Armed Polite Society
Main Forums => Politics => Topic started by: ilbob on April 20, 2009, 02:18:47 PM
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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.
http://www.ca9.uscourts.gov/datastore/opin.../20/0715763.pdf
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That's -huge-1 Now I just wish for:
1- Same thing from other (potentially more sane sounding) courts and
2- A link that works for me :)
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That link won't open for me.
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http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf (http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf)
Try this one^
Still a loss for Nordyke and a convoluted opinion at best.
Pretty much "Yes the 2nd applies to the states but they can regulate it away pretty much any way they want."
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It doesn't say they can "regulate it away" at all.
The only issue the Nordykes raised was holding gunshows on County property. The Court properly noted that that didn't impact individuals rights to keep and bear arms but merely the right to hold a gun show.
There was no "self-defense on County property" issue raised, which would have given the court a hook to pull in more of Heller's commentary on self-defense.
This is a clear win and gives precedent for the suits that are coming in San Fran AND whenever the Cali carry permit equal protection issues are raised.
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The 9th had to work pretty hard to find a way to comply with Heller without overturning one of their own prior precedents though, that's why all the verbiage.
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Holy cow! I am tired from reading that. Man, they had to run laps not to bump into stare decisis.
I hope the judges stretch out or go to yoga after that opinion. All of that bending and twisting and dodging and weaving will leave them sore. =D
Huge win for us.
It's the frickin' 9th Circuit and we have incorporation!!! Just wait until the 7th Circuit gets a chance! (It will be much, much stronger).
Just think what how this will play tomorrow morning in Mayor Daley's morning briefing. :lol:
Do we have a date on McDonald yet?
Step One: individual fundamental right
Step Two: incorporation
Step Three: Strict Scrutiny standard
Step Four: all kinds of state and federal anti-First Amendment laws go bye-bye
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A very interesting opinion from the Ninth Circuit, of all places. Those of us who live in that Circuit are astonished.
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Ya know, for all our smug absolutism and Cali bashing, they really only stand out as "anti-gun" compared to the rest of the Western states.
Here's the real interesting state to watch with this ruling.
Hawa'ii.
No one ever talks about it but it has, AFAIK, gun laws closer to Massachusetts than any of its Circuit partners.
So, Cali will almost certainly be getting better, what does this mean, potentially, for the islands?
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Ya know, for all our smug absolutism and Cali bashing, they really only stand out as "anti-gun" compared to the rest of the Western states.
Here's the real interesting state to watch with this ruling.
Hawa'ii.
No one ever talks about it but it has, AFAIK, gun laws closer to Massachusetts than any of its Circuit partners.
So, Cali will almost certainly be getting better, what does this mean, potentially, for the islands?
No offense, but CA gun laws are among the most restrictive in the country. NY and MA are really the only ones much worse.
HI is about where CA is.
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I shouldn't have downplayed it I guess.
But California has bills and challenges already in motion that looked promising prior to this ruling. Aside from the state AWB, wasn't the biggest issue very county specific "may-issue" problems in terms of unequal treatment?
I guess my point is that the whole state of Hawa'ii is like the very worst of California's counties, but there's no option to move a few miles and change your circumstances.
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I shouldn't have downplayed it I guess.
But California has bills and challenges already in motion that looked promising prior to this ruling. Aside from the state AWB, wasn't the biggest issue very county specific "may-issue" problems in terms of unequal treatment?
I guess my point is that the whole state of Hawa'ii is like the very worst of California's counties, but there's no option to move a few miles and change your circumstances.
CA has a ten day waiting period.
CA has the only statewide ban on something like 90% of all handguns (the not unsafe list).
CA bans many commonly owned semiautomatic rifles based largely on arbitrary cosmetic features.
Something like 98% of the population of the state of CA has no chance at all of getting a CC permit.
Incidentally, DC adopted the CA "not unsafe" handgun law. It is now the subject of a court challenge there. Since the 9th court says the 2A is incorporated, if the DC circuit court says the DC version of the "not unsafe handgun" list is not an acceptable 2A infringement, guess what happens to the CA handgun roster? And PDQ.
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Well sure, when you lay out the facts like that...
=|
Here's to rapid overturnings.
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>what does this mean, potentially, for the islands<
They might issue their second carry permit?
