So I thought that the Ninth Circuit's holding that the Second Amendment binds state and local governments (via the Fourteenth Amendment) was a pretty big deal. It was the first federal court of appeals decision to so hold. If followed, it would invalidate the Chicago handgun ban, plus perhaps some other broad state and local gun restrictions, such as New York City's ban on all gun ownership by 18-to-20-year-olds. And it might well trigger Supreme Court consideration of the issue, since there's now a split between the Second and Ninth Circuits on the issue.
But here's the odd thing: I couldn't find any articles about this in the New York Times, the L.A. Times, the Chicago Tribune, or the Washington Post. (I searched for second amendment or bear arms or nordyke or gun show.) There was early coverage on CNN and in the San Francisco Chronicle, but nothing else in any newspapers in the NEWS;MAJPAP file on LEXIS. Am I missing some stories that just didn't happen to use the keywords I searched for? Or is the court decision just not worth even a brief mention?
UPDATE: A comment by PubliusFL reminded me to check what newspapers said about earlier decisions in this case.
It turns out that when the California Supreme Court upheld the ordinance against a state preemption challenge, the L.A. Times and the San Jose Mercury News covered this (Apr. 23, 2002). When the Ninth Circuit rejected a Second Amendment challenge on the grounds that the Second Amendment secured only a collective right -- simply following past Ninth Circuit precedent on this score, and echoing the views of most circuit courts -- the L.A. Times and the San Jose Mercury News covered this (Feb. 19, 2003). But this time, when the Ninth Circuit becomes the first circuit court to hold that the Second Amendment applies to state and local governments, no coverage.
Most other major papers (except the St. Louis Post Dispatch, Feb. 19, 2003 and the Chicago Tribune, Apr. 23, 2002) apparently didn't cover those earlier decisions. That's understandable, since at that point the decisions were of mostly local concern, given that they followed the then-dominant view of the Second Amendment (the 2003 decision) or were focused on California preemption law (the 2002 decision). But now the Ninth Circuit breaks new ground, in a decision that might influence litigation throughout the country (since circuit decisions tend to have some persuasive weight even outside the circuit) and that might prod the Supreme Court to consider the issue. I would have thought that this at least would merit some coverage from the New York Times, the Chicago Tribune (especially given the possible effect on the currently pending Chicago handgun ban litigation), the Washington Post, and the like. And certainly it seems to merit coverage from major California papers, such as the L.A. Times and the San Jose Mercury News, especially given that they covered earlier and seemingly less important decisions in the case.
On other occasions, the big city media treat gun issues as a matter of great interest, don't they?
Its why you will always find stories of a person being shot by a criminal but never one of a person using a gun in self defense. The result is always the argument that self-defense never happens. Yet according to the FBI statistics self-defense by civilian is not that much worse then self-defense by the cops (who's use of a weapon is always reported).
Very few journalists would have a clue what that means. Neither would most of their readers.
I have actually discussed this with many of them, as well as why they don't cover constitutional matters generally. They claim they don't know how to report on them, and that they don't think their readers or viewers would be interested. Even the libertarian journalists like John Stossel say that. If you want to get them to write about something like this, you have to stage some stunt that is visually interesting, like burning yourself alive in protest on camera. But one martyr isn't enough to make the evening news. Better get at least 100.
If it bleeds it leads. Or if it burns or blows up.
News Busters
One of their favorites to track is called "Name That Party". Whenever a Republican gets indicted, convicted, caught in a sex scandal, or even just anonymously accused of something, every news source from the AP to the NYT to the big networks leads with the party affiliation, followed by an in-depth discussion of how this means the GOP is evil and doomed to oblivion. Let a Democrat get into trouble, and if it's reported at all, the party identification is nowhere to be found in any of the stories and there is never any analysis of how terrible this is for the Dems in general.
It's no wonder at all that there is a perception that the Republican party is corrupt but the Democrats less so.
Pretty much every Republican is labelled a right wing extremist with the exception of Specter, Snowe and Collins, but the terms leftwing, liberal or socialist are almost never to be found. In the first 100 days of Obama:
They're not "Just Words". By controlling their definition and even how often they're used, you can actually shape thinking patterns. One of the key propositions of "1984" was that by outlawing certain words, people never thought them either and it shaped their behaviors as a result. It's called neurolinguistics.
There are three reasons for this:
1. The concept of selective incorporation is wholly unknown to most of the public. Those few reporters who actually understand and appreciate its legal significance would likely be unable to write a concise explanatory general readership article.
