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GunSlinga
04-23-2009, 3:19 PM
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 that binds other courts. A "holding" is the opposite: when what a court decided is essential to the outcome of the case, so it binds lower courts.

In Nordyke, the County (bad guys) ultimately won because the 9th Circ said that the regs did not violate 2A.

So the Nordyke "holding" on incorporation really seems to be dicta, since the Court 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." Instead they went ff a nice historical discourse that said in essence: "Yes, 2A is incorporated, but, guess what, it doesn't matter in this case."

And so all a CA state court deciding a gun case has to do is say Nordyke's incorporation proposition is dicta and then they need not consider the 2A at all. In fact, I predict that this is going to happen.

OK, now I know this bad news will perturb some people, but don't shoot the messenger!

jasilva
04-23-2009, 3:21 PM
This has already been discussed by more experienced minds.


http://www.calguns.net/calgunforum/showthread.php?t=175828

GunSlinga
04-23-2009, 3:24 PM
Thanks for the link. I'm new to Calguns.net and missed that. (It was really Nordyke coming out that got me on the net looking at all this stuff.)

Whiskey_Sauer
04-23-2009, 3:29 PM
No. As I stated in another thread, the Ninth Circuit held, after lengthy analysis: "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, 3:31 PM
From the decision:[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 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.

Thus, the finding of incorporation was a necessary initial step to the outcome.

Shotgun Man
04-23-2009, 4:11 PM
[...]
And so all a CA state court deciding a gun case has to do is say Nordyke's incorporation proposition is dicta and then they need not consider the 2A at all. In fact, I predict that this is going to happen.

OK, now I know this bad news will perturb some people, but don't shoot the messenger!

A California state court can flat-out refuse to adopt the incorporation analysis set forth in Nordyke. A California state court is not bound by a 9th Circuit opinion, rather it is only persuasive authority. A state court would have to follow binding SCOTUS precedent however.

See, e.g., Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, ["In the absence of a controlling United States Supreme Court decision on a federal question, this court is free to adopt one of the divergent lines of authority. “ ‘[T]he decisions of the lower federal courts, although entitled to great weight, are not binding on state courts. “[T]he decisions of the lower federal courts on federal questions are merely persuasive.... Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law.” [Citations.]’ ( [9 Witkin, Cal.Procedure (3d ed. 1985) Appeal,] at § 780, p. 751.) Where the federal circuits are in conflict, the authority of the Ninth Circuit (which decides appeals from the federal courts in California) is entitled to no greater weight than decisions from other circuits. [Citations.] ‘[W]here there is more than one appellate court decision, and such appellate decisions are in conflict ... the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.’"]

Librarian
04-23-2009, 4:51 PM
A California state court can flat-out refuse to adopt the incorporation analysis set forth in Nordyke. A California state court is not bound by a 9th Circuit opinion, rather it is only persuasive authority. A state court would have to follow binding SCOTUS precedent however.

See, e.g., Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, ["In the absence of a controlling United States Supreme Court decision on a federal question, this court is free to adopt one of the divergent lines of authority. “ ‘[T]he decisions of the lower federal courts, although entitled to great weight, are not binding on state courts. “[T]he decisions of the lower federal courts on federal questions are merely persuasive.... Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law.” [Citations.]’ ( [9 Witkin, Cal.Procedure (3d ed. 1985) Appeal,] at § 780, p. 751.) Where the federal circuits are in conflict, the authority of the Ninth Circuit (which decides appeals from the federal courts in California) is entitled to no greater weight than decisions from other circuits. [Citations.] ‘[W]here there is more than one appellate court decision, and such appellate decisions are in conflict ... the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.’"]

Klein's 1990 decision (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/222/869.html) - or at least that part of the argument - really held up? Wow.

IGOTDIRT4U
04-23-2009, 4:54 PM
Klein's 1990 decision (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/222/869.html) - or at least that part of the argument - really held up? Wow.

Need a log-in to see that link.

