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MindBuilder
04-21-2009, 2:51 PM
Update: There appears to be precedent alleviating some of my concerns on this issue expressed below.
In the thread "Is Nordyke's holding really dicta" pguevara cited a Ninth Circuit en-banc decision that seems to make clear that Nordyke will not be considered dicta and thus is not worse than worthless.

In United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) (http://openjurist.org/256/f3d/895/united-states-of-america-v-michael-johnson) the court held in part:
Judge Tashima's concurrence raises a fundamental question concerning the development of our circuit law: To what extent is a later panel bound by statements of law contained in opinions of an earlier panel? Judge Tashima would hold that a later panel is free to ignore statements in an earlier opinion--even statements supported by reasoned analysis--if the later panel concludes that the earlier ruling is not necessary to the result reached. Judge Tashima is not the first member of our court to take this position. See, e.g., United States v. Enas, 204 F.3d 915, 920 (9th Cir. 2000) (dismissing the legal analysis of an earlier panel as "not necessary to the court's decision"), reh'g en banc granted, 219 F.3d 1138 (9th Cir. 2000). For the reasons explained below, we reject this approach. We hold, instead, that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.
Unfortunately it is also pointed out in that thread that state courts don't consider federal court opinions binding. Nevertheless I now think that the likelihood that this case will be respected as solid precedent is high enough to consider this Nordyke decision a strong victory.

End edit.

Resume original post:

It appears the Nordyke incorporation will be treated as dicta and ignored by other Ninth Circuit judges who don't like the 2nd Amendment, just as the Emerson decision was in the fifth circuit. To make matters worse, it sets the lousy precedent that the government can restrict the right to bear arms for almost the weakest of reasons, even in places like parks.

The decision will be considered dicta for the same reason Emerson was considered dicta, because the result would have been the same even if the 2nd Amendment had not been incorporated. Therefore the incorporation analysis was unnecessary.

Even if the Second Amendment is incorporated eventually, the real risk won't be changed all that much. The real risk is that gun grabbers will raise taxes and training requirements on guns so much that eventually the number of gun owners will dwindle to the point that the Second Amendment could be repealed. Taxes on arms must be the goal of our first attack in the courts after incorporation. Especially since we are likely to get more sympathy against taxes than for CCW or so called assault weapons. We must press for zero allowed taxes or the taxes WILL be raised slowly and anti-gun judges WILL permit them as reasonable, no matter how high they get. Training will also be increased until you have to go through practically the entire police training course before you can get a gun.

Gray Peterson
04-21-2009, 2:55 PM
Even if the Second Amendment is incorporated eventually, the real risk won't be changed all that much. The real risk is that gun grabbers will raise taxes and training requirements on guns so much that eventually the number of gun owners will dwindle to the point that an international gun ban treaty can be ratified in the Senate(overruling the Second Amendment).

:fud: :fud: Quit spreading this BS rumor that treaties can overrule our constitution. See Reid v. Covert.

ilbob
04-21-2009, 2:56 PM
Its not like its completely worthless. The courts are very slow to operate. They don't just one day snap their fingers and do away with all the unconstitutional gun laws. They deal with it one tiny issue at a time.

383green
04-21-2009, 2:57 PM
All I can say is, :TFH:.

DDT
04-21-2009, 2:57 PM
Incorporation is incorporation. While there is way more wiggle room here than I would like personally I suspect that gun/ammo specific taxes would be deemed unconstitutional, just like poll taxes. Do you have the money and desire to file a suit using "The Right People" as attorneys?

CCWFacts
04-21-2009, 3:03 PM
Actually, given that Nordyke was decided on procedural issues, could someone explain why this is not obiter dicta (http://en.wikipedia.org/wiki/Obiter_dictum)?

IANAL, so I'm curious / hoping to learn.

sfpcservice
04-21-2009, 3:03 PM
Fishing trip?

MindBuilder
04-21-2009, 3:12 PM
Ok, maybe a treaty can't overrule the constitution. But if gun ownership can be reduced enough, an Amendment could be passed.

383green
04-21-2009, 3:13 PM
If I had wheels, I'd be a wagon.

GenLee
04-21-2009, 3:14 PM
It appears the Nordyke incorporation will be treated as dicta and ignored by other Ninth Circuit judges who don't like the 2nd Amendment, just as the Emerson decision was in the fifth circuit. To make matters worse, it sets the lousy precedent that the government can restrict the right to bear arms for almost the weakest of reasons, even in places like parks.

The decision will be considered dicta for the same reason Emerson was considered dicta, because the result would have been the same even if the 2nd Amendment had not been incorporated. Therefore the incorporation analysis was unnecessary.

Even if the Second Amendment is incorporated eventually, the real risk won't be changed all that much. The real risk is that gun grabbers will raise taxes and training requirements on guns so much that eventually the number of gun owners will dwindle to the point that an international gun ban treaty can be ratified in the Senate(overruling the Second Amendment). Taxes on arms must be the goal of our first attack in the courts after incorporation. Especially since we are likely to get more sympathy against taxes than for CCW or so called assault weapons. We must press for zero allowed taxes or the taxes WILL be raised slowly and anti-gun judges WILL permit them as reasonable, no matter how high they get. Training will also be increased until you have to go through practically the entire police training course before you can get a gun.

Lets see, I am thinking you just might be......................





















a :troll:

sorensen440
04-21-2009, 3:15 PM
Ok, maybe a treaty can't overrule the constitution. But if gun ownership can be reduced enough, an Amendment could be passed.
Gun ownership is increasing and were winning in the courts

Why the pessimism ?

shooten
04-21-2009, 3:18 PM
If the gun grabbers thought that they could pass an ammendment nullifying the 2nd, they would. Right now they don't have the votes for the AWB II. I hope it stays that way.

jacques
04-21-2009, 3:19 PM
Baby steps bro, baby steps.

Oh what am I saying, this was like a bigfoot step.

Please read the entire thing. Also please note at the very end, the write up. The reasons the 2nd is important. These should clarify the thought process a little more.

Questions that may come to mind are, How can we defend ourselves against a tyranical govt or a foreign invasion with the present laws?

nooner
04-21-2009, 3:21 PM
Taxes on arms must be the goal of our first attack in the courts after incorporation.
Since the 2nd is now incorporated it begs the question; how can an "individual right" be taxed? The RKBA is moot without "arms" and the means (ammo) to use it. So I guess I agree with you on that point. The rest, not so much.

jasilva
04-21-2009, 3:25 PM
Actually, given that Nordyke was decided on procedural issues, could someone explain why this is not obiter dicta (http://en.wikipedia.org/wiki/Obiter_dictum)?

IANAL, so I'm curious / hoping to learn.

Because the Nordykes appealed on 2a grounds the court had to first rule on whether the 2a was binding upon states/municipalities BEFORE they could rule on whether or not the Alameda county law was in violation. So it was not just procedural but a required ruling.

Librarian
04-21-2009, 3:29 PM
Not dicta - from page 9 of the opinion: [3] The second obstacle facing the Nordykes is incorpora-
tion. That is, we must decide whether the Second Amendment
applies to the states through the Fourteenth, a question that
Heller explicitly left open. See 128 S. Ct. at 2813 n.23.
Finally, even if the Fourteenth Amendment does incorporate
the Second against the states, we must determine whether it
actually invalidates the Ordinance.


But it is possible that the other justices might attempt to characterize it so.

SgtDinosaur
04-21-2009, 3:32 PM
Since I'm not a lawyer and a lot of this stuff seems pretty arcane to me, I think I'll try not to have a strong opinion until I understand it. There are some very good 2A lawyers around, I just haven't heard them weigh in yet. And truth be told, we will not really know anything until a bunch of court cases that haven't even begun yet run their full course, which could be years.

Our goals could much more quickly be achieved through the state legislature, but it will be a cold day in hell before that happens I'm afraid.

RomanDad
04-21-2009, 3:34 PM
ITS NOT DICTA!!!! ITS NOT....

DDT
04-21-2009, 3:35 PM
Actually, given that Nordyke was decided on procedural issues, could someone explain why this is not obiter dicta (http://en.wikipedia.org/wiki/Obiter_dictum)?

IANAL, so I'm curious / hoping to learn.


The court affirmed the denial to amend because of the merits, not for procedural reasons. "that would have been futile" is key here.

These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile.


In order to determine of the requested amendment had merit they had to follow the logic laid out in the opinion, including the question of incorporation. This means that incorporation is not obiter dictum but rather ratio decidendi. (I really am not fond of Latin)

chickenfried
04-21-2009, 3:38 PM
something tells me you're a the glass is half empty kinda guy :p.

DDT
04-21-2009, 3:42 PM
Not dicta - from page 9 of the opinion:

But it is possible that the other justices might attempt to characterize it so.

I don't think they left room for that. Take a look at my reply and see if there is still wiggle room in your opinion.

383green
04-21-2009, 3:44 PM
something tells me you're a glass is half empty kinda guy :p.

Not only is this ruling completely incomprehensible, but the ink is ugly and the paper is from the wrong kind of tree. :D

cyphr02
04-21-2009, 3:44 PM
Baby steps bro, baby steps.

Oh what am I saying, this was like a bigfoot step.

Please read the entire thing. Also please note at the very end, the write up. The reasons the 2nd is important. These should clarify the thought process a little more.

Questions that may come to mind are, How can we defend ourselves against a tyranical govt or a foreign invasion with the present laws?

Who has ever combated a tyranical govt through the courts? You would be breaking the tyrant's law just by decenting, so whats another couple 'evil deeds'.

Now back to real America, where we are not combatting a supreme dictator, why not celibrate with the rest as a step in the direction of progress has been made for us!

MindBuilder
04-21-2009, 4:02 PM
As pointed out by Sorensen440, my post may have been a little pessimistic, but why all the accusations of trolling? Do you dispute that some courts in the Fifth Circuit ignored Emerson? Isn't that an important realization in this case? Of course some lower courts may recognize it as precedent, but the issue is not settled.

And while things may be getting better politically for the time being, don't you think they will continue their assaults on our rights, and that taxes and training will be a couple of the major fronts? Especially if outright bans are temporarily off the table.

And the bad thing about this decision, which is probably worse than any of its small benefits, is that it hardens their expected method of attack on concealed carry by restricting the places where carry is allowed so much that it makes the right much less practical. We need to bring concealed carry into cities so that people who don't hunt will have more reason to support the 2nd.

I'll have another post on the dicta question in a few minutes.

Librarian
04-21-2009, 4:06 PM
ITS NOT DICTA!!!! ITS NOT....
Ok, you're the pro (or, at least, the only one I know about) in the thread.

Consistent with your specialized education, did the opinion need to reach incorporation?

ETA I'll add to this that neither Volokh nor his commenters - http://volokh.powerblogs.com/archives/archive_2009_04_19-2009_04_25.shtml#1240254351
nor
Lyle Denniston at http://www.scotusblog.com/wp/second-amendment-extended/
have mentioned that the incorporation part of the opinion might be dicta -- and since this post is an appeal to authority ...

383green
04-21-2009, 4:08 PM
As pointed out by Sorensen440, my post may have been a little pessimistic, but why all the accusations of trolling?

Uh, because you called one of the most significant circuit court rulings in the history of the country "less than worthless" based on misunderstanding and speculation, perhaps?

DDT
04-21-2009, 4:10 PM
Ok, you're the pro (or, at least, the only one I know about) in the thread.

Consistent with your specialized education, did the opinion need to reach incorporation?

Of course it did. In order to address the question before the court one must first decided if the second amendment in fact a limit on the ordinance.

CCWFacts
04-21-2009, 4:12 PM
Because the Nordykes appealed on 2a grounds the court had to first rule on whether the 2a was binding upon states/municipalities BEFORE they could rule on whether or not the Alameda county law was in violation. So it was not just procedural but a required ruling.

AH, thank you, that explains it.

I'm here to learn.

tgriffin
04-21-2009, 4:18 PM
It appears the Nordyke incorporation will be treated as dicta and ignored by other Ninth Circuit judges who don't like the 2nd Amendment, just as the Emerson decision was in the fifth circuit. To make matters worse, it sets the lousy precedent that the government can restrict the right to bear arms for almost the weakest of reasons, even in places like parks.

