April 20th, 2009 01:46 PM
9th Circuit: 2nd Amendment applies to states - merged X 2
The ruling in Nordyke v. King is out. The 9th Circuit ruled in favor of incorporation, meaning that the 2A applies to state governments as well as the federal government.
April 20th, 2009 01:49 PM
Ah hah :) Maybe they watched Thomas on C-Span the other day.
April 20th, 2009 01:53 PM
They actually ruled against Nordyke on the 2A issue itself (ruling that the 2A does not protect the right to hold a gun show on public property). However, I think the incorporation ruling is the important one. Anyone in the 9th Circuit can sue state or local governments for abridging their 2A rights.
April 20th, 2009 02:00 PM
They got it right
I think they actually got it right. That is, I didn't think they needed to get into 2A to find that it was OK that a gun show not be allowed on public property; just as it would be OK to not allow a dog show on public property, or a a pole dancing exhibit on public property.
Originally Posted by Blackeagle
I am somewhat surprised they got into the incorporation issue at all as they didn't need to go there at all. But since they did, good!!!
I now wait for SD to pop up and predict the USSC will overturn the 9th's opinion--- because it goes against his favorite 19th century rulings.
Maybe they watched Thomas on C-Span.
Oh, and for all the 9th circuit haters, they just advanced your freedom. It can only get better now.
April 20th, 2009 02:04 PM
1943 - 2009
The Court's ruling only applies to the States within its jurisdiction, which are AK, AZ, CA, HI, ID, MT, NV, OR and WA, plus Guam and the Northern Marianas Islands.
The 9th Circuit ruled in favor of incorporation, meaning that the 2A applies to state governments as well as the federal government.
Good news for CA, tho. The California State Constitution does not have a right to keep and bear arms provision.
The 5th Circuit Court previously ruled to incorporate the 2A to TX, LA and MS.
12 States down, 38 to go.
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.
April 20th, 2009 02:47 PM
It almost makes it a certainty that somebody very soon will sue for relief in the 9th Circuit based on the incorporation ruling, and then that case will get appealed to SCOTUS. That means it is very likely to get that high before the current Administration gets to nominate a new Justice...
“What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia
SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.
April 20th, 2009 03:21 PM
well...no help for us in VA...yet?
April 20th, 2009 03:39 PM
Conflicting Circuit court rulings???
I'd not realized this was the case, else I'd have used it in one of my many exchanges with SD.
Originally Posted by Captain Crunch
So now, at least 2 Circuit courts have held for 2A---and the importance of that is sooner or later either the other courts will agree or the issue will have to be settled by the Supremes.
May take another 30 years :---
April 20th, 2009 04:09 PM
It's a little silly and a little sad that we need to engage this kind of schoolyard nonsense to affirm the 2A rights of citizens.
"The flock sleep peaceably in their pasture at night because Sheepdogs stand ready to do violence on their behalf."
April 20th, 2009 04:48 PM
The only problem is that, on one point (which is conceding a lot, in this instance), SD is right that the only extant controlling SCOTUS precedent is the Cruikshank line of cases, which--although clearly contrary to the overwhelming jurisprudence on the 14th Amendment and virtually certain to be overturned when the issue is directly before SCOTUS--nonetheless provides a basis for the Nordyke case to be appealed. And, since Nordyke could have been decided without delving into the 2nd Amendment/14th Amendment issue, it is possible that SCOTUS could reverse that part of the decision, not on a substantive basis (because SCOTUS almost certainly would agree with the substance of Nordyke's 2A/14A [/U] ruling) but on a procedural basis, because a ruling on that issue was not necessary to decide the case. Alternatively--and the most likely outcome--is that SCOTUS will simply deny certiorari to anyone who appeals Nordyke, leaving the question ultimately open until a "better" case, in which the 2A/14A issue is directly on point, comes along. Then SCOTUS will be able to clearly and definitively overturn the Cruikshank line of cases.
April 20th, 2009 04:56 PM
Which case was that? I thought the Nordyke case would be the first circuit court ruling on incorporation.
Originally Posted by Captain Crunch
April 20th, 2009 05:01 PM
Regarding potential appeals, there's an interesting post over on The Volokh Conspiracy regarding this. The short summary is that the county cannot appeal the decision to the Supreme Court, because they won on the merits (even if they don't like the fact that the circuit court incorporated the 2A on the way to giving them their victory). The plaintiffs could appeal to the Supreme Court, but the Supreme Court probably wouldn't even take the case because there's no circuit split on the question of how the 2A applies to public property.
So unless one side or the other can persuade the full 9th circuit to review the ruling en banc (this ruling was by a 3 judge panel), this case probably isn't getting appealed by either side.
April 20th, 2009 05:11 PM
One of the SPECIFIC points addressed in the case heard by the 9th was whether the 2A / Heller applied to the States, i.e. incorporation. The decision against the plaintiff (the gun show promoter) was on a procedural point. The Court did answer the incorporation question though, applying 2A to the States.
CA does "back into" having RKBA in its Constitution, stating that the US Constitution is the supreme law of the land, but without specifically stating that CA residents have the RKBA. Instead of getting "4" we got "2 + 2" - the same result but not in so many words.
BTW, tomorrow AM, a legislative committee meets for the first hurdle hearing on changing CA from "may issue" to "shall issue" CCW. Hopefully Nordyke came at a very good time.
April 20th, 2009 06:14 PM
Ninth circuit rules 2nd amendment incorporated to states - merged
Second Amendment Foundation
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Bellevue, WA 98005
FAX (425) 451-3959
Second Amendment Foundation Online
NINTH CIRCUIT RULES 2ND AMENDMENT INCORPORATED TO STATES
For Immediate Release: Contact: Alan Gottlieb (425) 454-7012
BELLEVUE, WA – The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.
The majority opinion was written by Judge Diarmuid F. O'Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasionÂ…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.”
Although the court found against the plaintiffs in the case of Nordyke v. King – Russell and Sallie Nordyke, operators of a gun show in Alameda County, CA – the court acknowledged that its earlier position that the Second Amendment protected only a collective right of states has been overruled by the Supreme Court’s 2008 historic ruling in District of Columbia v. Dick Anthony Heller. That was the case in which the high court ruled that the Second Amendment protects an individual civil right to keep and bear arms.
“This is a great victory for advancement of the fundamental individual right of American citizens to own firearms,” said SAF founder Alan Gottlieb. “The Ninth Circuit panel has acknowledged that the Heller ruling abrogated its earlier position on the Second Amendment, and it further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”
SAF attorney Alan Gura, who successfully argued the Heller case before the Supreme Court in March 2008, filed an amicus brief in the Nordyke case. The Nordykes sued when Alameda County banned gun shows at the county fairgrounds by making it illegal to bring or possess firearms or ammunition on county property.
“The Heller ruling in 2008 was the first critical step toward full restoration of the individual citizen’s right to keep and bear arms to its rightful position as a cornerstone of the Bill of Rights,” Gottlieb observed. “This victory in the Ninth Circuit not only reinforces the Heller ruling, it expands upon it.”
Court Ruling pdf
The Second Amendment Foundation (Second Amendment Foundation Online) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
April 20th, 2009 06:25 PM
This article would be a good addition to the thread.
"Wise people learn when they can; fools learn when they must." - The Duke of Wellington
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