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

[ilbob]

Path to incorporation??

Ironic that one of the most restrictive states might well result in the 2A being incorporated. And fairly soon. If the 9th circuit goes for incorporation, the others should be a slam dunk.

http://www.calguns.net/calgunforum/showthread.php?t=120437

 

[Bobarino]

if its up to the 9th Circus Court of Schlameles, don't hold your breath. they're not exactly known to be gun friendly.

Bobby

 

[ilbob]

some pretty smart legal talent think there is a very good chance the 9th will bite.

besides, its not about gun friendly or not. they still have to have some legal basis for their decisions and Heller has all but cut that avenue off.

 

[hvengel]

Although the 9th circuit has more than it's share of far left judges it also has a significant number of judges who do follow the law and more than a few of these have written in the past that the 9th circuit's Second Amendment presedent (Hickman) was wrongly decided and with Heller they have been proven correct. It appears that from my reading of the previous Nordyke ruling by this exact panel that they are at least predisposed to listen to our side and give it due consideration.

The "individual rights" view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, "The Embarrassing Second Amendment", 99 Yale L. J. 637 (1989); Eugene Volokh, "The Commonplace Second Amendment", 73 N.Y.U. L. Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit's recent holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." Id. at 260.

[9] We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson .

But they were prevented from doing this by Hickman v. Block

...it is clear that the Second Amendment guarantees a collective rather than an individual right. Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.

Which is clearly invalidated by Heller. They also slamed the Silveria panel in the foot notes of the ruling.

n4 We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court's holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: " [W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right." Silveira v. Lockyer, 312 F.3d 1094 (9th Cir.2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit's holding in <>Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court's holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the "individual rights" theory as well as the Fifth Circuit's holding in Emerson, the Silveira panel's decision to re-examine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court," Morton v. De Oliveira,

In other words because Heller invalidated Hickman they now have a "blank slate" on which to consider incorporation. I suspect that there is at least a 50% chance that we will get incorporation out of this case in the 9th circuit and since this is an appeals court it is binding in the circuit until an em banc panel or SCOTUS over rules it.

Also this is already fairly far along and it seems like we will have a ruling on this sometime early next year.

 

[hvengel]

Ironic that one of the most restrictive states might well result in the 2A being incorporated.

Ironic yes. But this is how these things work and is exactly what happened with the civil rights movement. The initial law suits are ALWAYS filled in locations with the worst laws in part because these are the laws that are the least defensible and that are most likely to be overturned (IE. low hanging fruit).

 

[Erik]

Great point.

 

[Ergosphere]

Saw this on Calguns... The 9th Circuit court of appeals has just received a brief with arguments to incorporate the 2nd amendment under the 14th. The case is Nordyke v. King which involves a gun show ban, and has apparently been kicking around between the district and circuit courts for many years.

The briefs are here:
Nordyke (argues for incorporation)
Alameda (Arguing against incorporation)

Word has it that the 3 judges on the panel hearing this appeal have made prior comments that suggest they are predisposed to support incorporation.

 

[akodo]

The County’s stated
motivation was to eliminate the fairgrounds as “a place for people to
display guns for worship as deities for the collectors who treat them as
icons of patriotism.” (italics added for emphasis)

wait, isn't that a freedom of religion issue?

 

[TAB]

Freedom of religion is not free... you can not break the laws in the name of your religion. its been tried many times, by many diffrent people, they all have lost. Many have seen jail time as well.

most notably, every once in awhile some one starts up a church and then says its agains thier religion to pay taxs... No one has ever won a case like that, but many have gone to jail for tax evasion/fruad.

 

[RDak]

Interesting. Thanks for all the info.!!

 

[ctdonath]

don't hold your breath

All is not lost.
This is the same court that ruled that a felon COULD build machineguns for his personal use.

 

[sailortoo]

Are there any dates being talked about yet, as to when to be alert to a hearing/decision? The 9th Circus is a stretch to be looking at for a straight decision, but it is great to see this being pursued.
sailortoo

 

[Sebastian the Ibis]

O'Scannlon is as conservative as the Pope is Catholic. We got one vote. I don't know about the others.

Kozinski & Bea would make me very happy too, but they don't appear to be on the panel.

