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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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  #121  
Old 01-17-2009, 9:45 AM
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I just listened to the mp3 (thanks Gene... ^$@! WMA).

My take is a bit different from what I've heard here, but IANAL of course. It sounds to me like the 1st amendment claim is weak, and the Alameda lawyer did present a defense against the equal protection claim.

I wish the point had been made that other rights are not interpreted nearly so narrowly as Alameda wishes to interpret the 2nd amendment... though I'm sure the judges know it. Alameda's argument that Fresno must remain binding sounded vaguely convincing.
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  #122  
Old 01-17-2009, 9:52 AM
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MP3
-Gene
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  #123  
Old 01-17-2009, 10:16 AM
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I've only encoded a few MP3s though technically I delegated most of those to the_quark....

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  #124  
Old 01-17-2009, 12:44 PM
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Pardon my ignorance but what exactly would this mean for california gun laws?

Thanks

Jerry
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  #125  
Old 01-17-2009, 1:41 PM
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Pardon my ignorance but what exactly would this mean for california gun laws?
Evisceration.
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  #126  
Old 01-17-2009, 3:18 PM
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I am not afraid to tell folks that my understanding of legal matters is about 2 millimeters deep.

That said, I listened to the panel discussions after dinner and felt that the best way to summarize all of the potential paths was a flow chart. What happens if it goes back to trial, what happens if it goes before an en banc hearing (sp?) etc. Of course, such a chart might quickly become unusably complicated.

I have new respect for the depth of game an adept legal practitioner must possess.
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  #127  
Old 01-17-2009, 5:47 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 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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  #128  
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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  #129  
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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  #130  
Old 01-18-2009, 3:00 PM
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I'm going out on a limb here with a prediction that the 9th Circuit will "pass the buck" to SCOTUS. I don't think they will have the testicular fortitude to perform a 14th Amendment analysis to overturn Cruikshank or Presser. That would certainly result in a delay while the State appeals to SCOTUS and risks having the high court chastise the 9th yet again.

Even if they did, passing the buck delays incorporation considerably. Plaintiffs can ask for an en banc hearing on the argument or appeal to SCOTUS. In either case, it's at least a year's delay, allowing the new liberal administration time to replace any SCOTUS justices leaving the court. Since this isn't a cause de jour with the left, the court will waste little effort to break precedent - no where near as much effort as something like finding a "right" for gays to marry or the "right" of a 14 year old girl to have a risky medical procedure without her parents' knowledge.
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  #131  
Old 01-18-2009, 3:01 PM
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This had better go our way. I can't see them saying that the states don't have to mind the federal constitution. In that case, no right would be safe. I can't see the fed gov letting that happen. At least I hope not.
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  #132  
Old 01-18-2009, 3:44 PM
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I'm going out on a limb here with a prediction that the 9th Circuit will "pass the buck" to SCOTUS.
I don't think you've read this three judge panel's previous rulings in this case. They are all here.

This panel will incorporate. En-banc will be interesting.

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  #133  
Old 01-18-2009, 4:06 PM
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I also seem to recall this same panel saying Cruikshank and Presser were train wrecks, if I recall correctly.
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  #134  
Old 01-18-2009, 4:18 PM
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On behalf of myself, Don Kates and my clients:

Thank you to the following institutions: Calguns, Madison Society, Golden State Second Amendment Council, Second Amendment Foundation, California Rifle and Pistol Association, National Rifle Association.

Individual thanks to:

Professor Eugene Volokh, Chuck Michel, Stephen Halbrook, Alan Gura, David Kopel, Amici, and Amici Counsel (Vanessa & Tracy), Gene Hoffman, Brett Thomas, David Speakman, Phillip Rose, Cally Van Drielen, and my wife (Christina) and the rest of my family for putting up with my time commitment to this case.

Regardless of the outcome of this case, remember that in the final analysis, rights in a Republic are protected by the people themselves. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.

Thank you all for your support. Keep educating your neighbors and friends about the legacy of freedom that founded this nation and remind them what it takes to keep it free.
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  #135  
Old 01-18-2009, 4:38 PM
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Default Written transcript

Is there a written transcript of the oral arguments available?
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  #136  
Old 01-18-2009, 6:49 PM
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Originally Posted by Lex Arma View Post
Individual thanks to:

...and my wife (Christina) and the rest of my family for putting up with my time commitment to this case.
And thank your family on behalf of us all...we know it cost them personally as well. Let them know how much we appreciate them giving you up for this case.

