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Nordyke V King
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ^ | April 20, 2009 | Arthur L. Alarcón, Diarmuid F. O’Scannlain, and Ronald M. Gould

Posted on 04/20/2009 10:50:34 AM PDT by atomic_dog

[excerpted]

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 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.

(Excerpt) Read more at ca9.uscourts.gov ...


TOPICS: Government; News/Current Events; US: California
KEYWORDS: banglist; rkba
The Ninth Circuit hits a home run. Pandora's box is open for business.
1 posted on 04/20/2009 10:50:34 AM PDT by atomic_dog
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To: atomic_dog

Hopefully they’re breaking from their tradition of “Most Frequently Reversed”.


2 posted on 04/20/2009 10:51:52 AM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: atomic_dog

bookmark.


3 posted on 04/20/2009 10:53:01 AM PDT by IrishCatholic (No local Communist or Socialist Party Chapter? Join the Democrats, it's the same thing!)
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To: atomic_dog

Someone please explain this to we the unwashed.....please


4 posted on 04/20/2009 10:55:46 AM PDT by stockpirate (The NAZI's called themselves - "The Children of the New Age of World Order")
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To: atomic_dog

Wow!!!


5 posted on 04/20/2009 10:57:22 AM PDT by jjm2111
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To: atomic_dog
King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

Must be some of those terrorists that DHS warned us about.

6 posted on 04/20/2009 10:59:00 AM PDT by 50cal Smokepole (It's only recoil)
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To: atomic_dog
newsflash ... sun to set in the East and watch out for pork in the treetops.

Catch this from the background portion of the opinion: Supervisor Mary King had “gotten the run around from spineless people hiding behind the constitution ..."

Hiding behind the Constitution, Mary? Better take another look at your oath of office, you idiot.

7 posted on 04/20/2009 11:00:03 AM PDT by NonValueAdded (May God save America from its government; this is no time for Obamateurs. Emmanuel = Haldeman?)
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To: stockpirate
Someone please explain this to we the unwashed.....please

Basically, I think it means that states can't usurp the second amendment via state or local law.

Anyone want to add or correct me on this?

8 posted on 04/20/2009 11:03:40 AM PDT by EGPWS (Trust in God, Question everyone else)
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To: NonValueAdded

This means the States in the 9th Circuit (West Coast and Mountain West) have to follow the 2nd Amendment.

Most of the Federal Bill of Rights applies to the States through the 14th Amendment, the 2nd Amendment historically has not.


9 posted on 04/20/2009 11:07:00 AM PDT by DGodbey
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To: DuncanWaring
Hopefully they’re breaking from their tradition of “Most Frequently Reversed”.

Not exactly ... in getting this one right, it was necessary for them to reverse themselves albeit with the notion that SCOTUS would if they didn't. Dripping with irony, no?

I'm not sure this is a complete victory as I think choosing a direct application of the Second would be better than using the Fourteenth, but reserve the right to revise and extend my remarks.

10 posted on 04/20/2009 11:07:09 AM PDT by NonValueAdded (May God save America from its government; this is no time for Obamateurs. Emmanuel = Haldeman?)
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To: stockpirate
"Someone please explain this to we the unwashed.....please"

In a nutshell, this means that the right that is identified in the second amendment applies to all Americans. It sounds silly to us I know. What Heller basically stated was that the second amendment was an individual not a collective right. If this is not overturned by the U.S. Supremes, that means that all 50 states have to recognize the right to keep and bear arms as an individual and not collective right.

For all the lawyers out there, they may lay it out better, but I believe this is generally what the issue is.
11 posted on 04/20/2009 11:08:04 AM PDT by Old Teufel Hunden (iIt)
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To: NonValueAdded
"“gotten the run around from spineless people hiding behind the constitution ..."

That is one of the most shocking statements I have ever heard come from a government employee at any level.

I wonder if she feels the same contempt for people who "hide behind" the Constitution when refusing to sit at the back of the bus, eat at the "black" counter or have the gall to go to a all white school. I'm guessing she doesn't.

