Nordyke v. King oral arguments

Nordyke v. King oral arguments

This is a discussion on Nordyke v. King oral arguments within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; You are probably aware of this case now in the 9th Circuit Court. If not, it concerns a ban on gun shows on Alameda County ...

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Thread: Nordyke v. King oral arguments

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    Distinguished Member Array Anubis's Avatar
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    Nordyke v. King oral arguments

    You are probably aware of this case now in the 9th Circuit Court. If not, it concerns a ban on gun shows on Alameda County CA fairgrounds public property.

    The oral arguments were held Jan 15. A 42-minute tape of the arguments can be heard at Media for Case No. 07-15763

    Incorporation of the 2nd amendment into the 14th amendment (at least for 9th Circuit territory) is a potential outcome of this case. Having listened to the arguments, however, I don't expect that result. There is a good laugh around 24 minutes into the tape.
    Last edited by Anubis; January 20th, 2009 at 03:26 PM.


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    Thanks for this post. That is interesting listening.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by Anubis View Post
    You are probably aware of this case now in the 9th Circuit Court. If not, it concerns a ban on gun shows on Alameda County CA fairgrounds public property.

    The oral arguments were held Jan 15. A 42-minute tape of the arguments can be heard at Media for Case No. 07-15763

    Incorporation of the 2nd amendment into the 14th amendment is a potential outcome of this case. Having listened to the arguments, however, I don't expect that result. There is a good laugh around 24 minutes into the tape.
    I listened to this the other day. I thought it was interesting that Pierce argued that this isn't a 2nd amendment issue. He said something to the effect that the SC in Heller recognized that it's a limited right, and since he asserts that county grounds are a sensitive place for firearm possession, it's therefore not a 2nd amendment issue. No mention that the SC explicitly didn't address the undefined scrutiny test that the SC would judge by to determine what constituted a sensitive place.

    He essentially argued that we can't have a 2nd amendment case, because the standard of scrutiny hasn't been defined, and when it's even loosely speculated on by the SC, the states should be given gross presumption of the standard favoring restriction of rights. Since there is currently no 2nd amendment protection against state government infringement, the standard of scrutiny would have to be defined in cases involving Federal infringement. Since the body of gun control legislation is done by the state, the standard will likely never be defined at the federal level. Therefore, since there is no incorporation and no standard of scrutiny, there can't ever be state cases to raise incorporation or standard of scrutiny. Nice catch 22 argument.

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    VIP Member Array Guns and more's Avatar
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    Let's see. The 9th Circuit court is in San Francisco, and is the court attorneys seek if they want a slam dunk liberal opinion. Without knowing anything about the case, I'd bet the ruling will be anti-gun.

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    Strategy

    Quote Originally Posted by Guns and more View Post
    Let's see. The 9th Circuit court is in San Francisco, and is the court attorneys seek if they want a slam dunk liberal opinion. Without knowing anything about the case, I'd bet the ruling will be anti-gun.
    That might be O.K. strategy to get the case the SC.

    However, I think the court is going to buy into the due process and incorporations claims. I think the 9th is exactly the forum for recognizing 2A rights as other BOR, apply to all. That's my fearless forecast and I'll stick with it until ruling is given.

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    Distinguished Member Array Anubis's Avatar
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    Either way, I predict this case is bound for the Supremes; it's been in progress for 10 years and either side will go the distance.

    The things I don't like about its chance for incorporation are (a) the issue is not a total ban like DC's was, gun shows are fine on private property, and (b) a gun show, being a display, is not remotely related to carrying weapons for self defense.

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    Member Array socal2310's Avatar
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    Anubis,

    Have you read the 9th Circuit Court's previous decision rendered prior to Heller?

    FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

    Note that the decision was based on the Cruikshank and Pressler precedents which they found fault with, but lacked jurisdiction to contest.

    The finding by Heller that the second amendment is an individual right changes the playing field significantly.

    I agree that this is going to continue to play out for a long time. In the first place, either decision will likely have to argue before an en banc panel.

    What I'm hoping for is incorporation by the 9th circuit followed by a SCOTUS dismissal without comment (not very likely, but I can dream) as that's the fastest way to open up litigation against California and other western state's other unconstitutional laws (too bad for those of you in other districts, you'll just have to bring your own suits).

    Ryan
    Those who will not govern their own behavior are slaves waiting for a master; one will surely find them.

