PDA

View Full Version : 2 Qs about Heller and the Other Major Anti States


Paladin
04-08-2008, 6:49 PM
Let's restrict ourselves to reasonable speculation and assume Heller goes our way and does not give us anything bad, but does not give us everything we want all at once. (1) What will Heller likely mean for the other major anti states? Here I'm referring to HI, IL (think Chicago), WI, NY (again, think NYC), NJ, MA and the other NE anti states (i.e., those that are not Shall Issue or better (VT carry) and/or those that have state level AWBs).

I know that we in the PRK are eagerly licking our chops for the decision and putting our feet in the starting blocks, but (2) are pro-RKBA people in those other states as organized and prepared for Heller as we? Since I spend what little free time I can contribute to the cause focusing on CCWs in the PRK, I haven't researched this on my own.

Gene has previously posted that in 2 years, the RKBA landscape in the PRK will be significantly different. I'm just wondering if that will also be the case for the other major anti states. Now that they are on board w/Heller, maybe the NRA could coordinate things nationally to avoid duplication of effort and sift out the strongest cases.

Feel free to PM me if you prefer not to post something.

Shotgun Man
04-08-2008, 7:10 PM
Let's restrict ourselves to reasonable speculation and assume Heller goes our way and does not give us anything bad, but does not give us everything we want all at once. (1) What will Heller likely mean for the other major anti states? Here I'm referring to HI, IL (think Chicago), WI, NY (again, think NYC), NJ, MA and the other NE anti states (i.e., those that are not Shall Issue or better (VT carry) and/or those that have state level AWBs).

I know that we in the PRK are eagerly licking our chops for the decision and putting our feet in the starting blocks, but (2) are pro-RKBA people in those other states as organized and prepared for Heller as we? Since I spend what little free time I can contribute to the cause focusing on CCWs in the PRK, I haven't researched this on my own.

Gene has previously posted that in 2 years, the RKBA landscape in the PRK will be significantly different. I'm just wondering if that will also be the case for the other major anti states. Now that they are on board w/Heller, maybe the NRA could coordinate things nationally to avoid duplication of effort and sift out the strongest cases.

Feel free to PM me if you prefer not to post something.

I question the premise that somehow California is uniquely posed to attack the anti-gun legislation on our books.

We have some of the toughest gun laws in the nation. There is a reason for that-- neither the legislature, nor the courts, nor the executive branch, nor the electorate favor us. That's why we are in the situation we are in.

I would imagine the east coast pro-gunners would achieve more victories than california in the immediate wake of post-heller. The California Supreme Court is notorious for defying federal mandates in the arena of criminal jurisprudence.

hoffmang
04-08-2008, 7:15 PM
California is unique for two reasons.

1. California has no Right to Keep and Bear Arms in its State Constitution. As such the legislature has been free to pass laws that would not survive a state constitutional challenge in the first place.

2. The 9th Circuit is the most overturned Circuit in the Federal Court system. It's as if SCOTUS groans when they see an appeal out of our Circuit.

-Gene

yellowfin
04-08-2008, 7:16 PM
We will have a means of mobilizing the electorate to shift them to our favor. There is a project in the works for that. It will change the goal from merely addressing the damage done by the anti movement to eradicating the movement altogether.

Shotgun Man
04-08-2008, 7:32 PM
California is unique for two reasons.

1. California has no Right to Keep and Bear Arms in its State Constitution. As such the legislature has been free to pass laws that would not survive a state constitutional challenge in the first place.

2. The 9th Circuit is the most overturned Circuit in the Federal Court system. It's as if SCOTUS groans when they see an appeal out of our Circuit.

-Gene


The fact the we do not have a state RKBA weakens our position. Heller won't even address incorporation if I've read my calguns right.

Any help we get will come from the Feds.

Gene, you're predicting that we'll have to go the SCOTUS to get any relief here in California.

I'm just saying, that would take a long time, and I predict that SCOTUS (as the weak sister in this triumverate that describes our government), will try to be in alliance with the executive branch.

DC was an outright ban on gun possession. SCOTUS will likely overturn that ban.

