Nordyke vs. King: Bad decision?

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crebralfix

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After reading a bunch of the decision:

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

it appears that this is a bad decision.

The court ruled that banning a gun show on public property does not infringe upon a person's right to defense in the home. The decision also uses the Heller decision's notion of "sensitive places"...and includes parks and fairgrounds in that category.

:cuss:

4498:
[13] Heller tells us that the Second Amendment’s guaran-
tee revolves around armed self-defense. If laws make such
self-defense impossible in the most crucial place—the home
—by rendering firearms useless, then they violate the Consti-
tution.

[14] But the Ordinance before us is not of that ilk. It does
not directly impede the efficacy of self-defense or limit self-
defense in the home. Rather, it regulates gun possession in
public places that are County property.

[snip of stuff about availability]

The County also points to the famous passage in Heller in
which the Court assured that
nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws for-
bidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws
imposing conditions and qualifications on the com-
mercial sale of arms.

Heller, 128 S. Ct. at 2816-17 (emphasis added). The County
argues that its Ordinance merely forbids the carrying of fire-
arms in sensitive places, which includes the Alameda County
fairgrounds and other County property.

The Nordykes object that the County has provided no way
to determine what constitutes a “sensitive place.” But neither
did Heller; Second Amendment law remains in its infancy.
The Court listed schools and government buildings as exam-
ples, presumably because possessing firearms in such places
risks harm to great numbers of defenseless people (e.g., chil-
dren). Along the same lines, we notice that government build-
ings and schools are important to government functioning.
The Nordykes argue that the Ordinance is overbroad
because it covers more than such sensitive places. They list
the areas covered: “open space venues, such as County-owned
parks, recreational areas, historic sites, parking lots of public
buildings . . . and the County fairgrounds.” The only one of
these that seems odd as a “sensitive place” is parking lots. The
rest are gathering places where high numbers of people might
congregate. That is presumably why they are called “open
space venues.” Indeed, the fairgrounds itself hosts numerous
public and private events throughout the year, which a large
number of people presumably attend; again, the Nordykes’
gun shows routinely attracted about 4,000 people. Although
Heller does not provide much guidance, the open, public
spaces the County’s Ordinance covers fit comfortably within
the same category as schools and government buildings.
[15] To summarize: the Ordinance does not meaningfully
impede the ability of individuals to defend themselves in their
homes with usable firearms, the core of the right as Heller
analyzed it. The Ordinance falls on the lawful side of the divi-
sion, familiar from other areas of substantive due process doc-
trine, between unconstitutional interference with individual
rights and permissible government nonfacilitation of their
exercise. Finally, prohibiting firearm possession on municipal
property fits within the exception from the Second Amend-
ment for “sensitive places” that Heller recognized. These con-
siderations compel us to conclude that the Second
Amendment does not invalidate the specific Ordinance before
us. Therefore, the district court did not abuse its discretion in
denying the Nordykes leave to amend their complaint to add
a Second Amendment claim that would have been futile.
Click to expand...
 
Kinda bad for the Nordykes, but I think they will find a way around that.

GREAT for most of us. Incorporation of Heller!!!

This will setup a chain of events that will be VERY GOOD for us (especially us in California: PRK).
 
Yes, the second part of the decision is disappointing to read. The judges were so convinced that the right to keep and bear arms is a fundamental part of our American heritage, but then fell lockstep into the myth that the mere presence of a gun makes for a dangerous situation. They gave so much credit to the interest in "reducing and controlling gun violence" without ever questioning what one had to do with the other.

Still, integration is an important step in the restoration of rights.
 
Bad for the Nordykes, excellent for everyone else,

Read ALL the decision, particularly Justice Goulds expansion at the end.
 
excellent for everyone else
Click to expand...
Incorporation is worthless if every judge concludes that whatever law being challenged does not violate the 2nd Amendment. So yeah, Nordyke is better than what many here would have expected out of the 9th Circuit, but I agree with the OP that the 9th Circuit's reasoning when applying the 2A to the ordinance at issue was bad news, particularly the part about labeling open public places as "sensitive" places.
 
Phatty,

Not so much.

There was some discussion on this area on the Calguns forum.

The general consensus is that there is ground for appeal, solely in this area (not the 2A element), based upon the lack of definition of what constitutes a "sensitive" area.
 
