URGENT: Calls & letters to support Nordyke RKBA Incorporation!

[billwiese]

(crossposted from Calguns for impact/urgency)

Folks...

The ongoing Nordyke case being heard in the 9th Circuit Court of Appeals has very favorable chances of getting the 2nd/RKBA "incorporated" under the 14th Amendment.

This is the case that brings Heller out from just D.C. This case wpn't just be about California: it's a key step to 'locking in' the 2nd nationally.

Some Law Enforcement associations - or at least their political leadership - will be opposing Incorporation of the 2nd Amendment. We suspect that isn't the position that most line officers, deputies and chiefs actually support.

Thus, in support of the Nordyke appeal, we urgently need members of the following organizations to both ask their organization to withdraw their amicus briefs and also to write letters to the Court of Appeals stating that the organization does not speak for them:

California Peace Officers' Association: 916-263-0541 - [email protected]
California State Sheriffs' Association: 916-375-8000 - [email protected]
California Police Chiefs' Association: 916-481-8000 - [email protected]
​

If you are a member of any of these organizations, PLEASE call (as well as email) the organization to ask them to withdraw their amicus brief, and also please write to the Court and tell them that, as a member, you don't support your organization's opposition of Incorporation of an enumerated, fundamental right in the Bill of Rights.

Write to:

U.S. Court of Appeals, 9th Circuit
RE: Nordyke v. King, No. 07-15763
95 Seventh Street
San Francisco, CA 94103
​

If you're not a member of these groups, please politely contact your Chief or Sheriff, and also ask a LEO friend to call and write a letter. If they don't want to, ask them why not. We suggest calling and politely speaking to your Chief or Sheriff in the same manner as you'd call legislators in Sacramento about gun bills.

We also ask everyone to call each organization and tell them that you don't appreciate these organizations implicitly supporting the murder of African American elected Judges and Sheriffs by mobs (see US. v. Cruikshank, and The Colfax Massacre) and that you'd appreciate that they take seriously their members' oath to "support and defend the Constitution of the United States."

Let's be heard!


The boys form Calguns,

Gene Hoffman
San Carlos, CA

Bill Wiese
San Jose CA





Background to get folks up to speed:

Nordyke case: http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King
What's "incorporation"? http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)
Kilmer & Kates' brief: http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke_2A_Reply_Final_w-app.pdf
NRA amicus brief (Chuck Michel): http://www.calgunlaws.com/documents/NRA_Amicus_Brief.PDF
SAF brief (Alan Gura): http://www.hoffmang.com/firearms/Nordyke-v-King/SAF_Nordyke_Amicus.pdf

 

[billwiese]

bump for importance

 

[akodo]

good luck you guys

 

[usmarine0352_2005]

Good luck.


When will this be heard and maybe decided?


Will this case decide Incorporation or would it need to go to SCOTUS afterwards?

 

[billwiese]

Marine,

We should expect results in a few months max. The 3 judge panel is the same as before, which is very encouraging.

I'm a tad fuzzy, but if held favorably, RKBA incorporation is 'law of the land' at least in the 9th Ckt.

I believe after that, an appeals process could first attempt to request an en banc rehearing of 11 judges in the 9th, but prior ruling would be valid during that period. I think there'd have to be substantial & extraordinary reasons to do this however: other judges would have to be extremely piqued, other matters left unsettled, etc. - and furthermore the 3 judges on the panel are well-respected.

I believe for a variety of reasons we will prevail in the 9th, and would do so even if en banc rehearing were to occur.

Next step would be asking the Supremes but that's highly unlikely esp given Heller was so recent and nothing else in that subject area is 'ripe' again. What would rocket to the Supremes is a "circuit split" where another circuit(s) would rule the opposite of our 9th.

I doubt that the antis want further appeals to happen and to leave things as -is. as their best option. Their risk of further pushing their agenda is a more rapid dash to incorporated RKBA. The Brady-driven litigations & regulations are rolling up all over the nation in an attempt to reduce the speed they're walking backward and to try to delay post-Heller challenges in other areas. Look what's happening to handgun bans in Chicagoland, for example - and the San Francisco Public Housing authority just rolled over in the Doe litigation over gun possession in SF public housing.


Bill Wiese
San Jose CA

 

[usmarine0352_2005]

billwiese:


So if the 9th confirms RKB, then it is the law of the law and Incorporation is final......until/unless another court takes rules differently on a similar case, which could be years from now?


.

