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Second Amendment Incorporated by Ninth Circuit Panel, in

Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" And in footnote 16 it points out that

Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller's suggestions. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls ...."). But see Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009) (concluding that Presser forecloses application of the Second Amendment to the states).
(I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.)

This sort of "fundamentalness" reasoning in naturally mushy — as it has been throughout the Court's selective incorporation cases — but here's roughly how the panel goes through it: (1) It points to evidence that the right was seen as very important by the Framers, and concludes, "This brief survey of our history reveals a right indeed 'deeply rooted in this Nation's history and tradition.' Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight."

(2) It points to continued support for the right from the Framing on, noting among other things that 44 state constitutions contain a right-to-bear-arms provision.

(3) It particularly points to the support of the right, including its self-defense component, around the time the Fourteenth Amendment was ratified.

Note that the better articulation of the test the panel actually applied was probably whether the right is "deeply rooted in this Nation's history and tradition" (citing Glucksberg), not whether it's "necessary to an Anglo-American regime of ordered liberty." Among other things, the Anglo- half of "Anglo-American" abandoned the right decades ago, and it's pretty clear that many of the rights that have indeed been incorporated (such as, for instance, the privilege against self-incrimination) aren't strictly necessary to our regime of ordered liberty. But that criticism would equally apply to many of the Court's selective incorporation cases, which probably also followed the "deeply rooted" test even if they didn't articulate their reasoning that way.

The panel's reasoning begins by pointing to the Framing Era sources

Thanks to Alice Marie Beard for the tip. Will blog more as soon as I can carefully read the opinion.

A Law Dawg:
Something tells me that this will slip by many of those who decry the 9th as outrageously liberal.
4.20.2009 1:08pm
Per Son:
Crap!!!!

Now it is gonna get reversed!
4.20.2009 1:11pm
merevaudevillian:
Interesting. I wonder if the panel made this reverse-proof, at least for now. That is, the defendants won. The probably didn't want incorporation, but they won the appeal. The plaintiffs may not want to appeal because they can preserve the incorporation argument for later cases. But the defendants can't appeal because they won on the ultimate issue.
4.20.2009 1:18pm
AMB:
Decision is here:
4.20.2009 1:20pm
AMB:
4.20.2009 1:21pm
A Law Dawg:
This brief survey of our history reveals a right indeed "deeply rooted in this Nation's history and tradition." Moreover,whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right theyfought for and the right that allowed them to fight.


The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamental at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the collective rights argument the Supreme Court rejected in Heller.


we conclude that the Due Process Clause of the
Fourteenth Amendment applies the protections of the Second
Amendment to state and local governments


To summarize: the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for "sensitive places" that Heller recognized. These considerations compel us to conclude that the Second
Amendment does not invalidate the specific Ordinance before
us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile.


So:
1) Fundamental right, yes.
2) Incorporated, yes.
3) This Ordinance is protected by Scalia's wiggle room: Yes.

Still a remarkable opinion.
4.20.2009 1:22pm
A Law Dawg:
I should add that the opinion dodges the question of what level of scrutiny to apply.
4.20.2009 1:26pm
Cityduck (mail):
Dicta?
4.20.2009 1:29pm
Brett Bellmore:
Sounds like another Emerson style "We affirm this right is worthless." decision.
4.20.2009 1:33pm
Trendy Wendy (mail):
NOTE: As a Jewess in the US, let me say that 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 it forbids not only CONGRESS, but ABNYONE from infringing on the 2nd Amendment. The 1st says "Congress shall make no law...". The 2nd say "shall NOT be infringed!" Period!
4.20.2009 1:34pm
Frog Leg (mail):
The opinion's argument on incorporation is not impressive. The crux of the incorporation argument is that any argument against incorporation is a collective rights argument, and therefore rejected by Heller (at 4494). This seems to be a drastic oversimplification of the issues involved (as well as a interesting shift of the burden of proof).
4.20.2009 1:38pm
Oren:

Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for "sensitive places" that Heller recognized.

Scalia's dicta carries serious weight.

