Incorporation now being argued before the 9th Circuit court...

Ironic that one of the most restrictive states might well result in the 2A being incorporated. :) And fairly soon. If the 9th circuit goes for incorporation, the others should be a slam dunk.

http://www.calguns.net/calgunforum/showthread.php?t=120437

if its up to the 9th Circus Court of Schlameles, don't hold your breath. they're not exactly known to be gun friendly.

Bobby

some pretty smart legal talent think there is a very good chance the 9th will bite.

besides, its not about gun friendly or not. they still have to have some legal basis for their decisions and Heller has all but cut that avenue off.

Although the 9th circuit has more than it's share of far left judges it also has a significant number of judges who do follow the law and more than a few of these have written in the past that the 9th circuit's Second Amendment presedent (Hickman) was wrongly decided and with Heller they have been proven correct. It appears that from my reading of the previous Nordyke ruling by this exact panel that they are at least predisposed to listen to our side and give it due consideration.

The "individual rights" view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, "The Embarrassing Second Amendment", 99 Yale L. J. 637 (1989); Eugene Volokh, "The Commonplace Second Amendment", 73 N.Y.U. L. Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit's recent holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." Id. at 260.

[9] We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson .

But they were prevented from doing this by Hickman v. Block

...it is clear that the Second Amendment guarantees a collective rather than an individual right. 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.

Which is clearly invalidated by Heller. They also slamed the Silveria panel in the foot notes of the ruling.

n4 We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court's holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: " [W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right." Silveira v. Lockyer, 312 F.3d 1094 (9th Cir.2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit's holding in <>Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court's holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the "individual rights" theory as well as the Fifth Circuit's holding in Emerson, the Silveira panel's decision to re-examine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court," Morton v. De Oliveira,

In other words because Heller invalidated Hickman they now have a "blank slate" on which to consider incorporation. I suspect that there is at least a 50% chance that we will get incorporation out of this case in the 9th circuit and since this is an appeals court it is binding in the circuit until an em banc panel or SCOTUS over rules it.

Also this is already fairly far along and it seems like we will have a ruling on this sometime early next year.

Ironic that one of the most restrictive states might well result in the 2A being incorporated.

Ironic yes. But this is how these things work and is exactly what happened with the civil rights movement. The initial law suits are ALWAYS filled in locations with the worst laws in part because these are the laws that are the least defensible and that are most likely to be overturned (IE. low hanging fruit).

Great point.

Saw this on Calguns (http://www.calguns.net/calgunforum/showthread.php?t=120437)... The 9th Circuit court of appeals has just received a brief with arguments to incorporate the 2nd amendment under the 14th. The case is Nordyke v. King (http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King) which involves a gun show ban, and has apparently been kicking around between the district and circuit courts for many years.

The briefs are here:
Nordyke (http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke_Supp_2A_Brief_Final.pdf) (argues for incorporation)
Alameda (http://www.hoffmang.com/firearms/Nordyke-v-King/1084793_1.pdf) (Arguing against incorporation)

Word has it that the 3 judges on the panel hearing this appeal have made prior comments that suggest they are predisposed to support incorporation. :D

The County’s stated
motivation was to eliminate the fairgrounds as “a place for people to
display guns for worship as deities for the collectors who treat them as
icons of patriotism.” (italics added for emphasis)

wait, isn't that a freedom of religion issue?

Freedom of religion is not free... you can not break the laws in the name of your religion. its been tried many times, by many diffrent people, they all have lost. Many have seen jail time as well.

most notably, every once in awhile some one starts up a church and then says its agains thier religion to pay taxs... No one has ever won a case like that, but many have gone to jail for tax evasion/fruad.

Interesting. Thanks for all the info.!!

don't hold your breath
All is not lost.
This is the same court that ruled that a felon COULD build machineguns for his personal use.

Are there any dates being talked about yet, as to when to be alert to a hearing/decision? The 9th Circus is a stretch to be looking at for a straight decision, but it is great to see this being pursued.
sailortoo

O'Scannlon is as conservative as the Pope is Catholic. We got one vote. I don't know about the others.

