Incorporation Continued

[Yellowfin]

I'm curious as to how the 1st, 3rd, and 4th Circuits could be suited for 2nd Amendment incorporation, in light of the race to the Supremes possibly taking a long time and subject to obstacles and changes in the weather. We're on the winning streak right now so obviously what we need is more wins while the gettin's good, at very least to stack cases in the pipe for when it's go time. Or at very least I'm just thinking out loud here and this is a good group exercise.

MD, NJ, and MA are each in different circuits. The people I have asked say the 2nd is screwed for the moment because of Maloney (Would en banc have turned up better?), so it's either MacDonald getting to the SCOTUS fast or we gotta get some more stuff done elsewhere to make best uses of the momentum. California's stuff is up and running in the 9th and looks REALLY, REALLY GOOD. Those 3 states have some issues that need to get fixed...and at very least NJ and MA aren't going to get it done by anything else but legal sledgehammering.

So how about it? Anyone got some good info on this?

 

[husbandofaromanian]

If incorporation is acknowledged, will this only affect current & future laws or will some prior convictions get erased?

 

[everallm]

The people I have asked say the 2nd is screwed for the moment

These "people" hve been following what's been happening with Heller, Chicago and Nordyke ?

And all this means 2A is screwed.......

 

[Phatty]

everallm,

He was referring to the 2nd Circuit, not the 2nd Amendment. People in the 2nd Circuit are currently "screwed" due to the 2nd Circuit's ruling that the 2A is not incorporated, unless and until the Supreme Court says otherwise. The other circuits which have not yet decided on the issue still have a chance to rule in favor of incorporation as the 9th Circuit did.

 

[everallm]

My apologies, after seeing a range of "we're doomed", "it counts for nothing", "it's a ploy by THEM" etc over the last week or so, it gets a tad reflexive.

Actually, 3rd Circuit might be a good one for this, it has two states on very different ends of the spectrum with PA and NJ AND it's not sitting in NJ.


As an inhabitant of NJ I am currently running a little project of my own relating to NJ's definition of an assault weapon via magazine capacity, specifically the arbitrary 15 round magazine limit.

If the magazine can hold more than 15 rounds it is a part that makes an assault weapon of an otherwise legal firearm it is fitted to.

The issue is that for my XCR rifle (which takes AR magazines) there are NO manufacturers of 15 round magazines (one used to retrofit 20's but no longer provides this service) It is also illegal to own any combination of parts assembeled or unassembled that could MAKE a 15+ round magazine.

I am in the process of applying for a licence for an assault firearm (specifically a GI 20 round magazine) based upon the capacity as inherently in common usage as per Heller.

Being NJ this will take months at least, to be rejected..... just try and get a FID or Pistol Permit to Purchase......:banghead:

Should be fun.......

 

[ravonaf]

These "people" hve been following what's been happening with Heller, Chicago and Nordyke ?

All Heller did was say the government can not ban guns that are of common use. They said you have a right to bear arms while at the same time saying the government can infringe on that right. In my opinion they actually struck down one of the most important parts of the 2nd amendment.

 

[everallm]

Ravonaf,

They said nothing of the sort, read all of Heller and Nordyke, they said that 2A (with as yet to be defined level of scrutiny) has the same level of exception as other BoR amendments such as the First. There is no such thing as an unfettered right, classic example being the First and screaming fire in a crowded theatre as a proank.

Heller was the first step, incorporation and level of scrutinty are the second and third steps.

 

[ravonaf]

They said nothing of the sort, read all of Heller and Nordyke, they said that 2A (with as yet to be defined level of scrutiny) has the same level of exception as other BoR amendments such as the First.

And the level of exception amounts to infringement. Yelling fire in a crowded movie theater or slandering someone is not the same as doing back ground checks on firearm sales. Speech that causes harm to someone does not equal buying a firearm which in and of itself causes no harm to anyone. Infringing a little or a lot still equals infringement.

 

[carebear]

You're right, Heller and Nordyke were a waste of time.

Might as well act as if they never happened because gun rights were in a better place prior to them...

Wait, what's that?

They were steps forward?

The cases did not offer the opportunity for the Courts to go much beyond the rulings they gave?

It might actually take multiple incremental steps to refine things to an acceptable level?

Nah, that's crazy talk, we should obviously reject anything but a 2nd Amendment ruling delivered by a fairy riding a unicorn over a rainbow that agrees with an absolutist perspective. Cause that will obviously happen someday.

Yeah, that's a much better choice, both short AND long term, than cheering the wins we have and the steps being taken, even as we speak, to exploit the openings those rulings provided.

