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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
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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
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#123
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I've only encoded a few MP3s though technically I delegated most of those to the_quark....
-Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#125
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Evisceration.
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"On bended knee is no way to be free." - Eddie Vedder, "Guaranteed" "Let your gun therefore be the constant companion of your walks." -Thomas Jefferson, in a letter to his nephew Peter Carr dated August 19, 1785 |
#126
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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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"An unarmed man can only flee from evil. And evil is not overcome by fleeing from it" - Col. Jeff Cooper "Shot placement trumps all." |
#127
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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. |
#128
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Welcome and stick around. You sat in on a potentially historical case, not only for CA, but for the nation.
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It is dangerous to be right when your government is wrong. -Voltaire Good people sleep peaceably in their bed at night only because rough men stand ready to do violence on their behalf. |
#129
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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:
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:
Alameda also made a specious claim when they said: Quote:
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 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:
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. |
#130
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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. |
#131
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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
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This panel will incorporate. En-banc will be interesting. -Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#133
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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
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Thank you - all around
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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Donald Kilmer (Lex Arma) - Reason or Force. 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. Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand NONE of my posts on this website are legal advice. I get the top bunk. |
#136
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Good luck to you and to the Nordykes personally, as well as to all of us. 7x57
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What do you need guns for if you are going to send your children, seven hours a day, 180 days a year to government schools? What do you need the guns for at that point?-- R. C. Sproul, Jr. (unconfirmed) |
#138
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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 Last edited by zinfull; 01-19-2009 at 1:47 PM.. |
#139
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The Nordyke decision link isn't working on the Wiki.
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False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. -- Cesare Beccaria http://www.a-human-right.com/ |
#140
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Works for me?
-Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#141
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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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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#142
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False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. -- Cesare Beccaria http://www.a-human-right.com/ Last edited by Liberty1; 01-19-2009 at 9:19 PM.. |
#143
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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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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#144
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Thank you for all that you have done. Inspirational words that should be heard by all.
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It is dangerous to be right when your government is wrong. -Voltaire Good people sleep peaceably in their bed at night only because rough men stand ready to do violence on their behalf. |
#145
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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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#146
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Honorary Board Member, the California Gun Rights Foundation Opinions posted in this account are my own and not the approved position of any organization. Yes I'm an attorney. No, this post does not contain legal advice or opinion. |
#147
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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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WTB: SWISS & German police trade in pistols WTB: German made & proofed SIG P226R & P228R WTB: Factory cutaway pistols & rifles WTB: LAPD Ithaca M37 / CHP S&W / Other PD trade ins.... |
#148
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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 |
#149
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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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Jack Do you want an AOW or C&R SBS/SBR in CA? No posts of mine are to be construed as legal advice, which can only be given by a lawyer. |
#150
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-Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#151
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That sounds expensive
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"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson |
#152
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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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Proud to belong to the NRA Members' Council of Santa Clara County Disclaimer: All opinions are entirely my own. |
#153
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I hope he doesn't take a check without calling the bank first.
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#154
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#155
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#156
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As I recall, I think Alan Gura's payday was in the low millions after Heller.
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#157
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-Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#158
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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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#159
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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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#160
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If, after all that, you still don't understand what it means, then you probably never will. |
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