The decision will be considered dicta for the same reason Emerson was considered dicta, because the result would have been the same even if the 2nd Amendment had not been incorporated. Therefore the incorporation analysis was unnecessary.

Even if the Second Amendment is incorporated eventually, the real risk won't be changed all that much. The real risk is that gun grabbers will raise taxes and training requirements on guns so much that eventually the number of gun owners will dwindle to the point that the Second Amendment could be repealed. Taxes on arms must be the goal of our first attack in the courts after incorporation. Especially since we are likely to get more sympathy against taxes than for CCW or so called assault weapons. We must press for zero allowed taxes or the taxes WILL be raised slowly and anti-gun judges WILL permit them as reasonable, no matter how high they get. Training will also be increased until you have to go through practically the entire police training course before you can get a gun.

:chickenlittle:

EastBayRidge
04-21-2009, 4:18 PM
"Do you dispute that some courts in the Fifth Circuit ignored Emerson?"

Pre-Heller, they could pretend Miller said stuff it didn't. Post-Heller, this is no longer viable.

DDT
04-21-2009, 4:20 PM
Because the Nordykes appealed on 2a grounds the court had to first rule on whether the 2a was binding upon states/municipalities BEFORE they could rule on whether or not the Alameda county law was in violation. So it was not just procedural but a required ruling.

You are mostly right. But technically they didn't grant the Nordykes the desired amendment to their suit. So, the 2A portion of the complaint was never accepted. The district court denied them the right to amend and the circuit affirmed that denial. The key part is that their denial was based on their decision that the claim had no merit. In order to make that decision they had to examine incorporation.

I know, a small difference, but worth pointing out.

jasilva
04-21-2009, 4:23 PM
You are mostly right. But technically they didn't grant the Nordykes the desired amendment to their suit. So, the 2A portion of the complaint was never accepted. The district court denied them the right to amend and the circuit affirmed that denial. The key part is that their denial was based on their decision that the claim had no merit. In order to make that decision they had to examine incorporation.

I know, a small difference, but worth pointing out.

Your right, I didn't note that amendment to the suit.

CCWFacts
04-21-2009, 4:24 PM
So this is a pretty darn cool decision. We get incorporation. It's binding precedent. "Our" side gets to determine what step to take next (appeal or not). The bummer here is for the Nordykes themselves. I hope they will solve it by finding another venue, some other legal attack, or whatever makes sense.

MindBuilder
04-21-2009, 4:35 PM
Is this decision really dicta? It doesn't matter if it is or isn't. It only matters if other judges consider it to be. Their argument will be that it was not NECESSARY for Nordyke to even consider incorporation because the result would have been the same whichever way they decided the incorporation issue, and therefore it is dicta. You and I may not like this line of reasoning, but it appears to me to be just about the same situation as in the Emerson case where other judges in the Fifth Circuit did ignore that decision and declared it dicta. As the situation is now, another three judge panel can actually knock down incorporation, and only an en-banc panel can reestablish it. Therefore Nordyke has accomplished little or nothing or less than nothing, so far.

Maybe I should have let you all celebrate for more than a day before killing the joy, but I think it's best if we're all on the same page here. We can make better strategy that way.

sorensen440
04-21-2009, 4:38 PM
Maybe I should have let you all celebrate for more than a day before killing the joy, but I think it's best if we're all on the same page here. We can make better strategy that way.


You didn't kill the joy you just sound like someone who doesn't really know what there talking about.

elSquid
04-21-2009, 4:40 PM
The bummer here is for the Nordykes themselves.

I dunno. If I was the Nordykes I'd be pretty happy about incorporation; they've helped to affirm the 2nd amendment rights of individuals in CA - and quite probably the entire US - against state and local gov'ts. It's not often you can make a positive impact on the lives of ~300 million people.

When 2nd amendment challenges are made in the future, folks will be quoting both "Heller" and "Nordyke". That's one hell of a legacy!

-- Michael

Librarian
04-21-2009, 4:42 PM
Is this decision really dicta? It doesn't matter if it is or isn't. It only matters if other judges consider it to be. Their argument will be that it was not NECESSARY for Nordyke to even consider incorporation because the result would have been the same whichever way they decided the incorporation issue, and therefore it is dicta. You and I may not like this line of reasoning, but it appears to me to be just about the same situation as in the Emerson case where other judges in the Fifth Circuit did ignore that decision and declared it dicta. As the situation is now, another three judge panel can actually knock down incorporation, and only an en-banc panel can reestablish it. Therefore Nordyke has accomplished little or nothing or less than nothing, so far.

Maybe I should have let you all celebrate for more than a day before killing the joy, but I think it's best if we're all on the same page here. We can make better strategy that way.

I quite disagree with your pessimism. And wouldn't it be appropriate to actually wait for "another three judge panel can actually knock down incorporation" to actually occur before bemoaning Nordyke's posited ineffectiveness?

You seem to me to be swinging in opposition to irrational exuberance into irrational depression. Neither extreme is justified - we have to wait to see how things develop.

sigsauer887
04-21-2009, 4:43 PM
No offense to you man, but you're a troll. Pessimistic gun owners like you really piss me off because you'll never be happy. Not only that, when decisions do come out (like this one) you crap it like nothing happened. Let me ask you this, were we better off last week? or are we better off today? I'm pretty sure you were pessimistic about Harrott too right? Harrott Decision didn't do anything.....

DDT
04-21-2009, 4:52 PM
No offense to you man, but you're a troll.

He's not a troll, he wants a question answered and we are trying. I suppose that this is probably a question that would be good to hear how the actual lawyers among us see it.

Whiskey_Sauer
04-21-2009, 4:55 PM
Is this decision really dicta? It doesn't matter if it is or isn't. It only matters if other judges consider it to be.

I think you misunderstand what dicta is. What is it that you consider "dicta" to be?

oaklander
04-21-2009, 4:56 PM
It is not dicta. It is precedent that BINDS all of the courts in this circuit. At this point, it is completely "citable" and binding.

DDT
04-21-2009, 4:59 PM
It is not dicta. It is precedent that BINDS all of the courts in this circuit. At this point, it is completely "citable" and binding.

BTW and OT: Nice meeting you last night... My Mopar lays better rubber. :D

sorensen440
04-21-2009, 5:00 PM
He's not a troll, he wants a question answered and we are trying. I suppose that this is probably a question that would be good to hear how the actual lawyers among us see it.
What was his question ?
He seems pretty sure of his position from what i have read

SwissFluCase
04-21-2009, 5:01 PM
We lost our 2nd Amendment rights over a period of 100 years. Do not expect the Gun Fairy to show up at your bedside with a MP5K on a silver platter one morning. It's not going to happen. It will take a long time to get our rights back, but it *is* happening. We are winning.

You just have to wait another... two weeks! :p

Regards,


SwissFluCase

383green
04-21-2009, 5:04 PM
Do not expect the Gun Fairy to show up at your bedside with a MP5K on a silver platter one morning.

Please forgive me for threadjacking, but I don't want an MP5K anyway. I want an M4. Oh, and maybe something small and exotic for fancy-dress occasions... say, a Skorpion? :p

Rhys898
04-21-2009, 5:32 PM
Oh, and maybe something small and exotic for fancy-dress occasions... say, a Skorpion? :p

How about a Steyr TMP or an HK MP7 PDW???

Jer

383green
04-21-2009, 5:34 PM
How about a Steyr TMP or an HK MP7 PDW???

Jer

Go for it. After all, we can't show up at the ball wearing the same guns. :p

hoffmang
04-21-2009, 5:40 PM
If Nordyke could be credibly be called dicta, don't you think the LCAV (Legal Community Against Violence) would have called it dicta in their media quotes?

No. The Lawyers on the other side now realize that Heller binds California.

Lou Dobbs had Kilmer and Kopel on at 4PM earlier today. You'll start seeing more news of this leak out - kind of how the 3 judge panel decision in Parker before it became Heller.

-Gene

RomanDad
04-21-2009, 5:48 PM
Ok, you're the pro (or, at least, the only one I know about) in the thread.

Consistent with your specialized education, did the opinion need to reach incorporation?

ETA I'll add to this that neither Volokh nor his commenters - http://volokh.powerblogs.com/archives/archive_2009_04_19-2009_04_25.shtml#1240254351
nor
Lyle Denniston at http://www.scotusblog.com/wp/second-amendment-extended/
have mentioned that the incorporation part of the opinion might be dicta -- and since this post is an appeal to authority ...


Thats correct. The Nordykes appeal was based almost entirely on the basis of a second amendment right (there was also the other issue of a first amendment right, but thats not what any of us are talking about.), therefore to determine whether the ordinance in question VIOLATED their second amendment rights, the court had to first determine they as individual citizens HAD ANY 2nd Amendment rights, which three days ago was a settled legal question in the opposite direction- THEY DID NOT.

Now, after determining in the wake of Heller, that they DO IN FACT HAVE a Second Amendment Right (and thus You, and I, and the O.P have a 2nd Amendment right as well), they had to determine (at least to a limited and general degree) what that right IS and (more specifically) whether the Alameda Ordinance violated that right.

The Court determined the second amendment protects a 'natural fundamental right of armed self preservation and a right of armed self defense against tyrants and lawlessness'. The Court then determined that the Alameda Ordinance did not violate this right with regard to the Nordykes. (and, as an aside, I also agree with that determination, given my reading of Heller, the purpose of the Second Amendment and the facts as I know them. I mean no offense to Don or anybody else, he did YEOMAN'S WORK to achieve what he achieved and the brilliance of his arguments shown through in the poetry of the opinion. I just do not believe the Nordyke's "natural rights of self defense" were violated by the ordinance- Which is not to say OTHER'S rights of self defense weren't, but that issue wasn't before the court).

Now.... Is it SETTLED... Once and for all? NO.... And this is where voloch is particularly correct as well, there is STILL the outside possibility of an en banc review and of course, a SCOTUS review.

BOTH are outside shots at best.

The language of the Nordyke court with regard to Hickman and Fresno Rifle, is quite telling to me... It is SO HARSH, and so unequivocal in its rejection of those two cases, and this particular case (Nordyke) has been before the Circuit for SO LONG, that they didn't just wing this. My educated guess (and I could be wrong) is that a headcount was taken of the entire circuit prior to the issuance of this opinion, to be sure it would hold up to scrutiny by the other judges on the court. You dont tell the world two landmark decisions can now be used as toilet paper, unless you know your buddies have your back.

Likewise, regardless of which party had requested it or how the circuit ruled, I NEVER envisioned the U.S. Supreme Court granting certiorari on the issue of whether a particular gun show could be held on a particular hunk of property, because of a particular local ordinance, and nothing about that has changed in my mind. In my opinion (and again, I could be wrong) my guess is the national implications of Nordyke beyond the confines of the 9th circuit will be limited to the fact that it creates a split of authority between the 9th and 7th circuits. Ultimately, the MUCH MORE INTERESTING CASE, the one more likely to motivate the Court into action, and the case most on point with Heller (thus the most significant for the National implications for all gun owners) is the Chicago ban, which I suspect will be the case that brings incorporation to the rest of the nation.


In the meantime, there IS a 2nd Amendment right to armed self defense in California, and individuals have standing to sue for violations of that right, and thats what Nordyke is all about. It gives my colleagues an admission ticket to the big show we didnt have last week.

artherd
04-21-2009, 5:56 PM
This is not dicta it is binding precedent in the 9th. Full Stop.

n6nvr
04-21-2009, 5:57 PM
If Nordyke could be credibly be called dicta, don't you think the LCAV (Legal Community Against Violence) would have called it dicta in their media quotes?

No. The Lawyers on the other side now realize that Heller binds California.

Lou Dobbs had Kilmer and Kopel on at 4PM earlier today. You'll start seeing more news of this leak out - kind of how the 3 judge panel decision in Parker before it became Heller.

