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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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  #201  
Old 01-25-2009, 10:39 AM
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If not on c-span, I archived on google video to easily be found.

http://video.google.com/videoplay?do...57040470652&hl

.
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  #202  
Old 01-25-2009, 1:36 PM
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Originally Posted by Alphahookups View Post
Well hopefully that's the case, because nothing I saw based on their body language or anything else indicated they would rule one way or another.

I'm not trying to rain on anyone's parade...I want it to be incorporated more then anything...I just don't know if anything I saw in that video shows evidence that they will make a ruling either way...but again...if you are correct in their prior rulings, then maybe this will bode well for us.
You should read the prior ruling by this same 3 judge panel in this same case. See http://wiki.calgunsfoundation.org/in...ordyke_v._King for links to the earlier rulings. From that it appears that they are at least somewhat predisposed to rule for incorporation. This panel is not made up of the stereotypical far left judges that we think of as being part for the 9th circuit in spite of the fact that two of them are Democratic appointees (by Clinton and Carter).

It is fairly typical that judges have their poker face on during these proceedings. So it would be normal for them to not give an indication of which way they might rule or what position they favored. It is also fairly typical for judges in cases like this to play "devils advocate" and to question the side they were leaning toward more closely than the opposition to make sure that the direction they were leaning is on solid ground (or at least more solid than the other side).

The other side stumbled in some significant ways at several different points during this hearing to such an extent that there was one point where their lawyer had to stop to try to figure out how to get out of the corner he had talked himself into. For example, his claim that it would not be a violation of the 2nd amendment if there were a total DC style gun ban in California did not win him any points and it was clear that at least one of the judges did not buy it. Our side did not slip up in even a minor way during the hearing. When I first listened to the recordings of the hearing I had some concerns that perhaps there were some minor mistakes on our side. But after watching the cspan video I changed my mind as the body language of the judges told me that they got what was being said by our side and that they were uncomfortable with some of the things the other side said.

In the Heller case we saw a sharply divided panel where the judges on each side, to some extent, tipped their hand during the hearing. I think in that case that the divisions where clearly defined before the hearing and each side expected the other side to openly work for their position during the hearing. Heller was unusual in this regard and I was surprised by this when I listened to the recording of the hearing for the first time. In the Nordyke case I don't think the panel is as sharply divided and I think this affected the tenor of the hearing making it hard to read which way they might be leaning. Again this is how this normally works since they are supposed to be impartial and are not supposed to have or show any bias.

Also keep in mind that before they can even consider 2nd amendment questions they have to have some basis for the authority to do that consideration. As long as the 2nd amendment is not incorporated they can not even consider the 2nd amendment questions that are before the court since they would lack the authority to do so. In other words before they can even consider the merits of the 2nd amendment claims being made they have to rule in favor of incorporation otherwise all 2nd amendment questions and arguments are off the table because they are moot. The argument by the county to first decide on the merits of the 2nd amendment claim before considering incorporation is contrary to the way these things work. The court simply does not have the authority to do that. This was clearly a ploy to try to derail an incorporation analysis by the panel. There were indications from the panel that there was at least some skepticism of his argument.

I also think that the case for incorporation is a strong one and one of the few things that could keep this court from ruling for incorporation is that they might find that they are bound by Fresno and friends. Assuming that the court does rule for incorporation I think the 2nd amendment argument is not nearly as strong and this is why the county wanted the court to consider it before it considered incorporation. It is possible that we could get incorporation but that the Nordyke's could loose on the 2nd amendment part of the case. If this happens we still have incorporation and the county could not appeal the incorporation part of the ruling since at that point they no longer have standing on the 2nd amendment issues since they won that part of the case. For example, the Nordyke's could loose the 2nd amendment part of this even with incorporation but still prevail on either the 1st amendment or due process claim and the county would not be able to appeal the incorporation ruling since it had no impact on the final result although they could still appeal the parts they lost on.
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  #203  
Old 01-25-2009, 1:42 PM
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Originally Posted by Alphahookups View Post
Well hopefully that's the case, because nothing I saw based on their body language or anything else indicated they would rule one way or another.

I'm not trying to rain on anyone's parade...I want it to be incorporated more then anything...I just don't know if anything I saw in that video shows evidence that they will make a ruling either way...but again...if you are correct in their prior rulings, then maybe this will bode well for us.
I posed the same question to the powers that be. My question was, "What do you think is the biggest indication that the court might incorporate?"