Wendy, Baron v. Baltimore threw out that line of reasoning almost 200 years ago. Also, I don't see how your religion is relevant.
4.20.2009 1:41pm
A Law Dawg:
The opinion's argument on incorporation is not impressive. The crux of the incorporation argument is that any argument against incorporation is a collective rights argument, and therefore rejected by Heller (at 4494). This seems to be a drastic oversimplification of the issues involved (as well as a interesting shift of the burden of proof).


I interpreted the opinion to say that if there are any good arguments against incorporation, the County didn't make them, and only argued the collective right.
4.20.2009 1:42pm
Monty:
What an pyrrhic victory for the gun grabbing county executive. She got the gun shows banned from county property, but accidently got the 2nd amendment incorporated in the process...
4.20.2009 1:49pm
A Law Dawg:
What an pyrrhic victory for the gun grabbing county executive. She got the gun shows banned from county property, but accidently got the 2nd amendment incorporated in the process...


Talk about winning the battle to lose the war . . .

If I was the Plaintiff there's no way in Hell I would appeal this.
4.20.2009 1:51pm
Soronel Haetir (mail):
I'm somewhat surprised that this didn't run into some sort of veneu discrimination problem after they decided the incorporation issue.

The entire 'sensitive places' analysis seems very weak to me. Judging a place's sensitivity based solely on how many people are gathered feels like a cop out.
4.20.2009 1:56pm
Mazeman (mail):
Please enlighten a non-attorney.

I thought only SCOTUS determined incorporation.

Is this good or bad for us gun owners?
4.20.2009 1:57pm
A Law Dawg:
Please enlighten a non-attorney. I thought only SCOTUS determined incorporation. Is this good or bad for us gun owners?


The 9th Circuit's opinion binds all courts in the 9th Circuit (so, the entire West Coast).

I think this is a huge win for gun owners. Paraphrased, the SCOTUS's decision in Heller said "the 2nd Amendment provides some protection against Federal (or DC) regulations." The 9th Circuit basically said "Oh, and it protects against some state and local laws too . . . just not this one."

The application of the 2nd Am. to state and local government is (at least on paper) a profound development. We'll see how many exceptions get carved out.
4.20.2009 2:13pm
Brett:
Mazeman --

Any court can hold that a particular amendment is incorporated; the decision, however, only has weight within the court's territorial jurisdiction, and only to the extent that there's not contrary higher authority.

So this decision applies throughout the Ninth Circuit (i.e., Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington). State and federal courts outside the Ninth Circuit aren't bound by it, though they can consider it as persuasive authority, and the Supreme Court can reverse it.
4.20.2009 2:14pm
Oren:

If I was the Plaintiff there's no way in Hell I would appeal this.

Can defendant cross-appeal the unfavorable disposition of their collective-rights interpretation? I thought Fed procedure allows such an appeal any time a court reaches an unfavorable legal conclusion, even if you ultimately prevail.

Of course, it's not a wise thing to do ...


I thought only SCOTUS determined incorporation.

Is this good or bad for us gun owners?

(1) The Supreme Court listens to appeals, a lower court has to make the relevant factual and legal findings first. Ultimately the Supreme Court will determine whether this ruling stands, if they chose to review it (which is entirely voluntary on their part).

(2) It's either good or neutral for gun owners, good if the CAs start applying scrutiny to gun laws, neutral if all or virtually all state/local laws stand up to whatever scrutiny here (e.g. the right could have no teeth).
4.20.2009 2:17pm
Tony Tutins (mail):
This decision was the exact opposite of Quilici v. Morton Grove -- an unexpected pleasure, like finding a hundred-dollar bill in one's sock drawer. But there will still be no gunshows at the County Fairgrounds, because the County has as much control over guns at their fairgrounds as they do in their courthouses.

Which is a shame. To me it's as if County Hospitals were free to prohibit abortions.
4.20.2009 2:19pm
Melancton Smith:
Talk about a day early and a dollar short...ok, 3 days early...