-Gene

I hope it stars leaking a little more and faster. I'd like to see something in the MSM about it. I spent the day at home waiting for the termite guy and puttering around and didn't hear or see anything. I'm kind of thinking the MSM doesn't realize just how significant this might be and they sure aren't going to get much valid info from their usual sources in Brady groups.

MindBuilder
04-21-2009, 6:00 PM
Can anyone point out what makes this situation significantly different than Emerson?

Do I have a misunderstanding of precedent? It was my impression that judges can ignore precedent with impunity, especially if they have a half plausible excuse.

The only advantage of this decision is the precedent. But precedent isn't worth much if it's not followed by the judges that come after it.

Oaklander wrote:
It is not dicta.
Do you think other judges will do like they did after Emerson? If not, why not?

Whiskey_Sauer wrote:
I think you misunderstand what dicta is. What is it that you consider "dicta" to be?
If I remember right, the dissent in Emerson said that analysis or conclusions in an opinion were dicta and not binding precedent if they were not necessary to reach the final judgment.

Librarian wrote:
wouldn't it be appropriate to actually wait for "another three judge panel can actually knock down incorporation" to actually occur before bemoaning Nordyke's posited ineffectiveness?
Before this Nordyke decision I didn't know for sure if we would get binding incorporation. This Nordyke decision has not much changed my state of knowledge on that issue. There is no reason to wait before acknowledging that fact. For good strategy formulation, I think it is best to acknowledge it now. I'm not depressed by this decision. It's just a slight setback which is partly offset by an apparently ineffective but pleasing declaration of incorporation.

DDT wrote:
In order to make that decision they had to examine incorporation.
Judges hostile to the 2nd will probably claim that they didn't have to examine incorporation. That instead they could have just assumed incorporation and came to the same result, and therefore the incorporation analysis was dicta. Can you explain why you think judges hostile to the 2nd wont rely on this argument? Or why if they do rely on this argument, it won't render this Nordyke decision ineffective precedent?

RomanDad wrote:
ITS NOT DICTA!!!! ITS NOT....
But can a hostile judge render it as ineffective as if it were?

SwissFluCase
04-21-2009, 6:00 PM
I hope it stars leaking a little more and faster. I'd like to see something in the MSM about it. I spent the day at home waiting for the termite guy and puttering around and didn't hear or see anything. I'm kind of thinking the MSM doesn't realize just how significant this might be and they sure aren't going to get much valid info from their usual sources in Brady groups.

I noticed the lack of coverage. The media is thinking that if they ignore it it may go away, perhaps?

Regards,


SwissFluCase

RomanDad
04-21-2009, 6:05 PM
Can anyone point out what makes this situation significantly different than Emerson?

Do I have a misunderstanding of precedent? It was my impression that judges can ignore precedent with impunity, especially if they have a half plausible excuse.

The only advantage of this decision is the precedent. But precedent isn't worth much if it's not followed by the judges that come after it.

Oaklander wrote:

Do you think other judges will do like they did after Emerson? If not, why not?

Whiskey_Sauer wrote:

If I remember right, the dissent in Emerson said that analysis or conclusions in an opinion were dicta and not binding precedent if they were not necessary to reach the final judgment.

Librarian wrote:

Before this Nordyke decision I didn't know for sure if we would get binding incorporation. This Nordyke decision has not much changed my state of knowledge on that issue. There is no reason to wait before acknowledging that fact. For good strategy formulation, I think it is best to acknowledge it now. I'm not depressed by this decision. It's just a slight setback which is partly offset by an apparently ineffective but pleasing declaration of incorporation.

DDT wrote:

Judges hostile to the 2nd will probably claim that they didn't have to examine incorporation. That instead they could have just assumed incorporation and came to the same result, and therefore the incorporation analysis was dicta. Can you explain why you think judges hostile to the 2nd wont rely on this argument? Or why if they do rely on this argument, it won't render this Nordyke decision ineffective precedent?

RomanDad wrote:

But can a hostile judge render it as ineffective as if it were?

In the NINTH CIRCUIT, a hostile Judge at the District level can do whatever he likes to.... He will immediately have his decision appealed to the NINTH CIRCUIT COURT OF APPEALS, who JUST HANDED DOWN NORDYKE.... WHO ARE NOT GOING TO JUST CHANGE THEIR MINDS OVER NIGHT.

UNLESS AND UNTIL, there is an EN BANC or SCOTUS reversal of the Nordyke incorporation doctrine, the Second Amendment is an individual right in all territories of the 9th Circuit.

MindBuilder
04-21-2009, 6:22 PM
RomanDad wrote:
In the NINTH CIRCUIT, a hostile Judge at the District level can do whatever he likes to.... He will immediately have his decision appealed to the NINTH CIRCUIT COURT OF APPEALS, who JUST HANDED DOWN NORDYKE.... WHO ARE NOT GOING TO JUST CHANGE THEIR MINDS OVER NIGHT.
What if the three judge panel that gets the case in the 9th is hostile to the 2nd? Might they just declare this Nordyke decision dicta and declare no incorporation. Then we would have to appeal en-banc. So how are we much better off than without this decision? How is the issue settled? How do we know much better now whether the 2nd will be incorporated en-banc than we knew before? How does a person now have much more assurance than they did before that if they challenge a law or exercise their right, that they won't loose the case at every level up to and including the Supreme Court? I don't think they will lose at the Supreme Court, but I don't know that much better now than I did before.

Librarian
04-21-2009, 6:30 PM
It's just a slight setback which is partly offset by an apparently ineffective but pleasing declaration of incorporation.
Do you not find it somewhat premature to declare something "ineffective" before any suit has tried to use it?

You might as well declare babies "ineffective" because they do not yet have paid employment.

DDT
04-21-2009, 6:31 PM
RomanDad wrote:

What if the three judge panel that gets the case in the 9th is hostile to the 2nd? Might they just declare this Nordyke decision dicta and declare no incorporation. Then we would have to appeal en-banc. So how are we much better off than without this decision? How is the issue settled? How do we know much better now whether the 2nd will be incorporated en-banc than we knew before? How does a person now have much more assurance than they did before that if they challenge a law or exercise their right, that they won't loose the case at every level up to and including the Supreme Court? I don't think they will lose at the Supreme Court, but I don't know that much better now than I did before.

If the entirety of your argument is that a Rogue judge may not follow the precedence in this particular case then there is viable response to your claim. However; it is only slightly less likely that a Rogue judge would also ignore precedence and claim the First isn't incorporated either.

The issue is settled (for the 9th circuit) by having a very well written and quite specific decision written. This is not binding on other circuits. No one has claimed that it is but, for California and the rest of the 9th, it is a precedence by the 9th circuit court of appeals that is as binding as any other decision.

RomanDad
04-21-2009, 6:41 PM
RomanDad wrote:

What if the three judge panel that gets the case in the 9th is hostile to the 2nd? Might they just declare this Nordyke decision dicta and declare no incorporation.

NO. Because they went to law school. So they know what the term means!

We just got incorporation.... And now youre upset because could lose it again? Jeesh.... Christmas around your house must be a barrel of laughs. ("A new car... Gee... thanks... It'll just get dirty next week...")





Then we would have to appeal en-banc. So how are we much better off than without this decision? How is the issue settled? How do we know much better now whether the 2nd will be incorporated en-banc than we knew before?

If the Ninth Circuit Court of Appeal doesn't grant an en banc review of Nordyke within the next few days or weeks (I off the top of my head dont know the timing, Im guessing some others have the calendar in front of them and can chime in) then its SETTLED FOR THE NINTH CIRCUIT UNTIL SUCH TIME AS A HIGHER COURT (The U.S. Supreme Court) RULES THAT THE 2nd IS NOT incorporated.... And I dont see any way that happens!

Federal Judges are very cautious with regard to following precedent. They take their review of precedent MUCH MORE SERIOUSLY than they take their own political beliefs. I know that flies in the face of conventional gun forum wisdom, but it really is the truth.


How does a person now have much more assurance than they did before that if they challenge a law or exercise their right, that they won't loose the case at every level up to and including the Supreme Court? I don't think they will lose at the Supreme Court, but I don't know that much better now than I did before.
Incorporation of the second amendment has nothing to do with giving you a green light to break laws that are on the books. You do so AT YOUR OWN RISK.

Incorporation simply means that we in the legal profession can NOW SUE on YOUR BEHALF for violations of your second amendment rights.... WILL WE WIN? Who Knows? I traded my crystal ball for a Mega Off List Lower.

GuyW
04-21-2009, 6:47 PM
Federal Judges are very cautious with regard to following precedent. They take their review of precedent MUCH MORE SERIOUSLY than they take their own political beliefs. I know that flies in the face of conventional gun forum wisdom, but it really is the truth.


I'll take your word for that.

They are obviously different animals than state court judges....
.

jasilva
04-21-2009, 7:24 PM
RomanDad wrote:

What if the three judge panel that gets the case in the 9th is hostile to the 2nd? Might they just declare this Nordyke decision dicta and declare no incorporation. Then we would have to appeal en-banc. So how are we much better off than without this decision? How is the issue settled? How do we know much better now whether the 2nd will be incorporated en-banc than we knew before? How does a person now have much more assurance than they did before that if they challenge a law or exercise their right, that they won't loose the case at every level up to and including the Supreme Court? I don't think they will lose at the Supreme Court, but I don't know that much better now than I did before.

NO. Because they went to law school. So they know what the term means!

We just got incorporation.... And now youre upset because could lose it again? Jeesh.... Christmas around your house must be a barrel of laughs. ("A new car... Gee... thanks... It'll just get dirty next week...")






Not only is Mindbuilder a "glass is half empty" sort, I think actually looks at the glass and figures it was completely empty until someone pissed in it and handed it to him.

Futurecollector
04-21-2009, 7:32 PM
Victory psssh, this isnt a victory just like WW1, WW2, Revolution, Korea, Etc. Etc. werent victories! Incorparation snorparation, it can only affect the US. with 300 milion people.

MindBuilder
04-21-2009, 7:50 PM
Librarian wrote:
Do you not find it somewhat premature to declare something "ineffective" before any suit has tried to use it?

I'm only declaring that I see no good reason to believe that this case will be effective based on the analogous situation after Emerson. It's not premature to recognize this so that optimum strategy can be planned.

DDT wrote:
If the entirety of your argument is that a Rogue judge may not follow the precedence in this particular case then there is viable response to your claim. However; it is only slightly less likely that a Rogue judge would also ignore precedence and claim the First isn't incorporated either.

My argument is better summarized as stating that judges hostile to the 2nd are likely to rule similarly to how they did in the Fifth Circuit after Emerson. The difference between the likelihood of judges ignoring 1st or 2nd Amendment precedent is that they can latch on to the dicta excuse for the 2nd and there is clear Supreme Court precedent on the 1st.

RomanDad wrote:
Mindbuilder wrote:
What if the three judge panel that gets the case in the 9th is hostile to the 2nd? Might they just declare this Nordyke decision dicta and declare no incorporation.
NO. Because they went to law school. So they know what the term means!
What they learned in law school didn't seem to stop them after Emerson, so why expect it to here?

RomanDad wrote:
If the Ninth Circuit Court of Appeal doesn't grant an en banc review of Nordyke within the next few days or weeks (I off the top of my head dont know the timing, Im guessing some others have the calendar in front of them and can chime in) then its SETTLED FOR THE NINTH CIRCUIT UNTIL SUCH TIME AS A HIGHER COURT (The U.S. Supreme Court) RULES THAT THE 2nd IS NOT incorporated.... And I dont see any way that happens!

Are judges supposed to consider it an endorsement if a review of non-binding dicta is not granted? It didn't seem to stop the judges in the Fifth Circuit.

RomanDad wrote:
Federal Judges are very cautious with regard to following precedent. They take their review of precedent MUCH MORE SERIOUSLY than they take their own political beliefs. I know that flies in the face of conventional gun forum wisdom, but it really is the truth.

Again, that didn't seem to be the case in the Fifth Circuit.

RomanDad wrote:
WILL WE WIN? Who Knows?
That's exactly my point. No one knows much better now if we'll win than we knew before. If the precedent had been solid non-dicta precedent, then we still wouldn't know for sure, but the odds would be much more in our favor.

