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View Full Version : Legal question: if Nordyke remains alive, do 9thCircuit state courts have to obey it?


1JimMarch
07-21-2009, 1:28 PM
I was thinking "yes" but there's a moderator on the opencarry forums saying otherwise:

http://opencarry.mywowbb.com/view_topic.php?id=28756&forum_id=19

Does anybody know where I can get hard facts to shoot this guy down?

cousinkix1953
07-21-2009, 1:42 PM
I was thinking "yes" but there's a moderator on the opencarry forums saying otherwise:

http://opencarry.mywowbb.com/view_topic.php?id=28756&forum_id=19

Does anybody know where I can get hard facts to shoot this guy down?
Nordyke will be the law of the Ninth Circuit unless the Supreme Court rules otherwise. This is what judge Sotamayor meant by making policy on the appeal court bench. Only a handful of appeals are taken up by the SCOTUS every year. They can also refuse to even accept further appeals for any reason they like...

kermit315
07-21-2009, 2:10 PM
IIRC, Nordyke's semi specific wording was 'incorporates the Second Amendment to the states, via the 14th Amendment'.

Its paraphrased, but I dont see how he can argue that even though the ruling was written as it was, it still isnt binding. If thats the case, whats the point of incorporation in the first place?

ETA: here, I found a better wording

From the decision:

[12] We therefore conclude that the right to keep and bear
arms is “deeply rooted in this Nation’s history and tradition.”
Colonial revolutionaries, the Founders, and a host of com-
mentators and lawmakers living during the first one hundred
years of the Republic all insisted on the fundamental nature
of the right. It has long been regarded as the “true palladium
of liberty.” Colonists relied on it to assert and to win their
independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.
The crucial role this deeply rooted right has played in our
birth and history compels us to recognize that it is indeed fun-
damental, that it is necessary to the Anglo-American concep-
tion of ordered liberty that we have inherited.17 We are
therefore persuaded that the Due Process Clause of the Four-
teenth Amendment incorporates the Second Amendment and
applies it against the states and local governments.18

Ask him to explain his black letter law as it applies to that decision. I would love to hear the answer, but dont feel like registering over there to ask myself.

bulgron
07-21-2009, 2:19 PM
More likely the courts will simply say, "Yeah, it's incorporated, but we don't like the 2A so we're going to pretend that it doesn't actually protect anything."

GM4spd
07-21-2009, 2:25 PM
More likely the courts will simply say, "Yeah, it's incorporated, but we don't like the 2A so we're going to pretend that it doesn't actually protect anything."


That will be how it plays out. Pete

ilbob
07-21-2009, 2:31 PM
Its the same moderator who refuses to change the OC color of IL on his US map to red, even though he has been shown that rural OC is a felony in IL.

I think he is more or less correct on this one. Federal appeals court decisions bind federal district courts in their circuit.

IIRC, the way it works is that a specific state law can be challanged in federal court, and found unconstitutional, and that is binding. I think the guy made that point in a later post.

kermit315
07-21-2009, 2:33 PM
Wonderful.....I am sure he is going to be very open minded. Anyway, ask him to refute the evidence that a Federal Circuit Court ruled that the 2nd is incorporated against the states, make him show any penal code that will allow them to get away with ignoring it (legally).

He is a law student, it should be easy.

ilbob
07-21-2009, 2:39 PM
More likely the courts will simply say, "Yeah, it's incorporated, but we don't like the 2A so we're going to pretend that it doesn't actually protect anything."

Yep. And we will be back in court continuously over the next few decades to work out just what RTKBA there really is.

ilbob
07-21-2009, 2:40 PM
Wonderful.....I am sure he is going to be very open minded. Anyway, ask him to refute the evidence that a Federal Circuit Court ruled that the 2nd is incorporated against the states, make him show any penal code that will allow them to get away with ignoring it (legally).

He is a law student, it should be easy.

A better question is what code compels a state court to honor a federal district or appeals court ruling?

bulgron
07-21-2009, 2:44 PM
Yep. And we will be back in court continuously over the next few decades to work out just what RTKBA there really is.

