Nordyke vs. King: Bad decision?

[ArmedBear]

Now that I've read the decision per Phatty's appropriate chiding...

The decision did not say that you can't have a gun show on public land or in county buildings.

It just said that the County government COULD decide whether or not to allow large numbers of unsecured firearms in county facilities, and did not have the obligation to lease its facilities to any specific commercial enterprise, if it couldn't comply with those rules. The "danger" language was to define "reasonable."

This means that we can't use the courts to force the County to rent the facilities to a particular business based on Constitutional rights.

In some ways, this was as good a decision as could be expected, given a pretty lousy test case. The Second Amendment notwithstanding, there's no Constitutional guarantee of the right to hold a Swap Meet on County land, last I checked.

Whatever I think of the decision and its details, the court would have opened up the sort of can of worms that courts try desperately not to open up, if it had said that the County can't decide what businesses can rent its facilities. Bear in mind that a gun show is a business, and loaded guns are not allowed at any gun show even here in Idaho where lots of us carry loaded guns, and selling guns at the fairgrounds is not directly related to the right of self-defense. The only argument that could be made with that would be if this gun show were the only place to buy a firearm for a 200 mile radius or something.

If the court did determine that the County government couldn't decide which businesses can rent County facilities, there could be all sorts of consequences. One might be for a company that produces XXX films to sue because the city wouldn't give them a permit to hold a film festival in a county park.

Whatever I think of such an event, the courts often take GREAT pains to avoid decisions that could lead to these unintended results.

The way to change County government is to get the bums voted out of office.

 

[Phatty]

Gura is a rising star that knows SCOTUS 2A issues better than anyone on this planet

Gura is good lawyer, but I'm not particularly fond of this tidbit from his oral argument in the Heller case:

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to?
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns​

JUSTICE GINSBURG: But why wouldn't a machine gun qualify? General Clement told us that that's standard issue in the military.
MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use.​

I'd rather have a stronger advocate of gun-rights arguing the case who won't concede big issues just to get the small win in the instant case.

 

[Librarian]

I'd rather have a stronger advocate of gun-rights arguing the case who won't concede big issues just to get the small win in the instant case.

Small?

Heller is our Brown vs Board of Education. Remember that was 1954, and we're still hacking at civil rights. So, too, will it be for Heller, I think.

 

[General Geoff]

I'd rather have a stronger advocate of gun-rights arguing the case who won't concede big issues just to get the small win in the instant case.

If he stood up for machine guns specifically, there's a real possibility that the decision would have been 5-4 or even 6-3 against us.

Baby steps, my friend.

 

[Phatty]

Small?

You're right, that was a poor choice of words. Heller wasn't a small win. When I made that statement, I wasn't referring so much to Heller as I was to future cases that Gura may argue.

But I stand by my opinion that Gura's interpretation of the 2nd Amendment is much more restrictive than most members here probably realize.

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.

I'm regretting the fact that the pro-gun groups chose such safe cases to push the incorporation issue. I think incorporation of the 2A against the states is a fait accompli, so the need for such safe facts is unnecessary (unlike the Heller case which I think was brilliantly chosen). What will happen is that the Supreme Court will once again rule that a ban on handgun possession in one's home violates the 2A. That will leave all the lower courts in the exact same position trying to determine the scope of the 2A. From what I've seen, a lot of courts are reading Heller narrowly, interpreting it as only protecting a person's right to defend themselves in their home with a handgun. After the Supreme Court decides the inevitable incorporation case, it could be years before it hears another gun case, and a lot of bad case law could develop in that time (not to mention the political balance of the SC could be altered in that time frame). So, while we've got a friendly SC, why not have chosen a case involving a right to carry a gun outside of the home for self-defense?

 

[tube_ee]

If Alan Gura

had "stood up for machineguns" we would likely have a ruling in Heller that said that the 2nd Amendment protected only the right of Sates to hvae militias.

In other words, the collective right theory would now be the law of the land.

That means that our fight would be over.

We lose. Full stop.

Every single gun law, up to and including an outright ban on the private possession of anything more dangerous than a crayon, would be Constitutional.

In 10 years, there wouldn't be a single legally-owned firearm in the country.

That's what would have happened if Gura hadn't thrown the MG issue over the side.