2. Some of the reporting on Nordyke has focused on its affirmation of Alameda County’s ordnance and on the holding that county property is a "sensitive place" not affected by Heller. For those who read Nordyke this way, it only serves to reinforce the notion that Heller didn't change anything — so there's no new news to report.
3. And of course there's rampant editorial bias in the mainstream media against reporting any "good news" on the right to keep and bear arms, unless it can be spun in a violently threatening manner (e.g., 90% of all firearms used by Mexican drug cartels come from the U.S. via legal sources).
Look for widespread — and alarmist — press coverage once a significant state law is held unconstitutional on Second Amendment grounds.
I suspect that this is not due to some vast left wing conspiracy (has the Washington Times or Fox mentioned it?) but just lack of interest until there is a more defined and easier to understand court ruling, presumably by SCOTUS.
Seemingly, the only qualification for reporters is the ability to see the red portion of the color spectrum. If it bleeds, it leads.
The internet and bloggers can help fill this void.
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I won't hold my breath that there will ever be a holding that any law is unconstitutional on 2nd amendment grounds.
I have also been surprised by the lack of coverage of this decision, even in the blog sphere. It simply hasn't gotten the level of attention it should.
The few places that did pick it up were focusing on the ultimate decision regarding the gun shows, which misses the significance of the decision.
As a huge second amendment supporter, personally I am ready to put on party hats and break out the cake. This decision was HUGE for gun rights.
Neither. You couldn't find the stories because they weren't there. And the decision was, indeed, worthy of front page status.
1) If the news item runs against their agenda and they figure some public outrage could reverse the decision, they whip up the outrage.
2) If the news item runs against their agenda and there's not a darn thing they can do about it, they refuse to mention it.
3) if the news item runs for their agenda, it's on the front page.
The First Amendment seems to me to have been designed to protect speech critical of the government. Many use it for that purpose. Most of those, however, are not "professional journalists."
It is my hope that the Safe Firearms List and "assault weapons" ban will soon be dead in California. And elsewhere, because this decision is one of the few from the Ninth Circuit that doesn't seem eminently reversible.
Well, seems to me that the Heller decision held that the District of Columbia's flat out ban on new handgun registrations, and their ban on assembled and operable long guns, was held to be unconstitutional on Second Amendment grounds.
Unless, of course, I misread the decision.
Um, wasn't that what happened in Heller?
Journalists: biased and clueless.
The Ninth Circuit decided that the Second Amendment applied (announcing the rule) and then found that in the application, the statute is permissible under the rule. How is any part of the core logical chain of the decision dicta?
A rule announced and not applied in a case makes that case such a weak precedent that it is unlikely to have more influence than dicta.
Part of the problem is that judges, in writing decisions, generally don't clearly separate them into decision (order), finding, and dictum. The incorporation was a finding, but it did not apply, and therefore was not the basis on which the court decided. The finding that mattered was that the gun show site was a "sensitive area" where the right of the government to exclude weapons on its property trumped the right of the public to have them there. The effect was to open the door to defining virtually any government property, including streets and sidewalks, as "sensitive areas", and thus limiting the right to private property, without allowing anyone to get to the private property.
Now we are left with having to argue and narrow the bounds of what government property is "sensitive". That was unavoidable, because there is government property on which it may reasonably exclude firearms, such as prisons, and perhaps courthouses and offices, if it provides for checking weapons in at the door. But Nordyke did not adequately address that boundary, and the decision, IMO, erred in classifying as "sensitive" an area that isn't.
In truth, the court did not suggest it might be incorporated. They wrote:
"We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and
applies it against the states and local governments."
The SF Chronicle was the only "mainstream" coverage that I noted. I have also noted that even Paul Helmke has decided not to blog on it, nor has the Brady Campaign issued a press release. They know what a set-back this is for their agenda, given their amicus brief.
I did catch Helmke on a TV news station, saying something to the effect that Nordyke was a big victory for them as it held that reasonable regulations are constitutional. In this case, we have the prohibition of a fundamental right on public lands held as constitutional ...
But what the hey. This too shall pass (away).
"In Heller, the Supreme Court held that, under the Second Amendment, the federal government -- including the District of Columbia -- cannot totally ban the private possession of handguns.
"In Nordyke, the Ninth Circuit held that the same rule applies to the states. This ruling is significant because it means that unduly extreme state and local firearms regulations may violate the Second Amendment."
Done.
Selective reporting is the key. The selection bias is too consistent to be actual "news" choices; there is a deliberate filter in place.
If all stories the public ever sees concerning guns are about youths ("gang members") murdering each other, a suitably misinformed but rational reader might well come to the conclusion that guns are only useful for murder and thus should be banned if possible. If you control the information, you control the conclusion.
Ask Bernard Madoff.
