Heller or NORDYKE v. KING and MD law...another approach

People keep talking about incorporation of Heller to the states in order for it to apply to MD, but I think this is not necessary due to the MD Constitution possibly already making it apply.....and I am not talking about the aforementioned Article 2 of the Declaration of Rights in our state Constitution, I am talking about Article 5:

Art. 5. (a)

(1) That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. And the Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.

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Once the County actually addresses modern incorporation
doctrine, it relies on general assertions that run afoul of
Heller. For example, the County declares that “the English
common law tradition does not recognize an individual’s right
to possess a firearm as a fundamental right.” Heller plainly
contradicts that statement because it says that “y the time
of the founding, the right to have arms had become fundamental
for English subjects.” 128 S. Ct. at 2798.

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http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

If I am reading it right, then even if Heller is not fully incorporated to the other states, the MD Declaration of Rights may still extend Heller to MD.

Other states have similar language (IIRC even CA, where Nordyke is from), incorporation is required to pin the politicians down on the position. Plus, incorporated rights automatically go to federal court rather than doing the merry-go-round in state court. We want our gun cases in federal court.

I thought Heller only addressed the OWNERSHIP of firearms, not the BEARING of them.... what am I missing?

Commmon Law provides a default starting position. It can and is modified by either decision since 1776 or by legislative ennactments since 1776 . Look how things have progressed in UK under Common Law.

DC vs Heller decision:
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'

Nordyke Vs. King.

On April 20, 2009, a three-judge panel of the Ninth Circuit ruled that the Second Amendment was incorporated through the Due Process Clause of the Fourteenth Amendment and so that it applied to the states and local governments.[3] In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition".

Really looks like the SCOTUS will apply the same ruling to all states! JMHO

Thanks for the clarification and simplification. I enjoy reading legalese, but sometimes it overwhelms me lol.

under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.

So does anyone else feel like they are still being ruled and not represented?!?

Mark

Markp said:

under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.

So does anyone else feel like they are still being ruled and not represented?!?

Mark

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Yes.

X-Factor said:

I thought Heller only addressed the OWNERSHIP of firearms, not the BEARING of them.... what am I missing?

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Actually it does when it addressed the "must be locked or dissambled" DC law part because they said one has a right to bear arms in their own home for personal protection.
The bearing arms openly outside the home mention was dicta, but the bearing arms for self defense (in the home) was part of the determination as I understand it.

dicta = feelings by the majority that are included in the decision, but do not have the force of law

novus collectus said:

Actually it does when it addressed the "must be locked or dissambled" DC law part because they said one has a right to bear arms in their own home for personal protection.
The bearing arms openly outside the home mention was dicta, but the bearing arms for self defense (in the home) was part of the determination as I understand it.

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Got it.

kstew said:

dicta = feelings by the majority that are included in the decision, but do not have the force of law

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I was wondering.... lol

Biggfoot44 said:

Commmon Law provides a default starting position. It can and is modified by either decision since 1776 or by legislative ennactments since 1776 . Look how things have progressed in UK under Common Law.

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That hits the nail on the head. Most of the common law in Maryland has been abrogated by statute since that time. The fact that the legislature has enacted a statute regulating concealed carry (i.e. modifying the common law) is all the State would need to show to overcome that argument.

On a tangent I once saw a brief an attorney wrote using that provision to argue that trial by combat still existed in Maryland. He never had the balls to file it with the court. I guess he was afraid of being laughed out of court or perhaps due to the fact that it was unclear who actually did the fighting: the defendant or his attorney.

CharlieFoxtrot said:

I guess he was afraid of being laughed out of court or perhaps due to the fact that it was unclear who actually did the fighting: the defendant or his attorney.

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A new meaning to a lawyer who will fight for you!

Appeals Court To Consider Key Gun Rights Question

3 comments

Posted by Declan McCullagh


A federal appeals court in San Francisco on Thursday will confront America's next big gun rights question: Whether or not the Second Amendment prevents state governments from enacting anti-gun laws.

The U.S. Ninth Circuit Court of Appeals will hear oral arguments in a case that's likely to decide whether the Bill of Rights' guarantee of a right to "keep and bear arms" restricts only the federal government and the District of Columbia -- the current state of affairs -- or whether it can be invoked to strike down intrusive state and local laws too.

