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View Full Version : Nordyke: Important breaking news - same panel remains


hoffmang
07-18-2008, 7:02 PM
All,

I've posted before on this topic but we just received some exciting news today. The original panel in Nordyke v. King (07-15763) is keeping the case for the current appeal. That panel consists of Alarcón (http://www.fjc.gov/servlet/tGetInfo?jid=19), O’Scannlain (http://en.wikipedia.org/wiki/Diarmuid_Fionntain_O'Scannlain) and Gould (http://en.wikipedia.org/wiki/Ronald_M._Gould).

This panel wrote a very pro second amendment opinion (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FCCA5E5E7F2EBF2088256CD1005B853B/$file/9917551.pdf?openelement) the first time they remanded the case to the District Court. Make sure you read footnote 4 of the majority opinion and then all of Gould's special concurrence and his footnotes.

This case is likely to be heard at oral argument in the next 90 days. It's holding would generally be binding on the 9th Circuit shortly thereafter.

As soon as I know when oral arguments are scheduled, I'll post that here. I for one will be attending.

-Gene

ke6guj
07-18-2008, 7:50 PM
Cool. Sounds like we might have gotten a good panel. Would be nice to be incorporated in the 9th in 6-9 months and be able to na-na-na the CA-bashers :D

taloft
07-18-2008, 8:05 PM
Never mind, I figured it out from the link.:p

ke6guj
07-18-2008, 8:44 PM
this is the Alameda gun show ban law suit. It has been in the court system for years. It has been to the CA Supreme court and the 9th circuit in the past. It is back in front of the 9th, and with the Heller ruling, argueing infront of the same panel, by reading the ruling, it is felt that they might give us a pro-heller ruling, and with that possible Incorporation of the 2nd Amendment. Its previous rulings were bound by Hickman, which said that the 2nd was a collective right, not an individual right.


And the possibly of a Circuit court incorporating within 6-9 months of the Heller ruling is amazing. The other suits in process, SF and Chicago could take years to get to this point.



It's a bit complicated but Nordyke has been up and down the 9th Circuit and the CA Supreme court like a yo-yo. The first time around the 9th Circuit certified a question to the CA Supremes of whether bans of firearms on county property were pre-empted. The CA Supremes disengenously said that the laws weren't pre-empted.

The appeals panel in the 9th was bound by Hickman so didn't rule on the 2A that time and sent it back down to the District court for adjudication of the 1A claims. Kilmer asked the District Court judge to brief the 2A and he said no. Kilmer then wrongly lost at the District on the 1A. He appealed both the motion to brief the 2A and the 1A decision and is awaiting his panel of the 9th Circuit Court of appeal. He could get that panel as early as next week.

Cross your fingers for Kozinski!

Alameda County's counsel called Kilmer the other day and asked him when he'd file to supplement his briefs in the current appeal based on Heller.

A bit complex, but it means we could have a 9th Circuit appellate incorporation decision in less than 6 months. If we get a good panel, we'll be incorporated and gun shows will be safe. If we get a bad panel they'll protect gun shows on 1A grounds and gun shows will be safe.

This is how serious a practical impact Heller has.

-Gene

WokMaster1
07-18-2008, 8:59 PM
Gene, it's not even Christmas yet & between you & Bill there are enough good news to make me giddy & grinning like a chapless baboon.:D

Theseus
07-18-2008, 9:10 PM
I have to say that I never thought I would see this day. . . I am not sure, but I think that the judicial is getting tired of the legislators and executive from stamping out our rights such as wiretapping without warrants. I think they may see that the government might be overstepping and are trying to stop it.

I am glad that people are beginning to interpret the 2A as the right of the people for the purpose of replacing an oppressive government. This makes me feel all warm and tingly inside. Now, the real question is if we can make the argument that this means AW are in the clear, because the people need to be properly armed enough to effectively fight the government. . . That would be the real win. . and no more of this 10 round fixed magazine stuff. . .

CCWFacts
07-18-2008, 9:34 PM
Wow, this is a major coup if we get incorporation within 6 mo. That would be so cool. Oh, I'm waiting for the fall of PC 12031.

Paladin
07-18-2008, 9:43 PM
Great news, Gene.

Does the 9th make audio of the oral arguments available? If so, CGN may want to post a link to it (and Heller's), or put them in some sort of archive.

hoffmang
07-18-2008, 10:27 PM
Great news, Gene.

Does the 9th make audio of the oral arguments available? If so, CGN may want to post a link to it (and Heller's), or put them in some sort of archive.

I believe that certain cases do have audio posted about a week after. Keep in mind that we're a couple of months before oral argument in this one though.

-Gene

mymonkeyman
07-19-2008, 12:31 AM
Let's just hope they don't reject the argument under the 2nd without addressing incorporation. The panel was obviously pro-2nd amendment, but Heller's negative dicta about government land is harmful in this case, and the panel didn't really show its cards as to the ultimate merits of a 2nd amendment defense, only as to its belief that it should be able to hear an individual challenge on 2nd amendment grounds.

Liberty1
07-19-2008, 7:37 AM
Since licensing in CA (12050PC LTC) exempts one (even while OCing IMO) from 12031, 626.9, and 171b&c it seems that in the style of Dick Heller's case our poster child (with standing) should be someone who has either been denied a license or had one revoked for not a legit cause (and also have attempted to get a loaded and exposed license too with negative results). I wonder where we shall find such a patriot.;)

hoffmang
07-19-2008, 9:15 AM
Let's just hope they don't reject the argument under the 2nd without addressing incorporation. The panel was obviously pro-2nd amendment, but Heller's negative dicta about government land is harmful in this case, and the panel didn't really show its cards as to the ultimate merits of a 2nd amendment defense, only as to its belief that it should be able to hear an individual challenge on 2nd amendment grounds.

Did you read the footnotes to the concurrence? Gould cites Harlan's dissent in Duncan v. Louisiana. Also, why spend that much time analyzing the Second if you don't think it would apply to state action in a state action case. Finally, you have to read between the lines. The question certified to the Cal Supremes was answered in a most underhanded way and you can see the Federal panel raising an eyebrow about that.

Unclean hands always helps the other side.

-Gene

xdimitrix
07-19-2008, 9:30 AM
Reading their previous opinion it seems highly likely they will rule for incorporation.

Assuming they rule that way, what are the odds of a second "en banc" review? This happened to Heller if I recall correctly. I could see an "en banc" review being used as a political tool to crush any pro 2nd amendment outcome from this panel.

CCWFacts
07-19-2008, 12:53 PM
Assuming they rule that way, what are the odds of a second "en banc" review? This happened to Heller if I recall correctly. I could see an "en banc" review being used as a political tool to crush any pro 2nd amendment outcome from this panel.

DC petitioned for an en banc review and was denied.

A 9th circuit en banc is 11 judges. Do 11 judges there really want to sit through this thing? I hope not.

hoffmang
07-19-2008, 1:05 PM
I've thrown up a quick summary of the history and status of the Nordyke case here: http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King

It's possible that it could be taken en-banc, but I think the math would lead to a panel not voting to take an pro-incorporation case en-banc.

-Gene

sorensen440
07-19-2008, 7:43 PM
that is truely good news I have fond memorys of going to that show when I was in highschool