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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 11-28-2011, 4:44 PM
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Default Nordyke v. King update: 9th Circuit to Rehear En Banc (Order Nov 28 2011)

Quote:
By Howard Mintz
hmintz@mercurynews.com
Posted: 11/28/2011

A federal appeals court on Monday once again decided to weigh in on an epic 12-year-old gun rights showdown over an Alameda County ordinance banning guns and ammunition on public property.

In a brief order, the 9th U.S. Circuit Court of Appeals agreed to rehear a legal challenge to the 1999 law, which restricts gun shows on county property, including Alameda County's fairgrounds. The order, which calls for an 11-judge 9th Circuit panel to hear the case, wipes out a ruling last May by three 9th Circuit judges who unanimously agreed to uphold the legality of the ordinance.
Read more at the link. http://www.mercurynews.com/crime-courts/ci_19427867?

-Brandon

Update: Text of order (Document.pdf)

Quote:
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel
opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
Judge Rawlinson did not participate in the deliberations or vote in this case.
added date to title - who knows how many more of these threads there will be?
// Librarian
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Old 11-28-2011, 4:46 PM
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It's very much interesting, even after all these years.

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Old 11-28-2011, 4:46 PM
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so whats the over/under on when Nordyke will be done, once and for all?
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Old 11-28-2011, 4:49 PM
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Old 11-28-2011, 4:53 PM
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so whats the over/under on when Nordyke will be done, once and for all?
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Old 11-28-2011, 4:53 PM
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Seriously.. WTF???

TWO en-banc's? THREE decisions?

This is just an effort to stall Pena, isn't it???

But in all seriousness, how often do cases go en-banc multiple times? I can't imagine this is "usual business".
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Old 11-28-2011, 5:02 PM
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Does Don have his own reserved parking spot at the 9th Circuit's building yet?
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Old 11-28-2011, 5:04 PM
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Any chance they will expedite the process/decision?
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Old 11-28-2011, 5:05 PM
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Seriously.. WTF???

TWO en-banc's? THREE decisions?

This is just an effort to stall Pena, isn't it???
Seems like it. But at least things are rolling again.
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Old 11-28-2011, 5:13 PM
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May we have a brief reminder of where we're at with Nordyke? Are we getting what we wanted? Just a fifty word time line/summary or something. I suppose there will be briefs filed and oral arguments, then an indeterminate wait for a ruling? I confess I don't always keep the various pending court cases clear in my mind for more than a couple of months. Too long between rulings.

Edited To Add: Will there be a dinner and drinks after the Oral Arguments? Does this granting of an En Banc hearing indicate that the 9th Circuit thinks this is a really important case and there trying real hard to get it right, maybe avoid being slapped down by SCOTUS? Are we secretly hoping for an adverse ruling so we can ride this all the way to SCOTUS and see the 9th get slapped down?
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  #11  
Old 11-28-2011, 5:17 PM
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How many times has the 9th held argument on this case?
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Old 11-28-2011, 5:19 PM
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Originally Posted by CHS View Post
Seriously.. WTF???

TWO en-banc's? THREE decisions?

This is just an effort to stall Pena, isn't it???

But in all seriousness, how often do cases go en-banc multiple times? I can't imagine this is "usual business".
I'm inclined to say that the "usual business" of the 9th Circuit is to deny the right to keep and bear arms.

Maybe the Nordyke decision wasn't sufficiently bad for the rest of the court.
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Old 11-28-2011, 5:29 PM
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The 9th has a very interesting decision to make on 2A: track Ezell, or not.

I'm also curious to see how the en banc panel resolves the EP issues; Don's requests for rehearing surely caused a few "doh!" moments in chambers.

-Brandon
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  #14  
Old 11-28-2011, 5:36 PM
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Yep!!!!
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Old 11-28-2011, 5:38 PM
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Does Don have his own reserved parking spot at the 9th Circuit's building yet?
Ha. That was pretty funny.
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Old 11-28-2011, 5:42 PM
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Somehow I get the impression that Don's grandchildren will be litigating this case well into their old age.
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  #17  
Old 11-28-2011, 6:06 PM
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Quote:
Originally Posted by CaliforniaLiberal View Post
Edited To Add: Will there be a dinner and drinks after the Oral Arguments?
This is the event-driven, sort-of annual, NorCAL Calguns membership assembly. How could we pass this by?

