Nordyke (California)

krucam · Jul 12, 2010

The first of the dominoes in CA that were pending the McDonald decision...

Nordyke was sent back to the 3-judge panel today; the original panel opinion was vacated and they are to reconsider the case in light of McDonald v. Chicago. The original panel is made up of Judges Gould, O’Scannlain and Alarcón.

Stay informed of the latest developments by following the Calguns Foundation twitter feed at http://twitter.com/CalgunsFdn.

Grabbed from the Calguns forum:
http://www.calguns.net/calgunforum/showthread.php?t=320837

Background on Nordyke:
http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King

Let the dominoes fall...

Trapper · Jul 12, 2010

Good read, thanks for the info.

Patrick · Jul 12, 2010

This is the 9th Circuit - the most liberal and over-turned Circuit Court in the nation. I wouldn't expect an immediate win, although it would send a strong signal if they did interpret Nordyke strictly and abolish the argument that the county can blithely deem the fairgrounds a "sensitive place".

The 9th is a quirky place. Anything can happen. I am not sure of the personalities on that 3-judge panel, but it worth noting that they are the first in the nation to have ever incorporated 2A against the states. The 9th stepped in to re-hear it en banc (11 judges instead of 3) and then put it on hold pending McDonald's outcome (which concurred in even stronger terms).

So hope may spring forth.

Nordyke won the 2A point but lost the case to use the fairgrounds for a gun show because the 3-panel said the county could define "sensitive places" as they deem fit. But under the new definition of 2A being "Fundamental", the full panel may have remanded it to reconsider in light of that one word alone - i.e., strictly.

That would mean the county would probably have to suck it up and allow the shows.

krucam · Jul 12, 2010

Patrick...agreed, part of the original en banc decision revolved around whether the 2A applied to the states, this has been put to rest with McDonald. Now, the question remaining is whether a piece of public property (fairgrounds in this case) is deemed a 'sensitive place'.

A loss here will NOT kill or hurt our cause necessarily. An affirmation, particularly if it implies or utilizes (establishes) 'strict scrutiny' regarding the public grounds for use for a 'fundamental right' will start the avalanche...

Inigoes · Jul 12, 2010

Believe it or not, a loss in Nordyke right now would not be bad thing.

The appeal would be bumped up to the SCOTUS, which is in our favor, right now.

Patrick · Jul 12, 2010

Inigoes, Krucam: agree that a loss would not be a total loss.

But at some point a "tipping point" will be reached when the lower courts make the "right" calls and higher courts are not required to step in. I think this says "we won" more than anything else. For instance, not every 1A case makes it to the Supreme Court. Hell, few actually make it past the District level. I think this is evidence of a strong judicial record on the right plus a strong sense of protection from the courts afford that fundamental right.

If the 9th steps in and says, "2A in Fundamental - you must tread lightly", that will be huge. That's why I am hoping for the win - because it would seriously unsettle those who wish harm to our 2A rights. Because if the most liberal/progressive court in the nation says 2A is sacred...well, you get the idea.

I wonder what caused the entire en banc to step in originally. I don't think anyone petitioned it, they did it on their own. Maybe they were disturbed by the incorporation ruling and wanted to overturn it? Now that this option is off the table, they send it back?

Who knows...

I have this odd feeling that some traditional anti-2A liberal factions may be turning to support 2A strict interpretations. They know they are on a losing path, and by creating strong jurisprudence on "new" civil rights they strengthen the future arguments for gay marriage. In my theory, the thinking goes, "We gotta give them guns, we might as well get gay marriage in the exchange." Because the 14th and Substantive Due Process is where they are aiming the gay marriage fight.

As I've said before, I'm cool with that.

Inigoes · Jul 12, 2010

Patrick said:
Inigoes, Krucam: agree that a loss would not be a total loss.

But at some point a "tipping point" will be reached when the lower courts make the "right" calls and higher courts are not required to step in. I think this says "we won" more than anything else. For instance, not every 1A case makes it to the Supreme Court. Hell, few actually make it past the District level. I think this is evidence of a strong judicial record on the right plus a strong sense of protection from the courts towards that fundamental right.

If the 9th steps in and says, "2A in Fundamental - you must tread lightly" that will be huge. That's why I am hoping for the win - because it might just unsettle those who wish 2A rights harm. Because if the most liberal.progressive court in the nation says 2A is sacred...well, you get the idea.

I wonder what caused the entire en banc to step in originally. I don't think anyone petitioned it, they did it on their own. Maybe they were disturbed by the incorporation ruling and wanted to overturn it? Now that this option is off the table, they send it back?

Who knows...

The bad part of a judgment out of the 9th, would not really affect us in this jurisdiction. If the SCOTUS made the call, a wider net would be cast.

krucam · Jul 12, 2010

Hmmm....

http://volokh.com/2010/07/12/gun-sh...=Feed:+volokh/mainfeed+(The+Volokh+Conspiracy

Interesting read...some of the comments are even better than the article. Gene Hoffman and Dan Kilmer, some 'Kharn' guy (MDS fame?).