 

[DKSuddeth]

if the 9th validates incorporation of the 2nd, it will probably only apply to the states in the 9th, or am i wrong?

 

[bruss01]

IIRC, a decision would be a binding precedent in the 9th, and a non-binding precedent elsewhere. Non-binding means a future court must consider the decision, but may ultimately choose to over-ride it. Binding means that a court must use the decision as the basis for any future rullings on the issue. If it happens that two circuit courts disagree, that forms the basis for taking the issue to the Supreme Court. This is how Heller got up to the SC level.

 

[usmarine0352_2005]

IIRC, a decision would be a binding precedent in the 9th, and a non-binding precedent elsewhere. Non-binding means a future court must consider the decision, but may ultimately choose to over-ride it. Binding means that a court must use the decision as the basis for any future rullings on the issue. If it happens that two circuit courts disagree, that forms the basis for taking the issue to the Supreme Court. This is how Heller got up to the SC level.

So what's the chance of this decision being binding vs. non-binding?


What's the chance of the other circuit court not affirming Incorporation if the 9th does?
.

 

[riverdog]

IIRC, if a court is in the 9th circuit, it would be a binding precedent. Outside the 9th circuit it would be non-binding.

 

[anarchris]

can you splain this to me in plain English?

If we win does it mean we sanfrancisco residents can open carry?
(AZ style?) Shall issue? AR15 ban lifted? What exactly?
ooooooh PLEASE open carry!!! & shall issue!!!

I am really steamed at a local LE from a foreign country who HATES Citizen ownership of firearms, we got into a heated argument about open carry in National Forest wilderness campsites ( he said he would arrest anyone he caught in a Nat Forest open carrying!)
I bet him 20 dollars he couldn't find any CA penal code giving him the authority to do so (I guess I won because he has avoided me for a month) (he thinks you need a permit!)

Forcing the outright commies running SF to back down on 2A would be soooooo sweeeeet

 

[anarchris]

I'm bumping this because I want some to tell me we in SF will have our rights restored

 

[ke6guj]

They aren't gonna just wipe out all gun laws at the moment they incorporate Nordyke.

What would happen is that with a positive incorporation ruling in our pocket, we would then be able to file suits that would start gettng some of those laws ruled unconstitutional.

 

[usmarine0352_2005]

So, can someone answer this:



Is there only one other circuit besides the 9th? (Like there's one on the West coast the 9th and on the East coast the 8th)


What's the chance of the other circuit court not affirming Incorporation if the 9th does?

 

[Flyboy]

There are eleven numbered circuits, plus the Federal Circuit and the DC Circuit. Heller was heard in the DC Circuit (ultimately making its way to SCOTUS, which holds authority over all circuits).

You can view a map of the circuits (and state district subdivisions, if applicable) at http://www.uscourts.gov/courtlinks/.

 

[Al Norris]

We might also consider Emerson (5th Circuit). Unless I've read that wrong, the 2A is already incorporated (implicitly) in that decision.

 

[usmarine0352_2005]

.
What's the chance of the other circuit court not affirming Incorporation if the 9th does?


Are the other 9 circuit courts considered 2nd amendment friendly?

.

 

[anarchris]

there was some other circuit court I seem to remember being fairly firearm friendly

 

[usmarine0352_2005]

.
What's the chance of the other circuit courts not affirming Incorporation if the 9th does?
.

 

[riverdog]

Which circuit? Which case? Is this the psychic hotline?

 

[hvengel]

The 5th circuit in the Emerson case has said that they favor incorporation but this was dicta (IE. non-binding) since Emerson was a federal case. In most of the other circuits we don't know how any given 3 judge panel will rule. If the Nordeky panel rules for incorporation when another circuit goes the other way this sets up a conflict between the circuits which makes the issue rip for a SCOTUS case. The Heller dicta also strongly hints that the current SCOTUS panel would also rule for incorporation and the Heller incorporation dicta is likely to sway some other circuits to also rule that the 2nd is incorporated. This is unlikely but we could see a situation where all of the circuits follow the Heller dicta and rule for incorporation and an incorporation case never makes it to SCOTUS.