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No offense, but CA gun laws are among the most restrictive in the country. NY and MA are really the only ones much worse.
Really?
CA has a ten day waiting period.
Must suck. BTW this friday evening I am going to my Bass Pro to pick up a 10/22 for a Saturday outing.
CA has the only statewide ban on something like 90% of all handguns (the not unsafe list).
Yikes. MA has that but not NY.
CA bans many commonly owned semiautomatic rifles based largely on arbitrary cosmetic features.
We got that, although what we DONT have is people getting busted for legal scary-looking weapons.
Something like 98% of the population of the state of CA has no chance at all of getting a CC permit.
NYC is about 40% of our population, most of the rest of us can get lifetime CC permits.
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He's so cute when he's getting uppity about NY or Linux. :laugh:
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He's so cute when he's getting uppity about NY or Linux. :laugh:
=D
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This decision came from the NINTH Circuit?!?!?!
What's next? Barney Frank becomes straight & conservative? Richard Simmons wears long pants? Secret documents are found where Col. Jeff Cooper admits that the 9mm is a great cartridge?
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He's so cute when he's getting uppity about NY or Linux. :laugh:
:angel: I'm better now :angel:
So, can anyone explain in layman's terms what this novel means? My head is starting to hurt reading it. We are closer to getting the 2nd recognized as a protected right under the 14th?
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The 2nd Amendment applies to the states via the 14th!
We are missing a "standard of review". Fundamental, invidual rights receive "strict scrutiny" review.
Here the 9th Circuit said, "Yes, the 2nd Amendment applies to the states, but the states can do anything they want."
*Buzzer*
No, they cannot.
This is another piece of the puzzle. When the 9th Circuit says that the 2nd Amendment is so fundamental that it applies to the states, we are on a roll and have Big Mo.
Step 1: individual, fundamental right
Step 2: incorporation
Step 3: strict scrutiny
Step 4: bye-bye gun control as we know it
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This is another piece of the puzzle. When the 9th Circuit says that the 2nd Amendment is so fundamental that it applies to the states, we are on a roll and have Big Mo.
Step 1: individual, fundamental right
Step 2: incorporation
Step 3: strict scrutiny
Step 4: bye-bye gun control as we know it
Could you please expand on steps 2 and 3? Some of us are unfamiliar with the details of incorporation and especially strict scrutiny.
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Incorporation=>applying the Bill of Rights to the States via the Fourteenth Amendment.
While many state Supreme Courts (mostly Southern oddly enough!) were applying the Federal BoR to the states, the Federal Supreme Court held that the BoR only applied to the Congress and not the states.
After the dismal failure of the Civil Rights Act of 1866, Congress passed the 14th Amendment which the Framers intended to apply the BoR to the states so that the South would be forced to stop terrorizing the freedmen (at least by state action). The Federal Supreme Court reacted by "selectively incorporating" the BoR to the states on a case by case basis. The First Amendment was not applied to the states until the 1920s.
Short history:
http://legal-dictionary.thefreedictionary.com/Incorporation+(Bill+of+Rights)
Strict Scrutiny=> test for a law as it impacts a fundamental individual right.
Different levels of review: rational basis, intermediate level, strict scrutiny.
Strict scrutiny requires government have a compelling interest that is narrowly tailored using the least restrictive means. In our issue, crime may be a compelling interest for the government but gun bans are hardly the least restrictive means and are not narrowly tailored.
Wikipedia does not have a bad explanation: http://en.wikipedia.org/wiki/Strict_scrutiny
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http://reason.com/blog/show/132996.html
NOT the huge win for the Nordykes, but for western states this is a major, major victory.
smoke that ceegar and say thanks to calguns & CA gun owners!
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I merged Gunsmith's thread with the already-existing thread on the same topic.
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Yeah, try to keep up gunsmith. I was posting on this yesterday.
Because I'm unemployed right now and have lots of time... =|
=D
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What is the practical impact of this ruling then?
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He's so cute when he's getting uppity about NY or Linux. :laugh:
Yeah, in NY you have to have a permit just to buy a gun to keep in your home, in NYC that could be a very long wait.
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Yeah, try to keep up gunsmith. I was posting on this yesterday.
