• You are using the old Black Responsive theme. We have installed a new dark theme for you, called UI.X. This will work better with the new upgrade of our software. You can select it at the bottom of any page.

9th Circuit Nordyke decision is IN and whoo boy!

Status
Not open for further replies.

Jim March

Member
Joined
Dec 24, 2002
Messages
8,732
Location
SF Bay Area
I've made it an easier URL; I took this Acrobat file from the court system's convoluted website myself:

http://www.ninehundred.com/~equalccw/nordyke.pdf

:eek:

They're just BEGGING to have it heard En Banc. Or have Silveira heard En Banc, it would amount to the same thing. I've never seen Judges condemn their own circuit precidents to quite this degree before.

It starts off dry. Hang with it, read the WHOLE thing.

:what:

We got us a fight in progress, boys!
 
I believe that Judge Gould said it very nicely. Wish the court were made up of more like him.

Was Gould previously in concurrence with Hickman and Silveira?
 
Impossible to say, probably, he's a 1999 Clinton appointee!

:what:

http://www.ce9.uscourts.gov/web/OCE...02f1746d1cb9335e88256856006c8878?OpenDocument

He's from Seattle, and is still based there. Daily exposure to shall-issue has undoubtedly helped here!

Here's some other cases he was involved in:

http://www.appellate.net/docketreports/sc20563170.asp

http://www.admiraltylawguide.com/circt/9throdriquez.pdf

http://www.admiraltylawguide.com/circt/9thsimeonoff.pdf

http://www.lgny.com/effeminateman163.html

Go to google if you want more. Interesting guy.
 
What better way for SCOTUS to make a decision than with a non decision? If they uphold this with it's current wording we will gain,but they will leave the reasonable government restrictions in. Now what pray tell will be the reasonable restrictions? Will they be Chicago restrictions, D.C. restrictions or Vermont restrictions? It would have been very nice if he would have left out the government restrictions as they don't fit with the rest of the ammendments meaning.
 
Individuals lack standing to raise 2am issues? Individuals can posess guns and bullets. What else do we need?
 
Beautiful!

The point is not that they actually believe that citizens lack standing. The point is that, having relied before on the conclusion that the 2nd protects a "collective" right (and that individuals therefore lack standing, since an individual holds no collective rights to be infringed) the court has no choice but to rule accordingly and refuse Nordyke's petition.

However, the wonderful part of all this is that the court, especially Gould, clearly said that they think this decision is wrong and they would make another if they could. They're openly asking for the case to be taken en banc by all the members of the circuit, and when that happenst they expect the individual rights interpretation to be adopted. They also tore the panel that heard Silveira a big bloody new one because the Silveira panel ignored this obligation (they're bound by the same decision as this panel) and went off into the blue trying to prove that the collective interpretation is correct. Clearly, it's not, and it was improper for them even to consider the matter as an individual panel. This is an aspect of the law of which I was not aware, but it sounds like there's a remedy--en banc. I hope it will be used.

What if Scalia and Thomas really do want to hear a 2nd Amendment case, and they decide to take Silveira? Could this left-handed decision be used to bolster the individual-rights argument before SCOTUS?
 
Push is coming to shove.

I am truly surprised. This court made the correct legal decision, given precedent, then proceeded to delineate why thier decision should be overturned! They did this deliberately, with full knowledge of what they were doing. I hope that the full court is capable of this level of judicial honesty and ethics. If not them, then the Supremes.
 
Those who debated and framed the Bill of Rights were educated
in practical political concepts and doubtless recognized
that an opening gambit for tyrants is to disarm the public.

Hmm... Methinks that Judge Gould just called Feinswine, Boxer, Kennedy, and Schumer tyrants!!!
 
Amazing! :what:

This beats the anti's stare desis (sp?) argument to a pulp, to wit: "yes we have to rule against this guy because doing so is consistent with other rulings - which are, in fact, all wrong and should be overturned en masse."