I'm quite glad that he argued the case exactly the way he did.

--Shannon

 

[Phatty]

If he stood up for machine guns specifically, there's a real possibility that the decision would have been 5-4 or even 6-3 against us.

Baby steps, my friend.

He completely volunteered the part about the machine guns. During the arguments, Chief Justice Roberts hit the nail on the head (responding to a statement by the solicitor general) and Gura should have followed his lead:

CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one -- narrower one directed solely to machine guns?​

In other words, if asked directly about machine guns (which he wasn't, he volunteered) Gura could have simply said it's not at issue in this case. The District banned handguns, and whether or not the 2A protects machine guns, the only thing that needs to be decided by the court today is whether the 2A protects handguns.

If Alan Gura had "stood up for machineguns" we would likely have a ruling in Heller that said that the 2nd Amendment protected only the right of Sates to hvae militias.

Nobody said he should have "stood up for machinguns." As I said, he volunteered the information needlessly.

 

[Flyboy]

Raich changed everything.

Wickard changed everything. Raich was just Wickard taken to its illogical extreme.

 

[Sebastian the Ibis]

Heller is our Brown vs Board of Education. Remember that was 1954, and we're still hacking at civil rights. So, too, will it be for Heller, I think.

Exactly.

Gura is man we need now. Someone else can challenge 922(o) once the framework is laid i.e. Incorporation, Level of Scrutiny, Factors irrelevant to scrutiny ( i.e. X can be banned, because Y was used in rampage somewhere else), and the purposes of the 2A (i.e. personal self-defense, and public bulwark against tyranny - Good job with that O'Scannlon).

While I'd love to freely buy MG's, I'll accept Gura's opinion that it was a step too far. He pushed the case farther than the NRA would allow (remember they intervened to try and derail the case) and was dead on. If he thought that was the appropriate place to draw the line then so be it. I'm sure he mooted and practiced with former clerks who were intimately familiar with the personal opinions of every justice. If that's where he had to pull up to assuage Justice Kennedy, that's what he had to do.

There is no reason it can't be challenged later.

 

[Phatty]

Gura is man we need now.

If Gura's reasoning is applied to the nunchucks case, the Supreme Court will decide that the 2A does not apply to nunchucks because it is not a weapon that is commonly used by people for self-defense nor the type of weapon which one would associate with a militia.

 

[Gunnerpalace]

Ginsberg Knew what she was asking Gura, like all the other anti's she wanted an angle, Gura didn't fall for it,

But it's not an arm of the type that people might be expected to possess commonly in ordinary use

This....is true, the ban limited it. He could have created an angle himself.

 

[Zoogster]

Wickard changed everything. Raich was just Wickard taken to its illogical extreme.

I disagree, Wickard was bad, but it was about a government subsidized farmer (taking federal funding) who was growing a government subsidized crop (wheat) and the government said they had the right to limit not only that portion, but even the wheat he said he grew for personal use.

Raich on the other hand was not taking government funding. Just like the government is passing laws excercising greater control of those who take bailout money, they chose to excercise more control on Wickard. They may have gone overboard controlling his private amounts as well, which is what he was arguing, but it was nowhere near the same.

The Wickard decision also was entirely about a government subsidized product that actualy was being grown for commerce. They were paying farmers to essentialy grow less to keep the price artificialy higher.
Obviously individuals who chose to grow more could make more profit, but if everyone grew more the price of wheat would fall dramaticly.
So they sought to enforce a maximum crop size.

The Wickard decision relied soley on the interstate commerce clause of the constition, and while I agree that it went beyond its authority in limiting his personal amount, he was essentialy a business taking government funding and the government was trying to tell him what to do as a result.

Raich on the other hand was not about anything subsidized. It was not about anything grown or made to enter commerce. It was not about a crop grown to be sold across state lines.
In just about every way that they could say Wickard was under federal authority Raich was not.
It was completely outside the scope of Wickard except by those who choose to use Wickard to create some logic that should conclude with Raich. Yes I can follow that logic but it is flawed.
That is why under Raich they had to create completely different logic, drasticly expanding government power beyond anything previously, and saying the government can essentialy control anything it feels is necessary and proper, even if not directly part of commerce or interstate commerce.
Yes it was written in a way to give the appearance it was a conclusion using something that already existed in the constition, but it was not. It was an expansion of power and federal authority by the SCOTUS never previously seen in US history.
Under the Raich logic water that fell from the sky into a container in your yard could be federaly taxed if someone made such a law. It wouldn't have to be sold, transfered, taken across any borders, or involved in commerce whatsoever.
That is what Raich did. It said something not in any way a part of commerce can still be controlled under the commerce clause, and essentialy any law passed federaly has jurisdiction never really granted under the constition. Under Raich there is nothing outside of federal jurisdiction.