Though I've been accused of being pessimistic on this thread, actually I think I'm rather optimistic. For example I think it's very likely the Supreme Court will incorporate. Though I suppose that doesn't take a whole lot of optimism. As for the glass, I'd say it was about 70 or 80 percent full before and it's just two or three percent less full than it was.

I think it would be good if someone would express support if they think my ideas on this are not unreasonable.

DocSkinner
04-21-2009, 8:13 PM
Librarian wrote:


I'm only declaring that I see no good reason to believe that this case will be effective based on the analogous situation after Emerson. It's not premature to recognize this so that optimum strategy can be planned.

DDT wrote:


My argument is better summarized as stating that judges hostile to the 2nd are likely to rule similarly to how they did in the Fifth Circuit after Emerson. The difference between the likelihood of judges ignoring 1st or 2nd Amendment precedent is that they can latch on to the dicta excuse for the 2nd and there is clear Supreme Court precedent on the 1st.

RomanDad wrote:

What they learned in law school didn't seem to stop them after Emerson, so why expect it to here?

RomanDad wrote:


Are judges supposed to consider it an endorsement if a review of non-binding dicta is not granted? It didn't seem to stop the judges in the Fifth Circuit.

RomanDad wrote:


Again, that didn't seem to be the case in the Fifth Circuit.

RomanDad wrote:

That's exactly my point. No one knows much better now if we'll win than we knew before. If the precedent had been solid non-dicta precedent, then we still wouldn't know for sure, but the odds would be much more in our favor.

Though I've been accused of being pessimistic on this thread, actually I think I'm rather optimistic. For example I think it's very likely the Supreme Court will incorporate. Though I suppose that doesn't take a whole lot of optimism. As for the glass, I'd say it was about 70 or 80 percent full before and it's just two or three percent less full than it was.

I think it would be good if someone would express support if they think my ideas on this are not unreasonable.



Mindbuilder -
ANYTHING is ALWAYS possible. SO yes, actually, alien's may invade before the the decision is printed, remove all governments, ignore all constitutions and courts, instill themselves as rulers, and declare all human's slaves.


You got more "buts" than all the seasons of biggest loser put together, end to end...

MindBuilder
04-21-2009, 8:20 PM
DocSkinner wrote:
ANYTHING is ALWAYS possible.

I'm not just saying it's possible, I'm saying it's likely judges will do the same they did in the Fifth Circuit. What makes you think it will be any different?

hoffmang
04-21-2009, 8:21 PM
Emerson was the lone decision that the 2A meant something in a sea of other courts like the 9th that had ruled that the 2A was a dead letter.

Nordyke makes an obvious interpretation that was laid out in a Supreme Court case that isn't even a year old.

The law of the land is that individuals in California have a Federal Right To Keep And Bear Arms. How expansive a right, where, and which arms remains to be determined in future cases.

RomanDad: There were gun purchasing plaintiff's from The Madison Society in the plaintiff's list in Nordyke.

-Gene

MindBuilder
04-21-2009, 8:31 PM
hoffmang wrote:
Emerson was the lone decision that the 2A meant something in a sea of other courts like the 9th that had ruled that the 2A was a dead letter.

Nordyke makes an obvious interpretation that was laid out in a Supreme Court case that isn't even a year old.
Judges hostile to the 2nd don't care what the Constitution says, neither the 2nd Amendment or the 14th. Why would they care about arguable dicta from three judges on an issue the Supreme Court specifically noted it had no precedent on? Remember, they want to delay incorporation as long as possible until they can replace one of our guys on the Supreme Court.

yellowfin
04-21-2009, 8:45 PM
Lou Dobbs had Kilmer and Kopel on at 4PM earlier today. You'll start seeing more news of this leak out - kind of how the 3 judge panel decision in Parker before it became Heller.

-Gene What part of the show were they on? It's about to come back on at 9.

hoffmang
04-21-2009, 8:48 PM
hoffmang wrote:

Judges hostile to the 2nd don't care what the Constitution says, neither the 2nd Amendment or the 14th.

And Calguns posters hostile to sager advice don't care what anyone else says.

You didn't respond to my point earlier about LCAV. You also probably haven't thought about the fact that Courts in the 5th Circuit did follow Emerson. Since the 9th wasn't bound by the 5th in Emerson - surprise - they didn't follow it.

You want to know which court's followed Emerson?

First it was the DC Circuit Court of Appeals in Parker.

Then it was the Supreme Court of the United States of America.

Yep. All judges ignored Emerson....:rolleyes:

-Gene

hoffmang
04-21-2009, 8:51 PM
What part of the show were they on? It's about to come back on at 9.

The segment should come on at about 27 minutes after the hour.

Dave Kopel needs to shave :p

-Gene

n2k
04-21-2009, 9:08 PM
Lou Dobbs Online:

http://www.cnn.com/video/#/video/bestoftv/2009/02/26/ldt.tucker.second.amend.cnn

Librarian
04-21-2009, 9:23 PM
I'm not just saying it's possible, I'm saying it's likely judges will do the same they did in the Fifth Circuit. What makes you think it will be any different?

This is why I think you're premature. What EVIDENCE do you have that Nordyke will be treated as Emerson?

I'll answer that - none. Nor is there any evidence that Nordyke will NOT be treated as Emerson.

You seem to be fixed on 'worst possible' without any ability to support why you think so. If you come back to this in 2010, you'll be able to say either "I told you so!" or "Guess I was wrong." or even "We haven't seen any definitive cases yet." and I'll be happy to jump in the thread to admit I was wrong or remind you I was right. :)

Wait for some cases. Keep score. But don't expect unsupported fears to get a positive reception.

ivanimal
04-21-2009, 9:31 PM
Not dicta.

Not Ditka either
http://imagecache.allposters.com/images/pic/PHOTOFILE/AAEA017%7EMike-Ditka-Coach-Photofile-Posters.jpg

MindBuilder
04-21-2009, 10:21 PM
hoffmang wrote:
You didn't respond to my point earlier about LCAV.

I think it just didn't occur to them yet. In Emerson the dissent put the idea right in the opinion, but here there was no dissent to make it obvious. But it was just a matter of time before some of the old hands at Handgun Control etc. recalled the old tactic.

hoffmang wrote:
You also probably haven't thought about the fact that Courts in the 5th Circuit did follow Emerson. Since the 9th wasn't bound by the 5th in Emerson - surprise - they didn't follow it.

You want to know which court's followed Emerson?

First it was the DC Circuit Court of Appeals in Parker.

Then it was the Supreme Court of the United States of America.

I'm sure some of the courts in the Fifth Circuit did follow Emerson, but it was my understanding that some of the courts IN the fifth circuit repudiated it and declared it dicta. Of course it probably had some influence outside of the Fifth as well, even though it wasn't binding. The influence of Emerson was much more important than I expect the influence of this Nordyke decision to be because Emerson was such a huge break from so much longstanding (non-binding) precedent. Emerson reopened something that had been long considered closed by many. That was a big change. This Nordyke decision is just continuing the undecided state of a currently undecided question. That's not much change.

Librarian wrote:
What EVIDENCE do you have that Nordyke will be treated as Emerson?
The only evidence that they will be treated the same is that they seem like similar situations. Heller is some change in the situation, but not a big one as far as making this precedent solid, because Heller was only 5 to 4 and the fight is still on. The minority in Heller didn't come around just because they knew they were going to lose, and I don't expect some of the hostile judges on the 9th to come around until they think it's futile or the precedent is solid.

Your criticism of my view seems to be that we don't know and that therefore we shouldn't adopt a negative view of the decision. But just because we don't know something for sure doesn't mean we shouldn't estimate the situation. The best estimate of the situation seems to me to be that the situation hasn't changed much. We don't have to wait for any future decisions to know that we don't know how they will come out. And we don't have to wait for any future decisions to know that we don't know much more than we did before about whether the courts will incorporate. Realistic is not pessimistic. Being realistic is often better than blindly optimistic.

Librarian
04-21-2009, 10:27 PM
Librarian wrote:

Your criticism of my view seems to be that we don't know and that therefore we shouldn't adopt a negative view of the decision. But just because we don't know something for sure doesn't mean we shouldn't estimate the situation. The best estimate of the situation seems to me to be that the situation hasn't changed much. We don't have to wait for any future decisions to know that we don't know how they will come out. And we don't have to wait for any future decisions to know that we don't know much more than we did before about whether the courts will incorporate. Realistic is not pessimistic. Being realistic is often better than blindly optimistic.

Exactly. We should adopt a neutral evaluation, until there is actually something to judge.

I'm not advocating 'blindly optimistic'; I'm advocating 'wait and see'. "We don't know", as you use repeatedly above, is not sufficient to arrive at conclusions - and that, in my opinion, is being truly realistic.

DDT
04-21-2009, 10:27 PM
Judges hostile to the 2nd don't care what the Constitution says,

If this is true then why worry about any precedence? If they will ignore it anyway there is ZERO chance of a 2A win in your eyes.

Case closed.

RomanDad
04-21-2009, 10:30 PM
RomanDad: There were gun purchasing plaintiff's from The Madison Society in the plaintiff's list in Nordyke.

-Gene
They weren't EXACTLY the "Others" I was referring to either....

And Calguns posters hostile to sager advice don't care what anyone else says.

You didn't respond to my point earlier about LCAV. You also probably haven't thought about the fact that Courts in the 5th Circuit did follow Emerson. Since the 9th wasn't bound by the 5th in Emerson - surprise - they didn't follow it.

You want to know which court's followed Emerson?

First it was the DC Circuit Court of Appeals in Parker.

Then it was the Supreme Court of the United States of America.

Yep. All judges ignored Emerson....:rolleyes:

-Gene

I still cant figure out the point he's trying to make by repeatedly citing Emerson.... Perhaps because MOST of us LIKED the Emerson decision and I ASSumed being a poster on a gun board he would too.. It seems like hes UPSET that Emerson bucked the trend? And I guess maybe THATS his point? That some OTHER Court could come along and Buck the trend as well????



If we wring our hands over issues like this, I suppose African Americans should all be concerned that Brown v Board could be overturned at any minute and we'll re-institute Jim Crowe?

I guess anything short of a constitutional amendment and he wont be happy.... but we already have one.... Its called the Second Amendment.

hoffmang
04-21-2009, 10:40 PM
I'm sure some of the courts in the Fifth Circuit did follow Emerson, but it was my understanding that some of the courts IN the fifth circuit repudiated it and declared it dicta.

Did your brother's girlfriend's uncle's sister's cousin tell you that or do you have a cite for it?

-Gene

DDT
04-21-2009, 10:41 PM
I guess anything short of a constitutional amendment and he wont be happy.... but we already have one.... Its called the Second Amendment.

Amendment 2.1 "No really, we meant "SHALL NOT BE ABRIDGED" just like we said."

AntiBubba 2.1
04-21-2009, 10:41 PM
Who has ever combated a tyranical govt through the courts? You would be breaking the tyrant's law just by decenting, so whats another couple 'evil deeds'.

Now back to real America, where we are not combatting a supreme dictator, why not celibrate with the rest as a step in the direction of progress has been made for us! :dupe:

Please, don't be a test case!

MindBuilder, the worst could happen, but until it does, it hasn't. But this decision is like a large boulder being dislodged from a mountainside; inertia is on our side. Take a deep breath--and a Xanax if you have one--and enjoy this unexpected victory.

DDT
04-21-2009, 10:43 PM
Take a deep breath--and a Xanax if you have one--and enjoy this unexpected victory.

Seriously though, only if you have a prescription. We don't advocate law breaking on the boards.

yellowfin
04-21-2009, 10:44 PM
Xanax lacks flavor. I prefer a nice grenache, fiano, or Belizean rum myself.

As for the Dobbs clip, I found it to be horridly short on Mr Kilmer's appearance. Anyone else think so?

Vtec44
04-21-2009, 10:44 PM
Did your brother's girlfriend's uncle's sister's cousin tell you that or do you have a cite for it?

-Gene


Oh man, this cracks me up.... :D

DDT
04-21-2009, 10:48 PM
Xanax lacks flavor. I prefer a nice grenache, fiano, or Belizean rum myself.

