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Ninth Circuit Will Rehear Nordyke v. King En Banc:

That's the decision in which the Circuit held that the Second Amendment was incorporated against the states, and also that counties could — despite that — bar guns from county property (at least the fairgrounds and the fairground parking lots involved in that particular challenge).

As is usual with decisions to take the case en banc, the order provides that "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This technically means that there's no longer a circuit split on the subject, which diminishes the likelihood of Supreme Court review of the Second and Seventh Circuit decisions rejecting incorporation. (The Seventh Circuit decision involved the Chicago handgun ban.) But those two circuit decisions stressed that they felt themselves bound by Supreme Court precedent. That precedent is old and inconsistent with modern incorporation approaches (as D.C. v. Heller itself acknowledged). And over two thirds of the states (including California) support certiorari on this question, and support incorporation. This suggests that there's still a very good chance that the Court will agree to hear the incorporation issue, notwithstanding the Ninth Circuit's decision to review the matter en banc.

At the same time, I should acknowledge that I had wrongly predicted that the case probably wouldn't be taken en banc. So please view my other guesses about what courts will do with suitable skepticism.

UPDATE: According to the Ninth Circuit, "En banc oral argument will take place during the week of September 21, 2009."

cboldt (mail):
Any guess as to what the 9th Circuit will do en banc, as it affirms the panel's ultimate conclusion that Nordyke loses?
.
My guess is that all that talk of incorporation will be set aside, expressly reversed. If that happens (and it is certainly feasible as a matter of logic), then all the incorporation rhetoric of the panel will certainly turn into dicta - less than dicta even!
7.29.2009 6:53pm
Andrew Hyman (mail) (www):
Interesting. Thanks for the update, Professor Volokh.
7.29.2009 6:57pm
ruuffles (mail) (www):
Where did you find this? The 9th circuit en banc website was last updated 7/20 and does not list this case.
7.29.2009 6:58pm
Cato The Elder (mail) (www):
One thing I like about the GMU faculty bloggers in particular is how they are willing to publicize when they are wrong. It's a good norm to establish, keep it up.
7.29.2009 7:01pm
krs:
ruuffles, it can be found on the docket for the Nordyke case.

It can also be found on the "Opinions" link at the general CA9 site. http://www.ca9.uscourts.gov/opinions/

Right now it's at the top of the list.
7.29.2009 7:01pm
krs:
Cato, I can think of at least one GMU faculty blogger who probably thinks he's never been wrong about anything.

The UCLA faculty blogger who wrote this post, however, is quite willing to admit when he's been wrong about things.
7.29.2009 7:03pm
Carl in Chicago (mail):
Well cboldt ...

They might just overturn Nordyke on the weak argument that "prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for 'sensitive places' that Heller recognized."

And regardless, the SCOTUS might just take up the Chicago cases after all. Circuit split or not, residents of the DC metropolis enjoy a substantive constitutional right that the residents of the Chicago metropolis are denied. There is some serious tension there.

I look forward to the coming comments on this issue.
7.29.2009 7:08pm
cboldt (mail):
-- Circuit split or not, residents of the DC metropolis enjoy a substantive constitutional right that the residents of the Chicago metropolis are denied. --
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I agree that there is a substantive difference in how they are treated, but the bans are decades old, and so far there hasn't been any risk of revolution over that. I just prefer that the federal courts further amplify their utter corruption when it comes to 2nd amendment cases. Denial of cert to the Chicago/NRA/Maloney petitions will reinforce the false assertion that Presser compels "hands off" on the part of the federal courts, when a state acts to prohibit keep and bear arms. Maybe, with "cert denied" in front of them, some people may actually read Presser and find out what it's about, and what it stands for.
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I also think the people of Illinois ought to engage in some local self-help and get rid of their Supreme Court members who haven't been faithful to the Illinois constitution.
7.29.2009 7:19pm
ruuffles (mail) (www):

I also think the people of Illinois ought to engage in some local self-help and get rid of their Supreme Court members who haven't been faithful to the Illinois constitution.

