9th Circuit and 2A Incorporation

[Al Norris]

From the "In case no one is watching Dept."

After the flurry of cases filed in the aftermath of Heller, we all thought it would be a few more years before the matter of incorporation would reach any Circuit, let alone the SCOTUS. Well, we were all wrong.

The following are the briefs filed in the ongoing Nordyke, et al v. King, et al case, before the 9th Circuit as of 10/03/08:

Litigants Briefs:
10/3/08 SUPPLEMENTAL REPLY BRIEF: RUSSELL ALLEN NORDYKE; et al.
10/3/08 APPELLEES’ BRIEF IN REPLY TO SUPPLEMENTAL BRIEF OF APPELLANTS [opposition brief]

Amicus Curiae Briefs:
10/01/08 Amicus Curiae: The National Rifle Association of America and California Rifle & Pistol Association brief
10/01/08 Amicus Curiae: Professors of Law brief
10/01/08 Amicus Curiae: Professors of Law, History, Political Science or Philosophy brief
10/03/08 Amicus Curiae: SECOND AMENDMENT FOUNDATION, INC.
10/3/08 SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE

The one I would like to comment upon, is the Brief filed by the SAF. As it is the most presuasive of the amicus briefs filed.

On 2 Oct. 2008, the Second Amendment Foundation (SAF) has submitted an amicus curiae brief in the revived Nordyke case that is now before the 9th Circuit. Alan Gura is the counsel for the Amici and has written one heck of a brief.

There are 5 points to the brief.

1) The Court (9th Circuit) is required by Heller to consider the question of incorporation, and that such a question cannot use Cruickshank, et al, as they are relics of the pre-incorporation era, and that the previous controlling precedents (i.e.Fresno) of the 9th are now obsolete, via Heller.

2) Makes the argument that under modern incorporation doctrine, the 2A is already incorporated, and that is is only required for the Courts to acknowledge this. This argument stems from the fact that the SCOTUS has ruled that the right in question is a fundamental right. Such a right, under incorporation doctrine, is necessary for the ordered Liberties of a free society.

3) That the 2A does nothing to interfere with the normal police powers of the State. Here, Gura equates what Alameda County really wants is a police-state, and this is untenable under the Constitution.

4) That the BOR was to be and is an improvement over the English Bill of Rights. It was never meant to be the same or less than their English counterparts, which is the argument of the appellee's.

and 5) That lawful commerce in arms is a protected subsidiary right of the 2A. That is, the State may not curtail the working implements of the right without running afoul of the right. In this, the power to regulate firearms does not reach to the power to deny firearms. A crucial holding in Heller.

Incidently, it is in this section (5) that that the amici brief states that the only reason for the prohibition of gun shows at the county fairgrounds, in light of other lawfully entertained permissions (literally, exceptions to the gun regulations), is to deny (suppress) the exercise of 2A rights.

I particularly liked the first section, as it deftly kills any reliance upon Cruickshank, Presser and Miller as any kind of valid precedent under current incorporation doctrine. Along the way, Gura makes the argument that the 14th was a direct response to Barron (by overturning it through amendment) and how the Court has begun (and continues) to correct its Slaughter-House decision.

To those of you (absolutists) that did not like some of Gura's holdings in his briefs and Orals in Heller, you will likewise take exception to some things said in part III.

In light of Heller, it will be interesting to see how the appellee's climb out of this hole that has been dug. As it is, the appellee's only real argument is that the 2A is not incorporated. None of their arguments state why (with any credibility) it should not be incorporated within the Due Process Clause of the 14th.

Granted, there are some serious arguments against incorporation, but this case has the best chance, as the panel that is reviewing the case has all but said they would incorporate.

 

[BillCA]

That's a good analysis of Gura's brief, Al. Upon reading it, the brief clearly shows that Alameda permits certain gun-related activities while banning those it does not like.

I'm reading the opposing SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE and it is not terribly persuasive.

1. They argue that the 2nd isn't incorporated so the appeal is already settled. But they cut their own throats by saying the judge in Fresno said that until the Supreme Court’s previous decisions in Cruikshank and
Presser are overturned the 2nd applies only to the federal gov't. (Hey, guess what, folks!) In Heller the court made it clear that both cases were no longer controlling due to modern incorporation standards.

2. They take the stance that, even if incorporated, because Nordyke is engaged in commercial sales Heller doesn't apply because there is no claim of violating possession in the home. Intead they claim that the case is about regulation of commercial sales; prohibiting carrying of arms in sensitive locations...such as government buildings; which Gura trashed in his brief. They also miss the point. They show there are "other venues" for purchasing a firearm in Alameda county (29 FFL holders) but fail to address which of these are capable of either hosting a gun show or providing the ability of hundreds of people to assemble for the same purpose as a gun show. It's like saying "We can ban any assemblies of persons on public grounds because you can always use private property or have their discussions on the Internet."