If it's really going to take that, and I think it will, then we'd better work like hell to elect presidents and a congress that's willing to put gun-friendly justices on the bench. Because if we keep getting Sotomayors, well, then we're sunk. We'll have an empty right that protects exactly nothing.

cousinkix1953
07-21-2009, 2:44 PM
Its the same moderator who refuses to change the OC color of IL on his US map to red, even though he has been shown that rural OC is a felony in IL.

I think he is more or less correct on this one. Federal appeals court decisions bind federal district courts in their circuit.

IIRC, the way it works is that a specific state law can be challanged in federal court, and found unconstitutional, and that is binding. I think the guy made that point in a later post.
Maybe he's just p------ that a different circuit in Chicago ruled the other way. Nordyke is the law in the 9th Circuit unless they change their minds or the SCOTUS overturns that decision on appeal. And they might not even want to touch this hot potato. Case closed at that point.

I always wondered if any body could do worse than electing hard core anti-gun senators any worse than Boxer and Feinstein in the PRK. And then I learned about the likes of Durbin and Obama...

7x57
07-21-2009, 2:47 PM
A better question is what code compels a state court to honor a federal district or appeals court ruling?

For starters, the fact that the state can be hauled into federal court anytime it violates an Incorporated right, and will lose every time. And if it happens repeatedly on the same violation, eventually federal judges start to think they're being defied. That makes them cranky, and cranky federal judges take the gloves off until the state starts paying attention.

How else did you think it worked when state laws were explicitly racist? If federal courts could coerce the Southern states to start respecting the rights of black citizens, they will have no trouble coercing respect for gun rights.

Jim, why not ask your skeptic the legal basis for desegregation? According to him, it could not have happened.

7x57

GoodEyeSniper
07-21-2009, 3:21 PM
For starters, the fact that the state can be hauled into federal court anytime it violates an Incorporated right, and will lose every time. And if it happens repeatedly on the same violation, eventually federal judges start to think they're being defied. That makes them cranky, and cranky federal judges take the gloves off until the state starts paying attention.

7x57

My questions is, WHAT DOES THAT MEAN?

I'm truly curious. I always hear these vague answers, but I want to know what exactly they can do, or threaten to do, to the states.

Personally, I feel that those in power who knowingly, and repeatedly break those laws should be treated like common criminals and thrown in jail. Only their crimes are much worse and affect thousands more than the average criminal, and they will most likely get a "stern reprimanding".

RomanDad
07-21-2009, 3:25 PM
Federal Circuit court opinions are only binding precedent on lower Federal District courts within their circuit. They are merely "persuasive" to the state courts, whether those courts are within the circuit or not. They are supposed to be 'Pretty Persuasive' on issues of U.S. Constitutionality, but the problem is we have a split of opinions in the Circuits. So a Judge in a state court proceeding is free to give greater weight to the 2nd and 7th Circuit opinions over Nordyke, if they so chose. Only SCOTUS opinions bind the State judiciary.


Ultimately the defendant in a state criminal case can appeal a Judge's ruling on a Constitutionally based defense (and the SCOTUS could grant cert. whenever they wanted- even effectively YANKING away from the State courts) to both the state and ultimately the Federal judiciary.

GaryV
07-21-2009, 3:30 PM
He may be technically correct, but it's a distinction without a difference. Any court can rule any way it pleases, even if the Supreme Court has ruled in the opposite way. But if they rule against precedent they'll be overturned on appeal. Even if the Nordyke decision isn't technically binding on state courts, California courts are still in the 9th Circuit. So if a court allows a prosecution under a law that violates the 2nd Amendment, the case can still be appealed to a federal court, where Nordyke is binding. The result then is the same either way, so it doesn't really matter what the "black letter law" says.

bulgron
07-21-2009, 3:39 PM
My questions is, WHAT DOES THAT MEAN?

I'm truly curious. I always hear these vague answers, but I want to know what exactly they can do, or threaten to do, to the states.

