Nordyke: Request for Rehearing and Rehearing En Banc

[Lex Arma]

Originally Posted by Chicago

Judges seem to think that they can hijack the constitution's meaning by using ersatz synonyms for constitutional lexicon. So I was truly quite pleased to see, in his 23-MAY-11 Nordyke filing, Mr. Kilmer's effort to juxtapose the word 'infringed' with softer alternatives which, had they been used by the framers, would give the court more room to breathe. Seeing no such legitimate breathing room hence hoping that the effort continues, I wrote only to suggest that grammatical purists will be distracted by some readily remedied imprecision ... rather like telling a friend that his zipper is down before he goes back out in public.

With respect to "... the verb clause 'undue burden' ..."
- Clauses are either independent or dependent (aka subordinate)
There is no such thing as a 'verb clause'
- Clauses, by definition, have verbs
'Undue burden' has no verb, hence is not any kind of clause
- 'Undo burden' is a phrase
It consists of an adjective (undue) modifying a noun (burden)
It refers to a person, place, or thing
It is a noun phrase
With respect to "... the verb 'infringed' ..."
- Often in English a past participle looks like a past-tense verb
My right has been infringed ('infringed' is a past participle)
He infringed my right ('infringed' is a past-tense verb)
- Sometimes it does not
The apple has been eaten ('eaten' is a past participle)
He ate the apple ('ate' is a past-tense verb)
- A past participle is a verbal but not a verb
It functions, always, as an adjective
As used in the second amendment, it is a predicate adjective

I didn't write the rules, but I do know them.

Also, and with all due respect, ... The most recent Nordyke opinion referred to 'undo burden' only in the context of abortion rights. For the most part, the court found its breathing room by using 'substantially burdened' where the framers preferred 'infringed'. Not quite as egregious, but egregious nonetheless.

Beyond that; I'm pleased to concede the 'top bunk' to Mr. Kilmer, with gratitude, as he's more than earned it.

Peace

We'll have to agree to disagree. But I appreciate and respect your criticism.

[curtisfong]

I apologize for nitpicking. I am also glad Mr. Kilmer is addressing the plain language of the constitution. I didn't mean to imply in the least that I didn't think it was a worthy argument; quite the contrary, I am extremely pleased. I will let FGG take care of the whinging

[Smokeybehr]

Originally Posted by Lex Arma

Finally a valid criticism! But you forgot the missing article on page 13, the missing possessive 's on page 13 (Texas = Texas's) and the misspelled word on page 17.

And in case you hadn't noticed, I was kinda busy the 3rd week of May and even though my four (4) proof readers also missed these mistakes, I take full responsibility for the brief AND its mistakes.

FIRE 'EM! I'll take a job as a proofreader. I've been a well-known internet grammar/spelling Nazi for a LONG time.

[Grakken]

Thanks Lex for being on our side.

[Lex Arma]

Originally Posted by curtisfong

I apologize for nitpicking. I am also glad Mr. Kilmer is addressing the plain language of the constitution. I didn't mean to imply in the least that I didn't think it was a worthy argument; quite the contrary, I am extremely pleased. I will let FGG take care of the whinging

No apology necessary, I seem to recall a rather famous feud among our Founding Fathers about whether 'unalienable' or 'inalienable' was the correct usage in a rather famous document. Without the delusions of grandeur that this observation implies, I thinks there is always room for good natured criticism of grammar.

[Purple K]

It's been more than 100 days. Justice delayed is Justice denied. Heavy sigh....

[hoffmang]

Originally Posted by Purple K

It's been more than 100 days. Justice delayed is Justice denied. Heavy sigh....

Real battles don't happen quickly. Just ask Mr. Lincoln.

-Gene

[Crom]

I think we are waiting on Alameda to file a reply brief.

[Lex Arma]

Nope. Alameda filed a response. We filed a reply. Waiting on the court.

[Maestro Pistolero]

The court is obviously aware of the sea change that's underway. They neither want to lead the way, nor be seen as obstructing the SCOTUS. It's a tough spot to be in if you aren't willing to accept the amendment at face value.

[nicki]

Until I read this thread, I didn't really get the significance of "shall not be infringed" versus "undue burden".

When Alan Gura said that the "Heller case" was the lawyer's full employment act, I didn't realize how true his words are.

IMHO, the second amendment was probably meant to be far more expansive than we have gotten so far from "Heller and MacDonald".

Of course we have been focusing on our RKBA, there has been little if any discussion our our DKBA(Duty to keep and bear arms).

Of course "Militia duty" was probably less popular then "Jury duty" which would probably explain why it kind of faded away.

We need to keep in mind that while we are going on "offense in the court of law", we will need to also start winning in the court of public opinion.

Fortunately we have some "Forward thinking individuals" on this board who are blindsiding the enemy.