His response was this (paraphrased):

This case was already dead. This three judge panel had already ruled against us because of previous precedent they were bound to follow. In their ruling against us, they said that they were bound by previous precedent but did not agree with it. After the Heller decision, this three-judge panel exercised a right seldom invoked and pulled this case out of the trash to re-hear it. They did this of their own accord. My only conclusion is the reason they took it upon themselves to re-hear this case is that in light of Heller, they are now free to rule the way they wanted to rule to begin with.
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  #204  
Old 01-25-2009, 1:51 PM
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Saw the tail end on CSPAN yesterday. CSPAN said in was available to watch on the CSPAN website.
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  #205  
Old 01-25-2009, 2:16 PM
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A calgunner has posted it on Google Video:
http://video.google.com/videoplay?do...57040470652&hl

-Gene
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  #206  
Old 01-25-2009, 2:22 PM
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Originally Posted by hoffmang View Post
A calgunner has posted it on Google Video:
http://video.google.com/videoplay?do...57040470652&hl

-Gene
It's on C-Span too.

Gene, is that your head in the first shot from inside the courtroom?
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  #207  
Old 01-25-2009, 3:42 PM
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Originally Posted by E Pluribus Unum View Post
I posed the same question to the powers that be. My question was, "What do you think is the biggest indication that the court might incorporate?"

His response was this (paraphrased):

This case was already dead. This three judge panel had already ruled against us because of previous precedent they were bound to follow. In their ruling against us, they said that they were bound by previous precedent but did not agree with it. After the Heller decision, this three-judge panel exercised a right seldom invoked and pulled this case out of the trash to re-hear it. They did this of their own accord. My only conclusion is the reason they took it upon themselves to re-hear this case is that in light of Heller, they are now free to rule the way they wanted to rule to begin with.
Wow, that's unreal. Thanks for sharing.
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  #208  
Old 01-25-2009, 3:55 PM
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Thanks for all the responses to my questions...its starting to make sense now...especially if the three judge panel pulled the case out of the pile in light of the new findings in Heller.
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  #209  
Old 01-25-2009, 4:05 PM
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Originally Posted by DedEye View Post
It's on C-Span too.

Gene, is that your head in the first shot from inside the courtroom?
No, that's my head at the beginning and end of the video

Gene is on the other side (the right side of the courtroom facing the judges).
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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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  #210  
Old 01-25-2009, 4:06 PM
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No, that's my head at the beginning and end of the video

Gene is on the other side (the right side of the courtroom facing the judges).
Were you sitting next to Liberty1? I saw him at the end of the ideo too.
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  #211  
Old 01-25-2009, 4:10 PM
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Were you sitting next to Liberty1? I saw him at the end of the ideo too.
I'm in the grey suit with blue shirt collar on the very end of the aisle.
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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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  #212  
Old 01-26-2009, 2:13 AM
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Default Transcript of Nordyke Oral Argument Part 1 of 5

There apparently isn't any other transcript of the Nordyke vs King oral argument so I made one. I think it helps a little when analyzing what was said. It also makes it searchable.

This is a transcript of the Windows Media audio file from the 9th circuit court's web site at http://www.ca9.uscourts.gov/datastor...5/07-15763.wma
The audio file is 6492127 Bytes long and has an md5sum of
6c3c0918c617259bc290c02d0b25ce00

I'm also going to attach a file in "Transcriber" format. Transcriber is a handy Free program to make creating transcripts easier. While it's mainly for creating transcripts, you might want to use it for reading the transcript as well because it has the nice feature that you can click on the text of the transcript and it will jump to the corresponding section of the audio file. Calguns.net only takes text attachments so remove the txt extension from the trs file before use.

Transcriber can't handle wma files so convert it to something like wav or mp3 first. SoundConverter did this easily under Ubuntu. Gene Hoffman has a 40MByte mp3 version here
http://www.hoffmang.com/firearms/Nor...2009-01-15.mp3
Make the name of the sound file the same as the name of the trs file but with wav or mp3 instead of trs.

