9th Circuit: 2nd Amendment applies to states - merged X 2 - Page 3

9th Circuit: 2nd Amendment applies to states - merged X 2

This is a discussion on 9th Circuit: 2nd Amendment applies to states - merged X 2 within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by IssaquahWA19 I wonder what this will do to the quack we have running Seattle hopefully this will stop him in his tracks.... ...

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Thread: 9th Circuit: 2nd Amendment applies to states - merged X 2

  1. #31
    Senior Member Array bzdog's Avatar
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    Quote Originally Posted by IssaquahWA19 View Post
    I wonder what this will do to the quack we have running Seattle hopefully this will stop him in his tracks.... I am also really surprised at where this occurred being they were the same city banning all guns not to long ago....
    Ha ha. State law hasn't dissuaded him, why should anything?

    -john


  2. #32
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    Quote Originally Posted by dldeuce View Post
    Which case was that? I thought the Nordyke case would be the first circuit court ruling on incorporation.
    Quote Originally Posted by darkvibe View Post
    I thought I heard the 5th circuit incorporated but it was 2nd hand information. I'd also like to look up the case if anyone knows it.
    The case was U.S. V. Emerson.

    NRA-ILA :: NRA`s Friend Of The Court Brief In U.S. V. Emerson

    http://www.nraila.org/Search/?q=US V Emerson


    When you’re wounded and left on Afghanistan’s plains,
    And the women come out to cut up what remains,
    Just roll to your rifle and blow out your brains,
    And go to your God like a soldier.

    Rudyard Kipling


    Terry

  3. #33
    Distinguished Member Array kazzaerexys's Avatar
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    Quote Originally Posted by Blackeagle View Post
    IANAL, but you're misunderstanding this. Absent a Supreme Court decision, each circuit court gets to decide for itself. The decisions by other circuits can be persuasive, but they're not precedent.
    Hopyard's description of the various Circuits is right on. One of the things that could get the SCOTUS to look at the issue is if different Circutis are split on the issue. Right now, the 5th and 9th are the only ones to weigh in, and they both decided in favor of incorporation.

    So, the way I think this will work is that somebody not in those circuits will sue to have a local gun law overturned, citing the 9th and 5th Circuit decision in the complaint.

    Suppose I sue to remove the 'may issue' clause in Maryland's law, because it does not provide everybody with the same exercise of rights---violation of Equal Protection of the 2A right to bear arms. The MD court will shoot me down, I'll appeal, and get up to the 4th Circuit.

    Now, if they go with the existing precedent from the 9th and the 5th, I win and we get another incorporation ruling. If they decide against me, though, then we have competing rulings among the Circuits and an appeal to SCOTUS becomes a possibility.
    “What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia

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  4. #34
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by Captain Crunch View Post
    US V Emerson was a case challenging the constitutionality of a federal statute. They ruled similarly to the Heller case that the 2nd is an individual right and a right to self defense. I don't believe there was any ruling on incorporation against the states. I thought the Nordyke case was going to be the first.

  5. #35
    Senior Member Array dldeuce's Avatar
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    I read through this briefly yesterday. They had no choice but to rule for incorporation. I've heard a few people argue that we didn't get anything out of Heller except that a total ban on guns at home is unconstitutional. They should read this case to see all the implications from Heller. Looks like the 9th circuit, just like the Brady bunch, gave up easily on incorporation and moved right along to abrogating the 2nd with the standard for scrutiny.

    Here were some interesting tid bits:

    "[13] Heller tells us that the Second Amendment’s guarantee
    revolves around armed self-defense. If laws make such
    self-defense impossible in the most crucial place—the home
    —by rendering firearms useless, then they violate the Constitution.

    [14] But the Ordinance before us is not of that ilk. It does
    not directly impede the efficacy of self-defense or limit selfdefense
    in the home. Rather, it regulates gun possession in
    public places that are County property."

    [15] To summarize: the Ordinance does not meaningfully
    impede the ability of individuals to defend themselves in their
    homes with usable firearms, the core of the right as Heller
    analyzed it.
    The Ordinance falls on the lawful side of the division,
    familiar from other areas of substantive due process doctrine,
    between unconstitutional interference with individual
    rights and permissible government nonfacilitation of their
    exercise. Finally, prohibiting firearm possession on municipal
    property fits within the exception from the Second Amendment
    for “sensitive places” that Heller recognized. These considerations
    compel us to conclude that the Second
    Amendment does not invalidate the specific Ordinance before
    us. Therefore, the district court did not abuse its discretion in
    denying the Nordykes leave to amend their complaint to add
    a Second Amendment claim that would have been futile."

    They're trying to say the Heller decision defined the 2nd amendment as a right subject to any infringement at all that doesn't make an individual's self defense at home impossible. I bet that makes the Brady bunch real happy. That's exactly what they were hoping for. Then they go on to say that a convention hall allocated specifically for a gun show is a "sensitive place." That's just such nonsense. As if restricting one of the most popular trading venues for firearms from one of the most popular and practical venues, ie public property, doesn't infringe on our right to keep and bear arms. Then they just hand wave away that they passed the ordinance specifically to prohibit gun shows. As if they prohibited gun shows for safety reasons!