 

[Basura Blanca]

Getting back on topic:

No matter how you slice it, Nordyke is a success. It's the pan in which bigger fish will be fried. The likelihood of unintentional fallout (i.e. that it was a "bad decision") is nil.

Let's gracefully accept a win, shall we?

 

[TT]

ArmedBear: It just said that the County government COULD decide whether or not to allow large numbers of unsecured firearms in county facilities, and did not have the obligation to lease its facilities to any specific commercial enterprise, if it couldn't comply with those rules. The "danger" language was to define "reasonable."

This means that we can't use the courts to force the County to rent the facilities to a particular business based on Constitutional rights.

Whatever I think of the decision and its details, the court would have opened up the sort of can of worms that courts try desperately not to open up, if it had said that the County can't decide what businesses can rent its facilities. Bear in mind that a gun show is a business, and loaded guns are not allowed at any gun show even here in Idaho where lots of us carry loaded guns, and selling guns at the fairgrounds is not directly related to the right of self-defense. The only argument that could be made with that would be if this gun show were the only place to buy a firearm for a 200 mile radius or something.

If the court did determine that the County government couldn't decide which businesses can rent County facilities, there could be all sorts of consequences. One might be for a company that produces XXX films to sue because the city wouldn't give them a permit to hold a film festival in a county park.

Not sure what the purpose of misrepresenting Nordyke here is- the law the Court reviewed was a ban on firearms possession on county property, it had nothing to do with the local governments deciding who can rent their facilities.

The Court gave a giant middle finger to gun owners by saying local governments can ban firearms possession in any area where ‘high numbers of people might be’. Because that finger had fingernail polish in the form of a phony homage to the 2nd being an individual right a lot of gullible gunners think they got a friendly wave.

 

[t165]

Far more important than any lawyer is who will be appointed to the SCOTUS in the upcoming years. These judges already have opinions which no lawyer will ever change. Unfortunatley Obama will make the next appointment(s). Heller is nothing but ink on paper which can be crumpled up and thrown in the trash can in lieu of the next related decision. The SCOTUS is the final "legal" authority defining the United States Constitution. And the SCOTUS is nothing more than a political animal. Who appoints...who confirms/denies?

All past case law has and will never tie the hands of the sitting justices. Politics will decide the 2nd Amendment...as it has done since our country was created. The founding fathers themselves kept large blocks of the population from owning/possessing firearms.

 

[RDak]

I agree Armedbear, the voters can vote the County commissioner, etc., out of office if they don't like their policies.

The case just said the County cannot be forced to hold gunshows IMHO.

And we won incorporation. Yippee!!!!!!!!!

 

[Librarian]

The Court gave a giant middle finger to gun owners by saying local governments can ban firearms possession in any area where ‘high numbers of people might be’. Because that finger had fingernail polish in the form of a phony homage to the 2nd being an individual right a lot of gullible gunners think they got a friendly wave.

Using Heller to throw out Presser and Cruikshank is not merely a 'friendly wave'. Throwing out Hickman and Fresno Rifle is not merely a 'friendly wave'.

Stepwise refinement is where this is going.

 

[TT]

Throwing out Hickman and Fresno Rifle is not merely a 'friendly wave'.

Yes, I’m absolutely sure that Hickman will be replaced with a judicial mandate for fair and free issue of permits in Kali…there is absolutely no way a Kali court would ever instead look to Nordyke, declare all or nearly all public places as being ‘sensitive’ and then find that a requirement for ‘good cause’ to carry in public, ‘sensitive’ places is reasonable. Very obviously the Nordyke Justices are hyper-pro-RKBA, that’s why they found that because sometimes there are a lot of people at the Alameda County Fairgrounds, it is perfectly acceptable to ban firearms on all County property at all times.