There ought to be a Rule 10b-5 for urinalists.
Oh, I suppose the internet is taking over that role but it is difficult to fight those who buy newsprint by the train load or airtime by the hour.
Nordyke was not dicta. Page 9 of the opinion states:
"[3] The second obstacle facing the Nordykes is incorpora-
tion. That is, we must decide whether the Second Amendment
applies to the states through the Fourteenth, a question that
Heller explicitly left open. See 128 S. Ct. at 2813 n.23.
Finally, even if the Fourteenth Amendment does incorporate
the Second against the states, we must determine whether it
actually invalidates the Ordinance."
Incorporation had to be decided prior to ruling on the validity of the county ordinance.
chsw
Can you dodge such restrictions by having a corporation own the firearms and have the (non-minors) be the sole shareholders?
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I should have qualified my "won't hold my breath" comment with a "from this point forward I won't hold my breath." Miller was another case decided against the government on 2nd amendment grounds. I guess my point is that except for the most egregious laws (total bans on possession at home), the government is free to infringe.
It didn't fit the NYT political agenda, so it didn't happen. Selective reporting at its finest.
Interestingly enough, the hoplophiles among my friends were already conversant with the doctrine, and somewhat jubilant (the point's mostly moot here in Texas, after all, given our state constitutional protections.)
I argued the case. Except for a Lou Dobbs piece, no national media covered the case. Local papers covered the case in the same manner as all the other developments in the case. [i.e., they got facts wrong and slanted the story as a victory for gun control.]
I have no explanation except to note that this BLOG is visted by the conlaw versions of sport team fans.
Silveira v. Lockyer
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), is a decision by the United States Court of Appeals for the Ninth Circuit holding that the Second Amendment to the United States Constitution does not guarantee individuals the right to bear arms. The case involved a challenge to the Constitutionality of the Roberti-Roos Assault Weapons Control Act (AWCA); California legislation banned the manufacture, sale, transportation, or importation of specified semi-automatic firearms. The plaintiffs alleged that various provisions of the AWCA impinged upon their constitutionally guaranteed right to keep and bear arms as individuals.
Judge Stephen R. Reinhardt wrote the opinion of the court. The court engaged in an extensive analysis of the history of the Second Amendment and its attendant case law, and it ultimately determined that the Second Amendment does not guarantee individuals the right to keep and bear arms. Instead, the court concluded that the Second Amendment provides "collective" rights, which is limited to the arming of state militia. The U.S. Supreme Court denied review.[1]
This decision disagreed with the holding of the Fifth Circuit in United States v. Emerson and, more recently, that of the Supreme Court of the United States in District of Columbia v. Heller.
[edit]
I argued the case.
Well done, sir!
I have no explanation except to note that this BLOG is visted by the conlaw versions of sport team fans.
The funny thing is that, as I pointed out above, the LA Times seemed pretty interested in inside baseball when the 9th Circuit was ruling against incorporation of the 2nd Amendment back in 2003. I guess they're the conlaw version of a fair weather fan.
The ninth circuit rejected this theory in an en-banc opinion, so Nordyke may not be considered dicta on the incorporation issue. However the dissent in Johnson persisted in rejecting the theory of dicta cited below.
In
US v michael johnson
So the position stated above about the incorporation being dictum is not what I support, but what I expect gun grabber judges to seize on to get the results they want, and we need to be prepared for that.
Now litigants in the Ninth Circuit need to get a favorable decision on possession in the home, and possession of military-style weapons, as those in general use by the military -- a point left unclear in Heller. then they need to trim the territory deemed "sensitive" so that it does not include public roadways, sidewalks, parking lots, and places of work that do not provide protection and check-in.
But a much much larger point of Orwell and 1984 (a critic of the Left-wing Communists) was The Ministry of Truth and The Party's ability to selectively ignore (down the memory hole) or re-write history.
You see yet another move by the media to ignore or twist inconvenient facts that don't fit their narrative and agenda. The press is far more Orwellian and scary than any CCTV cameras in Britain or Bu$Hitler NSA surveillance program.
This is from a legal publication. None of the "it's too complicated for reporters" BS applies. These guys understand perfectly well what the significance of Nordyke, and purposefully chose to not report it.
People in other fields, like law, have the same problem.
But the problem is not limited to gun rights. It extends to every area of civic affairs, from constitutional compliance to policy choice to public corruption. Just try taking a story to them about officials protecting narcotics trafficking in their jurisdictions.
The solution is for a better educated group to become journalists. Wait, they already are. They are called bloggers. And more and more people are getting their news and commentary from them.
If journalism students were smart, they would not go to journalism programs.
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