It actually asks SCOTUS to rule on the 2nd Amendment as a matter of declaring the groundwork upon which such cases must be decided, instead of the contradictory & biased & absurd hodgepodge of "legislating from the bench" we have now.

How much plainer must it get? When SCOTUS's immediate subordinates start saying "boss, tell us how to handle this..."
 
For those that know this court. How do the politics of these three compare to the rest of the 9th Circuit robes?
 
It really gets good about page 15.

It just seems weird. They state their ruling based on previous rulings. They state how another previous rulings was wrong to elaborate on an issue because it was already ruled upon. Then they spend the bulk of the time elaborating on an issue and noting why previous rulings were incorrect.

There is a reason I am an engineer and not a lawyer.
 
http://www.sacbee.com/content/politics/story/6141369p-7096820c.html
Court's rift sets up key gun ruling
Judges' disavowal of colleagues' opinion could send a Second Amendment case to the Supreme Court.

By Claire Cooper -- Bee Legal Affairs Writer
Published 2:15 a.m. PST Wednesday, February 19, 2003

SAN FRANCISCO -- A fateful showdown between gun control and the right of private citizens to own firearms drew closer Tuesday, when a split was revealed in the highest federal court in the West.

Legal observers said the rift in the 9th U.S. Circuit Court of Appeals increased the likelihood of a constitutional review of gun rights by the Supreme Court -- or, at least, the full 9th Circuit -- in the near future. The 9th Circuit has jurisdiction over all federal appeals from nine states including California.

Since 1996, the circuit, along with most other courts that have considered the issue, has held that the "right to bear arms" in the Second Amendment applies to state militias and not individuals.

But that interpretation has been called into question in the past couple of years in scholarly articles, a ruling by the 5th Circuit in New Orleans and an official shift of U.S. Justice Department policy.

In December, a three-judge 9th Circuit panel weighed in on the current controversy. It shored up the circuit's pro-gun control stance by attaching a 72-page analysis of the history and meaning of the Second Amendment to a decision upholding a California ban on assault weapons.

Three other 9th Circuit judges weighed in Tuesday, however, disavowing the December ruling as "unpersuasive" and saying it should not be considered binding precedent. The pro-gun owner ruling by the New Orleans-based 5th Circuit, on the other hand, was "very thoughtful and extensive," Judge Diarmuid O'Scann-lain of Portland, Ore., wrote for the majority. Senior Judge Arthur Alarcon of Los Angeles signed the majority opinion.

Ronald Gould, a 9th Circuit judge from Seattle, went further, flatly saying that the 9th Circuit was wrong in 1996.

The panel reluctantly ruled against the plaintiffs in the case, gun show promoters who had challenged the right of Alameda County to bar them from its fairgrounds.

O'Scannlain said the promoters had to lose because only an 11-judge panel or the U.S. Supreme Court has the power to overrule the 1996 decision. The Supreme Court last issued a major Second Amendment decision in 1939.

The new decision is "a way to send a message" within the 24-judge 9th Circuit that it needs to pay attention to the case, said Vik Amar, a constitutional authority at Hastings College of the Law in San Francisco.

"It's also a way to send a message outside the circuit to, for example, the Supreme Court, about current divisions within the circuit," he said.

Gary Gorski, the Fair Oaks lawyer who represents the plaintiffs in the assault weapons case, saw good news in what he called the "internal bickering."

"It helps to the extent that it's going to get my case to the Supreme Court (or) a full panel of 9th Circuit judges," he said.

Copyright © The Sacramento Bee
 
i just d/l'ed the whole thing to read off-line tonight, but to shamelessly steal a line from the old "Chico & the Man" TV show...

"....I rate that LG. . . . . LOOKIN' GOOD ! ! "

Beware of sudden tremors out west, though folks.....from all the LIE-beral Blissninny hand-wringing and hearts a-fluttering.
 
