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

[vtoddball]

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.)

 

[Hypnogator]

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.

 

[ArmedBear]

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.

 

[Jim March]

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

 

[RDak]

Good post Jim. I agree completely!

 

[packnrat]

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.

.

 

[Gray Peterson]

This is what 42USC1983 allows.

 

[Jim March]

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

 

[Bflamante]

Why the 9th?

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.

 

[dalepres]

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.

 

[orionengnr]

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.

 

[Jim March]

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.

 

[gego]

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.

 

[Jim March]

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

 

[deaconkharma]

I thought it was a point to lose in the 9th, to go higher on purpose

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.

 

[ZeSpectre]

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

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

 

[thesecond]

Just Imho

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.

 

[Henry Bowman]

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).

 

[Ergosphere]

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.

 

[Gray Peterson]

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.