Rum's nice. Probably best bang for the buck right now. This is much more fun to discuss. I've been drinking a 12 year old Guatemalan rum called Zaya, I was getting it from K&L for $30. I just looked on their site and now it's made in Trinidad, I haven't tried the new version.

For those a little more patriotic, buy American. Eagle Rare 10 is one of my favorites right now.... yumm... The 17 is good too but twice the price.

yellowfin
04-21-2009, 10:54 PM
Actually shouldn't we be toasting to this with a nice madeira?

berto
04-21-2009, 10:56 PM
If I remember right, the dissent in Emerson said that analysis or conclusions in an opinion were dicta and not binding precedent if they were not necessary to reach the final judgment.


Well, it was the dissent. Following precedent is important. Going off the reservation, even in the 9th Circus, is less than likely.

Gray Peterson
04-21-2009, 11:02 PM
MindBuilder,

I've absolutely had it up to HERE with your whining and your worrying!!

You cite the situation in the 5th Circuit after the Emerson case was decided. Maybe you should pay attention to your geography. What states is encompassed by the 5th Circuit? Texas, Lousiana, and Oklahoma.

Ask yourself this question: Do any of these states have Assault Weapons bans, may-issue CCW's, handgun rosters, FTF transfer laws, HSC's, oh, and here's the most important part, have no provision in their state constitutions for RKBA?

Why would anyone in these states file a civil rights case against their state's gun laws when they are so good in comparison to California? The answer is, they wouldn't. The only thing that they *MIGHT* have is going after the open carry bans in Oklahoma and Texas, and that's it. To date, no one has filed a civil rights case against those two states, and why should they?

So you're left with bad criminal defendants, who's lawyers bring up the 2nd amendment to defend their felonious possession cases. So "ignore" is the wrong word. Not applicable to the particular circumstances is more apt.

Btw, case that you cite with such fondness of example, with Dr. Emerson's name on it, still lost his case in the same decision, as he had a permanent order of protection against him for domestic violence.

Again, whining and worrying doesn't help at all. You need to quit acting like Private Hudson from Aliens. Do something more constructive other than saying "We're doomed, we're @#%^%".

DDT
04-21-2009, 11:07 PM
Actually shouldn't we be toasting to this with a nice madeira?

Never got into Madeira much but a good vintage port or a nice Pedro Ximenez Sherry. But it's too warm to talk of fortified wines.

DocSkinner
04-21-2009, 11:08 PM
This is why I think you're premature. What EVIDENCE do you have that Nordyke will be treated as Emerson?

I'll answer that - none. Nor is there any evidence that Nordyke will NOT be treated as Emerson.

You seem to be fixed on 'worst possible' without any ability to support why you think so. If you come back to this in 2010, you'll be able to say either "I told you so!" or "Guess I was wrong." or even "We haven't seen any definitive cases yet." and I'll be happy to jump in the thread to admit I was wrong or remind you I was right. :)

Wait for some cases. Keep score. But don't expect unsupported fears to get a positive reception.

watch the loose quote shortenings, I didn't say that - mindbuilder did! !

DocSkinner
04-21-2009, 11:14 PM
Never got into Madeira much but a good vintage port or a nice Pedro Ximenez Sherry. But it's too warm to talk of fortified wines.

Not all - never tried a port milkshake? Served in a goblet, a little shavings of a good 72% chocolate, makes a very nice summer desert

DDT
04-21-2009, 11:15 PM
Not all - never tried a port milkshake? Served in a goblet, a little shavings of a good 72% chocolate, makes a very nice summer desert

Wow! I would have never thought of that in a million years. Sounds tasty.

Librarian
04-21-2009, 11:19 PM
watch the loose quote shortenings, I didn't say that - mindbuilder did! !
Ah, apologies, Doc - you're correct, and I'll go fix it.

DocSkinner
04-21-2009, 11:20 PM
Wow! I would have never thought of that in a million years. Sounds tasty.

good vanilla bean ice cream, add a decent quality ruby (Six Grapes works really well) to get it to where it will blend, and you are set!

DocSkinner
04-21-2009, 11:22 PM
Ah, apologies, Doc - you're correct, and I'll go fix it.

Thank you! I can get a bad rep just fine on my own! ;-)

Stan_Humphries
04-21-2009, 11:39 PM
I saw this thread begin, and it is comical to see the direction it has taken. For those of you who want the nitty-gritty of the last 93 posts, here is the boxscore:

Mindbuilder: "Nordyke's incorporation is dicta and thus worthless as law."

Others:"Nordyke isn't dicta, it's binding"

Mindbuilder: "It is dicta because Nordyke ultimately lost on the issue."

Others: "That's not what dicta is. Dicta is when you don't need to decide something, but you do it anyway. Here, before they could determine if the second amendment was violated the panel needed to decide whether the second amendment was incorporated under the 14th, and if so, how it was incorporated."

Mindbuilder:"Oh, well, no one will follow it because they hate the second amendment. No one followed Emerson."

Others:"This is controlling law, the 9th circuit courts must follow it. Courts followed Emerson, even outside the 5th circuit."

Mindbuilder:"Maybe, but liberal gun haters will not follow it."

Others:"Anything is possible I guess, but does that concern justify the title you chose for this thread: 'Nordyke is worse than worthless"?"

Mindbuilder: ... silence....

Librarian
04-21-2009, 11:45 PM
Just for instance, let's take MindBuilder's suggestion entirely seriously.

If I understand it correctly - I might have it wrong in some degree, and I'll gladly accept correction - the concern is that some court will handwave-away Nordyke; in the worst case, all other courts would do so.

So, let me propose the thought experiment.

In this experiment, there exists The Perfect Client (TPC). TPC is entirely clean in criminal record, is financially stable, and has a background and current condition very much encouraging public sympathy.

TPC lives in San Francisco, and by bad luck has been the victim of serious threats, followed by serious injury, followed by continuing credible threats.

TPC, considering he has Good Cause, would apply to San Francisco for a CCW and as would be expected, would be denied.

At this time, no other cases have reached even Circuit courts; the 9th with Nordyke and the 2nd with whatever case that is maintain their circuit split on incorporation, and SCOTUS has not yet granted cert to any case addressing the issue.

TPC comes to the law firm of MindBuilder and Librarian, and engages us to sue the City of San Francisco.

We lose in San Francisco - no 2nd amendment standing, Hickman and Fresno Rifle are good law.

We appeal; CA Supreme Court affirms.

We appeal to Northern District; they affirm.

We appeal to 9th Circuit and draw a different panel - let's say we get Justice Reinprecht. 9th says 'sorry, our brethren in Nordyke were mistaken - Presser and Cruikshank are still good law'.

We appeal en banc, and the larger panel affirms TPC and not Nordyke.

Worst case all down the line, right?

We don't control what cases SCOTUS takes. We don't control judicial appointments.

For purposes of the example, we have The Perfect Client.

Here's the $64 question:
What could we do before taking the case that could change any of that? What is the benefit to strategy or preparation or argument if we take the view that Nordyke is likely to be ignored?

DDT
04-21-2009, 11:47 PM
J
Here's the $64 question:
What could we do before taking the case that could change any of that? What is the benefit to strategy or preparation or argument if we take the view that Nordyke is likely to be ignored?

So what you're saying is that Mind's position is, in fact, dicta itself?

DocSkinner
04-21-2009, 11:55 PM
seems we also need more power on this issue - so say hypothetically (cuz if it wasn't hypothetical, my wife would shoot me, and that a whole different set of laws...) someone wanted to go back for a JD for work in constitutional law, are there good programs around here? I know most programs usually have specialty areas, and know about SF Bay area law programs.

DocSkinner
04-21-2009, 11:59 PM
So what you're saying is that Mind's position is, in fact, dicta itself?

I would say defeatism - is that the same as dicta? (Ditka?). Better to do nothing so you have excuses of why everything is wrong than to try and fight and make incremental gains that, like all gains, could be lost at some point in time, or that could be built upon (like how this decision is built upon Heller), but without without any initial gains, there are never any future gains.

DDT
04-22-2009, 12:00 AM
seems we also need more power on this issue - so say hypothetically (cuz if it wasn't hypothetical, my wife would shoot me, and that a whole different set of laws...) someone wanted to go back for a JD for work in constitutional law, are there good programs around here? I know most programs usually have specialty areas, and know about SF Bay area law programs.

There are a ton of law schools around. Google the California Bar Association, they have a list of acceptable law schools.

If I were to try to become a lawyer I would seriously consider working in an office for the requisite 4 years in place of law school.

jasilva
04-22-2009, 12:34 AM
This just in,

Candid photo of Mindbuilder found.....

http://www.calguns.net/calgunforum/attachment.php?attachmentid=21564&stc=1&d=1240385632

Librarian
04-22-2009, 1:01 AM
I agree MindBuilder's evaluation of the probable effect of Nordyke is way too gloomy, but let's leave it at the content level, not the personal.

He could be right.

jasilva
04-22-2009, 1:25 AM
I agree MindBuilder's evaluation of the probable effect of Nordyke is way too gloomy, but let's leave it at the content level, not the personal.

He could be right.


10-4


I was hoping for a laugh with a point to it, not so much taking a shot at him.

Dark&Good
04-22-2009, 1:59 AM
I saw this thread begin, and it is comical to see the direction it has taken. For those of you who want the nitty-gritty of the last 93 posts, here is the boxscore:

Mindbuilder: "Nordyke's incorporation is dicta and thus worthless as law."

Others:"Nordyke isn't dicta, it's binding"

Mindbuilder: "It is dicta because Nordyke ultimately lost on the issue."

Others: "That's not what dicta is. Dicta is when you don't need to decide something, but you do it anyway. Here, before they could determine if the second amendment was violated the panel needed to decide whether the second amendment was incorporated under the 14th, and if so, how it was incorporated."

Mindbuilder:"Oh, well, no one will follow it because they hate the second amendment. No one followed Emerson."

Others:"This is controlling law, the 9th circuit courts must follow it. Courts followed Emerson, even outside the 5th circuit."

Mindbuilder:"Maybe, but liberal gun haters will not follow it."

Others:"Anything is possible I guess, but does that concern justify the title you chose for this thread: 'Nordyke is worse than worthless"?"

Mindbuilder: ... silence....

You're another prospective friend for me... :D

Sinixstar
04-22-2009, 2:14 AM
I saw this thread begin, and it is comical to see the direction it has taken. For those of you who want the nitty-gritty of the last 93 posts, here is the boxscore:


is there some way to put this kind of summary on every thread more then 3 pages long? :D

ilbob
04-22-2009, 6:44 AM
And Calguns posters hostile to sager advice don't care what anyone else says.

You didn't respond to my point earlier about LCAV. You also probably haven't thought about the fact that Courts in the 5th Circuit did follow Emerson. Since the 9th wasn't bound by the 5th in Emerson - surprise - they didn't follow it.

You want to know which court's followed Emerson?

First it was the DC Circuit Court of Appeals in Parker.

Then it was the Supreme Court of the United States of America.

Yep. All judges ignored Emerson....:rolleyes:

-Gene
The public schools really don't cover much about how the legal system works. Many people just cannot understand that only an appeals court decision is generally binding precedant, and only in the jurisdiction of that appeals court. It does not help that there are a lot of amateur lawyers on various "right wind" web sites spewing nonsense about such things.

There is also the time factor. The legal system is very slow and some people are used to video games where everything happens very fast.

Undoing all the infringements that have grown up over the years will take a long time. And, its not likely all the infringements will go away, at least not completely. I am 51. I do not expect to live to see the day I can walk into WalMart and buy a FA MP5 off the shelf in the machine gun aisle.

I do expect to live to see the day when bearing of arms is generally protected in all 50 states. I am not sure just how it will play out, but I think it will come.

ilbob
04-22-2009, 6:52 AM
Here's the $64 question:
What could we do before taking the case that could change any of that? What is the benefit to strategy or preparation or argument if we take the view that Nordyke is likely to be ignored?
Most judges just won't ignore precedent. Its far more important to them than what the law says, what the constitution says, or even what the evidence in a court case says.