I don't know if there is a current issue summary that short. See the docs linked at http://wiki.calgunsfoundation.org/in...ordyke_v._King
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Old 11-28-2011, 6:44 PM
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I like the idea of Judge Kozinski writing an opinion on this with the prospect of it being the last.
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Old 11-28-2011, 7:00 PM
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Originally Posted by Librarian View Post
This is the event-driven, sort-of annual, NorCAL Calguns membership assembly. How could we pass this by?

I don't know if there is a current issue summary that short. See the docs linked at http://wiki.calgunsfoundation.org/in...ordyke_v._King
Heck yea! I remember going to this before I went to Iraq my last time, and then going to it a year later after I got back from Iraq! Its a great event to go to and watch the process of history being made!
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Old 11-28-2011, 7:01 PM
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Once again the wheels move slowly but hopefully in the right direction.
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Old 11-28-2011, 7:08 PM
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Heck, I moved from SoCal to Oregon, but am willing to make a trip down to
SFO to watch another Nordyke event.
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Old 11-28-2011, 7:09 PM
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Heck yea! I remember going to this before I went to Iraq my last time, and then going to it a year later after I got back from Iraq! Its a great event to go to and watch the process of history being made!
Ya know, it's REALLY interesting to think of the Nordyke case from the perspective of its duration and trajectory resembling that of a long protracted war, and its other additional shared similarities with one.
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Old 11-28-2011, 7:10 PM
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Quick summary as I understand it.

Three judge panel in the 9'th give us incorporation but then uses some kind of lame rational basis (fake) scrutiny argument to uphold the ordinance.

The Nordykes are OK with taking incorporation and Alameda county is ok with upholding the ordinance but some anonymous judge in the 9'th calls for an en banc.

In the en banc, they decide to hold the case over waiting on McDonald v. Chicago.

We get nation wide incorporation in McDonald so since that settled the incorporation issue, Nordyke bounced back to the three judge panel that gave us incorporation.

That three judge panel gave us a horrible decision that I think they called intermediate scrutiny.

Don Kilmer asks for an en banc.

The 9'th grants en banc review and that is where we are at today.

Now when the en banc panel is selected, they will have a big dilemma. They are in the "reversible ninth", if they give us a bad decision and create a split between the Chicago circuit and the 9'th, that could lead to cert. and Don gets to go to SCOTUS and let the Heller five decide the case or they could just give us a good judgement striking down the ordinance but I doubt they could find nine judges that are rational enough to do that so we're probably going to SCOTUS.
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Old 11-28-2011, 7:12 PM
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Quote:
Originally Posted by CaliforniaLiberal View Post
Edited To Add: Will there be a dinner and drinks after the Oral Arguments?
Im in. Do we know when the next Oral Arguments are schedualed?
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Old 11-28-2011, 7:16 PM
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Now when the en banc panel is selected, they will have a big dilemma. They are in the "reversible ninth", if they give us a bad decision and create a split between the Chicago circuit and the 9'th, that could lead to cert. and Don gets to go to SCOTUS and let the Heller five decide the case or they could just give us a good judgement striking down the ordinance but I doubt they could find nine judges that are rational enough to do that so we're probably going to SCOTUS.
Wouldn’t a favorable Nordyke resolution from SCOTUS also have positive influence on other pending litigation?

Or do I have it backwards...
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Old 11-28-2011, 7:32 PM
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Quote:
Originally Posted by wash View Post
Quick summary as I understand it.

Three judge panel in the 9'th give us incorporation but then uses some kind of lame rational basis (fake) scrutiny argument to uphold the ordinance.

The Nordykes are OK with taking incorporation and Alameda county is ok with upholding the ordinance but some anonymous judge in the 9'th calls for an en banc.

In the en banc, they decide to hold the case over waiting on McDonald v. Chicago.

We get nation wide incorporation in McDonald so since that settled the incorporation issue, Nordyke bounced back to the three judge panel that gave us incorporation.

That three judge panel gave us a horrible decision that I think they called intermediate scrutiny.
I remember now. Lots of us CalGunners were trying to point out the possible good points in the decision. I think it was a pitiable Battered Gun Owner Syndrome sort of thing. Denial. "Hey this isn't so bad."

Quote:
Originally Posted by wash View Post
Don Kilmer asks for an en banc.

The 9'th grants en banc review and that is where we are at today.

Now when the en banc panel is selected, they will have a big dilemma. They are in the "reversible ninth", if they give us a bad decision and create a split between the Chicago circuit and the 9'th, that could lead to cert. and Don gets to go to SCOTUS and let the Heller five decide the case or they could just give us a good judgement striking down the ordinance but I doubt they could find nine judges that are rational enough to do that so we're probably going to SCOTUS.