Whiskey_Sauer
04-23-2009, 4:59 PM
See, e.g., Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, ["In the absence of a controlling United States Supreme Court decision on a federal question, this court is free to adopt one of the divergent lines of authority. “ ‘[T]he decisions of the lower federal courts, although entitled to great weight, are not binding on state courts. “[T]he decisions of the lower federal courts on federal questions are merely persuasive.... Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law.” [Citations.]’ ( [9 Witkin, Cal.Procedure (3d ed. 1985) Appeal,] at § 780, p. 751.) Where the federal circuits are in conflict, the authority of the Ninth Circuit (which decides appeals from the federal courts in California) is entitled to no greater weight than decisions from other circuits. [Citations.] ‘[W]here there is more than one appellate court decision, and such appellate decisions are in conflict ... the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.’"]

Nordyke is not a lower federal court decision. Moreover, there is no conflict among the circuits.

At this point, it would take an extraordinary stretch for a state court to find that Heller does not apply to California, to the extent that you believe that some jurist has some agenda in this regard. Courts just don't work that way.

CSDGuy
04-23-2009, 5:08 PM
A California state court can flat-out refuse to adopt the incorporation analysis set forth in Nordyke. A California state court is not bound by a 9th Circuit opinion, rather it is only persuasive authority. A state court would have to follow binding SCOTUS precedent however.

See, e.g., Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, ["In the absence of a controlling United States Supreme Court decision on a federal question, this court is free to adopt one of the divergent lines of authority. “ ‘[T]he decisions of the lower federal courts, although entitled to great weight, are not binding on state courts. “[T]he decisions of the lower federal courts on federal questions are merely persuasive.... Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law.” [Citations.]’ ( [9 Witkin, Cal.Procedure (3d ed. 1985) Appeal,] at § 780, p. 751.) Where the federal circuits are in conflict, the authority of the Ninth Circuit (which decides appeals from the federal courts in California) is entitled to no greater weight than decisions from other circuits. [Citations.] ‘[W]here there is more than one appellate court decision, and such appellate decisions are in conflict ... the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.’"]
Wouldn't this also mean that in the absence of a controlling Supreme Court decision, that even had the ordinance been invalidated, that the County of Alameda could have simply said "well, it's not binding because it's only a Federal Circuit Court of Appeal.. we'll ignore the decision."

Fishy to me, that arguement sounds.

Whiskey_Sauer
04-23-2009, 5:23 PM
Klein's 1990 decision (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/222/869.html) - or at least that part of the argument - really held up? Wow.

It's pretty well established that federal circuit authority is persuasive, but not mandatory authority for a state court to follow. And if there is a split or conflict among the circuits, the state court is free to reach its own conclusion.

And amusingly enough, a federal court, if confronted by a split among the circuits, is sometimes obligated to try to determine how the state's supreme court would decide the issue.

Matt C
04-23-2009, 5:33 PM
Wouldn't this also mean that in the absence of a controlling Supreme Court decision, that even had the ordinance been invalidated, that the County of Alameda could have simply said "well, it's not binding because it's only a Federal Circuit Court of Appeal.. we'll ignore the decision."

Fishy to me, that arguement sounds.

No, it means that another court in another case could have a divergent opinion, the parties in the case are certainly bound by the ruling.

GunSlinga
04-23-2009, 5:35 PM
Wouldn't this also mean that in the absence of a controlling Supreme Court decision, that even had the ordinance been invalidated, that the County of Alameda could have simply said "well, it's not binding because it's only a Federal Circuit Court of Appeal.. we'll ignore the decision."

In the actual case, the federal courts including the Ninth Circuit have authority over the parties. So the County couldn't have ignored the decision if they'd lost. I think the point that was made earlier in this thread is that state courts in other cases could disregard the Ninth Circuit's decision in Nordyke as not being binding precedent.

I'm not sure that's really true, though it may be. I confess ignorance.

But of course the state courts can easily disregard the Nordyke decision on incorporation if they say it's dicta. I won't even go there here, though... "wildhawker" has already lambasted me for starting this new thread (which I did only because I didn't know the other one existed) so for me even to write the "d" word again would be Heretical, Impudent and Pugnacious (HIP).

