Nordyke vs. King: Bad decision?

[TT]

TT: 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.

ArmedBear: 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.

Well, let’s see, I read this, second paragraph of page 4471:

In the summer of 1999, the County Board of Supervisors,
a legislative body, passed Ordinance No. 0-2000-22 (“the
Ordinance”), codified at Alameda County General Ordinance
Code (“Alameda Code”) section 9.12.120. The Ordinance
makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code
§ 9.12.120(b). It does not mention gun shows.

I guess I don’t understand the last sentence though. I also note that the County argued Nordyke could still hold their gun shows at the Fairgrounds, they just couldn’t have any guns there. Seems pretty clear to me this ruling is about an ordinance banning possession of firearms on County property.

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

I also read this, at the top of page 4498:

Heller tells us that the Second Amendment’s guarantee
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 Constitution.

So the panel admits that self-defense is the central component of the Second Amendment, obviously they have to consider it in evaluating this case. Then I read the next paragraph:

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.

This paragraph turns your incorporation victory into dross- the ‘right’ that is incorporated ends magically the minute you exit the home.

The real substance of this decision is here (last paragraph 4499):

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 forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Heller, 128 S. Ct. at 2816-17 (emphasis added).
The County argues that its Ordinance merely forbids the carrying of firearms in sensitive places, which includes the Alameda County fairgrounds and other County property.

Translation- complete bans on firearms possession are ok in ‘sensitive’ places. So what are sensitive places? From page 4500:

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.

And there’s the conclusion- total bans on possession of firearms are acceptable at places where high numbers of people might congregate- that’s what was upheld by Nordyke. Apparently this is good news though, because now the County won’t have to rent parks to pornographers.

Nordyke subjects gun owners to a lengthy bout of unlubricated colonic spelunking, courtesy of the Ninth Circuit, and the response of some of the dupes on this forum is ‘mmm….tender!’

 

[TT]

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

But blowing sunshine up everyone’s skirt about how this was a big win isn’t a little far? You got incorporation, but that was very likely to happen anyway. In return for that incorporation, Nordyke circumscribed the Second about as tightly as possible without actually saying ‘Heller is a piece of crap’. Nordyke says local governments can completely prohibit firearms at "gathering places where high numbers of people might congregate". The Court did not require the County to narrow the ordinance in any way (such as making the ordinance only apply to discharge of a firearm, or only apply when high numbers of people are actually present, or exempting CCW permit holders). Hell, the panel even admitted that describing parking lots as sensitive was ’odd’, yet left the prohibition there standing. Therefore, per Nordyke, if the government can come up with any legitimate State interest (in this case, not wanting people to get shot) they can then use essentially the broadest possible legal sanction against gun owners (complete ban on possession at all times in all places that can even remotely be considered sensitive). So how exactly could this have come out worse for gun owners?

Expecting all the horrible things in Second Amendment jurisprudence to go away less than a year after Heller is unreasonable.

Never asserted anything of the sort, Jack .

 

[TT]

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.

Help me out- what infringement was reversed in Nordyke?

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.

Neither you nor anyone else can say who Obama will get to replace- any of the pro-RKBA judges could drop dead tomorrow.

 

[ArmedBear]

Apparently this is good news though, because now the County won’t have to rent parks to pornographers.

Did you read my post? That's not REMOTELY what I said. I was talking about the courts' habit of framing their decisions so as to have few if any unitended consequences -- which can have a chilling effect on decisions that have any intended consequences. To phrase it differently, I think that judicial restraint is often applied according to political preferences.

And I repeat: the CASE was about a gun show. It was not about self-defense.

If you read Heller, the decision was about defense in the home. Incorporating Heller wouldn't incorporate anything that wasn't part of the Heller decision.

What I said was, Nordyke was a lousy case, and incorporation of Heller did happen as a result. Heller was about defense in the home, and the justices, not being really able to justify failing to incorporate Heller, did so in the most limited way they figured they could. And the case was lousy because it provided no real avenue for challenging this. Perhaps you can think of one, but I can't.

It doesn't matter how much you or I wish that Heller decided more than it did, the fact is, it didn't make a decision about the right to armed self-defense outside the home. The thing is, when it came down, we were glad that it did, because it torpedoed the "collective right" nonsense that had been used for so many decades. Nobody thought it was the end-all of RKBA, and all other threats would cease. You didn't think that, did you?

It also doesn't matter whether you or I love this decision in all its details. The case was about a gun show, and this limited the ability of the plaintiff to argue about the details of the right to self-defense. The plaintiff could only argue that this County rule as it pertained to his business limited the right to self-defense, and caused him harm because of it.