That is not an easy thing for those outside the legal system to understand.

When Justice Roberts was confirmed, he was asked repeatedly about Roe versus Wade. Probably about as bad a legal decision as has ever been made. He kept saying stare decisis. People in the legal profession understood what he was saying. Most other people thought he was dodging the question.

He was basically saying that the matter has been finally decided and is not going to be re-examined.

RomanDad
04-22-2009, 6:58 AM
I do expect to live to see the day when bearing of arms is generally protected in all 50 states. I am not sure just how it will play out, but I think it will come.

Unless you are suffering from a terminal illness or are accident prone, I guarantee that WILL HAPPEN. And VERY soon.... I am confident that within the next five years, the 2nd Amendment will be incorporated to the entire country.

WHAT THE SCOPE of the rights protected by the 2nd Amendment are, will take generations for the Courts to hammer out. When your great great grandchildren are chatting on gun boards, there will still be cases pending that will have the potential to expand or restrict the scope of the 2nd Amendment, just as there are still cases pending today doing the same with regard to the first and fifth amendments.

DocSkinner
04-22-2009, 10:37 AM
There are a ton of law schools around. Google the California Bar Association, they have a list of acceptable law schools.

If I were to try to become a lawyer I would seriously consider working in an office for the requisite 4 years in place of law school.

Any offers out there from Bay area JDs? Psych (behavioral neuroscience/cognitive) PhD is half way to a JD anyway, isn't it?

DDT
04-22-2009, 10:53 AM
Any offers out there from Bay area JDs? Psych (behavioral neuroscience/cognitive) PhD is half way to a JD anyway, isn't it?

a friend of mine has his PhD in forensic psych. I suspect you'd do better to contact attorneys in your field of interest rather than hoping they'll respond to your post. Do a bit of research on exactly what it takes to get on the bar without school and then approach some of the folks in your field. Might want to take the LSAT too just so you can show them you are really interested and cognitively capable :D Plus, if you don't find a place to work you'll need the LSAT to apply to a school anyway.

GunSlinga
04-23-2009, 3:57 PM
OK, I've read all the posts and appreciate the little summary a few pages back.

I agree that the title of this thread is way too pessimistic, but I'm afraid Mindbuilder's initial premise that the Nordyke incorporation decision is dicta is, sadly, right on absolutely correct. I actually started a new thread of my own on the same topic but jasilva kindly steered me here.

To begin with, it is true that the Ninth Circuit need not have reached the incorporation issue at all given the outcome of the case, and could easily have said something along the lines of: "We need not reach the question of whether the Second Amendment is incorporated as against the states because, even if it is, the County does not violate it here."

The 9th Circuit's structuring of its decision in such a manner as to reach and decide the incorporation issue first and then get to whether the Second Amendment actually mattered, saying it did not, is contrived. If they had asked first whether the Second Amendment limited the County's activities, and found that it did not, they never would have had to get to the incorporation issue.

So the decision on the incorporation issue is dicta, plain and simple. Reordering which issue you hit first doesn't allow to change what would be dicta into a holding.

I may not understand much about the law, but I understand the distinction between dicta and a holding. That's first year stuff, and I got that far before ... oh well, that's another story.

But dicta is not useless. It gives other minds something to think about. It gets cited for persuasive authority. It can change things.

Nordyke is progress.

Oh, and by the way, Lyle Dennsiton, who was cited somewhere in the massive commentary I plodded through to get here (and who may be my ex-girlfriend's sister's husband's grandfather), put up another follow up SCOTUS blog yesterday (still no mention of the dicta dilemma, but worth a look):

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

DocSkinner
04-23-2009, 4:26 PM
a friend of mine has his PhD in forensic psych. I suspect you'd do better to contact attorneys in your field of interest rather than hoping they'll respond to your post. Do a bit of research on exactly what it takes to get on the bar without school and then approach some of the folks in your field. Might want to take the LSAT too just so you can show them you are really interested and cognitively capable :D Plus, if you don't find a place to work you'll need the LSAT to apply to a school anyway.

Most of the attorneys in my field of interest, I believe, are on here! And the psych part was a bit of jest, although my expertise is in learning and memory, which is highly applicable. The offers was partly in jest - mostly hoped it might get a few to proffer advice.


Looked over the the LSAT prep materials - look reasonably easy. Looks actually much more telling than the GREs. Find way too many science grad students, post docs, and professors that can't make a logical/rational extension to save their lives. And also almost none that remember that SCIENCE is also supposed to be an adversarial system, not a kiss you way up the backside of the dogma.

DocSkinner
04-23-2009, 4:27 PM
Most of the attorneys in my field of interest, I believe, are on here! And the psych part was a bit of jest, although my expertise is in learning and memory, which is highly applicable. The offers was partly in jest - mostly hoped it might get a few to proffer advice.


Looked over the the LSAT prep materials - look reasonably easy. Looks actually much more telling than the GREs. Find way too many science grad students, post docs, and professors that can't make a logical/rational extension to save their lives. And also almost none that remember that SCIENCE is also supposed to be an adversarial system, not a kiss you way up the backside of the dogma.

But then also wondering if I could do more good as a statesman (refuse to be called a politician!).

Librarian
04-23-2009, 4:29 PM
But then also wondering if I could do more good as a statesman (refuse to be called a politician!).
A statesman is a dead politician. Please don't aspire to expire any time soon.

Librarian
04-23-2009, 4:33 PM
So the decision on the incorporation issue is dicta, plain and simple. Reordering which issue you hit first doesn't allow to change what would be dicta into a holding.
Without claiming any legal training at all (a good idea, since I have none), I think I'll disagree with this.

It's true that a SCOTUS opinion would be the ultimate appeal to authority here, and I'm pretty sure that's going to be the end point.

But in this case it's still an appeal to authority. My decision rule in that case is compare 'sitting justice of the 9th circuit' to 'intelligent poster on Calguns'. I vote for the justice.

wildhawker
04-23-2009, 4:36 PM
So far, you've offered no substantive argument for your claims beyond the assertion that your one year of law school has prepared you to recognize dicta. Further, numerous counter-arguments have been presented which fully and completely undermine your position. While I have no issue with offering alternative perspectives, continuing to promote a failed theory (even going so far as to create a thread for such a purpose) is fruitless and borders on arrogance.

We can, however, agree on one thing: "Nordyke is progress."

OK, I've read all the posts and appreciate the little summary a few pages back.

I agree that the title of this thread is way too pessimistic, but I'm afraid Mindbuilder's initial premise that the Nordyke incorporation decision is dicta is, sadly, right on absolutely correct. I actually started a new thread of my own on the same topic but jasilva kindly steered me here.

To begin with, it is true that the Ninth Circuit need not have reached the incorporation issue at all given the outcome of the case, and could easily have said something along the lines of: "We need not reach the question of whether the Second Amendment is incorporated as against the states because, even if it is, the County does not violate it here."

The 9th Circuit's structuring of its decision in such a manner as to reach and decide the incorporation issue first and then get to whether the Second Amendment actually mattered, saying it did not, is contrived. If they had asked first whether the Second Amendment limited the County's activities, and found that it did not, they never would have had to get to the incorporation issue.

So the decision on the incorporation issue is dicta, plain and simple. Reordering which issue you hit first doesn't allow to change what would be dicta into a holding.

I may not understand much about the law, but I understand the distinction between dicta and a holding. That's first year stuff, and I got that far before ... oh well, that's another story.

But dicta is not useless. It gives other minds something to think about. It gets cited for persuasive authority. It can change things.

Nordyke is progress.

Oh, and by the way, Lyle Dennsiton, who was cited somewhere in the massive commentary I plodded through to get here (and who may be my ex-girlfriend's sister's husband's grandfather), put up another follow up SCOTUS blog yesterday (still no mention of the dicta dilemma, but worth a look):

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

DocSkinner
04-23-2009, 4:37 PM
A statesman is a dead politician. Please don't aspire to expire any time soon.

dead concept in politics, and most statesmen are dead now, but not necessarily a dead politician:

Always considered a statesman a sub class of politician:

One that is actually interested in public good, one that stands for specific things, not the lasted public poll results, and writes and speaks his own words, and, most importantly, that votes the same way as he speaks and believes! One that doesn't pander just to get re-elected but that actually does the job needing to be done, even if that makes him unpopular to some. The current special election proves how few we have of those in our legislature.



***
from thefreedictionary.com:
states·man
n.
1. A man who is a leader in national or international affairs.
2. A male political leader regarded as a disinterested promoter of the public good.
3. A man who is a respected leader in a given field: "a mature statesman of American letters" Toby Thompson.

***

DocSkinner
04-23-2009, 4:52 PM
OK, I've read all the posts and appreciate the little summary a few pages back.
...
So the decision on the incorporation issue is dicta, plain and simple. Reordering which issue you hit first doesn't allow to change what would be dicta into a holding.
...



No training either, however logically:

if 2nd is not incorporated, and Nordyke is just dicta, the result should have been a dismissed case, as Nordykes sued over 2A rights, if they aren't extended to citizen's then Nordykes had no standing to sue.

However, as the ruling is that this particular case does not infringe on their 2A rights, which the court deems they have, it therefore holds that the court believes that the Nordykes are protected by the 2A as individuals in the this state against the state, just that in this instance, the Alameda Ord does not infringe upon those 2A rights.

the order is quite important, IMO and that he court granted they had the right to sue over 2A issue is the key.

GunSlinga
04-23-2009, 5:02 PM
So far, you've offered no substantive argument for your claims beyond the assertion that your one year of law school has prepared you to recognize dicta. Further, numerous counter-arguments have been presented which fully and completely undermine your position. While I have no issue with offering alternative perspectives, continuing to promote a failed theory (even going so far as to create a thread for such a purpose) is fruitless and borders on arrogance.

My one year of law school is not a substantive argument. Had I not mentioned it, my substantive arguments would be the same... just as the result in Nordyke would have been the same had the Ninth Circuit not mentioned incorporation, which is precisely why their incorporation decision is dicta.

And THAT is my substantive argument!

ADDITIONAL (NON-SUBSTANTIVE) POINTS/QUERIES:

You describe the dicta proposition as a "failed theory." Who decided that it failed...you?

You then say that my "going so far" as to create a thread for the purpose of promoting that "failed theory" borders on arrogance, yet I clearly indicated in my post that I began that new thread without knowing that this one existed, and I gave credit to jasilva for immediately steering here. So if I didn't know this thread existed, I couldn't have known that the theory I was promoting had "failed" here, could I?

Who was your logic professor, Lewis Carroll, or Dr. Seuss?

recshooter
04-23-2009, 5:13 PM
Stan_Humphries: Thanks for the Cliffs!

DocSkinner
04-23-2009, 5:19 PM
My one year of law school is not a substantive argument. Had I not mentioned it, my substantive arguments would be the same... just as the result in Nordyke would have been the same had the Ninth Circuit not mentioned incorporation, which is precisely why their incorporation decision is dicta.

And THAT is my substantive argument!

ADDITIONAL (NON-SUBSTANTIVE) POINTS/QUERIES:

You describe the dicta proposition as a "failed theory." Who decided that it failed...you?

You then say that my "going so far" as to create a thread for the purpose of promoting that "failed theory" borders on arrogance, yet I clearly indicated in my post that I began that new thread without knowing that this one existed, and I gave credit to jasilva for immediately steering here. So if I didn't know this thread existed, I couldn't have known that the theory I was promoting had "failed" here, could I?

Who was your logic professor, Lewis Carroll, or Dr. Seuss?


and if the 2A is NOT incorporated, Nordyke would have failed on those grounds (that it doesn't exist for them)- Not that their 2A wasn't infringed by the ord (that it exist, and that they know about it and have based their decision of it being there).

same logic you just used, you should have just applied it to this case!

GunSlinga
04-23-2009, 5:43 PM
and if the 2A is NOT incorporated, Nordyke would have failed on those grounds (that it doesn't exist for them)- Not that their 2A wasn't infringed by the ord (that it exist, and that they know about it and have based their decision of it being there).

same logic you just used, you should have just applied it to this case!

