Incorporation Thread - Nordyke is out!!

[Jim March]

This also casts yet more doubt on California's ability to discriminate against out-of-staters on CCW.

Right now Cali residents can (often only theoretically...) score CCW. Out-of-staters can't. And open carry (loaded) is completely banned while open-carry (unloaded) nets you major harassment at minimum and false charges of either loaded-carry or "disturbing the peace".

This matters because in Heller, footnote #9 cites to seven prior cases that all say the same thing: limitations on or even bans of concealed carry don't violate the 2nd (or state-level equivalents) so long as open carry is legal. And Heller specifically said that unloaded guns don't cut the mustard as support of the right to self defense in the home; there's no reason to suppose street (or woods for that matter) carry is any different.

Put another way, carry of SOME sort has to be legal. In Cali right now the right to carry is completely stomped on for out-of-state visitors even if they have home-state CCW and is almost completely stomped on for residents.

While the difference seems slight, it does matter: states are absolutely hard barred from discriminating against visiting residents of other states. That was true before today but the arguments is now "supercharged" and I'll be re-writing my pre-canned motion on the subject as soon as I can.

The other big target is Hawaii, where open-carry (loaded or otherwise) is totally banned and concealed permits exist in theory but zero are issued.

 

[Stiofan]

I dont mean to be cynical, but the 9th is one of the worst courts for our side. I find it hard to believe they would give in if they didnt have something up their sleeve.

They actually refused to hear the plantiff's motion on the 2nd Amendment early in the case, saying that the 2nd Amendment only guaranteed a collective right to keep and bear arms and as individuals, they had no standing to include that motion.

After Heller, they allowed plaintiffs to refile this motion and they reversed their earlier ruling.

 

[maestro pistolero]

Thrilled about getting incorporation, but . . .

. . . according to the court, how exactly is county property a sensitive place any more than a downtown gun shop? If guns can be prohibited on any county property, any city property, and any federal property, Then what would remain of the second amendment? Government property is the PEOPLES property.

There is way too much room for mischief here.

Does anyone have a sense of whether challenging this decision would risk overturning incorporation, since they weren't relying on non-incorporation to deny it?

 

[publius42]

Why am I sometimes amazed when a court agrees with me?

Probly just me.

 

[rantingredneck]

Is it just me (I haven't re-read Heller in awhile), or does this opinion go much farther along the resisting government tyranny train of judicial thought than Heller? What I remember of Heller, they stuck their toe in that pond but relied much more heavily on the right of personal self-defense in their opinion. This one seems to get very deep into colonial and reconstruction era history of government oppression and the people's right to resist it.

Could this not have greater implications down the road (as precedent language for later litigation) for repeal of laws banning specific types of weapons that would be most useful to resist a modern army? (AWB (as applied to states)/NFA implications?)

 

[swman]

Doesn't apply to Illinois where it could certainly be used there.

 

[carguychris]

. . . according to the court, how exactly is county property a sensitive place any more than a downtown gun shop?

The opinion makes it clear that the justices of the Ninth Circuit think the county has a compelling public health and safety interest in prohibiting guns from places where large numbers of people gather. They argue that the fairgrounds is a "sensitive place" as referenced in Heller (pg. 33 of the PDF).

In essence, they're saying that the individual's right to self-defense is overridden by the need to provide safety for the general public. I don't agree with their argument in this case and I think there's good reason to debate it, but IMHO it's hard to say whether this particular court case is the best avenue for that. After all, the whole reason behind the lawsuit is to allow a gun show to take place. Establishing a right to self-defense in public gathering places still wouldn't necessarily guarantee that the promoters would be able to hold their show, so it's hard to say how much further they will try to carry this argument.

If guns can be prohibited on any county property, any city property, and any federal property, Then what would remain of the second amendment? Government property is the PEOPLES property.

I don't think any mainstream court will agree with the absolutist argument that the 2A allows citizens to carry arms on all government land, including such places as courthouses, jails, and military bases. However, I think there's certainly room to argue whether they should be allowed in public gathering places.

There is way too much room for mischief here.

Yes, there is. However, IMHO there will probably be better opportunities to argue how far the right to self-defense extends into the public sphere. If an anti-gun local government tries to prohibit legal CHL holders from carrying in public gathering places- which IMHO is nearly inevitable- it will provide a much better avenue for arguing this point.

Does anyone have a sense of whether challenging this decision would risk overturning incorporation, since they weren't relying on non-incorporation to deny it?

I don't get that sense.

 

[publius42]

If they allow shows for other legal products at the fairgrounds, why not allow shows for legal products with specific constitutional protection? Seems to me that if they're going to allow any shows, gun shows should be allowed. I hope they appeal and win on that issue.

 

[Yellowfin]

The opinion makes it clear that the justices of the Ninth Circuit think the county has a compelling public health and safety interest in prohibiting guns from places where large numbers of people gather. They argue that the fairgrounds is a "sensitive place" as referenced in Heller (pg. 33 of the PDF).

That was consolation padding to keep them from going en banc and delaying further or pushing the issue again. Since they incorporated, SPECIFICALLY saying Hickman v Block is dead, CCW access will be opened up and the issue will be moot.

 

[ilbob]

That was consolation padding to keep them from going en banc and delaying further or pushing the issue again. Since they incorporated, SPECIFICALLY saying Hickman v Block is dead, CCW access will be opened up and the issue will be moot.

Just who would be going en banc?

The county can't because they WON the case.

This is a huge win and you guys are worried about minor details. Nothing in the dicta matters a whole lot. Its just musings of the judges. What matters is their findings.

