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Incorporation Thread - Nordyke is out!!
- Thread starter ilbob
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Wildalaska
Moderator
I read it.
Wow.
WildwhowouldhavethunkitAlaska ™
Wow.
WildwhowouldhavethunkitAlaska ™
carguychris
New member
Much good in there, specifically this on Page 29 of the PDF.
The decision ultimately rejects Nordyke's attempt to overturn the county's gun ban at the fairgrounds by concluding that the county has a compelling reason to prohibit firearms in public gathering places, and that such a ban "...does not directly impede the efficacy of self-defense or limit self-defense in the home." (Page 31)
RKBA diehards may be upset by this, but the fact remains that this decision incorporates the Second Amendment, and that's big. Real big.
{emphasis mine}
The decision ultimately rejects Nordyke's attempt to overturn the county's gun ban at the fairgrounds by concluding that the county has a compelling reason to prohibit firearms in public gathering places, and that such a ban "...does not directly impede the efficacy of self-defense or limit self-defense in the home." (Page 31)
RKBA diehards may be upset by this, but the fact remains that this decision incorporates the Second Amendment, and that's big. Real big.
Technosavant
New member
It does indeed look like Nordyke lost a small battle, but scored a huge win for the RKBA community at large at the same time. I feel bad for them, but it's one heck of a consolation prize.
Any comment on how this will apply nationwide? Or will it pretty much be limited to the jurisdiction of the 9th Circuit? If the latter, I can't imagine that it would be long until it applies to the others, since the 9th might well have been one of the least likely to declare the 2nd Amendment incorporated.
Any comment on how this will apply nationwide? Or will it pretty much be limited to the jurisdiction of the 9th Circuit? If the latter, I can't imagine that it would be long until it applies to the others, since the 9th might well have been one of the least likely to declare the 2nd Amendment incorporated.
MajorWhiteBoy
New member
i tried to follow this, but maybe someone can dumb it down for me? i have no idea what nordyke, rkba, or legalese means.
maestro pistolero
New member
Stick around, you'll catch up!
RKBA=Right To Keep And Bear Arms.
Nordyke Vs Alameda = A court case in CA against a county that banned gun shows, but that also became a case about whether the 2nd amendment (RKBA) applies to the states or just to the federal government.
Legalese = Legal terminology that is difficult to understand by the average person.
RKBA=Right To Keep And Bear Arms.
Nordyke Vs Alameda = A court case in CA against a county that banned gun shows, but that also became a case about whether the 2nd amendment (RKBA) applies to the states or just to the federal government.
Legalese = Legal terminology that is difficult to understand by the average person.
MajorWhiteBoy
New member
sorry, i know what the word legalese means, i just meant when was trying to read the court decision, i couldn't follow.
so, they're saying that the second ammendment can't just be up and overturned by a local government?
so, they're saying that the second ammendment can't just be up and overturned by a local government?
IANAL just a humble auto mechanic
They are saying that it is a fundamental right to individual Americans as well as a right fundamental to the preservation of order and liberty in our republic. Which is pretty huge considering this court was both overturning it's previously stated stance that the 2nd amendment was a collective right and incorporating it via the due process clause of the 14th. The 9th circuit had previously found against incorporation when the plaintiff used the privileges and immunities clause. This sort of thing doesn't happen everyday. The other reason it's big is it sets up a conflict within federal circuit courts that makes it much more likely for the SCOTUS to grant citori to an incorporation case, either this one if Alemeda or Nordyke appeal or the Chicago case.
They are saying that it is a fundamental right to individual Americans as well as a right fundamental to the preservation of order and liberty in our republic. Which is pretty huge considering this court was both overturning it's previously stated stance that the 2nd amendment was a collective right and incorporating it via the due process clause of the 14th. The 9th circuit had previously found against incorporation when the plaintiff used the privileges and immunities clause. This sort of thing doesn't happen everyday. The other reason it's big is it sets up a conflict within federal circuit courts that makes it much more likely for the SCOTUS to grant citori to an incorporation case, either this one if Alemeda or Nordyke appeal or the Chicago case.
carguychris
New member
In short, yes.
