PDA

View Full Version : Nordyke, McDonald, Maloney v. Rice


CCWFacts
04-20-2009, 1:09 PM
Ok, we now have the 9th circuit saying "it's incorporated".

I assume that the victory in Nordyke is going to help the plaintiff in McDonald (http://www.chicagoguncase.com/) in their incorporation case.

And if that goes well, that would give us a circuit split, with the self-indulgent egotist Mr. Maloney have lost incorporation in NY.

Is that how this is going to go?

As wonderful as it is to have incorporation here in the 9th, we really really need to have the issue settled by the Supreme Court, so we don't get destroyed by this years or decades later. Who knows what the Supreme Court will look like in 2020, or 2030, or beyond?

yellowfin
04-20-2009, 1:26 PM
It'll help MacDonald and hopefully Maloney will go away. I've been talking to the people in NY and they don't seem to be as keen on confronting Maloney and making him stop. There is ZERO use to anyone except our enemies for Maloney to keep it up.

jasilva
04-20-2009, 1:30 PM
I bet that Maloney now has a better standing in re appeal to SCOTUS. At least on the incorporation issue. The consideration of whether his nunchuka are "arms" may be left for a lower court to consider but that doesn't mean the SCOTUS won't use the split between the 2nd and 9th as the opportunity to rule on incorporation.

E Pluribus Unum
04-20-2009, 1:37 PM
I bet that Maloney now has a better standing in re appeal to SCOTUS. At least on the incorporation issue. The consideration of whether his nunchuka are "arms" may be left for a lower court to consider but that doesn't mean the SCOTUS won't use the split between the 2nd and 9th as the opportunity to rule on incorporation.

Right... They would most likely deny cert, or rule that nunchaku are not arms and leave it at that.

I disagree though... the second amendment protects all military weapons. At the time the second amendment was drafted, Japanese fuedal soldiers carried nunchaku, and various other "weapons of war".

jasilva
04-20-2009, 1:54 PM
Right... They would most likely deny cert, or rule that nunchaku are not arms and leave it at that.

I disagree though... the second amendment protects all military weapons. At the time the second amendment was drafted, Japanese fuedal soldiers carried nunchaku, and various other "weapons of war".


If I recall correctly, the 2nd ruled on incorporation NOT whether or not nunchaku are arms. So therefore the SCOTUS not be granting cert based on anything other than the question of incorporation. They would have to rule on incorporation while at the same time saying that ONCE that decision was made the case would have to be returned to the lower courts for a decision on whether the nanchaku are considered arms. If the lower court ruled against them being arms THEN Maloney could appeal again to the SCOTUS on that issue alone.

Theseus
04-20-2009, 2:41 PM
That is an issue I believe. . . Sure, not every weapon is an "arm", but there is a thin line between banning one and banning another.

GunSlinga
04-23-2009, 5:06 PM
There was a post about both the Nordyke and Maloney cases on SCOTUS BLOG yesterday:

http://www.scotusblog.com/wp/analysis-guns-chukas-and-the-states/#more-9302

CCWFacts
04-23-2009, 6:10 PM
There was a post about both the Nordyke and Maloney cases on SCOTUS BLOG yesterday

Thanks for the ref. on that. It's a good read.

Moronic pro se plaintiffs (Maloney, Gorski) and public defender defendants (Miller) are our curse.

yellowfin
04-23-2009, 7:00 PM
NY got Maloney because the RKBA crowd there is not proactive, organized, and play-to-win motivated like our coalition here. I have been in conversation with one of their higher ups and it alarms me greatly. Hey Gene, would you mind a trip to NY in June or July?

b.faust
04-23-2009, 7:30 PM
I hadn't heard of this Maloney fellow till I saw him mentioned in posts a few months back.

Question: Is this guy nuts? Why is this such an issue to him?

I've gone to his website, but I know almost nothing about him, and can't find his actual reason for wanting to legalize these?

Sorry if I missed a thread about this. I'm just curious about this fellow.

B.

CCWFacts
04-23-2009, 7:39 PM
I hadn't heard of this Maloney fellow till I saw him mentioned in posts a few months back.

http://schlissellaw.files.wordpress.com/2009/03/bill_of_rights1.jpg

Question: Is this guy nuts?

