[ARCHIVED THREAD] - 2nd Amendment Incorporated Today (Page 1 of 2)
Posted: 4/20/2009 4:53:56 PM EDT
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9th Circuit court incorporated the 2nd amendment today. Not all good news though, they limited the scope of the 2A to protect gun ownership in the home and upheld the ability of localities ot restrict where firearms may be possessed.
http://www.scotusblog.com/wp/wp-content/uploads/2009/04/nordyke-ca-4-20-09.pdf This is guaranteed to hit the Supreme court. |
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forgive me for being really dumb.. but i dont understand why it was "incorporated" i guess im not following the wordage.. Not a legal expert, but my understanding of it is that incorporation via the 14th amendment due process clause means that this aspect of the constitution applies to the states also. It's good because it establishes that the 2A does apply to states and helps keep them from eroding our rights down to nothing. So far, the ruling apply to in the home ownership subject to reasonable restrictions, but at least SO FAR we don't have to worry about COMPLETE erosion. |
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forgive me for being really dumb.. but i dont understand why it was "incorporated" i guess im not following the wordage.. Not a legal expert, but my understanding of it is that incorporation via the 14th amendment due process clause means that this aspect of the constitution applies to the states also. It's good because it establishes that the 2A does apply to states and helps keep them from eroding our rights down to nothing. So far, the ruling apply to in the home ownership subject to reasonable restrictions, but at least SO FAR we don't have to worry about COMPLETE erosion. Exactly. It means that the court held that the 2nd ammendment as written in the Federal Bill of Rights is applicable to the states. If a state lacks it's own equivalent in the state constitution it can not use it's absence to claim it's citizens do not hold that right. Just as they can not bar publishing or Islamic worship. Incorporation was the legal fiction used to pick and choose which rights were 'fundamental'. and which applied only against the federal government. |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. What split are you talking about? I don't think any court has held contrary to this, unless you mean pre-Heller decisions. |
| All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. What split are you talking about? I don't think any court has held contrary to this, unless you mean pre-Heller decisions. Incorporation was lost in the Second Circuit Court. The split guaranteed a date in the SCOTUS. |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. What split are you talking about? I don't think any court has held contrary to this, unless you mean pre-Heller decisions. Incorporation was lost in the Second Circuit Court. The split guaranteed a date in the SCOTUS. Oh it's Maloney v. Cuomo. |
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All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. Bravo to the folks of CA if this is in fact true. But with all due respect, this action hardly manages to change the over all reputation of a state that has championed some of the most pinko liberal bullshit legislaion this country has know. Good on CA for thsi one, but it barely starts to make up for their track record out there. I feel sorry for the good Americans out there that have to deal with the army of retards that have taken over their state. Adrock1 |
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After having read this today, I find that there is a lot more intellectual heft to this than there was to Heller. This is a great follow on and starts to really define gun rights. Of course it is only persuasive outside the Ninth Circuit, but IMO it puts the entire regime of gun regulation in California in jeopardy. I doubt this case will make it to SCOTUS as the the County won on the issue of whether the County can regulate the presence of firearms on Country property. Nordyke could appeal, but the issue is not very novel or interesting, that is can local government regulate what happens on its property. That seems like a no brainer. More legal ammunition though for us.