SCOTUS will carve out myriad exceptions to the 2A RKBA that satisfy existing CA law.

hoffmang
04-08-2008, 7:47 PM
1. The fact that we do not have a state RKBA means we have much more absurd gun laws. Absurd laws are much easier to overturn in Federal court. Name me the other States with an RKBA and an AW ban with bite or a "safe handgun ban" or for that matter even waiting periods on long arms.

2. The difficulty of incorporation is wildly overstated by the armchair Federal Court watchers here. It's going to happen and happen quickly. Even the Third Amendment was incorporated on its one modern hearing.

3. We don't have to go to SCOTUS for the 9th Circuit Court of Appeals to know that we have 5 justices for our point of view. We'll win a lot of the follow on California cases either at the Federal District Court or 2-1 at appeals. Remember this. After Heller there will be no binding precedent on the Second Amendment in the 9th Circuit. Say that again out loud to yourself.

-Gene

AngelDecoys
04-08-2008, 8:05 PM
2. The difficulty of incorporation is wildly overstated by the armchair Federal Court watchers here. It's going to happen and happen quickly. Even the Third Amendment was incorporated on its one modern hearing.

-Gene

Not willing to get into this once again, I'm simply going to disagree with your optimism on it. And disagree that incorporation will be quick and painless. Instead Iíll armchair it and wait for the actual decision.

Gene - Name the 3rd case that reached the Supreme Court? There isn't, and while you keep stating the 3rd's been incorporated, in actuality it has not. It's only reached the appellate level. I'll grant you the appellate decision in that 1 circuit will be used, but that is not incorporation unless the Supremes hear a case.

Any gains we make after Heller in CA will probably be through Federal court. That is, provided we get our wish list, and until an actual Son of Heller case is heard that also goes our way causing incorporation. Personally (and given its track record to date), I find incorporation doubtful under the current conservative supreme court.

bulgron
04-08-2008, 8:37 PM
Any gains we make after Heller in CA will probably be through Federal court. That is, provided we get our wish list, and until an actual Son of Heller case is heard that also goes our way causing incorporation. Personally (and given its track record to date), I find incorporation doubtful under the current conservative supreme court.

California's Assault Weapon Ban is almost identical to D.C.'s Handgun ban both in terms of it's scope and mechanically in how it is enacted. That is, both the D.C ban and the California AW ban have provisions for the weapon via a permit system, but permits are impossible to get by normal people.

Ergo, to get 14A incorporation, the thing to do is push an AW ban case up through the 9th circuit. Either we'll win at the 9th circuit, with them agreeing that the 2A is incorporated, or we'll win at SCOTUS with them saying that the 2A is incorporated. And how could SCOTUS not overturn the AW ban given a positive ruling in Heller?

I agree that this case will take only about a year or two to progress fully, assuming there's someone out there in the starting blocks ready to go the day after Heller is decided.

Remember that the 9th agreed in Silveria that if the 2A was an individual right, then it would be incorporated and there would be grounds to overturn the AW ban. Based on that, I suspect that we won't have to go all the way to SCOTUS to get 2A protection in California.

This is all assuming SCOTUS doesn't go ahead and grant 14A incorporation as a part of Heller (I don't expect that they will, but won't be shocked if they do).

Note that I am not a lawyer, nor do I know lawyers who involved in post-Heller planning. This is just my layman's take on what's going to happen in the aftermath of Heller.

I find myself in the odd and somewhat tragic position of being more optimistic than many California gun owners. Perhaps I have more faith in the courts than do my fellow Californians?

SemiAutoSam
04-08-2008, 8:45 PM
Either one ?

I realise that 1879 does not have the RTKBA in it but thought the 1849 might ?

Correct me if you think I'm wrong but wasn't the 1879 not ratified by the people hence it should be null and void ?


California is unique for two reasons.

1. California has no Right to Keep and Bear Arms in its State Constitution. As such the legislature has been free to pass laws that would not survive a state constitutional challenge in the first place.

2. The 9th Circuit is the most overturned Circuit in the Federal Court system. It's as if SCOTUS groans when they see an appeal out of our Circuit.

