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Aegis
04-23-2009, 7:46 AM
Have the governor or attorney general issued a response on incorporation? Do they plan to do anything about it?

Last time I checked, our elected officials took an oath to protect the constitution. I don't see the effort by many of the politicians in Sacramento to protect or even follow the constitution.

HunterJim
04-23-2009, 8:00 AM
I asked the Bureau of Firearms to comment, in particular the impact on assault weapons ban, approved handgun roster and shall issue CCW. They usually answer my requests, although at their own speed.

jim

p7m8jg
04-23-2009, 8:01 AM
Expect a politician to respond quickly to anything???????

Don't we wish...

bwiese
04-23-2009, 8:33 AM
At the lower BoF level they will likely give a nonanswer, or one dictated by the Bradys ("California gun law is still seen as fitting well with the 2nd Amendment" and turning some words of Heller inside out).

But, please, I'd like to not "corner" the AG on the issue, and have eventual results instead of statements.

Publius
04-23-2009, 8:55 AM
Expect a politician to respond quickly to anything???????

Don't we wish...

Oh, they'll issue statements pretty darn quickly in response to any public event -- IF they see political advantage to it.

Aegis
04-23-2009, 9:31 AM
I don't expect the governor to do anything. He is not running for re-election and it does not benefit him to do so.

The AG however should do something when existing laws in his state are in direct violation of the constitution.

1911su16b870
04-23-2009, 9:42 AM
Just an optimistic desire, but I think our AG may throw out those pesky laws based on Heller incorporated by Nordyke! :eek: :D

tactic101
04-23-2009, 9:45 AM
I don't expect the governor to do anything. He is not running for re-election and it does not benefit him to do so.

The AG however should do something when existing laws in his state are in direct violation of the constitution.

So the AG is pro 2A sub rosa? Others here have alluded to this; is this documented somehow publicly?

ilbob
04-23-2009, 10:09 AM
The AG however should do something when existing laws in his state are in direct violation of the constitution.

He would have to throw out a lot more than a few hundred gun related laws.

In any case, he has no power to do so.

Whiskey_Sauer
04-23-2009, 10:18 AM
So the AG is pro 2A sub rosa? Others here have alluded to this; is this documented somehow publicly?

No, but if you think about it, Jerry has basically acquiesced on OLLs.

DDT
04-23-2009, 10:19 AM
Making any statement in support of Nordyke would not be beneficial to the AG in his quest to re-become Governor of this great state.

yellowfin
04-23-2009, 10:29 AM
Making any statement in support of Nordyke would not be beneficial to the AG in his quest to re-become Governor of this great state. If he's passed over for the nomination I wonder if he'd do us some favors as revenge.

DDT
04-23-2009, 10:30 AM
If he's passed over for the nomination I wonder if he'd do us some favors as revenge.

I'd don't know. I suspect that if there is no opportunity to move up the ladder any further he may settle in and do his job with less fear that legally proper actions would come back to haunt him within the party.

glockman19
04-23-2009, 10:38 AM
Jerry Brown is a savy politician. I like him. Liked his father.

He is the BEST CHOICE for Governor. Doesn't matter what issue you support, firearms, sexuality, legalization of Marijuana, enviornment. He has the most experience. He is the most centrist. He has the most respect and knowledge of our state's and national laws.

Our Governor has no skin in the game. He'll likely retire in Ojai and be appointed to some presidential board.

GunSlinga
04-23-2009, 2:44 PM
Not only does the AG website not comment on Nordyke, it does not comment on Heller either, and the "latest addition" on the Bureau of Firearms page was back in June 2008, just around (probably before) the date Heller was decide. See:

http://ag.ca.gov/firearms

Obviously they're in silence mode on all this and probably will not say anything until some PRK state court deciding a firearms possession case says Nordyke is dicta and doesn't bind them (which sorry to say is likely to happen).

Whiskey_Sauer
04-23-2009, 2:53 PM
Obviously they're in silence mode on all this and probably will not say anything until some PRK state court deciding a firearms possession case says Nordyke is dicta and doesn't bind them (which sorry to say is likely to happen).

It's not so obvious to me. What is the basis for your assertion?

jasilva
04-23-2009, 2:59 PM
It's not so obvious to me. What is the basis for your assertion?

Unbridled pessimism.

GunSlinga
04-23-2009, 3:01 PM
Whiskey_Sauer:

The basis for my assertion that the AG is in silence mode is that his office has nothing to gain by commenting on Heller or Nordyke until the CA courts add their two cents, which will happen as soon as the Nordyke incorporation proposition is put in front of them.