Dicta, dicta, dicta....

Dicta!

Whiskey_Sauer
04-23-2009, 5:40 PM
But of course the state courts can easily disregard the Nordyke decision on incorporation if they say it's dicta.

"Easily?" Hardly. There would have to be a massive reason or rationale, relying on a lot of other authority, in order to depart from the established holding of the circuit court opinion that directly and squarely addressed the very matter, and intended it for guidance to lower courts.

Your beating this theoretical dicta issue to death really ignores the greater truth, which is that a state court of appeal is not going to just "ignore" Heller/Nordyke away. Again, courts don't work that way.

Whiskey_Sauer
04-23-2009, 5:43 PM
Wouldn't this also mean that in the absence of a controlling Supreme Court decision, that even had the ordinance been invalidated, that the County of Alameda could have simply said "well, it's not binding because it's only a Federal Circuit Court of Appeal.. we'll ignore the decision."

No. The federal court already established subject matter jurisdiction over the County, via the Nordyke's § 1983 claim. And Nordyke is the direct "law of the case," which means it could not be ignored.

CSDGuy
04-23-2009, 5:51 PM
Thanks! Glad to know that what I actually thought was the case, is.

wildhawker
04-23-2009, 6:45 PM
I didn't lambaste you for starting a new thread on the subject. I did call you out on the fact that you seem intent on creating an antagonistic situation here on Calguns and (potentially) beyond.

If you are confident in your position, fantastic- I'm sure Don Kilmer's looking for a new paralegal with obviously superior analytical skills to many here for assistance preparing the many upcoming post-Nordyke, er, dicta challenges.

In the actual case, the federal courts including the Ninth Circuit have authority over the parties. So the County couldn't have ignored the decision if they'd lost. I think the point that was made earlier in this thread is that state courts in other cases could disregard the Ninth Circuit's decision in Nordyke as not being binding precedent.

I'm not sure that's really true, though it may be. I confess ignorance.

But of course the state courts can easily disregard the Nordyke decision on incorporation if they say it's dicta. I won't even go there here, though... "wildhawker" has already lambasted me for starting this new thread (which I did only because I didn't know the other one existed) so for me even to write the "d" word again would be Heretical, Impudent and Pugnacious (HIP).

Dicta, dicta, dicta....

Dicta!

DDT
04-23-2009, 7:22 PM
In the actual case, the federal courts including the Ninth Circuit have authority over the parties. So the County couldn't have ignored the decision if they'd lost. I think the point that was made earlier in this thread is that state courts in other cases could disregard the Ninth Circuit's decision in Nordyke as not being binding precedent.

I'm not sure that's really true, though it may be. I confess ignorance.

But of course the state courts can easily disregard the Nordyke decision on incorporation if they say it's dicta. I won't even go there here, though... "wildhawker" has already lambasted me for starting this new thread (which I did only because I didn't know the other one existed) so for me even to write the "d" word again would be Heretical, Impudent and Pugnacious (HIP).

Dicta, dicta, dicta....

Dicta!

Why all the hate? You're brand new here and you seem quite intent on injecting dicta into every Nordyke thread on the board.

Why don't you at least hang out for awhile so you will get a little better understanding of who knows their stuff around here.

Unless of course you have been around for awhile and have simply chosen to create a new account for some undisclosed reason.

Shotgun Man
04-23-2009, 7:56 PM
Nordyke is not a lower federal court decision. Moreover, there is no conflict among the circuits.

At this point, it would take an extraordinary stretch for a state court to find that Heller does not apply to California, to the extent that you believe that some jurist has some agenda in this regard. Courts just don't work that way.

I'm just telling it like it is. I re-read my post. It is quite objective with no suggestion that I believe some jurist has an agenda. I have a pretty good idea of how the courts work.

hoffmang
04-23-2009, 8:36 PM
If it was dicta, then why didn't Hickman and Silviera control?

-Gene

Roadrunner
04-23-2009, 9:58 PM
Just wondering, since the gun laws like 12031 were written under the assumption that the second amendment is a collective right, now that Heller and Nordyke have established that it is an individual right, can someone just file a blanket injunction against all of them and force the review of every gun law on the books?