Yes. See above.

Why is this such an issue to him?

Ego, arrogance, self-indulgence, lack of concern for the well-being of others, "I'll win because I'm right".

I've gone to his website, but I know almost nothing about him, and can't find his actual reason for wanting to legalize these?

He thinks he's right, therefore he will win. Ok, he is right; those things should be considered "arms" and should be protected. But he doesn't care how much damage he causes, including possibly risking losing incorporation. Ego, self-indulgence.

NY got Maloney because the RKBA crowd there is not proactive, organized, and play-to-win motivated like our coalition here.

Yes. They seem to have no organized RKBA crowd at all there. That's what happens when you have a gun ban in place for 100 years: gun culture dies out and is forgotten. That's what we need to avoid in this state.

I have been in conversation with one of their higher ups and it alarms me greatly. Hey Gene, would you mind a trip to NY in June or July?

Someone should go out there and try to stop him. My idea is the NRA should offer him an all-expense-paid one-year martial arts training sabbatical in Japan if he'll drop the case. But that wouldn't work; he has egotism and "I'm right" to the level of it being a disease.

elenius
04-23-2009, 7:42 PM
I thought Maloney was represented by the Ken Starr people?

b.faust
04-23-2009, 7:43 PM
Haha, thanks for the 'visual diagram' CCW
;)

I'm going to just assume some pro 2a groups have contacted him asking him to 'chill' a bit and he's having none of it.

B

yellowfin
04-23-2009, 7:46 PM
It's also possible he's getting support from the other side to push this unwittingly on his part as sabotage- basically the "useful idiot" taken to a catastrophic degree.

CCWFacts
04-23-2009, 7:52 PM
I thought Maloney was represented by the Ken Starr people?

He's getting a deal with Kirkland and Ellis (http://www.kirkland.com/). Who are Kirkland and Ellis? They are headquartered in Chicago, a city where no one can (legally) own guns. Their firm were very solid supporters / donors for Obama. So, this one egomaniac is going to have an bunch of liberal gun-banners defending the Second Amendment in the Supreme Court? He wants to risk it for everyone so that Obama-supporters from Chicago can lead the fight for gun rights?

Haha, thanks for the 'visual diagram' CCW

Yeah, that used to be the main image on his website until enough people must have told him, "take that down, you look crazy". Regardless, he is crazy. Think whatever you want about nunchucks, they are not a normal, acceptable self-defense weapon in the US, and that's going to have an impact on how courts view him and his case. Maybe in some other culture, such as Japan 300 years ago, they were normal and acceptable, but, sorry Mr. Maloney, we're living in America in 2009, not Japan in 1709.

I'm going to just assume some pro 2a groups have contacted him asking him to 'chill' a bit and he's having none of it.

That's what I would assume. He's the worst kind of crazy, the kind who knows he is right and therefore will never listen to anyone.

Except....

If we could find some respected Aikido master, form Japan, to explain it to him, in Aikido terms ("it is not the Aikido way to rush into a battle like this... blah blah blah"), it would work. Does anyone have a contact like that?

elenius
04-23-2009, 7:53 PM
The scotus blog article mentions there are ongoing incorporation cases in the 7th and 5th circuits. 7th is McDonald, but what's cooking in the 5th?

Also interesting idea that scotus might hear nordyke and maloney together. They will have to say something about both what is a "sensitive place" and what are "arms" at the same time -- two of the main open issues in 2A case law. Neither case seems optimal though. In Nordyke, the sensitive place is actual government property, and the "arms" in Maloney are "weird"...

b.faust
04-23-2009, 8:29 PM
If we could find some respected Aikido master, form Japan, to explain it to him, in Aikido terms ("it is not the Aikido way to rush into a battle like this... blah blah blah"), it would work. Does anyone have a contact like that?

I used to study under Mitsugi Saotome about 10+ years ago, but he wasn't real happy when I switched over to Sambo and Brazilian Jujitsu.

B

SwissFluCase
04-23-2009, 8:35 PM
So what do we do? Push the NRA to do an expose in the American Riflerag?

I'll bet he is a gun hating martial artists. I really think he is.

Regards,


SwissFluCase

CCWFacts
04-23-2009, 8:47 PM
So what do we do? Push the NRA to do an expose in the American Riflerag?

