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DDT
12-18-2008, 2:33 PM
9th Circuit Judge Diarmuid O'Scannlain (http://en.wikipedia.org/wiki/Diarmuid_Fionntain_O%27Scannlain) moderated a panel on the implications of Heller. This was at the 2008 National Lawyers Convention.

It is available via the Federalist Society webpage. Here is a direct LINK (http://www.fed-soc.org/publications/pubid.1217/pub_detail.asp).

FYI. Scalia said in this address (http://www.fed-soc.org/publications/pubid.1193/pub_detail.asp) at the same convention that he isn't a fan of using the 14th for incorporation.

bulgron
12-18-2008, 2:59 PM
I'm trying to watch the Scalia talk, but the server is slow. If Scalia doesn't like the 14th for incorporation, then how does he want incorporation to happen?

leelaw
12-18-2008, 3:03 PM
then how does he want incorporation to happen?

I hope the answer is something other than "50 state constitutional conventions!" :p

DDT
12-18-2008, 4:13 PM
It was actually a comment in passing. He was asked about his originalist interpretation of the constitution v. existing case law and if there was any case law that he would accept even if it went against his own interpretation of the constitution directly. The example he chose that he would not reverse was the incorporation doctrine.

Interestingly in the panel discussion that I posted incorporation of the second amendment was discussed as the exact reason for the 14th amendment. Specifically preventing state and local law from infringing the second amendment rights of blacks and abolitionist whites in the south who were lynched or terrorized after their RKBA were taken away. Interestingly discretionary issue was also brought up specifically in the same place. Both issue and permitting were mentioned in that the white CLEOs would simply be given discretion in issuing permits for carry or own and naturally the blacks and abolitionists were never given permits. Sound familiar?


Sorry if some of this is old ground but I'm rather late to the party. I'm not a sunshine patriot, I'm a rainy-day patriot.

Shotgun Man
12-18-2008, 4:16 PM
I'm trying to watch the Scalia talk, but the server is slow. If Scalia doesn't like the 14th for incorporation, then how does he want incorporation to happen?

The privileges and immunity clause. One hopes.

DDT
12-18-2008, 4:19 PM
Oh, BTW. If you use iTunes it is quite easy to download it directly then listen rather than trying to stream it.

Liberty1
12-18-2008, 5:00 PM
Listening now! Thanks for posting! You made my day!

hoffmang
12-18-2008, 5:32 PM
O'Scannlain is one of the panel members in Nordyke.

-Gene

glockman19
12-18-2008, 6:09 PM
O'Scannlain is one of the panel members in Nordyke.

-Gene

Is that good or bad?

hoffmang
12-18-2008, 6:11 PM
Is that good or bad?

You can read what he said about the Second Amendment here (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FCCA5E5E7F2EBF2088256CD1005B853B/$file/9917551.pdf?openelement).

-Gene

glockman19
12-18-2008, 6:26 PM
You can read what he said about the Second Amendment here (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FCCA5E5E7F2EBF2088256CD1005B853B/$file/9917551.pdf?openelement).

-Gene

I'm listening right now.

383green
12-18-2008, 8:23 PM
I listened to the panel during my long commute home. It was very educational and interesting.

DDT
12-18-2008, 8:43 PM
Thanks Gene,

This is really interesting reading. The "expressive speech" is really interesting in light of the SacPD memo. It would seem that the SacPD see OC, at the very least, as "expressive speech" by their interpretation that most/all OCer's are trying to lure police into a situation that would cause a lawsuit to be filed. If that isn't viewing it as expressive speech nothing is.

jacques
12-18-2008, 8:48 PM
That is interesting. Thanks. SacPD is just another example of how most 2nd A issues are misinterpreted.

We wont violate their rights because it might be a trap

DDT
12-18-2008, 8:59 PM
You can read what he said about the Second Amendment here (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FCCA5E5E7F2EBF2088256CD1005B853B/$file/9917551.pdf?openelement).

-Gene

If it weren't for that concurring part I rather like Gould's opinion. :D

jacques
12-18-2008, 9:02 PM
If it weren't for that concurring part I rather like Gould's opinion. :D

Yeah, I didn't like that part either. It goes one direction then the other.

383green
12-19-2008, 7:45 AM
My understanding of the concurring part is that he agreed that their hands were tied by prior case law against treating the 2nd as being anything but collective, and then he immediately went on to state how he would have viewed the 2nd if that barrier was removed. Basically, "I'm forced to rule against you, but if any of the things I mention here change, come talk to me again, wink-wink-nudge-nudge". I see this as the evidence that we are likely to see a new Nordyke ruling that we like, now that it's in front of the same judges with the collective vs. individual situation changed by Heller.

bulgron
12-19-2008, 7:56 AM
Did anyone else listen to the panel discussion (http://www.fed-soc.org/publications/pubid.1217/pub_detail.asp) and come away a little depressed? In the panel, they said that there have been around 50 cases around the country where the 2A and Heller was raised by the defense, but because of the dicta in Heller the courts have continued to rule as if nothing has changed.

