermajority on this Court realizes that Slaughterhouse was bad law and wants it to go away - not only does this case offer an excellent basis to incorporate the Second Amendment under the doctrine of selective incorporation - it also offers an intriguing chance to overturn Slaughterhouse outright and right past wrongs. I don't know if the Court would go that far given that two small portions of the BoR (right to indictment by grand jury and something else I can't remember) have been specifically held not to be incorporated against the states in previous cases; but it does dangle some interesting bait out there for them.

maestro pistolero
December 15, 2008, 12:54 PM
"Second, as Justice Scalia has explained, “properly understood, [the Second Amendment] is no limitation upon arms control by the states.” Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law, 136-137, n.13 (Princeton University Press 1997)." Page 2 of the Appellees Brief.

This DOES seem at odds with the argument for incorporation. What am I missing here?

December 15, 2008, 02:03 PM
This was written before the "right of the people" actually applied to individuals...(at least at the federal level).
So, perhaps, the interpretation changes with the Heller ruling. Thoughts?

maestro pistolero
December 15, 2008, 03:45 PM
This was written before the "right of the people" actually applied to individuals...(at least at the federal level).
So, perhaps, the interpretation changes with the Heller ruling. Thoughts?

But since it was also Scalia who clarified it as an individual right, it does seem to shed doubt on what Scalia might think of incorporation via the 14th.

December 15, 2008, 05:04 PM
All interesting arguments ... however, I know most of you are aware of the Ninth Circuit's record of extremely liberal decisions, I'm not convinced they will reach the decision we're hoping for ... of course, they're also (I believe) the most overturned Circuit ...

December 22, 2008, 06:58 PM
"Liberal" in it's true meaning, means to evaluate everything put before you, and make a reasoned decision.

The 9th circuit, Judge Thelton Henderson in particular, has been an advocate for civil rights. He was also my advanced ConLaw teacher, Euguene Swan's friend. Both went to Boalt.
Both are black.

To finally get rid of The Slaughterhouses Cases would be a legacy they would like. Also, the Incorporation of the 2A would lead to more minority LEGAL gun ownership, and, I believe, a reduced amount of crime. The gangs already have guns. I can't help but think that Henderson is well aware of Contra Costa County's good old boy network, limiting CCW permits by race, and, that it might make him determined to do something about it, given the chance.

I do have hope that their opinions are shared by the judges reviewing this issue.

As a liberal, how could you NOT be for incorporating the Bill of Rights against the states, and, insuring "liberty and justice for all"?

Al Norris
December 22, 2008, 07:21 PM
I believe the base problem is that "Liberal" no longer means "Classical Liberal," which is what you are describing.

December 23, 2008, 12:19 AM
Al, I agree. It really means 'facist-liberal'.

December 23, 2008, 06:38 AM
Actually, I think that Liberal in the United States today is closer to socialism (http://en.wikipedia.org/wiki/Socialism). The current version of the Republican party's version of religious conservatism is closer to fascism (http://en.wikipedia.org/wiki/Fascist).

Al Norris
December 23, 2008, 10:23 AM
Let's not take this labeling (of political beliefs) any further.

It adds nothing to the debate on the merits of Nordyke before us.

December 24, 2008, 01:25 AM
My point in bringing this up is simple: you may have real, old liberals in positions who for a variety of reasons, would like to see the Slaughterhouse cases destroyed as precedent, and, the 14th amendment properly incorporating the Bill of Rights, and, with a bit or irony, they would have to include the 2nd amendment, as well...AND, that some of those classical liberals ARE Federal Judges in the 9th circuit...

December 27, 2008, 11:20 AM
If you go back to the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men

Those words are the beliefs that our founding fathers had. That man has God given or natural rights that are not the governments to give or take. That does not mean that they can not be regulated with common sense. That would also apply to the states as well.

Many colonies and states had a bill of rights before the adaption of the Constitution. It was delegates from the states that approved the Bill of Rights which is part of our Constitution. It wasn't the federal government who was saying that the Bill of Rights had to be adopted. it was the people from the states who wanted it.

I think the Heller Decision laid a foundation for that again. That a person has a basic right to defend himself and the Second Amendment is a guarantee of that right.

