PDA

View Full Version : An idiots guide to incorporation


ChuckBooty
01-05-2010, 3:53 PM
Can someone explain this to me? As I understand it the DC Gun Ban case set the standard and this next case means that the rest of the country must follow this example?

Also...how does this effect us here in California? Once the case is won, do we automatically have incorporation? Does this mean no more hand-gun roster, ten-day wait, CCW all day every day or what?

Thanks in advance!

huggybear
01-05-2010, 4:00 PM
i asked the same thing and here r the answers i got.
http://www.calguns.net/calgunforum/showthread.php?t=254539&page=11

bruss01
01-05-2010, 4:01 PM
Chuck,

Nothing is automatic, but a lot of doors will be opened if/when McDonald prevails.

For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune. Because of those prior decisions which set precedent, no case can be brought in CA which cites the 2nd Amendment vs a CA state law. It is a lost case before it is ever filed.

However, if/when McDonald prevails, it will effectively over-rule those prior cases... at that point, any case filed on 2nd Amendment grounds can at least go to trial. It will be a series of court cases... one after another... to bring down the roster... the 10 day wait... mag cap limits... and the AW ban.

A lot of people said of Heller and say now about McDonald that these two cases don't change diddly. That's true in the sense that no anti-gun laws magically go *poof* and disappear from the law books. But another way to look at it is, before Heller/McDonald, we were dead in the water with a motor that wouldn't start... after McDonald, we will at least have the motor up and running, now it is up to us to pilot the craft towards the shore of 2nd Amendment freedom. There will still be currents to fight, waves to crest, rocks to avoid, and other obstacles to overcome. Nothing will be guaranteed, but at least we will have a fair fight of it.

bulgron
01-05-2010, 4:05 PM
Can someone explain this to me? As I understand it the DC Gun Ban case set the standard and this next case means that the rest of the country must follow this example?

Incorporation means that the entire country is limited in its actions by the second amendment in exactly the same way as the Federal Government. However, exactly how strong those restrictions are have not yet been defined by the courts. This will be fleshed out over the next century or so by continuing court cases, just as all civil liberties litigation just goes on and on and on.


Also...how does this effect us here in California? Once the case is won, do we automatically have incorporation? Does this mean no more hand-gun roster, ten-day wait, CCW all day every day or what?

Thanks in advance!

What incorporation means for us here in California is that we can sue the State of California over gun laws that we believe violate the Second Amendment, and we can bring those lawsuits in federal court (instead of state court). These lawsuits will help to flesh out exactly what the second amendment protects and how strict those protections are.

In terms of CCW, once we have incorporation the Sykes case can proceed. At the moment that case is on hold while we all wait to find out what happens with McDonald. If we win Sykes, then the State is going to have to let us bear loaded arms somehow, in someway, and without all the hoopla.

So, in other words, on the day that we win McDonald (I'm being optimistic, but hopefully not wildly so), we can all let out a great big cheer. Then we should all write a big check to CalGuns because they're going to need money to pursue the legal cases that will finally convince the State of California that they can't trample on our gun rights anymore.

ChuckBooty
01-05-2010, 4:06 PM
Chuck,

Nothing is automatic, but a lot of doors will be opened if/when McDonald prevails.

For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune. Because of those prior decisions which set precedent, no case can be brought in CA which cites the 2nd Amendment vs a CA state law. It is a lost case before it is ever filed.

However, if/when McDonald prevails, it will effectively over-rule those prior cases... at that point, any case filed on 2nd Amendment grounds can at least go to trial. It will be a series of court cases... one after another... to bring down the roster... the 10 day wait... mag cap limits... and the AW ban.

A lot of people said of Heller and say now about McDonald that these two cases don't change diddly. That's true in the sense that no anti-gun laws magically go *poof* and disappear from the law books. But another way to look at it is, before Heller/McDonald, we were dead in the water with a motor that wouldn't start... after McDonald, we will at least have the motor up and running, now it is up to us to pilot the craft towards the shore of 2nd Amendment freedom. There will still be currents to fight, waves to crest, rocks to avoid, and other obstacles to overcome. Nothing will be guaranteed, but at least we will have a fair fight of it.

THAT is the best answer that I've heard. Thank you!

barrym66
01-05-2010, 5:35 PM
Nice summary and conclusion, bulgron! :)

sytfu_RR
01-05-2010, 9:05 PM
Thanks for the explanation. lol

smt77
01-05-2010, 9:07 PM
Those were very well worded, clear explanations. Thank you.

SP1200
01-05-2010, 11:59 PM
For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune.

But didn't the 9th Circuit recognize incorporation in the Nordyke case???

ke6guj
01-06-2010, 12:03 AM
But didn't the 9th Circuit recognize incorporation in the Nordyke case???temporarily. A 3-judge panel did rule with a pro-incorporation ruling, but it was put on hold due to an en-banc rehearing. The ruling from the en-banc panel has been postponed pending McDonald.

bigcalidave
01-06-2010, 12:07 AM
They wussed out, decided they didn't want to be the ones responsible for making the decision, and with a supreme court case coming up that asks the same question..... They took a vacation.

SP1200
01-06-2010, 1:09 AM
temporarily. A 3-judge panel did rule with a pro-incorporation ruling, but it was put on hold due to an en-banc rehearing. The ruling from the en-banc panel has been postponed pending McDonald.