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All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. I will thank California for its gun rights efforts but I won't accept your implication that California is the only place where legislative/judicial action is happening. We're pushing concealed carry on campuses ourselves at the moment. |
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After having read this today, I find that there is a lot more intellectual heft to this than there was to Heller. This is a great follow on and starts to really define gun rights. Of course it is only persuasive outside the Ninth Circuit, but IMO it puts the entire regime of gun regulation in California in jeopardy. I doubt this case will make it to SCOTUS as the the County won on the issue of whether the County can regulate the presence of firearms on Country property. Nordyke could appeal, but the issue is not very novel or interesting, that is can local government regulate what happens on its property. That seems like a no brainer. More legal ammunition though for us. yeah, but can a local government abridge an incorporated right on their property? To what extent? that's why I'm confused on this ruling. It's kind of bi-polar. I guess the remaining question is if strict scrutiny applies. |
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forgive me for being really dumb.. but i dont understand why it was "incorporated" i guess im not following the wordage.. Not a legal expert, but my understanding of it is that incorporation via the 14th amendment due process clause means that this aspect of the constitution applies to the states also. It's good because it establishes that the 2A does apply to states and helps keep them from eroding our rights down to nothing. So far, the ruling apply to in the home ownership subject to reasonable restrictions, but at least SO FAR we don't have to worry about COMPLETE erosion. Exactly. It means that the court held that the 2nd ammendment as written in the Federal Bill of Rights is applicable to the states. If a state lacks it's own equivalent in the state constitution it can not use it's absence to claim it's citizens do not hold that right. Just as they can not bar publishing or Islamic worship. Incorporation was the legal fiction used to pick and choose which rights were 'fundamental'. and which applied only against the federal government. That's the part that has always bugged me. The Second says nothing about being exclusive to the Feds, it says "shall not be infringed", period whereas the First Amendment starts off with "Congress shall make no law". For that matter, other than the First, none of them seem to be restricted to the Feds. |
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Quoted: Quoted: Quoted: Quoted: Quoted: As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. What split are you talking about? I don't think any court has held contrary to this, unless you mean pre-Heller decisions. Incorporation was lost in the Second Circuit Court. The split guaranteed a date in the SCOTUS. Not at all - the Nordykes would have to appeal - the issue of whether the County can regulate activities on its property is hardly novel. |
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Ok, so where does it go from here? Does this mean the states can ban stuff like NY and Cali? Or will this let them fight to over turn it? The bottom line is that now citizens can challenge state laws as unconstitutional because the law infringes upon their fundamental second amendment rights. Bad state law should be easier to...nuke from orbit. |
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That's the part that has always bugged me. The Second says nothing about being exclusive to the Feds, it says "shall not be infringed", period whereas the First Amendment starts off with "Congress shall make no law". For that matter, other than the First, none of them seem to be restricted to the Feds. The 2nd is part of the BOR and therefore the Constitution. The Constitution is a pact between the Federal government and the citizens of the United States - it sets out the duties of and limitations on the power of the Federal government, not the governments of the various states. Without incorporation, none of the guarantees of the BOR - trial by jury, right to counsel, freedom of speech, etc, would be binding on the state governments in the absence of a concurrent guarantee in the state constitution. |
WOW! 
The Ninth Circus (no, its spelled right!) is a joke of a left-wing wacko bunch of frequently-reversed idiots wearing Judges' robes. 
By incorporating the 2nd, they have done us a favor comparable with what the Japanese did with Pearl Harbor for their ally, Hitler! 
Thanks for getting us into your “own private Idaho”, fools! Here come the Yanks! And we are gonna nuke ‘em. 
Gun Control is finished; it will take a decade, but it’s as finished as official state religions, or the Alien and Sedition laws. 
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Quoted: As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. When they stated talking about the "Militia being an institution" they went off the deep end and started the collective bullshit again. This was a baby step forward far from an overwhelming step toward incorporation. It will be interesting to see where this goes. The Chicago is still the best bet for incorporation. |
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That's the part that has always bugged me. The Second says nothing about being exclusive to the Feds, it says "shall not be infringed", period whereas the First Amendment starts off with "Congress shall make no law". For that matter, other than the First, none of them seem to be restricted to the Feds. The 2nd is part of the BOR and therefore the Constitution. The Constitution is a pact between the Federal government and the citizens of the United States - it sets out the duties of and limitations on the power of the Federal government, not the governments of the various states. Without incorporation, none of the guarantees of the BOR - trial by jury, right to counsel, freedom of speech, etc, would be binding on the state governments in the absence of a concurrent guarantee in the state constitution. It's the selective and piecemeal application of it that is flawed in my view. I never understood where they got the notion that some privilages and immunities could be withheld and others 'incorperated' from: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." |
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Strict scrutiny won't apply. This is unbelievable, I actually started to tear up a little while reading it, esp. at 4496 where it really picks up steam. I can't tell you how many debates I have been in where the entire issue of the 14th, because it was unsettled, left both parties standing on either side of a huge wall.