Illinois has partisan head-to-head elections (as opposed to retention elections), the same as any other political office.
7.29.2009 7:23pm
Owen Hutchins (mail):

That precedent is old and inconsistent with modern incorporation approaches


But doesn't an originalist view stipulate that any such modern interpretations are wrong, if they vary from the "original"?
7.29.2009 7:35pm
ruuffles (mail) (www):

But unlike many states, California has no state constitutional counterpart to the Second Amendment.

Strange, given CA's ballot initiatives, why hasn't the NRA tried to put one on the ballot?
7.29.2009 7:40pm
ohwilleke:
If the en banc 9th reverses, and presumably they did so because they disagree on the incorporation issue -- the case was not reviewed because the opinion was insufficiently vainglorious -- there are three circuits aligned on the issue.

A 3-0 division on a legal issue, including an en banc ruling, also creates something of a tipping point situation for circuits late to the party.

The accumulated tendency, even if it is due to a view that existing U.S. Supreme Court is binding, also influences a swing judge like Kennedy.

Heller was symbolically important but pulled a lot of punches on the substantive impact it was having. Also, Heller is unusual in that it is a local government decision impacting a place the justices have a comfort zone about their intuitions because they live there -- the same is not true of an incorporated right.
7.29.2009 7:44pm
Anderson (mail):
The 9th was probably wrong to hold for incorporation, given the antiquated but binding precedents; I agree that modern incorporation law suggests that the Second Am. should be incorporated, but that is for the SCOTUS to decide.

God knows, the last thing anyone on this blog *should* want is for the 9th Circuit to arrogate to itself the privilege of deciding which SCOTUS precedents are quaint and outmoded. Am I right?
7.29.2009 7:46pm
Jon Roland (mail) (www):
Anything on schedule or whether the en banc will entertain new briefs?
7.29.2009 7:47pm
incorporationalist:
With 68% of all states asking that the Seventh Circuit case be granted cert, and reversed, I must think that that is a record for the number of states asking that a provision of the Bill of Rights be incorporated AGAINST them. Is there any precedent for such a movement (such as past incorporation cases) by states in saying "we want the Constitution to restrict our authority"?
7.29.2009 7:48pm
ruuffles (mail) (www):

Is there any precedent for such a movement (such as past incorporation cases) by states in saying "we want the Constitution to restrict our authority"?

Yes, Gideon v. Wainwright.
7.29.2009 7:54pm
SGD (mail):
I think "only" 23 states joined the amicus brief in Gideon.
7.29.2009 8:14pm
Affe (mail):
Given it's the 9th Circuit, what are the odds of the SC reversing the decision to rehear en-banc ? ;-)
7.29.2009 8:30pm
Fûz (mail) (www):
"the last thing anyone on this blog *should* want is for the 9th Circuit to arrogate to itself the privilege of deciding which SCOTUS precedents are quaint and outmoded"

How else will the SCOTUS get the opportunity to reverse a precedent than that a lower court tells the SCOTUS the precedent is wrong?

I'm not a lawyer nor a judge, but that seems to be the operating model . . .
7.29.2009 8:38pm
Real Man (mail):
Would the 9th Circuit rehear en banc to say "Banning on municipal grounds is OK because there is no incorporation"? That's mere error correction. It makes little sense unless the result will be "The ban is not OK." But what do I know.
7.29.2009 8:57pm
PubliusFL:
Anderson: The 9th was probably wrong to hold for incorporation, given the antiquated but binding precedents

What binding precedent is there on the point of whether the RTKBA is incorporated under the Due Process Clause of the 14th Amendment?
7.29.2009 9:32pm
Oren:

Circuit split or not, residents of the DC metropolis enjoy a substantive constitutional right that the residents of the Chicago metropolis are denied. There is some serious tension there.

Yeah, the right not to be represented in the Senate by a sleazeball!


How else will the SCOTUS get the opportunity to reverse a precedent than that a lower court tells the SCOTUS the precedent is wrong?