But they only reached the incorporation issue first because they wanted to write about it. They could have chosen to address the question of whether the ord ran afoul of 2A first, in which case they would not have needed to reach the incorporation issue because they found that the ord did not violate 2A.

In order for a proposition to be not dicta (i.e., a holding) it needs to be essential to the decision overall. Saying they need to address incorporation first does not make it essential when in the end it doesn't matter for purposes of deciding the case whether it was incorporated or not.

Oh, man, check out that naked emperor!

aileron
04-23-2009, 6:00 PM
We lost our 2nd Amendment rights over a period of 100 years. Do not expect the Gun Fairy to show up at your bedside with a MP5K on a silver platter one morning.

There is a Gun Fairy???


What do I have to do to get a Gun Fairy to grant my wish???? Put a spent bullet casing under my pillow and make a wish before going to bed??????????????????

CSDGuy
04-23-2009, 6:05 PM
But they only reached the incorporation issue first because they wanted to write about it. They could have chosen to address the question of whether the ord ran afoul of 2A first, in which case they would not have needed to reach the incorporation issue because they found that the ord did not violate 2A.

In order for a proposition to be not dicta (i.e., a holding) it needs to be essential to the decision overall. Saying they need to address incorporation first does not make it essential when in the end it doesn't matter for purposes of deciding the case whether it was incorporated or not.

Oh, man, check out that naked emperor!
The problem is that in order to determine whether or not the ordinance is in violation of the 2A, they have to determine if it applies or not. The court held that the 2A is applied against the states and that the Ordinance does not violate it.

Had the 2A not been applied to the states, the claim that the Ordinance violates the 2A would have died right there.

DocSkinner
04-23-2009, 6:25 PM
But they only reached the incorporation issue first because they wanted to write about it. They could have chosen to address the question of whether the ord ran afoul of 2A first, in which case they would not have needed to reach the incorporation issue because they found that the ord did not violate 2A.

In order for a proposition to be not dicta (i.e., a holding) it needs to be essential to the decision overall. Saying they need to address incorporation first does not make it essential when in the end it doesn't matter for purposes of deciding the case whether it was incorporated or not.

Oh, man, check out that naked emperor!

If it is not incorporated - THE COURT HAS NO STANDING TO RULE ON IT. The case is thrown out as Nordykes also have no standing, not decided. The court can't find on something that does not exist.

This is why In my understanding, it is only Heller in eth teh HEller case, the other two had no standing. If 2A not incorporated. Nordykes have no standing, and teh case is dismissed. that is why teh incorporation has to come first.

Courts don't sit around and make deliberations and decisions on cases in which they have no standing to make a ruling:

flow chart 1

2A case? yes
can we (this court) make a rule on a 2A case?
well, if we decide it is incorporated, then we can rule on it.
or
we can decide it is not incorporated, and therefore we can not make any ruling other than the suite doesn't exist


Now the other way -

Flow chart 2

does this ruling violate the 2nd rights of the Nordykes?
what 2A rights?
do they have 2A rights? hum - back to scenario 1

If they don't incorporate there is no case, and no suit and no ruling.

You can't make a ruling on something that you say doesn't apply. As you couldn't make replies to this forum until it existed and you were entered into it.

So yes - either the king has no clothes - no incorporation, Nordykes have no suit and are left naked and therefore no ruling on the quality or basis of the suit.

Or

the king has clothes -incorporation, so therefore Nordykes have a suit, and therefore a ruling can be made on the quality of the suit.

But you gotta decide if there is a suit first. (like you gotta decide if the king is naked or wearing a suit first...)

so, funny you brought up naked emperors...

GunSlinga
04-23-2009, 6:30 PM
The problem is that in order to determine whether or not the ordinance is in violation of the 2A, they have to determine if it applies or not. The court held that the 2A is applied against the states and that the Ordinance does not violate it.

Had the 2A not been applied to the states, the claim that the Ordinance violates the 2A would have died right there.

And had it first been held that the Ordinance was consistent with the 2A, the question of whether the 2A applies to the States (and County) would have died right there. I see what you're saying, but your argument relies on the proposition that the Court must look to the incorporation question first and only then examine the Ordinance in light of 2A standards.

It's tempting, but I'm skeptical. I think we all want to believe it was not dicta because we want Nordyke to be something shiny that the Gun Fairy left under our pillows.

Well, it is still a gem of a case. It is great. It just would have worked a whole lot more smoothly if they'd taken the next step and imposed some kind of limitation, ANY limitation, on the Ordinance under 2A standards. Then there could be no annoying argument that it is dicta, and the County would seek cert (saving the Nordykes the cost) and SCOTUS would probably take it, and things would be a lot better instead of a little better.

GunSlinga
04-23-2009, 6:36 PM
If it is not incorporated - THE COURT HAS NO STANDING TO RULE ON IT.

Courts don't have standing (or lack thereof), parties do (or don't). I think you mean jurisdiction. But OK.



flow chart 1

2A case? yes
can we (this court) make a rule on a 2A case?
well, if we decide it is incorporated, then we can rule on it.
or
we can decide it is not incorporated, and therefore we can not make any ruling other than the suite doesn't exist

Now the other way -

Flow chart 2

does this ruling violate the 2nd rights of the Nordykes?
what 2A rights?
do they have 2A rights? hum - back to scenario 1

If they don't incorporate there is no case, and no suit and no ruling.

You can't make a ruling on something that you say doesn't apply. As you couldn't make replies to this forum until it existed and you were entered into it.

So yes - either the king has no clothes - no incorporation, Nordykes have no suit and are left naked and therefore no ruling on the quality or basis of the suit.

Or

the king has clothes -incorporation, so therefore Nordykes have a suit, and therefore a ruling can be made on the quality of the suit.

But you gotta decide if there is a suit first. (like you gotta decide if the king is naked or wearing a suit first...)

so, funny you brought up naked emperors...

DocSkinner, that was brilliant! I'm not kidding. You are making me feel better about Nordyke.

Thank you.

And the use of the emperor/clothes bit in your explanation was pure genius.

Very cool.

CSDGuy
04-23-2009, 6:47 PM
And had it first been held that the Ordinance was consistent with the 2A, the question of whether the 2A applies to the States (and County) would have died right there. I see what you're saying, but your argument relies on the proposition that the Court must look to the incorporation question first and only then examine the Ordinance in light of 2A standards.

It's tempting, but I'm skeptical. I think we all want to believe it was not dicta because we want Nordyke to be something shiny that the Gun Fairy left under our pillows.

Well, it is still a gem of a case. It is great. It just would have worked a whole lot more smoothly if they'd taken the next step and imposed some kind of limitation, ANY limitation, on the Ordinance under 2A standards. Then there could be no annoying argument that it is dicta, and the County would seek cert (saving the Nordykes the cost) and SCOTUS would probably take it, and things would be a lot better instead of a little better.
They DID find that the Ordinance wasn't/isn't in violation of the 2A. In order to find that, they had to decide the incorporation issue first. If incorporation didn't happen, they wouldn't have had to decide whether or not the Ordinance violates the 2A, or even if it is consistent with the 2A.
If it is not incorporated - THE COURT HAS NO STANDING TO RULE ON IT. The case is thrown out as Nordykes also have no standing, not decided. The court can't find on something that does not exist.

This is why In my understanding, it is only Heller in eth teh HEller case, the other two had no standing. If 2A not incorporated. Nordykes have no standing, and teh case is dismissed. that is why teh incorporation has to come first.

Courts don't sit around and make deliberations and decisions on cases in which they have no standing to make a ruling:

flow chart 1

2A case? yes
can we (this court) make a rule on a 2A case?
well, if we decide it is incorporated, then we can rule on it.
or
we can decide it is not incorporated, and therefore we can not make any ruling other than the suite doesn't exist


Now the other way -

Flow chart 2

does this ruling violate the 2nd rights of the Nordykes?
what 2A rights?
do they have 2A rights? hum - back to scenario 1

If they don't incorporate there is no case, and no suit and no ruling.

You can't make a ruling on something that you say doesn't apply. As you couldn't make replies to this forum until it existed and you were entered into it.

So yes - either the king has no clothes - no incorporation, Nordykes have no suit and are left naked and therefore no ruling on the quality or basis of the suit.

Or

the king has clothes -incorporation, so therefore Nordykes have a suit, and therefore a ruling can be made on the quality of the suit.

But you gotta decide if there is a suit first. (like you gotta decide if the king is naked or wearing a suit first...)

so, funny you brought up naked emperors...
Or... what he said!!!!

GuyW
04-23-2009, 6:55 PM
dead concept in politics, and most statesmen are dead now, but not necessarily a dead politician:

Always considered a statesman a sub class of politician:

One that is actually interested in public good, one that stands for specific things, not the lasted public poll results, and writes and speaks his own words, and, most importantly, that votes the same way as he speaks and believes! One that doesn't pander just to get re-elected but that actually does the job needing to be done, even if that makes him unpopular to some. The current special election proves how few we have of those in our legislature.



***
from thefreedictionary.com:
states·man
n.
1. A man who is a leader in national or international affairs.
2. A male political leader regarded as a disinterested promoter of the public good.
3. A man who is a respected leader in a given field: "a mature statesman of American letters" Toby Thompson.

***

There's quite a few potential statesmen (and stateswomen) around - they just can't/don't get elected to office...
.

GuyW
04-23-2009, 7:02 PM
But they only reached the incorporation issue first because they wanted to write about it. They could have chosen to address the question of whether the ord ran afoul of 2A first, in which case they would not have needed to reach the incorporation issue because they found that the ord did not violate 2A.

In order for a proposition to be not dicta (i.e., a holding) it needs to be essential to the decision overall. Saying they need to address incorporation first does not make it essential when in the end it doesn't matter for purposes of deciding the case whether it was incorporated or not.

Oh, man, check out that naked emperor!

Pre-Heller/Nordyke, the Court would have dismissed Nordyke's pleading with (something like), "the 2nd Amendment is a collective right and Nordyke has no standing" (which is why it was NOT pleaded in the first place).

Post-Heller, the Court _should_ consider a 2nd Amendment pleading, which they did.
.

DocSkinner
04-23-2009, 7:52 PM
There's quite a few potential statesmen (and stateswomen) around - they just can't/don't get elected to office...
.

exactly what I am afraid of!

Everyone wants a BFF that will lie to make them feel good. No one wants that true friend that says "yes, those pants DO make you butt look fat - try these!"

hoffmang
04-23-2009, 8:33 PM
OMFG!

1. No attorney from either side or the middle has made the claim that Nordyke is dicta.

2. One can not analyze an ordinance under the Second Amendment if it does not apply to the states in the first place. Incorporation is a core holding - otherwise the panel cites Hickman and moves on.

Have you learned Stare Decisis yet?

-Gene

HowardW56
04-23-2009, 9:07 PM
Read the final paragraph from the decision, it seems rather clear to me...


For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the County on the Nordykes’
First Amendment and equal protection claims and, although
we conclude that the Second Amendment is indeed incorporated
against the states, we AFFIRM the district court’s
refusal to grant the Nordykes leave to amend their complaint
to add a Second Amendment claim in this case.

AFFIRMED.

Stan_Humphries
04-23-2009, 9:40 PM
But they only reached the incorporation issue first because they wanted to write about it. They could have chosen to address the question of whether the ord ran afoul of 2A first, in which case they would not have needed to reach the incorporation issue because they found that the ord did not violate 2A.



Hey bro,

First off: it's really cool that you are critically thinking about these things. You are amongst the highly educated in this society, and the fact that you first attempt to assess a situation based on knowledge and reason (rather than emotion or proclivity) speaks very well of you. Honestly, very respectable.

Second off: your conclusion that the order in which the court stated its opinion is arbitrary and gratuitous is simply wrong (at least within the confines of the U.S. legal system). Law isn't a simple logical syllogism where A and B can be interchanged in their order, yet nevertheless compel C.

For example: A court cannot decide that Best Buy's actions of checking a receipt and bag did or didn't violate the 4th amendment protections of a U.S. Citizen without first deciding whether the 4th amendment applied to Best Buy.

