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Old 01-18-2009, 7:04 AM
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BillCA BillCA is offline
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Here's my take on the Alameda arguments.

First, they rely heavily on Cruikshank and Presser. These cases, which occurred very soon after the 14th Amendment passed, are looked upon today as archaic and out of step with modern law. Yet, as precedents, they can still be relied upon. See the background on Cruickshank and Presser at the bottom of this post.

Alameda's arguments look even weaker in certain aspects if you compare different arguments made by Alameda.

First, Alameda argues "Courts do not look to underlying motives to judge constitutionality of a law" early, in discssing the 4-pronged O'Brien test regarding free speech. This was to rebutt "our" argument that the Alameda ban was enacted for "nefarious purposes". Then later, Alameda cites Judge Gould from a previous case in looking at the motive for the 2nd Amendment's adoption saying
whether the 2nd Amend is incorporated or should be incorporated against the states might depend on whether or not the 2nd Amendment was animated by a fear of federal tyranny or whether what animated the 2nd Amend and propagated its adoption was a fear that states would disarm citizen militias".
Alameda counsel can't have it both ways.

Alameda also claims, early on, that the Interest of county... is protecting public safety and curbing violence on county property is furthered (by the ordinance)...This is Alameda's reason for banning guns on the fairgrounds. Yet the county concedes that the gun shows follow strict State and Federal laws.

Further, Alameda claims that the fairgrounds property is a sensitive place because:
1. On July 4, 1998 a shooting occurred injuring 8 people
2. Dozens of others were injured in that same event.
3. Many public events take place on the fairgrounds.
4. The fairgrounds are mandated to be used for public purposes.
5. That hundreds or thousands of guns are brought to gun shows.
6. Gun shows have an attendance of about 4000 people.

In otherwords, in the last 10 years, one violent act has occurred in a public venue so the county is going to ban displays of an object that was illegally used in that event, even though prior and subsequent displays have been peaceful and lawful.

This would be tantamount to prohibiting the display of any software at the Consumer Electronics Show in Las Vegas because someone, one time, sold pirated software. Sure, you can buy the latest version of Linux or an iPod, but you're not allowed to see it actually working before you buy it.

Humor & Stupidity:
Court: Seems strange to me to say you can have a gun show without showing of guns. How does the ordinance take care of that? (Laughter & applause) How could they have shown their guns without bringing them to the grounds?

Alameda: Point taken your honor. (tersely) I do not think it could be taken, as a matter of law, that a sale could never occur without the gun being physically present there. The sale could be consummated there and perhaps the individual could view the firearm immediately off the government property. I suppose that is a possibility.
This would be like attending an automotive auction where you bid on cars with only descriptions and you can only see what you bought after you've won the bidding.

Alameda also made a specious claim when they said:
Another reason the 2nd Amendment is not even implicated here is that the Heller majority recognized that the core of the 2nd Amendment right is the right of self-defense. There is not a word in record that any plaintiff wishes to bring a firearm onto Co. property to protect his/herself.
Im sure the court knows that (a)concealed weapons permits are all but impossible to obtain in Californa and (b)loaded open carry is illegal without a permit in Alameda county. Regardless, gun shows are not about immediate self-defense. They are a venue to learn about self-defense and to allow citizens to exercise their right to obtain a firearm for lawful purposes.

Alameda stumbled in response to Judge Gould asking If individuals have a right to bear arms for self-defense, don't they necessarily have to have a corollary right to buy guns somewhere? Alameda claims that in the Heller case this isn't so because SCOTUS deemed regulations on sales were valid and thus outside the scope of the 2nd Amendment. Of course, Alameda wasn't immediately asked if a new law banning sales was passed, if that wouldn't run afoul of Heller.

Alameda further erred in arguing about possession of firearms in public places. After Judge O'Scanlon asked about the large historical background of the 2nd, Alameda replied it was to support a gun in the home for self-defense. But really screwed up when he went on to say:
And it would seem to me that a holding that the right to possess a firearm in any location one chooses, including public property, is fundamental, meaning it is necessary to a regime of ordered liberty, wouldn't seem to follow because of the development of the Common Law in this country.
Alameda overlooks that Common Law in this country continued to deny free blacks their constitutional rights for decades or longer. Many of these common laws had roots that extended back to slavery days.

And this is where the Court jumped on Alameda. The court asked if there was a D.C. type ban in California, would the 2A, under Heller, be incorporated? Alameda's answer was both enlightening and amusing.
I think the answer still would be no, Your Honor. And the primary reason for that is whether or not a right needs to be recognized in order to further the regime of ordered liberty would seem to depend on whether or not ... [stops... five seconds of silence]
A full five seconds of silence as his brain locked up.

When he gets restarted after additional questions, he falls back on whether the 2nd was created over fears that the federal government or the State governments might disarm the militias and says it was over the fear of the federal tyranny. He was still making this point when he was cut off for time.

Background on Important Court Cases

In U.S. v. Cruikshank (1875) the issue was white southerners depriving black freedmen of their rights to vote, possess arms and then killing many of them following a hotly debated election. The Cruikshank decision essentially played along with the earlier 1833 Barron v. Baltimore by saying that the Bill of Rights did not apply against the States (just what the 14th Amendment was intended to correct). Futher, the Cruikshank court held that the 14th Amendment's "Privileges and Immunities" and "Due Process" clauses applied only to State actions and not the actions of individuals.

In Presser v. Illinois (1886) the case was about Presser who participated in an assembly, march and drill of an armed militia on the public streets of Chicago. Claims that prohibitions of the activity violated the 2nd Amendment were again slapped down, supporting Cruikshank and ultimately Barron. The courts held that the 2nd Amendment only limited the federal government and the States could do what they pleased.

It is worthy to note that both these cases precede, by several decades, the concept of selective incorporation which is currently used by the Courts. It is argued that because Cruikshank and Presser pre-date the incorporation doctrine they are poor law and should be revisited using the modern analysis required of incorporation. This would likely result in overturning both decisions and make the Bill of Rights incorporation more uniform.

In Palko v. Connecticut, 302 U.S. 319 (1937) the court held that the Due Process Clause [of the 14th Amendment] only protected those rights that were "of the very essence of a scheme of ordered liberty," and that the court should therefore gradually incorporate the Bill of Rights onto the States as justicable violations arose, based on whether the infringed right met that test. The Court upheld Palko's conviction on the basis that the Double Jeopardy appeal was not "essential to a fundamental scheme of ordered liberty." The case was decided by an 8-1 vote.
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