Whatever the decision said, these are the facts, and all your anger won't change them.

And yes, I do understand that this is a horrible Catch-22 that allows the government to ban something like firearms, and then shut off the ability of most people to fight that in court because of the courts' ability to determine that nobody has standing to fight it. THAT is the case we REALLY need, because then you or I could just walk into the appropriate court and file suit demanding our rights -- but that case is not forthcoming.

Still, the right to firearms for self-defense in the home is threatened in California and the few other states with no RKBA. That's part of why incorporation matters. California gun owners couldn't hope to do something like force "shall issue" with this case. It was a TERRIBLE case for that purpose, if anyone even considered it to be possible to use it that way.

In Idaho, we don't need no stinkin' incorporation. We have the right to open carry written into our state constitution.

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

California doesn't have RKBA in its constitution.

So -- you may not like the limits in Heller, and I may not either. However, incorporating Heller as it stands can't change Heller.

 

[Librarian]

But blowing sunshine up everyone’s skirt about how this was a big win isn’t a little far? You got incorporation, but that was very likely to happen anyway. In return for that incorporation, Nordyke circumscribed the Second about as tightly as possible without actually saying ‘Heller is a piece of crap’. Nordyke says local governments can completely prohibit firearms at "gathering places where high numbers of people might congregate". The Court did not require the County to narrow the ordinance in any way (such as making the ordinance only apply to discharge of a firearm, or only apply when high numbers of people are actually present, or exempting CCW permit holders). Hell, the panel even admitted that describing parking lots as sensitive was ’odd’, yet left the prohibition there standing. Therefore, per Nordyke, if the government can come up with any legitimate State interest (in this case, not wanting people to get shot) they can then use essentially the broadest possible legal sanction against gun owners (complete ban on possession at all times in all places that can even remotely be considered sensitive). So how exactly could this have come out worse for gun owners?

By keeping Hickman and Fresno Rifle and not getting incorporation.

"Sunshine" isn't my position. "Wait and see" is my position.

 

[Sebastian the Ibis]

Nordyke itself is a horrible case, for the RTKBA, and the opinon reflects that. The Nordyke’s brought this case to keep their shows going and therefore had to argue points which were not well chosen.

Can anyone see how the case could turn out any differently? Would a court ever rule that the “swap meet” could be held on government property when the government does not want it? Really? This would radically change property rights in this country and open can after can of worms which the court really does not want to deal with. So at this point the question is how can they lose the best.

Apparently the Nordykes did not submit a plan to have “secured” firearms which would fit within the code. Which I assume could be done with zip ties and/or cable locks, as is done here in Miami. By not doing this and taking other steps to pad the record with facts, they allowed they did not give the court much room to craft a narrower opinion. Also, they allowed the County to paint a picture of guys walking around with loaded Ak’s. Even if the court wanted to allow the shows with secured weapons, there was absolutely no way they could rule that way since it’s not the courts job to draft the plan.

Here I think the Court did a good job of sliding in the Sensitive Place = Large Number of People limitation. It’s at least a limitation, the alternative is – “the state can ban whatever it wants on state property.”

It’s not an ideal opinion, however it’s a poor set of facts so I think it’s not as a bad a result considering. There is some great language as to purpose, we got incorporation, and there will be no appeal, unless of course it is reheard en banc.

 

[glummer]

So let's see ..
The government has a legitimate, compelling interest in preventing violence, so ...
There is then an interest in preventing BLACK violence, so ...
The county can refuse to allow an NAACP convention in "sensitive areas"??

The flaw (and, perhaps, opportunity) is the simple-minded association of guns and violence - the county is essentially saying we have the legitimate power to suppress violence, therefore also gun violence, therefore also guns that have nothing to do with violence. This is simply not logical thought - it is what Freud called "primary process" thinking - simple-minded word association. The government has NO interest in guns which are not involved in violence, and if that point can be argued in a decent case, it will take some mighty contortions of sophistry to make an argument against it.

 

[rocinante]

One can learn a lot here from the IANAL folks who nevertheless have their eyes open and nose always sniffing for a rat.

