Ninth Circuit rules in FAVOR of 2nd Amendment!

[Flexmoney]

I don't really know. The Shooting Wire...while giving some of the latest gun news...is a marketing, promotion and propaganda production. It certainly isn't accurate "news" (IMO).

[Nik Habicht]

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.

In a nutshell if I understand it correctly it's both a loss and a pretty significant win, to wit:

We lost --- the county can restrict gun shows.....

We won: The 2nd Amendment (and Heller's individual right) applies (incorporation) to the States covered by the 9th Circuit. What restrictions are reasonable remains to be decided by litigation during the next few decades.....

The County/State don't get to appeal the decision --- they won. If we're smart, we won't either....

[Flexmoney]

Feels like I won a Glock keychain.

(and carrying my keys on it might be a misdemeanor)

Seriously... I'm real sketchy on the facts here (which means I will probably burn through a few hours this weekend doing research on it). Seems like a local County put up a local law that made it a misdemeanor to have gun stuff. The result of which...they were able to outlaw the local gun show.

Is that the case?

[Genghis]

Kudos to XRe and Carlos for their explanations.

For this to come from the 9th Circus is truly a shock, although Judge Kozinski wrote one of the best defenses of RKBA in a dissent a few years back.

Further simplified explanation:

1. The 2nd Amendment says the Right to Keep and Bear Arms (RKBA) "shall not be infringed," but doesn't say by whom. The language suggests that it should apply to everyone, including states and even private parties, especially because (for example) the express language of the 1st Amendment says it applies only to Congress. But this has been an open issue.

2. The 14th Amendment was passed to prevent states from violating the Bill of Rights, and RKBA was mentioned specifically when it was being discussed. But the Supremes have considered each amendment incrementally, rather than as a whole. The Court has gradually applied each of the rights to the States except for the 2nd Amendment (and the 9th and 10th).

3. Heller said the 2nd Amendment is an individual right, not a state's right, but it only applied it as a limit on the authority of the federal government (of which DC is a part).

4. This decision says that states are also prohibited from violating the 2nd Amendment. The legalese goes like this: The court applied the Incorporation Doctrine to the 2nd Amendment, and because this is such a fundamental right, the states are required by Due Process to honor that amendment.

This case is one that both giveth and taketh away - it held that the 2nd Amendment governs state governments, but that banning guns on government property doesn't violate the right. It gives the city incentive not to appeal (because it found no violation) and gives the citizens the same incentive (because it applied RKBA to the states). The holding focused on some of Scalia's unfortunate dicta (unnecessary surplus comments) suggesting a rash of restrictions on RKBA. But all in all it's a good development.

BTW, I don't play a lawyer on TV and did not sleep in a Holiday Inn Express last night, but I am one in real life.

Sean

[corrected a typo]

Edited April 24, 2009 by Genghis

[gose]

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.

In short, the case itself was lost, but to be able to reach a conclusion in the case, the court first had to figure out if the 2nd Amendment (based on Heller) could be held to the states, which they concluded it could.

So, a loss for the Nordykes, but a win for 2A.

However, it's not unlikely that this will indeed end up in SCOTUS again, since some bonehead in the 2nd Circuit lost a case and had the court declare that the 2nd Amendment could not be held to the states, ie, ruled against incorporation. So as it stands now, we have one circuit court ruling in favor of incorporation and one against and a circuit split has a decent chance of forcing a SCOTUS review to resolve the split.

edit: Unfortunately it looks like Maloney is going to try to take his lost case to SCOTUS. I really hope that he gets some better legal support this time so he doesn't end up nullifying the 9th's decision. :/

Edited April 24, 2009 by gose

[XRe]

Feels like I won a Glock keychain.

Only because you don't realize that keychain is actually a miniature, working Glock...

Seriously... I'm real sketchy on the facts here (which means I will probably burn through a few hours this weekend doing research on it). Seems like a local County put up a local law that made it a misdemeanor to have gun stuff. The result of which...they were able to outlaw the local gun show.

Is that the case?

What they found was that the county had a right to restrict the sale of and possession of firearms on their property. That's not really any different than a lot of regulations in place now - for instance, even though I have a carry permit, I can't carry into a federal building, or many state government buildings or schools - or any business in Texas that posts a 30.06 sign.

