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May 2, 2011, 06:55 PM | #1 | |
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Nordyke - Cert filed at SCOTUS
Read the decision here.
I've only skimmed it, but from what I'm seeing, it is a very bad decision. The panel has dismissed the 1A claim and while the case was vacated (as to the 2A claim) and remanded, it was in such a way that the panel has given the district court a roadmap on how to dismiss the 2A claim in its entirety. After describing how the Alameda ordinance came into being, the panel concludes with this remark: Quote:
I may have more to say later, after I have completely read and digested the ruling. |
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May 2, 2011, 08:38 PM | #2 |
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Quick read -- if a law or regulation substantially burdens the Second Amendment rightthe court will scrutinize it more closely. Laws which are not aimed at or do not substantially interfere with the 2A rights are given more deference. They reject the dissent's approach which seems to be the rational basis/interest balancing test rejected by the Supreme Court.
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May 2, 2011, 10:00 PM | #3 |
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Just registered so go easy on me (IANAL).
The way I read this is that the Nordykes did not raise a substantial second amendment complaint. Under Heller, the "core" second amendment is the right to "keep and bear arms" for self defense. Prohibiting a gun show on county property would be akin to stopping a strip club from establishing within the city limits. A strip club might try a 1st amendment defense but would most likely fail. But...from what I read of the ordinance, it does not prohibit gun shows, it prohibits ALL firearms from county property, with the mentioned exception: "section 9.12.120(f)(4) exception for authorized fire- arm use at certain artistic events." ( Nordyke v King 5653 ) It would follow that because the ordinance prohibits the exercise of the "core" 2nd Amendment right, it should fail on its face, if the proper complaint is raised. One thing extra I would like to point out is that the 9th circuit, unlike a few others, has not limited its interpretation of Heller to "in the home". Unless I missed something. McM |
May 2, 2011, 10:50 PM | #4 | ||
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It tells me that the government can make gun ownership very expensive, and create numerous hoops for me to jump through, but that is OK. In other words, the Fed could require me to pay a $1,000 tax for each gun that I purchase, and that would be acceptable since the right had not been totally removed. God help us all!
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May 3, 2011, 07:26 AM | #5 |
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This is a very bad decision. If we have to look for a silver lining in this cloud, perhaps it will create a good spot to appeal 9th Circuit precedent to the SCOTUS.
Bothersome points (on a fairly cursory reading): 1) The district court disallowed the addition of the 2A claim, citing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) for the proposition that the claim would be futile under 9th Circuit precedent. Under Hickman, though, " . . . .'[i]t is clear that the Second Amendment guarantees a collective rather than an individual right.' (citations omitted). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed." Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996). As we all know, Heller and McDonald shot that notion down. (no pun intended). Unfortunately for us, the plaintiffs did not allege that they wanted to take firearms onto county property for purposes of self-defense. Marion MaGee (no relation, and welcome to TFL, MM!) mentioned this last part earlier. 2) "It was the handgun ban’s heavy burden on effective self-defense that offended the Second Amendment." Nordyke at 5639. This line opens the door to governmental agencies to test the waters to see just how heavy a burden the 2A will tolerate. I need to read and digest this one more thoroughly. Edited to add: One more comment. I'm bothered by the emerging necessity for the plaintiffs to plead self-defense purposes in order to mount a 2A challenge. Gun owners have a 2A right. It's spelled out in plain language. Do I have to explain my reasoning to assert my 5A right? 4A? 1A? In some cases yes, in some cases no, I guess. |
May 3, 2011, 12:06 PM | #6 | ||
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May 3, 2011, 01:45 PM | #7 | ||
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A positive view through a 2A lens.
Overall a positive view through a 2A lens.
http://www.courthousenews.com/2011/05/02/36272.htm Courthouse News Service: Quote:
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Also, how does the court believe that the county to reasonably conclude gun shows are dangerous, when there was NO evidence in the record that the gun shows caused violence? I think the county even stipulated that there were no violent incidents elated to the the gun show. No-one wants to commit robbery or assault at a gun show, yet the court believes the county could reasonably conclude otherwise. __________________ |
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May 3, 2011, 01:57 PM | #8 | |
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May 3, 2011, 02:05 PM | #9 |
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I personally always thought this was a weak case. Even were the government to completely ban all gun shows everywhere, I doubt it would be a strong 2A issue since you are still able to purchase guns in gun shops. More likely to be a 1A or equal protection (kind of ancillary to 2A) issue in that case.
Just my opinion. |
May 4, 2011, 12:02 AM | #10 |
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Another totally bass ackwards decision by the Ninth Circus Court of Idiots Savant.
Have not read the case yet, so I don't know if the Ninth addressed the issue of degree of scrutiny applicable. Doesn't sound like it, however. They should have taken a more frontal approach, is a significant public interest served by the ban. If not, the ban is unconstitutional. SCOTUS will spit this one right back in their face. The problem with the Ninth Circuit is there is not enough water left on the West Coast to flush those stupid yahoos down the nearest toilet. |
May 4, 2011, 12:26 AM | #11 |
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9th circuit is a joke
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May 4, 2011, 01:05 AM | #12 | |
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July 9, 2011, 12:10 AM | #13 | ||
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In addition to Don's email to me earlier today (see the Enos thread), I spoke with him about Nordyke
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On 06-24, a supplemental authority Sorrell was filed. Docket #185. Attached is Sorrell v. IMS Health, 564 U.S. ___, filed June 23, 2011. It compels a reconsideration of the Nordykes’ First Amendment claims.On 07-06, a supplemental authority Ezell was filed. Docket #186. Attached is Ezell, et al., v. City of Chicago, No. 10-3525, from the U.S. Court of Appeals for the Seventh Circuit, filed July 6, 2011. It compels a reconsideration of the Nordykes’ Second Amendment claims.On 07-06, a supplemental authority Brown was filed. Docket #187.Further analogies between Nordyke and Ezell would require more At issue in Brown was California’s restrictions on the sale or rental of violent video games. As this Court might recall, part of Alameda’s justification for banning firearms on County property, and thus putting an end to gun shows at the Pleasanton Fairgrounds, was idea that the mere presence/proliferation of firearms has a cause and effect relationship that is detrimental to public health and safety. Alameda Ordinance 9.12.120(a).Docket #188 is a correction to #187 (which I've done in the above - hypothesis was misspelled). Alameda County had also asked for a 6 day extension to file their response and it was granted. Their response is due on the 11th. |
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July 12, 2011, 10:35 PM | #14 |
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As I announced in the Current 2A Cases thread, Alameda has filed their response.