Some of you see the weakness of Heller with its allowance of reasonable regulation and 'sensitive' locations. After reviewing the passage on how they define sensitive it is pretty close to the perfect vague legalese word possible. I can't find the passage but how many people did Christ say need to gather and he was there? two I think. I agree this ruling does absolutely nothing for the right to carry. In Georgia the Jim Crow origin version of 'sensitive' is 'public gathering' which can mean just about any place. It is easy to get a CCW but the language of 'public gathering' was so vague it meant no one could carry anywhere just about. Last year a bill passed that clarified the situation and it is legal to carry on mass transit, parks, even bars and restaurants as long as you do not consume. Of course it being Atlanta the airport did some grand standing claiming they are exempt. Don't know what the results of that arrogance ended.

I read through the ruling and it is a good history lesson and has the right tone. Given some of the skepticism here I will have to reread it. All in all it looked like a serious attempt to do serious constitutional LAW without some of the more galling twisted logic so often seen in federal court rulings.

A couple of things struck me. The following quotes from the county moonbat illustrates little respect of law she has and the belief the ends justifies the means is so firmly rooted in liberals. The "spineless people hiding behind the constitution" phrase really chaps.

King sent a memorandum to the County Counsel asking him
to research “the most appropriate way” she might “prohibit
the gun shows” on County property. King declared she had
“been trying to get rid of gun shows on Country property” for
“about three years,” but she had “gotten the run around from
spineless people hiding behind the constitution, and been
attacked by aggressive gun toting mobs on right wing talk
radio.” At her press conference, King also said that the
County should not “provide a place for people to display guns
for worship as deities for the collectors who treat them as
icons of patriotism.” Without expressing any opinion about
King’s remarks, the Board of Supervisors adopted the Ordinance.

The following is the best part of all and does away with that "living constitution" abomination we have been subject to for decades. Courts that actually base their decisions on what the constitution intends is our only hope as a nation.

The County and its amici point out that, however universal its earlier
support, the right to keep and bear arms has now become controversial.
See generally Sanford Levinson, The Embarrassing Second Amendment,
99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution
affords a right by the values of our own times. If contemporary
desuetude sufficed to read rights out of the Constitution, then there would
be little benefit to a written statement of them. Some may disagree with
the decision of the Founders to enshrine a given right in the Constitution.
If so, then the people can amend the document. But such amendments are
not for the courts to ordain.

 

[rocinante]

Can anyone see how the case could turn out any differently? Would a court ever rule that the “swap meet” could be held on government property when the government does not want it? Really? This would radically change property rights in this country and open can after can of worms which the court really does not want to deal with. So at this point the question is how can they lose the best.

Kelso.

The courts have no problem radically altering fundamental basis like private property rights. In Kelso they ruled 'eminent domain' can be anything government wants it to be even to give property to another private enterprise because they will generate more tax money. Of course in this case government might have to change the way they manage their property instead. Can't have that can we?

To be fair the SC argued in Kelso that property management is a state issue and many states promptly passed resolutions clarifying private property rights. Many didn't. Lets guess which ones.

 

[Sebastian the Ibis]

I assume you mean Kelo. Kelo v. City of New London, 545 U.S. 469 (2005)

Kelo didn’t change anything. It is the exact same as Berman v. Parker 348 U.S. 26 (1954). Private property can be taken, even if the property itself is not blighted, and converted to private ownership, as long as there is some “Public use,” i.e. economic redevelopment.

Kelo was an incredibly strong case, with a vociferous defense (incidentally, Clark Neilly worked on the briefs for both Kelo and Heller.) However it was ultimately a loser. Kelo proves the point, If the Federal Courts will not stop cities from taking private property for “public use” why on earth would anyone think that public property can be converted to private use by some 2A mechanism?

 

[Oro]

If the Federal Courts will not stop cities from taking private property for “public use” why on earth would anyone think that public property can be converted to private use by some 2A mechanism?

There is no "taking" involved here - this is a space that is a public space designed and designated for the short-term, remunerated use of elements of the public. It is never reverting to long-term or permanent private status or use. The ban that Nordyke instituted was peremptory suspension of a protected individual right - which is a weighty and dangerous move to make without a compelling prima facie reason. And they breezily pass through that test in a few sentences without actually weighing it vs. the pre-emption they are endorsing. Mighty reckless, in my opinion.

The real nut of the decision in Nordyke v. King isn't about property use rights. It's about the interpretation of Scalia's majority opinion in Heller with reference to the "sensitive areas" language when considering it's decision. It said categorically the ban was consistent with the USSC's ruling since:

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.

And in the ruling, this even included parking lots. Recall that Scalia had given specific examples of sensitive places including schools and buildings (presumably administrative) - where function of government was indeed "sensitive" and it's disruption would cause harm to it's smooth working. The word "sensitive" was applied by Scalia - and has pretty much been thrown out by the 9th circuit and broadly stretched to incorporate, and I kid you not, parking lots. This is a gross gutting of what is stated in the Heller opinion. One really is staggered at the assertions parking lots and sidewalks are as "sensitive" to the smooth functioning of government as schools, courts, and legislative and executive offices.