I'm not sure that this reporter actually read the decision.

http://www.azdailysun.com/non_sec/nav_includes/story.cfm?storyID=59963

Court: No absolute right to carry weapons in public buildings

By HOWARD FISCHER
Capitol Media Services
02/19/2003

In a major victory for cities and counties, a federal appeals court said Tuesday there is no absolute right of individuals to carry weapons into public buildings.
The Ninth U.S. Circuit Court of Appeals rejected arguments by a California man that an Alameda County ordinance banning guns at the county fairgrounds which ended gun shows there violated his constitutional rights of free expression and bearing arms. In their unanimous ruling the judges said that guns are not the same as speech.

Tuesday's ruling could have implications in Arizona where several communities have enacted restrictions on gun possession on city property. And it comes as the city of Tucson is battling to keep its own restrictions which require those who sell weapons at gun shows in the city-owned convention center to conduct background checks on buyers.

But Rep. Randy Graf, R-Green Valley, said he doesn't put much stock in the decision. "Isn't this the same court that ruled you can't have 'under God' in the Pledge of Allegiance?" he asked, referring to a controversial ruling by the court last year.

Anyway, Graf said he believes that the right to conduct gun shows in public buildings is probably protected by broader language of the Arizona Constitution which says "the right of the individual citizen to bear arms in defense of himself or the state shall not be impaired."

Russell and Sallie Nordyke who have operated gun shows at the fairgrounds since 1991 challenged the 1999 county ordinance which effectively shut down the shows. The appellate court, relying on a ruling by the California Supreme Court, concluded that a state preemption on local gun laws did not overrule the county ordinance.

But the couple also argued that they had a First Amendment right to operate the shows, saying that possession of guns amounted to exercise of free speech. Appellate Judge Diarmuid O'Scannlain rejected that comparison.

"A gun itself is not speech," the judge wrote for the three-judge panel. What is speech -- and potentially constitutionally protected -- is what someone does with a gun.

So someone protesting by burning a gun might have some rights, O'Scannlain said, as might be someone waving a gun at an anti-gun control rally.

But the simple possession of a gun, the judge said, is not expressive.

The court also rejected arguments that gun possession is protected commercial speech.

Separately, the judges rejected the contention that the Second Amendment protects the right of individuals to have guns. O'Scannlain said as far as the Ninth Circuit is concerned, that is a "collective right for the states to maintain an armed militia and offers no protection for the individual's right to bear arms.''

Graf said the Ninth Circuit has its rulings overturned more often than any other federal appellate court. And, in fact, O'Scannlain acknowledged that the Fifth Circuit has ruled the Second Amendment does protect individual rights; the U.S. Supreme Court has yet to decide which court is right.
© 2000-2003 Arizona Daily Sun
 
Second, as for the argument that the Second Amendment doesnt say "possess" arms, consider the American Heritage Dictionary's first defininition of "keep": "to retain posession of." (Page #2233)
OUCH! The Silveira majority might want to put some ice on that...

However, recognition of individual right in the Second Amendment, to protect national security, is not inconsistent with reasonable regulation, which may be permissible under several theories: (1) all weapons are not "arms" within the menaing of the Second Amendment; (2) "arms" protected may be limited to those consisten with use by an organized military force, as suggested in Miller, and (3) important government interestes may justify reasonable regulation. (Page 2237, footnotes)
Well, this proves there is at least one person in Kali that can read US v. Miller correctly. I dont agree with the "reasonable regulation" part, but its better than nothing considering the other rulings from this court.

Awesome find, Jim.

Kharn
 
OMG

In between work tasks, I was finally able to finish reading the thing.

It brought me great hope, joy, and perhaps even a misting of the eyes.

Judge Gould hits the X, repeatedly, and with eloquence.

On the day that SCOTUS upholds the individual right to keep and bear arms, a great burden will be lifted from our shoulders, and we will know that the darkness has been beaten back for a good, long time.

I wrote this a while back, and now I am inspired to share it, for what it's worth.