 

[ilbob]

Freedom of religion is not free... you can not break the laws in the name of your religion. its been tried many times, by many diffrent people, they all have lost. Many have seen jail time as well.

most notably, every once in awhile some one starts up a church and then says its agains thier religion to pay taxs... No one has ever won a case like that, but many have gone to jail for tax evasion/fruad.

generally the courts seem to rule that if there is a genuine religious interest it is acceptable. for instance, the catholic church was allowed to serve wine in its ceremonies during prohibition, and some native American religions use peyote with government tolerance at least.

some religions sacrifice animals legally, even though such a thing would probably be illegal for anyone else.

conscientious objection has long been accepted as allowing one to escape combat military service.

the government will not tolerate someone who directly attacks its vital interests (such as taxation) so it is unlikely a religion formed to avoid taxation would pass muster.

 

[Gray Peterson]

The two other judges are Gould and Alarcon.

Gould will vote for incorporation. His concurring opinion pretty much said so. We've got 2.

 

[armoredman]

I had no idea this was going on. Good to know, and fingers crossed.

 

[Jim March]

Whoa. I just started with Alameda's brief; they fall RIGHT into the trap Scalia warned them about: reliance on Cruikshank as good precedent.

Scalia twice noted problems with Cruikshank: one, it allows states to violate the first amendment (and 15th right to vote, not mentioned but well documented) and since THOSE parts of Cruikshank have been overturned, the rest is suspect.

But much worse, the Heller decision cites with approval a new book titled "The Day Freedom Died" (Lane, 2008) which links the Cruikshank case to horrific racism. THAT is their big precedent? Oh, they're SCREWED assuming our side points this out...

BUT THEY DIDN'T!!! DAMMIT, what the hell was wrong with Kilmer and Kates? They should have ripped Cruikshank into confetti. God, Scalia handed them that gameplan on a platter...they had that evil stinking Cruikshank right in their sights and they didn't take the shot!!!

What the hell?

 

[Al Norris]

The Nordykes, as appellants, submitted their brief first. Then Alameda County, as appellees, submits their brief. Can't very well tear something apart until the opposition uses it (in this case, relies upon it).

It is with the reply briefs that we [strike]might[/strike] will probably see Cruickshank torn to pieces. Those are due by 10-02-08.

 

[Jim March]

Ah. Yeah, that makes tons of sense...I mean, Alameda just basically pointed a shotgun at their own case and put Kilmer's finger on the trigger.

Still...it was dangerous to hope that Alameda would cite to Cruikshank. If they hadn't then that issue would be gone. As it is, Alameda stepped all over "that certain part of your body" as the dumb ads for that "certain product" might have put it...

 

[Al Norris]

Jim, as I read Alameda's brief, I got the distinct impression that they studied D.C.'s brief way too much!

Consider: The rants about how the States can't agree on gun laws as they relate to self defense and an individual right are irrelevent to the matter at hand.

Instead of arguing why their ordinance is a valid exercise of legislative authority, they are re-arguning a case that the Supreme Court has already ruled upon!

Worse, they are arguing before three Judges who will follow Heller and are pre-disposed to incorporation.

I can't even begin to fathom what they think they are doing. This isn't some moot court they are arguing before!

 

[Blackbeard]

Any idea when the decision will be handed down?

 

[Gray Peterson]

Reply briefs are due by 10/2, oral argument usually comes within 30 days of that, decision is usually handed down 60-90 days. Given the panel on the subject, we got at least 2 votes for incorporation.

So look for a decision to be made before the end of January.

 

[hvengel]

In the posts above it was pointed out that the reply briefs are due early next month. This is basically the last major step before the court hearing for final oral arguments. So I would expect that it will be argued very early next year (it could even be late this year) and we should have a ruling before midyear.

Jim is correct about Cruikshank being a bad choice for Alemeda but what else can they site? It is the only presedent they have to work with as bad as it is.

It was wise for Nordeky to avoid Cruikshank in their initial breaf because it has been reputiated by SCOTUS. It buys Nordeky nothing other than wasting paper on an argument that is likely to be put forward by the other side and for which they could use thier reply brief to counter. In addition since Nordeky didn't bring it up in thier initial brief Alemeda can't say anything about it in thier reply brief since there is nothing to reply to. In other words they are screwed since they can no longer counter Nordeky's counter arguments concerning Cruikshank other than during oral arguments and by then the judges have likely made up their minds.

In addition because there is nothing else for Alemeda to use Nordeky could basically sit back and wait for Alemeda to bring it up. It was a trap and Alemeda took the bait hook, line and sinker. This is a very smart move by Nordeky.

 

[Gunnerpalace]

This is the same court that ruled that a felon COULD build machineguns for his personal use.

This.

 

[CypherNinja]

hvengel: I think you mean Nordyke.