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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-15-2009, 2:47 PM
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Default Oral Arguments in landmark Nordyke v. King case - 100+ cal-gunners in attendance.



FOR IMMEDIATE RELEASE: 1/15/2009 3:21 p.m. PST

PRESS CONFERENCE: 6:30 p.m. 1/15/2009
Hotel Whitcomb, 1231 Market St., San Francisco
Contact: for attorneys or Nordykes:
Tel.: Cally or David: 408-264-8489
January 15, 2009 Email: info@dklawoffice.com

SAN FRANCISCO - After hearing attorneys from both sides argue their cases today in the landmark case, Nordyke v. King, the U.S. 9th Circuit Court of Appeals has an historic task before it in answering the civil rights question of whether individual civil rights enshrined in the Second Amendment to keep and bear arms must be recognized by states and not just the federal government. The case also addresses free speech and equal protection rights of gun show owners.
It started nearly a decade ago in 1999, when the Alameda County Board of Supervisors passed a gun-ban ordinance with the intent to eliminate gun shows from Alameda County. After being forced to cancel scheduled shows, T&S Gun Shows, owned and operated by Russell and Sally Nordyke, they along with civil rights activists, gun collectors and enthusiasts filed suit, claiming the county was unconstitutionally violating their civil rights guaranteed under the U.S. Constitution.
“The larger impact of this case is to ensure that the Bill of Rights, including rights under the Second Amendment, applies to everyone,” Donald Kilmer, lead attorney for the plaintiffs, said. He said the County’s intent always has been to stifle a gun enthusiasts forum and a type of speech that those specific elected officials disagreed with. “The county concedes that my clients have always operated their shows in compliance with state and federal laws, and that there has never been any gun-related violence at one of their shows,” Kilmer said.

# # #

TIME LINE OF NORDYKE v. KING

1999

• After the Alameda County supervisors instructed the county attorney to devise an ordinance to ban gun shows, supervisors later passed an ordinance making it illegal to possess firearms on county property. The ordinance also forbid the presence of firearms at gun shows, effectively banning gun shows at the fairgrounds.
• Russell and Sally Nordyke, Operators of T&S Gun Shows, contacted attorney Donald Kilmer after the county cancelled their shows because of the ordinance. Together, with a group of gun collectors and enthusiasts, they filed suit in federal court against King and the other supervisors challenging the ordinance on the grounds it violated the First and Second Amendments of the U.S. Constitution and was preempted by state law already regulating firearms.

2000
• The trial court upheld the County ordinance. The Nordykes appealed, and the appellate court sent the preemption issue to the California Supreme Court.

2002
• On appeal, the California Supreme Court found the ordinance was not preempted by state law - effectively sending the case back to the federal courts for the First and Second Amendment arguments.

2003
• The federal Appellate court refused to hear the Second Amendment argument because previous law in this circuit held the right to keep and bear arms was not an individual right. (THIS DECISION IS NOW ON APPEAL)
• The Federal Appellate Court denied the First Amendment claims but left open the possibility for an “as applied” challenge, so the case went back to the trial court for further argument.

2007
• The federal trial Judge, using the rational relationship test, denied the Nordyke’s First Amendment Free Speech claims based on the finding that the ordinance was not specifically targeted at speech. (THIS DECISION IS NOW ON APPEAL)

2008
• In District of Columbia v. Heller, the U.S. Supreme Court for the first time defines the meaning of the Second Amendment and held that it is, indeed, an individual right.
• Since the District of Columbia is a federal enclave. The Court left undecided if this individual right also is incorporated to the states through the 14th Amendment, which would overrule the previous 9th Circuit case law used in the 2003 decision stating that the right to keep and bear arms is not an individual right. (PARTIES ASK THAT THIS BE DETERMINED)
ISSUES CURRENTLY BEFORE THE COURT

Before the court are four issues. The first applies to general individual civil rights of every individual; the other three apply to this case and to gun show owners:



I. Does the Second Amendment to the Constitution of the United States guarantee individual civil rights that must be honored by the states?

II. If so, does the Alameda County Ordinance unconstitutionally violate the Nordyke’s Second Amendment rights?

III. Does the Alameda County Ordinance unconstitutionally violate the Nordyke’s constitutionally protected right to freedom of speech/expression by banning guns from gun shows - effectively eliminating that form of public forum?

IV. Does the Alameda County Ordinance violate constitutional equal protection rights when it allows other groups to have firearms, but not gun shows?

THE NORDYKES

T&S Gun Shows
Plaintiffs Russell and Sally Nordyke may be contacted via their web site: www.tsgunshows.com

ABOUT THE ATTORNEYS

Don E.J. Kilmer, Jr., Lead Attorney for Plaintiff/Appellants
Donald Kilmer is an active family law and civil rights lawyer based in the Willow Glen district of San Jose, California, and is an adjunct professor of constitutional law at Lincoln Law School of San Jose.
As a civil rights lawyer he has represented local bay area citizens in cases involving self-defense and police misconduct. Donald Kilmer attended San Jose State University and Lincoln University - The Law School. Donald is the author of the amicus brief for the U.S. Supreme Court’s District of Columbia v. Heller arguments on behalf of Shelly Parker, an African American woman seeking to protect herself from death threats of drug dealers. He is associated with many civil rights groups, including the Golden State Second Amendment Council and the Madison Society.