I hate this crap! Every freak'n time we get all excited, ya we won! We really don't! And didn't CA AG JB also recognize incorporation?

So what's en-banc? Judges re-thinking their ruling?

SP1200
01-06-2010, 1:12 AM
They wussed out, decided they didn't want to be the ones responsible for making the decision, and with a supreme court case coming up that asks the same question..... They took a vacation.

So is McDonald a direct case about incorporation on the states?
Or is their going to be a bunch more BS to do after?

Isn't McDonald just another hand gun ban challenge?

hoffmang
01-06-2010, 1:15 AM
I hate this crap! Every freak'n time we get all excited, ya we won! We really don't! And didn't CA AG JB also recognize incorporation?

So what's en-banc? Judges re-thinking their ruling?

en-banc usually means a hearing in front of all the judges of an appellate court. Here in California that means a hearing in front of a large panel of the appellate court since we have such a large circuit and number of judges.

Nordyke is held pending McDonald. However, McDonald will be determinative of whether the 2A applies as against the states independent of Nordyke. After McDonald's decision is released (most like the last week of June 2010) then Nordyke will become solely a decision about whether gun shows can be banned as the 2A will most likely already be applied to the states.

-Gene

SP1200
01-06-2010, 1:55 AM
What are the details about McDonald that will allow incorporation?
Isn't it just another hand gun ban case?

bruss01
01-06-2010, 7:55 AM
What are the details about McDonald that will allow incorporation?
Isn't it just another hand gun ban case?

The Heller case was about getting the SC to acknowledge that a second amendment right to common firearms in functional condition by the average person EXISTS. That was a big step, but it applied only to the FEDERAL government (which runs the District of Columbia... Washington DC).

The McDonald case is about getting the SC to acknowledge that the right proved in Heller, applies to the STATES as well as to the FEDERAL government.

By splitting the issues up this way, it makes it more likely that the court will be willing to take "baby steps" in the right direction, instead of gambling it all on some kind of "all or nothing" gambit. For instance, if McDonald had been tried prior to Heller, it would be on more shaky ground because there was no SC precedent stating that individuals even HAD ANY second amendment rights. Take too big a bite at once, and your odds of needing a Heimlich maneuver go up drastically. Since Heller went first, that part of the battle is already won and those issues it decided are all water under the bridge, furthermore even the ANTI-GUN judges on the SC have to screen any opinions they might have through the Heller filter. For instance, they cannot still claim "regular folks don't have a 2nd amendment right" because that is a matter of precedent now, and it can no longer be used as an argument. Using a series of court cases like this with narrow findings, you can force them into a bottleneck of legal decisions with an end we all hope for... true second amendment freedom. It requires a lot of work and a lot of patience, but it is the only sure method of getting where we are going.

1JimMarch
01-06-2010, 3:47 PM
Try this:

http://www.calguns.net/calgunforum/showthread.php?t=188391

corrupt
01-07-2010, 11:45 PM
Try this:

http://www.calguns.net/calgunforum/showthread.php?t=188391

Thanks very much for that, very interesting.

bigcalidave
01-07-2010, 11:56 PM
Why DID they take heller to the supreme court, instead of a case from one of the states first? Was it just convenience and dick heller hooking up with gura? Or was there a strategic move to first having the supreme court acknowledge the 2nd THEN make it apply to the states?

Was it a test case for this group of judges, to check if they were ready for a case for incorporation against ALL the states? That way, if they lost, it wouldn't affect the states.

Kid Stanislaus
01-08-2010, 12:21 AM
Why DID they take heller to the supreme court, instead of a case from one of the states first? Was it just convenience and dick heller hooking up with gura? Or was there a strategic move to first having the supreme court acknowledge the 2nd THEN make it apply to the states?

Was it a test case for this group of judges, to check if they were ready for a case for incorporation against ALL the states? That way, if they lost, it wouldn't affect the states.

Go back and reread posts #14 & #16.

Joe
01-08-2010, 12:23 AM
good info here

bigcalidave
01-08-2010, 1:00 AM
Yes, thank you I can read. I'm wondering if Heller just happened to come along at the right time, or if it was planned to be the first step. Seems like a case like McDonald could have handled it the same way.

bulgron
01-08-2010, 1:29 AM
Yes, thank you I can read. I'm wondering if Heller just happened to come along at the right time, or if it was planned to be the first step. Seems like a case like McDonald could have handled it the same way.

It was planned. The lawyers behind it went looking for clients, and they went looking for very specific types of clients who were living in DC. They knew that getting SCOTUS to say that the 2A protects an individual right was a very big deal. It was such a big deal, and such a huge step to ask the court to take, that they didn't want to jeopardize it by throwing incorporation in on top of what the court needed to decide at that time.

You are correct in that they could just as easily have started by suing Chicago over their gun ban. But they took the more strategic -- and safer -- albeit slower -- route. Thus far, their strategy seems to be working beautifully.

yellowfin
01-08-2010, 7:17 AM
To add to the slower is safer approach, it also has the advantage of having more winning decisions for our side. In pursuing a further win, legal arguments are formed from previous successful decisions to make the case why the court should rule again in our favor. "Because we think so" doesn't hold any weight; "because the court already said so" is a winning argument almost every time. The more decisions we have in our favor then the more of the court's own words we have available to craft further wins from, so we can keep getting more and more if we ask for it the right way.