2A has been incorporated

[Phatty]

True and the right people are formulating an attack strategy as we speak. They have the money to see test cases through to completion, awesome legal teams and clients hand that are hand picked for success.

Very true. One of the worst things for the advancement of 2A law is when crackhead criminal defendants decide to challenge a law on 2nd Amendment grounds by themselves and, of course, fail miserably.

By the way, I really liked Judge Gould's concurrence. His reasoning will go a long way toward getting the AWB thrown out in California. One of the essential purposes he points to for private possession of guns is to fight off a terrorist attack. He gives the example of an organized fighting force from another country landing at our shore and the civilian population fighting them off until the army/police arrive. An AR-15 would sure come in handy in that scenario.

 

[carebear]

California has some bad gun laws, but on the whole is okay(ish) and has some good cases in process already, this ruling will just make it better.

The rest of the 9th is way ahead on these issues except for one little state wayyy out in the Pacific.

Forgotten and ignored little Hawa'ii is in the 9th, this applies there and their laws are worse, AFAIK, than California's ever were.

What might we see 2nd Amendment-wise in Hawa'ii?

 

[gbran]

Exactly which states are covered by the 9th circuit? Are any split?

 

[TexasRifleman]

Coverage map:

 

[gbran]

Thanks. That's a broad area.

 

[Phatty]

Exactly which states are covered by the 9th circuit? Are any split?

Washington
Montana
Idaho
Oregon
California
Nevada
Arizona
Alaska
Hawaii
(and also Guam and the Northern Mariana Islands)

If by "split" you mean partially in one circuit and partially in another circuit, no U.S. state is split between circuits.

 

[NickEllis]

Or, the Nordykes could just take one for the team and not appeal...

Stinks for them, though. Hope they find another place to have their gunshow.

 

[JDoe]

By the way, I really liked Judge Gould's concurrence. His reasoning will go a long way toward getting the AWB thrown out in California. One of the essential purposes he points to for private possession of guns is to fight off a terrorist attack. He gives the example of an organized fighting force from another country landing at our shore and the civilian population fighting them off until the army/police arrive. An AR-15 would sure come in handy in that scenario.

Is this what you are referring to? (Page 41 of http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf)

...We recently saw in the case of the terrorist
attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.1...

1English history as summarized by Winston Churchill shows constant
recourse to militia to withstand invading forces that arrived not rarely
from England’s neighboring lands. See generally 2 Winston S. Churchill,
History of the English Speaking Peoples: The New World (Dodd, Mead,
& Co. 1966); 3 Winston S. Churchill, History of the English Speaking
Peoples: The Age of Revolution (Dodd, Mead, & Co. 1967). Also, during
World War II, when England feared for its survival and anticipated the
possibility of a Nazi invasion, its homeland security policy took into
account that its Home Guard might slow or retard an offensive, which
could come at any point on the coastline, until trained military forces
could be brought to bear to repel an invader—because “England was to be
defended by its people, not destroyed.” See generally 1 Winston Churchill,
Their Finest Hour 161-76, esp. 174-76 (Houghton Mifflin Co. 1949).

 

[MT GUNNY]

This is a little off subject , I didn't realize but a Circuit court outside the state of Montana that covers Montana? thats a Big problem for many states. How can they have the values of a Montanan in CA. ?
I would be happier to use a Idaho Or Wyoming court than a Washington or California Court!

 

[hvengel]

This is a little off subject , I didn't realize but a Circuit court outside the state of Montana that covers Montana? thats a Big problem for many states. How can they have the values of a Montanan in CA. ?

This is a federal court not a state court. And the "values" being ruled on are the US Constitution and these should be the same everywhere.

This case has been the subject of numerous threads on this forum in the past and many here (mostly not from California) were convinced that the ruling would not incorporate "because the 9th circuit was too liberal". Well those individuals were wrong and it is a very big victory for all of us even those who do not live in California or in the 9th circuit.