Calguns.net only allows 10kByte messages so I'll put this in five parts. I'll attach the trs file to the first post and I'll attach the whole transcript text file to the last post. I don't think you can copyright a transcript, but in case anyone might be a little worried about reposting this, I hereby release any copyright interest I might have in this transcript to the public domain.

Without further ado:


Donald Kilmer: May it please the court, my name is Donald Kilmer and I represent the appellants in this matter. Seated at council table with me is Donald B. Kates and several of the plaintiffs. Specifically Sally Nordyke and Virgil McVicker in the audience as well your honor.

Judge Diarmuid F. O'Scannlain: Very well.

Kilmer: Your honor before I begin my prepared remarks I'd like to place before the court an important contextual reference point. California is one of only a handful of states that has no right to keep and bear arms in its state constitution. That means that whatever protection the citizens of the state of California have with respect to a right to keep and bear arms will come only from the federal bill of rights. In other words the decision of this court may well set both the maximum and minimum scope of the right to keep and bear arms at least with respect to California.

O'Scannlain: I'm not sure how that will impact your incorporation argument, but I certainly understand what you're saying.

Kilmer: Yes your honor. I have prepared remarks but I'm also prepared to have the court ask questions or I can begin with prepared remarks.

O'Scannlain: Oh I'm sure we'll have questions council just go ahead with your presentation.

Kilmer: Thank you your honor. I'm here today to ask the court to reverse the decision of the trial court and find the Alameda ordinance in question unconstitutional, as applied to the facts of this case, on any one of the following theories; either the first Amendment under Texas vs. Johnson, under the Second Amendment based on the recent Supreme Court case under Heller, also under a 14th Amendment equal protection analysis your honor. We're not here to challenge any federal or state laws. We've been almost shrill in our declarations about our compliance with federal and state law in this case, and the county has conceeded that the gun shows comply with all state and federal laws with regard to the possession of firearms and with regard to the sale of firearms.

O'Scannlain: Well now with respect to your First Amendment claim, we're talking about the summary judgment now which

Kilmer: We are your honor.

O'Scannlain: ruled against you on that. The threshold question of course is whether the O'Brien test applies or not. What is you contention on that?

Kilmer: Your honor if the O'Brien test does apply then this case really hinges on the first and fourth prong of the O'Brien test. Which would be, number one, whether or not the county is engaged in permissible regulation at all, and number four, whether or not that regulation exceeds the ability of the county to address the evil that it wants to address. Which is why we argued in the trial court that the proper case to apply here is Texas vs Johnson.

O'Scannlain: But you're not saying are you, which would implicate O'Brien that this ordinance which is a gun possession prohibition on county property, you're not saying that that is aimed at first amendment free speech rights are you?

Kilmer: Not on its face it's not your honor. But what we, the court may recall that we were before this court once before in a facial challenge and then we went back to the trial court to conduct discovery and then proceed with an as applied challenge. Our position would be that as applied, this ordinance ends up banning gun shows and therefore banning the speech associated with gun shows which is a fact that the county has already conceded and which the trial court found that possession of a gun at a gun show is likely to convey a message and likely to be understood by the people of the intended audience. Once we met that threshold, our position is that the case had to be analyzed under Texas vs Johnson and the strict scrutiny that flowed from that.

O'Scannlain: But I thought O'Brien required that there be some indication that the challenged legislation must be aimed at speech. There's nothing in the ordinance that is aimed at the right to bear arms or any activity other than possession on county property, isn't that right?

Kilmer: Well your honor the county specifically regulates expression with guns when it went into the business of for instance finding an exception for possession of guns for motion pictures, theatrical productions, and television events. So the county is conceding even within its own ordinance that expression with a gun can take place by possessing the gun.

O'Scannlain: All right with respect to that exception, exception number four, "possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or EVENT". I was struck by the word "event". Would you qualify, perhaps under exception number four as an event a gun show, so long as you met the requirements that the guns be secured and that sort of thing?

Kilmer: Well your honor I would respond to that in several ways. Number one, the county has never interpreted that exception to apply to the gun shows. In correspondence with county council's office before and during the initial stages of this lawsuit, I specifically requested an interpretation of the ordinance by county council. Would we fall under an exception, would we be able to continue to have gun shows. Unfortunately the county never responded to my letters. But they did write letters to the county fairgrounds manager and explained to him that the ordinance meant that no guns could be displayed at a gun show. So under the county's interpretation of the ordinance and I believe in the joint statement of undisputed facts, it's conceded by the county the county council is the correct body to interpret this the ordinance. They made a finding that we couldn't have guns at a gun show.