Appeal from the non-prevailing party, as always.
7.29.2009 9:35pm
Oren:

What binding precedent is there on the point of whether the RTKBA is incorporated under the Due Process Clause of the 14th Amendment?

Cruikshank, although the modifier "binding" depends on your view of how vertical stare decisis works.
7.29.2009 9:38pm
Oren:

But doesn't an originalist view stipulate that any such modern interpretations are wrong, if they vary from the "original"?

It is not at all inconsistent for an originalist (who, let's suppose you are right about the original intent of the 14A not to incorporate the bill of rights, although this is highly dubious) to assert that while he opposes incorporation outright, having been forced to accept it he will not brook with it being applied selectively.
7.29.2009 9:41pm
PubliusFL:
Oren: Cruikshank, although the modifier "binding" depends on your view of how vertical stare decisis works.

I don't see any discussion in Cruikshank of the theory of due process incorporation (which of course didn't exist yet), much less a holding that the RTKBA is not incorporated. The decision discusses both the RTKBA and the 14th Amendment Due Process Clause, true, but in the context of separate counts of the underlying indictment. The focus of the due process discussion is that the DPC restricts only the state, not other citizens (state action doctrine).
7.29.2009 10:27pm
Thales (mail) (www):
Not that I consider originalism as a jurisprudential approach binding or ultimately complete or persuasive, but the suggestion by one of the commenters above that the 14th Amendment does not incorporate the Bill of Rights as a matter of text and history is on the wrong side of the best scholarship on the issue. Though if J. Aldridge shows up in this thread that commenter will have some cryptic and snippity support.
7.29.2009 10:33pm
Anderson (mail):
How else will the SCOTUS get the opportunity to reverse a precedent than that a lower court tells the SCOTUS the precedent is wrong?

SCOTUS affirms lower decisions as well as reverses them, and pace some of the above commenters, I think seeing several decisions reaching a nonincorporation result would persuade 4 members to grant cert. The circuit split is not, and never has been, the only way to get cert.

... Re: Cruikshank, I aspire to no goodlier understanding of its role than the one expressed in Heller itself:

United States v. Cruikshank, 92 U. S. 542, in the course
of vacating the convictions of members of a white mob for
depriving blacks of their right to keep and bear arms, held
that the Second Amendment does not by its own force
apply to anyone other than the Federal Government
. * * *
Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.


I've omitted the language re: Cruikshank's outdated style of incorporation analysis; that will be the basis for the SCOTUS to reverse it, but does not free the lower courts to reverse what is clearly acknowledged by the Heller majority as the current precedent.
7.30.2009 12:28am
Anderson (mail):
the suggestion by one of the commenters above that the 14th Amendment does not incorporate the Bill of Rights as a matter of text and history is on the wrong side of the best scholarship on the issue

Agreed.
7.30.2009 12:29am
D.O.:
@incorporationalist: They don't want incorporation against them, they want incorporation against other states. Horizontal anti-federalism?
7.30.2009 1:06am
Dave N (mail):
For those who do not practice in the Ninth Circuit, there are some procedural things you should know, in response to some of the questions other posters have asked.

1) The term "en banc" in the Ninth Circuit is a misnomer. It is NOT the entire court. Rather it is Judge Kozinski (since he is the Chief Judge) plus 10 other judges, chosen at random (with a caveat that a judge not chosen in the 3 preceding en banc courts is automatically included). The judges on the original panel have no greater or lesser chance of being on the en banc than any other judge (though Senior Ninth Circuit Judges CAN be put in the lottery when they sat on the 3-judge panel.

As a result, there are any number of permutations of who may be on the en banc court in September.

2) There is no additional briefing. The en banc court has the rehearing en banc petition and the original briefs.

3) I have no doubt there will be a cert. petition following the en banc ruling (whatever that ruling might be). Whether cert. is granted is up to the Supremes.
7.30.2009 1:25am
David Hardy (mail) (www):
"God knows, the last thing anyone on this blog *should* want is for the 9th Circuit to arrogate to itself the privilege of deciding which SCOTUS precedents are quaint and outmoded. Am I right?"