The general consensus is that there is ground for appeal, solely in this area (not the 2A element), based upon the lack of definition of what constitutes a "sensitive" area.
Click to expand...
everallm,

You kind of lost me on this. What do you mean by the "2A element?" Also, if there's a general consensus regarding appealing a portion of the opinion, doesn't that mean there's a general consensus that a portion of the opinion is bad?

By the way, you don't get to pick and choose what parts of a decision are appealed. If you appeal, everything in the opinion is fair game (especially considering that once the "losing" party appeals, the "winning" party will immediately cross appeal any portion of the decision that it deems unfavorable.)
 
Incorporation is worthless if every judge concludes that whatever law being challenged does not violate the 2nd Amendment. So yeah, Nordyke is better than what many here would have expected out of the 9th Circuit, but I agree with the OP that the 9th Circuit's reasoning when applying the 2A to the ordinance at issue was bad news, particularly the part about labeling open public places as "sensitive" places.
Click to expand...

Did you guys not read anything about the case?

The decision allowing the gun show to be shut down had nothing to do with the 2nd Amendment.

The decision hinged on the following logic:

1. The 2nd Amendment is incorporated against the states, and it might protect the gun show, if it could be applied. ("Sensitive places" acknowledges that guns can be restricted in some places, but it also implies that the county would have to show how and why "all county property" equals "a sensitive place".)

2. The 2nd Amendment was not part of the original case, therefore it couldn't be used in this appeal. It was too late to add the argument to the case.

Nordyke et al. didn't lose a 2nd Amendment case. They lost their case because they didn't cite the 2nd Amendment when they brought it to court. The judges took pains to discuss why the 2nd Amendment might have led to a different decision, but that the case was not originally about the 2nd Amendment -- and new arguments cannot be brought up in an appellate court.
 
By the way, you don't get to pick and choose what parts of a decision are appealed. If you appeal, everything in the opinion is fair game (especially considering that once the "losing" party appeals, the "winning" party will immediately cross appeal any portion of the decision that it deems unfavorable.)

What ArmedBear said.......Any appeal, if the Nordykes decide to continue IS NOT and CANNOT be about 2A just the question and case asked specifically around the gun show issues.

The 2A issue here came out in exactly the same manner as Heller, where 2A and incorporation was NOT the issue at hand it was about banning an entire class of firearm.

If you want to be pedantic you can say the courts indulged in "judicial activism" in that they ruled and expanded on an issue not directly at hand.
 
So yeah, Nordyke is better than what many here would have expected out of the 9th Circuit,
Click to expand...

Not so fast. It was the 9th Circuit that initialy ruled that homemade machineguns, NFA items etc were not subject to federal law which only applies through the interstate commerce and otherwise has no legal jurisdiction.
In United States vs Stewart they essentialy said his homemade machinegun was not subject to federal law because it was never part of commerce, and he kept it for personal use never intending for it to enter commerce.

Then Raich came along. The Supreme Court of the United States kicked back the United States vs Stewart (2003) decision to the lower court in light of the recent (2005) Raich decision essentialy telling them to change it due to Raich.
That essentialy if the twisted logic applied in the Raich case, where a plant grown for personal use never to enter into commerce, using nothing that was a part of commerce could still have the commerce clause applied and be "necessary and proper" in enforcement of commerce then it certainly applied to federal gun laws.

So if it was up to the 9th Circuit the NFA, and by conclusion the GCA etc would not even apply to homemade weapons or modifications (select fire, SBR, SBS, AOW etc) for personal use if they remained outside of commerce.

So if federal authority had not been vhastly expanded in the Raich case then the 9th circuit would have made one of the most pro gun rulings in the United States in the initial Stewart decision.

The exact same logic and decision is likely to be used to defeat the Montanna movement to have thier own state firearms exempt from federal law.
Raich changed everything.
 
As for this decision itself it is both good and bad.

They highlight the Supreme Court saying thier decision did not challenge prohibited classes.
They take it a step further and specificly use that to say prohibited classes are legal under the law in this decision.

What that means in an anti gun state is you need to make more offenses prohibiting offenses.
There is already a long list of misdemeanors that are prohibiting offenses in CA. There is also felonies that are misdemeanors in much of the nation that are prohibiting offenses.
Maybe more than X traffic tickets in Y amount of time should prohibit someone as well, as it clearly demonstrates they are incapable of responsible behavior.