What they also found was that the 2nd Amendment (already found to be an individual right in the Heller decision) applies not just to the Federal government, but also state and local governments (called "incorporation"). Heller made clear that the 2nd was an individual right, but explicitly does not deal w/ incorporation (that is, the SCOTUS said that the federal government could not ban individual possession of firearms, but they didn't touch what state or local governments could do). This decision says that (at least within the scope of the 9th circuit) state and local governments also cannot ban ownership of guns. That's a pretty big deal, actually, even if it doesn't apply to the rest of us for the moment...

[JKSNIPER]

So it was as a result of the gun shows being held on county/state land that they restricted the shows?

Does this mean that if someone owned a large piece of property and wanted to allow a gun show on it (in the area covered by this decision) it would be legal to hold one?

Sorry for the "Short-bus kid" questions but this seems confusing to me as to how its a win and a loss at the same time.

JK

[davidwiz]

The bad thing about this 9th Circuit decision is that it relied upon dicta in the Heller case to hold that the gun shows can be banned on county property because it was a "reasonable restriction".

It is no wonder that the 9th Circuit is the most overruled circuit in the country.

[Carlos]

Coolduckboy, Sterling, thanks & good to hear from you both. As far as "what next?" I have some predictions. But first, I want to run them by an old friend @ CATO (he just wrote this short blurb re Nordyke):

Yes, California, There Is An Individual Right To Keep And Bear Arms

Ilya is the editor-in-chief of the Cato Supreme Court Review. I think we are having lunch this week or next; I'll post again here after that.

D.

[Sam]

John, I haven't used "Chinese Red Dawn" or "Zombie Apocalypse" as rationale for a purchase yet. (Well, at least I haven't used "ZA" recently.) I believe I did allude to "ZA" as a sub-set of my "Y2K- were all friggin doomed" scenario.

"Yes, Dear, it has been nine years since I bought the BAR and the 3,000 rounds. And Yes Dear.... so far no apocalypse. But one thing you can always count on with zombies, those bastards are incredibly patient."

"especially the Chi-com Zombies, Dear. They got this amazing zombie-zen kind of mind set........they don't even have to kill you. They are so patient they just wait for you to die and then get you.

But, just in case they get twitchy and try to take us alive, were gonna need that Gen III night vision."

[Coolduckboy]

John, I haven't used "Chinese Red Dawn" or "Zombie Apocalypse" as rationale for a purchase yet. (Well, at least I haven't used "ZA" recently.) I believe I did allude to "ZA" as a sub-set of my "Y2K- were all friggin doomed" scenario.

"Yes, Dear, it has been nine years since I bought the BAR and the 3,000 rounds. And Yes Dear.... so far no apocalypse. But one thing you can always count on with zombies, those bastards are incredibly patient."

"especially the Chi-com Zombies, Dear. They got this amazing zombie-zen kind of mind set........they don't even have to kill you. They are so patient they just wait for you to die and then get you.

But, just in case they get twitchy and try to take us alive, were gonna need that Gen III night vision."

[larry cazes]

As far as "what next?"

Part of the "what next" question can be answered by the newest posts in the firearms laws forum. Exciting and proud time to be a gun owner and activist in California

[Carlos]

I agree with you Larry & congrats to you and all our members in California. Finally, groups are seeking to secure citizen's firearms rights and freedoms under the Constitution (especially as those rights pertain to competition handgun/3gun competition in California). Too often our community nationwide only focuses on the negatives in California; it is nice to finally highlight some progress and hope in my former home state.

Here is what I believe Larry is referring to (these can also be found in the Firearms laws section - thnx): 2 lawsuits have been filled in the wake of the Nordyke decision w/ the assistance of lawyer Alan Gura / CATO Institute. Here are 2 brief summaries I located on the site for the Calguns Foundation (provided for information only; please keep this thread open by avoiding any political comment - thanks, D.).

1) Sykes-v-McGinness (filed 5/5/2009)

"BELLEVUE, WA and REDWOOD CITY, CA – The Second Amendment Foundation, The Calguns Foundation and three California residents today filed a lawsuit seeking to vindicate the right to bear arms against arbitrary state infringement.