    I'd say the incorporation issue is now a near forgone conclusion. Our next battle is the standard of scrutiny. I hope they appeal the ruling on that basis. I would think their ruling is binding on both state and federal cases, and it sets a standard such that any infringement is allowed as long as it doesn't absolutely prohibit firearm possession or use. The Heller decision doesn't define the core of the 2nd amendment as "the ability of individuals to defend themselves in their homes with usable firearms." The Heller decision also doesn't amend the constitution as follows:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be prohibited.

  6. #36
    Senior Member Array dldeuce's Avatar
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    [13] Heller tells us that the Second Amendment’s guarantee
    revolves around armed self-defense. If laws make such
    self-defense impossible in the most crucial place—the home
    —by rendering firearms useless, then they violate the Constitution."

    Have these people ever read the constitution? I have to wonder. This doesn't even resemble the 2nd amendment.

    A well defended home, being necessary for the security of the family, the right of the people to keep and bear Arms, only within the confines of the home, shall not be prohibited.

    Thanks to the 9th Circuit for fixing that for us.

  7. #37
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    Quote Originally Posted by dldeuce View Post
    US V Emerson was a case challenging the constitutionality of a federal statute. They ruled similarly to the Heller case that the 2nd is an individual right and a right to self defense. I don't believe there was any ruling on incorporation against the states. I thought the Nordyke case was going to be the first.
    I have to disagree.

    Although incorporation was not the primary issue in Emerson, the 5th Circuit did rule that the 2nd Amendment does protect an individual right to keep and bear arms.

    By affirming the right, the Court in effect incorporated the 2A against the States of TX, LA and MS.

    That's all I'm saying.

    Attorney General November 9, 2001 Memorandum on

    It's interesting that the 9th Circuit disagreed with the 5th Circuit's ruling.


    When you’re wounded and left on Afghanistan’s plains,
    And the women come out to cut up what remains,
    Just roll to your rifle and blow out your brains,
    And go to your God like a soldier.

    Rudyard Kipling


    Terry

  8. #38
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by Captain Crunch View Post
    I have to disagree.

    Although incorporation was not the primary issue in Emerson, the 5th Circuit did rule that the 2nd Amendment does protect an individual right to keep and bear arms.

    By affirming the right, the Court in effect incorporated the 2A against the States of TX, LA and MS.
    It's been a while since I read that case, and I haven't got time to now. I think what it said was very similar to what Heller said. It said the 2nd amendment itself meant an individual right and an individual right to self defense. It considered whether the federal government is restricted from infringing it with this particular statute. I don't recall any discussion of the fourteenth amendment and any criteria for incorporating it against the states. I believe it was argued in the Nordyke case that the 2nd amendment via Heller and other cases was already incorporated. It doesn't look like the 9th circuit bought into that argument in that they came up with their own criteria for incorporation.

    Attorney General November 9, 2001 Memorandum on

    It's interesting that the 9th Circuit disagreed with the 5th Circuit's ruling.
    What do you mean? How did they disagree?

  9. #39
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    Quote Originally Posted by Hopyard View Post
    XD, is it not inevitable that this incorporation issue will have to be resolved by The Supremes when there accumulate conflicting ruling on the matter in different circuits?
    Yes--ultimately it will have to be settled by SCOTUS, because of its pre-existing (though utimately thoroughly discredited) precedents in the Cruikshank line of cases, which held the opposite way. What is most likely is that, at some point, there will either be a split among the Circuits, or a good, clear case on the question will make its way up the appellate line, and SCOTUS then will unequivocally overturn the Cruikshank line of cases.

    Quote Originally Posted by InspectorGadget View Post
    I have a question for the lawyers out there.

    Once a decision is made by a Federal appeals court doesn't it apply to all of the States and territories until there is a conflict with a different Federal Court, at that point the resolving decision goes to the supremes. (Assuming the party's "Nordyke v. King" do not appeal the Federal Appeals Court ruling to the Supremes.) So the incorporation ruling should apply to us all.... Or am I misunderstanding the way this works?
    A Circuit Court's opinion is binding within the Circuit--i.e., all lower federal district courts are bound to follow it. But district courts outside of a particular Circuit are not bound by it--though they often will cite such decisions as persuasive authority if their own Circuit has not ruled on an issue.

    In this case, interestingly enough, the Circuit Court actually ruled contrary to existing (though thoroughly repudiated) SCOTUS precedent on the issue, which is very unusual. Normally, Circuit courts are bound by SCOTUS precedent. However, when, as in the case of the 2A/14A incorporation issue, the SCOTUS precedent is so clearly no longer good law, this occasionally happens.

  10. #40
    Senior Member Array wjh2657's Avatar
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    The Constitution of the State of Tennessee has a Right to Bear Arms provision. It does pretty much delineate that it is an individual right. It however does state that the State Government may regulate the carrying of arms to prevent crime. It is much more liberal than the 2nd Amendment of the U.S. Constitution. Basically Tennesseens retain their right to bear arms under their state constitution. I think they could make this stick in USSC under the 10th amendment regardless of Federal actions. Their ruling would probably only apply to the Bearing of Arms within the state of Tennessee however.
    Retired Marine, Retired School Teacher, Independent voter, Goldwater Conservative.