Because I'm unemployed right now and have lots of time... =|
=D
I would have posted first but missed it due to going to work early to get my paycheck that they made me wait hours for.
I've been out of real work for a long time, first paycheck in months and this decision means I can breathe a little easier that AWB won't get implemented before I can buy more guns again
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The 2nd Amendment, recognizing an individual right to keep and bear arms via the USSC in Heller, has now been ruled to apply to the states, not just the Federal government.
This sets precedent (not controlling outside of the 9th Circuit but still persuasive) that the right should be incorporated against all the states. This provides support that several other District Courts with current cases regarding the 2nd should also treat it as incorporated.
Worst case, one doesn't and it sets the stage for the USSC to rule on the controversy.
The 9th, like the USSC, also implied a standard of review higher than mere "reasonability", when addressed by more "pro-gun" courts that may open the way for them to decide to use "strict scrutiny" as the appropriate method. Again, that could send it to the USSC to make that Strict Scrut. interp. nationwide.
So, immediate effects? Not many. Practical effects? Big as is, and potentially HUGE.
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What is the practical impact of this ruling then?
Way to much, I'm overwhelmed...
read here
http://www.calguns.net/calgunforum/forumdisplay.php?f=71
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Maybe now common people in Iowa can own NFA weapons and with our "may issue" concealed carry permits, Sheriffs will have to issue permits to anyone who wants one.
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The decision reads pretty much like this to me:
Yeah - we (the twisted justices of the 9th circuit court) will go ahead and incorporate the 2nd into the 14th.
But don't go jumpin for joy over it because just making a right harder to exercise isn't an infringement.
So...
Nana nana nana - big deal we incorporated it. We still aren't gonna trash laws that make it harder and harder to exercise yur beloved 2nd amendment rights because harder isn't infringment - so there!
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What part of "exercising the right to keep and bear arms" was infringed by allowing the County to not allow a gun show on the fairgrounds?
None.
Gun shows are still legal in Alameda county. That was the only thing covered in this particular lawsuit.
There is no Constitutional obligation for the government to facilitate the exercise of rights, it simply cannot unreasonable restrict them. There's no "right to hold a commercial gun show on any given particular piece of property when other properties are also available" implicit or explicit in the 2nd Amendment.
It is a GOOD thing when Courts restrict themselves to ruling solely on the question in front of them.
Concealed carry, AWB, waiting periods and the like will (and should) be covered by OTHER cases and lawsuits. This ruling makes those cases easier to win.
Cripes people, some of you would bitch if given $1,000 free cash if the bills weren't faced properly.
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Yeah, in NY you have to have a permit just to buy a gun to keep in your home, in NYC that could be a very long wait.
That's only handguns and as I said, permit is relatively easy to get in most of the state and good for life.
No registration/permits for long guns.
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What part of "exercising the right to keep and bear arms" was infringed by allowing the County to not allow a gun show on the fairgrounds?
None.
Gun shows are still legal in Alameda county. That was the only thing covered in this particular lawsuit.
There is no Constitutional obligation for the government to facilitate the exercise of rights, it simply cannot unreasonable restrict them. There's no "right to hold a commercial gun show on any given particular piece of property when other properties are also available" implicit or explicit in the 2nd Amendment.
It is a GOOD thing when Courts restrict themselves to ruling solely on the question in front of them.
Concealed carry, AWB, waiting periods and the like will (and should) be covered by OTHER cases and lawsuits. This ruling makes those cases easier to win.
Cripes people, some of you would bitch if given $1,000 free cash if the bills weren't faced properly.
To me, gun shows are "free speech" zones where we gunnies "assemble" & talk about politicians, a first amendment issue too, & the Alemeda Fairgrounds do not restrict other groups, just gunnies...sue em again.....1st amendment this time
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That's only handguns and as I said, permit is relatively easy to get in most of the state and good for life.
No registration/permits for long guns.
really? whats this then?
http://www.nyc.gov/html/nypd/html/permits/rifle_licensing_information.shtml
isn't that a permit?
in NV I don't need no stinking permit for a shotgun in my own house or car
heck, as long as its CA legal shotties and rifles are permit free in CA
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To me, gun shows are "free speech" zones where we gunnies "assemble" & talk about politicians, a first amendment issue too, & the Alemeda Fairgrounds do not restrict other groups, just gunnies...sue em again.....1st amendment this time
That might be a good suit. In fact Alameda allows possession of guns on the fairgrounds under certain circumstances. The generating reason for their policy was a Scottish heritage thing that had blank-firing black powder military recreations. The permitting involves a lot of "locked up when not in use and under the possession of the weapon owner at all times" verbiage. The criteria as written would be tough to meet and actually have sales going on.