Judge Arthur L. Alarcón: To follow up on Judge O'Scannlain's question, didn't the county or didn't the fairgrounds ask what kind of plan you would have to use the facility?

Kilmer: Yes your honor we responded with a letter saying that number one we wern't, we saw no requirement in either our contract or in the ordinance to submit a plan. However we did say that we were prepared to comply with all state and federal laws. And it's important to note that the gun show enforcement act of 2000 specifically contains a provision for possesion of guns at gun shows as long as they're secured. And the county has conceeded all along that we have complied with the gun show enforcement act of 2000. We have always had our guns secured at these gun shows. If the county wants to now, eight years later, make an argument trying to moot the case, I uh I don't have a response to that. The problem is that the ordinance has always been interpreted to exclude guns at gun shows, therefore making gun shows, I believe in the language of the California Supreme Court "virtually impossible".

O'Scannlain: Do you want to say anything about the equal protection claim that's also implicated in the summary judgment?

Kilmer: Yes your honor. Under the equal protection argument we have is that even if the case has to be analyzed under the lesser or deferential standard of O'Brien, we are still talking about First Amendment activity. And at that point in time, once we're still talking about expressive conduct, the county still cannot engage in an unequal application of the law. In this case it wasn't discovered until after we went back to the trial court, that the Scottish Games were allowed to take place at the fair grounds. And they were allowed to bring firearms onto the fairgrounds for their expressive activities. Which included I believe, mock battles and recreation of historical battles. So, under an equal protection analysis, what has happened is the county has set up classes of citizens basically who can possess firearms at the fairgrounds. The Scottish Games and gun shows. And they've excluded gun shows when there's no rational basis for doing that.

O'Scannlain: But there's no express exclusion of gun shows. There is an express exception for an event like the Scottish Games.

Kilmer: Yes your honor and we have always maintained that at least with respect to the facts of this case, that if this ordinance had contained an exception for gun shows, we wouldn't be here.
Attached Files
File Type: txt Nordyke.trs.txt (39.9 KB, 11 views)

Last edited by MindBuilder; 01-27-2009 at 7:26 PM.. Reason: Added copyright disclaimer
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  #213  
Old 01-26-2009, 2:18 AM
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Default Transcript of Nordyke Oral Argument Part 2 of 5

O'Scannlain: Well you might want to get into your incorporation analysis then. This may be the first case since Heller which has to resolve the question as to whether the Second Amendment rights are incorporated against the states under the Fourteenth Amendment.

Kilmer: Well your honor our position is that basically footnote 23 of the Heller decision could be almost construed as an engraved invitation to address the issue. I believe the Heller court basically said that with respect to the Cruikshank's continuing validity on incorporation that the court noted that Cruikshank also had said that the First Amendment didn't apply. But I think it's important to understand the historical context. Cruikshank, Presser, and Miller vs Texas, were all cases that dealt with whether or not the Second Amendment applied to the states before there was an incorporation issue. And what those courts said was that a privilege and immunities clause wasn't applicable. And of course modern incorporation arose during the 1930's under the due process clause of the Fourteenth amendment. And our position is that under Duncan vs Louisiana that the right to keep and bear arms is one of those fundamental rights necessary to American justice.

O'Scannlain: Well now footnote 23 literally says "With respect to Cruikshank's continuing validity on incorporation, a question not presented in this case, we note that" so and so. So Heller does not deal with incorporation.

Kilmer: It doesn't deal with incorporation your honor, mostly because the case arose in the District of Colombia which is a federal

O'Scannlain: Right:

Kilmer: enclave

O'Scanlain: Right.

Kilmer: and so it wasn't presented on the facts. But it did say that the uh footnote went on to say that, the first, it noted that Cruikshank also did not apply the First Amendment against the states and "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. What we're asking this court to do today is to engage in that Fourteenth Amendment inquiry under Duncan vs Louisiana. And to see what

Alarcón: How can we do that in light of our three judge panel decision in the Fresno case which cited Duncan?

Kilmer: It did cite Duncan your honor.

Alarcón: And Duncan was a due process case.