Librarian
04-23-2009, 10:04 PM
Just wondering, since the gun laws like 12031 were written under the assumption that the second amendment is a collective right, now that Heller and Nordyke have established that it is an individual right, can someone just file a blanket injunction against all of them and force the review of every gun law on the books?

Don't think so.

Typically a law has to be challenged by someone who has been 'injured' by its application to him/her.

Nothing in the dangerous weapons title of Penal Code says anything like 'ha, ha, you turkeys cannot challenge this on the basis of the 2nd Amendment' - it has been the courts saying that.

So there's no obvious plaintiff who could challenge the whole thing.

Roadrunner
04-23-2009, 10:14 PM
Don't think so.

Typically a law has to be challenged by someone who has been 'injured' by its application to him/her.

Nothing in the dangerous weapons title of Penal Code says anything like 'ha, ha, you turkeys cannot challenge this on the basis of the 2nd Amendment' - it has been the courts saying that.

So there's no obvious plaintiff who could challenge the whole thing.

So, what if a person has been arrested, convicted, and had his firearm taken from him under 12031? Would that be considered and injury and able to be challenged?

AngelDecoys
04-23-2009, 10:23 PM
If it was dicta, then why didn't Hickman and Silviera control?

-Gene

Just curious Gene. Why throw Hickman and Fresno out, but not Silviera?

From Silviera
California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs’ claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision.

Would have been nice if they tossed them all out at the same time.

pguevara
04-23-2009, 10:31 PM
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 that binds other courts.

You should have stuck around for second year Constitutional Law ;)

The Ninth Circuit's view on dicta is as follows: "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." United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc)

Incorporation was certainly an issue germane to eventual resolution of Nordyke, and the panel resolved the issue with a reasoned consideration of modern incorporation jurisprudence. Thus, Nordyke's incorporation holding is the law of the Ninth Circuit and is not dicta.

hoffmang
04-23-2009, 10:35 PM
Just curious Gene. Why throw Hickman and Fresno out, but not Silviera?


Silviera was dicta. Hickman and Fresno controlled. Since Hickman is gone, Silveira is gone too.

A Ninth Circuit Judge actually called Silviera dicta in his dissent from the denial of en banc on it.

-Gene

Roadrunner
04-23-2009, 10:39 PM
So, what if a person has been arrested, convicted, and had his firearm taken from him under 12031? Would that be considered and injury and able to be challenged?

So what about this Gene?

hoffmang
04-23-2009, 10:44 PM
So, what if a person has been arrested, convicted, and had his firearm taken from him under 12031? Would that be considered and injury and able to be challenged?

If the case is final it is relatively hard to re-open it. If the case is still underway then the 2A can be raised as a potential defense depending on the circumstances.

-Gene

Stan_Humphries
04-23-2009, 10:48 PM
So, what if a person has been arrested, convicted, and had his firearm taken from him under 12031? Would that be considered and injury and able to be challenged?

Put simply, yes. The person would have standing to challenge.

Question #2: Does the Second Amendment apply to Cal. Penal Code 12031?

Answer #2: Yes, via the due process clause of the 14th amendment.

Question #3: Does Cal. Penal Code 12031 offend the second amendment?

Answer #3: ... undecided... though keeping firearms away from convicted criminals might be a compelling state interest that (if implemented properly) would be a permissible trespass of the second amendment.

edit: It appears I may have misunderstood the phrasing of your question. If the hypo was an arrest and conviction under 12031, with the subsequent dispossession of firearm, you would have standing sue to get the gun back. As for overturning the initial conviction, I am not sure.

Roadrunner
04-23-2009, 10:54 PM
If the case is final it is relatively hard to re-open it. If the case is still underway then the 2A can be raised as a potential defense depending on the circumstances.

-Gene

Why would you reopen it? Would you have to reopen it to sue to have the law repealed? I really have no experience with law so this is an inquiry to educate myself.

It would seem that if these laws were enacted under false assumptions then they should be easily challenged and repealed.