Along the same lines, we notice that government build-
ings and schools are important to government functioning.
The Nordykes argue that the Ordinance is overbroad
because it covers more than such sensitive places. They list
the areas covered: “open space venues, such as County-owned
parks, recreational areas, historic sites, parking lots of public
buildings . . . and the County fairgrounds.” The only one of
these that seems odd as a “sensitive place” is parking lots. The
rest are gathering places where high numbers of people might
congregate.
It also speaks heavily of home defense only, defending that but reducing the importance of weapons outside the home.

They essentialy are saying the 2nd does not apply anywhere that people may congregate. What they have done is say that any city can declare all places recreational areas which means they can forbid weapons under the Nordyke decision.
It also says banning gun shows is legal, most of those are held at county fairgrounds, which is where most counties give permits to hold such events.
It also means many places in the wilderness, the woods or the desert remain prohibited places. Including state parks, state monuments, state recretional vehicle areas, and numerous other locations that make up much of CA's unsettled areas.

Nordyke has essentialy said that the only criteria necessary to prohibit firearms in a location is that people gather there or enjoy recreation there.
It additionaly says anything important to government function can declare the 2nd to not apply.
I wonder how far that can be twisted to show almost anything is important to a functioning government, and therefore can suspend the 2nd.
 
You have a good point Zoogster. There are so many judges in the 9th Circuit that it's probably not fair to try to stereotype the whole bunch. You could end up with an extremely liberal panel of judges or a completely conservative panel of judges depending on the luck of the draw.
 
Did you guys not read anything about the case?
Click to expand...
I read the actual case. Anyone interested in the case should read the actual 9th Circuit opinion and not solely depend on anything I or anybody else says about it.

The decision allowing the gun show to be shut down had nothing to do with the 2nd Amendment.
Click to expand...
Please back this up with something out of the 9th Circuit opinion.

The 2nd Amendment was not part of the original case, therefore it couldn't be used in this appeal. It was too late to add the argument to the case.
Click to expand...
You're implying here that the 2A argument was waived because it was brought too late. Show me something to back that up in the 9th Circuit opinion. Your statement also implies that even if the 9th Circuit had found that the ordinance violated the 2A, it would still have ruled against Nordkye. Again, I have no idea where you are getting this from.

Nordyke et al. didn't lose a 2nd Amendment case. They lost their case because they didn't cite the 2nd Amendment when they brought it to court. The judges took pains to discuss why the 2nd Amendment might have led to a different decision, but that the case was not originally about the 2nd Amendment -- and new arguments cannot be brought up in an appellate court.
Click to expand...
Well, now I know for sure you haven't bothered to actually read the case.
 
Any appeal, if the Nordykes decide to continue IS NOT and CANNOT be about 2A just the question and case asked specifically around the gun show issues.
Click to expand...
Where are you guys getting this stuff from?!? Seriously, there is some extreme misinformation being thrown around somewhere. You mentioned the calguns forum earlier, which I have never visited, so maybe that is the root of the problem.
 
Maybe you should visit, to get to that root that problem:
Click to expand...
Yep, that was the problem. I only had to read to the third post in that thread before the misinformation really started flying.

edit: I shouldn't denigrate that entire forum, because there's a lot of good, informed posts there mixed in with the bad posts.
 
Sooooo, it's OKAY to have a gunshow as long as nobody gathers at it?

This is why I fail when trying to comprehend the legal decisions, they speak in terms I don't understand. I defer to the judgement of those that know far more than I or at least seem to have the ability to speak intelligently about it. Once again I see statements that it is a good decision, it is bad decision and of course, it is good and bad.

One statement that I keep coming across is that is great for CC, a connection I completely fail to see. The 2A gets incorporated and the ordinance is legal because it doesn't prevent you from excercising your 2A right in your home but on the otherhand you can't have a gun(s) anywhere people gather.... how is this beneficial? So I can see it making it easier to obtain a CC permit but it would seem that more than likely it will be illegal to carry it most everywhere.

Maybe I should just quit reading this portion of the forum. :eek:
 
Read ALL the decision, particularly Justice Goulds expansion at the end.
Click to expand...

How can we trust him when we know he talks out of both sides of his mouth?