3. They argue that "Strict Scrutiny" is not correct and that the "reasonable regulation" standard is, mostly because that is what has been used in the past. They entirely neglect the fact that "past precedent" was based on the lack of the 2nd being defined as a fundamental, individual right as found in Heller. This entire section crumbles when faced with the need to treat the 2nd Amendment as a fundamental right.

4. Their claim that Alameda can manage it's own property as it sees fit and/or that it has a duty to maintain safety and order on government property falls far short. Gura points out there is little evidence of unsafe or unlawful conduct at gunshows. Additionally, while the county is not obligated to allow use of the fairgrounds for any purpose, the record shows the intent is to deny exercise of 2nd Amendment rights by prohibiting the selling, trading or purchasing of firearms as Gura's brief describes.

5. They make a claim that the "carrying" and "possession" of firearms in a public place has long been prohibited. However, the laws they describe refer to loaded weapons and/or inciting fear by possessing a firearm, not safely carrying an unloaded firearm to a place where it may be sold, traded or appraised by a dealer. By their definition, one could not transport a weapon between home and a dealer or range without violating the law.

Their arguments follow only the most narrow parts of the SCOTUS decision, claiming that the 2nd only protects rights "in the home" because that's how Heller was decided. The completely neglect having to adjust scrutiny standards, ignore the implications that the right to own a firearm must be accompanied by the right and ability to purchase one and that the county cannot show a "compelling public interest" in prohibiting guns shows on the grounds of "safety".

 

[grymster2007]

In the the supplemental reply brief (I haven't read the opposition brief yet) I found:

Next, like a magical incantation, Appellees keep citing a brief
phrase from a footnote in a ten year old book by Justice Scalia

Can someone point me to what Scalia wrote?

 

[Al Norris]

"Second, as Justice Scalia has explained, “properly understood, [the Second Amendment] is no limitation upon arms control by the states.” Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law, 136-137, n.13 (Princeton University Press 1997)." Page 2 of the Appellees Brief.

 

[Al Norris]

A bit of background...

The 9th Circuit panel consisting of Judges Alarcion, O'Scannlain and Gould that first ruled on Nordykes facial challenge, have retained jurisdiction. In light of Heller the question is now presented as an as applied challenge.

What is clear from the prior ruling is that the panel strongly suggested (and Gould's concurrence stated plainly) that it did not believe that the previous Second Amendment rulings in Hickman and Silveira were good law.

Gould deliberately proceeds to show how he would view arguments for incorporation. Under Heller, Fresno would not be controlling.

I believe that Don Kilmer (attny for appellants) and Gura both address all the issues Gould laid out. By inference, all three Judges would incorporate. Whether the as applied challenge would succeed in whole or in part is another story.

 

[grymster2007]

Ya know; I’m a pretty simple guy and certainly could not be considered even remotely knowledgeable in the field of law. But I can read (yeah, yeah – surprise to some I’m sure) and when I read this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

I have to wonder how it could possibly be construed to mean anything other than incorporation of the entire BOR.

That aside, I’ve been reading the briefs and find them fascinating.

 

[Al Norris]

A lot of us, use FindLaw.com to research and read about many of the cases we talk about. I have found that Cornell University uses a much better format, when you can find the case there.

grymster2007, to understand how the P&I clause (the one you quoted) was read out of the amendment (and thus, out of the Constitution), you should read the decision that did this.

Slaghterhouse Cases at Cornell. You can contrast what Justice Miller writes in his majority opinion and contrast that with the 3 dissenting opinions.

To help save you time: Justice Miller spends a few paragraphs on the civil war and its aftermath. He expounds upon how the 13th, the 14th and the 15th were passed in regards to giving only the Negro or African race the rights of all free men. Then after expounding upon the meaning of the phrase, Privileges and Immunities, he writes:

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

What he is saying is that the nature of the relationship between the Federal Government and the State Government cannot have been meant to change in the manner the amendment suggests. The majority of the Court rejects the plain meaning of the amendment, as it would apply to all and not just to the former slaves.

That is how the P&I clause has been read completely out of the Constitution by a single case before the Supreme Court. A Court that refuses to believe change can happen.

 

[grymster2007]

What he is saying is that the nature of the relationship between the Federal Government and the State Government cannot have been meant to change in the manner the amendment suggests. The majority of the Court rejects the plain meaning of the amendment, as it would apply to all and not just to the former slaves.

Thanks Al. That's what I thought he said, it was just that the circuitous route he took left me wondering if I had followed it all.