Last Friday Chicago argued:


Unlike other enumerated rights, the Second Amendment was not codified to protect individual liberty. Rather, although conferring an individually held right, the scope of the Second Amendment's protection is circumscribed by its primary purpose of preventing federal disarmament of the militia. Nor does the history of the right to arms in England and America, including its development under state constitutions, reveal a deeply rooted right to any particular category of firearms commonly used for self-defense, much less a specific right to handguns, without regard to the danger imposed by the weapon or the availability of other arms that will serve the underlying purpose of self-defense in the home. Under the operative test of "ordered liberty," state and local governments should be free to decide that the right to possess handguns --- the type of weapon most responsible for homicides, suicides, and other armed violence --- is not implicit in the concept of ordered liberty.
4.20.2009 2:21pm
David in San Diego (mail):
A question on Due Process Clause vs. Privileges and Immunities Clause. Which makes the stronger case for overturning restrictions on owning certain types of firearms?
4.20.2009 2:27pm
Soronel Haetir (mail):
David in San Diego,

P&I is basically a dead letter as far as I can tell. The language may as well be considered superfulous.
4.20.2009 2:37pm
James Gibson (mail):
In response to A Law Dawg, by getting the 9th to vote for incorporation, it pressures the Supreme Court to do the same. Granted the 9th is the most reversed court of the Appeals Courts, but usually Justice Reinhart is writing the opinion that is reversed.

Now as for Chicago, if that court also rules for incorporation the pressure on SCOTUS gets even higher. And of course the higher that pressure gets, the higher the pressure on Congress (or certain States) not to impose further restrictions unless they want their new law immediately challenged and possibly overturned.
4.20.2009 2:38pm
Tony Tutins (mail):
Basically the Privileges and Immunities Clause means that other states must treat you no worse than they treat their own citizens.
4.20.2009 2:38pm
James Gibson (mail):
It would be interesting how much attention this opinion will get from the Mainstream Media. Possibly it will be mentioned on Lou Dobbs (CNN) or Glenn Beck (FOX) but I suspect it will get no notice until it truly reaches SCOTUS
4.20.2009 2:42pm
Oren:

Which is a shame. To me it's as if County Hospitals were free to prohibit abortions.

Nicely prescient of EV's latest post covering the analogy with Webster.
4.20.2009 2:46pm
Gabriel McCall (mail):
The finding that a fairground is a "sensitive place" just like a school or hospital, just because lots of people go there, seems arbitrary and unjustified. By that logic, we can make any place sensitive by drawing the borders big enough: the whole of Alameda County must be a sensitive place since 1.5 million people live there, many more than the 4000 who would attend a gun show.
4.20.2009 2:47pm
A Law Dawg:
Now as for Chicago, if that court also rules for incorporation the pressure on SCOTUS gets even higher.


I disagree. If circuits start falling in line behind incorporation, the SCOTUS has no need to hear the issue.
4.20.2009 2:58pm
Daryl Herbert (www):
necessary to an Anglo-American regime of ordered liberty

Does this count as relying on "international law" in making a decision?

Of course not. Everyone knows that the Anglo-American regime of ordered liberty is given zero weight in international law.
4.20.2009 3:05pm
Curious Passerby (mail):
If circuits start falling in line behind incorporation, the SCOTUS has no need to hear the issue.

But it would be good to get a clear SCOTUS incorporation ruling before the court begins swinging to the left.
4.20.2009 3:16pm
A Law Dawg:
But it would be good to get a clear SCOTUS incorporation ruling before the court begins swinging to the left.


No doubt, but I was responding to the suggestion that circuits coming into accord would exert pressure on SCOTUS to rule.
4.20.2009 3:20pm
AD (mail):
The new question is whether CA restrictions on firearms such as the AWB and the Not-Unsafe Gun List are not violations of Due Process and Equal Protection.
4.20.2009 3:26pm
Kazinski:
Am I the only one to notice EV was cited in the decision?

(citing Eugene Volokh, "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1, 5 (2007)).
4.20.2009 3:27pm
A Law Dawg:
Am I the only one to notice EV was cited in the decision?