Kozinski & Bea would make me very happy too, but they don't appear to be on the panel.

Freedom of religion is not free... you can not break the laws in the name of your religion. its been tried many times, by many diffrent people, they all have lost. Many have seen jail time as well.

most notably, every once in awhile some one starts up a church and then says its agains thier religion to pay taxs... No one has ever won a case like that, but many have gone to jail for tax evasion/fruad.
generally the courts seem to rule that if there is a genuine religious interest it is acceptable. for instance, the catholic church was allowed to serve wine in its ceremonies during prohibition, and some native American religions use peyote with government tolerance at least.

some religions sacrifice animals legally, even though such a thing would probably be illegal for anyone else.

conscientious objection has long been accepted as allowing one to escape combat military service.

the government will not tolerate someone who directly attacks its vital interests (such as taxation) so it is unlikely a religion formed to avoid taxation would pass muster.

The two other judges are Gould and Alarcon.

Gould will vote for incorporation. His concurring opinion pretty much said so. We've got 2.

I had no idea this was going on. Good to know, and fingers crossed.

Whoa. I just started with Alameda's brief; they fall RIGHT into the trap Scalia warned them about: reliance on Cruikshank as good precedent.

Scalia twice noted problems with Cruikshank: one, it allows states to violate the first amendment (and 15th right to vote, not mentioned but well documented) and since THOSE parts of Cruikshank have been overturned, the rest is suspect.

But much worse, the Heller decision cites with approval a new book titled "The Day Freedom Died" (Lane, 2008) which links the Cruikshank case to horrific racism. THAT is their big precedent? Oh, they're SCREWED assuming our side points this out...

BUT THEY DIDN'T!!! DAMMIT, what the hell was wrong with Kilmer and Kates? They should have ripped Cruikshank into confetti. God, Scalia handed them that gameplan on a platter...they had that evil stinking Cruikshank right in their sights and they didn't take the shot!!!

What the hell?

The Nordykes, as appellants, submitted their brief first. Then Alameda County, as appellees, submits their brief. Can't very well tear something apart until the opposition uses it (in this case, relies upon it).

It is with the reply briefs that we might will probably see Cruickshank torn to pieces. Those are due by 10-02-08.

Ah. Yeah, that makes tons of sense...I mean, Alameda just basically pointed a shotgun at their own case and put Kilmer's finger on the trigger.

Still...it was dangerous to hope that Alameda would cite to Cruikshank. If they hadn't then that issue would be gone. As it is, Alameda stepped all over "that certain part of your body" as the dumb ads for that "certain product" might have put it...

Jim, as I read Alameda's brief, I got the distinct impression that they studied D.C.'s brief way too much!

Consider: The rants about how the States can't agree on gun laws as they relate to self defense and an individual right are irrelevent to the matter at hand.

Instead of arguing why their ordinance is a valid exercise of legislative authority, they are re-arguning a case that the Supreme Court has already ruled upon!

Worse, they are arguing before three Judges who will follow Heller and are pre-disposed to incorporation.

I can't even begin to fathom what they think they are doing. This isn't some moot court they are arguing before!

Any idea when the decision will be handed down?

Reply briefs are due by 10/2, oral argument usually comes within 30 days of that, decision is usually handed down 60-90 days. Given the panel on the subject, we got at least 2 votes for incorporation.

So look for a decision to be made before the end of January.

In the posts above it was pointed out that the reply briefs are due early next month. This is basically the last major step before the court hearing for final oral arguments. So I would expect that it will be argued very early next year (it could even be late this year) and we should have a ruling before midyear.

Jim is correct about Cruikshank being a bad choice for Alemeda but what else can they site? It is the only presedent they have to work with as bad as it is.