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    Distinguished Member Array Anubis's Avatar
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    I have. I forgot to write in post #6 a third reason (c) the 9th would have to reverse from its own precedent, which possibility could be enhanced by the intervening Heller decision.

    In the recent Chicago handgun ban challenge case with a similar legal landscape, a lower court declined to go against a precedent set at a higher level, passing it up the chain. I think that's likely to happen with the 9th Circuit ruling on Nordyke, but your hope is my hope too.

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    Member Array socal2310's Avatar
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    It's possible they'll pass the buck to SCOTUS, but we have two things going for us here:

    1.) The ninth circus loves controversial rulings

    and

    2.) It hates to be reversed.

    The court in Chicago was compelled to abide by the precedent of the state supreme court (and they as much as said they needed to reverse their finding or have it reversed). The ninth circuit is bound only by SCOTUS.

    If the ninth circuit goes for incorporation, SCOTUS is likely to uphold it and the justices know it (incidentally, the footnotes in Heller practically begged for such a case which is why I seriously doubt SCOTUS will dismiss without comment).

    One of these cases is going to wind up before SCOTUS and on second thought I really hope it's a good case like Nordyke. We all have to be wary of the axiom that, "Hard cases make bad law."

    Ryan
    Those who will not govern their own behavior are slaves waiting for a master; one will surely find them.

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    Comment on Nordyke

    Quote Originally Posted by socal2310 View Post
    It's possible they'll pass the buck to SCOTUS, but we have two things going for us here:

    1.) The ninth circus loves controversial rulings

    and

    2.) It hates to be reversed.

    The court in Chicago was compelled to abide by the precedent of the state supreme court (and they as much as said they needed to reverse their finding or have it reversed). The ninth circuit is bound only by SCOTUS.

    If the ninth circuit goes for incorporation, SCOTUS is likely to uphold it and the justices know it (incidentally, the footnotes in Heller practically begged for such a case which is why I seriously doubt SCOTUS will dismiss without comment).

    One of these cases is going to wind up before SCOTUS and on second thought I really hope it's a good case like Nordyke. We all have to be wary of the axiom that, "Hard cases make bad law."

    Ryan
    I have clearly mixed views on what might happen. ON the one hand, I think the court will go for incorporation if it has a chance; on the other hand, I think it could easily consider the venue where they wanted to hold the gun show to be "sensitive," and the prohibition against holding the gun show well within the parameters of allowable prohibitions per Heller.

    As I have posted here before, I'm stunned that 2A or any other "right" in the BOR has not long ago been fully incorporated, and frankly I do not understand how this failure has persisted for so very long since the Cruishank case. The much later Duncan v LA case seems to me to be much more relevant and appropriate a benchmark. Yet, even this latter case is "weird" to the modern American mind. Effectively, it says states don't have to hold jury trials for many misdemeanors*. Here, you can request a jury trial in Municipal court, even for a very minor traffic case--I have to wonder if any state actually denies jury trials for misdemeanors with penalties below 6 months. I guess what I am saying, is our society appears to be way ahead of where the courts are with regard to the populations general understanding and belief regarding BOR rights and their application to individuals. It is time the courts somehow get in tune with realities, and not just regarding 2A. It is amazing to me that they can find individual rights not enumerated in the BOR to be applicable to all, but rights enumerated, they demand "incorporation." Strange stuff.

    * It must be emphasized that many of the cases which are relied on as a basis denying incorporation were clearly cases where the main aim of the court was upholding Jim Crowe laws--they offend the modern mind, and the 9th for this reason alone should put a final end to the incorporation argument.

    In Duncan (1968): "Black argues for total incorporation, holding that all amendments in the Bill of Rights are made applicable to the states by the Fourteenth Amendment.[1] He cites Congressional records from the ratification of the amendment to support his position. He holds that anything less than total incorporation would leave the enforcement of these rights to the whims of the judiciary."

    That is what appears now to be the case with 2A. It is at the whims of the judiciary which for the most part, in many locals, has not been interested in upholding this right for all.

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    Quote Originally Posted by Hopyard View Post
    As I have posted here before, I'm stunned that 2A or any other "right" in the BOR has not long ago been fully incorporated, and frankly I do not understand how this failure has persisted for so very long since the Cruishank case.
    Cruikshank, and subsequently Adamson confirmed that the Bill of Rights applies only to the Federal government as the Founders intended. There is no question concerning the Founders intent and no informed person would argue otherwise. The Fourteenth Amendment has nothing to do with the Bill of Rights.