12 posted on 04/20/2009 11:09:29 AM PDT by Big_Monkey
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To: atomic_dog
Pinch me...I must be dreaming.

Oh I get it they feel free to do this because The Great Apologizer is going to sign off on the UN treaty making guns illegal for anyone but governments and security professionals to own.

Pardon my momentary excitement.
13 posted on 04/20/2009 11:09:46 AM PDT by Sudetenland (Congress has too many politicians and Leftistlators and not enough Constitutionalists.)
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To: atomic_dog

NOTE: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!


14 posted on 04/20/2009 11:10:31 AM PDT by 2harddrive (...House a TOTAL Loss.....)
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To: Old Teufel Hunden

This applies only to the States within the 9th Circuit.


15 posted on 04/20/2009 11:11:56 AM PDT by DGodbey
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To: Old Teufel Hunden

This ought to get the liberals panties in a knot. More like a gigantic wedgie.


16 posted on 04/20/2009 11:13:28 AM PDT by b4its2late (Ignorance allows liberalism to prosper.)
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To: Big_Monkey

To keep your same theme, what about those people hiding behind the constitution allowing her to vote.


17 posted on 04/20/2009 11:15:43 AM PDT by Old Teufel Hunden (iIt)
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To: atomic_dog

Amazing. This is the 9th?

Maybe there is hope after all.


18 posted on 04/20/2009 11:16:57 AM PDT by Ramius (Personally, I give us... one chance in three. More tea?)
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To: DGodbey
"This applies only to the States within the 9th Circuit.

What? No, I don't believe that's accurate. Unless this is set aside by SCOTUS, this will be cited in all relative cases regardless of Appellate district in which they may fall.

19 posted on 04/20/2009 11:17:01 AM PDT by Big_Monkey
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To: 2harddrive

I think all of us agree with you, but we have to play the game here and make it “legal”. I will find this amusing because it should make national news and we’ll see if “the one” is asked to comment on it. Yes, I believe the 2nd amendment says individuals have a right to keep and bear arms and the 14th amendment is the incorporation amendment. What will be left unsaid is he wants to get rid of the 2nd and make the incorporation of it moot.


20 posted on 04/20/2009 11:19:32 AM PDT by Old Teufel Hunden (iIt)
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To: Big_Monkey

It is only binding precedent in the 9th Circuit (pretty much most of the western us). Other circuits may refer to it, but they’re free to ignore its holding.


21 posted on 04/20/2009 11:21:43 AM PDT by NinoFan
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To: NinoFan
"Other circuits may refer to it, but they’re free to ignore its holding.

That's really surprising to me and overturns (no pun intended) 25 years of my limited understanding of how the judiciary works.

22 posted on 04/20/2009 11:24:45 AM PDT by Big_Monkey
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To: 50cal Smokepole
rying to get rid of gun shows on Country property

LOL!

23 posted on 04/20/2009 11:27:04 AM PDT by TenthAmendmentChampion (Be prepared for tough times. FReepmail me to learn about our survival thread!)
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To: TenthAmendmentChampion

Does this mean that as of now All Criminal Protection Laws are null and void in in the Socialist Republic California????


24 posted on 04/20/2009 11:34:26 AM PDT by eyeamok
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To: Big_Monkey

The federal court system is divided into circuits, most of which are determined by geography. Any decision by a circuit is the law for only that circuit. The reasoning and holdings of one circuit may be looked to by other circuits , but there is no requirement that they must be. (Compared to a SCOTUS decision whiich is the law that all must follow.)


25 posted on 04/20/2009 11:34:52 AM PDT by NinoFan
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To: NinoFan

So what you’re saying is that it may not be reviewed by SCOTUS if and until another court comes up with a different ruling (2nd does not fall under the incorporation clause of 14th). They may appeal to SCOTUS and SCOTUS may deny cert and thus allow it to be law but only for the Western states.