Also I think the primary commercial purpose of a gun show might have it be considered a bit different than a straight "assembly for the sake of assembly". After all, you have to be allowed to, say, protest, on some public grounds but they don't have to allow you to sell t-shirts there.
I recommend folks go take a look at the posts and comments at the Volokh Conspiracy blog for legal takes by real lawyers.
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I think it's more of a "equal access" issue than a 2nd Amendment issue. I.e, if they open the fairgrounds up for use by other groups for similar purposes (a commercial show of some type - like a monster truck rally or a non-state or county sponsored ag show), they have to allow other groups to use it for similar purposes as well. So it could be possible for them to sue for those reasons rather than under 2nd amendment grounds. So the ruling was probably correct - the 2nd amendment doesn't apply under this particular case.
The fact that this netted us incorporation in the 9th circuit though, is freaking HUGE.
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http://www.calguns.net/calgunforum/showthread.php?t=175296
Several hundred responses in that thread. I'm still working through the case, but it seems a very significant decision. Especially coming from the Moonbat Circuit!
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really? whats this then?
http://www.nyc.gov/html/nypd/html/permits/rifle_licensing_information.shtml
isn't that a permit?
in NV I don't need no stinking permit for a shotgun in my own house or car
heck, as long as its CA legal shotties and rifles are permit free in CA
That's NYC, a far off and distant planet.
We were talking about NY.
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Maybe now common people in Iowa can own NFA weapons and with our "may issue" concealed carry permits, Sheriffs will have to issue permits to anyone who wants one.
Alright, what is this? THR?
Geez, Charby, don't get me started. =D
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Alright, what is this? THR?
Geez, Charby, don't get me started. =D
Why not? Here in Iowa if you want a CCW it depends upon who your sheriff is. Some sheriffs will issue to anyone who isn't a criminal while others only issue to law officers and elected officals. Some restrict the permit to worthlessness.
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Why not? Here in Iowa if you want a CCW it depends upon who your sheriff is. Some sheriffs will issue to anyone who isn't a criminal while others only issue to law officers and elected officals. Some restrict the permit to worthlessness.
I love PA. It's codified that if the sheriff doesn't grant your LTCF (assuming you're not a criminal, crazy or a habitual drunk) within 45 days and for a fixed cost, they're committing a crime. No one below state level may infringe on the 2A or the State constitution, and to do so is a crime. Some of us keep hoping Philly tries to push through some bit of gun control, so we can arrest everyone involved. =D
Seriously, though. Is there any reason why Iowa made that system? And what happens if the sheriff who granted your CCW leaves office? Can the new sheriff revoke your permit without cause?
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ISeriously, though. Is there any reason why Iowa made that system? And what happens if the sheriff who granted your CCW leaves office? Can the new sheriff revoke your permit without cause?
If the sheriff's would follow the spirit of the law then we wouldn't have a problem. Basically a permit should be issued to anyone who fits this.
724.8 PERSONS ELIGIBLE FOR PERMIT TO CARRY WEAPONS.
No person shall be issued a professional or nonprofessional permit
to carry weapons unless:
1. The person is eighteen years of age or older.
2. The person has never been convicted of a felony.
3. The person is not addicted to the use of alcohol or any
controlled substance.
4. The person has no history of repeated acts of violence.
5. The issuing officer reasonably determines that the applicant
does not constitute a danger to any person.
6. The person has never been convicted of any crime defined in
chapter 708, except "assault" as defined in section 708.1 and
"harassment" as defined in section 708.7.
But because of this the Sheriff has total discretion
724.11 ISSUANCE OF PERMIT TO CARRY WEAPONS.
Applications for permits to carry weapons shall be made to the
sheriff of the county in which the applicant resides. Applications
from persons who are nonresidents of the state, or whose need to go
armed arises out of employment by the state, shall be made to the
commissioner of public safety. In either case, the issuance of the
permit shall be by and at the discretion of the sheriff or
commissioner, who shall, before issuing the permit, determine that
the requirements of sections 724.6 to 724.10 have been satisfied.