I'll bet he is a gun hating martial artists. I really think he is.

He's also one of those with an obsession with Japanese culture and martial arts. As much as he is unreasonably / irrationally closed to us, he would be unreasonably open to listening to a Japanese Aikido master. If we want to win this with him, we need to find one.

The economy is hurting everyone, including people trying to run dojos for-profit. I'm sure the NRA could hire a acceptable Aikido master as a "consultant" to help out on this problem.

That is the way to solve this problem. It's the Aikido way! (Ok, that's actually my Jewish variation on the Aikido way.)

http://umnaikido.files.wordpress.com/2008/01/aikido-kanji.jpg

SwissFluCase
04-23-2009, 8:54 PM
He's also one of those with an obsession with Japanese culture and martial arts. As much as he is unreasonably / irrationally closed to us, he would be unreasonably open to listening to a Japanese Aikido master. If we want to win this with him, we need to find one.

The economy is hurting everyone, including people trying to run dojos for-profit. I'm sure the NRA could hire a acceptable Aikido master as a "consultant" to help out on this problem.

That is the way to solve this problem. It's the Aikido way!

http://umnaikido.files.wordpress.com/2008/01/aikido-kanji.jpg

I've studied my share of Aikido when I was a kid. The best thing I learned was how to fall properly so I could get right back up. I digress...

I like the idea of an Aikido master. Maybe toss in a high profile practioner as an added bonus, like Stephen Segal, just for fun (I have no idea what his 2A views are, btw).

I would rather redirect the energy, rather than do something less savory, like undermining parts of his case (by filing amicus briefs disclaiming "non-American" weapons, or something?)...

Regards,


SwissFluCase

CCWFacts
04-23-2009, 9:10 PM
I've studied my share of Aikido when I was a kid. The best thing I learned was how to fall properly so I could get right back up.

Me too!

I like the idea of an Aikido master.

If we want to get him to change his mind on this, that is the only way. He's one of these people who has no perspective on things. Our arguments will be given no weight. Arguments from Aikido Master So-and-so will be given a lot of weight.

I would rather redirect the energy, rather than do something less savory, like undermining parts of his case (by filing amicus briefs disclaiming "non-American" weapons, or something?)..

Yeah.

SwissFluCase
04-23-2009, 9:25 PM
As much as I like the Aikido master idea, and as much as I believe the 2A applies to martial arts weapons, I am willing to go on record that I have no problem letting martial arts weapons "take one for the team" if that is the safest way to ensure our ranged weapon (gun) rights. How such a thing would work is way beyond my non-lawyer mind, but that is how I feel today.

Regards,


SwissFluCase

CCWFacts
04-23-2009, 9:39 PM
As much as I like the Aikido master idea, and as much as I believe the 2A applies to martial arts weapons, I am willing to go on record that I have no problem letting martial arts weapons "take one for the team" if that is the safest way to ensure our ranged weapon (gun) rights.

Yeah, me too. I like martial arts and martial arts weapons. They are cool. But they are not modern self-defense, and I would not want to put modern self-defense at any risk to get martial arts weapons. Let's win all the ordinary gun stuff first, then let's win the weird stuff (martial arts weapons, MGs, etc).

jdberger
04-23-2009, 9:47 PM
Chuck Norris is an RKBA guy.

I'm betting that he knows someone...

Now who knows Chuck?

jdberger
04-23-2009, 9:54 PM
BTW - Kirkland and Ellis is a nationally respected law firm with a global practice. They do corporate law, though they might have some idealogues who are interested in 2A cases. This isn't uncommon for large firms.

Further, don't let a law firm's political donations blind you. Trial lawyers donate to both sides. Further, the political make-up of different offices can be wildly divergent. I've seen some firms where the East Coast offices were heavily conservative and SoCal offices were very liberal - and some of these had former Republican legislators as Partners.

Just sayin'....

Now - back to your regularly scheduled discussion.

CCWFacts
04-23-2009, 9:55 PM
Now who knows Chuck?

I'm sure someone here could get in contact with him (I'm thinking of someone in particular). I would want to hear from the Right People to know if this is a desirable action first though.

yellowfin
04-23-2009, 10:46 PM
I've seen some firms where the East Coast offices were heavily conservative and SoCal offices were very liberal - and some of these had former Republican legislators as Partners.