No doubt the Panel was just whoring for a blog post.
4.20.2009 3:36pm
Jon Roland (mail) (www):
The 9th failed to properly define "sensitive places", leaving the implication that all public property constitutes sensitive places, including public roadways, sidewalks, and other areas to which access is not restricted, as it might be for government offices or warehouses. Clearly, the notion in Heller on this was that it only meant restricted access places, not public commons or right-of-ways. Unless clarified on this point, the finding on incorporation is really only dictum, even if called a conclusion. It could be cited on a case involving prohibition of firearms on private property, but without the ability to get to private property across a public commons or right-of-way the RKBA would be restricted to contiguous private parcels, and most private parcels are not connected except across public rights-of-way.

This case should be appealed to get the clarification that the ordinance is only properly applied to restricted access government property, not to public commons or rights-of-way.
4.20.2009 3:47pm
RKV (mail):
AD The Supes have already ruled that the state cannot require a license a exercise a right protected by the Constitution. Unfortunately I don't have the cite at my office - IIRC the case was in the 1940s and had to do with licensing door to door religious proselytizing.
4.20.2009 3:57pm
Tony Tutins (mail):
the state cannot require a license a exercise a right protected by the Constitution

If you can't license a right, what about all those Loving (v. Virginia) couples exercising their right to a license?
4.20.2009 4:10pm
John Powell (mail):

I disagree. If circuits start falling in line behind incorporation, the SCOTUS has no need to hear the issue.


Agreed. I take that further and suggest that if the seventh circuit (Chicago) does NOT incorporate it will almost compel SCOTUS to intervene. One of the prime motivators for SCOTUS to take cases is when there is disagreement among the various circuits. That is very bad public policy and they like to clean those situations up.

As a Chicago resident, I am hoping for the seventh to incorporate.
4.20.2009 4:11pm
John Powell (mail):

the state cannot require a license a exercise a right protected by the Constitution

If you can't license a right, what about all those Loving (v. Virginia) couples exercising their right to a license?


And all those paraders getting parade permits.....
4.20.2009 4:14pm
Matthew Carberry (mail):
Most of the 9th is already pretty "pro-gun". Even California (most of it anyway) stacks up pretty well versus some of the cities and states back East.

The big outlier in the 9th isn't California, it is Hawa'ii.

Everything criticized about Cali seems to be even worse on the islands, it will be interesting to see what happens out there.
4.20.2009 4:16pm
Brett:
The new question is whether CA restrictions on firearms such as the AWB and the Not-Unsafe Gun List are not violations of Due Process and Equal Protection.


Fearless prediction: if the AWB is ever challenged on Second Amendment grounds, courts will point to the "dangerous and unusual" dictum in Heller without any further analysis.
4.20.2009 4:21pm
Scott W Somerville (mail) (www):
Time for my semi-mandatory "privileges and immunities" rant.

"The challenges of the 21st century necessitate the radical rejection of the Slaughterhouse Cases to enable Americans to secure the blessings of liberty for ourselves and our posterity. Any 'balancing test' jurisprudence based on 'compelling interest' or other subjective tests must fail in a world increasingly filled with weapons of mass destructions and enemies willing to use them. American citizens deserve the bright-line protection of our 'privileges and immunities,' but guests and other aliens do not. Government should not abridge fundamental American freedoms like speech, press, petition, assembly, privacy, and travel, but it should not protect the sworn enemies of America, either.

"Every person present on American soil deserves protection of life, liberty, and property, whether that person is a citizen or not, and whether that person is friendly to the United States or not--but our enemies should not invoke the Fourteenth Amendment protection of rights that only citizens should claim. An American citizen should the right to burn our flag on our soil--but nobody else does.

"We can and should protect the political rights of every American citizen to the highest degree possible--and we do that by treating speech, petition, assembly, privacy, and travel as privileges and immunities which no state may abridge, not as 'liberties' which the courts can balance away."

End of rant. Sorry--I've been saying this since 9/12/2001 but nobody seems to listen.
4.20.2009 4:28pm
Brock (mail) (www):

Among other things, the Anglo- half of "Anglo-American" abandoned the right decades ago, and it's pretty clear that many of the rights that have indeed been incorporated (such as, for instance, the privilege against self-incrimination) aren't strictly necessary to our regime of ordered liberty.