My basis for the assertion that Nordyke "holding" on incorporation really seems to be "dicta" (see below) is that the Ninth Circuit need not have reached that 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."

I did about one year of law school and quit, but one of the few useful things I learned was that "dicta" is when a court decides something it didn't need to decide given the ultimate ruling. Dicta is not considered authority, so all a CA court has to do is say Nordyke's incorporation proposition is dicta and then they need not consider the 2A at all.

Ding126
04-23-2009, 3:16 PM
Since JB was Mayor in Oakland. I think it has opened his eyes to reality of life. I think he plays his cards well and I like him more today than I did when he was the Gov. I don't need a public statement with his support..but a nod & a wink to our Calgun people would be more than enough for me.

As for the current Gov. .....Is he worth commenting on?

I'm confident that someone from here is in contact with him behind the scene.

jasilva
04-23-2009, 3:19 PM
Whiskey_Sauer:

The basis for my assertion that the AG is in silence mode is that his office has nothing to gain by commenting on Heller or Nordyke until the CA courts add their two cents, which will happen as soon as the Nordyke incorporation proposition is put in front of them.

My basis for the assertion that Nordyke "holding" on incorporation really seems to be "dicta" (see below) is that the Ninth Circuit need not have reached that 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."

I did about one year of law school and quit, but one of the few useful things I learned was that "dicta" is when a court decides something it didn't need to decide given the ultimate ruling. Dicta is not considered authority, so all a CA court has to do is say Nordyke's incorporation proposition is dicta and then they need not consider the 2A at all.



Wrong conclusion based on flawed premise. The court did have to rule on 2a incorporation because the Nordykes requested relief from the Alameda county law based on it's conflict with the 2a. So in order to look at that question they first had to answer the question of whether or not the 2a is binding upon the states(if it binds the states is sure as hell binds local jurisdictions), they even stated such in their opinion before they addressed incorporation. So a state court would be foolish in the extreme to behave in a way that showed they had no respect for the decision of the 9th. All it would get them was another overturned decision and at some point standing for plaintiffs to sue any government agency that followed their flawed and overturned rulings. Courts generally don't like to piss off higher courts and judges really don't like having their decisions overturned, especially if it is done in a manner than documents their incompetence or contempt for higher authorities. It's not a way to get yourself appointed to a higher seat.

Whiskey_Sauer
04-23-2009, 3:20 PM
The basis for my assertion that the AG is in silence mode is that his office has nothing to gain by commenting on Heller or Nordyke until the CA courts add their two cents, which will happen as soon as the Nordyke incorporation proposition is put in front of them.

Okay, that's fair. But, bear in mind that hundreds of appellate opinions are issued every year that have a myriad of policy implications for the AG - and very rare is the occasion in which the AG would actually comment on a particular case. And I'm not surprised at all by the lack of comment in this instance, particularly where the incorporation holding was secondary to the primary holding conclusion, i.e., that the Second Amendment, though incorporated, does not invalidate the ordinance at issue prohibiting weapons on county property.

My basis for the assertion that Nordyke "holding" on incorporation really seems to be "dicta" (see below) is that the Ninth Circuit need not have reached that 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."

I did about one year of law school and quit, but one of the few useful things I learned was that "dicta" is when a court decides something it didn't need to decide given the ultimate ruling. Dicta is not considered authority, so all a CA court has to do is say Nordyke's incorporation proposition is dicta and then they need not consider the 2A at all.

I actually think you may be right on the dicta issue, in a technical sense, but that does not mean that "some PRK state court deciding a firearms possession case says Nordyke is dicta and doesn't bind them" in your words. For that to happen, the state court or court of appeals would have to basically pretend that both Heller and Nordyke don't exist in order to find no Second Amendment individual right in California. That's a stretch at this point, and besides, courts don't operate that way.

Edit to Add: I reviewed Nordyke, and do not believe it is dicta. The court held, "We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments." (Op. at 4496). It is therefore not a mere gratuitous expression or observation of the law, but a deliberate holding of the court. It is therefore not dicta.

bwiese
04-23-2009, 3:27 PM
Incorporation of RKBA in California is most assuredly NOT dicta and is "held law".

The nature of the case required a finding of RKBA applicability first to evaluate whether restrictions on Nordkyes' shows violated an RKBA. For that latter question to be asked/answered, the premise of RKBA applicability must have first been established (and not just commented upon).