Just sayin'.... East Coast Republican isn't necessarily a pro 2A credential either. Examples Michael Bloomberg and at least one senator from New Jersey are among the worst anti gunners there are. Mitt Romney is no friend of ours either, despite many attempts to paint him(self) as such. Those people make Judas Iscariot look like Mother Theresa.

CCWFacts
04-23-2009, 10:48 PM
East Coast Republican isn't necessarily a pro 2A credential either. Examples Michael Bloomberg and at least one senator from New Jersey are among the worst anti gunners there are. Mitt Romney is no friend of ours either, despite many attempts to paint him(self) as such.

Sarah Brady is an East Coast Republican.

jdberger
04-23-2009, 11:07 PM
The point being that generalizations are not helpful.

CCWFacts
04-23-2009, 11:31 PM
The point being that generalizations are not helpful.

Yes, but... I can't help but be very suspicious of Kirkland taking this case pro bono. It's a rotten case with a rotten plaintiff and it seems very scary that that's the crew that would be representing the 2A before the Supreme Court. We're so close to victory on this, but if they find the right isn't incorporated, we are screwed.

GunSlinga
04-24-2009, 9:47 AM
I'll bet he is a gun hating martial artists. I really think he is.

Regards,


SwissFluCase

Maybe not...

http://homepages.nyu.edu/~jmm257/NE250.jpg

See http://homepages.nyu.edu/~jmm257/2d.html


Can anyone tell what kind of rifle he's holding? At first I though it was an old lever-action of some sort, but I can't quite see the lever...

yellowfin
04-24-2009, 10:08 AM
Yes, but... I can't help but be very suspicious of Kirkland taking this case pro bono. It's a rotten case with a rotten plaintiff and it seems very scary that that's the crew that would be representing the 2A before the Supreme Court. We're so close to victory on this, but if they find the right isn't incorporated, we are screwed.
Precisely. It's
http://jaccuse.files.wordpress.com/2008/03/beastie-boys-sabotage-352116.jpg

gunsmith
04-24-2009, 10:26 AM
On June 26, with the aim of a pro bono Washington lawyer, Jeffrey Bossert Clark, Maloney expects to file for Supreme Court review of his Second Amendment claim. (On Monday, Justice Ruth Bader Ginsburg set that date for the filing. She acted on an application [Maloney v. Rice, 08A907] seeking more time to file and laying out the issue to be raised. The application, along with the Second Circuit Court ruling at issue, can be read here.)

GunSlinga
04-24-2009, 11:02 AM
On June 26, with the aim of a pro bono Washington lawyer, Jeffrey Bossert Clark, Maloney expects to file for Supreme Court review of his Second Amendment claim. (On Monday, Justice Ruth Bader Ginsburg set that date for the filing. She acted on an application [Maloney v. Rice, 08A907] seeking more time to file and laying out the issue to be raised. The application, along with the Second Circuit Court ruling at issue, can be read here.)

The application can be read where?

GunSlinga
04-24-2009, 11:22 AM
Never mind. Found it:

http://www.scotusblog.com/wp/wp-content/uploads/2009/04/maloney-application-4-16-09.pdf

GunSlinga
04-24-2009, 11:31 AM
And if you open the pdf link and go to footnote 3 you find:

The view expressed by multiple panels of the Second Circuit that they were constrained by existing Supreme Court precednet to hold that the Second Amendment applies only against the federal government would have made seeking rehearing en banc futile. While the Second Circuit’s emphasis on Rodriguez de Quijas was correct, its focus on Presser instead of the even older case of United States v. Cruikshank, 92 U.S. (2 Otto) 542 (1875), is perhaps puzzling. As Heller explained, Cruikshank “held that the Second Amendment does not by its own force apply to anyone other than the Federal Government.” 128 S. Ct. at 2812. By contrast, “Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.” Id. at 2813. Private paramilitary organizations are not involved in this case. Moreover, Cruikshank (not Presser) was the focus of Heller, where this Court stated that “Cruikshank’s continuing validity on incorporation” is “a question not presented in this case.” Id. at 2813 n.23. Mr. Maloney’s forthcoming petition for certorari will present that question.