Yes, it's called winning. I've gotten tired of those on my side on most matters sitting back and wondering if winning would be sufficiently pure in principle, when the opposition could give a hoot. This is the real world. Get tough or die.
7.30.2009 2:46am
Gene Hoffman (mail) (www):

I've gotten tired of those on my side on most matters sitting back and wondering if winning would be sufficiently pure in principle, when the opposition could give a hoot. This is the real world. Get tough or die.


To borrow the idiom: From your mouth to god's ears...

-Gene
7.30.2009 5:27am
KG2V:
Somebody in DC made a phone call "You did WHAT?"

I don't think this is good news - the political pressure will be to find against incorporation - and you can bet there will be pressure in DC not to hear the case, or to rule the right way
7.30.2009 7:38am
NaG (mail):
I wonder whether the 7th Circuit's abrupt ruling affected the opinion of some of the 9th Circuit's judges. With Judges Easterbrook and Posner both viewing the question as a no-brainer -- there is no incorporation until the SCOTUS says so -- there may have been a feeling on the West coast that although the panel is probably correct that the SCOTUS will rule for incorporation when the question gets to them, it was bad form to simply assume it.
7.30.2009 8:41am
Oren:

I don't see any discussion in Cruikshank of the theory of due process incorporation (which of course didn't exist yet), much less a holding that the RTKBA is not incorporated. The decision discusses both the RTKBA and the 14th Amendment Due Process Clause, true, but in the context of separate counts of the underlying indictment. The focus of the due process discussion is that the DPC restricts only the state, not other citizens (state action doctrine).


This is why I hedged my statement by saying it depend on how you think vertical stare decisis should work. In my (admitted cramped view), it doesn't matter what mode of analysis was used -- the decision stands until the Supreme Court reverses it.

The fact that more recent SCOTUS decisions might call the logical or doctrinal foundation of the decision is absolutely irrelevant to vertical stare decisis (although almost certainly decisive wrt to the horizontal variety). See, e.g. this case which states, quite succinctly:

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, leaving to this Court the prerogative of overruling its own decisions.
7.30.2009 8:52am
Oren:

Yes, it's called winning. I've gotten tired of those on my side on most matters sitting back and wondering if winning would be sufficiently pure in principle, when the opposition could give a hoot. This is the real world. Get tough or die.

Do you think the Supreme Court is going to say "We were going to rule for incorporation but now we are going to rule against it just to spite the 9CA for disregarded our clear instructions (see above)." ?

Ultimately, the Supreme Court will decide incorporation (and will almost certainly go in favor) -- that does not arrogate to the 9CA the power to do so any more than it assigns that power to the Supreme Court of Canada.
7.30.2009 8:56am
SusanV:
Certainly, the Circuit split is one of the reasons the 9th decided to rehear the case en banc.
7.30.2009 9:39am
Dave N (mail):
there may have been a feeling on the West coast that although the panel is probably correct that the SCOTUS will rule for incorporation when the question gets to them, it was bad form to simply assume it.
Ultimately, the Supreme Court will decide incorporation (and will almost certainly go in favor) -- that does not arrogate to the 9CA the power to do so any more than it assigns that power to the Supreme Court of Canada.
I disagree. A Court of Appeals (even one as frequently corrected as the Ninth Circuit) has a duty to decide the legal issues before it, including Constitutional issues not yet ruled upon by the Supreme Court.

The Supreme Court may tell the Court of Appeals it was wrong--but that is a different issue altogether.
7.30.2009 10:47am
David Hardy (mail) (www):
"Do you think the Supreme Court is going to say "We were going to rule for incorporation but now we are going to rule against it just to spite the 9CA for disregarded our clear instructions (see above)." ? "

No. So there is no down side risk.

