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Old January 19, 2009, 10:17 PM   #37
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Join Date: November 28, 2004
Location: Silicon Valley, Ca
Posts: 7,117
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.

Originally Posted by Antipitas
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!
BillCA in CA (Unfortunately)

Last edited by BillCA; January 19, 2009 at 10:28 PM.
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