Patrick · Jul 13, 2010

Inigoes said:
The bad part of a judgment out of the 9th, would not really affect us in this jurisdiction. If the SCOTUS made the call, a wider net would be cast.

True, but a pro-2A opinion from the wacky 9th would send chills down the spines of anti's everywhere. And while technically not settled law outside the 9th, such decisions are frequently cited by other Circuits in their cases. Which is why a bad decision would make for ugliness in other parts o the nation (although the 9th is sometimes ignored because of a presumed progressive slant).

Hmmm....

Interesting read...some of the comments are even better than the article. Gene Hoffman and Dan Kilmer, some 'Kharn' guy (MDS fame?).

Found this one especially interesting:

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 1005–1006 (1989):

” The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, 429 U.S., at 103, 97 S.Ct., at 290. ... In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” (emphasis added)

The comment puts forth a paradox for government when they wish to define a "sensitive place": if you define a place to be 'sensitive' and therefore off limits for the fundamental right of self protection, you now take responsibility for anything that happens in that sensitive place. The government has a duty to protect (unlike normal LEO affairs which have no such duty).

That means if a bad guy causes a problem, you could sue the government and win based on their failure to protect you. Can you imagine what would happen if Fenty actually did claim all of DC as a 'sensitive place'? He'd have to sell the sidewalks to pay off the claims.

krucam · Jul 14, 2010

Lead attorney Dan Kilmer filed this Motion for Supplemental Briefing in the Nordyke case yesterday.

It is ratcheting up the stakes in Nordyke with post-McDonald material...

- It asks the county to justify deeming the fairgrounds as a "sensitive place".
- It asks the court to analyze this against a 'Civil Rights' and 'Fundamental Rights' standard.

:party29:

Patrick · Jul 14, 2010

I like how he underlined Fundamental Right, you know...just in case the 9th kinda missed it.

It's a "put up or shut up" brief to the County and to the 9th Circuit. The brief doesn't even question the scrutiny required or provide rationale beyond the word Fundamental (with some helpful pointers to what that means) -- the assumption is "strict" across the board.

I expect we'll see the County (and probably even CA state) respond with an argument that the scrutiny was not defined in Heller or McDonald, and therefore they assume "intermediate" or "rational basis". At that point the 9th will need to to rule on scrutiny, maybe after hearing arguments.

It looks like we'll see something out of this by year's end, though.

Great catch. Thanks for pointing it out. You always have ways of finding the interesting stuff.

krucam · Jul 14, 2010

Patrick said:
I like how he underlined Fundamental Right, you know...just in case the 9th kinda missed it.

It's a "put up or shut up" brief to the County and to the 9th Circuit. The brief doesn't even question the scrutiny required or provide rationale beyond the word Fundamental (with some helpful pointers to what that means) -- the assumption is "strict" across the board.

I expect we'll see the County (and probably even CA state) respond with an argument that the scrutiny was not defined in Heller or McDonald, and therefore they assume "intermediate" or "rational basis". At that point the 9th will need to to rule on scrutiny, maybe after hearing arguments.

It looks like we'll see something out of this by year's end, though.

Great catch. Thanks for pointing it out. You always have ways of finding the interesting stuff.

I see this as the Yellow Brick Road leading us to Strict Scrutiny in a Ckt Court...

hvymax · Jul 14, 2010

We need as many cases to reach the SCOTUS asap before the SCOTUS changes attitudes toward the Constitution. The longer the lower courts can keep trifling around with our rights the better chance they have to eliminate them.

Hopalong · Jul 14, 2010

Patrick said:
I have this odd feeling that some traditional anti-2A liberal factions may be turning to support 2A strict interpretations. They know they are on a losing path, and by creating strong jurisprudence on "new" civil rights they strengthen the future arguments for gay marriage. In my theory, the thinking goes, "We gotta give them guns, we might as well get gay marriage in the exchange." Because the 14th and Substantive Due Process is where they are aiming the gay marriage fight.

As I've said before, I'm cool with that.

It's interesting that you say that. If you look at gun rights and gay marriage from the standpoint of the motivation of the two sides of the issue, they're nearly identical except mirrored. One side says "Yes I think this is something we all have a right to, even if you choose not to do it" and the other side says "This isn't something that I feel people should do, allowing it will cause X, Y, and Z, and because I don't want to do it nobody else should either."

Obviously there's a lot more nuance than that, but I think the basic human motivation is the same for both issues. People tend to fear what is different than they are so they don't want people doing things that they aren't comfortable with.

Inigoes · Jul 14, 2010

Hopalong said:
It's interesting that you say that. If you look at gun rights and gay marriage from the standpoint of the motivation of the two sides of the issue, they're nearly identical except mirrored. One side says "Yes I think this is something we all have a right to, even if you choose not to do it" and the other side says "This isn't something that I feel people should do, allowing it will cause X, Y, and Z, and because I don't want to do it nobody else should either."

