9th Circuit and 2A Incorporation

[sholling]

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]

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....

[Yellowfin]

Here ya go, the audio encoded to .mp3. http://www.hoffmang.com/firearms/Nor...2009-01-15.mp3

[maestro pistolero]

Beat me to it., Thanks Yellowfin.

[Al Norris]

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]

Dial up? I'm surprised y'all have 'lectricity already!

[Al Norris]

Yeah, we've had 'lectricity since I put a generator on my windmill. Gots a choice now... Water or power!

[Yellowfin]

I'd gladly trade needing a windmill for the freedom Idaho has.

[Al Norris]

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]

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]

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.

[BillCA]

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!