I don't think that's clear at all. The UK has lost much of its order and its liberty in recent decades, and the loss of the right of self defense is a cause of the loss of order and evidence of the loss of liberty.
4.20.2009 4:40pm
Edmund Unneland (mail):
Perhaps I didn't notice in the opinion, but would a municipality have any additional ability to regulate guns in buildings and lands that it owns (exercising rights as a proprietor) as opposed to sidewalks and streets? Does that right only arise in the context of areas deemed sensitive per Heller?
4.20.2009 4:53pm
B. Johnson (mail):
Regarding the USSC's so-called selective incorporation where the 14th A. is concerned, there is no such thing. This is evidenced by the fact that John Bingham, the main author of Sec. 1 of the 14th A., had clarified before Congress, after the ratification of that amendment, that it applied all the Constitution's privileges and immunities to the states. See for yourselves.

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution, may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows:

(first eight amendments listed)

These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment." --John Bingham, Appendix to the Congressional Globe, 1871 http://tinyurl.com/y3ne4

Corrections welcome.
4.20.2009 5:02pm
Bart (mail):
Footnote 19 on page 4497 notes that fundamental rights usually receive strict scrutiny and the court saw no reason to treat the Second Amendment differently from the First.

Moreover, Heller's famous passage about the decision not reaching certain laws spoke about sensitive areas that were not traditionally public forums like schools and government buildings.

Thus, I was expecting to see the Circuit use a variation of the First Amendment reasonable time, place and manner test for speech in parks to apply the Second Amendment to county fairgrounds. However, I was disappointed in that expectation.

Has anyone read the plaintiff of amici's briefs? Did they make an argument along those lines that that the Circuit considered and rejected?
4.20.2009 5:13pm
10ksnooker (mail):
It would be very easy to confuse me, but didn't Heller promote the Second Amendment to it's rightful place, an enumerated right, and doesn't strict scrutiny apply to enumerated rights?
4.20.2009 5:23pm
Ron B (mail):
The bad: No standard of review was annunciated. The court merely held that the ban can exist so long as it is in "sensitive areas". That is a joke. This will make it de facto a rational basis test since anyone seeking to enact a law or ordinance will simply claim the area is "sensitive"; which according to this court, is anywhere people may gather (which is just about anywhere). Ironically, these areas are frequently sensitive because no one is armed, like gun free zones, such as federal parks (now), the Binghamton Immigration Service office etc.

The good, the 2A applies to the states.

Overall, the courts continue to recognize the right but nonetheless feel it appropriate to permit the states to limit it as the states see fit. I fear that we now have a body of law developing that merely acknowlege's the existence of the right, but ultimately will not protect it from infringment.
4.20.2009 6:08pm
pintler:

Basically the Privileges and Immunities Clause means that other states must treat you no worse than they treat their own citizens.


That would be nice ... reciprocity!
4.20.2009 6:17pm
John Powell (mail):

"It would be very easy to confuse me, but didn't Heller promote the Second Amendment to it's rightful place, an enumerated right, and doesn't strict scrutiny apply to enumerated rights?"



That is one of the complaints regarding Heller. It created a new standard for scrutiny, but did not define it. All we really know is it is less than strict, greater than rational basis. They did list some areas where the govt can regulate:

- Require a license

- "Sensitive places" like schools and government buildings (but did not define it further than that).

- Can restrict "dangerous and unusual" weapons. No definition of this either. It almost certainly applies to a bazooka or nuke, not so sure about an AR-15, that will get tested over time.

- Can regulate/ban concealed carry. They did not discuss open carry or general transportation issues.

- some other things I am probably forgetting and/or have not arisen yet.

They basically suggested most of the current laws are fine.

The strictest parts of Chicago's laws, and probably some of California's laws, are the most likely to be found unconstitutional (assuming incorporation succeeds).

Laws against machine guns, bazookas, etc. are likely to be left alone.