26 posted on 04/20/2009 11:38:31 AM PDT by Old Teufel Hunden (iIt)
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To: NinoFan
"The reasoning and holdings of one circuit may be looked to by other circuits , but there is no requirement that they must be.

I'm not arguing here, I'm just looking to educate myself...

What weight does a precedent have when others rule on similar cases with similar case law? Would a precedent set by a Appellate court have more, less or the same precedent weight as a regular district court?

27 posted on 04/20/2009 11:40:04 AM PDT by Big_Monkey
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To: stockpirate
Someone please explain this to we the unwashed.....please

To be as non-technical, non-legal as possible. What this means is that states under the 9th circuit that do not have the equivalent of the Second Amendment in their state constitutions (most importantly California) now have it "incorporated" into the state constitution thanks to the Fourteenth Amendment.

This is important because unlike people who say "The 2A means what it means end of discussion" the left is only to happy to debate it ad infinitum and incrementally erode it. One of the more popular arguments has been "Well the second amendment only applies to the Federal Government" and it has been successfully used around the country for local gun bans.

This route was pursued in California with the intention of making it so difficult to obtain a firearm that no one will want to. We wound up with "The Roster" which is the list of handguns that our masters in Sacramento will allow us to buy. This bans some handguns for sale based only on the metal finish even though the firearm is identical to another on the roster merely because the manufacturer did not want to give Cal DoJ 3 guns and pay $300.

This opens an excellent challenge to California's notorious assault weapons ban that uses "evil black rifle" descriptions to ban AR and AK style weapons but was written by idiots who knew nothing about guns and only made it marginally difficult to obtain one (the proof is left as an exercise to the reader - google "off list lower").

So what it does is it puts a big crimp in the ability of any lesser governmental agency to institute their own gun bans and opens up an avenue to challenge those that already have them with a high probability of success - (even if they have to go to SCOTUS to succeed).

28 posted on 04/20/2009 11:41:14 AM PDT by atomic_dog
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To: NinoFan

>>It is only binding precedent in the 9th Circuit (pretty much most of the western us). Other circuits may refer to it, but they’re free to ignore its holding.

But if other circuits rule that the 2nd isn’t incorporated by the 14th, that sets up a SCOTUS challenge, correct?


29 posted on 04/20/2009 11:42:03 AM PDT by vikingd00d (chown -R us ./base)
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To: atomic_dog

The decision, only excerpted in your post, actually affirms the lower courts PROHIBITION of Nordyke holding gun shows on county property.

So we have a second amendment right that is becoming increasingly difficult to exercise...or as the NRA would say, “death by a thousand cuts.”

See Ruling Below:

“For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the County on the Nordykes’
First Amendment and equal protection claims and, although
we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court’s refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case.”


30 posted on 04/20/2009 11:45:33 AM PDT by srweaver (Never Forget the Judicial Homicide of Terri Schiavo)
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To: TenthAmendmentChampion
rying to get rid of gun shows on Country property

Should note that Alameda County prevailed on procedural grounds and the Nordykes cannot hold their gun show on county property. The Nordykes took one for the team though as this is huge win for the Second Amendment in California.

31 posted on 04/20/2009 11:46:26 AM PDT by atomic_dog
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To: Old Teufel Hunden

The SCOTUS doesn’t have to wail until a circuit split exists (though it often does). If the plaintiff and/or defendant appeals (neither side is likely to be totally happy with this outcome, but i’m not sure if the county can appeal since it technically won the battle), then the SCOTUS can take it up if it wants to do so.


32 posted on 04/20/2009 11:46:35 AM PDT by NinoFan
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To: srweaver
The decision, only excerpted in your post, actually affirms the lower courts PROHIBITION of Nordyke holding gun shows on county property.

That is correct. They won on procedural grounds. Don't think for a minute that this case was financed and pursued so they could hold a gun show at the Alameda County Fairgrounds. Some of the best legal minds in California labored long and hard to get "incorporation" which is all that was really wanted.