Lest you think this is out of context or peripheral to the ruling, look also at what Gould had to say in his concurrence:

...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.

Personally, while within the 9th Circuits jurisdiction, I live in WA which has a state pre-emption clause and very clear areas where weapons are banned. But not all states have this, and thus their ruling opens up citizens for the opportunity to have their second amendment rights attacked on principle instead of on merit by capricious local authorities - exactly the situation of Nordyke. King stated publicly she was particularly targeting gun culture and it's proponents, not acting strictly on public safety.

This is a bad and frightening decision that shows the worst of judicial activism. The judges empaneled for Nordyke clearly didn't like the implications of Heller and used as obtuse a method to gut it as they could - local pre-emption of the presence of firearms in public regardless of the "sensitivity" requirement embedded in the majority opinion.

This was a bad decision with terrible implications for anyone living in a state without pre-emption laws.

 

[carebear]

That part of the decision resting on the definition of "sensitive" is open to challenge by another case.

No one is saying this is the ne plus ultra of decisions, but it is a win for incorporation and thus huge nationwide. I'm sorry the 9th didn't go beyond Heller and give California Alaska carry and exemption from the NFA as well.

As is, individual claimants can now challenge existing and future California public bans, even ones on government property, based on the definition of sensitivity not using a commercial gun show and get it appealed up.

But that isn't the point...

When the controversy this case has created gets to the Supremes they can further refine "sensitive" directly or indirectly, Scalia is not fond of being deliberately misconstrued. In fact, all the Supremes have to do is say incorporated and "strict scrutiny" applies and the concerns about the 9th's generous definition of "sensitive" go away, as this decision didn't address how the ban supports a compelling public interest and is also narrowly tailored.

 

[bombmaster]

Its a win for RTBA but a loss for the Nordykes. A win for right to litigate.

 

[crebralfix]

Actually, the Ninth Circuit court did NOT incorporate the 2A into the 14A.

According to my legal sources, it was in the dicta and is not a holding.

 

[billwiese]

Crebralfix,

You and your 'legal sources' are wrong.

Nordyke indeed got us incorporation of RKBA - that is, the 2nd Am. applies at the state level as well. It was *not* dicta.

The case flow hinged on making a decision on whether 2nd/RKBA rights were violated, and the 9th first had to find if RKBA existed at state level (i.e, was incorporated under 14th Amendment). They indeed made that finding of incorporation, with vast textual support, and moved on to the other issues. It was not a side or peripheral issue, but a decision necessary to the structure of the case.

Alameda cannot really appeal the incorporation - they 'won'. It would take an almost-impossible stunt to get rehearing. The Nordyke family *can* appeal their issues, and will not risk the now-held incorporation status (other than perhaps some footnote noise drama).

We won a huge battle with a (relatively) minor loss that likely can be recovered in another fashion. Hell, who knows? - Alameda Cnty is so broke they may actually welcome gunshows again for the revenue - and just request a some nonsensicals like a second zip-tie on the trigger and wood dowel down the barrel as their "mandated additional safety" because "they won". (The Nordykes can always rent the parking lot of a Marriott, etc. too.)


Bill Wiese
The Calguns Foundation
San Jose, CA

 

[Phatty]

crebalfix,

The incorporation of the 2nd Amendment was not "in the dicta." It's time to get some new "legal sources."

 

[ilbob]

Actually, the Ninth Circuit court did NOT incorporate the 2A into the 14A.

According to my legal sources, it was in the dicta and is not a holding.

Instead of believeing "legal sources" why not just take a look at the decision. It is not hard to read their findings.

Just curious what "legal sources" you are relying on that gave you such bad information. Maybe you should find better sources.

 

[Megistopoda]

After reading a bunch of the decision:

http://www.ca9.uscourts.gov/datastor...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.

Out of the 9th circuit, this is an excellent decision. They hit the incorporation part spot-on, and this gives serious momentum to incorporation by the other circuits as well as the supreme court.

The stuff about banning guns on public property and the expansive treatment of "sensitive places", as well as the narrow reading of Heller to only cover self defense in one's home ... ? Those parts are so damned vacuous that they are sure to be overruled by Supreme Court. In a nutshell, if a right is fundamental, the standard is strict scrutiny. Bans on self defense outside the home, and on public property, simply cannot stand.