Now we finally have two major opinions finally dealing with the 2nd. SInce Heller, courts are appearing to touch it, whereas before, it was dismissed almost outright with the old, "collective right....no injury..." I almost feel like it's not true. Someone tell me it's not a joke. I have been waiting for something like this to start and could never understand why courts did not wnt to sink their teeth into the 2d amend. TELL ME!!!! Yeah, while the other c. courts won't take the 9th's opinion as something they have to follow, don't miss the point that this case made a couple times, it is a new area of law they are exploring. Attys will use it as guidance and for that, courts will look at it as good law. This is a big deal. Esp out of the 9th. We should all get Heller tattoos. Very good sign. God, I'm happy about govt for the first time in a long time. I can't beleive it. 
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After having read this today, I find that there is a lot more intellectual heft to this than there was to Heller. This is a great follow on and starts to really define gun rights. Of course it is only persuasive outside the Ninth Circuit, but IMO it puts the entire regime of gun regulation in California in jeopardy. I doubt this case will make it to SCOTUS as the the County won on the issue of whether the County can regulate the presence of firearms on Country property. Nordyke could appeal, but the issue is not very novel or interesting, that is can local government regulate what happens on its property. That seems like a no brainer. More legal ammunition though for us. yeah, but can a local government abridge an incorporated right on their property? To what extent? that's why I'm confused on this ruling. It's kind of bi-polar. I guess the remaining question is if strict scrutiny applies. Since the court talked about how the state can do pretty much whatever it wants, they're clearly opting for a "rational basis" standard. This is the weakest protection, and basically means that the government can do whatever it damn well pleases as long as some lawyer arguing the case can come up with an excuse. |
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The opinion allows county/state gov to regulate firearms on their property. That's okay. Notice that they cannot outlaw gun shows. Have it at a private place, which most are. It's okay...they incorporated the 2d! I feel like, I feel great.
And I'm not sure why strict scrutiny would apply here. |
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Bump for lawyer talk dumbed down to me talk. Idn't this what we wanted? Yes - Incorporated means that the 2A would now apply to the States, where as up to this point it only applied to the Feds. Since to this point, states only had to conform their gun laws to the state constitutions. So, now, apparently States will not be able to infringe on the right to keep and bear arms. |
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All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. Bravo to the folks of CA if this is in fact true. But with all due respect, this action hardly manages to change the over all reputation of a state that has championed some of the most pinko liberal bullshit legislaion this country has know. Good on CA for thsi one, but it barely starts to make up for their track record out there. I feel sorry for the good Americans out there that have to deal with the army of retards that have taken over their state. Adrock1 So how many times do you have to blow your Sheriff to get a permit to buy a pistol? |
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The Bill of Rights only applies to the Federal government and not to the States. Incorporation to the 14th means that the 2nd becomes law for the States. No. The Bill of Rights outlines SOME of the rights all Americans enjoy. The state cannot pass laws that curtail those rights. Of course... this presumes one actually cares about the Constitution. Matt |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. Establishes precedent and the legal experts deem that this is guaranteed to hit the supreme court. It is guaranteed to hit the Supreme Court because there is two conflicting ruling between two circuit courts. This ruling only applies to States that are in the 9th Circuit. What split are you talking about? I don't think any court has held contrary to this, unless you mean pre-Heller decisions. Incorporation was lost in the Second Circuit Court. The split guaranteed a date in the SCOTUS. Oh it's Maloney v. Cuomo. Thank you. This was off the grid of arfcom??? |
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As far as I know this ruling only applies to the 9th Circuit, but it's definitely a great start! It seems for once the 9th Circuit got something right. That's my understanding as well, but the 9th circuit does cover many western states, a huge portion of the U.S. So it's definitely a major win! Oh, and of course it covers my anti gun state!