Understanding that a person has to have some form of "injury", exactly what do you have to do to successfully get a law made null and void?

Edit: thanks stan, i was in the middle of writing to gene, i'm not ignoring you.

Librarian
04-23-2009, 11:12 PM
Why would you reopen it? Would you have to reopen it to sue to have the law repealed? I really have no experience with law so this is an inquiry to educate myself.

It would seem that if these laws were enacted under false assumptions then they should be easily challenged and repealed.

Understanding that a person has to have some form of "injury", exactly what do you have to do to successfully get a law made null and void?

Edit: thanks stan, i was in the middle of writing to gene, i'm not ignoring you.

A case resolved is just that - dead-ended. Generally, new evidence can re-open something, but not a change in the law.

Nordyke got to argue 2nd Amendment because it was still running through appeals and they got permission to file an amended something - complaint?.

To get a NEW law null and void, it has to be challenged in court on some basis the court will accept.

Read the 'findings' sections on some of the bills. Many are flat out lies, but that's not sufficient to challenge them. That 'injured party' is a critical component for most of these.

And you can be sure that every section, subsection, sentence and phrase will be argued individually; wholesale striking of big chunks of law is very unusual.

BigDogatPlay
04-23-2009, 11:18 PM
Was the arrest / conviction for violation of 12031 as a prohibited person in possession? If so, I think you go nowhere because there is a long recognized compelling state interest.

Roadrunner
04-23-2009, 11:31 PM
Was the arrest / conviction for violation of 12031 as a prohibited person in possession? If so, I think you go nowhere because there is a long recognized compelling state interest.

My question is purely hypothetical. But considering the history of 12031, it seems like it would be the most logical law to be challenged and repealed. But I'm only speaking from a layman's point of view.

cousinkix1953
04-24-2009, 12:21 AM
They didn't have to even go beyond whether gun shows should be permitted on public property. The antis aren't happy, because they did exactly that by incorporating both the 2nd and 14th Amendments into their decision...

RomanDad
04-24-2009, 7:17 AM
So, what if a person has been arrested, convicted, and had his firearm taken from him under 12031? Would that be considered and injury and able to be challenged?

There are other (BETTER) ways to challenge 12031 than getting arrested for it....

Roadrunner
04-24-2009, 10:35 AM
There are other (BETTER) ways to challenge 12031 than getting arrested for it....

I'm glad you said that. I would hate to think that getting arrested would be the only solution to the problem. What perplexes me is that I think that I'm being led to believe that you need what equates to some form of legal perfect storm before a challenge can be brought against what boils down to contrived unconstitutional laws. So if I wanted to be party to a suit that challenges these laws, what do I need to do this and be successful? And how much will it cost?

GuyW
04-24-2009, 10:42 AM
So there's no obvious plaintiff who could challenge the whole thing.

CA Constitution still says the US Constitution is the law of the land. Now, with Nordyke, it seems any CA resident has standing to require CA to conform to the 2nd Amendment...
.

GuyW
04-24-2009, 10:45 AM
A case resolved is just that - dead-ended. Generally, new evidence can re-open something, but not a change in the law.

Heller and Nordyke means that other crap was never law...
.

Librarian
04-24-2009, 12:25 PM
Heller and Nordyke means that other crap was never law...
.
An interesting philosophical point, which will need a lawsuit to establish.

Analogously, having eaten the cake already, having it is no longer possible. A new cake is required.

Fortunately, new cakes are available.

GunSlinga
04-24-2009, 5:21 PM
Why all the hate? You're brand new here and you seem quite intent on injecting dicta into every Nordyke thread on the board.

Why don't you at least hang out for awhile so you will get a little better understanding of who knows their stuff around here.

Unless of course you have been around for awhile and have simply chosen to create a new account for some undisclosed reason.

I wouldn't call it hate. I posted what I thought was a decent response (http://www.calguns.net/calgunforum/showpost.php?p=2367265&postcount=126) to DocSkinner who, rather than telling me that "better minds" had already decided against my argument and I should simply accept that, laid out a logical response to the argument I was making.