Quote:
Regardless of the outcome of this case, remember that in the final analysis, rights in a Republic are protected by the people themselves. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.
During the after-hours session your personal passion made it clear why you had worked on an apparently hopeless case for ten years pro bono. I hope it feels as good as it should now that you found yourself in the right place at the right time. Aside from any of the practical considerations, I hope that Nordyke turns out to be where incorporation happens because you, personally deserve the achievement. We didn't hear as much about that but I'm sure the Nordykes themselves have paid a price and deserve to have the case named after them as well.

Good luck to you and to the Nordykes personally, as well as to all of us.

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  #137  
Old 01-19-2009, 9:19 AM
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Does anyone have the group photos that were taken in front of the courthouse?
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  #138  
Old 01-19-2009, 1:45 PM
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I got a couple pictures of outside the courthouse that day.

I would like to also thank Ben for the great informational talk on the way to the court house.
Jerry
Attached Images
File Type: jpg Ileaving.jpg (94.1 KB, 80 views)
File Type: jpg IMAG0008.jpg (96.0 KB, 76 views)
File Type: jpg IMAG0009.jpg (90.6 KB, 351 views)
File Type: jpg IMAG0006.jpg (93.8 KB, 70 views)

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  #139  
Old 01-19-2009, 2:04 PM
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I don't think you've read this three judge panel's previous rulings in this case. They are all here.

-Gene

The Nordyke decision link isn't working on the Wiki.
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  #140  
Old 01-19-2009, 2:14 PM
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The Nordyke decision link isn't working on the Wiki.
Works for me?

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  #141  
Old 01-19-2009, 5:52 PM
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Works for me?

-Gene
This one: http://www.courtinfo.ca.gov/opinions...ve/S091549.PDF

One of the 9th opinions from Findlaw
http://caselaw.lp.findlaw.com/data2/...h/9917551p.pdf

CAL version also thru Findlaw Nordyke v. King (2002) 27 Cal.4th 875 , 118 Cal.Rptr.2d 761; 44 P.3d 133 (but Findlaw doesn't like the P.3d)
http://login.findlaw.com/scripts/cal...th/27/875.html

Same with the Silveira link - http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement fails today.

Available thru Findlaw
http://caselaw.lp.findlaw.com/data2/...h/0115098p.pdf
but have to register there to get it, I think.

Moved, probably.
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  #142  
Old 01-19-2009, 6:45 PM
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One of the 9th opinions from Findlaw
http://caselaw.lp.findlaw.com/data2/...h/9917551p.pdf
Thanks! I had not re-read the decision before the orals. I feel much better re-reading that decision's footnotes.
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  #143  
Old 01-19-2009, 6:53 PM
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The 9th Circuit changed their website for the better but it breaks all their old published decision links. I updated the previous ruling but need to update the others...

-Gene
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  #144  
Old 01-19-2009, 11:08 PM
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Originally Posted by Lex Arma View Post
Regardless of the outcome of this case, remember that in the final analysis, rights in a Republic are protected by the people themselves. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.

Thank you all for your support. Keep educating your neighbors and friends about the legacy of freedom that founded this nation and remind them what it takes to keep it free.

Thank you for all that you have done. Inspirational words that should be heard by all.
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  #145  
Old 01-19-2009, 11:39 PM
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I just got back to Bakersfield from my trip to the Nordyke case.

Multiple equipment failings and several hundred dollars later, I am in town and intact!

I am tired tonight but rest assured, I will contribute my thoughts tomorrow.
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The Second Amendment now applies to state and local governments. Our lawsuit is a reminder to state and local bureaucrats that we have a Bill of Rights in this country, not a Bill of Needs
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  #146  
Old 01-20-2009, 9:20 AM
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I've got pics up from the event and dinner.
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Old 01-20-2009, 10:57 AM
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So if Nordyke wins out, does Don get to sue Alameda for all his attorney's fees and expenses + %???
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Old 01-20-2009, 11:15 AM
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Could someone please give me a brief rundown on what this actually means to us in CA. I've tried reading numerous threads as well as all the posts in this thread and I can't seem to find where the Nordyke case correlates to Incorporation, or furthermore, what is implied by the term incorporation.