Obviously there's a lot more nuance than that, but I think the basic human motivation is the same for both issues. People tend to fear what is different than they are so they don't want people doing things that they aren't comfortable with.

Horrible anology. The main difference not pointed out, is that one right is spelled out in the constitution that shall not be infringed, and the other is a culture which seeks to gain acceptance.

Hopalong · Jul 14, 2010

Inigoes said:
Horrible anology. The main difference not pointed out, is that one right is spelled out in the constitution that shall not be infringed, and the other is a culture which seeks to gain acceptance.

Hopalong said:
If you look at gun rights and gay marriage from the standpoint of the motivation of the two sides of the issue, they're nearly identical except mirrored.

Yes, from a legislative and jurisprudence background the two are very much different. I never claimed that they were similar in that regard, although both could now be considerd to be 'civil rights' issues. (You could, however, claim that the pro-2A community is also in the process of 'gaining acceptance' even though its rights are spelled out in the Constitution, but that's not where I was going with this.)

I was looking more at the personal side of the issues. If you look at the kinds of feelings both issues tend to produce, as well as some of the more irrational arguements used by the 'anti' side in both, they're surprisingly simliar. One side is fighting for a given freedom (either because they want to practice or least feel that others should be able to), the other side is fighting against said freedom (because they don't want to practice it and don't feel that others should be able to). The 'pros' in both issues think that the additional freedom will be good for society, the 'antis' think that they're fighting to protect society. Opposite sides of the same fear-driven coin.

Patrick · Jul 14, 2010

Inigoes said:
Horrible anology. The main difference not pointed out, is that one right is spelled out in the constitution that shall not be infringed, and the other is a culture which seeks to gain acceptance.

Oh boy, this is going to be a huge thread jack...

Could not tell where you stand on this from your post, but I'll just focus on this:

and the other is a culture which seeks to gain acceptance.

What part of the Constitution requires a "culture" or belief to submit itself to the 'acceptance' of others prior to life, liberty and the pursuit of happiness?

I understand people don't like gayness (is that a word?). Fine. But we all claim to be "Patriots" who will stand for the rights of all, so long as they do not trample ours.

And I have yet to hear a cogent argument on how two guys holding hands and getting married are going to harm my rights, my marriage or my family. Because the only way that could happen was if I was closeted gay. I am not, ergo -- no problems for me.

Marriages like mine were outlawed in Baltimore and 16 states up through 1967. The thought of a mixed-race marriage shocked and offended many, and the sight of a mixed-race child like mine was considered harmful to "good" people. Bans were put in place to protect society from the sight of mixed couples, and children of such a mixing were considered criminal evidence. People were lynched for falling in love without society's "acceptance".

I hear so many of the same arguments today from self-appointed cultural puritans (aka: Drama Queens): "OMG, we gotta save them childrens from seein' the godless fags because it will scar them forever."

I call ********.

The only way a gay marriage can hurt your relationship is if you suddenly realize you are missing out on your true calling. A lot of so-called anti-gay activists out there seem to spend a lot of time thinking about gay sex. Just sayin'.

You don't have to hang out with them. Church's don't have to marry them. But if they want to enter into contract, who am I to stop them? Because I really don't care. Nor should I.

[/THREAD JACK]

Inigoes · Jul 14, 2010

Patrick said:
What part of the Constitution requires a "culture" or belief to submit itself to the 'acceptance' of others prior to life, liberty and the pursuit of happiness?

None, that's in the Declaration of Independence.

Patrick · Jul 14, 2010

Inigoes said:
None, that's in the Declaration of Independence.

Technically it is "life, liberty and property" and you can find it in Section 1 of the 14th Amendment, which drew from the Declaration in wondrous form. The "happiness" bit just sounds better.

So again... what part of the Constitution requires a "culture" or belief to submit itself to the 'acceptance' of others prior to life, liberty and the pursuit of happiness (or property)?

Where is it written that due process of law may be deprived for those members of society who are not of "pure" constitution?

Citations requested.

Inigoes · Jul 14, 2010

This has turned into something, that it's not.

The 14th amendment was dealt the death blow in United_States v. Cruikshank, along with the PorI, we only have the Due process clause left.

United States v. Miller was the anti-gunners dream in restricting the 2A, due to the militia citation over a sawed off shotgun.

the 2A was written into the constitution, and was horribly dismembered through the years, especially the last 30 years. The 2A community is trying to restore a right, that was wrongfully restrained.

As to the other part of the analogy, there has been no such right spelled out in a clear concise manner. The "Culture" is attempting to litigate a right, which has been deemed taboo by the founding fathers. Right/wrong/indifferent to the issue, that's the way things are, until there is mechanism in place to legally remove that taboo. The quandry in getting that mechanism in place is to gather the required votes from their constituents, to overturn/make the laws.

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