I guess what you are telling me is that I should sierratangofoxtrotunion (http://www.calguns.net/calgunforum/member.php?u=6487) (which, of course, means "shut the f*** up").

OK, I can live with that. I'll resist the temptation to speak out and will try to lurk for a while. Maybe I will learn something. Or maybe I will keep some useful stuff to myself. I sure as hell will not make the mistake of starting a new thread.

Two last comments:

1) I am not someone who has "been around for awhile and have simply chosen to create a new account for some undisclosed reason." As I posted elsewhere, it was basically the Nordyke decision (and, of course the Heller decision last June and the other cases that are now going up) that got me on the net looking for words of wisdom, particularly as to local concerns.

2) I've seen a lot more "hate" in other posts in the short time I've been here than I could ever muster.

jasilva
04-24-2009, 8:01 PM
Gunslinga, it's not that people don't want to hear from you. It's just that after a while your arguments became somewhat shrill and trollish in appearance and tone. Part of the issue is your new to this community and a couple of the people your arguing with have spent large amounts of their own time and money fighting the 2a fight. You may even have some worthwhile information to share but until your bona fides are proven over time your just a shrill voice. Don't take it personally just relax and hang out for a while. Obviously I'm not one of the proven quantities here either and some of my posts are ignored or dismissed.


Joe

DDT
04-24-2009, 8:32 PM
I guess what you are telling me is that I should sierratangofoxtrotunion (http://www.calguns.net/calgunforum/member.php?u=6487) (which, of course, means "shut the f*** up").

Actually, I am doing anything but that. It is advantageous, to be taken seriously, to understand the pecking order into which you've stepped. Many of the posters here are actual attorneys, some even specialists in Constitutional law. You have a unique opportunity here to interact with them, don't screw it up by regurgitating the same thing over and over. You have made your case a number of times and it hasn't changed, no need to re-post the exact same thing.


1) I am not someone who has "been around for awhile and have simply chosen to create a new account for some undisclosed reason." As I posted elsewhere, it was basically the Nordyke decision (and, of course the Heller decision last June and the other cases that are now going up) that got me on the net looking for words of wisdom, particularly as to local concerns.


Excellent, I hope you stick it out and become a contributing member to the 2A fight. There are lots of ways to help out from donating money to donating time and positive ideas for ways to move forward.


2) I've seen a lot more "hate" in other posts in the short time I've been here than I could ever muster.

It is interesting that, with a short time here, I have seen the same posts and see no hate in them. FWIW I intended the term hate in a non-personal way; as in pissing on someones parade. Such as "Why do you insist on hating on Nordyke." I didn't mean that you were specifically mean to any person directly. I doubt you know anyone here well enough to actually "hate" them yet.

Stryprod
04-24-2009, 9:37 PM
I have been a long time lurker to calguns and only recently decided to participate because quite frankly, I had a daughter and now my weeknights are shot and I spend MUCH more time at home, in front of the PC vs. Driving around being a mid-late 20 something.

That being said...

I think there is a difference here between "salty old timers" (long time contributors) on this forum vs. "young bucks" (newbies/ n00bs) and I feel like the "old timers" consitentaly say things such as "what do you know, you aint been 'round here long and other members, well we got expirence and you just a pup, you ought to know better."

Yet not ONCE have I seen anyone say "so and so is a 2nd amendment lawyer so they know what they are talking about and take heed!" Instead, it's "you should no better and know that people are MUCH more knowledgeable than you so think before you post!"

Well c'mon, he DOESN'T know better because he is new so perhaps lets be patient and explain who is who and why we value their opinion.

On the other side of the coin...

The young bucks, jaded after years of assuming the worse (this is the culture we have in CA right now) see through pessimistic colored glasses becasuse yes, we don't remember what it was like to have x,y,z right or perhaps we just didnt know or have time to pay attention.

So perhaps, just perhaps, Nordyke seems a bit well.. cool but not really set in stone to the young buck.