 

[usmarine0352_2005]

The 5th circuit in the Emerson case has said that they favor incorporation but this was dicta (IE. non-binding) since Emerson was a federal case. In most of the other circuits we don't know how any given 3 judge panel will rule. If the Nordeky panel rules for incorporation when another circuit goes the other way this sets up a conflict between the circuits which makes the issue rip for a SCOTUS case. The Heller dicta also strongly hints that the current SCOTUS panel would also rule for incorporation and the Heller incorporation dicta is likely to sway some other circuits to also rule that the 2nd is incorporated. This is unlikely but we could see a situation where all of the circuits follow the Heller dicta and rule for incorporation and an incorporation case never makes it to SCOTUS.

If this happens, then is Incorporation the set?

Or could it change someday?

 

[hvengel]

The way this is supposed to work is if all of the circuits agree on some issue then SCOTUS should stay out of it since there is no legal controversy at that point and it should be settled law. That is why the antis' accused SCOTUS of being an activist court for their ruling in Heller since they claimed that it was a settled issue (Miller ...) even though it was clear because of the split between the circuits that it was not settled law and everyone knew that Miller didn't really have anything to do with this issue.

If all of the circuits say the 2nd is incorporated then it is incorporated everywhere and becomes settled law. Although SCOTUS could still over rule it at that point this is not likely to happen unless SCOTUS is very activist. This is sort of the what the anti's tried to do with regard to the 2nd not being an individual right (IE. a collective right). But the problem they ran into was that not all of the circuits went along. First the 5th circuit in Emerson and then the DC circuit in Heller ruled the other way. This split in the circuits made the question of individual vs. collective right ripe and SCOTUS settled it with Heller.

 

[usmarine0352_2005]

The way this is supposed to work is if all of the circuits agree on some issue then SCOTUS should stay out of it since there is no legal controversy at that point and it should be settled law. That is why the antis' accused SCOTUS of being an activist court for their ruling in Heller since they claimed that it was a settled issue (Miller ...) even though it was clear because of the split between the circuits that it was not settled law and everyone knew that Miller didn't really have anything to do with this issue.

If all of the circuits say the 2nd is incorporated then it is incorporated everywhere and becomes settled law. Although SCOTUS could still over rule it at that point this is not likely to happen unless SCOTUS is very activist. This is sort of the what the anti's tried to do with regard to the 2nd not being an individual right (IE. a collective right). But the problem they ran into was that not all of the circuits went along. First the 5th circuit in Emerson and then the DC circuit in Heller ruled the other way. This split in the circuits made the question of individual vs. collective right ripe and SCOTUS settled it with Heller.

What's the chance of this happening?


Wouldn't it take awhile for all of the circuits to eventually hear Incorporation cases?

.

 

[hvengel]

What's the chance of this happening?

Probably not real high in fact fairly low I would guess. Even if most circuits follow the Heller dicta there is a fairly high probability that some activist panel in one of the circuits will go the other direction. These appeals panels are supposed to be randomly selected. As a result we ended up with what appears to be a strict constructionist panel in this case in a circuit known for being the exact opposite. So to some extent it is a crap shoot in each circuit and we could end up with a liberal/activist panel in a circuit that has predominately constructionist judges. But even with panels less inclined to follow the Constitution they still have to come up with some semi-plausible theory as to why the Heller dicta is wrong and why the other circuits don't have it right by following Heller. So this may constrain activist panels into ruling correctly. If we get a series of appeals rulings in the various circuits for incorporation it makes it harder for other appeals panels to rule against incorporation.

Wouldn't it take awhile for all of the circuits to eventually hear Incorporation cases?

We could end up in a situation where it becomes so settled that in some circuits it never comes before an appeals panel. This is highly unlikely however. The most likely thing is that there ends up being a split between the circuits and SCOTUS settles the question. What Nordyke does, if it goes our way, is sets things up so that this happens sooner and also gives our side more ammunition in the other circuits on this question. In the mean time we have incorporation in a circuit where we have many very bad laws to fight since California and Hawaii are two of the worst states for RKBA and both are in the 9th circuit. As to how long it would take I don't know but I suspect that if this panel rules in favor of incorporation that we will see more cases in other circuits where this is at issue. At the very least it could take 3 to 4 years to settle the incorporation issue fully and it could be longer.

This whole thing is a long term process and it will likely be two or three decades before the dust mostly settles. After all SCOTUS is still hearing civil rights/discrimination cases over 50 years after it's initial rulings in this area of law in the 1950s. Although these cases are all now dealing with issues that are at the margins since the main issues were settled by the end of the 1980s. My point being that this is more like a chess game and we are only now making the very first moves (IE. this case is like the second move in the game) and these first moves are setting up the rest of the game and will influence how the game plays out so they most be done with great care.