-Gene

dfletcher
04-08-2008, 10:10 PM
1. The fact that we do not have a state RKBA means we have much more absurd gun laws. Absurd laws are much easier to overturn in Federal court. Name me the other States with an RKBA and an AW ban with bite or a "safe handgun ban" or for that matter even waiting periods on long arms.

2. The difficulty of incorporation is wildly overstated by the armchair Federal Court watchers here. It's going to happen and happen quickly. Even the Third Amendment was incorporated on its one modern hearing.
3. We don't have to go to SCOTUS for the 9th Circuit Court of Appeals to know that we have 5 justices for our point of view. We'll win a lot of the follow on California cases either at the Federal District Court or 2-1 at appeals. Remember this. After Heller there will be no binding precedent on the Second Amendment in the 9th Circuit. Say that again out loud to yourself.

-Gene

In the event of victory I am hopeful on incorporation because I do not reasonably see how SCOTUS can find an individual right, yet permit a state to not recognize that right. I am very much a layman on this subject. If anyone can offer how SCOTUS would find the right but not require the states to abide that right would be very much appreciated. I fear that without incorporation we will have a modern day equivilent of an Emancipation Proclamation - to be incorporated where it is not needed and unable to be applied where it is most needed.

mymonkeyman
04-08-2008, 10:18 PM
California is unique for two reasons.

1. California has no Right to Keep and Bear Arms in its State Constitution. As such the legislature has been free to pass laws that would not survive a state constitutional challenge in the first place.

2. The 9th Circuit is the most overturned Circuit in the Federal Court system. It's as if SCOTUS groans when they see an appeal out of our Circuit.

-Gene

People bag on the 9th circuit too much. Yes, there are some particularly bad judges, but that's an unfair characterization. It's only the most overturned Circuit because it has the most cases. If you look at % cases overturned or any other non-sized-biased criteria, it is not the worst circuit.


2. The difficulty of incorporation is wildly overstated by the armchair Federal Court watchers here. It's going to happen and happen quickly. Even the Third Amendment was incorporated on its one modern hearing.

I really have to disagree with this one. Although I'm not yet admitted to practice, I'm a little more than an armchair Federal Court watcher, and I really think it's not going to be easy. First of all, some rights have specifically held not to be incorporated, such as the grand jury requirement of the 5th amendment, the unanimity requirement of the jury under the 6th amendment, and the 7th amendment. The test is whether the right at issue is "fundamental" and "implicit in the concept of ordered liberty." Now, if you have your average liberal judge deciding de novo whether the right to bear arms is "implicit in ordered liberty," do you really think they are going to say "yes" when a unanimous jury in a criminal case is not "implicit in ordered liberty?"

The other problem is what happens when it gets to SCOTUS. In all likelihood 4/9 members of SCOTUS are hostile to the 2nd amendment right. Also, 4/9 members of SCOTUS are generally hostile to incorporating new rights through the due process clause (Thomas is obviously the most hostile, then Scalia, then Robets and Alito). Kennedy is the only one who seems to like both. Therefore it's likely that as many as 8/9 members of SCOTUS would answer "no" to whether the 2nd amendment should be incorporated, with the 4 anti-gun judges saying that the right is not "implicit in ordered liberty" and up to 4 judges saying that the there should not be incorporation of rights under the due process clause except for obeying stare decisis. At the very least, Thomas, who is extremely hostile to incorporation under the due process clause and has absolutely no care about stare decisis would probably vote against incorporation. It would be very hard to get even 5 votes for incorporation.

Suvorov
04-08-2008, 10:31 PM
Doesn't the California Constitution have a provision that basically states that it recognizes the Bill of Rights of the US Constitution and thus had no need to specifically have it's own RTKBA?

Since the legal interpretation of the 2nd Amendment has historically been that of a collective right, the Anti's in Kalifornia have been able to do just about whatever they want.

But if Heller does go our way and they strike down DC's ban and declare the 2nd to be an individual right, wouldn't that force the Kalifornia courts to have to interpret it as such?

I'm not challenging anyone as I'm not a lawyer and don't even watch them on TV. Just going on some of the things I have read here.

mymonkeyman
04-08-2008, 10:36 PM
Either one ?