Laws against so-called "assault weapons" are likely to be litigated in the next phase.
4.20.2009 6:33pm
Soronel Haetir (mail):
I also expect discretionary licensing schemes to come under attack soon. Not sure if it will be considered dicta nit tje Jeller majority also wrote disqualifying arbitrary and capricious standards.
4.20.2009 6:44pm
ohwilleke:
On to SCOTUS.

We have a clear circuit split and a well defined question of law relevant to probably thousands of lower court cases before its all over, concerning a newly described and defined individual constitutional right which is part of the bill of rights.

It is hard to imagine a case that is more cert worthy.
4.20.2009 7:18pm
ohwilleke:
Hard to imagine a case more cert worthy other than Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009), anyway. I suspect that Maloney would make a better vehicle than Nordyke v. King, simply beause cert in Nordyke wouldn't change the result, while cert in Maloney might.
4.20.2009 7:24pm
RKV (mail):
"Laws against so-called "assault weapons" are likely to be litigated in the next phase."

Seems to me that a state AWB runs afoul of of Article 1 Section 8, in the case that the 2nd is incorporated vis a vis the states (depending on the level of scrutiny of course). Weapons similar to what the military or police use are best suited to help the militia perform it's constitutionally defined missions.

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

Hard to imagine repelling an invasion with single shot .22s, while an AR would be just the ticket.
4.20.2009 9:12pm
Lawrence D. Church (mail):
"What you lose on the swings, you make up on the roundabouts..."

The Court in two sentences invited the Nordykes to re-phrase their application...

"In any event, only if the Scottish Games ensure that 'authorized participants' possess the firearms or that the firearms are secure can they get the benefit of the exception. If the Nordykes could meet one of those criteria, they could get the benefit of the exception as well.
--- Nordyke vs. King, p37 of the PDF....

As a practical matter, gun-shows could assure that only 'authorized participants' possess guns and that all other firearms are 'secure' ... and, presumably, should then be able to argue that they are entitled to come within the exception crafted by the County. If the County still refused a permit, I think this Court has indicated they would be in for a rough ride.

Or is that too practical for the 9th Circuit ?
4.20.2009 9:15pm
RKV (mail):
Just to follow up on my earlier post about prohibitions on licensing a right. And do please don't let's get caught up in the language of granted vs. pre-existing rights.

"A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution."
— MURDOCK V. PENNSYLVANIA 319 US 105 (1942)
4.20.2009 9:18pm
Tony Tutins (mail):

As a practical matter, gun-shows could assure that only 'authorized participants' possess guns and that all other firearms are 'secure'

In California there are no "gun show loopholes": all sales at shows must go through licensed dealers, who hold the cash and firearms until the waiting period is over.

So, the class of selling dealers can be made secure, and the class of transfer dealers can be made secure. Private sellers have their firearms inspected and listed at the door to the show, so presumably they can be made secure. The only unsecure group would be the private sellers trying to make deals in the parking lot, which presumably the show operator would also like to prevent.
4.20.2009 9:24pm
Tony Tutins (mail):
Addendum: No deliveries are made at California gun shows (as far as I know) so no one is walking out of the show with anything he did not come in with except for the transfer dealer.
4.20.2009 9:26pm
Kharn (mail):
My understanding of CA law allows you to walk out of a gun show with a new weapon IF you've already passed the 10 day waiting period. For example, Dealer A's shop is 100mi from your home, but the regular gun show location is only 20mi. One weekend he comes to the gun show, you pay him for a firearm and fill out the paperwork to start the background check. Two weeks later (greater than the 10 days required, but less than the 30 day lifetime of the approval) you agree to meet Dealer A at another gun show at the same location, he brings your firearm and your paperwork, you complete the sale and legally take home your firearm that day.

You've saved time and gas driving to/from his shop (and presumably money over the local dealer), and he made a sale that he would've otherwise lost to a competitor with a closer location.
4.20.2009 10:37pm
matt (mail):
A court would be hard-pressed to find that semiautomatic AR-15 pattern rifles are particularly dangerous or unusual; for "unusual", they're among the most popular rifles sold in recent years, and for dangerous, they're no more so than the many semiautomatic hunting and "ranch" rifles sold in the same (weak-ish) caliber.