33 posted on 04/20/2009 11:50:09 AM PDT by atomic_dog
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To: vikingd00d

A split in circuits is a huge factor, yes, but it is not absolutely required, so it’s possible that the SCOTUS could hear this before conflicting ruling are made in other circuits.


34 posted on 04/20/2009 11:51:44 AM PDT by NinoFan
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To: All
The Ninth Circuit hits a home run. Pandora's box is open for business.

Sorry, at best this a ground rule double and walks the following batter, setting us up for a double play. Read the concluding paragraph.

While the Ninth Circus rules for Incorporation of the 2nd, they gut the meaning of Incorporation by saying that strict scrutiny doesn't apply, only "heightened scrutiny". If I'm not mistaken, this hands governments a powerful tool to limiting what is considered infringement.

For the more learned, please correct me if I'm wrong.

35 posted on 04/20/2009 11:53:57 AM PDT by LTCJ (God Save the Constitution - Tar & Feathers, The New Look for Spring '09)
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To: atomic_dog

For those who want more info on the case and “incorporation.”

http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King

Any responses to post 35...the “ground rule double?”


36 posted on 04/20/2009 12:03:01 PM PDT by srweaver (Never Forget the Judicial Homicide of Terri Schiavo)
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To: atomic_dog
Everyone temper their enthusiasm. I agree there is good language in the opinion, which was driven by the Supreme Court's Heller opinion. However, what the Ninth Circuit actually held was that the “...Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.” Therefore, the County's prohibition against gun shows on County property was upheld.

The Ninth Circuit refused to apply the strict standard of review that is normally used when reviewing state restrictions on other fundamental rights and it read the Heller decision as narrowly as possible when it said that only state actions that make “self-defense impossible in the most crucial place - the home - by rendering firearms useless” violate the Constitution.

This Court's reading of Heller, if not reversed, will allow states to continue and to adopt new types of restrictions on gun sales, ownership and use that do not “make self defense impossible in the home.” I hope that the Plaintiffs will seek Supreme Court review and that the Court will take the case and determine that ordinances such as the one in Nordyke are subject to strict scrutiny because the 2d amendment protects a fundamental right and that the 2d amendment protects a much broader right than just use for self defense in the home.

It seems clear to me that a County ordinance that prohibited all protest marches and other “speech” activity on county property would be subject to strict scrutiny and would be struck down by the Ninth Circuit. I believe the Alameda County ordinance should fail such strict review for a number of reasons, including that it unreasonably restricts a fundamental right because the concern over gun violence could be addressed in a more narrowly drawn ordinance. For example, the County could regulate gun shows by requiring that all weapons be unloaded and/or that they have trigger locks when displayed and/or that all weapons be under lock and key except when being shown to an individual, etc.

So, let's hope the Supreme Court reverses the Ninth Circuit's holding and that it require the strict scrutiny test to be applied to restrictions on gun sales, ownership and use.

37 posted on 04/20/2009 12:25:03 PM PDT by BienHoa69-70 RVN
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To: Old Teufel Hunden
O’SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property.

Answer: It does.

In concurance, Judge Gould wrote:

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.

I don't think the one is going to like this.

38 posted on 04/20/2009 1:46:15 PM PDT by An Old Man (Use it up, Wear it out, Make it do, or Do without.)
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To: An Old Man
We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property.

Answer: It does.

Yeah then went on to say except in "sensitive areas" (quoted from Heller, which did not define the term), in the mind of the court, then, places where there might be some people.

But maybe. I don't know if this would be a good SC case, but it seems the county could provide for safety without a complete ban. For whatever reason, the circus didn't mull that issue as it applies to the second amendment so much as it did with the first.

39 posted on 04/20/2009 2:11:06 PM PDT by Clinging Bitterly (I hope he fails.)
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To: atomic_dog

I can imagine that one connected developer has to kiss his scheme good bye. California can sell the Cow Palace at market rates but California can’t ban the gun shows. A market rate sale means no profits for the developer.


40 posted on 04/20/2009 3:23:38 PM PDT by Amerigomag
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