There was a recent incorporation ruling in the 2nd circuit that said the 2nd was not incorporated (this was a numchuck (sp?) case) so we now have a split between the circuits on incorporation. This makes an incorporation case ripe for a SCOTUS ruling. The case in the 2nd circuit has been appealed and we don't know yet if SCOTUS will accept it or not. In the mean time incorporation is binding in the 9th circuit and the gun rights battle is about to shift to California and Hawaii along with the on going battle in Washington DC.

 

[damien]

How can they have the values of a Montanan in CA.

There is surely a federal court in Montana. This is the federal appeals court. You don't think the feds should supply an appeals court to every state, do you? Heck, then I want two. To paraphrase you,

"How can they have the values of a Southern Illinoisan in Chicago?"

Anyway, it's the wrong question. The courts are about the law, not about values (except as codified in the law, of course).

Edit:

The Montana Federal courts are located Billings, Butte, Great Falls, Helena and Missoula.

http://www.mtd.uscourts.gov/faq.htm
http://en.wikipedia.org/wiki/United_States_District_Court_for_the_District_of_Montana

 

[Yellowfin]

The real beauty of this is taking down Hickman v Block which has kept carry rights out of the hands of ordinary Californians. This will open the floodgates for wiping out the anti gun movement.

The ruling is sufficient and the Nordykes should let it stand.

 

[Sam Adams]

How can they have the values of a Montanan in CA.

As pointed out, this is a federal court.

But something else to consider is that there can be judges from any of the states within a circuit appointed to the Circuit Court. Thus, for example, there could be a Montana judge deciding cases that arise in CA. IOW, it cuts both ways.

I think that this is a HUGE win for us. I'll grant you that I am neither a Constitutional lawyer, nor have I read the case, but the fact that such language could come out of the 9th AND you have a situation where the anti-gun, anti-constitutional party cannot appeal is unique. Further, the Heller decsion definitely did hint at incorporation - so even if Nordyke appeals and the Court affirms, I simply cannot see the incorporation going away. Frankly, the 2nd FINALLY is on a par with the other basic rights protected in the BOR - it now applies across state lines. One more case is all we need to make it apply everywhere. Then the only issues to be discussed relate to what is covered by the 2nd...but no state will be allowed to ram through bans or absurdly restrictive and/or overly expensive regulatory schemes.

 

[gbran]

BTW

The Brady Campaign website is slow to comment on this and as of a short while ago had not made any mention of this ruling. Haven't seen anything in the press either. This is the 2nd most important ruling save Heller.

 

[Poper]

The Brady Bunch must be watching this in horror.

Kind of warms your heart, doesn't it?

Poper

 

[Sebastian the Ibis]

http://volokh.com/

Volokh has a couple great articles up right now on what this means and were we go from here. Scroll down to 3:05

 

[cindynles]

Going Crazy over at Calguns.net

You should see the thread for this issue over at calguns.net. They are over 22,000 views and 360 posts already.

 

[Devon]

OK, so color me stupid, what does incorporation mean and how does it affect the RKBA? I dont have a good handle on the 14th amendment.

 

[camacho]

OK, so color me stupid, what does incorporation mean and how does it affect the RKBA? I dont have a good handle on the 14th amendment.

It means that 2 Amendment applies not only to the Federal Govt but to the States as well. As it is currently, Heller only ruled for the Feds. Read below:

9th Circuit Incorporates 2nd Amendment

Posted By PATRICK EDABURN On April 20, 2009 @ 4:14 pm In At TMV, Guns, Law & Legal Matters, Law Enforcement, Legal Matters | 2 Comments

In what is almost certainly going to result in a showdown at the US Supreme Court, the 9th Circuit Court Of Appeals has incorporated [1] the 2nd amendment into the 14th amendment. In simple terms this is the first time that the 2nd amendment has been applied to limit the actions of an individual state, in this case the county of Alameda in the state of California.

Without getting too complicated in legal mumbo jumbo, the Bill of Rights was originally considered to only apply to limit the actions of the federal government. When the 14th amendment was passed there was debate as to how much it incorporated, or extended the provisions of the BoR to the individual states.