Don B. Kates, Co-Counsel for Plaintiff/Appellants
Don Kates is a retired professor and noted scholar of constitutional and criminal law, and a criminologist associated with the Pacific Research Institute in San Francisco, California.
As a civil liberties lawyer he has represented gun owners challenging the constitutionality of certain firearms laws. Don B. Kates, Jr., attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler. Thereafter, he focused on civil rights and police misconduct litigation for the federal War on Poverty program.
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Last edited by artherd; 01-15-2009 at 2:57 PM..
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Old 01-15-2009, 3:20 PM
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Should the issues go our way it's like a dream come true. Incorporation can change a whole lot of onerous gun laws in the state of California. It can't come soon enough, and I'm looking forward to the courts finalizing its decision.
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Old 01-15-2009, 4:11 PM
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Wish you guys were here at the dinner, we're all getting wasted
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Old 01-15-2009, 4:18 PM
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Bastards....


No time to update the rest of us who couldn't go. We need our fixes... like every minute.... I hate waiting.
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Old 01-15-2009, 5:42 PM
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Yes, the main room filled up quickly with us, pretty much right when the door opened.

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Wish you guys were here at the dinner, we're all getting wasted
Looked like it would have been a lot of fun. I got 1 drink right when it opened, but had to leave soon after. It was good to meet a lot of you.

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Old 01-15-2009, 4:32 PM
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I wish I could have made it up there today. Hopefully things go our way.
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Old 01-15-2009, 4:50 PM
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100+ Calgunners, super.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick
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Old 01-15-2009, 5:15 PM
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Originally Posted by Can'thavenuthingood View Post
100+ Calgunners, super.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick
It was hard to tell. The court room was full and at least 45-50 of us folks had to go into the overflow courtroom where we saw the proceedure unfold via live video feed. No one was wearing name tags nor were there any protesters either!

Hunter

PS I believe Calgunners do qualify as citizens!
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Old 01-15-2009, 6:33 PM
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Originally Posted by Can'thavenuthingood View Post
100+ Calgunners, super.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick
I sat next to Mark Towber of Golden State Second Amendment Council of Santa Clara County.

/Cap
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Old 01-15-2009, 8:32 PM
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Originally Posted by Can'thavenuthingood View Post
100+ Calgunners, super.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick
Yes, there was at least one non-calguns guy from the glocktalk forum. I'd bet there were others.
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Old 01-15-2009, 8:44 PM
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http://www.ca9.uscourts.gov/media/

case 07-15763
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Old 01-15-2009, 8:57 PM
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This is the first time I have ever set foot inside a courtroom and I'm an Engineer by training so take what I'm about to say w/ a large boulder of salt.

My feeling watching and listening to the back and forth is that the Alameda Law will fall - our side made a very convincing case that the Law is being unfairly targets a class of citizen, the law is being unfairly applied, and that the country overstepped their bounds.

However, I didn't get the feeling that the court was very gung-ho about taking on incorporation of the 2nd. They asked our side repeatedly how this law violates the plaintiff's RKBA and I didn't feel like the judges bought it. Though they did pepper the other side about RKBA (including how they thought the ruling might go if this case were being tried in DC).

But keep in mind that these arguments are but a small portion of the entire case. There are reams and reams of documents which may be more or less convincing than what I saw today.

3-12 months now
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Old 01-17-2009, 1:00 AM
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Wow, awesome listen. I think I might have gained a couple of IQ points listening to that
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Old 01-17-2009, 5:47 PM
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Quote:
Originally Posted by Can'thavenuthingood View Post
100+ Calgunners, super.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick
I was there.
I was not a calgunner (yet) but heard about the case via my account on Glocktalk. I also saw mention of it (I believe) on AR15.com.
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Old 01-17-2009, 7:42 PM
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I was there.
I was not a calgunner (yet) but heard about the case via my account on Glocktalk. I also saw mention of it (I believe) on AR15.com.
Welcome and stick around. You sat in on a potentially historical case, not only for CA, but for the nation.
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Old 01-18-2009, 7:04 AM
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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
Quote:
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:
Quote:
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:
Quote:
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:
Quote:
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.
Quote:
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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Old 01-15-2009, 5:10 PM
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I've got my fingers crossed for a ruling in our favor.

Any idea on when a decision will be made? How long does the 9th Cir. usually take?
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Old 01-15-2009, 5:30 PM
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How well did the proceedings go? Any general feeling?
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Old 01-15-2009, 8:59 PM
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you can use this link to download for use at a later time, like on a music player and such
http://www.ca9.uscourts.gov/datastor...5/07-15763.wma

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Old 01-15-2009, 5:38 PM
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Quote:
PS I believe Calgunners do qualify as citizens!
Yes, that is qualifying as a 'Super Citizen'

And no protesters? Seems an oddity.