DocSkinner
04-23-2009, 3:31 PM
Expect a politician to respond quickly to anything???????

Don't we wish...

everything has to go through a focus group, and then a poll, and then the CA DNC will write their 'opinion' in very pcese and give it to the politician to recite.

that always takes a while. Think if any of our current politicians tried to use their own brains for anything other than self promotion thoughts, they would bow a fuse...

jasilva
04-23-2009, 3:34 PM
Here's a section of the reasoning the court applied to the arguments and why they ruled on incorporation and why this is not dicta but held law.

[1] We begin with the Nordykes’ attempt to revive their
Second Amendment claim. The district court rested its denial
of leave to amend the complaint on our precedent that an individual
lacks standing to bring a Second Amendment challenge
because the right it protects is a collective, not an individual
one. See Hickman, 81 F.3d at 102-03; see also Nordyke III,
319 F.3d at 1191. The Nordykes now argue that the Supreme
Court’s decision in Heller abrogates our case law and compels
the district court to grant their motion for leave to amend 1 and 2 show why the court was willing to reconsider the Nordyke's 2a claim
their complaint.
[2] To reach this argument on the merits, we must first
decide whether Heller abrogated Hickman. It did. Hickman
rested on our conclusion that the Second Amendment protects
only a collective right; Heller squarely overruled such conclusion.
See Heller, 128 S. Ct. at 2799 (“There seems to us no
NORDYKE v. KING 4475
doubt, on the basis of both text and history, that the Second
Amendment conferred an individual right to keep and bear
arms.”). Thus the basis for Hickman’s holding has evaporated,
and the opinion is clearly irreconcilable with Heller. In such
circumstances, we consider our prior decision abrogated by
higher authority.4 See Miller v. Gammie, 335 F.3d 889, 899-
900 (9th Cir. 2003) (en banc).
[3] The second obstacle facing the Nordykes is incorporation.
That is, we must decide whether the Second Amendment
applies to the states through the Fourteenth, a question that 3-6 is the logic path used to decide incorporation
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.
A
There are three doctrinal ways the Second Amendment
might apply to the states: (1) direct application, (2) incorporation
by the Privileges or Immunities Clause of the Fourteenth
Amendment, or (3) incorporation by the Due Process Clause
of the same Amendment.
1
[4] Supreme Court precedent forecloses the first option.
The Bill of Rights directly applies only to the federal government.
Barron v. Mayor of Balt., 32 U.S. (7 Pet.) 243, 247-51
(1833). “Although the Supreme Court has incorporated many
clauses of the Bill of Rights into the Due Process Clause of
the Fourteenth Amendment, the Supreme Court has never
explicitly overruled Barron.” Nordyke III, 319 F.3d at 1193
n.3 (Gould, J., specially concurring). Therefore, the Second
Amendment does not directly apply to the states. See United
4Indeed, the County does not dispute this point in its supplemental briefing.
4476 NORDYKE v. KING
States v. Cruikshank, 92 U.S. 542, 553 (1875) (citing Barron
as a basis for the conclusion that “[t]he second amendment
. . . means no more than that [the right to keep and bear arms]
shall not be infringed by Congress”); see also Presser v. Illinois,
116 U.S. 252, 265 (1886) (concluding that the Second
Amendment “is a limitation only upon the power of Congress
and the National government, and not upon that of the State”).
2
[5] We are similarly barred from considering incorporation
through the Privileges or Immunities Clause. The Clause provides
that “[n]o State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States.” U.S. Const. amend. XIV, 1. Under the
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), this
language protects only those rights that derive from United
States citizenship, but not those general civil rights independent
of the Republic’s existence, see id. at 74-75.5 The former
5We are aware that judges and academics have criticized Slaughter-
House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz
v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because
I believe that the demise of the Privileges or Immunities Clause has contributed
in no small part to the current disarray of [the Supreme Court’s]
Fourteenth Amendment jurisprudence, I would be open to reevaluating its
meaning in an appropriate case.”); id. at 522 n.1 (collecting academic
sources); Michael Anthony Lawrence, Second Amendment Incorporation
Through the Fourteenth Amendment Privileges or Immunities and Due
Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed
Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or
Immunities Clause applies against the states all “personal privileges” of
individual citizens, whether enumerated in the Bill of Rights or not, but
not the rights of the states or the general public). Nevertheless, Slaughter-
House remains good law. We note, however, that the substantive due process