Hopefully cases like these will get us back to that standard

Jim March
December 27, 2008, 08:23 PM
Those words are the beliefs that our founding fathers had. That man has God given or natural rights that are not the governments to give or take.

Just to clarify: the radical implication of this section of the Declaration is that rights DO NOT come from any man or government. That was a break from Europe, where you had whatever rights the crown said you had.

Back then, the only alternative source of rights they could think of was (a?) God.

Today, another alternative source exists: our rights come from what we are as intelligent beings and have their basis in our biology. In this view, our rights are protected by the social structures we build, and embryonic forms of this can be seen among animals. If you don't think a pack of wolves know about property rights fr'instance, go try and take away their dead caribou or whatever. Many species all the way back to ants and bees do collective self defense...etc. And it's very clear all of our ancestors going back at least 10 million years were pack animals same as the great apes today.

I say this because I once had an argument with a modern-day "patriot" over whether or not an athiest could have a proper appreciation for the US system of government.

December 27, 2008, 10:02 PM
IIRC, Jean Jacque Russeau came up with the social contract.
That is, that the power a government has is because it's agreed to by the people who put the government in place.

Problem is when that social contract breeds a Leviathian...

January 16, 2009, 12:59 AM
The audio of today's oral arguments have been posted. Warning they are loading very slowly. So far I think we're ahead on points but you never know with courts. It's also a pretty good lesson in how the system works, and it's nothing like TV. ;)


maestro pistolero
January 16, 2009, 03:05 AM
Well, that was sort of underwheming. Perhaps Antipitas and others can help us lay folks understand what happened, or didn't happen there.

On it's face, it didn't seem to me as though the plaintiff's attorney did a very convincing job of tying either the second amendment or it's incorporation to the plaintiffs right to have a gun show on county property. After listening to the audio, I wondered myself why this case once seemed to be the poster child for incorporation.

Why wouldn't he argue that the ability to defend one's life via keeping and bearing arms is a right so fundamental, that it should take a seat next to the first, and fourth amendment in terms of applying it to the states.

Asked another way, if speech and religion are rights fundamental enough to warrant incorporation, how is it possible that self preservation could fall below that standard?

I hope I am missing something; I usually am.

January 16, 2009, 06:18 PM
The case is interesting and really only a back door way to bring about incorporation to California. However this appeal became possible because of Heller essentially overturned an earlier 9th Circuit ruling that found that the 2nd was a collective right. Based on that ruling the earlier panel found that the right to keep and bear arms could not be used in the original Nordyke appeal. That this panel even took the case gave hope that they were ready to incorporate.

Al Norris
January 16, 2009, 11:58 PM
Blasted government webmaster! When we first started this thread, they simply posted a link to the wma file. That I can download and play. But nooooo! Now they have a java script which checks your browser for a Windows Media plugin and if you don't have one.... Well, you're SOL.

I'm on a linux machine. There are no Windows Media players or plugins for our browsers. Explorer 6.0 or better won't run with wine....

Anyone have a direct link to the wma file? Can't answer any questions if I can''t hear the dang thing. grumble, grumble....

January 17, 2009, 04:26 AM
Here ya go, the audio encoded to .mp3. http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke-Oral-Argument-2009-01-15.mp3

maestro pistolero
January 17, 2009, 04:32 AM
Beat me to it., Thanks Yellowfin.

Al Norris
January 17, 2009, 11:37 AM
Hmmm... 3.5 hr download on dial-up... Have to get it later today. :)

Thanks Yellowfin. I'll get it, listen to it and report back.

maestro pistolero
January 17, 2009, 11:57 AM
Dial up? I'm surprised y'all have 'lectricity already!:D

Al Norris
January 17, 2009, 12:01 PM
Yeah, we've had 'lectricity since I put a generator on my windmill. Gots a choice now... Water or power! :p

January 17, 2009, 02:29 PM
I'd gladly trade needing a windmill for the freedom Idaho has. :(

Al Norris
January 19, 2009, 03:22 PM
I want to thank maestro pistolero for sending me the audio (before there were links to it all over the net).

Because of the board going down, I didn't immediately write up an analysis. I'll post it later today (I hope).