Please excuse any typos above. Anyway, is anyone familiar enough with these cases to explain what is going on without me having to spend a whole afternoon in a law library?

yellowfin
05-12-2009, 10:57 AM
The McDonald oral arguements will be heard on the 26th. Hey Gene, will they put that on CSPAN as well like they did for Nordyke?
http://www.chicagoguncase.com/2009/04/24/progress-and-an-argument-date/

Nodda Duma
05-12-2009, 11:12 AM
Yeah, me too. I like martial arts and martial arts weapons. They are cool. But they are not modern self-defense, and I would not want to put modern self-defense at any risk to get martial arts weapons. Let's win all the ordinary gun stuff first, then let's win the weird stuff (martial arts weapons, MGs, etc).

I am hesitant to sacrifice anything that can be construed as an arm to win for "what's popular". That line of thinking stinks of the compromises made in the past. It is also too similar to what this bozo from New York is thinking: Sacrifice everything else to get his nunchakus.

However, with him unwilling to back down, it seems like that's how it's going to play out.

-Jason

CCWFacts
05-12-2009, 11:18 AM
I am hesitant to sacrifice anything that can be construed as an arm to win for "what's popular". That line of thinking stinks of the compromises made in the past.

No, my line of thinking is that some stuff (ordinary handguns, rifles, shotguns) is far more important than some other stuff (obsolete martial arts weapons), and therefore it's far more important to solidify the important stuff first. Going after sticks-with-strings first makes it more likely that they will find that nothing has 2A protection and that would be bad.

It's about being smart with risks: get your most important stuff first and get the least important stuff last.

I hope everyone here can see and agree that some things are more important than other things and it's wisdom to be able to distinguish.

It is also too similar to what this bozo from New York is thinking: Sacrifice everything else to get his nunchakus.

No it is not the same. Risking "everything" to get ordinary handguns and longguns is a smart risk. Risking "everything" to get obsolete martial arts weapons is dumb.

Librarian
05-12-2009, 11:40 AM
And if you open the pdf link and go to footnote 3 you find:

The view expressed by multiple panels of the Second Circuit that they were constrained by existing Supreme Court precednet to hold that the Second Amendment applies only against the federal government would have made seeking rehearing en banc futile. While the Second Circuit’s emphasis on Rodriguez de Quijas was correct, its focus on Presser instead of the even older case of United States v. Cruikshank, 92 U.S. (2 Otto) 542 (1875), is perhaps puzzling. As Heller explained, Cruikshank “held that the Second Amendment does not by its own force apply to anyone other than the Federal Government.” 128 S. Ct. at 2812. By contrast, “Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.” Id. at 2813. Private paramilitary organizations are not involved in this case. Moreover, Cruikshank (not Presser) was the focus of Heller, where this Court stated that “Cruikshank’s continuing validity on incorporation” is “a question not presented in this case.” Id. at 2813 n.23. Mr. Maloney’s forthcoming petition for certorari will present that question.

Please excuse any typos above. Anyway, is anyone familiar enough with these cases to explain what is going on without me having to spend a whole afternoon in a law library?

It's explained by cutting out most of the middle of what you quoted:
The view expressed by multiple panels of the Second Circuit that they were constrained by existing Supreme Court precedent to hold that the Second Amendment applies only against the federal government would have made seeking rehearing en banc futile. ... “Cruikshank’s continuing validity on incorporation” is “a question not presented in this case.” Id. at 2813 n.23. Mr. Maloney’s forthcoming petition for certorari will present that question.

The 2nd Circuit thinks that the 2nd Amendment is not incorporated against the states; en banc consideration by the 2nd Circuit would not change that; the issue will be presented to SCOTUS.

7x57
05-12-2009, 11:52 AM
It's about being smart with risks: get your most important stuff first and get the least important stuff last.


It's not so much about importance as it is about having a route to a win. Going after things in order of importance is often a motivation for these losing lawsuits. I doubt anyone at CGF thinks the roster is more important in some ultimate sense than striking down the CaAW ban, and yet notice which was challenged first.

In some very ultimate sense M4s are the most "important" weapon of all--important because all lines of all the reasons for the 2A cross there. I have to be able to have a privately owned one in order to report for militia duty, and I need one so that I'm expert with the manual of arms when I show up. I have the right to choose one for personal self-defense, defense against organized oppression, and so on. Yet everyone who knows anything says stay far away from the NFA for the forseeable future. Why? Not importance--strategy.