 

[Librarian]

That’s why they found that because sometimes there are a lot of people at the Alameda County Fairgrounds, it is perfectly acceptable to ban firearms on all County property at all times.

Happen to have a quote from Nordyke that means what you say, above?

Skepticism is one thing; imputing your worst fears into your vision of the future is taking that a little far.

It's possible you're right, that could be the way things go.

But making that prediction as if it were certainty, four days after the opinion was released, is asserting without evidence.

As I said earlier, we're still screwing around with civil rights stuff 54 years after Brown. Expecting all the horrible things in Second Amendment jurisprudence to go away less than a year after Heller is unreasonable.

Expecting all the California politicians to give up without spending taxpayer money to defend lost causes is also unreasonable - as I'm sure you know, gun control has never been about guns, it's about control. We do have some evidence on what to expect there, from the response in DC.

 

[ArmedBear]

Not sure what the purpose of misrepresenting Nordyke here is- the law the Court reviewed was a ban on firearms possession on county property, it had nothing to do with the local governments deciding who can rent their facilities.

Did you read the decision?

That was the law, however the case was not about self-defense. It was about a gun show in a leased county facility.

The court had to determine two things:

1. Is the 2nd Amendment incorporated?
2. Can the County make any law about firearms on County land or in County facilities?
3. Does this law violate the 2nd Amendment rights of the plaintiffs, by preventing them from having a gun show in the county facility?

1. Yes. (That's our victory.)
2. Yes. It would be nice if the answer is "No", but this is hardly a surprise.
3. No. Again, it would be nice if the answer was "Yes" but this is no surprise.

Had the case been about self-defense, instead of a swap meet, #3 would have been a different question, with perhaps a different answer.

That's why this was a weak case.

Of course, that may have been a good thing. The justices could find that the 2nd is incorporated, without having to actually change the outcome. It's hard to second-guess, but it's possible that they were less resistant to the idea since it wouldn't force them to reach a decision they didn't want to reach.

 

[Librarian]

Had the case been about self-defense, instead of a swap meet, #3 would have been a different question, with perhaps a different answer.

That's why this was a weak case.

Might have been different, but we didn't have one of those; Nordyke has been running for about 10 years, and was a convenient vehicle to shoot for incorporation because it was in a good spot in the appeals process when Heller came out.

It seems likely - but we'll have to wait and see - that a self-defense case will have a better outcome than it might before Nordyke. Getting a self-defense case before the 9th Circuit before Nordyke would have been a problem, since like Hickman, a 'regular person' would have been ruled without standing to raise that 2nd Amendment defense.

With this 'weak' case, we should get to keep some cases in court that would certainly have been tossed, and one can hope that those cases will begin to define important bits left out of Heller - 'sensitive areas' and 'dangerous and unusual weapons', especially.

 

[carebear]

So what you're saying is that our rights were infringed in small steps and that maybe, just maybe, reversing those infringements might take <gasp> small steps.

How truly shocking a thought.


As for Pres. Obama being able to appoint the next Justice, take a look at who's up to leave the Court, it ain't one on the 5 side of the 5-4 decision in Heller.

Worst case, a non-gun friendly Justice is replaced with an equally non-gun friendly Justice. Best case, we get a non-litmus test Justice who actually looks at the law and rules without agenda.

Both parties have appointed Justices they thought were in the bag and got surprised.

 

[yokel]

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the courts over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Nordyke was a symbolic victory, and the lawyers who brought the case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

 

[carebear]

Full Incorporation and "strict scrutiny" are the only remaining realistic steps on the Federal judicial front. Either the 7th or 2nd cases could bring those about next session.

The rest will be rolling back existing legislation on a Federal level and state by state to meet the higher standard.

With a new AWB essentially a dead letter, more states loosening existing carry restrictions and Wisconsin and Illinois heading toward finally allowing concealed carry I'd say the momentum is definitely with our side on the gun issue.

And I wouldn't call the federalism revolution dead, if anything the necessity for it is being reinforced more with every action by the current administration.

 

[Phatty]

Both parties have appointed Justices they thought were in the bag and got surprised.

Which democratic president in the last 50 years has nominated a justice that ended up being conservative on the bench?