Al Norris
January 19, 2009, 04:32 PM
On January 15th, 2009, oral arguments were heard on Nordyke v. King (Alameda County) 07-15763, before a panel of the 9th Circuit Court of Appeals.

The most memorable (and noteworthy) exchange in the orals:

Court: It seems strange to me to say you can have a gun show without showing of guns ... (laughter and mild applause) ... How does the ordinance take care of that? How could they have shown their guns without bringing them to the campgrounds? (sic)

Peter Pierce for Alameda County: Point taken your honor, but I do not think it could be assumed, as a matter of law, that a sale could never occur without the gun being physically present there. The sale could be consummated there and perhaps the individual could view the firearm immediately off the government property. I suppose that is a possibility ... (slight pause) ... That's my response to the question

Overall impressions: Don Kilmer knew his case. At every question, he had an affirmative answer. When the Judges wanted to explore side angles, Kilmer skillfully evaded and brought the Judges to where he wanted them to go.

Not so Mr. Pierce. He conceded nothing (as seen in the above quotes). Heller only conferred a right to possess handguns in the home for self defense. Heller did not confer a right to self defense anywhere else but the home. Mr Pierce, in a direct question from Judge O'Scanlon, stated that Heller did not confer a corollary right to buy firearms. Heller only conferred, what limited right it did confer, to a federal enclave. Mr. Pierce did not concede that the (2A) right could be incorporated at any level lower than the Supreme Court.


The first amendment argument, by Kilmer, was, I thought, a bit weak. While it relied upon freedom of expression, I didn't hear where he included freedom of assembly, which to my non-attorney ears, would be another and stronger vehicle.

Regardless, from the type of questions asked about 1st amendment rights, it is fairly clear (IMO), the panel will not rule favorably in this regard.

The 14th amendment Equal Protection argument was stronger and relied upon the Equal Protection clause.

For part of his incorporation argument, Kilmer used footnote 23 of Heller, as a starting point (Kilmer: "With respect to FN #23, the Court almost invites incorporation"). Cruikshank and Presser were both cases where the 2a did not apply to the States, long before there was an incorporation issue.

Kilmer did modify his stance on the P&I clause. He argued that until the SCOTUS overturned the Slaughterhouse Cases, it was controlling precedent. That did not stop him from characterizing that Cruikshank, and its progeny, as non-controlling, in light of current incorporation doctrine and dicta within Heller.

Kilmer than proceeded to argue that Fresno was not controlling as it was decided solely upon P&I issues and not current controlling incorporation issues. If any cases were controlling, it would be Cruikshank and Presser. Yet they are no longer controlling under current doctrine.

Pierce, on the other hand, relied upon Cruikshank, Presser and Fresno Rifle, as precedent and that until such a time that the SCOTUS overturned Cruikshank and Presser, then Fresno Rifle was the controlling precedent.

It should be noted that Cruikshank was decided 50 years before Due Process and Equal Protection became to be used as part of the Selective Incorporation Doctrine. It should also be noted that Presser relied almost solely upon Cruikshank. Further, that Fresno Rifle relied upon the two former cases. If Cruikshank is to be bypassed (for purposes of incorporation), the other two cases can not be controlling. Most especially, Fresno.

Pierce contends that Fresno is controlling because it relies upon the P&I clause which is foreclosed in Slaughterhouse. Pierce does not follow-up on the Due Process and Equal Protection clauses, nor does the panel question this omission.

Mr. Pierce completely ignored the fact that Cruikshank and Presser have been bypassed by the Supreme Court as controlling, when looking at current incorporation doctrine. The panel did not question Pierce on this omission.

My conclusion is that the panel will incorporate and send the case back to the District court for further consideration. At this point, the appellee will ask for an en banc review and barring this, seek cert before the SCOTUS. It will then be at least another year before anything else is done.

If cert is petitioned, I suspect it will be denied. The issue is far from ripe.


FN#23 - With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Jim March
January 19, 2009, 05:04 PM
That wasn't the only criticism of Cruikshank in Heller.

The Heller decision cites with approval a new book (2008 anyways) by Charles Lane titled "The Day Freedom Died". "The day" in question was the day Cruikshank was handed down by the US Supremes in 1876.