In fact, the courts (they said) continue to give broad deference to the legislatures on gun control matters. Reading between the lines, it seems that nothing has improved because the courts will continue to bend over backwards to find a way to uphold gun control laws, just as they did post-Miller. Indeed, the panel said that even Scalia misinterpreted Miller.

What is it going to take to get a case before the Supreme Court where they give the 2A actual teeth, actually outline the limitations on government where gun control laws are concerned, and actually make the lower courts take the 2A seriously?

I had been feeling pretty good about Heller until I listened to that panel.

Liberty1
12-19-2008, 8:06 AM
What is it going to take to get a case before the Supreme Court where they give the 2A actual teeth, actually outline the limitations on government where gun control laws are concerned, and actually make the lower courts take the 2A seriously?

Open carry holstered loaded pistol on "gov't" property like a non sensitive DMV building where one is forced to go to deal with the gov't to exercise the privileges that everyone else can access. Or a case concerning open carry and the use of a public bus etc...

To me a likely "sensitive area" would be the secure area of a prison, court, or police station.

Actually a "sensitive area" to me should ONLY be where the police can't carry; secure area of a city/county jail or state prison.

I wasn't depressed by the panel. I'm glad the short comings of Heller are known. It helps us focus on the long fight ahead and develope the strategies to over come those short comings. I do think we need to get a good case back in front of our 5 soon to shore up Heller's gains!

DDT
12-19-2008, 8:16 AM
It certainly did sound like incorporation should be a relative slam-dunk if it goes to the supreme court based on Scalia's comments about the 14th and incorporation and the history of the 14th discussed on the panel as it relates to the second. It really seems as though the second has at least as good a standing for incorporation as any of the other amendments which have already been incorporated.

I also agree that there needs to be considerable clarification on "sensitive areas" and truly wish that Scalia had spent more time on that in his opinion and less time on the laundry list of excluded individuals. I suspect that if Nordyke makes it all the way to the Supreme court the "sensitive areas" issue will be a significant part of the ruling.

DDT
12-19-2008, 10:54 AM
My understanding of the concurring part is that he agreed that their hands were tied by prior case law against treating the 2nd as being anything but collective, and then he immediately went on to state how he would have viewed the 2nd if that barrier was removed. Basically, "I'm forced to rule against you, but if any of the things I mention here change, come talk to me again, wink-wink-nudge-nudge". I see this as the evidence that we are likely to see a new Nordyke ruling that we like, now that it's in front of the same judges with the collective vs. individual situation changed by Heller.

I suspect that Gould's statement:

"Our panel is bound by Hickman, and we cannot reach the
merits of Nordyke’s challenge to Second Amendment. But the
holding of Hickman can be discarded by our court en banc or
can be rejected by the Supreme Court if it decides to visit the
issue of what substantive rights are safeguarded by the Second
Amendment."

is exactly the door that Heller opened.

383green
12-19-2008, 11:14 AM
Did the 9th circuit choose to not address Nordyke en banc, or did Heller come along and make that a moot point before they got around to voting on having an en banc hearing?

ke6guj
12-19-2008, 11:17 AM
Did the 9th circuit choose to not address Nordyke en banc, or did Heller come along and make that a moot point before they got around to voting on having an en banc hearing?re-read Gene's write-up on the yo-yo ride that Nordyke has been, http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King and it may be a little clearer.

PonchoTA
12-19-2008, 11:21 AM
How's the case going about the right to own in public housing in SF? I think THAT would be a more applicable incorporation fight than a trade show.

Anybody have any news? :confused:

383green
12-19-2008, 11:22 AM
Thanks, that explains it.

In hindsight, it seems that Jenkins' uninvited introduction of 2nd Amendment implications was a blessing in disguise.

hoffmang
12-19-2008, 11:24 AM
In hindsight, it seems that Jenkins' uninvited introduction of 2nd Amendment implications was a blessing in disguise.
There are few things sweeter than hoisting an anti on his own petard.

-Gene

383green
12-19-2008, 11:29 AM
There are few things sweeter than hoisting an anti on his own petard.

-Gene

They've been getting lots of practice hanging defective petards lately!

trinydex
12-19-2008, 7:29 PM
at about 64:00 they talk about de facto bans on concealed carry...

the guy responding not only fails to mention anything about ca but also doesn't acknowlege incorporation attempts going on in ca and what they're building towards....

JDay
12-19-2008, 7:33 PM
That is interesting. Thanks. SacPD is just another example of how most 2nd A issues are misinterpreted.

We wont violate their rights because it might be a trap

Sounds like they were already violating our rights and realized that there could be a lawsuit if they kept it up.