"Ultimately, the Supreme Court will decide incorporation (and will almost certainly go in favor) -- that does not arrogate to the 9CA the power to do so any more than it assigns that power to the Supreme Court of Canada."

when the Supremes do so, it will be simple to demonstrate the fidelity of the original 9th Circuit ruling to horizontal, vertical, and any other views of stare decisis, using the real if unspoken legal principle: history is written by the victor.

The 9th hasn't worried about arrogating any other powers in the past. They want it, they do it, and since the Supreme Court isn't about to hold a panel in contempt, they generally succeed. I see no reason to become incontinent because on this occasion a panel achieved the correct result.
7.30.2009 11:26am
cboldt (mail):
-- the [Presser] decision stands until the Supreme Court reverses it. --
.
The Presser decision is self-reversing. It contains rhetoric on BOTH sides of the power of the state to prohibit keep and bear arms.
Presser v. Illinois, 116 U.S. 252 (1886)
But a conclusive answer to the contention that [the 2nd] amendment prohibits [laws requiring a parade permit] lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. ...
.
... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms
7.30.2009 11:28am
cboldt (mail):
-- I see no reason to become incontinent because on this occasion a panel achieved the correct result. --
.
The federal courts have demonstrated contempt for the 2nd amendment, and if avoiding the incorporation question works to reduce the ability of the public to arm itself, then avoiding the issue of incorporation will happen. In the courts' view, that is "the correct result."
7.30.2009 11:35am
PersonFromPorlock:
I know by now that I'm beating a dead horse, but I still say there's a case to be made that all constitutionally guaranteed rights were statutorily incorporated against the states (and lesser governments) by 18 USC 242.
7.30.2009 11:37am
Phatty:

I know by now that I'm beating a dead horse, but I still say there's a case to be made that all constitutionally guaranteed rights were statutorily incorporated against the states (and lesser governments) by 18 USC 24

How could Congress strip powers from the States that were reserved to the States by the Constitution?
7.30.2009 12:00pm
Phatty:

The federal courts have demonstrated contempt for the 2nd amendment

I nominate that quote as the understatement of the year.

Seriously, take a look at this portion of a recent decision from the Middle District of Alabama:

"The Supreme Court in Heller discussed what it called 'the inherent right of self-defense.' 128 S.Ct at 2817. According to the Court, the Second Amendment provides a link between that purported right and an individual's desire to possess guns. Whatever one might think about a social policy that encourages possession of firearms, the assertion that firearms are (or should be) crucial to individual protection, or the unsupported empirical belief that individual gun ownership can ever make a society safer, this court is now bound to consider the implications of Heller's holding." United States v. Rush, M.D. Ala., July 14, 2009.

The judge in that case all but admits his disdain for the 2A and the Heller opinion. When a judge approaches a 2A issue with that mindset, you can forget about getting a fair ruling on the 2A issue.
7.30.2009 12:11pm
cboldt (mail):
-- When a judge approaches a 2A issue with that mindset, you can forget about getting a fair ruling on the 2A issue. --
.
I'd shorten that to, "You can forget about getting a fair ruling on the 2A issue."
.
See, post-Heller, US v. Fincher, US v. Hamblen, and assorted others. The federal courts forbid a defendant from teaching a jury about the Miller case, under the rubric that this amounts to "arguing the law." IOW, the Court can say, "Miller stands for the proposition that the 1934 NFA is constitutional," and then forbid the defendant from showing the Miller case to the jury.
.
Congress doesn't care, because Congress wants the power to pass unconstitutional laws (all the while claiming the laws are constitutional, of course), and the states protestations are empty puffery for political beans.
.
I don't have any sympathy for the whiners on the 1st and 4th amendment either.
7.30.2009 1:10pm
SuperSkeptic (mail):


I know by now that I'm beating a dead horse, but I still say there's a case to be made that all constitutionally guaranteed rights were statutorily incorporated against the states (and lesser governments) by 18 USC 242.