Nearly all states allow qualified law-abiding citizens to carry guns for self-defense, but a few states allow local officials to arbitrarily decide who may exercise this core Second Amendment right. In the action filed today, Plaintiffs challenge the policies of two California Sheriffs, in Sacramento and Yolo counties, who reject the basic human right of self defense by refusing to issue ordinary people gun carry permits. Of course, violent criminals in the impacted counties continue to carry guns without police permission.

State scientist Deanna Sykes believes her sexual orientation and small stature makes her an appealing target for criminals, particularly as she often transports firearms as a competitive shooter and firearms instructor. “I am highly qualified to defend myself against the sort of crime that the Sheriff cannot, despite his best efforts, completely eradicate,” Sykes said. “Violent crime is a real risk in our society, but happily, we enjoy the right to defend ourselves from it.”

Andrew Witham has over 15 years experience as a police officer in Britain, and is licensed to carry a firearm while working as a private investigator and campus public safety officer. But despite having been the target of death threats stemming from his work in security, Sheriff John McGinness saw to it that Witham’s license to carry a gun while away from work was revoked upon Witham’s relocation to Sacramento.

“I’m allowed to defend other people,” said Witham, “so why can’t I defend myself, where the Bill of Rights guarantees me that right?”

Adam Richards, a Northern California attorney, would also exercise his right to bear arms in self- defense. But the Yolo County Sheriff’s policy on gun permit applications is: don’t bother. “How can the Sheriff tell whether I am capable of responsibly exercising my Second Amendment rights, when he doesn’t even acknowledge that these rights exist?”

Attorney Alan Gura, representing the plaintiffs in this case, said, “It’s a shame that these Sheriffs don’t think that self-defense is a ‘good cause’ to exercise the right to bear arms, but we’re confident the Second Amendment reflects a better policy.”

Added co-counsel Donald Kilmer, “The California carry licensing system is being abused by some officials who are hostile to self-defense rights. The police can regulate the carrying of guns, and that includes preventing dangerous people from being armed. Complete deprivation of the right to bear arms, however, is not an option under our Constitution.”

“The Supreme Court’s decision last year in the Heller case shows that there is both a right to keep arms and a right to bear arms,” said SAF founder Alan Gottlieb. “In most states, authorities do not deny a license to carry an operable firearm to any law-abiding applicant that completes training and a background check. This is also the practice throughout much of California. These two Sheriffs must respect the constitutional rights of their citizens to bear arms.”

“California is often a leader in so many ways, but our state lags badly in streamlining its firearms laws,” said Gene Hoffman, Chairman of The Calguns Foundation. “We need 21st century gun laws that respect our Constitutional rights, and adopt modern, widely accepted practices that work well throughout the United States. Hopefully this action will serve as a wake-up call to our legislators, and to those officials who stubbornly resist accommodating Second Amendment rights. If they don’t reform, reform will come through litigation.”

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

The Calguns Foundation (www.calgunsfoundation.org) is a non-profit legal defense fund for California gun owners. The Calguns foundation works to educate government and the public and protect the rights of individuals to own and lawfully use firearms in California.

A copy of the complaint is available: http://www.hoffmang.com/firearms/sykes/Syk...-2009-05-09.pdf

2) Pena-v-Cid (filed 4/30/2009)

BELLEVUE, Wash. & REDWOOD CITY, Calif., Apr 30, 2009 -- The Second Amendment Foundation, The Calguns Foundation and four California residents today filed a lawsuit challenging a California state law and regulatory scheme that arbitrarily bans handguns based on a roster of "certified" handguns approved by the State. This case parallels a similar case filed in Washington, D.C., Hanson v. District of Columbia.

California uses this list despite a ruling by the U.S. Supreme Court last summer that protects handguns that ordinary people traditionally use for self-defense, and a recent ruling by the Ninth Circuit Court of Appeals that the Second Amendment applies to state and local governments. The California scheme will eventually ban the purchase of almost all new handguns.

Attorney Alan Gura, representing the plaintiffs in this case, noted that California "tells Ivan Pena that his rights have an expiration date based on payment of a government fee. Americans are not limited to a government list of approved books, or approved religions," he said. "A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee."