 

[cbrgator]

Lou Dobbs said today that Nordyke is appealing to the Supreme Court. As there is a Circuit split, I would tend to think they'll hear the case, but who knows.

 

[Yellowfin]

^ Is that a fact? Didn't see it on Calguns.net yet. Did he have any sources?

 

[cbrgator]

Nope. But during his 2A segment this evening, one of his reporters said it. I don't recall if they said they have appealed it or would. But it was one or the other.

 

[Yellowfin]

Maybe they said they might. Last I heard from Don Kilmer in person was a week ago (yeah, I know...I buy my wines direct from the wineries out here in person too )and they'd made no decision at that time.

 

[cbrgator]

No, there was no might. It was definitive.

Now... they could be wrong. But that's what they said.

 

[carebear]

So Nordyke takes the "sensitive places" question to the Supremes as SAF et al. are challenging "may issue" in District Court?

If the District Court in Cali takes the better part of valor and goes for SAF on carry, Nordyke and the Supremes could concurrently remove the need for a secondary fight in Cali to set "sensitive places" as properly (very) limited in scope.

Exciting times.

 

[Yellowfin]

I agree that any appeal of Nordyke would likely say just as the Circuit decision that the 2A must be incorporated for the question even to be a question, so that's the big bonus. If they get cert that's the prize for getting in the door.

 

[Kind of Blued]

If incorporation is acknowledged, will this only affect current & future laws or will some prior convictions get erased?

I'm not completely sure what you're asking.

As far as I know, convictions would not be expunged retroactively, even if the law which an individual broke was deemed unconstitutional. There could be some legal avenue that one could take of which I'm unaware, but their criminal status would not magically disappear over night.

As far as laws themselves go, it would be a matter of contesting them one by one as far as I know. If the Second Amendment was incorporated, many of these likely wouldn't be accepted by appellate courts, so many could be knocked out pretty easily. Of course, many local/state governments might drop a good number of laws on their own, simply because it wouldn't be in their best interest to try to contest them, appeal them, and spend lots of money, just to lose the case and have the law declared unconstitutional anyway.

That's from my elementary understanding anyway.

 

[cbrgator]

As far as laws themselves go, it would be a matter of contesting them one by one as far as I know. If the Second Amendment was incorporated, many of these likely wouldn't be accepted by appellate courts, so many could be knocked out pretty easily. Of course, many local/state governments might drop a good number of laws on their own, simply because it wouldn't be in their best interest to try to contest them, appeal them, and spend lots of money, just to lose the case and have the law declared unconstitutional anyway.

That's from my elementary understanding anyway.

Wellllll... some may drop their laws, unless you're in Chicago or NYC. They'll fight their laws right up to the SCOTUS, although they will prob be denied cert. after the Court of Appeals rules that Heller governs and gun bans are unconstitutional. Thanks for playing Daley and Bloomberg!

 

[RDak]

Guys, cbrgator stated Lou Dobbs said there was a split in Circuit Court decisions and Nordyke would appeal their case to the Supreme Court.

Where is the split? I haven't heard of a split on the incorporation issue. Does it have something to do with not allowing gun shows on government property? Is that where the split amongst the Circuits is?

 

[everallm]

Two separate issues here

First

As far as I am aware there is not, as yet, a formal split between circuits that would need to be resolved by the USC. This is tempered with the whole recent NY "nunchuks" ruling. Not sure if this is regarded as an official "split"

Second

Are the Nordykes going to appeal their ruling and if so how wide or narrow and are they to challenge only the "what is a sensitive place" criteria etc.

No report of this on Calguns that I can find at the moment

 

[RDak]

Ok, thanks for the info. everallm.

 

[Phatty]

As far as I am aware there is not, as yet, a formal split between circuits that would need to be resolved by the USC.

There is a formal split between the 9th Circuit and the 2nd Circuit on the issue of whether the 2nd Amendment is incorporated against the states via the 14th Amendment.

Are the Nordykes going to appeal their ruling and if so how wide or narrow and are they to challenge only the "what is a sensitive place" criteria etc.

When/if the Nordykes appeal to the Supreme Court they will have the opportunity to phrase the exact question(s) they want decided by the SC, which can be as broad or as narrow as they choose. However, by appealing, they open the door for the county to cross-appeal any point they would also like the SC to hear. Then the SC will decide which of those questions they will decide, but they are not confined to just those questions. So, in practice, the Nordykes really do not have any control over what issues are heard on appeal.

 

[RDak]

Thanks Phatty.

You're right, the 2nd Circuit ruled against incorporation in Maloney.

I did a search after you mentioned "2nd Circuit" and came up with this brief summary:

http://lawprofessors.typepad.com/crimprof_blog/2009/02/second-circuit.html