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| I just read the opinion and this is not a win by any means. We already really had incorporation through the dicta in Heller, so there is no win there. What this case really does is attack the standard of review used by Courts. In Heller the SCOTUS did not say what the standard of review was, but stated that it was greater than a rational basis. I would argue that as a fundamental right it should be subject to strict scrutiny. In this case though the Court basically says that Heller required greater than rational basis and applied the rational basis standard. If this case is upheld Heller would be meaningless. |
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All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. Some of us have State Constitutions which are much more explicit. We carry our own water in Alaska... |
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I disagree gonoles. the court said that there is really no settled test in this area of law, since no one has really touched it with any meaningfulness since Heller. And to say that an opinion from the 9th is worthless because it was dicta in Heller is a little bit misleading. i think that having Heller allowed the court to find injury, but recall, the court was dealing with the idea of the county super wanting to ban gun fairs. Now, with this opinion, your client, as an individual, will have standing for a 2nd amend claim. It's big. That was the threshold that every 2nd amend case could not pass previously.
This is getting downplayed alot more than I thought it would. Maybe my emotions are in the way of my reason. But as I see it, look at the importance of being able to bring a suit now, as an individual, as the key to the significance of this case. |
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I disagree gonoles. the court said that there is really no settled test in this area of law, since no one has really touched it with any meaningfulness since Heller. And to say that an opinion from the 9th is worthless because it was dicta in Heller is a little bit misleading. i think that having Heller allowed the court to find injury, but recall, the court was dealing with the idea of the county super wanting to ban gun fairs. Now, with this opinion, your client, as an individual, will have standing for a 2nd amend claim. It's big. That was the threshold that every 2nd amend case could not pass previously. This is getting downplayed alot more than I thought it would. Maybe my emotions are in the way of my reason. But as I see it, look at the importance of being able to bring a suit now, as an individual, as the key to the significance of this case. I agree with most of what you said. However, I would take the position that an individual would have standing to bring such an action based on Heller, although only through dicta. I guess what bothers me about this opinion is that it appears the 9th circuit (not shockingly) appears to be making a quick stab at setting a very low governmental threshold to curtail individual liberties when determining the application of the second amendment to the states. At least we are forcing the left wing vocal minority to take a position in favor of states rights. |
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That hit me too––the states' rights thing. All we want is for govts, all of them, to recognize our const. rights. Now that the 2nd is being recognized as one of em (by the courts) I can't wait to see the left downplay the fed and embrace the state's right to govern itself when it comes to firearms. I love it.
As far as the test, since the court was using the history aspect of the 2nd, the importance to the American/Anglo way of life, it really seems to me that they are in unchartered territory. Look for the test to be tweaked over time. at any rate, this is a victory. |
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It seemed to me like a pretty strong win. Let's see if I got the gist of it
1) The 2nd ammendment protects an individual right that is an essential component of the Anglo/American concept of ordered liberty thus the due process clause of the 14th ammendment protects it from infringement by the states. 2) The 2nd doesn't preclude restricting possestion of firearms in "sensitive" loctions which might include parks, fairgrounds, schools, or goverment buildings but almost certainly doesn't include the parking lots for same (i.e. people have got to be able to leave them in their car if they can't have them in the building). I see the ground beneath the CA AWB becoming substantially weaker. I'm hoping that someone can connect the dots between incorporation and shall issue. |
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I agree. Since the 2nd is incorporated, we could take some steps and argue that now, the supremacy clause applies. Having state law prohibit certain types of arms and certain types of carrying is restricted more than fed law...I think we will see a bunch of cases dealing with this. Now you have standing at least to bring these issues up in court, whereas before everyone just had to take it.