However, the training program requirements in section 724.9 may be
waived for renewal permits. The issuing officer shall collect a fee
of ten dollars, except from a duly appointed peace officer or
correctional officer, for each permit issued. Renewal permits or
duplicate permits shall be issued for a fee of five dollars. The
issuing officer shall notify the commissioner of public safety of the
issuance of any permit at least monthly and forward to the
commissioner an amount equal to two dollars for each permit issued
and one dollar for each renewal or duplicate permit issued. All such
fees received by the commissioner shall be paid to the treasurer of
state and deposited in the operating account of the department of
public safety to offset the cost of administering this chapter. Any
unspent balance as of June 30 of each year shall revert to the
general fund as provided by section 8.33.
So yes if the Sheriff leaves office the incoming Sheriff could pull your permit if they wanted too, usually the new sheriff is against issuing CCW then they don't renew anyone, my father had that happen to him in the 1980's when my home county sheriff was defeated in the election. Pissed a whole lot of people off.
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Sorry, I don't think Nordyke helps out in Iowa yet, but there is a case coming up that should...I can't remember the name off hand.
From Wikipedia, the free encyclopedia
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The U.S. Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* District of Alaska
* District of Arizona
* Central District of California
* Eastern District of California
* Northern District of California
* Southern District of California
* District of Hawaii
* District of Idaho
* District of Montana
* District of Nevada
* District of Oregon
* Eastern District of Washington
* Western District of Washington
It also has appellate jurisdiction over the following territorial courts:
* District Court of Guam
* United States District Court for the Northern Mariana Islands
Headquartered in San Francisco, California, USA, the Ninth Circuit is by far the largest of the thirteen courts of appeals, with 29 active judgeships. The court's regular meeting places are Seattle, Portland, San Francisco, and Pasadena, but panels of the court occasionally travel to hear cases in other locations within its territorial jurisdiction. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel.
Hawaii and Guam have lots of gun control, this could be interesting
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http://www.calguns.net/calgunforum/showthread.php?t=175296
Several hundred responses in that thread. I'm still working through the case, but it seems a very significant decision. Especially coming from the Moonbat Circuit!
Go to http://volokh.com/ for good legal beagling of the topic.
Great blog overall, Volokh has a good article up for publishing he's previewing on the site discussing liberalizing carry and possession rules (even for minors and felons) for non-lethal weapons like sprays and stun guns / tasers.
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This is of course a bit of a gravedig, but I think it's reasonable to bump this old thread with some related news links.
http://www.saysuncle.com/2009/12/30/hamblen-loses-appeal/
A federal appeals court has denied a Tennessee state guardsman’s motion to overturn his conviction for possession of nine machine guns.
The ruling from the 6th U.S. Circuit in Cincinnati states that Richard Hamblen built the guns himself out of parts from a kit after the Sept. 11, 2001 attacks because he believed the guard was not well equipped with weapons.
Hamblen was charged in 2005 for unlawfully possessing machine guns and for possessing unregistered firearms. He was given a 15 month sentence followed by two years of supervised release.
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This is of course a bit of a gravedig, but I think it's reasonable to bump this old thread with some related news links.
http://www.saysuncle.com/2009/12/30/hamblen-loses-appeal/
Unfortunately it's not much of a test-case.
As written, Heller vs. D.C., even with 14th Amendment incorporation wouldn't have helped him. Plus the (presumed, on my part) fact that he did nothing to make those machine guns available to his guard unit makes his defense seem rather specious to me.
The guys who are making MG's trying to use only intrastate commerce in parts, then attempting to register them with the NFA as a post-'86 MG, being denied, then suing for standing have a much better chance. Even then though, courts have ruled on a wide number of cases as applied to the Interstate Commerce Clause that even completely intrastate items affect interstate commerce.
They'll have better luck going after the '86 MG freeze poison pill in the FOPA that they merely wish to comply with the '34 NFA, and that Heller guarantees the right, while still permitting the restrictions.
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He's so cute when he's getting uppity about NY or Linux. :laugh:
http://www.youtube.com/watch?v=_Q_odSgDQeE