doctrine, which we discuss infra pp. 4481-83, appears to arrive at a
result similar to that urged by the dissenters from the Supreme Court’s
opinion in Slaughter-House. Compare Washington v. Glucksberg, 521
U.S. 702, 719-721 (1997) (“[T]he Due Process Clause [of the Fourteenth
Amendment] specially protects those fundamental rights and liberties
NORDYKE v. KING 4477
include only rights the Federal Constitution grants or the
national government enables, but not those preexisting rights
the Bill of Rights merely protects from federal invasion. Id.
at 76-80. The Second Amendment protects a right that predates
the Constitution; therefore, the Constitution did not
grant it. See, e.g., Heller, 128 S. Ct. at 2797 (“[I]t has always
been widely understood that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right.”).
It necessarily follows that the Privileges or Immunities Clause
did not protect the right to keep and bear arms because it was
not a right of citizens of the United States. See Cruikshank,
92 U.S. at 553; cf. Presser, 116 U.S. at 266-67 (holding that
the “right to associate with others as a military company” is
not a privilege of citizens of the United States).
3
[6] The final avenue for incorporation is that by which
other provisions of the Bill of Rights have come to bind the
states: selective incorporation through the Due Process Clause
of the Fourteenth Amendment. See, e.g., Duncan v. Louisiana,
391 U.S. 145 (1968) (right to criminal jury); Malloy v.
Hogan, 378 U.S. 1 (1964) (privilege against compelled selfincrimination);
Gideon v. Wainwright, 372 U.S. 335 (1963)
(right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion
of evidence obtained by unreasonable search and seizure);
Cantwell v. Connecticut, 310 U.S. 296 (1940)
(Establishment Clause).
a
The initial hurdle to selective incorporation is our decision
in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d
which are, objectively, deeply rooted in this Nation’s history and tradition
. . . .” (internal quotation marks and citation omitted)), with Slaughter-
House, 83 U.S. at 122 (Bradley, J., dissenting) (“In my judgment, it was
the intention of the people of this country in adopting that amendment to
provide National security against violation by the States of the fundamental
rights of the citizen.”).
4478 NORDYKE v. KING
723 (9th Cir. 1992). There, we concluded that the Second
Amendment applies only to the federal government. Id. at
729-31. The Nordykes argue that, although we precluded
direct application of the Second Amendment and incorporation
through the Privileges or Immunities Clause, we did not
address selective incorporation through the Due Process
Clause. We agree.
Fresno Rifle does not specify which Clause of the Fourteenth
Amendment—the Privileges or Immunities Clause or
the Due Process Clause—we rejected as the instrument of
incorporation. Certainly, plaintiffs “argue[d] that the Fourteenth
Amendment incorporates the Second such that it limits
the actions of states in addition to those of Congress,” and we
rejected such argument. Id. at 729 “Until such time as Cruikshank
and Presser are overturned,” we stated, “the Second
Amendment limits only federal action, and we affirm the district
court’s decision ‘that the Second Amendment stays the
hand of the National Government only.’ ” Id. at 731 (citation
omitted). The County argues that this reliance on Cruikshank
and Presser precludes any incorporation.
But close examination of our opinion in Fresno Rifle
defeats such argument. First, we noted that Cruikshank and
Presser held that “the Second Amendment constrains only the
actions of Congress, not the states,” a proposition that merely
follows from Barron. Id. at 729. Moving from direct application
of the Bill of Rights to incorporation, we then concluded
that Cruikshank and Presser foreclosed the argument of the
plaintiffs that the Fourteenth Amendment incorporated the
Second. Id.6 As discussed above, Cruikshank and Presser
involved direct application and incorporation through the
Privileges or Immunities Clause, but not incorporation
through the Due Process Clause.

DocSkinner
04-23-2009, 3:35 PM
No, but if you think about it, Jerry has basically acquiesced on OLLs.

I think that was a tactical eroor on his part (pun intended):

"So there are these parts, and I can appease a few loud voices by allowing them, cool. I mean how many people would actually BUILD their own AR in this prepackage, premade & shrink wrapped day and age? "

"Oops - wow - that many, huh?" And "they can buy whole rifles? well, no one would pay THAT much for one... "

wildhawker
04-23-2009, 3:39 PM
He is the BEST CHOICE for Governor. Doesn't matter what issue you support, firearms, sexuality, legalization of Marijuana, enviornment. He has the most experience. He is the most centrist. He has the most respect and knowledge of our state's and national laws.

Glad you approve of his "centrist" views. Of what relevance are they to 2A? None.

We may end up supporting Brown on 2A, but don't feed me that BS.