It'll be interesting to see what happens. I've never been so excited. Teeth, finally. |
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Reading the ruling one could challenge the state of California or any other state on the following issues: Possession & carrying a weapon - handgun, shotgun or rifle by a citizen without a CCW - California Law: weapon unloaded & secured & ammunition stored separate. State shall issue CCW's for citizens to defend its state Possession of large capacity magazines. How one would challenge it is by the ruling stating –––––––––– Section 4509 Page 43 NORDYKE v. KING That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. ––––––––––-  My interpretation: In order for a populace to suppress a terrorist attack it has to be "readily" armed with weapons equal to what a terrorist would posses. This being said a terrorist is a criminal who will not abide by state or federal law restrictions of weapons. –––––––––– 4484 Page 17 NORDYKE v. KING [10] The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The prefatory clause of this Amendment describes the right it protects. The Supreme Court has explained that the phrase necessary to the “security of a free State,” means necessary to the “security of a free polity.” 10 See Heller, 128 S. Ct. at 2800 (internal quotation marks 4485 Page 18 NORDYKE v. KING omitted). Thus the text of the Second Amendment already suggests that the right it protects relates to an institution, the militia, which is “necessary to an Anglo-American regime of ordered liberty.” Duncan, 391 U.S. at 149 n.14. The parallel is striking, particularly because the militia historically comprised all able-bodied male citizens. Heller, 128 S. Ct. at 2799. This necessary “right of the people” existed before the Second Amendment as “one of the fundamental rights of Englishmen.” Id. at 2797-98. Heller identified several reasons why the militia was considered “necessary to the security of a free state.” First, “it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary . . . . Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Id. at 2800-01. In addition to these civic purposes, Heller characterized the right to keep and bear arms as a corollary to the individual right of self-defense. Id. at 2817 (“[T]he inherent right of self-defense has been central to the Second Amendment right.”). Thus the right contains both a political component—it is a means to protect the public from tyranny—and a personal component—it is a means to protect the individual from threats to life or limb. Cf. Amar, supra, at 46-59, 257-66. |
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Looking at this case it allows a government, state, county etc to restrict possession on its lands. With National Park Carry we could argue that if camping - under the 4th Amendment a "tent" has the same meaning as a persons "home" as ruled in previous court cases –––––––––––– Section 4497 Page 30 NORDYKE v. KING The Court began its analysis of the District of Columbia’s law by noting what activity the law covered: “the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.” Id. at 2817 (emphases added). Next, the Court connected the statute’s operation to the conduct the Second Amendment protects: “the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” Id. It was thus the statute’s burdens on effective self-defense that implicated the Second Amendment. More particularly, Heller noted that the “prohibition extends . . . to the home, where the need for defense of self, family, and property is most acute.” Id. For the Court, this meant that, no matter the intensity of constitutional scrutiny, the District’s law could not survive. Section 4498 Page 31 NORDYKE v. KING [13] Heller tells us that the Second Amendment’s guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place—the home —by rendering firearms useless, then they violate the Constitution. 2 [14] But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self defense in the home. Rather, it regulates gun possession in public places that are County property. |
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Quoted: Looking at this case it allows a government, state, county etc to restrict possession on its lands. No, it said that a first amendment argument against a gun ban on county land was BS. The gun show people wanted to amend their complaint to add a second amendment argument but that was not allowed. |
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Quoted: All of you who are not from California, please note that this case was started by folks from California who would not leave for a free state, nor stand for state tyranny. It's funny that most of you will have to thank Californians for carrying your water in the gun rights battle. Bless all you guys for staying and fighting for your Gun Rights in California!! We are doing the same thing here in Pinko NJ. We have stopped the "50 Caliber Ban" and the "One Gun a Month" bullshit. The victories are sweeter when they come from "Behind Enemy Lines" Iggyort |