In its response to Nordyke's request for rehearing, Alameda County makes a strong showing for a denial of the request, by "showing" that Heller meant only guns in the home; Sensitive places are places that a government may declare as such; That commerce in arms can be whatever they want it to be, besides, acquiring firearms is not a fundamental right; Since none of the activity that the Nordyke's want to pursue are protected in any manner, they fail. And on they go.... Virtually the same old 2A two-step we have seen in several other cases. Instead, Alameda suggests that the remand to district court should be continued... To develop the 2A record. While this response does spend a couple of pages on the Ezell decision, it spends no time whatsoever on the other two cases that Nordyke used as supplemental authorities, one of which was a Supreme Court decision (Brown). Alameda certainly does not want the panel (or en banc court) to reconsider its "undue burden" test. Whatever else might be said, the 9th's new "undue burden" test almost certainly guarantees that most gun laws within the 9th circuit will pass any form of scrutiny. Of course, there is the issue of not granting the rehearing and/or en banc. which will mean that Don Kilmer will immediately file a petition for certiorari before the Supreme Court. That puts 3 potential cases in front of the Court for review. It also puts a lot of pressure on the 9th. While the Supreme Court may agree with the current outcome of Nordyke, I don't think they could buy into the logic used by this panel. The 9th knows all this. It may be to their own advantage to consider the case (which delists the panel decision, meaning no anti-gun jurisprudence), revise the logic while retaining the outcome. Such an action would almost certainly mean that this case will not make the next session of SCOTUS. This is also betting that if the SCOTUS does take one of the 2 cases currently before it, that any outcome would not affect a decision in Nordyke. Courtroom political maneuvering at its finest. |
November 28, 2011, 11:22 PM | #15 |
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The 9th has agreed to hear the case, en banc.
Briefing schedule and orals will be set at a later date. |
December 1, 2011, 07:22 PM | #16 | |
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December 1, 2011, 11:35 PM | #17 | |
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Nordyke Quote:
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February 17, 2012, 09:30 PM | #18 | |
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I've been saying the the week of March 19th was going to be busy. Well, the date for the Nordyke en banc orals has just been set.
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February 18, 2012, 12:54 PM | #19 |
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Well, I have to say that it's about time.
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March 22, 2012, 07:59 AM | #20 |
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Oral Arguments were heard on Monday. The 9th released the audio shortly afterwards.
http://www.ca9.uscourts.gov/media/vi..._id=0000008948 It appears that Alameda County is tired of the litigation and has decided to try and moot the case. They'll allow gunshows if the guns are cabled and tied to the tables! 12 years of litigation and they just now say this? Holy Hanna, Batman!! |
March 22, 2012, 11:52 AM | #21 |
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Maybe the thought they could out last the plaintiffs in a war of (monetary) attrition. Maybe now they think they was wrong.
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March 22, 2012, 04:53 PM | #22 | |
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See this thread for discussion and arguments, especially those presented by Calguns member 'fabiogetsgoosed'. It's pretty clear to me that the county's culpability in this "misunderstanding" may be severely limited by the fact that they are on the record as saying that secured guns would be ok, and in at least one exchange, that secured means tethered with a cable. The first 9th en banc panel also seems to have missed it altogether, or at least, they didn't understand that it was a significant shift in the county's previous position. (This can be heard in the 1st en banc oral argument recordings at about 56:00, IIRC) It also seems obvious that at a minimum, the county allowed the mistaken impression to remain that they were sticking to their previous position of 'gun-less gun shows'. The plaintiffs may or may not have understood the county's new interpretation. It's not over yet, but it promises to be a very strange end to a very long road. Bottom line, they can have their gun shows, the scrutiny issue is unscathed, and hopefully the several cases being held for this somewhat bizzare outcome can finally move forward. I hope. I can't figure out if this was an unintentional oversight by the plaintiffs, strategic 'ignorance' of the county's position, or just a case of not seeing the forest for the trees. It does seem to complicate things for Don Kilmer when it comes to getting fees. Last edited by maestro pistolero; March 23, 2012 at 02:20 AM. |
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March 22, 2012, 10:16 PM | #23 | |
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Why is it....?
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Why is it that a law requiring ID (or worse, proof of citizenship, or actually being registered to vote) gets call an infringment, restriction, disenfranchising a segment of the population, etc... but this statement above is an actual court ruling when it comes to gun rights? guess it depends on whose ox is being gored, I suppose...
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March 24, 2012, 12:06 PM | #24 | |
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Actually, voting is a "right", not a right.
The Fifteenth Amendment states: Quote:
See HERE. The Congress giveth, and the Congress taketh ay.
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March 25, 2012, 11:57 AM | #25 | |
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