Cruikshank set the stage for thousands of lynchings by claiming that the worst possible civil rights violations by states could not be controlled by the Feds, ending reconstruction. In the events that led up to Cruikshank, white cops and other town authorities stripped arms from blacks for the specific purpose of launching what turned out to be three days of arson, riot, rape and murder. The "heinous crime" the blacks had committed was attempting to vote under the new 15th Amendment.

Cruikshank is the most screwed-up precedent imaginable and I think the cat is way out of the bag and running off down the street about how foul it is.

January 19, 2009, 10:17 PM
My take was similar to Antipitas' in that Kilmer (and Kates) knew the answers to the questions asked and gave good answers.

Aside from the one point of laughter about having gun shows without guns, another high point (I think) was this exchange between Alameda's Pierce and the court:

Court: I'm trying to put Heller in the context of this case. Obviously Heller was a statute that prohibited possession anywhere within the district, so it was an absolute ban on possession anywhere, not the limited ban we have here in Alameda county. But suppose a total ban were at stake in this case, which it is not, but suppose it were just for the sake of discussion, what would the answer be?

Pierce: I think the answer still would be no, Your Honor. And the primary reason for that is whether or not a right needs to be recognized in order to further the regime of ordered liberty would seem to depend on whether or not ... [stops... five seconds of silence]

Either Pierce had a mental train-wreck or saw that there was no way to really support his answer. The court, however, rephrased the question and let Pierce have a moment to regain his balance. At that point, Pierce argued that whether the 2A should be incorporated depended on whether or not the 2nd Amendment was animated by a fear of federal tyranny or whether what animated the 2nd Amendment and propagated its adoption was a fear that states would disarm citizen militias. And he points out that Heller says the fear of a federal tyranny was the motivation for the 2nd Amendment.

But wait. It was Pierce who earlier, in discussing the O'Brien 4-pronged test, said Courts do not look to underlying motives to judge constitutionality of a law. Which it would appear that Mr. Pierce just tried to do with the motive for passing the 2nd Amendment.

Pierce argues that if the court holds there is a right to possess a firearm "in any location one choses, including public property, is fundamental" that would go against Common Law. Unfortunately, this ignores a historical record that we can easily find in Dred Scott v. Sandford, 60 U.S. 691, 705 when the court denied that blacks could be citizens:
It would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased.... and it would give them full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Not to keep and carry firearms just in their homes, or businesses, but wherever they went. But then, Common Law in many southern states kept blacks off of juries for decades too.

My conclusion is that the panel will incorporate and send the case back to the District court for further consideration. At this point, the appellee will ask for an en banc review and barring this, seek cert before the SCOTUS. It will then be at least another year before anything else is done.

If cert is petitioned, I suspect it will be denied. The issue is far from ripe.

Just to clarify, if the 2nd is incorporated, the District Court, barring some other excuse, will be forced to reverse the previous finding against Nordyke. If this is appealed for an en banc hearing, the appellee will then be Alameda County. I think the odds of an en banc review will depend on how soundly the upcoming decision is written. And I think SCOTUS will not hear the first appeal on incorporation, preferring to wait until there are several with conflicts that need to be resolved.

Don Kilmer had only 1 minute to respond at the end, but he managed to make the link between this ordinance and similar ones to reproductive rights (i.e. abortion debate) when he said:
It is important also, your honor, there are 2 places where firearms dealers are allowed to sell firearms in the state of California, and that is at their store or at a gun show. And the reproductive cases we cited in our briefs are that if the government engages in substantial interference with access to the right, then it is engaged in an unconstitutional conduct.
Thus he was equating the County's ban to a law that would cut in half the opportunity of a woman to have access to abortion services. The court should find it difficult to treat these as unequal rights.

Optimistic outcome: Incorporation in the 9th Circuit, but with delays in implementation while appeals are made.

Pessimistic outcome: The 9th Circuit has indicated a willingness to review under the 14th, but may not incorporate with a 3-judge panel. This sets up an appeal for an en banc hearing (or SCOTUS appeal). This delays the case by 1-2 years and gives a chance for new SCOTUS members to be appointed.

But, off in the far distance comes a fragrance that is sweet and pleasing. And yes, it does smell quite a bit like victory!