It was wise for Nordeky to avoid Cruikshank in their initial breaf because it has been reputiated by SCOTUS. It buys Nordeky nothing other than wasting paper on an argument that is likely to be put forward by the other side and for which they could use thier reply brief to counter. In addition since Nordeky didn't bring it up in thier initial brief Alemeda can't say anything about it in thier reply brief since there is nothing to reply to. In other words they are screwed since they can no longer counter Nordeky's counter arguments concerning Cruikshank other than during oral arguments and by then the judges have likely made up their minds.

In addition because there is nothing else for Alemeda to use Nordeky could basically sit back and wait for Alemeda to bring it up. It was a trap and Alemeda took the bait hook, line and sinker. This is a very smart move by Nordeky.

This is the same court that ruled that a felon COULD build machineguns for his personal use.

This.

hvengel: I think you mean Nordyke. :)

Once a decision is made by the 9th circus, does that precedent hold for the rest of the country until another circus decides differently?

For example, if the 9th circuit on the left coast decides not to incorporate, does that mean lawyers in Maine can argue that as precedent until/unless the 1st circuit court decides otherwise?

(That disagreement of course being what usually gets things pushed to SCOTUS.)

Once a decision is made by the 9th circus, does that precedent hold for the rest of the country until another circus decides differently?

No, it doesn't necessarily bind the other circuits, but can be cited as precedent.

OTOH, an adverse ruling can be appealed to the Supremes, where the handwriting is already on the wall that Cruikshank won't hold water.

OTOH, an adverse ruling can be appealed to the Supremes

I'd guess that either ruling will be appealed by one side or the other.

On the Cal-guns version of this thread, Don Kilmer replied:

http://www.calguns.net/calgunforum/showthread.php?p=1523431

See page 7 for the exchange. I spoke out of turn; my last response was:

---

OK. First, yes, I spoke out of turn. It was late, I was tired, I phrased that pretty dumb.

But...

OK, first, since Cruikshank is cited as precedent in existing 9th Circuit cases (Fresno Rifle, which in turn is cited by Hickman and at least one earlier Nordyke ruling), I would say that Cruikshank is already "in play" and open for criticism given the new ammo against it the Heller decision has provided.

But setting that aside, we caught a break when Alameda County cited to Cruikshank so directly and thoroughly. THEY put it firmly in play if it wasn't already.

Don, before you complete your reply brief, I would ask you to go get a copy of "The Day Freedom Died" by Charles Lane. This 2008-new book was cited with approval in Heller. And the "day" in question per that book is the day the US Supreme Court handed down the Cruikshank final decision (in 1876).

That was the Heller decision's big slam against Cruikshank. It should be read as a warning to all lower courts not to rely on Cruikshank. It can even be read as support for full incorporation under the P&I clause, as that's what the book argues for. But regardless, it condemns Cruikshank as thoroughly racist and discredited. It's absolutely vital to nail Cruikshank to the wall here, as it's a cornerstone of all US state-level gun control, cited by courts across the US and the California AG's office in their last missive on the 2nd Amendment.

Judge Reinhardt in Silveira knew that the Cruikshank precedent was worthless, which is why he tried to build up a whole new structure for state-level gun-grabbing. The Heller decision chopped that up and buried the pieces at a crossroads but it's still worth noting WHY Reinhardt went to the ridiculous lengths he did: it's because Cruikshank is flat-out evil. It prevented the Feds from stopping state-level civil rights violations at a time when the court KNEW these were rampant. In the Cruikshank case itself, the violations of the right to arms were done in order to facilitate mass rape, arson and murder. Over 100 people were murdered following the arms confiscations by state agents.

This is what Alameda is hanging their hats on and...well hell, I'm begging you to point this out. Alameda's brief pretty much begs you to as well.

Thanks for listening.

Jim March

Good post Jim. I agree completely!

ok so, this incorporation means that the state of ca must use the second admendment...but what does it do for the average person on the streets??

as the goverment does not always go by the rule of law.

.

This is what 42USC1983 allows.

Right, 42 USC 1983 is Federal law that allows lawsuits in Federal court when a state violates a Federally-protected civil right.