'course, in a just world anyone trying to ban the primary infantry rifle of the regular army from civilian ownership would be slapped down in court, with an opinion consisting entirely of the words: "See amendment 2". ;)

-m@
4.21.2009 3:01am
LarryA (mail) (www):
The entire 'sensitive places' analysis seems very weak to me. Judging a place's sensitivity based solely on how many people are gathered feels like a cop out.
Given the direct link between gun-free zones and active shooters, I'd think that would be a better standard. The fewer legal guns you have, the more sensitive a place is. But that's a real-world application, not a legal one courts would recognize.
Most of the 9th is already pretty "pro-gun". Even California (most of it anyway) stacks up pretty well versus some of the cities and states back East.
The Brady folks disagree. (PDF)
I also expect discretionary licensing schemes to come under attack soon. Not sure if it will be considered dicta nit tje Jeller majority also wrote disqualifying arbitrary and capricious standards.
The results of discretionary laws are also blatantly discriminatory. On any other subject than gun control they would already have been challenged by the liberal civil rights organizations and overturned.
Two weeks later (greater than the 10 days required, but less than the 30 day lifetime of the approval) you agree to meet Dealer A at another gun show at the same location, he brings your firearm and your paperwork, you complete the sale and legally take home your firearm that day.
Not very likely to happen. Gun shows aren't held every other week. Besides, from my experience running a Texas gun store most purchasers would gladly drive the extra 160 miles rather than wait the extra 4 days.
4.21.2009 3:17am
CalAttnyKen (mail):
I was especially interested in the standard of review announced by the Ninth Circuit panel, i.e. "meaningfully impede." This is starting to take on the same language as the abortion/privacy jurisprudence. I would not be surprised if we started to see "undue burden" thrown around.

The question is, with Hickman now "abrogated," coupled with Heller's holding that complete bans are per se violations of the 2nd Amd, is Silveira v. Lockyer still good law? I posit that it is not, as it specifically stood on the now discredited collective rights model and never addressed the 2nd Amd merits. The upshot: Is the Cal assault weapons ban constitutional under Heller and Nordyke?

Thoughts?
4.21.2009 12:33pm
ShelbyC:

The 9th Circuit's opinion binds all courts in the 9th Circuit (so, the entire West Coast).


IANAL, but to clarify, it only applies to federal courts in the 9th. State courts aren't bound by federal circuit courts.
4.21.2009 2:49pm
Tony Tutins (mail):

State courts aren't bound by federal circuit courts.

An excellent point. Does anyone know how California state courts weigh the precedential value of Ninth Circuit interpretations of the Constitution?
4.21.2009 4:17pm
Disintelligentsia (mail):
State courts are bound by federal courts on issues of federal law. Therefore, the court's decision that federal law (the second amendment of the constitution) is binding on the states via the selective incorporation doctrine binds state courts. Indeed, that's precisely what the incorporation doctrine is about - binding state actors (such as courts) to the restrictions on government action found in the Bill of Rights.
4.21.2009 7:17pm
Tony Tutins (mail):

State courts are bound by federal courts on issues of federal law.

I would have thought so, but this article seems fairly persuasive that Circuit Court decisions are not binding on state courts.

The first half of the article discusses Federal courts' Erie interpretations of state law; the second half discusses Federal courts' interpretations of Federal law, which is the issue here.
4.21.2009 10:50pm
Disintelligentsia (mail):
Tony Tutins said:

I would have thought so, but this article seems fairly persuasive that Circuit Court decisions are not binding on state courts.



A very interesting article. Since I went to law school in Arkansas, one of the states that adhere to the rule that federal appellate court decisions regarding purely federal law was controlling I was unaware of the contravailing decisions. However I still believe the state courts would be bound in this particular case because the issue involved is the question of whether the 2nd is incorporated against the states. I suppose the the state court could just say, "Nope, we think Cruikshank controls and since we're bound by SCOTUS and not the 9th, we're going to disregard the 9th's decision that the 2nd is incorporated." I think it's more an academic question than anything else because I really don't see it happening. It's an interesting argument though.
4.21.2009 11:41pm

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