But young bucks, you/ we need to understand that these salty old gun right advocates have worked harder for even SMALLER tid-bits of legal clarification so this IS a BIG deal and we need to respect their hard work and enthusiasm while also proposing thoughts and questions as just that, thoughts and questions... not doom and gloom.

I just hope all don't turn on each other can keep it civil and expand knowledge through debate, it has always been our strongest point.

Now back to my tall can!

GunSlinga
04-25-2009, 8:08 AM
jasilva, DDT and Strypod:

Your points are all well taken, and thanks. I'm up bright and early on this beautiful day, full of optimism, and as I've said before, Nordyke is really good news, and I've never tried to detract form that. I certainly didn't start the thread that called it "worse than worthless."

DDT, I have donated money to 2A causes and will do so again when I can afford it.

And although I don't believe in "pecking orders" I can certainly respect the "decorum of the forum."

And so I'll try not be "shrill and trollish" any more.

Now I'm getting away from this computer and getting some fresh air and maybe even a tall can.

Publius
04-25-2009, 1:45 PM
Moreover, there is no conflict among the circuits.

Nordyke v. King, 9th Circuit: 2nd Amendment is incorporated.

Maloney v. Cuomo, 2nd Circuit: 2nd Amendment is not incorporated.

Looks like conflict among the circuits to me!

RomanDad
04-25-2009, 1:51 PM
Here is the bottom line.

I have yet to hear a single attorney argue that the Incorporation found in Nordyke is Dicta.

I have heard multiple attorneys, who are planning on actively joining this fight, argue it isn't.

Unless you will be arguing against us in the upcoming Court cases, your opinion means absolutely squat, because arguing here is just a waste of time. And if you are planning on arguing the point against us in a court, your legal opinion is no more valid than ours, and I guess the guys with the robes will decide who is correct.

And there simply is nothing else to discuss with regard to this issue.

However- I wouldn't bet against us on this one.

GunSlinga
04-26-2009, 10:39 AM
Nordyke v. King, 9th Circuit: 2nd Amendment is incorporated.

Maloney v. Cuomo, 2nd Circuit: 2nd Amendment is not incorporated.

Looks like conflict among the circuits to me!

From SCOTUS BLOG 4/22 (http://www.scotusblog.com/wp/analysis-guns-chukas-and-the-states/):

Although the Second Circuit concluded that only the Supreme Court could reopen the “incorporation” issue because Presser is a controlling precedent, the Ninth Circuit found it was not bound by that 1886 ruling. Presser, the Ninth Circuit said, only rejected one theory, or at most two theories, of “incorporating” part of the Bill of Rights to apply to the states, leaving open the third theory — one-by-one, or selective, incorporation of specific rights toward the states through the Fourteenth Amendment’s Due Process Clause.

Earlier on the blog page a bit about the other PHD (http://www.calguns.net/calgunforum/showpost.php?p=2375896&postcount=140):

Somewhat surprisingly, the case now most likely to reach the Court first on that issue will not be about guns, but about “chuka sticks.” Still, those are treated, at least by New York state, as a personal weapon, and the legislature there has banned even their possession in the home. Formally named a “nunchaku,” a chuka is two pieces of rigid material joined by a thong or rope. The legislature found they could be used to injure — or even kill — someone by striking them or choking them with one of the sticks while holding the other. But martial artists also use them in training exercises.

A Port Washington, N.Y., lawyer, James M. Maloney, was arrested for having a chuka stick in his home nearly nine years ago. His case has become a significant test of whether he had a Second Amendment right to have that weapon for personal use.

Publius
04-27-2009, 8:22 AM
From SCOTUS BLOG 4/22 (http://www.scotusblog.com/wp/analysis-guns-chukas-and-the-states/):



Earlier on the blog page a bit about the other PHD (http://www.calguns.net/calgunforum/showpost.php?p=2375896&postcount=140):

Yep, it seems likely that Maloney will reach the Court first, and one reason the Court is likely to accept the case is the split between circuits. Too bad Nordyke wasn't first in line, but the 14th Amendment analysis in Nordyke was much stronger so hopefully its arguments will carry the day whichever case is directly considered by the Supremes.