So God Willing and the creek don't rise we could maybe be headed to SCOTUS next Fall but more likely the Fall of 2013? And a decision handed down in June 2014. Unless something really crazy happens (like it does in Nordyke) and we end up somewhere else unexpected.

Thanks for jogging my memory with your summary.
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Old 11-28-2011, 7:38 PM
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Wouldn’t a favorable Nordyke resolution from SCOTUS also have positive influence on other pending litigation?

Or do I have it backwards...

If we got our dream SCOTUS decision on Nordyke it would establish that buying and selling firearms is an inseparable part of the 2nd Amendment Right to Keep and Bear Arms. It would limit the restrictions that could be placed on firearms businesses.

I Think (a little help here please?) this might lead to the end of the CA Handgun Roster.
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Old 11-28-2011, 7:48 PM
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So, what are the odds now that the judge in Pena lifts the stay pending Nordyke?
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Old 11-28-2011, 7:52 PM
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I Think (a little help here please?) this might lead to the end of the CA Handgun Roster.
Ahh yes, Pena right?
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Old 11-28-2011, 7:56 PM
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Looking at the time line forward it might be 9 -15 months for a En Banc ruling so , Cert in 2013 and a ruling in 2014
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Old 11-28-2011, 8:11 PM
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Looking at the time line forward it might be 9 -15 months for a En Banc ruling so , Cert in 2013 and a ruling in 2014

You realize Nordyke has been in one court or another since 1999, right?

Are you feeling like June 2014 is not a reasonable amount of time to resolve this?

You have not even begun to taste the width and depth of impatience and despair you will one day feel.

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Old 11-28-2011, 8:37 PM
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I will proceed under the assumption that the Ninth Circuit is not looking to correct my spelling, my typos or my mis-labeling of any parts of grammar. (e.g., verb clause vs. adverb clause, etc..., blah, blah,...)

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Old 11-28-2011, 9:49 PM
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Thank you Don!
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We will win. We are right. We will never stop fighting.
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They don't believe it's possible, but then Alison didn't believe there'd be 350K - 400K OLLs in CA either.
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  #34  
Old 11-28-2011, 10:09 PM
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This case has three different themes. For the anti-gun side the undue burden test was going to be a real problem for many of their pet laws. For the pro-gun side, the undue burden test didn't take McDonald seriously enough and was creating a split with Ezell. For the pro-speech folks, the panel here was undermining the Seattle mime en banc speech decision. A little something for everyone.

What I can say is that it is very rare to have two en banc hearings and that that significantly increases the chances that this case ends up in the Supreme Court. It shouldn't have any impact on Peña but that's kind of moot as it is not moving anyway. It does hold up some other worse cases and undermines government arguments across the US. I expect Lane v. Holder has already had a 28J filed pointing out the government's reliance on Nordyke is no longer valid - for example.

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Old 11-28-2011, 10:19 PM
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Wow. This thing is going to qualify for retirement benefits soon. As long as it retires in our favor I'm good with that.
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Sacramento would declare martial law sooner than they'd meet with Gandhi, Gautama Budda, and Jesus Christ if the three were packing heat.
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Even people not from San Francisco can appreciate a good public spanking like this.
WANTED: G19. New or near new condition in Sacramento area.
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  #36  
Old 11-28-2011, 10:28 PM
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I actually have a good feeling about this. I don't know how much weight they'll give Ezell, but if firing ranges are close to the core of the right, it sure seems like traditional marketplaces such as fairgrounds gun shows ought to be about as close. What was the phrase . . . 'if not quite strict scrutiny'?

If you can't ban ranges here, just because you can drive over there and use them, it seems like the same principle ought to apply to acquiring firearms.
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Last edited by Maestro Pistolero; 11-28-2011 at 11:20 PM..
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Old 11-28-2011, 10:51 PM
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And the date of the hearing is....?
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Old 11-29-2011, 12:13 AM
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And the date of the hearing is....?
Deadlines for briefs and whatnot not published today, nor is a date set for oral arguments.
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Old 11-29-2011, 12:56 AM
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I thought part of the issue was that the decision was rendered so that technically the Nordykes didn't lose on the 2A issue, so that kept them from just going straight to SCOTUS in the first place?
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Old 11-29-2011, 1:22 AM
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Quote:
Originally Posted by Maestro Pistolero View Post
If you can't ban ranges here, just because you can drive over there and use them, it seems like the same principle ought to apply to acquiring firearms.
Aren't they arguing that it's ok to ban firearms in the fairgrounds because people can always buy them somewhere else??

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