I realise that 1879 does not have the RTKBA in it but thought the 1849 might ?

Correct me if you think I'm wrong but wasn't the 1879 not ratified by the people hence it should be null and void ?

A federal court would be unlikely to decide that a state's government / constitution was improperly replaced. That falls squarely in the political question doctrine (see Luther v. Borden).

hoffmang
04-08-2008, 10:49 PM
Angel,

In the one Circuit that's heard a 3rd Amendment case ever it was incorporated at the appealate level. New York state didn't request Cert and as such it is binding precedent in the 2nd Circuit that the 3rd Amendment is incorporated.

Mymonkey: In the gun show case you so quickly dismissed, the district court brought up the 2A from the bench. Had counsel briefed the 2A he might have won it on his first bite at a very friendly 3 panel appeal. He's back in front a 3 judge panel on that case in the 2 months after Heller. Second, the only precedent to not incorporate is The Colfax Massacre. I can't wait to have a liberal judge implicitly back Federal disinterest in the mass murder of black people. Third, the unincorporated rights were not in the list of rights that the drafters of the 14th and Freedman's Bureau Acts specifically numerated - the right to arms was. Third, the 9th Circuit doesn't just get overturned more than other circuits - it get's overturned more even as a percentage of its case load.

You also have a hard argument to make - a laughably hard argument to make - that the 5 who clearly back a right to arms would not expect it to apply to the states. If you'd like to make that argument, well, I've got some money to put up on the other side.

I know you dismiss Reinhardt in his own words in Silviera where he says "if this was an individual right it would clearly be incorporated," but I tend to have a little respect for the man that as much as I utterly disagree with his politics - I don't think he cares to lie from the bench.

The fight will not be about incorporation. The fight will be about standard of review here in the 9th. However, equal protection is going to be the Achilles heel of much of the lunatic gun laws in this state...

-Gene

jamesob
04-08-2008, 10:50 PM
remember you are a u.s citizen and the bill of rights are for all of u.s citizens. we are not citizens of california, we just reside in this communist land. therefore who gives a crap about the cal constitution and the lack of bearing arms. california is supposed to answer to a higher power, the u.s constitution.

mymonkeyman
04-08-2008, 11:40 PM
Angel,

In the one Circuit that's heard a 3rd Amendment case ever it was incorporated at the appealate level. New York state didn't request Cert and as such it is binding precedent in the 2nd Circuit that the 3rd Amendment is incorporated.

Mymonkey: In the gun show case you so quickly dismissed, the district court brought up the 2A from the bench. Had counsel briefed the 2A he might have won it on his first bite at a very friendly 3 panel appeal. He's back in front a 3 judge panel on that case in the 2 months after Heller. Second, the only precedent to not incorporate is The Colfax Massacre. I can't wait to have a liberal judge implicitly back Federal disinterest in the mass murder of black people. Third, the unincorporated rights were not in the list of rights that the drafters of the 14th and Freedman's Bureau Acts specifically numerated - the right to arms was. Third, the 9th Circuit doesn't just get overturned more than other circuits - it get's overturned more even as a percentage of its case load.

You also have a hard argument to make - a laughably hard argument to make - that the 5 who clearly back a right to arms would not expect it to apply to the states. If you'd like to make that argument, well, I've got some money to put up on the other side.

I know you dismiss Reinhardt in his own words in Silviera where he says "if this was an individual right it would clearly be incorporated," but I tend to have a little respect for the man that as much as I utterly disagree with his politics - I don't think he cares to lie from the bench.

The fight will not be about incorporation. The fight will be about standard of review here in the 9th. However, equal protection is going to be the Achilles heel of much of the lunatic gun laws in this state...

-Gene

Here's why I think Silveria is worthless:

n4 We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court's holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: "[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right." Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit's holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court's holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the "individual rights" theory as well as the Fifth Circuit's holding in Emerson, the Silveira panel's decision to re-examine the scope and purpose of the Second Amendment was improper. Because HN12"only the court sitting en banc may overrule a prior decision of the court," Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel's unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.

Nordyke v. King, 319 F.3d 1185, 1192 (9th Cir. 2003)

Even other panels of the 9th circuit recognize that most of the Silveria decision is dicta.