While the Second Amendment thus stands as a protection
against both external threat and internal tyranny, the recognition
of the individual’s right in the Second Amendment,
and its incorporation by the Due Process Clause against the
states, is not inconsistent with the reasonable regulation of
weaponry. All weapons are not “arms” within the meaning of
the Second Amendment, so, for example, no individual could
sensibly argue that the Second Amendment gives them a right
to have nuclear weapons or chemical weapons in their home
for self-defense.

If this is truly about a "protection against both external threat and internal tyranny" and not just protecting your household, your loved ones and your possessions from burglers, citizens would enjoy the unqualified liberty to acquire weapons of any sort, in any quantity they pleased, for the specific purpose of being able to out-gun the Mumbai attackers armed with machine guns, RPGs, and hand grenades or our own government and its agents when such action would be justified.
 
Yep, that was the problem. I only had to read to the third post in that thread before the misinformation really started flying.
Click to expand...

I don't see that post as misinformation, it seems to be a question, with some rather uneducated inferences thrown in. Everyone is not a legal eagle and that's a long read! Calguns is a valuable forum worth your perusal!

From what I can gather the Nordykes lost their case, but the 2nd A got incorporated in the 9th circuit.
 
Sooooo, it's OKAY to have a gunshow as long as nobody gathers at it?
Click to expand...

Basically they say in the ruling that guns are too dangerous for people to have them in public. Gun shows are OK in private, but not in public. And since it's the "people" who own the public land, it's very odd that they can't exercise their rights on their collective property. This is what really disturbs me.

I think it is a bad ruling and I really hope that the Nordykes and their supporters appeal the case and the USSC agrees to hear it. Incorporation will come, as these justices clearly see. But a ruling that acknowledges an individual right that you then ban is just not sound reasoning.
 
I disagree. I think from a Machiavellian standpoint this is a fantastic ruling.

1. It Incorporates the 2A, which is great for those living in the 9th. And it creates the circuit split that’s probably necessary to get to SCOTUS.
2. It eliminates the weakest of the 3 cases potentially going to SCOTUS in the short term from going to SCOTUS.

Chicago (Gura) and NY Nunchuks (Starr) are nice tight 2A Incorporation cases with good sets of facts and plaintiffs and brilliant attorneys. Starr is one of the best SCOTUS litigators in history and Gura is a rising star that knows SCOTUS 2A issues better than anyone on this planet. No offense to Donald E. Kilmer and Don B. Kates, but I’d rather have the A-team on this case.

Also, Nordyke does have some serious warts. The Nordykes want Alameda County to be required to have their commercial event on public property. It’s much harder to answer the incorporation question when it is encumbered by the question of the proper use of county property.

Therefore I salute O’Scannlain for answering the2A question in our favor, but giving the W to Alameda on the quasi-procedural issue of the Nordykes not arguing “they could meet the exceptions requirement that firearms be secured whenever an authorized participant is not actually using them .” Nordyke at *4508. This ensures that the County cannot appeal the question, and Nordyk will probably go softly into the night.

It's about the war, not the battle.
 
Basically they say in the ruling that guns are too dangerous for people to have them in public. Gun shows are OK in private, but not in public. And since it's the "people" who own the public land, it's very odd that they can't exercise their rights on their collective property. This is what really disturbs me.
Click to expand...

I did find the danger language a little troubling. Does anyone know where one could obtain all the police/ambulance calls to the Scottish games and Nordykes gun shows? I think it might make an interesting article to show how much more violent the Scottish Games are than a gun show, although it would probably be useless in a court of law.

However, what else can you really expect a court to say about private property? " Sorry you can't use your land as you see fit, you have to let this guy run his flea market on your land."??? That part of the opinion is about property rights as much as the 2A.

I think it is a bad ruling and I really hope that the Nordykes and their supporters appeal the case and the USSC agrees to hear it. Incorporation will come, as these justices clearly see. But a ruling that acknowledges an individual right that you then ban is just not sound reasoning.
Click to expand...

Fortunately, this will not be the case that gets to SCOTUS. There are too many ancillary issues.
 
There are so many differing opinions amongst the sister circuits I wish SCOTUS would excercise their discretionary appellate review jurisdiction and meld all the differing opinions. This is one of the problems electing lawyers to political positions. It almost seems as if they write vague pouous laws which can be taken fifty different ways and have to be argued constantly in various courts. I guess it ensures that they and their colleagues always have a job. :)
 
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