 

[ArmedBear]

That's the next fight -- but we already KNEW that.

The definition of "sensitive places", as well as the extent of the right, are where the battleground will be.

Considering that, a year ago, there essentially was no individual right to keep and bear arms enforced by the courts, and that a month ago, that right was not necessarily enforceable against state or local laws, the fact that the battleground is now over time and place, I'd say we've come pretty far.

We went from a nearly-dead Amendment to one that is approaching the application of the vaunted First Amendment, in a year.

That's not a good thing?

 

[Phatty]

We went from a nearly-dead Amendment to one that is approaching the application of the vaunted First Amendment, in a year.

That's not a good thing?

I think people are just being cautious in their optimism. As of today, there hasn't been a single ruling which has gone beyond the right to own a handgun in one's home for self-defense (which was already legal in 99% of the country). So, other than that 1%, the rest of us haven't received any real world benefit from Heller yet.

The legal landscape is undoubtedly in a better position today than two years ago, but we've all become so accustomed to liberal judges twisting the law to fit their own customs and standards that we remain skeptical of any real change taking place. If future judges decide to pigeon-hole Heller, and rule that the 2A only applies to self-defense with a pistol in one's home, then the Amendment is still "nearly-dead."

 

[ilbob]

I think people are just being cautious in their optimism. As of today, there hasn't been a single ruling which has gone beyond the right to own a handgun in one's home for self-defense (which was already legal in 99% of the country). So, other than that 1%, the rest of us haven't received any real world benefit from Heller yet.

Very few of the people who potentially could benefit from Heller in DC have seen any benefit yet as the city fights complying with the decision by enacting dubious legislation.

I do not expect to see any significant real world benefit for at least another year, and nothing all that substantial for perhaps 5 years.

However slow though, the process has started and it is becoming a juggernaut.

 

[ArmedBear]

I'm not sure when the majority of Americans would see the benefit from Heller at all.

Most state constitutions already have RKBA in them, with more specificity than the 2nd Amendment.

What people will experience, but not perceive, in many states, will be the lack of additional restrictions, not the removal of many that exist already. I.e., they won't really feel the impact, but it will be there.

Obviously, our judicial tyrants could undermine that, but I'm assuming the decision stays as it is.

 

[Librarian]

The legal landscape is undoubtedly in a better position today than two years ago, but we've all become so accustomed to liberal judges twisting the law to fit their own customs and standards that we remain skeptical of any real change taking place. If future judges decide to pigeon-hole Heller, and rule that the 2A only applies to self-defense with a pistol in one's home, then the Amendment is still "nearly-dead."

All true.

But let us be moderate in our caution, skepticism and pessimism as well.

Court fights just don't run on Internet time; it's more like horse and buggy time. Parker, which became Heller, started in 2002 and did not finish at SCOTUS until June 26, 2008. Nordyke, which did not start out to be a 2A case, started in 1999 or 2000, and got to the current point nearly 10 years later.

Before we make confident assertions on the effect of Heller or Nordyke, we should see some opinions where the cases were properly raised and considered. (For example, I wouldn't include a case where Joe Librarian, 3-time loser, raises Nordyke to defend against a gun charge for using a gun to knock over the local 7-11. I'm pretty sure we will see such things.)

Five years is not at all too long a time to wait for results (but it's far too long to wait to begin good cases - thus "Heller II" and McDonald et al in the 7th Circuit.).

 

[everallm]

For Heller and now Nordyke, folks should look at then in the same manner as the Civil Rights movement.

In many ways, we are now at Brown v Board of Education stage with 2A, where we have the beginnings of a sound legal framework.

Just as with the civil rights movement we will see highs and lows, 2 steps forward, one step back, legal challenges, stupidity, venality, courage, heroism and cowardice.

Take what we HAVE WON and build, don't whine you didn't get everything today.





Oh and can I suggest that folks should actually READ all the text of legal findings before spouting. Doesn't mean your interpretation is then right (I've been wrong.......) but at least then it has a chance.........

 

[RDak]

That's the next fight -- but we already KNEW that.

The definition of "sensitive places", as well as the extent of the right, are where the battleground will be.

Considering that, a year ago, there essentially was no individual right to keep and bear arms enforced by the courts, and that a month ago, that right was not necessarily enforceable against state or local laws, the fact that the battleground is now over time and place, I'd say we've come pretty far.

We went from a nearly-dead Amendment to one that is approaching the application of the vaunted First Amendment, in a year.

That's not a good thing?

+1 guzillion.