Secondly, district court judges bring up lots of things from the bench. They throw out crazy ideas, etc. just to try to understand what counsel is thinking / arguing. That certainly does not mean that the judge would rule in our favor based on that theory. Similarly the counsel in the gun show case wouldn't' have won the first time on the 2nd amendment even for a "very friendly panel" in the ninth circuit because they recognize that Hickman is binding circuit authority until Heller comes along.

Regarding SCOTUS, I really don't think my argument is laughable. You are right it could go the other way, and there have been cases where the conservative members gave up their normally conservative judicial philosophy in an opinion to serve a politically conservative goal (i.e. Bush v. Gore), but such cases are very rare. Thomas and Scalia dissents saying we should scrap substantive due process are a dime-a-dozen though.

P.S. I think President Obama will bring court-packing back in vogue.

hoffmang
04-08-2008, 11:48 PM
Heh... Nordyke... You do catch the between the lines that that panel is bashing Reinhardt on the heart of the issue. Do you understand where that case actually stands right now and why I say it portends something very different than the ruling it was forced to make at the time in a post Heller world?

Dicta or not, Reinhardt stated his position that he thinks any decision not incoporating the 2A if the 2A is an individual right is incorrect as a matter of law. I can tell you that Gould and Kozinski certainly think its incorporated...

-Gene

mymonkeyman
04-09-2008, 12:12 AM
Heh... Nordyke... You do catch the between the lines that that panel is bashing Reinhardt on the heart of the issue. Do you understand where that case actually stands right now and why I say it portends something very different than the ruling it was forced to make at the time in a post Heller world?

Dicta or not, Reinhardt stated his position that he thinks any decision not incoporating the 2A if the 2A is an individual right is incorrect as a matter of law. I can tell you that Gould and Kozinski certainly think its incorporated...

-Gene

You are right about Gould and probably the Nordyke panel (I am sure O'SCANNLAIN would be for incorporation too, something about those Oregon 9th circuit judges). Of course, there is plenty to get in the way like a) another 9th circuit panel decision getting issued before Nordyke deciding the issue against us, b) the Nordyke panel, being good judicial conservatives, could withhold ruling on incorporation and simply hold the regulation would not violate the 2nd amendment regardless of whether it was incorporated c) en banc review (you are right you get your Kozinski vote on en banc review, but after that it's the roll of the dice), d) SCOTUS.

hoffmang
04-09-2008, 12:32 AM
Nordyke gets a new panel, but it will be the first case heard in the 9th after Heller. There is some dice roll there, but non incorporation is a laughable proposition. Ask yourself this? If you were at LCAV, would you want Nordyke going to SCOTUS in less than 12 months with a fully pled incorporation of the Second Amendment argument? Cities banning gun shows is only popular in the few blue states. Justice "Grizzly Bear" Kennedy isn't voting against gun shows or incorporation...

-Gene

mymonkeyman
04-09-2008, 12:41 AM
Nordyke gets a new panel, but it will be the first case heard in the 9th after Heller. There is some dice roll there, but non incorporation is a laughable proposition. Ask yourself this? If you were at LCAV, would you want Nordyke going to SCOTUS in less than 12 months with a fully pled incorporation of the Second Amendment argument? Cities banning gun shows is only popular in the few blue states. Justice "Grizzly Bear" Kennedy isn't voting against gun shows or incorporation...

-Gene

How are you sure that Nordyke will be the first 2A case heard in the 9th after Heller? Especially if the other case is an appeal of a grant or denial of a preliminary injunction. Even if Nordyke is the first argued, what is the guarantee that it will be the first issued decision? I understand the Ninth Circuit has some systems for intra-circuit judicial consistency (they aren't very good), but I am not sure whether it's based on time of argument, time of filing, or what.

When it comes to laughable propositions, non-incorporation is 100x less laughable than the "collective rights" (a contradiction in terms) theory that has been prevalent in courts for the last several decades. You are right about Mr. Frontiersman Kennedy, but even if he gets time off from fighting off hostile Indians and Grizzly bears, he's one vote. Heller will probably be 5-4, so every conservative justice matters when it comes to incorporation.