And yes, strategy has a role in litigating basic enumerated rights: for example, see Dave Kopel's discussion of the NAACP's incrementalist strategy (http://www.nationalreview.com/kopel/kopel200309221255.asp) and its relevance for gun rights.



Cottrol argues that the pro-right model for gun-rights litigation "should be the NAACP(s highly successful litigation strategy in Brown v. Board of Education. The NAACP took the time to:

1) raise the legal foundation by bringing the appropriate case; 2) get the precise circumstances and plaintiffs to get best posture before the court; and 3) wait until they had the right court."

Cottrol explains that Thurgood Marshall, the NAACP's lead counsel, used the group's influence to prevent plaintiffs from bringing risky or poorly postured anti-segregation lawsuits. Marshall personally felt that many of the plaintiffs had legitimate grievances. But Marshall knew that the courts would likely rule against these plaintiffs, and that the pro-segregation decisions would make it much harder to win cases in the future.

So for, example, the first challenges to school segregation focused on cases in which the state was not even obeying the "separate but equal" standard of Plessy v. Ferguson, and in which the emotional impact of the case was low, from the segregationist viewpoint.

In 1938, the NAACP successfully challenged Missouri's whites-only policy for the state law school. There being only a single state law school in the entire state, at the University of Missouri, the Missouri government could not defend the whites-only school as compatible with separate-but-equal. The Court ruled that segregation was not illegal; rather, the state was required to provide blacks with a "substantially" equal law school, and if not, blacks had to be admitted to the whites-only law school. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).



Notice what that means--the NAACP worked hard to keep legitimate cases from coming to court if they would harm the overall strategy, and they began with cases that actually accepted laws they intended to ultimately strike down but were not yet ready legally to challenge.

Was the NAACP a sell-out to start by filing cases accepting segregation and simply demanding application of "separate but equal"? I observe that the NAACP strategy was ultimately successful against much greater systematic opposition than we face, while the "no compromise" 2A litigation strategy seems to have been an abysmal failure every single time it has been tried.

I want to win, not feel good. We have nothing to lose by discarding "no compromise!" and everything to gain by learning everything possible from incrementalists like the NAACP.

7x57

Publius
05-12-2009, 11:56 AM
No, my line of thinking is that some stuff (ordinary handguns, rifles, shotguns) is far more important than some other stuff (obsolete martial arts weapons), and therefore it's far more important to solidify the important stuff first. Going after sticks-with-strings first makes it more likely that they will find that nothing has 2A protection and that would be bad.

The reasoning used in any case that draws lines between protected arms and unprotected arms that allow martial arts weapons to fall in the latter category will be used in future cases against more important weapons. Take U.S. v. Miller. A gun enthusiast back then might be forgiven for thinking "that's just a sawed-off shotgun, only criminals really want those," but look how the case was interpreted by the lower courts for almost 70 years.

CCWFacts
05-12-2009, 12:06 PM
I want to win, not feel good. We have nothing to lose by discarding "no compromise!" and everything to gain by learning everything possible from incrementalists like the NAACP.

Excellent post, my views exactly. It frustrates me that it's so hard for many activists here to get that.

The reasoning used in any case that draws lines between protected arms and unprotected arms that allow martial arts weapons to fall in the latter category will be used in future cases against more important weapons. Take U.S. v. Miller. A gun enthusiast back then might be forgiven for thinking "that's just a sawed-off shotgun, only criminals really want those," but look how the case was interpreted by the lower courts for almost 70 years.

That's why we need to be smart about our strategy in this. And leaping first to oddball weapons, or scary weapons, or weapons which are both oddball and scary (ie, nunchucks), is foolish.

GuyW
05-12-2009, 12:35 PM
....weapons which are both oddball and scary (ie, nunchucks), is foolish.

I don't think that nun-chucks ARE perceived as scary...

...many grew up watching Teenage Mutant Ninja Turtles, and that takes the edge off...
.

nicki
05-12-2009, 1:23 PM
This case is going forward, but it may open up other opportunities.

Are "Arms" limited to only what is "common" in Western Culture?