"Incorporation" is a legal doctrine by which the concepts outlined in Section One of the Fourteenth Amendment are applied to the states, and, by extension, to local municipal governments. Quoting from the amendment:
This section of the Fourteenth Amendment says that the states can't take away individual rights that are granted by the Bill of Rights in the Constitution. Such protected rights are "incorporated".
D.C. vs. Heller held that the Second Amendment protects a pre-existing individual right. In light of this decision, it should follow that this right is protected against infringement by the states. However, like other incorporated rights, there is a process of court precedent that must be followed to get to that point. This process is complex because no Constitutional right is unlimited. To use a classic example, the First Amendment does not give you the right to scream "FIRE!!" in a crowded theater, to incite a riot, or to threaten to kill the President. The incorporation process will include lots of give-and-take to determine what restrictions state and local governments can and cannot enact.
Glenn E. Meyer
New member
So will this have to hit the SCOTUS for the rest of the country?
grymster2007
New member
Other than that the Nordykes seem to have gotten the shaft, this is what I find most distressing:
This can be used to NUKE the anti 2A garbage and their laws in CA and HI. It addresses CCW by actively repealing Hickman v Block which had made CCW exclusive discretion of sheriffs to rule as gods over who can and cannot exercise their 2A rights. Now lawsuits over CCW denial have standing with the 2nd Amendment. If California can get carry rights nailed down, the 2nd Amendment fight will vastly turn in our favor and the anti gun forces can be largely eradicated because gun ownership in highly populated areas will become practical again and thus more people will join us.
Carry rights in CA is THE big prize.
Carry rights in CA is THE big prize.
Technosavant
New member
I believe other circuit courts can take "judicial notice" of the 9th's decision in order to apply it inside their own jurisdiction. I'm not sure what that would take (if they can do it on their own hook or if a case has to come before them). It going to SCOTUS would enshrine it nationwide, but it would also open the door to it being overturned (the decision was quite reasonable, and given Heller, I don't think that's likely).
For now it only applies to those areas under the 9th Circuit jurisdiction, but I have a feeling it will propagate eventually.
I thunked it! See my posts on the original thread (see posts #1 and #5).Wildalaska said:
It looks like the Nordykes took one for us, in order to get incorporation.
Folks, this is huge. No one thought that in less than a year, that any Circuit Court would get an incorporation case and actually rule in our favor. Most especially, the 9th Circuit.
Not necessarily, Glenn. It could be that the Supreme Court will wait a while to see what the other circuits do. Remember, we still have to see what the 7th Circuit will say in the combined Chicago cases. Should the 7th take judicial notice of the "persuasive precedent" (but not binding precedent) of the 9th and incorporate, it will be another huge win.Glenn said:
The 5th Circuit has all but incorporated and it won't take much to push them over, if a case comes their way and the 9th and 7th have incorporated. The D.C. Circuit has already been affirmed by the SCOTUS with the Heller decision, so it is binding upon the entire Federal Government.
So what exactly is so grand about this?
Even though there is nothing within the California Constitution about the RKBA, it is now a fundamental right. For all Californians.
A Californian who is denied issuance of a concealed carry permit under that States "may issue" laws, now have standing to challenge the law (the decision beat Hickman v Block into dust).
I'm sure that those of you in CA, can think of all kinds of laws this may affect over a period of time!
Since this was a three judge panel, wherein all the judges agreed, it is instructive by what Judge Gould (a Clinton appointee) wrote: "Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment."
What I highlighted above is where it begins.
Several goods blogs on the Volokh Conspiracy page.
David Kopel has a 16 minute Podcast on Nordyke v. King.
To read the rest of the Volokh blogs, click here.
Short sighted. Try thinking in terms of the First!raimius said:
Interesting side note to all of this. Not a single major newspaper of television station has the news of this extraordinary decision. Even the Brady Bunch is silent.
This should be a very telling point to everyone about the "agenda" of the MSN.