 

[Bartholomew Roberts]

The county can ask for an en band rehearing. For that matter the other Judges of the 9th could ask for one (though it is unlikely). The Volokh link in Antipitas's post iis a great resource to understanding the decision

 

[carguychris]

If they allow shows for other legal products at the fairgrounds, why not allow shows for legal products with specific constitutional protection? Seems to me that if they're going to allow any shows, gun shows should be allowed.

IMHO they would have an uphill battle. The 2A guarantees the right to bear arms, not to conduct commerce in arms. I seriously doubt that Nordyke's attorneys could successfully argue that the lack of a gun show at the Alameda County Fairgrounds is a serious obstacle to anyone's ability to legally defend themselves. Firearms are widely available elsewhere. A widespread ban or unreasonable regulation on the sale of arms- such as a total ban on gun stores throughout Alameda County- could act as a de-facto gun ban, and would certainly be very difficult to defend under D.C. v. Heller, but that's not the case here.

The justices touch on this point on Pages 31 and 32 of the decision. Using an abortion court case as an example, they argue that just because something is protected under the Constitution and/or court precedent, that does not imply that the government has an implied duty to ensure that it's readily available. As it relates to this court case, and regardless of my views on abortion (which IMHO are irrelevant here and will not be discussed), I agree with this argument.

I strongly oppose widespread restrictions on gun sales, but OTOH I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

 

[Wildalaska]

I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

Bingo

WildathoughtfulanswerAlaska ™

 

[maestro pistolero]

I don't think any mainstream court will agree with the absolutist argument that the 2A allows citizens to carry arms on all government land, including such places as courthouses, jails, and military bases. However, I think there's certainly room to argue whether they should be allowed in public gathering places.

I am not so much of an absolutist as my post could lead you to believe. But beaches are public gathering places. So are parades, fireworks displays, parks, bus stops, and movie theaters and restaurants.

Any place where people gather could be designated a sensitive place until there is a legal definition of sensitive.

Having won incorporation, we could see the right abrogated, simply by designating any public place to be sensitive.

 

[kraigwy]

I'm quite supprised it came out of the 9th Circut

But, sitting that aside, it was a great read:

In my opinion, not just in regard to case law protecting the 2nd Amendment, but the history asspect.

(I like history).

Maybe in reading (or scimming over) other cases I missed it, but in this case I found the History this Case present quite interesting. Not just in the reasons for drafting, but in applying the 2nd Amendment to the states with the 14th Amendment.

Regardless of what one thinks of the 2nd Amendment, the history this case provides makes it a great read.

To bad we can't force lawmakers to read this case in its intirity.

 

[2edgesword]

I don't think this is going to be much help to out of staters because the 9th circuit was careful to mention that the focus of the self-defense right is in the home. This decision will only help out of staters if you can extend home to include our hotel room.

Does this decision help push the issue of shall issue in those states where it is currently may issue?

 

[moon1234]

The problem with this decision is that the county made an arbitrary decision that this was for public safety. There is NO evidence that gun shows threaten public safety when held on public property.

LARGE numbers of people gather in hotel conference rooms and other large venues for the exact same purpose. The sole reason this ordinance was enacted was to ban a single group from RENTING a government owned space for their show. This is no different than a car show, dog show, etc. all renting the same space.

If you want to carry the abortion example forward the county could pass a ban on people renting the fairgrounds for a pro-life rally where people will come to pray, show videos, etc. stating that this activity can threaten the public safety because the material may incite people to perform criminal acts. We all know this to be false, but it is the same thinking that they used in the gun ban.

They do know more people are killed in car accidents by a very large number than by a gun discharging each year right? Do you think they would ban a car show where sports cars were being sold because they threaten the public safety? It is much more likely that a car bought at the car show will be driven by a drunk driver who will kill several people when he crashes it into some family's mini-van.

While I like the incorporation, I find their logic in approving the ordinance terrible. It is unsupported by the facts and is completely based on emotion.

 

[maestro pistolero]

that the focus of the self-defense right is in the home.

Not necessarily. That just happened to be the extent to which Gura was willing to push the supreme court in Heller. And Heller is what the 9th circuit was relying on.

Limiting the case (Heller) to carrying on the home was wise for the argument at hand, because it focused the Supreme Court on the one place in which most folks consider the right of self defense to be sacred. It may have even helped get the desired ruling.

Now that we have 2A as an individual right, and incorporation in the 9th, it can (and will) be argued that fundamental civi rights don't end at your doorstep.

 

[maestro pistolero]

The total absence of this groundbreaking decision

on ANY mainstream media outlets is more than just a little conspicuous, isn't it? I have to shake my head.

Wasn't it George Stephanopoulos that said that the key to the Clintons' uncanny ability to weather public scrutiny, was their utter shamelessness?

It seems the mainstream media has torn a page from the Clinton's playbook.

My apologies for the political analogy.

 

[JuanCarlos]

I'd like to believe that the lack of coverage in major outlets (so far all I'm seeing as far as "mainstream" media goes would be a few local papers in the region) has something to do with this being a largely expected outcome. After all, was there every really any chance that it wouldn't be incorporated?

I'm trying really hard.

Alternately, I was trying to believe that the press is waiting until the decision is final (since there may be some theoretical chance if it being heard en banc).


I can't come up with any other reasons. I mean, ignoring a ruling certainly won't make it go away or anything. And it's not like keeping it on the down low will delay any challenges based on this; it's already all over the kind of outlets that any likely challengers will be familiar with. Including...well, here.