Why? Because a court is inherently without power to decide such an issue if the amendment doesn't apply. It only has the power to reach the "violates/doesn't violate" issue if it first determines that the law applies to the situation.

So, in the case of Nordyke, the analysis of incorporation comes first in the decision because it has to. It is a component of jurisdiction for the decision on the second amendment to go further in analysis.

Perhaps I read your posts incorrectly, but it seems that you think dicta is determined by the overall success of the particular claim. It is not. Dicta is the extra (and therefore unnecessary) component in a decision that is not compelled by law. For another example, it would have been dicta if the court decided Alameda's regulation did not offend the second amendment AFTER finding that the amendment didn't apply.

I am afraid Doc wins on this one.

Anyway, great job on stirring the intellectual pot - it gets people thinking, and broadens the understanding of those willing to entertain both sides of an argument.

BigDogatPlay
04-23-2009, 9:46 PM
2. One can not analyze an ordinance under the Second Amendment if it does not apply to the states in the first place. Incorporation is a core holding - otherwise the panel cites Hickman and moves on.


And that is exactly the point, and perfectly stated.

Hickman was the rule of law in the circuit. It held that Amendment Two was a collective right of the state, and was the basis for decision after decision against us over more than a decade. Heller, from a higher court established otherwise, and caused the Ninth to accept a reexamination of Nordyke. Because of that, Hickman was renedered moot and we have Amendment Two incorporated in the Ninth Circuit as an individual right in line with the ruling of the higher court.

Call it dicta, call it whatever you like. But the fact remains that Nordyke is now the rule of law. In concert with Heller it opens door after door after window for us.

And that... is victory.

AntiBubba 2.1
04-23-2009, 11:38 PM
There is a Gun Fairy???

Yes, but he tends to limp-wrist the shot...

DocSkinner
04-23-2009, 11:53 PM
OMFG!

1. No attorney from either side or the middle has made the claim that Nordyke is dicta.

2. One can not analyze an ordinance under the Second Amendment if it does not apply to the states in the first place. Incorporation is a core holding - otherwise the panel cites Hickman and moves on.

Have you learned Stare Decisis yet?

-Gene

Enlighten on Stare Decisis. You have a willing audience. The law has become extremely complex, and we need forums like this to help educate everyone (even the lurkers!), as to how "law"works!!!

If some of you legal eagles would start a forum and make precis statements on the points and bearings in cases (obviously not ones in contention, per se, but in decisions such as this and Heller, etc), you could do a great service to CG and to all gun owners.


These nuances are what has most of us lost and not trusting law.

Education is always the answer. More knowledge is more power. The more people with knowledge, the more power available.

DocSkinner
04-24-2009, 12:05 AM
Courts don't have standing (or lack thereof), parties do (or don't). I think you mean jurisdiction. But OK.



DocSkinner, that was brilliant! I'm not kidding. You are making me feel better about Nordyke.

Thank you.

And the use of the emperor/clothes bit in your explanation was pure genius.

Very cool.

emperor's clothes was all you - just took what you gave me! And someone can correct me, but jurisdiction is one form of standing?

I think now looking back it is something that has shaped me - gunny types understand adversarial systems. you can have a great and even emotional debate, and then go laugh and have a beer with the person. Who you are and how valid you feel your opinions are dependent on beating someone else down. You are secure in yours, and if someone present a rational reason, you can change you r opinion, but you don't do it or popularity or popular support, as doing that is because you need acceptance, not truth.

Its is like how our society is going against competition of any form. Competition is good. it drives things forward. As Socrates (?) said - you cannot learn something unless you admit you do not know already know it. No one anymore ever wants to admit they do not know. When I taught at UMass, students really appreciated that I would admit not knowing an answer and getting back to them. Other faculty felt I was pandering, and weakening what little authority faculty could COMMAND as a whole. Disagreed with the first, agreed righteously with the second. Why I now think law might be a far better career choice.

yellowfin
04-24-2009, 12:07 AM
Enlighten on Stare Decisis.Stare decisis, "the decision stands" means that courts are bound to follow relevent precedent for the sake of consistency of ruling, starting from the top down. It is very good, indispensible in fact, in that it makes the law predictable so people can act and plan accordingly. When you get good precedent from a case, as we're saying Nordyke is, you can use it and know that judges are bound to decide future cases by it. However, stare decisis can be very bad in the fact that it entrenches bad rulings. For example, Major League Baseball was deemed not to be a business per 1922's ruling of Federal Baseball Club v. National League. That carried over 48 laters to Flood v. Kuhn in 1970 which upheld the notion that baseball was still not a business and thus exempt from anti trust laws, thus preventing Kurt Flood from successfully suing for free agency-- an utterly preposterous ruling in 1970 to say the least, but consistent in that the Federal Baseball Club case was only prior Supreme Court case dealing with professional baseball and that issue. Hickman v. Block was an absolute disgrace as well and a complete mockery of justice, but it stood because of prior equally bad decisions of Cruikshank and Presser making themselves available as precedent without anything good (as we see it) to mitigate them. However, the logic of Hickman was that it was dependent on those two bad cases and Heller voided them, so it went down in flames as the 9th applied Heller in the Nordyke decision. Nordyke itself wasn't a touchdown, but it gives us a 1st and goal on the 5 yard line.

Next question?

DocSkinner
04-24-2009, 12:31 AM
Yes, but he tends to limp-wrist the shot...

If he brings me a nice new AR - I don't care how many times he "limp wrists!"

DocSkinner
04-24-2009, 12:42 AM
Stare decisis, "the decision stands" means that courts are bound to follow relevent precedent for the sake of consistency of ruling, starting from the top down. It is very good, indispensible in fact, in that it makes the law predictable so people can act and plan accordingly. When you get good precedent from a case, as we're saying Nordyke is, you can use it and know that judges are bound to decide future cases by it. However, stare decisis can be very bad in the fact that it entrenches bad rulings. For example, Major League Baseball was deemed not to be a business per 1922's ruling of Federal Baseball Club v. National League. That carried over 48 laters to Flood v. Kuhn in 1970 which upheld the notion that baseball was still not a business and thus exempt from anti trust laws, thus preventing Kurt Flood from successfully suing for free agency-- an utterly preposterous ruling in 1970 to say the least, but consistent in that the Federal Baseball Club case was only prior Supreme Court case dealing with professional baseball and that issue. Hickman v. Block was an absolute disgrace as well and a complete mockery of justice, but it stood because of prior equally bad decisions of Cruikshank and Presser making themselves available as precedent without anything good (as we see it) to mitigate them. However, the logic of Hickman was that it was dependent on those two bad cases and Heller voided them, so it went down in flames as the 9th applied Heller in the Nordyke decision. Nordyke itself wasn't a touchdown, but it gives us a 1st and goal on the 5 yard line.

Next question?

Thanks! I knew that principle, but not the name! Being a person that goes between computer science, cognitive science, psychology, biology, neuroscience, and behavioral neuroscience, I have learned how weird and tricky language can be, as even in these closely related fields terms have VERY different meanings, and each has there own vocabulary using the same or very similar words, with very different meanings - and I think that is where most non-JD types get lost in law mumble jumble as terms have there own meaning there (standing V jurisdiction).

Also why I said I think there is a very willing audience here willing to learn the 2A law vocabulary, if anyone wanted to start a BLOG or thread. Educating the masses is never a wasted effort, unless you are trying to obfuscate and confound. ;-)

BigDogatPlay
04-24-2009, 7:30 AM
unless you are trying to obfuscate and confound. ;-)

Naaah... politicians do more than plenty of that. :D

GunSlinga
04-24-2009, 12:15 PM
When I taught at UMass, students really appreciated that I would admit not knowing an answer and getting back to them. Other faculty felt I was pandering, and weakening what little authority faculty could COMMAND as a whole. Disagreed with the first, agreed righteously with the second. Why I now think law might be a far better career choice.
You seem like a nice guy. Don't go to the Dark Side!

Q: What do you call a lawyer with an 80 IQ?

A: "Your Honor."

fairfaxjim
04-25-2009, 10:30 AM
I do doubt that all of the "heavens opening up and it raining free & legal guns" (nearly such exagerated immediate gains) ala Heller & Nordyke talk will come to pass. However, to have the 9th Circuit include in one of their opinions:

1. Recognition of Heller as investing individual 2A rights.
2. That the individual 2A rights via Heller abrogated Hickman v. Block
3. That the 2A individual right is incorporated against the states and municipalities through the 14th amendment.

is a great day for gun rights.

The 9th also specifically stated that #2 and #3 were necessary to grant the Nordyke's standing to bring a 2A claim against the appeals court.

I seriously doubt that this will be ignored.

MindBuilder
04-25-2009, 12:24 PM
In the thread "Is Nordyke's holding really dicta" pguevara cited a Ninth Circuit en-banc decision that seems to make clear that Nordyke will not be considered dicta.

In United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) the court held in part:
Judge Tashima's concurrence raises a fundamental question concerning the development of our circuit law: To what extent is a later panel bound by statements of law contained in opinions of an earlier panel? Judge Tashima would hold that a later panel is free to ignore statements in an earlier opinion--even statements supported by reasoned analysis--if the later panel concludes that the earlier ruling is not necessary to the result reached. Judge Tashima is not the first member of our court to take this position. See, e.g., United States v. Enas, 204 F.3d 915, 920 (9th Cir. 2000) (dismissing the legal analysis of an earlier panel as "not necessary to the court's decision"), reh'g en banc granted, 219 F.3d 1138 (9th Cir. 2000). For the reasons explained below, we reject this approach. We hold, instead, that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.

Unfortunately it is also pointed out in that thread that state courts don't consider federal court opinions binding. Nevertheless I now think that the likelihood that this case will be respected as solid precedent is high enough to consider this Nordyke decision a strong victory.

I'd like to point out in defense of my original concerns, that in addition to Judge Parker in Emerson in the Fifth Circuit, this quote shows that some judges including Tashima and others in the Ninth circuit, had in the past been dismissing this sort of holding as dicta, just as I had been concerned about.

RomanDad
04-25-2009, 2:02 PM
In the thread "Is Nordyke's holding really dicta" pguevara cited a Ninth Circuit en-banc decision that seems to make clear that Nordyke will not be considered dicta.

In United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) the court held in part:


Unfortunately it is also pointed out in that thread that state courts don't consider federal court opinions binding. Nevertheless I now think that the likelihood that this case will be respected as solid precedent is high enough to consider this Nordyke decision a strong victory.

I'd like to point out in defense of my original concerns, that in addition to Judge Parker in Emerson in the Fifth Circuit, this quote shows that some judges including Tashima and others in the Ninth circuit, had in the past been dismissing this sort of holding as dicta, just as I had been concerned about.
...
;)

DocSkinner
04-26-2009, 1:15 AM
I do doubt that all of the "heavens opening up and it raining free & legal guns" (nearly such exagerated immediate gains) ala Heller & Nordyke talk will come to pass. However, to have the 9th Circuit include in one of their opinions:

1. Recognition of Heller as investing individual 2A rights.
2. That the individual 2A rights via Heller abrogated Hickman v. Block
3. That the 2A individual right is incorporated against the states and municipalities through the 14th amendment.

is a great day for gun rights.

The 9th also specifically stated that #2 and #3 were necessary to grant the Nordyke's standing to bring a 2A claim against the appeals court.

I seriously doubt that this will be ignored.

M2C:
its a good day - The OP is right that some asinine judge could say dicta - but this is 9th! so there will other more 2A friendly courts that quickly also decide on inclusion, and it will build, to where one asinine judge just looks asinine if he says "dicta". what little of law I know - the one thing is that no judge wants to look asinine that isn't going for that label in the first place, as none of them want to look "out of the loop", Calling this dicta and then having everyone else say "incorporation" just makes that person look like an *** - TO THEIR PEERS!

Someone posted a joke about judges - the ultimate joke is that the judges are the politicians of the lawyer world. And only those judges would think a double negative is a positive! There are still some that realize they should stand above popular opinion and make logical decisions. as we get more bipartisan, those numbers dwindle.

all IMO... Obviously!