Over the 150 years or so since the 14th was passed, a number of provisions, mostly the 1st, 4th and 5th amendments have been applied to the states, but not the 2nd. This could be a problem for many gun control laws and follows in the basic pattern of the Heller decision last year which applied the law to the District of Columbia.

Clearly this is going to be appealed. I’m somewhat surprised at the lack of media coverage so far (which explains the lack of a link to a major news source). It is worth noting that the three judge panel which issued the ruling consisted of a Carter, Clinton and Reagan appointee, so in theory 2 of them were Democrats.

http://themoderatevoice.com/29505/9th-circuit-incorporates-2nd-amendment/

Another good write up here:
http://www.rightpundits.com/?p=3778

 

[Igloodude]

Where the 2A is incorporated, states have to abide by SCOTUS' Heller decision just like the Feds do.

 

[Radagast]

Devon: A very rough summary (others can nit pick it) is that the Bill of Rights was held for many years to only restrict the federal government.

The 14th amendment was introduced to make clear that the rights enumerated under the Bill of Rights were also restrictions on the States.

Unfortunately racist decisions by the Supreme Court in the 19th century basically said that the 14th amendment did not restrict the States.

Through the 20th century the Supreme Court has slowly reversed itself by taking on cases that addressed one amendment at a time and declaring that it was a restriction on the states. This was known as selective incorporation, selecting one right at a time but not all of them.

The second amendment in the 20th Century was never addressed as an individual right restricting the federal government (excepting the Miller case, which can best be described as a set up - no one appeared apart from the government attorneys). Heller addressed the individual right aspect of the 2nd amendment and held it to be a right. Because Heller was a lawsuit in afederal enclave (Washington DC) the Supreme Court has not addressed wether it is Incorporated (applies) against the States.

Because one Circuit Court has now ruled it is incorporated and one has now ruled it isn't, the Supreme Court will have to address the issue at some stage, although that is probably a few years off - Heller took 5 years to reach the Supreme Court.

When it does, if the result is in favor of incorporation then a lot of state legislation will be open to challenge. I foresee a lot of well paid lawyers over the next decade.

 

[Devon]

Ah, things are becoming more clear now. Thank you for clearing this up for me. What will it take for SCOTUS to hear the incorporation challenge? Is it simply that 2 different Circuit have ruled differently or will it require having someone who's rights have been violated to make the challenge?

 

[rl2669]

OK, I'm missing something here.

We're overjoyed that the 2nd was incorporated within the 9th circuit. Great!

But what does the exercise of this right mean? Nordyke lost the case. The court said that although there is a clear individual right and gave solid reasons for why we have it, the prohibition on holding gun shows on the government's property was a "reasonable restriction" on said right.

So how do we know that future courts won't say that every single gun control law on the books (and future ones to come) are also "reasonable restrictions" in the same breath they say it is an individual right?

 

[Oro]

So how do we know that future courts won't say that every single gun control law on the books (and future ones to come) are also "reasonable restrictions" in the same breath they say it is an individual right?

Because there is a long history of legal rulings on what governments can and cannot do to limit individual rights. A couple of teasers are:

1) Tax them
2) Broadly pre-empt them

etc., etc. Once the courts start chewing on existing gun laws in light of what it means as an individual right, a whole host of them will fall by the wayside. What you can do to one individual right, you can do to all them. So unless governments at the state and federal level are basically prepared to junk free speech and the bill of rights through legislative action, gun rights have to be acknowledged along with all the others.

Bascially, I am not enthralled with Nordyke. If you read the ruling, you will see the court went to great lengths to justify the fact that the coutny council could extinguish the 2nd Amendment rights of the people on their own public land. That is a bit chilling. But this reasoning, they are free to ban public assemblies and speeches that are politically noxious to them. This isn't a really "good" ruling for the public overall.

 

[alemonkey]

Sounds like this is potentially a huge win for the good guys. Why isn't this the #1 story on the NRA's website?

BTW, their website gives me a headache. They need to fire their web developer.