Vick
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Old 01-15-2009, 6:24 PM
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How did the oral arguments go? What did the opposition argue? What were the attendees take away?
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Old 01-15-2009, 7:26 PM
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Any news?? cmon guys, throw us a bone!
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Old 01-15-2009, 7:28 PM
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Any news?? cmon guys, throw us a bone!
They're eating dinner first.
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Old 01-15-2009, 7:42 PM
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Was the NRA there?? How about the CRPA??
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Old 01-15-2009, 8:54 PM
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Was the NRA there?? How about the CRPA??
CRPA Executive Director John Fields was there, with his lovely girlfriend.

Frank
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Old 01-15-2009, 9:18 PM
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Quote:
Originally Posted by Zebra View Post
CRPA Executive Director John Fields was there, with his lovely girlfriend.

Frank
John's girlfriends name is Frank?
;-)

Well, I am mostly a member of thehighroad.us and armedpolitesociety.com

So I count as another forum member, finally got to meet Lonnie Wilson who I knew of from thr.org and always admired.

The main Judge asking questions didn't seem to like the anti's lawyer
much, I'm no legal beagle but the argument seemed to be "you can have a gun show as long as there are no guns there"

And the anti lawyer also said a complete ban is constitutional under Heller ( at least I think he said that, it was only 20 minutes or so for each side and they were talking fast )

I thought I knew my legal mumbo jumbo pretty good but oral arguments are a whole other creature.

Overall, I think we win incorporation.

The dinner and small talk and speeches were great, I feel like I should feel after Church, energized and God on my side, except it was the fellowship of oppressed gun owners and freedom advocates.

I bet if you mixed alcohol and anti's and strong opinions, riots would break out.
Our side is genuine it its concern for the underdog and oppressed.
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Old 01-15-2009, 9:35 PM
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Close! It was Remi (sp?).

Frank
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John's girlfriends name is Frank?
;-)
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Old 01-16-2009, 3:41 PM
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Close! It was Remi (sp?).

Frank
Rima, She was Iranian.
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Old 01-15-2009, 9:38 PM
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Justice Scanlon's opening remark, before Don Kilmer started, suggested the justices were very interested in the incorporation issue.

I scribbled notes most of the way; I read the Justices' questions as pretty favorable. Both Kates and Kilmer were pretty comfortable at the panel after dinner that incorporation was likely.

Don Kilmer also said he expects the decision in about 3 months; it might be a bit earlier, but he'd be surprised if it were much longer.

So, end of March to mid-April for this step.

Caution: this is still going to be a long process. Panel reminded us that post-Civil War, after 13th amendment and associated legislative actions, states still tried to ignore the changes. We can expect no less in this century.
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Old 01-15-2009, 7:42 PM
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I've been waiting all day! Eat that dinner quick.
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Old 01-15-2009, 9:41 PM
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Wish I could have been there!

The best part of the recording: when the second council gets a hearty laugh from the audience at the suggestion that a gun show might reasonably have no guns for the participants to view.

Great mental imagery...
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Old 01-15-2009, 9:48 PM
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It was awesome. I have never been in a courtroom before and this was amazing. I am so happy to belong to this organization and to all of the friends that I have made. So Far.

- G
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Old 01-15-2009, 10:11 PM
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this was awsome. I had soo much fun. I believe there were antis in the overflow court room, think but not sure. They gave me a funny look when I was talking bout my ak pistol to some other calgunners. Was uncomfortable in the suit though. Would have been more comfortable in jeans and a t-shirt but it was all worth it.
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Old 01-15-2009, 10:13 PM
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this was awsome. I had soo much fun. I believe there were antis in the overflow court room, think but not sure. They gave me a funny look when I was talking bout my ak pistol to some other calgunners. Was uncomfortable in the suit though. Would have been more comfortable in jeans and a t-shirt but it was all worth it.
at least you had your hat
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Old 01-15-2009, 10:04 PM
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That was awesome Great seeing you all !
"how do you have a gunshow without guns ?"
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Old 01-15-2009, 10:13 PM
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That was awesome Great seeing you all !
"how do you have a gunshow without guns ?"
Hah, Alameda's guy wanted them sold in the parking lot!!
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Old 01-15-2009, 10:14 PM
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Hah, Alameda's guy wanted them sold in the parking lot!!
LOL or the sidewalk
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Old 01-15-2009, 10:17 PM
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LOL or the sidewalk
That was classic!
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Old 01-15-2009, 10:45 PM
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LOL or the sidewalk
Meaning they're ok with open carry?
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Old 01-15-2009, 10:45 PM
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Hah, Alameda's guy wanted them sold in the parking lot!!
Hell. Let them be sold everywhere!
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