And if i was in LCAV I'd kill myself (not with a gun of course, I'd probably play with a plastic bag and suffocate or something).

Pvt. Cowboy
04-09-2008, 1:07 AM
I'm not a lawyer, but I like to read a lot. No signals I've picked up in the Heller orals compared with previous SCOTUS decisions in US vs. Stewart (where Solicitor General Clement first appeared), Gonzales v. Raich, and US v. Lopez lead me to believe that SCOTUS is going to do anything but screw us.

Maybe we'll get a 5-4 decision claiming that there is an individual right to own firearms separate from the 'militia', but they'll also say that Federal, state, local, and city governments have broad rights to regulate firearms. Probably even your condominium association has rights that supersede your right to own a popgun.

I admit that I'm a cynic, but some people have been getting to me lately in saying that whatever comes from this decision will end up being worse than letting things remain the way they were before the Parker lawsuit.

On the other hand, I've heard someone make a convincing argument that Clement's worst fears will be realized and the National Firearms Registry must be reopened to post-May '86 NFA.

Maybe we'll end up with acknowledgment of individual gun rights on the Swiss model with strict 'regulation' just like the 2nd Amendment says, as the highest court sees it ... Or maybe they'll just dodge the whole mess and send the case back down the ladder to the DC Circuit Court with instructions to find that Heller has no standing like the rest of the Parker plaintiffs.

Whatever happens, happens. In the meantime, I'm hoarding ammo and parts for the guns I will be losing in an unfortunate canoe accident in the middle of Lake Tahoe if the Heller case goes poorly for us.

Ford8N
04-09-2008, 5:28 AM
However, equal protection is going to be the Achilles heel of much of the lunatic gun laws in this state...

-Gene

This has always been my problem with this states gun laws. If you are in some sage brush field near Primm NV and you step across an invisible line, you are a FELON, step back your a saint. Either we a US citizens or something else.

AngelDecoys
04-09-2008, 7:16 AM
.... binding precedent in the 2nd Circuit that the 3rd Amendment is incorporated. -Gene

Last I looked, precedent from other circuits doesn't apply to the nation as a whole. Not likely, but if another circuit decides something different with regards to quartering national guard units, this suddenly is not so Ďincorporatedí. The buck stopped on Truman's desk. The final decision falls on SCOTUS.

But if Heller does go our way and they strike down DC's ban and declare the 2nd to be an individual right, wouldn't that force the Kalifornia courts to have to interpret it as such?

I'm in large part generalizing much of this.
Yes, and No. Part of this will depend on what 'type' of right the 2nd is determined to be. And what level of regulation is permissible. Remember itís a two tier system. Feds have certain limited powers (supposedly), and the rest is left to the states. Bill of Rights restricts federal power, NOT state power. At least thatís the initial design until the 14th Amendment. As the Golden state doesnít have a 2nd amendment, itís effectively been treated as a privilege, not a right. In large part, RKBA in CA makes the most headway though federal court, (not state court) for this reason.

This is why Silveria (AW ban), and other such cases in CA get started and argued through the federal system instead of the CA state courts.

Gene has postulated great things coming our way. A dramatic shift in policy, overturning of CA laws, clouds parting, and Heston reappearing rifle in hand. (Joke). On a serious note, Gene has argued that a good Heller decision will nullify Silveria as that case rests on the collectivist argument. Part of me hopes Gene is correct on everything. Part of me wonders if he is praying, reading tea leaves, and being overly optimistic. ;)

hoffmang
04-09-2008, 12:22 PM
How are you sure that Nordyke will be the first 2A case heard in the 9th after Heller?

There are not a lot of 2A cases that escape the notice of the network of firearms lawyers. There certainly are a bunch of Felon in Possession cases that we all can ignore as even an incorporated right is going to give way to FIP cases.

-Gene

mymonkeyman
04-09-2008, 12:32 PM
There are not a lot of 2A cases that escape the notice of the network of firearms lawyers. There certainly are a bunch of Felon in Possession cases that we all can ignore as even an incorporated right is going to give way to FIP cases.