I could see that, but only if there is a constitutional violation because of your race or are an alien...
7.30.2009 1:51pm
Oren:

I disagree. A Court of Appeals (even one as frequently corrected as the Ninth Circuit) has a duty to decide the legal issues before it, including Constitutional issues not yet ruled upon by the Supreme Court.

Except that the whole point here is that the "issue" (that is, the actual decision) was decided by the Supreme Court centuries ago.

If by "issue", however, you mean "novel application of new doctrine to settled law" then you are at variance with the plainly stated instructions of the Court. That doesn't make you wrong as a matter of principle, of course, but in practice that's just not how our system of vertical stare decisis works.
7.30.2009 2:46pm
M-K (mail):
I'm looking forward to reading Alex Kozinski's dissent.

Here's part of what he wrote in his dissent to denial of rehearing en banc in Silveira v. Lockyer, 06 May 2003:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
7.30.2009 3:15pm
Anderson (mail):
Except that the whole point here is that the "issue" (that is, the actual decision) was decided by the Supreme Court centuries ago.

If by "issue", however, you mean "novel application of new doctrine to settled law" then you are at variance with the plainly stated instructions of the Court. That doesn't make you wrong as a matter of principle, of course, but in practice that's just not how our system of vertical stare decisis works.


This topic, with specific reference to the 9th Circuit case in question, would be wonderful for a casebook on constitutional law. I hope whatever ultimate SCOTUS decision we get will address some of the points we've seen.

(I expect the Court would continue to jealously guard its prerogative of reversing itself -- cf "camel's nose.")
7.30.2009 3:26pm
Oren:
Anderson, the 9CA itself wrote this:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.


I've trotted that quote out a dozen times by now, no one seems to want to face it head on.
7.30.2009 4:02pm
Steve2:
Oren, the thing is, the last sentence you quoted ("Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.") implies that there's no binding precedents except for when the extant case has identical or functionally equivalent facts to the precedent. If what ought to be stuck to is the legal consequence following a detailed set of facts, then the Cruikshank decision didn't settle anything in the Nordyke case. Based on the 9CA statement you quoted, the decision in a case determining the validity or invalidity of criminal indictments arising under a federal statute need have no bearing to a case resolving the validity or invalidity of county regulations prohibiting possession of non-contraband items on specific parcels of land.
7.30.2009 6:24pm
cboldt (mail):
-- I've trotted that quote out a dozen times by now, no one seems to want to face it head on. --
.
You and I went around on that citation in Sonia Sotomayor versus the Second Amendment, May 26-28, 2009, and very briefly in Should Repubs. Fight Sotomayor? Left Bloggers say No; Righties Split, in the same general time frame.
.
I disagree that what the Circuits cite as precedent binding as a matter of vertical stare decisis (roughly, that Presser stands for the proposition that states can prohibit KBA), is in fact binding precedent, as applied by the Circuits in Maloney and the Chicago/NRA cases.
7.30.2009 7:26pm
PersonFromPorlock:
SuperSkeptic:


I could see that, but only if there is a constitutional violation because of your race or are an alien...


The DOJ summary of the law says:

It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

7.30.2009 8:05pm
Oren:

... implies that there's no binding precedents except for when the extant case has identical or functionally equivalent facts to the precedent.

Where I think "functionally equivalent" facts means "relying on the same basic legal conclusion".


Based on the 9CA statement you quoted, the decision in a case determining the validity or invalidity of criminal indictments arising under a federal statute need have no bearing to a case resolving the validity or invalidity of county regulations prohibiting possession of non-contraband items on specific parcels of land.

I would say they both turn on the same legal argument -- whether the 2A is incorporated against the States by the 14A. Just because the superficial form is different, doesn't mean that the underlying legal question is not.


I disagree that what the Circuits cite as precedent binding as a matter of vertical stare decisis (roughly, that Presser stands for the proposition that states can prohibit KBA), is in fact binding precedent, as applied by the Circuits in Maloney and the Chicago/NRA cases.