Personally, I feel that those in power who knowingly, and repeatedly break those laws should be treated like common criminals and thrown in jail. Only their crimes are much worse and affect thousands more than the average criminal, and they will most likely get a "stern reprimanding".

If memory serves, and I'm truly fuzzy on the details, I believe there is a path by which an individual can sue a public official over civil rights violations. In order to be successful, the public official has to have displayed a continuing pattern of violating citizens' civil rights in a particular way.

So, for example, suppose we someday arrive at the happy day when the Federal Courts admit that LOC is a constitutionally protected right. Further suppose that the San Jose PD decides to treat every citizen found exercising LOC as a full felony stop.

The first time they engage in a full felony stop just because someone has a loaded gun in their holster, the courts will quietly let the LOCer go and tell the PD not to do that.

The second time they engage in a fully felony stop just because someone has a loaded gun in their holster, the courts will tell them in a slightly stronger tone not to do that and then they'll let the LOCer go.

This pattern will continue until eventually the LOCer (it doesn't have to be the same person) can sue the PD and the city for civil liberties violations. The first time a successful law suit like that happens, the LOCer will probably only get token damages -- say, a few thousand dollars.

After that, if the police continue to treat LOCers as people engaged in violent criminal behavior, the damages will probably rapidly increase in size. This is especially true if the LOCer is physically harmed in anyway by the police officers who are treating him/her as a violent criminal.

If the pattern continues even past that, then someday LOCers get to start suing the arresting officers, the Chief of Police, the Mayor, etc personally.

Once people start going bankrupt personally, then everyone else will generally stop doing the thing that's resulting in all the lawsuits.

Actually, I fully suspect that PDs and cops would stop engaging in unconstitutional behavior long before it gets to that.

Now, be aware that I could be talking completely out of my, er, ear on this. But this is my impression of how things works when it comes to civil liberties violations.

7x57
07-21-2009, 3:41 PM
I'm truly curious. I always hear these vague answers, but I want to know what exactly they can do, or threaten to do, to the states.


Off the top of my head: send federal marshals to collect any offending bodies and deliver them to stand trial in federal court, put them in federal prison if convicted, and so on.

7x57

RomanDad
07-21-2009, 3:42 PM
If memory serves, and I'm truly fuzzy on the details, I believe there is a path by which an individual can sue a public official over civil rights violations. In order to be successful, the public official has to have displayed a continuing pattern of violating citizens' civil rights in a particular way.

So, for example, suppose we someday arrive at the happy day when the Federal Courts admit that LOC is a constitutionally protected right. Further suppose that the San Jose PD decides to treat every citizen found exercising LOC as a full felony stop.

The first time they engage in a full felony stop just because someone has a loaded gun in their holster, the courts will quietly let the LOCer go and tell the PD not to do that.

The second time they engage in a fully felony stop just because someone has a loaded gun in their holster, the courts will tell them in a slightly stronger tone not to do that and then they'll let the LOCer go.

This pattern will continue until eventually the LOCer (it doesn't have to be the same person) can sue the PD and the city for civil liberties violations. The first time a successful law suit like that happens, the LOCer will probably only get token damages -- say, a few thousand dollars.

After that, if the police continue to treat LOCers as people engaged in violent criminal behavior, the damages will probably rapidly increase in size. This is especially true if the LOCer is physically harmed in anyway by the police officers who are treating him/her as a violent criminal.

If the pattern continues even past that, then someday LOCers get to start suing the arresting officers, the Chief of Police, the Mayor, etc personally.

Once people start going bankrupt personally, then everyone else will generally stop doing the thing that's resulting in all the lawsuits.

Actually, I fully suspect that PDs and cops will stop engaging in unconstitutional behavior long before it gets to that.

Now, be aware that I could be talking completely out of my, er, ear on this. But this is my impression of how things works when it comes to civil liberties violations.

