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View Full Version : Nordyke ~ Appellees file Opposition to En Banc rehearing


krucam
07-11-2011, 6:30 PM
'Nuff said. Appellants (Alameda) obviously hadn't got the word on Ezell in the 7th when they filed their opposition today.

Moreover, Appellants fail to identify an opinion of another court
of appeals with which the panelís decision on this issue (or any other issue)
directly conflicts, or any rule of national application affected by the decision.

Here's to hoping someone schools them and quickly on Ezell.

Purple K
07-11-2011, 6:33 PM
Can you say.... oops!

Manic Moran
07-11-2011, 6:44 PM
'Nuff said. Appellants (Alameda) obviously hadn't got the word on Ezell in the 7th

I direct you to Page 7. (8 on the PDF). Also Pages 12-14 (13-15 on the PDF)

NTM

BigDogatPlay
07-11-2011, 8:34 PM
Ummm yeah... the county seems to be quite familiar, and equally dismissive, of Ezell. But that's what litigation is all about, isn't it?

:)

yellowfin
07-11-2011, 9:03 PM
Their response as summarized by Adam Savage: "I reject your reality and substitute my own."

andytothemax
07-11-2011, 9:10 PM
FYI, here is the original opinion issued in May 2011. I predict that on remand, the District Court will uphold Alameda County's ordinance as a reasonable "time, place, and manner" restriction on the Second Amendment, because it does not "substantially burden" the fundamental right, and leaves open ample alternative means of purchasing. The Court of Appeal affirms. The Supreme Court grants cert. and reviews as to whether the First Amendment's "time, place, and manner"/burden analysis is an appropriate standard for Second Amendment laws. Prediction: even under strict scrutiny, it would be, and therefore judgment in favor of the County is affirmed. No Second Amendment right to conduct gun shows on public property. No determination on whether intermediate or strict scrutiny applies to the Second Amendment.

My best guess is that the Supreme Court will apply strict scrutiny to everything relating to home defense; intermediate scrutiny to public places; and rational basis review for sensitive places. Prediction: unloaded open carry is a fundamental right, but is subject to "time, place, and manner" restrictions just like the First Amendment.

Funtimes
07-11-2011, 9:22 PM
FYI, here is the original opinion issued in May 2011. I predict that on remand, the District Court will uphold Alameda County's ordinance as a reasonable "time, place, and manner" restriction on the Second Amendment. The Court of Appeal will affirm. The Supreme Court will grant cert. and review as to whether the First Amendment's "time, place, and manner" analysis is an appropriate standard for Second Amendment laws. Prediction: even under strict scrutiny, it is, and therefore judgment in favor of the County is affirmed. No Second Amendment right to conduct gun shows on public property.

If there was a 1A type analysis, I would say that it constitutes view point discrimination. The regulation is not narrowly tailored to serve a significant government interest. There are many things they could do in lieu of a total ban: require police at the show, require firearms be locked to the table, slides zip tied, no ammunition present and so forth.

They would fail strict scrutiny as there is no factual evidence that there is any increased danger to support banning the show.

andytothemax
07-11-2011, 10:07 PM
If there was a 1A type analysis, I would say that it constitutes view point discrimination. The regulation is not narrowly tailored to serve a significant government interest. There are many things they could do in lieu of a total ban: require police at the show, require firearms be locked to the table, slides zip tied, no ammunition present and so forth.

They would fail strict scrutiny as there is no factual evidence that there is any increased danger to support banning the show.

I hear you. It's not my area of law, but going off the First Amendment analysis such as I remember it:

Home defense = viewpoint-based regulation --> Strict scrutiny+
Self defense outside the home = content-based regulation --> Strict scrutiny
Commercial arms sales/distribution = content-neutral regulation that burdens a fundamental right but only regulates its time, place, and manner while leaving open alternative means of communication --> Intermediate scrutiny
Schools, Airports, etc. = content-neutral not burdening the fundamental right --> Rational basis review