Nicki

[Maestro Pistolero]

The Second Amendment has the convenient yet largely unheeded feature of having it's own level of scrutiny written directly into it's text.

The fact that there is any debate about scrutiny at all reminds of the joke where an employee, who had been warned repeatedly about his tardiness found himself once again late for work and unable to find a parking spot.

He began to pray: "God, please, just this once, let there be a spot open up near the front door. Please God, please!"

Miraculously just as he nears the entrance he sees that the first parking spot near the front door is empty and he says: "Oh, never mind, God, I found one."

The 'scrutiny' for the Second Amendment has been hiding in plain sight for more than 200 years.

[kcbrown]

Originally Posted by Maestro Pistolero

The Second Amendment has the convenient yet largely unheeded feature of having it's own level of scrutiny written directly into it's text.

Even SCOTUS seems to recognize that:

Originally Posted by Heller Decision

The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

(bolded emphasis mine)

However, I can't help but expect that the bolded wording above was just "for show", and that SCOTUS didn't really mean it. For if they did, then any law which is considered to infringe the right would be Unconstitutional on its face, and no amount of justification (which is what "scrutiny" really is) would save it. And I simply don't see SCOTUS having that strong a spine.

[HowardW56]

Originally Posted by kcbrown

Even SCOTUS seems to recognize that:


Originally Posted by Heller Decision The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
(bolded emphasis mine)

However, I can't help but expect that the bolded wording above was just "for show", and that SCOTUS didn't really mean it. For if they did, then any law which is considered to infringe the right would be Unconstitutional on its face, and no amount of justification (which is what "scrutiny" really is) would save it. And I simply don't see SCOTUS having that strong a spine.

I am troubled by that paragraph... If the Justices truly believed that, how could they slice and dice the Fourth Amendment as much as they have...

[Maestro Pistolero]

I am troubled by that paragraph... If the Justices truly believed that, how could they slice and dice the Fourth Amendment as much as they have...

Supreme court nominations are the number one reason why presidential elections matter far beyond whatever damage they can do during their term.

[Rossi357]

Didn't Ezell rule that the "you can't do it here, because you can do it there" is still a burden?

[Maestro Pistolero]

Originally Posted by Rossi357

Didn't Ezell rule that the "you can't do it here, because you can do it there" is still a burden?

It was even better than that. They didn't use the undue burden test at all. It wasn't a mere peripheral infringement, in their opinion, so that test wasn't appropriate. It was more like: You can't ban ranges here, just because they don't ban them there, period. When near the core of the right, cases don't get decided on rational basis tests.

[Rossi357]

It seems to me that buying a gun is very close to the core right. It's pretty hard to exercise your 2A right without a weapon.
The idea that you can buy a gun at a gun store, so gun shows are banned is toast.

[notme92069]

I'm saving it to read on my flight tomorrow. I actually wish it was longer to keep me amused during the flight

[mag360]

after ezell and mcdonald, I can't believe that CA can keep SB23 on the books. THAT is infringed/undue burden/not equally applied 2nd amendment to the states...etc.

[Librarian]

Originally Posted by mag360

after ezell and mcdonald, I can't believe that CA can keep SB23 on the books. THAT is infringed/undue burden/not equally applied 2nd amendment to the states...etc.

But it will take a Federal court suit to make it go away.

All in good time ...

[rero360]

Originally Posted by hoffmang

Real battles don't happen quickly. Just ask Mr. Lincoln.

-Gene

They do when you own the airspace, and have superior firepower

[CHS]

Originally Posted by mag360

after ezell and mcdonald, I can't believe that CA can keep SB23 on the books. THAT is infringed/undue burden/not equally applied 2nd amendment to the states...etc.

That's why SB23 is being challenged in the courts

[Crom]

Don, Thanks. I was a little out of date... I looked at the docket and I see that Alameda filed a response on the July 12th and the court allowed a reply brief in support of the motion on the 18th. So if I understand correctly, we are waiting on the court to rule on the motion for the En Banc hearing.

Fingers are crossed.

[spdtiger]

so once this is done we are going to challenge the ca handgun roster list, it seems that the list would be an easy slam dunk compared to this

[stix213]

Originally Posted by spdtiger

so once this is done we are going to challenge the ca handgun roster list, it seems that the list would be an easy slam dunk compared to this

Already started on that one

http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid

[Monte]

According to the CGF Twitter feed, Nordyke v. King is going en-banc, again.
http://www.hoffmang.com/firearms/Nor...2011-11-28.pdf

[Edit: Brandon/Wildhawker's post: http://www.calguns.net/calgunforum/s....php?t=505242]

[Window_Seat]

The three-judge panel
opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Interesting, but (as a DQ), this is always the case when it goes en banc, yeah?

Erik.