JasonK Posted April 21, 2009 Share Posted April 21, 2009 For the first time ever, a federal court has found that the 2nd amendment is indeed incorporated into the Constitution through the 14th amendment. Just as a little background for those of you who are not legal scholars, originally the Bill of Rights were a set of limited rights that only applied to the federal government (for example many states had official state religions). It wasn’t until after the Civil War and the passage of the 14th Amendment that some of the Bill of Rights were eventually “incorporated” into the 14th amendment and applied to states as well as the federal government. http://www.rightpundits.com/?p=3778 PDF of the actual opinon. Link to comment Share on other sites More sharing options...
warpspeed Posted April 21, 2009 Share Posted April 21, 2009 Link to comment Share on other sites More sharing options...
JimmyZip Posted April 21, 2009 Share Posted April 21, 2009 I love this! This is why I pay the NRA my money! Now THAT is CHANGE I CAN BELIEVE IN! Link to comment Share on other sites More sharing options...
J-Ho Posted April 21, 2009 Share Posted April 21, 2009 Jason, YOU feel like Heston.....Mr. Heston was never a long haired hippie. But since you brought good news. (insert Rebel Yell) This is good news. The 9th circuit will occasionally surprise you. Remember they ruled making machine guns for personal use was OK since it did not affect interstate commerce. Link to comment Share on other sites More sharing options...
ChuckS Posted April 21, 2009 Share Posted April 21, 2009 I love this! This is why I pay the NRA my money! Now THAT is CHANGE I CAN BELIEVE IN! Them and also don't forget these folks: http://www.calgunsfoundation.org/ Link to comment Share on other sites More sharing options...
Coolduckboy Posted April 21, 2009 Share Posted April 21, 2009 guess i am a little lost. Someone please explain it in words of 7th grade intelligence. Link to comment Share on other sites More sharing options...
XRe Posted April 21, 2009 Share Posted April 21, 2009 If I understand correctly, this ruling goes one step further than Heller in that it asserts that the 2nd Amendment also restricts the actions that state and local governments can take in terms of restricting gun rights. That's it, though - like Heller, it allows that "reasonable restrictions" on places where you can possess a gun are allowed, as are "reasonable restrictions" on who can purchase/own, etc. Its not at all clear what any court decision would consider "reasonable" in this context (ie, whether H.R. 45 as currently written would survive scrutiny under these decisions). That said, I'm not a constitutional scholar or lawyer, so... Link to comment Share on other sites More sharing options...
Coolduckboy Posted April 21, 2009 Share Posted April 21, 2009 Alright i get the jist of what is going on in that paragraph. That other stuff is way above my pay scale. Link to comment Share on other sites More sharing options...
XRe Posted April 21, 2009 Share Posted April 21, 2009 Maybe this helps... The 14th Amendment came along to make sure the Southern states couldn't restrict the rights of newly freed slaves. Several of them passed laws right after the conclusion of the war that prevented black and mulatto folks from owning guns, for instance. The 14th basically says "The Bill of Rights applies to the States and local governments, too". It takes a court decision to conclude that each of the first 10 Amendments falls under that statement, though - that is, that each Amendment is "incorporated" into the 14th Amendment. One could assume that each one is, but until its stated explicitly by a court, its just an assumption (that's how the legal system works). Heller affirmed that the 2nd is an individual right, but explicitly did not touch the issue of incorporation (that is, they said that the 2nd applies to us individually, not only as a group - the "militia"... but they didn't get into whether the 2nd Amendment also restricted state and local governments). This decision takes up that second bit, and says that the 2nd applies to state and local governments (ie, in the lingo, its "incorporated in the 14th Amendment"). What this possibly means, pending any appeal of the decision that ends up at the Supreme Court, is that places like Chicago and New York City can no longer have gun bans. I'm unclear whether 9th Circuit can directly affect other areas without a case arising there. It doesn't make any decisions, though, on what restrictions the state or local government can make on your ability to purchase a firearm, or where you can carry them, etc. Again, I'm not an expert in this, so... Perhaps one of the lawyer types will jump in and straighten me out Link to comment Share on other sites More sharing options...
