On the Cal-guns version of this thread, Don Kilmer replied:
http://www.calguns.net/calgunforum/showthread.php?p=1523431
See page 7 for the exchange. I spoke out of turn; my last response was:
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OK. First, yes, I spoke out of turn. It was late, I was tired, I phrased that pretty dumb.
But...
OK, first, since Cruikshank is cited as precedent in existing 9th Circuit cases (Fresno Rifle, which in turn is cited by Hickman and at least one earlier Nordyke ruling), I would say that Cruikshank is already "in play" and open for criticism given the new ammo against it the Heller decision has provided.
But setting that aside, we caught a break when Alameda County cited to Cruikshank so directly and thoroughly. THEY put it firmly in play if it wasn't already.
Don, before you complete your reply brief, I would ask you to go get a copy of "The Day Freedom Died" by Charles Lane. This 2008-new book was cited with approval in Heller.
And the "day" in question per that book is the day the US Supreme Court handed down the Cruikshank final decision (in 1876).
That was the Heller decision's big slam against Cruikshank. It should be read as a warning to all lower courts not to rely on Cruikshank. It can even be read as support for full incorporation under the P&I clause, as that's what the book argues for. But regardless, it condemns Cruikshank as thoroughly racist and discredited. It's absolutely vital to nail Cruikshank to the wall here, as it's a cornerstone of all US state-level gun control, cited by courts across the US and the California AG's office in their last missive on the 2nd Amendment.
Judge Reinhardt in Silveira knew that the Cruikshank precedent was worthless, which is why he tried to build up a whole new structure for state-level gun-grabbing. The Heller decision chopped that up and buried the pieces at a crossroads but it's still worth noting WHY Reinhardt went to the ridiculous lengths he did: it's because Cruikshank is flat-out evil. It prevented the Feds from stopping state-level civil rights violations at a time when the court KNEW these were rampant. In the Cruikshank case itself, the violations of the right to arms were done in order to facilitate mass rape, arson and murder. Over 100 people were murdered following the arms confiscations by state agents.
This is what Alameda is hanging their hats on and...well hell, I'm begging you to point this out. Alameda's brief pretty much begs you to as well.
Thanks for listening.
Jim March