  11. #41
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    Quote Originally Posted by dldeuce View Post
    What do you mean? How did they disagree?
    I simply meant that at the time of the Emerson ruling (2001) it was reported that the 9th Circuit disagreed with the 5th Circuit's findings. I found the reference to this while I was searching but I'm not gonna go back and try to find it.

    I'm bowing out of this discussion now.

    You say "to-MAH-to" (no incorporation); I say "to-MAY-to" (incorporation).

    Let's leave it at that.


    When you’re wounded and left on Afghanistan’s plains,
    And the women come out to cut up what remains,
    Just roll to your rifle and blow out your brains,
    And go to your God like a soldier.

    Rudyard Kipling


    Terry

  12. #42
    Senior Member Array Tom357's Avatar
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    Quote Originally Posted by Agent47 View Post
    well...no help for us in VA...yet?
    Article I, Section 13 of the Constitution of the Commonwealth of Virginia:
    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
    One suspects that this has been part of Virginia's Constitution for a long time. Virginia is also open carry and shall-issue.
    - Tom
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  13. #43
    Senior Member Array press1280's Avatar
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    I don't know if the Maloney 2nd circuit case counts as a circuit split, as he asserted the 2A applies directly(not through the 14th Amendment) to the states via Heller.

    http://homepages.nyu.edu/~jmm257/000-decision.pdf

    I know they were petitioning to SCOTUS for review but it's not an ideal case since it's nunchukus and not firearms. Other than the Chicago cases, I don't know of any other suits on the circuit level.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

  14. #44
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    9th U.S. Circuit Court: 2nd Amendment trumps local gun laws

    This surprised the heck outta me!!! Good news!!!

    Court: 2nd Amendment trumps local gun limits

    The 9th U.S. Circuit Court of Appeals in California has ruled that the 2nd Amendment right to keep and bear arms is "deeply rooted in this nation's history and tradition" and long has been regarded as the "true palladium of liberty," so it therefore must be applied against state and local government weapon restrictions as well as federal gun limits.

    The ruling came in a decade-old dispute over a private operation's request to hold a gun show at a county fairground, even though the county prohibited gun possession at its facilities.

    The new ruling from the usually liberal 9th Circuit said Alameda County in California was allowed to ban guns at its facilities, but in general the 2nd Amendment provision for Americans to keep and bear arms applies not to just federal gun limits but local rules as well.

    "This could be big, folks," wrote Kurt Hofmann at the St. Louis Gun Rights Examiner.

    "In Nordyke v. King … we may very well be seeing the beginning of the end of that very unsatisfactory set of circumstances, wherein state and local governments need not so much as pay lip service to the 2nd Amendment," he continued. "In the 9th Circuit, in fact, that end has indeed arrived.

    "This development is very significant, because the 9th is the largest, and thus one of the most important, federal circuit courts. It is also considered the most 'liberal,' and thus perhaps the most resistant to protecting the right to keep and bear arms," he continued.

    Hofmann cited a concurring opinion by Judge Ronald M. Gould, who wrote that nothing less than the security of the nation – a defense against both external and internal threats – rests on the provision.

    "The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security," Gould wrote. "We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence."

    The court opinion this week said, "We therefore conclude that the right to keep and bear arms is 'deeply rooted in this nation's history and tradition.'

    "Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the 'true palladium of liberty.' Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later," the court continued.

    "The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments," the opinion said.

    The court previously had ruled exactly the opposite way, but it said the U.S. Supreme Court's Heller decision, which confirmed that the 2nd Amendment right is personal as well as collective, prompted the reversal.

    At Poligazette, a commentator noted it is a major victory for the pro-gun position.

    And another Gun Rights Examiner writer, David Codrea, said, "This is big – especially coming from the 9th Circuit, notorious for its hostility to gun rights. Look for an appeal. And then look to see if the Supreme Court agrees to hear it."

    Technically the county cannot appeal, since its policy to restrict guns on county property was upheld. But the plaintiffs, Russell and Sallie Nordyke, could appeal on behalf of their gun show operation.

    The 2nd Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    "This necessary 'right of the people' existed before the Second Amendment as 'one of the fundamental rights of Englishmen,'" the ruling said. "Heller identified several reasons why the militia was considered 'necessary to the security of a free state.' First, 'it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary . . . . Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

    The decision appears to run counter to the general direction sought by the administration of President Obama three months into his tenure.

    He's already advocated for a treaty that would require a federal license for hunters to reload their ammunition, has expressed a desire to ban "assault" weapons, has seen a plan to require handgun owners to submit to mental health evaluations and sparked a rush on ammunition purchases with his history of anti-gun positions.
    "He who does not punish evil commands it to be done." - Leonardo da Vinci

  15. #45
    Senior Member Array Frogbones's Avatar
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    Whow.......

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