------------------------------------------------------------------------------
An open letter

To the Justices of The Supreme Court of The United States of America


Sirs and M'am,

It is no accident that your titles are that of "Justice", for the courts have often proven to be the last, best hope of honest citizens. It is as an honest, law abiding citizen that I approach you today. I approach you simply, without guile, without lawyers, but with simple and direct words, as a common man and citizen. If justice is not approachable in such terms, if it requires money, arcane knowledge, and such trappings, then a strong baricade exists between common men and justice, which begs then the question as to how justice shall be had.

What I ask of you is neither extravagant, nor complex. I assert, as a peacable human being, and an American, that it is my Unalienable, God given, and Constitutionally Enshrined right to have and carry with me my sidearm, at the times and places that to my considered judgement seem prudent, without fear of molestation by my own government.

But for continual fear of the very real probability of harrassment, bureacratic entanglement, prosecution, and punishment, which would perversly strip me of the very rights I seek to uphold, I would have my sidearm with me, where it is beneficial in the defense of myself, my family, and my community. I assert that my right of self defense exists wherever I stand, and not merely just in my home, and that the effective means to do so is intrinsic to this right.

That I do not do this, choosing instead to abide in the myriad and capricious laws that form an insurmountable barrier between me and the second amendment, in the plain meaning it was intended, compares me unfavorably in my eyes to the example set by the founders of this nation.

For me, and many, many others, peacable, non criminal citizens, the second amendment is simply not a reality. This statement might be shocking, but it has come to that. I measure it in terms of the simple, solid reality of my pistol in my holster, standing peacefully in the street.

For most, this will not happen on any street in New Jersey. Certainly, the laws here provide for a permit to do so, but in practice, they are simply not issued to normal citizens. It is an improbability in New York City, in Chicago, in California, in Ohio and in Maryland, and in the District of Columbia. In Massachussets, more than most places, the "privilige" is frought with traps and dire legal peril. In my case, it took me ten months to even obtain what can only be called permission to buy my sidearm. That which is our right is denied to us by the death of a thousand cuts of law upon law, of bureacrats, of papers sitting on desks, in the unintended consquences of laws of noble intent, and the intended consequences of laws of ignoble intent.

I will not add to this list our own failure as citizens to demand that which is ours. I am a citizen, and I do so demand it. This is the miracle of America, that one man alone may stand and demand his rights, and that even the mightiest must take notice.

In Pennsylvania, I was accosted once, and the threat of a friends arms saved us. In New Jersey, I have no doubt the outcome would have been different. In New Jersey, it is perverse that I must disarm myself before leaving the safety of my home before heading out into the uncertain streets, and on the day that I need no longer do this, I will know that the second amendment, and by extension, the entirety of the bill or rights is worth more than the paper it is written upon. The right that you can not excercise does not exist.

In the name of the failing spirit of the founders, I beg you to help me, and the many faceless others like me. Clarify, today, and as many times in the future as need be, that the second amendment does in fact enshrine for us the uninfringed, personal right to have and carry effective, up to date arms for our own defense. The light is failing, and the shadows grow, and it is thus that I oppose the darkness.
 
However, recognition of individual right in the Second Amendment, to protect national security, is not inconsistent with reasonable regulation, which may be permissible under several theories: (1) all weapons are not "arms" within the menaing of the Second Amendment; (2) "arms" protected may be limited to those consistent with use by an organized military force, as suggested in Miller, and (3) important government interestes may justify reasonable regulation. (Page 2237, footnotes)

Okay, so when are short barrelled M4 rifles, as used by the organized military force known as the Army Special Forces, and 3-round burst M16 rifles, as used by the organized military force known as the US Army, and the M249SAW, as used by the organized military force known as the US Marines going to be available for sale to the general militia/public? :D

I bet that the anti-gunners will go after ammunition if they get beaten back to the original intent of the 2nd Amendment. :barf:
 
Status
Not open for further replies.
Back
Top