    I have to wonder if any state actually denies jury trials for misdemeanors with penalties below 6 months. I guess what I am saying, is our society appears to be way ahead of where the courts are with regard to the populations general understanding and belief regarding BOR rights and their application to individuals.
    You are starting to get it! The courts do not determine our rights. They do not have the power to determine Constitutionality of laws. They can opine and bloviate all they want but it is the PEOPLE that determine the laws and how protection of rights are implemented.

    The rights enumerated in the Bill of Rights (and other rights not enumerated) are the possession of the individual. The Federal government, however, cannot force the states to implement any policy not specifically addressed in the Constitution.

    It is time the courts somehow get in tune with realities, and not just regarding 2A. It is amazing to me that they can find individual rights not enumerated in the BOR to be applicable to all, but rights enumerated, they demand "incorporation." Strange stuff.
    It is time for the court to withdraw from jusidical revew and judicial activism, which essentially allows them to trump the will of the PEOPLE. Legislating from the bench is the antithesis of a free nation.

    * It must be emphasized that many of the cases which are relied on as a basis denying incorporation were clearly cases where the main aim of the court was upholding Jim Crowe laws--they offend the modern mind, and the 9th for this reason alone should put a final end to the incorporation argument.
    Incororation? What is that? What is its legal origins?


    That is what appears now to be the case with 2A. It is at the whims of the judiciary which for the most part, in many locals, has not been interested in upholding this right for all.
    It is the whim of five men in robes that have glorified murder and stealing private property from citizens to bolster the tax base. It is the whim of five men in robes that has stifled free political speech.

    Having our nation ruled (ruined) by five men in robes is an abomination.

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    Member Array socal2310's Avatar
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    Self Defense,

    As I have pointed out elsewhere, the issue of States rights vs. Federal rights was settled almost 150 years ago, how you or I feel about that is irrelevant (I happen to agree with Patrick Henry - the constitution itself made the destruction of states rights inevitable).

    That being said, I will not complain about any court asserting the right of an individual over the state.

    Incidentally, I think it's kind of ironic to be complaining about modern activist judges. You really out to read up on John Marshall.

    Ryan
    Those who will not govern their own behavior are slaves waiting for a master; one will surely find them.

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    SD wrote: "The rights enumerated in the Bill of Rights (and other rights not enumerated) are the possession of the individual."

    They should be, but clearly are not. Even with a modern case like Duncan v LA, it is clear the "the individual right to a trial by jury" doesn't really exist, and is at the whim of both state and the court. So, there is no such thing -- in a practical sense-- of an individual right devoid of state approval. Want proof? Open carry in Texas and see what happens. Post threats on the president on the internet, and see what happens. Try to get evidence dismissed when the arresting officer made a minor error not born of malice, and see what happens. (very recent--like a few days back--case at the SC just ruled so).

    All our so called individual rights, supposedly given by some hypothetical deity and by the BOR, are clearly subject to both the state's laws and the court's rulings. There ain't no such thing as an inalienable right, no matter how much we may wish for that. It takes hard work to keep a right; ask Heller, ask Duncan, ask the plaintiffs in many other cases about the power of the state.

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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by socal2310 View Post
    As I have pointed out elsewhere, the issue of States rights vs. Federal rights was settled almost 150 years ago, how you or I feel about that is irrelevant (I happen to agree with Patrick Henry - the constitution itself made the destruction of states rights inevitable).
    I assume by now you have read Cruikshank and Adamson. Yes, it is settled. That is until the activist Warren Court overturned precedent and our nation's Federalsit character in favor of judicial activism.

    Patrick Henry had no idea how to form or run a government. He was frightened by a previous ruler and his misguided psychological projection on our new nation was a detriment and and obstacle to the great men that Founded our nation. The anti-Federalists almost ruined the nation before we began. The Founders should have crushed the opposition rather than the appeasement that still haunts us.

    That being said, I will not complain about any court asserting the right of an individual over the state.
    As long it agrees with your views. How do you react when the appointed, privileged few rule against your perception of how things should be?

    Incidentally, I think it's kind of ironic to be complaining about modern activist judges. You really out to read up on John Marshall.
    What questions do you have concerning Marshall?

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    Socal2310 wrote: "That being said, I will not complain about any court asserting the right of an individual over the state. "

    Nor will I, because it seems that more often than not they go the other way. With regard to 2A, they still can't quite get it that it is an individual right the states can not infringe upon. Why in the world some here argue that it would be best that the courts not uphold individual rights against the power of the states is beyond my comprehension.

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