Posted on 04/20/2009 5:19:58 PM PDT by !1776!
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. 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.
(Excerpt) Read more at ca9.uscourts.gov ...
That's a straw man.
If the county allows other shows on county property, then it cannot discriminate just because they are girly men and guns give them the willies. If the county would like to simply close down all affected facilities to public access, that might be permissible, but they can't just pick and choose which legal products they will allow.
And if the 9th Circuit can read the Constitution, here's hoping (and praying) that a very solid BO NBC case ends up in their laps.
Actually, impressive news, yes.
The incorporation determination was certainly not dicta by any use of the term I’m familiar with.
The panel’s decision on incorporation is not dicta.
What are the yearly dues for membership with the NRA? I’m counting every penny these days.
that’s what I thought==also wa happened to Pelosi?
NEWS RELEASE
Second Amendment Foundation
12500 NE Tenth Place • Bellevue, WA 98005
(425) 454-7012 • FAX (425) 451-3959 • www.saf.org
NINTH CIRCUIT RULES 2ND AMENDMENT INCORPORATED TO STATES
For Immediate Release: Contact: Alan Gottlieb (425) 454-7012
BELLEVUE, WA – The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.
The majority opinion was written by Judge Diarmuid F. O’Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasionÂ…That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”
Although the court found against the plaintiffs in the case of Nordyke v. King – Russell and Sallie Nordyke, operators of a gun show in Alameda County, CA – the court acknowledged that its earlier position that the Second Amendment protected only a collective right of states has been overruled by the Supreme Court’s 2008 historic ruling in District of Columbia v. Dick Anthony Heller. That was the case in which the high court ruled that the Second Amendment protects an individual civil right to keep and bear arms.
“This is a great victory for advancement of the fundamental individual right of American citizens to own firearms,” said SAF founder Alan Gottlieb. “The Ninth Circuit panel has acknowledged that the Heller ruling abrogated its earlier position on the Second Amendment, and it further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”
SAF attorney Alan Gura, who successfully argued the Heller case before the Supreme Court in March 2008, filed an amicus brief in the Nordyke case. The Nordykes sued when Alameda County banned gun shows at the county fairgrounds by making it illegal to bring or possess firearms or ammunition on county property.
“The Heller ruling in 2008 was the first critical step toward full restoration of the individual citizen’s right to keep and bear arms to its rightful position as a cornerstone of the Bill of Rights,” Gottlieb observed. “This victory in the Ninth Circuit not only reinforces the Heller ruling, it expands upon it.”
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
Great ruling on incorporation. However, serious flaws in the application: nothing in the 2nd Amendment’s language or history limits the right to only home defense. That’s absurd on its face. How is a militia supposed to function without being able to carry their arms outside the home with them? Was the first revolution fought only inside peoples homes? No.
Also, as an identified fundamental right the government’s burden was supposed to be strict scrutiny. Very few, if any, gun laws will survive such a properly-applied judicial test. The county law at issue could not survive a proper Strict Scrutiny application of this fundamental right.
DON KILMER!!! YOU ROCK!!!
This is a watershed decision. The Nordyke v. King case has been wending its way through the courts for almost a decade. It was originally entered as a First Amendment case as to commercial free speech, and the defense (the County of Alameda) opened the door themselves for the Second Amendment.
It was denied cert by the US Supreme Court a few years back, and remanded to the California district court for trial, but this appeal, in the wake of the Heller decision, has put California in the enviable position of being one of the first states in the nation that will be able to roll back wide swaths of anti-gun laws by virtue of incorporation.
And coming out of the Ninth Circuit, one of the most leftist circuits in the nation, attorney Don Kilmer’s arguments must have been even more compelling than usual. He got a good draw on the three-judge panel.
What happens next is that Alameda appeals this to the full panel of the Ninth Circuit, and hopefully loses or is denied. Then, undoubtedly, they will appeal to the US Supreme Court.
If they’re granted Supreme Court cert, there’s a couple of good outcomes possible - they are denied, and the Ninth Circuit’s incorporation stands as the law of the land in California and lays the groundwork for rollback of abusive gun laws throughout the state and the rest of the Ninth Circuit, or they are granted, and we have a shot at winning incorporation at a national level, and the groundwork for rolling back rafts of unconstitutional abusive gun laws across the nation.
What a distinction for California, of all places! I’m proud to count Don Kilmer as an old friend.
This bears repeating.
check out the en banc 9th Circuit’s dissent in Silveria
they are to be commended for being consistent - the whole point of the dissent was that if we (court) are going to recognize individual rights for gays and abortion, we can’t ignore indivdiual rights that we personally don’t agree with like those emodied in the second amendment
it doesn’t surprise me that they went this way at all
But if, for example, gay people conduct festivals or whatever on county property where they sell their various gay perversions, then why would equal protection under the law be a factor?
No matter how you slice it or dice it, the counties ban is there because they don’t like guns and they don’t like gun people.
I am certain that if the history of all fatalities on county property was examined, they would find far more people dying from traffic accidents than guns - but we don’t hear a peep about the county banning cars.
I'm no lawyer, but I'm suspecting that if this case is appealed to SCOTUS, the reason for the appeal would be centered around this argument. It could be used as a means to argue the "shall not be infringed" clause of the 2nd Am. I suppose it's too much to hope for that this could conceivably result in the overthrow of most gun regs nationwide.
Certainly M.O. thinks so...
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Why would Alameda Co. appeal? They won the case.
I'm no lawyer, but I'm suspecting that if this case is appealed to SCOTUS, the reason for the appeal would be centered around this argument. It could be used as a means to argue the "shall not be infringed" clause of the 2nd Am. I suppose it's too much to hope for that this could conceivably result in the overthrow of most gun regs nationwide.
Only a lawyer could come up with the arguments they did that allowed them to uphold the ordinance in question. Having read through the decision, and marked it up for later comment (gonna have to convert it to html first though), I'm amazed at how many times they could say unequivocally that the 2nd amendment secures a "fundamental, historic right", yet believe this ordinance could possibly be constitutional.
Of course, the supreme court provided them with a loophole that they feel is big enough to drive a truck through because the Nasgul Nine were cowards who felt it proper to write an 80-page ruling covering the history of the 2nd amendment, yet never once mention Letters of Marquee and Reprisal. Anyone with a bit of historical knowledge would understand that you cannot have privateers if citizens cannot legally obtain not only small arms, but heavy armament as well.
They (correctly) mentioned that the first major battle of the American Revolution was fought over gun control, yet forget that the same can be said of the Texas Revolution as well, except they weren't concerned with rifles and muskets. The battle of Goliad occurred because Santa Ana wanted to take the cannon used by the town for their defense.
In a way it's good that they ruled against the plaintiffs, because they can't pull the same trick they did with U.S. v. Dalton, and U.S. v. Rock Island Armory. In both of these cases, the U.S. lost big time, as the allellate courts completely invalidated the 1934, 1968, and 1986 victim disarmament acts.
Here's the money quote in U.S. v. RIA
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED.
The reason I mention these two cases is that the thing that made these two cases interesting is that though the government lost the argument completely, and unequivocally, they refused to appeal because they feared losing at the supreme court, which would have made the decisions binding nation wide. In this case they don't have that option because the appeal is up to the plaintiffs.
I'm unaware that the NRA had anything to do with this case. Similarly, the Heller case was privately funded. I'm not sure what the NRA does these days except for jump on other people's bandwagons once the path has been blazed.
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