-Gene

The problem is that any duddly doo-right defense attorney appealing an FIP can raise the issue. If such a case gets decided first, the court could either decide to answer the incorporation question first "to determine the scope of the right," or put off the incorporation question and say whether or not the right is incorporated, FIP does not fall within the right.

tango-52
04-09-2008, 12:33 PM
1. California has no Right to Keep and Bear Arms in its State Constitution. As such the legislature has been free to pass laws that would not survive a state constitutional challenge in the first place.
-Gene

Keeping that in mind and under the CA Constitution, Article 3, Section 1:

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

would a SCOTUS ruling for personal right in the 2A pretty much automatically make California RKBA? Just wondering if it's going to be that easy a case to make.

mymonkeyman
04-09-2008, 12:34 PM
Last I looked, precedent from other circuits doesn't apply to the nation as a whole. Not likely, but if another circuit decides something different with regards to quartering national guard units, this suddenly is not so Ďincorporatedí. The buck stopped on Truman's desk. The final decision falls on SCOTUS.



I'm in large part generalizing much of this.
Yes, and No. Part of this will depend on what 'type' of right the 2nd is determined to be. And what level of regulation is permissible. Remember itís a two tier system. Feds have certain limited powers (supposedly), and the rest is left to the states. Bill of Rights restricts federal power, NOT state power. At least thatís the initial design until the 14th Amendment. As the Golden state doesnít have a 2nd amendment, itís effectively been treated as a privilege, not a right. In large part, RKBA in CA makes the most headway though federal court, (not state court) for this reason.

This is why Silveria (AW ban), and other such cases in CA get started and argued through the federal system instead of the CA state courts.

Gene has postulated great things coming our way. A dramatic shift in policy, overturning of CA laws, clouds parting, and Heston reappearing rifle in hand. (Joke). On a serious note, Gene has argued that a good Heller decision will nullify Silveria as that case rests on the collectivist argument. Part of me hopes Gene is correct on everything. Part of me wonders if he is praying, reading tea leaves, and being overly optimistic. ;)

Umm CA courts apply federal law too. Silveria went up in the federal courts, Kasler went up in the state courts. Not that the arguments were identical in those cases, but there were substantially overlapping federal constitutional claims.

Sgt Raven
04-09-2008, 1:13 PM
Keeping that in mind and under the CA Constitution, Article 3, Section 1:

SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

would a SCOTUS ruling for personal right in the 2A pretty much automatically make California RKBA? Just wondering if it's going to be that easy a case to make.


As a layman, I'd like to here Gene's and other's thoughts on this.

hoffmang
04-09-2008, 2:34 PM
I don't think either state or federal courts will put much stock in the CA Article 3, Section 1 claim but I will say that litigants will make it as one of the claims to support incorporation. I think the Heller opinion is going to say all the right words that lead to incorporation of the 2A against the states under pre-existing incorporation doctrine.

-Gene

Shotgun Man
04-09-2008, 7:04 PM
The problem is that any duddly doo-right defense attorney appealing an FIP can raise the issue. If such a case gets decided first, the court could either decide to answer the incorporation question first "to determine the scope of the right," or put off the incorporation question and say whether or not the right is incorporated, FIP does not fall within the right.


Monkeyman, I thought you graduated law school.

Why would any court put off determining incorporation in a 2A challenge to an FIP law? It is the threshold issue to be decided.

Before the court decides whether it violates the 2A for a state to prohibit felons from possessing guns, the court has to decide if the 2A applies to states.

That would be like a court deciding in a breach-of-contract case, "Well, I am not going to reach the issue of whether an actual contract was entered into. Regardless of such, I find the plaintiff breached the contract."

Are you awaiting your bar results?

mymonkeyman
04-09-2008, 7:18 PM
Monkeyman, I thought you graduated law school.

Why would any court put off determining incorporation in a 2A challenge to an FIP law? It is the threshold issue to be decided.

Before the court decides whether it violates the 2A for a state to prohibit felons from possessing guns, the court has to decide if the 2A applies to individuals.

Are you awaiting your bar results?