larry cazes Posted April 21, 2009 Share Posted April 21, 2009 I love this! This is why I pay the NRA my money! Now THAT is CHANGE I CAN BELIEVE IN! Them and also don't forget these folks: http://www.calgunsfoundation.org/ This was mostly handled by local california attorneys. My wife filed a brief for this case. The primary case dealt with a county ban on gun shows but the issue of incorporation of the 2A is huge in the grand scheme of things. Next time you get the urge to bash california gun owners here on the forum for being complacent and suggest that we should just "move out of the state for a better one"......Resist it. We fight this battle every day. Link to comment Share on other sites More sharing options...
el pres Posted April 21, 2009 Share Posted April 21, 2009 Are you sure thats correct ??? That's the "9th" curcuit we're talking about ?? Link to comment Share on other sites More sharing options...
XRe Posted April 21, 2009 Share Posted April 21, 2009 Confirmed my previous suspicion - this is only binding in areas covered by the 9th Circuit Court of Appeals... So, basically, western states. It may be used as persuasive precedent in other areas, but (unless the case is appealed to the Supreme Court, which seems unlikely), other lawsuits will have to establish binding precedent in other circuits... Still, a good step! Link to comment Share on other sites More sharing options...
rr4406pak Posted April 21, 2009 Share Posted April 21, 2009 Are you sure thats correct ??? That's the "9th" curcuit we're talking about ?? I could not believe my eyes on this one either! Isn't that the most extreme liberal minded court in the land? I am dumbfounded... Link to comment Share on other sites More sharing options...
SA Friday Posted April 21, 2009 Share Posted April 21, 2009 For this case presidence to come from the 9th is HUGE!!!! CA gun owners, attack now while the iron is hot. I'm gonna PM Carlos and see if he will chime in on his read on this. He has an awesome grasp on this stuff and is a lawyer. Link to comment Share on other sites More sharing options...
Carlos Posted April 21, 2009 Share Posted April 21, 2009 (edited) SA Friday - my pleasure. (links added for more analysis) Nordyke's impact appears large for the following reasons: 1) It was issued by the 9th Circuit Court of Appeals, which includes not only California but also AZ, NV, AK, HI MT, OR, WA, etc. In terms of how the 9th Cir. tends to view constitutional issues, most legal scholars agree that the 9th Cir. often views the Constitution as a "living document" that can "evolve" over time to meet the "public good" - or for other reasons (e.g. - the "discovery of new rights"). WITHOUT straying over the line into any discussion of politics (which are prohibited on be.com), most legal scholars would tend to call such a view "progressive" or "liberal" - as opposed to the "originalist" or "black-letter" view typical of Supreme Court Justices Scalia, Thomas, Alito and Roberts. Point is: if even the most progressive circuit (the 9th Cir.) can resolve the incorporation issue in favor of the 2nd Amendment applying to the states, then it would be surprising if the other, less-progressive circuits would not agree and also find that the right is incorporated. As far as possible further action at the Circuit Court level, re-hearing en banc (ie before all of the 9th Cir. judges rather than just a single panel of 3 judges) is possible, though very unlikely. Note: the 9th is also characterized as less predictable than other circuits - just FYI. Also, since the county technically "won" this case (i.e. they are allowed to prohibit gun shows), the rules of procedure prevent them from filing a petition for cert to the Supreme Court to challenge the 9th Circuit's decision. Thus, the entire 9th Circuit is stuck with the court's incorporation finding (a win for gun owners). 2) The defendant in Nordyke was not the state government of California directly. The defendant was a local government. In their decision, the 9th Circuit went beyond a 2nd Amendment challenge to state-wide law, and found the the 2nd is incorporated (would apply) even to the actions of local governments within states. In so doing, the 9th Circuit indicates that the 2nd Amendment is a fundamental right (which is now incorporated accross the entire 9th Circuit). So, both state-level and local governments are now obligated to respect a citizen's 2nd Amendment rights as the are defined by Heller (which is still open to interpretation - as we can see with the D.C. city counsel's fight to pass restrictive gun laws in D.C. - even turning to the California "approved/banned handgun list" as a model). 3) As the following links & analysis points out, 44 state constitutions have some form of the 2nd Amendment protection for the right to keep and bear arms. Also, there is a 2nd Circuit (NY State, VT) incorporation case coming up in June that arguably involves "arms" though that case is about nunchaku or "nun chucks" - so it may or may not have any meaning for the 2nd. Here are the links I have found useful so far: ABOUT HALF WAY DOWN http://volokh.com/archives/archive_2009_04...html#1240254351 Edited April 21, 2009 by Carlos Link to comment Share on other sites More sharing options...
outerlimits Posted April 21, 2009 Share Posted April 21, 2009 to me, this passage at the end of the decision is key: "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. Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. 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. " Link to comment Share on other sites More sharing options...