The laws against "martial arts weapons" are in fact racially and culturally based.

Many liberals actually support self defense, just not with guns.

Since the case is going to be heard, we can pray for a miracle.

I think we will get incorporation, the issue though will be what will we see in regards to "arms".

This should make for some very interesting legal briefs to say the least.

I think this is a case that may catch attention in Asian communities because the martial arts laws are racially based. We may get some interesting surprises.

Since this is not a "Gun Case", we may possibly get more balance in the press.

Nicki

7x57
05-12-2009, 1:30 PM
This case is going forward, but it may open up other opportunities.

Are "Arms" limited to only what is "common" in Western Culture?

The laws against "martial arts weapons" are in fact racially and culturally based.


That might be a useful angle--but only after we've established the right to common weapons pretty firmly.

Second--the notion of an RKBA itself is cultural. The precise notion the 2A protects is very specifically Anglo-American and assumes the peculiar features of an Anglo-American gun culture to function properly.

I suppose that bothers some people, but it's true never the less.

7x57

Davidwhitewolf
05-12-2009, 2:57 PM
I don't think that nun-chucks ARE perceived as scary...

...many grew up watching Teenage Mutant Ninja Turtles, and that takes the edge off...
.

Yes, I think nowadays nunchucks are perceived as silly, and thus perhaps not subject to 2A protection as serious "arms."

AntiBubba 2.1
05-12-2009, 6:52 PM
Maloney has petitioned the court, but they can still decline to hear it, right? Obviously the Justices have a say in whether a case makes the docket, but is that also decided by majority, or some other method?

If the court sees that both Maloney and Nordyke are headed to them at the same time, they might very well decline the 'chucks and accept the guns. My reasoning is that a decision in Nordyke will have very broad implications, whereas Maloney is not likely to. And Nordyke will affect the other--in all likelihood returning it to a lower court for review if the Court decides the Second is Incorporated.

How badly wrong is this?

Mulay El Raisuli
05-13-2009, 7:22 AM
From 7X57's post:


1) raise the legal foundation by bringing the appropriate case; 2) get the precise circumstances and plaintiffs to get best posture before the court; and 3) wait until they had the right court.




While I accept the strategic thinking (mostly) the flaw I see here is that we have the "right court" now. With the Obamination we have in the Oval Office, I don't know how long that will last.

Also, I don't know that nuchakus rate as a "weird" weapon. Is it all that different from a pikestaff or a hanger? More, should it matter? There's some fairly odd-looking swords out there too. Should we allow the weirder-looking ones be outlawed? The goal is to allow We The People to regain the Right to defend ourselves with whatever weapon will do the job. Should we allow ourselves to be dived into separate camps? Doesn't that just weaken us?

The Raisuli

7x57
05-13-2009, 7:35 AM
While I accept the strategic thinking (mostly) the flaw I see here is that we have the "right court" now. With the Obamination we have in the Oval Office, I don't know how long that will last.


Granted. But "the right court" isn't just about the supreme court, it is about the right circuit and the right state and so on down the line.


Also, I don't know that nuchakus rate as a "weird" weapon. Is it all that different from a pikestaff or a hanger? More, should it matter? There's some fairly odd-looking swords out there too. Should we allow the weirder-looking ones be outlawed?


Two problems--you're applying abstract logic, and you're using your own gut feeling. This is about the gut feeling of judges who are older, either uninterested in weapons or afraid of *bad people* with them, don't take martial arts, etc.


The goal is to allow We The People to regain the Right to defend ourselves with whatever weapon will do the job. Should we allow ourselves to be dived into separate camps? Doesn't that just weaken us?


Perhaps, but bringing the wrong case destroys the application of the 2A, maybe forever. Your reasonable argument would apply with at least as much force to the NAACP's strategy--refusing to take cases that have merit is, to be blunt, throwing people under the bus. I bet it hurt them a lot, and it hurts us. But...*not* being willing to do this is part of how we got into our original mess, and we have to do better this time.

We're not playing a game with style points--we're at war with an enemy who can kill by denying the right of self-defense and can even destroy the rule of law and the system of government. Wars have casualties, some of whom die because you had your forces committed elsewhere. When there are too many casualties, you have to perform triage to save whom you can.