TIA
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Old 01-20-2009, 11:45 AM
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Right now the 2nd amendment only applies to the federal government, per Heller. In order for th 2nd to apply to the states, it would need to be incorporated.

http://en.wikipedia.org/wiki/Incorpo...ill_of_Rights))

If Nordyke incorporates the 2nd against the states, then any state gun laws would need to comply with the the 2nd, which currently they don't have to.
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Old 01-20-2009, 11:57 AM
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Originally Posted by ptoguy2002 View Post
So if Nordyke wins out, does Don get to sue Alameda for all his attorney's fees and expenses + %???
Don should be able to recover attorney's fees and expenses in most outcomes that are positive.

-Gene
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Old 01-20-2009, 12:01 PM
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Originally Posted by hoffmang View Post
Don should be able to recover attorney's fees and expenses in most outcomes that are positive.

-Gene
That sounds expensive
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Old 01-20-2009, 12:08 PM
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That sounds expensive
Yes. And it will be one more reason why cities and counties are going to back down as we push our cases through the courts. Times are hard. They don't have the cash to be tilting at windmills.
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Old 01-20-2009, 12:16 PM
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Quote:
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Don should be able to recover attorney's fees and expenses in most outcomes that are positive.

-Gene
I hope he doesn't take a check without calling the bank first.
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Old 01-20-2009, 1:08 PM
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Quote:
Originally Posted by Davidwhitewolf View Post
It is kind of interesting you post pictures of your face followed by pictures of you violating federal law by taking pictures in the courthouse.
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Quote:
Originally Posted by Alan Gura
The Second Amendment now applies to state and local governments. Our lawsuit is a reminder to state and local bureaucrats that we have a Bill of Rights in this country, not a Bill of Needs
Quote:
Originally Posted by hoffmang View Post
12050[CCW] licenses will be shall issue soon.

-Gene
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Ignorance of the law is no excuse……..except for police.
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  #155  
Old 01-20-2009, 1:10 PM
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Quote:
Originally Posted by E Pluribus Unum View Post
It is kind of interesting you post pictures of your face followed by pictures of you violating federal law by taking pictures in the courthouse.
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Soon it will be clearly immoral to routinely violate the bill of rights like the California courts so enjoy today.

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  #156  
Old 01-20-2009, 1:27 PM
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Quote:
Originally Posted by sorensen440 View Post
That sounds expensive
As I recall, I think Alan Gura's payday was in the low millions after Heller.
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Old 01-20-2009, 3:30 PM
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Quote:
Originally Posted by sierratangofoxtrotunion View Post
As I recall, I think Alan Gura's payday was in the low millions after Heller.
That's not yet done but that was the price tag...

-Gene
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  #158  
Old 01-20-2009, 4:14 PM
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Quote:
Originally Posted by bulgron View Post
Yes. And it will be one more reason why cities and counties are going to back down as we push our cases through the courts. Times are hard. They don't have the cash to be tilting at windmills.
I seriously doubt that, it's the tax payer that will foot the bill. There is no skin off the Brady puppets, they pull the strings in Sacramento and keep on getting re-elected. Remember, it's for the children in the ghetto!
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Old 01-20-2009, 7:22 PM
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I just listened to the oral argument recording. The Court seemed interested in reaching the incorporation issue. I believe it was Justice O'Scanlin who pointed out the Supreme Court's very thorough discussion of the common law on the right to bear arms in Heller. Even if the Ninth Circuit rules against incorporation, I think the Supreme Court will incorporate Heller to the states if the Nordyke case were to go there.
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Old 01-20-2009, 10:33 PM
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Quote:
Originally Posted by Alphahookups View Post
Could someone please give me a brief rundown on what this actually means to us in CA. I've tried reading numerous threads as well as all the posts in this thread and I can't seem to find where the Nordyke case correlates to Incorporation, or furthermore, what is implied by the term incorporation.

TIA


If, after all that, you still don't understand what it means, then you probably never will.
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