"The Para Ordnance P-13 was once approved for sale in California," Pena noted, "but now that a manufacturer didn't pay a yearly fee, California claims the gun I want to own has somehow become 'unsafe'."

"The Glock-21 is the handgun I would choose for home defense, but California has decided the version I need is unacceptable. I was born without a right arm below my elbow and therefore the new ambidextrous version of the Glock-21 is the safest one for me. The identical model designed for right hand use is available in California, but I can't use it," said plaintiff Roy Vargas.

Added SAF founder Alan Gottlieb, "The Supreme Court's decision is crystal clear: Handguns that are used by people for self-defense and other lawful purposes cannot be banned, whether the State likes it or not. California needs to accept the Second Amendment reality."

Co-counsel Jason Davis remarked, "The California Handgun Roster has always been about making the possession of handguns for self defense more difficult by imposing arbitrary and unconstitutional restrictions that limit choice and increase the cost of exercising a fundamental right."

Joining plaintiffs Pena and Vargas are Dona Croston and Brett Thomas. Dona Croston's handgun would be allowed if it were black, green, or brown, but her bi-tone version is supposedly 'unsafe' merely based on color. "I didn't realize that my constitutional rights depended on color. What is it about two colors that makes the gun I want to purchase 'unsafe'?"

Brett Thomas seeks to own the same model of handgun that the Supreme Court ordered District of Columbia officials to register for Dick Heller. However, that particular model is no longer manufactured, and its maker is no longer available to process the handgun's certification through the bureaucracy.

"There is only one model of handgun that the Supreme Court has explicitly ruled is protected by the Second Amendment and yet California will not allow me to purchase that gun," said Mr. Thomas.

"The so-called 'safe' gun list is just another gun-grabbing gimmick," said co-counsel Donald Kilmer. "California can't get around the Second Amendment, as incorporated, by declaring most normal guns 'unsafe,' and gradually shrinking the number of so-called 'safe' guns to zero."

The Second Amendment Foundation ( www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

The Calguns Foundation ( www.calgunsfoundation.org) is a non-profit legal defense fund for California gun owners. The Calguns foundation works to educate government and the public and protect the rights of individuals to own and lawfully use firearms in California.

You can find the complaint in the case here: http://www.hoffmang.com/firearms/pena/Pena...d-complaint.pdf

Edited May 6, 2009 by Carlos

[XRe]

Good luck, Cali folks! Both of those cases would be really great for y'all (and, really, for the rest of us, too...)

[rvb]

... allow local officials to arbitrarily decide who may exercise this core Second Amendment right.

If successful, I wonder if this same reasoning could then be applied to NFA's law-enforcement sign-off?

-rvb

[Carlos]

Further discussion of Nordyke, the future of Heller, & the upcoming challenge in the 2nd Circuit:

http://reason.com/news/show/133331.html

As to challenge to arbitrary "CLEO" for Title II firearms, it is my understanding that the original NFA (now incorporated into GCA '68) simply said that Title II firearms were federally licensed, and therefore permitted, PROVIDED they complied with all local laws.

Without a mechanism to check all local laws in 1934, they simply added the "CLEO" sign-off as a compromise. I also understand it has been challenged in court - and plaintiffs lost - though that was PRE HELLER.

A renewed challenge might be ripe.

Edited May 9, 2009 by Carlos

[Steve J]

the basic human right of self defense

I love this. In addition to our Consitutional right, we need to hear advocates empahsize the basic human right to self defense and the basic human right to a means of self defense. Bravo.

[Coolduckboy]

Anymore News. this is getting pretty interesting.

[JFlowers]

I am probably going to need flame-proof undies for this, but here goes.

I agree with the Ninth Court's decision. Incorporation is a great win for the 2A and gun owners as a whole. But I also think the decision that the local government retains the right to decide what is appropriate or not on public facilities under their control was right as well. Has Nordyke won that portion of the case, then it opens the door to anyone being able to force the government to allow it use of government facilities regardless of any standard of appropriateness.

Now, if we the people feel that the standards of appropriateness applied by our local governments are not in line with the community standards, we have this amazing thing called the ballot box. And local governments are a lot easier to change that those higher up the chain.