Update in Important California Gun Rights Case

September 10, 2002 | Michael Pelletier

[mvpel]

The Nordyke v. Alameda Gun Show Ban case

History: The County of Alameda passed an ordinance that prohibited possession of firearms on county property, in a thus-far successful effort to close down the T&S Gun Show formerly operated by Russ & Sally Nordyke at the Alameda County Fairgrounds in Pleasanton.

The county was sued by the Nordykes in the Ninth Circuit Federal Court on equal protection and other grounds, and that court eventually sent the case to the California Supreme Court to answer questions regarding state gun law preemption.

In a disappointing decision, the California Supreme Court disregarded the concept of "implied preemption" and ruled that only licensing and registration of firearms is preempted, as that is the only explicitly preempted areas of firearms law on the state's books.

The case went back to the federal court on the equal protection and commercial free speech grounds, which is where it sits today.

Attorney Donald Kilmer reports that in response to a motion to submit supplemental briefing on the federal constitutional issues in this case, the Ninth Circuit Court of Appeals has invited both parties to submit supplemental briefing, including but not limited to the impact of the Emerson v. United States Fifth Circuit Court case on the Alameda ordinance.

This is momentous news.

This suggests that the Ninth Circuit court is planning to revisit their long-held position that the Second Amendment protects only a "collective" or "state" right in the light of the thorough scholarship of Justice Sam Cummings and the Fifth Circuit's three-judge panel documenting the historical and legal basis of the Second Amendment as an individual right. The Fifth's decision referred over 100 times to the book "The Origin of the Second Amendment" by David E. Young, a compendium of original source documents around the drafting of the Second Amendment.

The briefs are due on September 30.

---

Attorney Don Kilmer is also the chairman of the Thermopylae Group, an organization dedicated to amending the California Constitution to include the right to keep and bear arms.

[PRND21]

Bump

[The KG9 Kid]

I sure would like to see the 9th Circuit Court revisit the Second Amendment and agree likewise with the 5th Circuit Court of Appeals over an issue that took place right in Don Perata's backyard.

Anything to help overturn Roberti-Roos would be welcome.

[Parley Baer]

I hate to douse any water but the Ninth Cicuit Court would be the last place on Earth I would expect the 2nd Admendment to be upheld or any fairness to be obtained. I believe the Supreme Court would have to hear the case for a fairer ruling. Parley

[TheErnFormerlyKnownAsBig]

A bump for all you bangers out there.

I see a few ways this could play out.

Ninth agrees with the Fifth (doubtful considering the Ninth), Ninth ignores the Fifth's decision and rules without mentioning it, or the Ninth rules contrary to the Fifth and then you have set the stage for the SCOTUS to decide who is right.

Anyone seeing any other possibilities please chime in.

[Teacher317]

Heck, considering that the 9th is the Court that tried to ban the Pledge of Allegiance (and is by far the most-overturned Court), I wouldn't be surprised of they "allowed" this hearing so that they could drive an even bigger monkeywrench into the issue.

[mvpel]

The thing about the Fifth's ruling is that it carried on for 80 pages and over 100 footnotes - it is meticulously documented and justified. In order for them to continue their "collective right" delusion, they'd have to ignore practically every last page of that ruling.

The fact that they've asking for briefing on it is a good sign. They could have simply denied Mr. Kilmer's motion.

[RetiredArmy]

Don't hold your breath while the communists on this court change their thinking. It won't happen.

[Frohickey]

Heck, considering that the 9th is the Court that tried to ban the Pledge of Allegiance (and is by far the most-overturned Court), I wouldn't be surprised of they "allowed" this hearing so that they could drive an even bigger monkeywrench into the issue.

I would welcome a BIG monkeywrench into the 2nd Amendment issue. In fact, the bigger the better. Best to get the whole country talking about it. Maybe they should repeal the 2nd Amendment, and lets see what happens. It should make Prohibition look like a Sunday school picnic.

[tahiti]

dollygirl you state

"But the statutory restraint must be "reasonable" under Emerson.Thats fair."

That's fair? That's fair?

I hope you are being sarcastic.

Just in case you are not being sarcastic, let me remind you that the second amendment is part of the Bill of Rights, not the Bill of Privileges.

Privileges are subject to reasonableness tests. Not rights.

Rights are absolute. That is why the phrase "shall not" is in the second amendment.

With all due respect, what part of "shall not" do you not understand?

[muir_redwoods]

Gun rights? In California? I didn't think there were any gun rights left to lose in California.

[.38sw]

Why, of course we have gun rights in California! We're still allowed to own Ca. DOJ approved guns, subject to a variety of restrictions, of course. What I own this year may become illegal next year, but hey, it's for the children...</sarcasm>

[vannrox]

Are you guys CRAZY?!?!?!


This is the 9th Circuit Court for goodness sakes! These are the loonies that go overboard to ban GOD; ban Guns; Ban fatty food; Force "diversity" and refusing to call it racism. They have up held every pro government initative.


The only conservative in the court was appointed by Nixion. - And he voted against the words "under God" in the Pledge.

[rockfish59]

Bullets, or ballots!

[Argus]

The LA City Council, a collection of clowns that would put Ringling Bros. to shame, is holding hearings tonight on their latest assault on the Constitution, a move to ban the sale of ammunition within city limits.

[45Auto]

My bet is that 9th Circus Court of Idiots wants to see Emerson in order to refute it, thus setting the stage for a trip to the US SC. Those rotten bastards have NEVER seen a gun law they thought might be unconstitutional.

[mvpel]

They'd have to exhibit a lot more legalistic talent than they've ever demonstrated before in order to refute the Fifth's ruling in Emerson. The essence of their argument would have to come down to "Is not!"

[mvpel]

The right to life, liberty, and the pursuit of happiness are not absolute - they can all be revoked if you are found guilty of a crime by due process of law.

[45Auto]

The 9th Circuit, the Cal SC and the entire government of California is part of a giant conspiracy to deny the RKBA. For the last ten years, these people have ridden roughshod over the Constitutional right to keep and bear; I see no light at the end of that tunnel. The 9th Circuit is notorious at digging up obscure case law to add yet another layer to their always erronious, but in their twisted minds, "justified", decisions to deny the RKBA at every step.

Yet, the good citizens of California can still purchase firearms within the state. The state keeps a big fat database of each and every pistol/revolver sold. Someday they hope to have a lock on the "legal" means to confiscate each and every one of those guns. They already think they will succeed with those oh-so-bad AWs, which they have so far managed to ban and register.