In an earlier ruling in April, a three-judge panel of the same court ruled that the Second Amendment did apply to the states, a different outcome than appeals courts in Chicago and New York had reached. On Thursday morning, a larger Ninth Circuit panel is scheduled to re-hear the case, meaning the earlier decision in Nordyke v. King could be upheld or rejected.

The applying-to-the-states question may seem like an odd one: After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from suppressing political speech. The Fourth Amendment has been interpreted to restrict state police from conducting "unreasonable searches," and while the right to an abortion is not clearly found anywhere in the U.S. Constitution, the 1973 Roe v. Wade decision struck down a Texas law on constitutional grounds.

So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?

This topic sounds a bit like one that only a law professor might appreciate, but in the last 60 years or so, the Supreme Court has ruled that only "fundamental" rights in the Bill of Rights are incorporated. If a right is not deemed "fundamental," it doesn't apply to the states. So far, the justices have not yet ruled squarely on this question (even though Justice Scalia's majority opinion in last year's D.C. v. Heller case noted that "the right to have arms had become fundamental" in the early American colonies).

The incorporation question is already bubbling up to the Supreme Court thanks to the National Rifle Association v. Chicago and McDonald v. Chicago cases and the New York Maloney v. Rice case. On September 29, the justices will meet to decide whether to accept those cases for the 2009-2010 term; those appeals courts declined to apply the Second Amendment to state laws.

Of course, even if the Supreme Court eventually agrees that gun rights are "fundamental" and apply to individual states, that may not mean very much in practice.

The Ninth Circuit incorporated the Second Amendment but still upheld an Alameda County, Calif. ban on firearms on county property, including the fairgrounds. And the Seventh Circuit recently ruled that even if the Second Amendment applied to municipalities, they could get away with forcing citizens to register firearms or face legal consequences. In other words, courts could uphold the right to keep and bears arms in form and in theory, but ignore it in practice.

http://www.cbsnews.com/blogs/2009/09/23/taking_liberties/entry5333538.shtml

Ignore it in practice, LIKE HELL!

"In other words, courts could uphold the right to keep and bears arms in form and in theory, but ignore it in practice."

In form and in theory ( No theory to it!) but ignore it in practice."
Huh, I don't think 50% of US law abiding citizens ignore the practice!!

novus collectus said:

Art. 5. (a)

(1) That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. And the Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.
People keep talking about incorporation of Heller to the states in order for it to apply to MD, but I think this is not necessary due to the MD Constitution possibly already making it apply.....and I am not talking about the aforementioned Article 2 of the Declaration of Rights in our state Constitution, I am talking about Article 5:

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

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Novus, wonder what O'Malley would say if you sent him this?
Good Google Fu expert>>>>>

9th CA: Gun case on hold

9th CA: Gun case on hold

Thursday, September 24th, 2009 8:30 pm | Lyle Denniston | Print This Post Email this • Share on Facebook • Share on LinkedIn • Digg This!

The Ninth Circuit Court on Thursday put on hold its consideration of a case testing whether the Second Amendment right “to keep and bear arms” restricts laws passed by state and local governments, and not just those passed at the federal level. After a hearing before an 11-judge en banc Court in San Francisco, the Court issued an order vacating submission of the case of Nordyke et al. v. King et al. (docket 07-15763), until the Supreme Court acts on pending cases raising the same issue.

Earlier, a three-judge panel of the Circuit Court had extended the Second Amendment to the state, county and city level, through the Fourteenth Amendment. That ruling was vacated when the Circuit Court agreed to reconsider the issue en banc.

The Supreme Court may act as early as next week on one or more of three pending cases: National Rifle Association v. Chicago (08-1497), McDonald v. Chicago (08-1521), and Maloney v. Rice (08-1592). All three are scheduled to be considered at next Tuesday’s private Conference.

The Court Order: http://www.scotusblog.com/wp/wp-content/uploads/2009/09/9th-CA-Nordyke-order-9-24-09.pdf

(Thanks to Howard Bashman of How Appealing blog for the alert and the link to Thursday’s order.)
http://www.scotusblog.com/wp/9th-ca-gun-case-on-hold/

So, The 9th Circuit called a do-over after the game was completed and then took the game ball home. These are Judges?