18 USC 242 (http://www.usdoj.gov/crt/crim/242fin.php)

42 USC 1983 (http://www.law.cornell.edu/uscode/42/1983.html)

7x57
07-21-2009, 3:50 PM
I'd be happy to be corrected by someone more knowledgeable, but I think the basic legal theory here is that anything Incorporated against the states overrides anything in the state law or Constitution to the contrary. Further, it is the federal courts who have the final say on the meaning of the Federal Constitution, and it is in Federal court that one sues a state over a violation of an Incorporated right.

How that affects the way the state interprets its own laws I am not so sure on, but if those interpretations contradict anything the Feds have agreed is Incorporated against the states then you can strike it down in Federal court. So at least the state courts will end up respecting the Federal rules for that reason. If there is a more formal mechanism, I am not aware of it. ETA: that is, I don't know if there is a more formal mechanism acting on the state courts. Clearly there are direct consequences to state officials who enforce state laws deemed unconstitutional by the federal courts.

Once again, the simplest way to answer these questions practically is to as what the states could have gotten away with during desegregation. That is an instance of the federal courts enforcing the Federal constitution against the states against their will, and they were more inclined to disobey over that then they ever will be over gun rights. So if the federal courts could desegregate the South, then it is certain that one way or the other they can impose their will w.r.t. gun rights.

IOW whatever mechanisms exist to enforce the federal rules in state court beyond the fact that the Feds can overrule them, there should be no doubt that the final outcome is that the states respect Incorporated rights that the federal courts are willing to enforce.

7x57

bulgron
07-21-2009, 3:52 PM
IOW whatever mechanisms exist to enforce the federal rules in state court beyond the fact that the Feds can overrule them, there should be no doubt that the final outcome is that the states respect Incorporated rights that the federal courts are willing to enforce.

7x57

And that would be the risk and the problem.

7x57
07-21-2009, 3:53 PM
And that would be the risk and the problem.

Worded it carefully, didn't I? :chris:

7x57

bulgron
07-21-2009, 4:43 PM
Worded it carefully, didn't I? :chris:

7x57

Well, if it makes you feel any better, back when they drafted the constitution they knew the whole thing would fall apart if the federal court system failed to behave as intended by the drafters. It appears that all this nail-biting over what the courts are going to do has been with us for a very, very long time.

Fortunately the courts seem to muddle through, more or less okay. Sadly, they don't have a great record with the 2A is concerned.

Please resume your regularly scheduled nail-biting now....

cousinkix1953
07-21-2009, 11:45 PM
For starters, the fact that the state can be hauled into federal court anytime it violates an Incorporated right, and will lose every time. And if it happens repeatedly on the same violation, eventually federal judges start to think they're being defied. That makes them cranky, and cranky federal judges take the gloves off until the state starts paying attention.

How else did you think it worked when state laws were explicitly racist? If federal courts could coerce the Southern states to start respecting the rights of black citizens, they will have no trouble coercing respect for gun rights.

Jim, why not ask your skeptic the legal basis for desegregation? According to him, it could not have happened.

7x57
Hey man, look at that federal judge who decided that inmates were entitled to the best of medical care. Arnold just got a "do it or else" order from Thelton P Henderson...

cousinkix1953
07-21-2009, 11:51 PM
He may be technically correct, but it's a distinction without a difference. Any court can rule any way it pleases, even if the Supreme Court has ruled in the opposite way. But if they rule against precedent they'll be overturned on appeal. Even if the Nordyke decision isn't technically binding on state courts, California courts are still in the 9th Circuit. So if a court allows a prosecution under a law that violates the 2nd Amendment, the case can still be appealed to a federal court, where Nordyke is binding. The result then is the same either way, so it doesn't really matter what the "black letter law" says.
Which is just another way of saying that conflicting opinions from different circuits in Chicago and New York are not applicable in our PRK, We must comply with the local 9th Circuit's decision. Even attorney general, Jerry Brown understands this requirement and acted accordingly...

N6ATF
07-22-2009, 2:20 AM
Off the top of my head: send federal marshals to collect any offending bodies and deliver them to stand trial in federal court, put them in federal prison if convicted, and so on.

7x57

Or in the ground, if convicted and executed for the capital crime of treason.