One of those rights by the way is "the right to due process" which covers a lot of ground. As one example, when a state violates their own rules in any number of ways, it can trigger a 42 USC 1983 action.

If you want to REALLY understand incorporation, go here:

http://www.thehighroad.org/showpost.php?p=4674758&postcount=68

Looks to me that taking it to the 9th is a bad idea. Why not take it somewhere that is a slam dunk. Go there to set precedence. This is some bad lawyering. Selfish. Chicago would be a better front. Better odds.

Ok, so the 2nd gets incorporated, maybe. Then they add "reasonable restrictions" and ban guns on county property. The county simply argues that the the plaintiff is right; the original ordinance was flawed. They added the exemption for movies, etc. Fixed. End of story. I don't see how this wins anything.

The bad news: trying it before the Ninth Circus gives us a good chance that we lose.

The good news: trying it before the Ninth Circus gives us a better than 50% chance that it will be overturned by the Supreme Court.

When you take into account the chances of winning on the first ballot, plus the chances of winning in the higher Court, I'm not sure those are bad odds overall. :)

Incorporation will have to be fought circuit by circuit.

It's not at ALL impossible that the 9th Circuit will say the 2nd isn't incorporated while others (5th for sure, likely others) will say it is. And until the Supremes set it for sure, there'll be that split.

So there's no reason NOT to take it to the 5th. And if it's done right, it can be won - the anti-incorporation case law (particularly Cruikshank) is beyond merely "tainted" with racism, and racism is what the Liberals of the 9th are (allegedly) against.

Thanks for keeping us informed. I learned a lot about the 14th that I never understood and appreciate the education.

I am so accustomed to seeing government run over the concept of freedom that it refreshing to see victories like Heller, and hopefully the fallout from it.

Ummmm...meant to say "no reason not to take it to the 9th"...sigh...typo...

I thought perhaps losing in the 9th was by design in order to get it to a higher court and have that court smite the 9th circus...you know to specifically dispose of those arguments that have kept the 2a down for so long in these areas. You need an opinion in order to crush said opinion.:evil:

And a quick Primer for those still wondering what this whole "incorporation" thing is about.

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

Six months ago I believed a Heller "loss" would not necessarily be detrimental to Second Amendment Rights in areas outside of the District of Columbia, as strongly as I believe now that we shouldn’t overstate the Heller "win", outside of “the District“.

The state and federal legislatures have been very active, and they will continue to be active. It has been demonstrated much harder to repeal law, than to enact it, apparently. Honorable Scalia and his majority have given us reprieve from the onslaught, the steady stream of “reasonable regulations“, by throwing a big fat boulder in the middle. And those on one side of that gift may very well remain thoroughly soaked. I think the opinion already clues us in; The answers lay in the State’s big houses, through past accumulative history and the ambition of our present “lawmakers“, and not with “the Federal Nine” (SCOTUS). Currently finishing my read of the Nordyk and Alameda briefs.

The Alameda brief …. Cringe-worthy to be sure, but informative on other levels.

I thought perhaps losing in the 9th was by design in order to get it to a higher court and have that court smite the 9th circus...you know to specifically dispose of those arguments that have kept the 2a down for so long in these areas. You need an opinion in order to crush said opinion.One of the most compelling senarios to get the SCOTUS to take up a case is to have a split in the circuits (different circuit courts of appeals with opposing decisions so that what is legal in one part of the country is illegal in another under the same law).

Based on a previous ruling by the judicial panel which will hear this case, it seems extremely likely that the 9th circuit will rule for incorporation of the 2nd amendment. :D

Looks to me that taking it to the 9th is a bad idea. Why not take it somewhere that is a slam dunk. Go there to set precedence. This is some bad lawyering. Selfish. Chicago would be a better front. Better odds.

Wrong again. The panel that's taking on this case is a pro-individual rights panel that flat out said in it's last ruling that incorporation is a certainty if the supreme court overruled the idea of it being a collective right.