And I hope that the Supreme Court corrects their misunderstanding as soon as feasible.
7.30.2009 8:19pm
cboldt (mail):
-- And I hope that the Supreme Court corrects their misunderstanding as soon as feasible. --
.
I hope it doesn't.
.
At any rate, our point of disagreement is whether or not the Circuits are able to correct their own error. That is, can they read Presser anew, and interpret it differently? May a Circuit Court discover the "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms" phrase by the United States Supreme Court, without being prompted by their superior court?
.
Your position is that, as a matter of law, the Circuits are locked into their read of Presser, until and unless corrected by SCOTUS. That the Circuits are tied to their own error, by a superior force.
7.30.2009 8:43pm
Oren:

Your position is that, as a matter of law, the Circuits are locked into their read of Presser, until and unless corrected by SCOTUS. That the Circuits are tied to their own error, by a superior force.

That varies by Circuit. In the 9CA, a 3-judge panel may not reverse a previous 3-judge panel. In the DCCA, it can.
7.30.2009 9:07pm
Steve2:

I would say they both turn on the same legal argument -- whether the 2A is incorporated against the States by the 14A. Just because the superficial form is different, doesn't mean that the underlying legal question is not.

But doesn't going to the "underlying legal question" make it what the quote called "stare rationibus decidendi", not "stare decisis"?
7.30.2009 10:08pm
Melancton Smith:
cbolt wrote:

I also think the people of Illinois ought to engage in some local self-help and get rid of their Supreme Court members who haven't been faithful to the Illinois constitution.


The IL Constitution has not protection from gun control. Article 22. says "Subject to the police power, the right of the people to keep and bear arms shall not be infringed."
8.1.2009 6:36pm
Jon Roland (mail) (www):
PersonFromPorlock:

I know by now that I'm beating a dead horse, but I still say there's a case to be made that all constitutionally guaranteed rights were statutorily incorporated against the states (and lesser governments) by 18 USC 242.

No, your argument is valid. But the problem being overlooked is the suppression of private criminal prosecutions, which the Framers assumed when they drafted the Constitution, and continued to presume when they adopted the 14th. The study of legal history is valuable for revealing that kind of thing. We need to recognize that limiting prosecution to U.S. attorneys or special prosecutors created by special act of Congress, is a breach of the very concept of the grand jury, which was to hear complaints from any person, and appoint him a prosecutor by returning a bill of indictment to him.
8.1.2009 7:32pm
Jon Roland (mail) (www):
cboldt:

The Presser decision is self-reversing. It contains rhetoric on BOTH sides of the power of the state to prohibit keep and bear arms.

No, by its plain language it only applies to parade permits, which a city could require of anyone, even the U.S. Army. It has nothing to do with keeping or bearing arms otherwise, the right to which it just as plainly asserts for activities other than parading through a town, with or without arms. The amazing thing is how courts have misread its plain language to give it the opposite meaning it had when it was handed down.
8.1.2009 7:38pm
Jon Roland (mail) (www):
The problem we have with Presser (the decision) is that Presser (the litigant) made the invalid argument that the right to keep and bear arms implies the right to parade without a permit. It doesn't. They are separate rights, and only the RKBA is a fundamental right, not the right to parade without a permit. This is is kind of incompetent argument that produces bad precedents.
8.2.2009 5:25am
Jon Roland (mail) (www):
Correction: "is is" should be "is the".
8.2.2009 5:26am
cboldt (mail):
-- The IL Constitution has not protection from gun control. --
.
I think it does. I think the dissent has the better argument in Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483.
8.2.2009 3:53pm
cboldt (mail):
-- No, by its plain language [the Presser case] only applies to parade permits, which a city could require of anyone, even the U.S. Army. --
.
I agree with that. By "self reversing," I mean to assert that the Circuits have no need to look to SCOTUS to "reverse Presser" and take back the false contention that the states are free to prohibit KBA, on account of the 2nd is not incorporated. The Circuits have that power, today. It's sad that they get away with blaming SCOTUS and/or litigants for their own deficient and corrupt jurisprudence.
8.2.2009 3:57pm

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