We just are going to have to be strong enough to take our licks and keep fighting. It sucks, but if we can't do that we had no business going to war.

And yes, it hurts to say that, and far more so if you're a casualty. But as much as it pains me to say all that, I think it's true.

7x57

nicki
05-13-2009, 9:58 AM
The Gay community got nailed in the 1980's when the SCOTUS upheld a Georgia sodomy law.

What they did was regroup, start working at the state levels and then they came back in 2003 and had the "Sodomy laws" overturned with the "Lawrence case" with a 6 to 3 ruling.

The SCOTUS even apologized to the LBGT community in the ruling for decades of abuse.

Now the dissenters said that society is going to fall apart, etc etc.
The sky would fall, etc etc.

I bring this up because if we get the "wrong ruling" what will happen is alot more "gun owners" will be shocked into action.

The majority of Americans read the second amendment in plain english, not legalize.

If we get a "bad ruling", it will motivate American gun owners to get off their butts.

If you went to the doctor and he told you that you that if you don't take immediate action that you would probably have strokes that would leave you crippled and eventually kill you, but you could avoid that fate by taking immediate action, what would you do?

That is where gun owners are right now. The wakeup call would be a bad court ruling.

I say we shouldn't be afraid of a bad ruling, it won't be the end of the world.

Nicki

GunSlinga
05-13-2009, 11:07 AM
Maloney has petitioned the court, but they can still decline to hear it, right? Obviously the Justices have a say in whether a case makes the docket, but is that also decided by majority, or some other method?

If the court sees that both Maloney and Nordyke are headed to them at the same time, they might very well decline the 'chucks and accept the guns. My reasoning is that a decision in Nordyke will have very broad implications, whereas Maloney is not likely to. And Nordyke will affect the other--in all likelihood returning it to a lower court for review if the Court decides the Second is Incorporated.

How badly wrong is this?

Correct me if I'm wrong, but I think Nordyke ended at the Ninth Circuit. No one sought rehearing en banc, and the Nordykes, who are the ones who could petition for cert, won the incorporation issue and so, won't petition for cert.

Is this correct?

Also, I read that the Maloney petition time was extended until June 26, the first anniversary of Heller.

And, to answer the question, I believe four Justices can grant cert, so it doesn't take a majority to get it on the docket.

nicki
05-14-2009, 2:12 AM
Correct me if I'm wrong, but I think Nordyke ended at the Ninth Circuit. No one sought rehearing en banc, and the Nordykes, who are the ones who could petition for cert, won the incorporation issue and so, won't petition for cert.


The Nordyke case gave us incorporation, but because the fairgrounds got labeled as "sensitive zones", the Nordykes lost.

If the Nordyke's appeal, it will be on the "sensitive zone" issue, not incorporation itself.

We won incorporation, technically Alameda won their case so they can't appeal on the incorporation issue.

The "sensitive zone" issue presents problems that Ultimately Scotus will have to clear up.

The issue with what are "protected arms" will be another issue.

Nicki

Mulay El Raisuli
05-14-2009, 5:41 AM
Granted. But "the right court" isn't just about the supreme court, it is about the right circuit and the right state and so on down the line.



I don't know about that. Both sides are almost certain to appeal any loss to SCOTUS. So, I don't see the lesser courts as anything but stepping stones along the way. Adding to this is the fact that the Right People in this state have totally yielded the fight in the state courts. They just aren't trying (something I don't agree with). Given all of that, getting to SCOTUS before the players change is important.



Two problems--you're applying abstract logic, and you're using your own gut feeling. This is about the gut feeling of judges who are older, either uninterested in weapons or afraid of *bad people* with them, don't take martial arts, etc.



Neither abstract or gut feeling is at play here. A nunchuck is little different from a club.


Perhaps, but bringing the wrong case destroys the application of the 2A, maybe forever. Your reasonable argument would apply with at least as much force to the NAACP's strategy--refusing to take cases that have merit is, to be blunt, throwing people under the bus. I bet it hurt them a lot, and it hurts us. But...*not* being willing to do this is part of how we got into our original mess, and we have to do better this time.

7x57



Maybe. But at the very worst, we'll have a Circuit Court split, which isn't a bad thing. Besides, he might just win. Logic is on his side, after all.


The Raisuli