So how is it that a single decision, made more than one hundred years ago, continues to thwart the explicit intent of the 14th amendment? Was the decision ever tested? If so, how did it survive?

 

[Al Norris]

grymstr, the best I can do is to point you to this document (PDF) from the Cato Institute.

 

[Bartholomew Roberts]

So how is it that a single decision, made more than one hundred years ago, continues to thwart the explicit intent of the 14th amendment? Was the decision ever tested? If so, how did it survive?

Slaughterhouse was pretty plainly a Court resisting the clear intent of Congress expressed in an amendment - at the same time, they were able to do that because there was wide popular support for not giving minorities the same rights as whites despite the 14th Amendment.

My own opinion would be that this is a case of overruling stare decisis without actually overruling it. Around the 1930s, the doctrine of selective incorporation through due process was invented to apply the Bill of Rights to the states. This didn't overrule Slaughterhouse, which still remains a good point of law to this day on the extent of the P&I clause; but it sure did come up with a different outcome than a strict following of Slaughterhouse would allow.

This basically let the Supreme Court selectively apply the Bill of Rights to states piece by piece - rather than trying to swallow the elephant whole, it let them carve it up bit by bit and eat it a piece at a time.

By the time it was politically practicable to actually eat the rest of the elephant, there wasn't much point left to it because there was just a couple of bites left (one of which is the Second Amendment).

I think this case has great potential though. A recent ABA article noted that facial challenges have had a very difficult time with this Court and that as-applied challenges are much more successful. On top of that, I think a supermajority on this Court realizes that Slaughterhouse was bad law and wants it to go away - not only does this case offer an excellent basis to incorporate the Second Amendment under the doctrine of selective incorporation - it also offers an intriguing chance to overturn Slaughterhouse outright and right past wrongs. I don't know if the Court would go that far given that two small portions of the BoR (right to indictment by grand jury and something else I can't remember) have been specifically held not to be incorporated against the states in previous cases; but it does dangle some interesting bait out there for them.

 

[maestro pistolero]

"Second, as Justice Scalia has explained, “properly understood, [the Second Amendment] is no limitation upon arms control by the states.” Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law, 136-137, n.13 (Princeton University Press 1997)." Page 2 of the Appellees Brief.
__________________

This DOES seem at odds with the argument for incorporation. What am I missing here?

 

[raimius]

This was written before the "right of the people" actually applied to individuals...(at least at the federal level).
So, perhaps, the interpretation changes with the Heller ruling. Thoughts?

 

[maestro pistolero]

This was written before the "right of the people" actually applied to individuals...(at least at the federal level).
So, perhaps, the interpretation changes with the Heller ruling. Thoughts?

But since it was also Scalia who clarified it as an individual right, it does seem to shed doubt on what Scalia might think of incorporation via the 14th.

 

[bikerbill]

All interesting arguments ... however, I know most of you are aware of the Ninth Circuit's record of extremely liberal decisions, I'm not convinced they will reach the decision we're hoping for ... of course, they're also (I believe) the most overturned Circuit ...

 

[Socrates]

"Liberal" in it's true meaning, means to evaluate everything put before you, and make a reasoned decision.

The 9th circuit, Judge Thelton Henderson in particular, has been an advocate for civil rights. He was also my advanced ConLaw teacher, Euguene Swan's friend. Both went to Boalt.
Both are black.

To finally get rid of The Slaughterhouses Cases would be a legacy they would like. Also, the Incorporation of the 2A would lead to more minority LEGAL gun ownership, and, I believe, a reduced amount of crime. The gangs already have guns. I can't help but think that Henderson is well aware of Contra Costa County's good old boy network, limiting CCW permits by race, and, that it might make him determined to do something about it, given the chance.

I do have hope that their opinions are shared by the judges reviewing this issue.

As a liberal, how could you NOT be for incorporating the Bill of Rights against the states, and, insuring "liberty and justice for all"?

 

[Al Norris]

I believe the base problem is that "Liberal" no longer means "Classical Liberal," which is what you are describing.

 

[Socrates]

Al, I agree. It really means 'facist-liberal'.

 

[divemedic]

Actually, I think that Liberal in the United States today is closer to socialism. The current version of the Republican party's version of religious conservatism is closer to fascism.

 

[Al Norris]

Let's not take this labeling (of political beliefs) any further.

It adds nothing to the debate on the merits of Nordyke before us.

 

[Socrates]

My point in bringing this up is simple: you may have real, old liberals in positions who for a variety of reasons, would like to see the Slaughterhouse cases destroyed as precedent, and, the 14th amendment properly incorporating the Bill of Rights, and, with a bit or irony, they would have to include the 2nd amendment, as well...AND, that some of those classical liberals ARE Federal Judges in the 9th circuit...