I'm still in law school, and I realize that you are supposed to define the scope of the right as a threshold question. However, that doesn't mean that judges actually do that. I've seen plenty of cases where courts simply say "whether or not x" where x is a threshold issue, "y couldn't be the case under any plausible answer to x, so we won't answer x." SCOTUS has even approved of that in some cases (i.e. subject matter jurisdiction is a threshold issue, but a court can dismiss on forum non-convenis before answering the other question). SCOTUS also did it in dealing with for example AEDPA and the right to retroactivity of habeas relief for watershed cases. SCOTUS simply held that the particular right at issue was not watershed and punted on the "threshold" issue of whether there was a constitutional entitlement to retroactive habeas relief in spite of AEDPA.

It's even a more common thing in district courts that frequently punt on more difficult issues of the scope of existence of the right to answer the question of whether or not the putative right would preclude application of the statute at issue.

Whether or not it's the right thing to do, it happens all the time.

AngelDecoys
04-09-2008, 7:34 PM
Umm CA courts apply federal law too. Silveria went up in the federal courts, Kasler went up in the state courts. Not that the arguments were identical in those cases, but there were substantially overlapping federal constitutional claims.

Thanks for the clarification. I've never been to law school, (opting for a background in the sciences instead). My wife teaches legal history so I get enough to fill my cup. Honestly, I'd go, but really who needs 4 degrees :) Just have read law when time permits for about 15 years. I get a lot of the basics right, but invariably I still get some of it wrong.

ETA - Much of my take on this comes from very long discussions with a buddy of mine who clerked with Kennedy in the 90's. Needless to say, my buddy also does not see incorporation as a snap, or something quickly resolved.

Shotgun Man
04-09-2008, 7:34 PM
I'm still in law school, and I realize that you are supposed to define the scope of the right as a threshold question. However, that doesn't mean that judges actually do that. I've seen plenty of cases where courts simply say "whether or not x" where x is a threshold issue, "y couldn't be the case under any plausible answer to x, so we won't answer x." SCOTUS has even approved of that in some cases (i.e. subject matter jurisdiction is a threshold issue, but a court can dismiss on forum non-convenis before answering the other question). SCOTUS also did it in dealing with for example AEDPA and the right to retroactivity of habeas relief for watershed cases. SCOTUS simply held that the particular right at issue was not watershed and punted on the "threshold" issue of whether there was a constitutional entitlement to retroactive habeas relief in spite of AEDPA.

It's even a more common thing in district courts that frequently punt on more difficult issues of the scope of existence of the right to answer the question of whether or not the putative right would preclude application of the statute at issue.

Whether or not it's the right thing to do, it happens all the time.

Your phraseology is a little confusing.

In deciding incorporation, a court would not be determining the "scope of the right" so much as it would be deciding whether the 2A applies to the states.

After that is decided, the scope of the right-- e.g., whether the 2A confers upon a a felon the right to possess a gun-- is determined.

hoffmang
04-09-2008, 7:47 PM
Your phraseology is a little confusing.

In deciding incorporation, a court would not be determining the "scope of the right" so much as it would be deciding whether the 2A applies to the states.

After that is decided, the scope of the right-- e.g., whether the 2A confers upon a a felon the right to possess a gun-- is determined.

Ah, but Mymonkey is making the quite valid point that on a FIP it would not be at all out of the question for a Federal District court to say, "incorporation is hard, but even if it were incorporated, Felons have always been barrable so we rule today that your 2A challenge fails." Threshold question skipping happens all too often.

-Gene

mymonkeyman
04-09-2008, 7:55 PM
Your phraseology is a little confusing.

In deciding incorporation, a court would not be determining the "scope of the right" so much as it would be deciding whether the 2A applies to the states.

After that is decided, the scope of the right-- e.g., whether the 2A confers upon a a felon the right to possess a gun-- is determined.

I guess you could characterize either as a scope of the right, incorporation is deciding the scope of the state actor. I use language "the scope of the right" because that is the typical language used in the discussion of whether it is appropriate / necessary to go to the threshold question of the "scope of the right" before determining a substantive answer under the right. My point is, no matter what label you use, courts frequently dodge any putatively threshold issue with great frequency, even if they are not supposed to do so.