John Dunn Posted April 21, 2009 Share Posted April 21, 2009 I'm confused....the ruling seems like a good thing. Heston discovering that it was actually the Earth taken over by apes was a bad thing. I never thought he was happy to see the Statue of Liberty. PS-I recently told my wife I was preparing for the Chinese Red Dawn, the zombie apocolypse, and a Planet of the Apes style massed monkey attack to explain some purchases. She rolled her eyes! PPS-I know the difference between apes and monkeys. Link to comment Share on other sites More sharing options...
gino_aki Posted April 21, 2009 Share Posted April 21, 2009 This may bode well for Hawai'i too...we may just get our mags back! Link to comment Share on other sites More sharing options...
Coolduckboy Posted April 23, 2009 Share Posted April 23, 2009 Carlos, you well educated man you, What comes next out of this? Link to comment Share on other sites More sharing options...
JasonK Posted April 24, 2009 Author Share Posted April 24, 2009 I'm confused....the ruling seems like a good thing.Heston discovering that it was actually the Earth taken over by apes was a bad thing. I never thought he was happy to see the Statue of Liberty. PS-I recently told my wife I was preparing for the Chinese Red Dawn, the zombie apocolypse, and a Planet of the Apes style massed monkey attack to explain some purchases. She rolled her eyes! PPS-I know the difference between apes and monkeys. I meant that in the "I couldn't possibly be more suprised about the 9th Circuit decision than finding the Statue of Liberty decaying in the ocean" sense. Link to comment Share on other sites More sharing options...
Sterling White Posted April 24, 2009 Share Posted April 24, 2009 Hey Carlos - its been a while since we last spoke. Hope your doing good. Question to anyone, is there a chance that the CA ban could be found to be unconstitutional? Link to comment Share on other sites More sharing options...
John Dunn Posted April 24, 2009 Share Posted April 24, 2009 I'm confused....the ruling seems like a good thing.Heston discovering that it was actually the Earth taken over by apes was a bad thing. I never thought he was happy to see the Statue of Liberty. PS-I recently told my wife I was preparing for the Chinese Red Dawn, the zombie apocolypse, and a Planet of the Apes style massed monkey attack to explain some purchases. She rolled her eyes! PPS-I know the difference between apes and monkeys. I meant that in the "I couldn't possibly be more suprised about the 9th Circuit decision than finding the Statue of Liberty decaying in the ocean" sense. All becomes clear! It is a shocker! Link to comment Share on other sites More sharing options...
XRe Posted April 24, 2009 Share Posted April 24, 2009 This may bode well for Hawai'i too...we may just get our mags back! Not to rain on the parade, but... Unfortunately, mag capacity restrictions might be considered "reasonable"... Link to comment Share on other sites More sharing options...
Flexmoney Posted April 24, 2009 Share Posted April 24, 2009 The article in the Shooting Wire is showing this as a loss? (Same decision, right??) Basically...the 9th said that the county could restrict [guns and ammo]...thus, making it illegal to hold a gun show in the county due to local law. Link to comment Share on other sites More sharing options...
Pat Miles Posted April 24, 2009 Share Posted April 24, 2009 The article in the Shooting Wire is showing this as a loss? (Same decision, right??) Basically...the 9th said that the county could restrict [guns and ammo]...thus, making it illegal to hold a gun show in the county due to local law. This is more along the lines of the decision I would expect from the 9th Circus Court of Appeals. Fortunately the 9th is the most overturned appeals court in the land. We can only hope that this holds true with this decision also. CYa, Pat Link to comment Share on other sites More sharing options...
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now