Kilmer: I would agree your honor. But the

Alarcón: Aren't we bound by that case?

Kilmer: No you're not. Because uh we cited in our briefs that a three judge panel is entitled to revisit another three judge panel if a superior court, the US Supreme Court in this instance, has severely undermined the rationale of that case. And we believe that Heller has severely undermined the rationale of

Alarcón: By saying it didn't reach the issue of incorporation, they've undermined it?

Kilmer: No I, what I believe is that this, what has to happen is that this court has to engage in an analysis similar to what the Supreme Court did, in order to find out whether or not the prior three judge panel's decision can be overturned. In the Fresno case there's a basically a toss off line, a one or two line mention about Duncan vs Louisiana. And what that court said was that they found that only total incorporation of the bill of rights has been continually rejected by the Supreme Court of the United States. We're not asking today for total incorporation. We're simply asking this court today to engage in the Fourteenth Amendment analysis required under Duncan vs Louisiana. And it's clear from the Fresno decision that that court didn't engage in that kind of analysis and therefore the case law in the Ninth Circuit about three judge panels visiting other three judge panels decisions, means that you can now use the reasoning of Heller to take a fresh look at what the court did in Fresno.

O'Scannlain: So you're arguing that Fresno didn't do the due process selective incorporation analysis that we now do in modern interpretation of incorporation issues?

Kilmer: Not only did it not do the due process incorporation analysis, the case was almost totally about a privileges and immunities analysis. The case, the court in Fresno primarily took a look at Cruikshank, Presser, and Miller vs Texas.

Ronald M. Gould: And Mr. Kilmer, Judge Gould with a question. On the incorporation issue, would you say that Heller, that Heller itself, at least in dicta, said that the selective incorporation doctrine under PALCO, under the PALCO case, is the right test to decide whether or not there's incorporation?

Kilmer: I would agree with that your honor. In fact it may be the only test because the United States Supreme Court has not overruled the Slaughterhouse cases so we cannot at this point in time pursue a privileges and immunities analysis. Although I believe there are several amicus briefs that were filed that encourage that kind of analysis.

Gould: Ok then if you look at our Miller v Gammie decision, can we say that Fresno is clearly irreconcilable with Heller if it's irreconcilable with dictum in Heller when Heller didn't reach the question?

Kilmer: Yes your honor. I believe that Heller permits this court to take a completely fresh look at the issues that were addressed in Fresno.

O'Scannlain: Well, council, even if we were to be persuaded that there is incorporation, you still have to get to the merits. What is it that brings you within Heller in terms of the conduct here? We're not talking about a prohibition of guns in the home. We're not talking about the use of a gun for self-defense. We're talking about the mere possession of guns on county property. And it occurs to me that there is even a recognition in Heller that that kind of ordinance is valid. Justice Scalia says "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" Why isn't this within the government building exclusion under Heller?

Kilmer: I have several responses to that your honor. Number one the sensitive places doctrine obviously precedes the ordinance. But also the county doesn't define, and has not acted like the fairgrounds are a sensitive place with respect to the possession of guns. They have let the Scottish Games take place there since they passed the ordinance. So it's not possession of guns that makes the county fairgrounds a sensitive place and we also have California statutory law I believe penal code section 171b that specifically exempts government buildings where gun shows take place. I believe the citation is in our brief. Also the sensitive place doctrine that's set forth in Heller talked about schools. We don't have schools here. And we certainly don't have felons or illegal sales of firearms taking place.

O'Scannlain: Well I thought this ordinance was

Gould: Mr Kilmer, Judge Gould

O'Scannlain: Oh excuse me go ahead judge.

Gould: Well what I was going to ask, it's in the same line as Judge O'Scannlain's question but a slight different issue. That is, given that amendment was not permitted, should we now make a decision whether this is a reasonable regulation of firearms? Assuming there's incorporation. Assuming, the question is is it reasonable? Should we be making that decision or should we just tell the district court you should be allowed to amend your complaint in the light of Heller, and then let matters proceed in the district court on a motion to dismiss or motion for summary judgment, so that we are reviewing a district court opinion on the issue rather than taking a first shot at it?

Kilmer: I believe both parties addressed that issue in their briefs your honor. And I believe that one of the things that we agree on is that this court has enough information now having the ordinance in front of them and sufficient facts that were developed on the, for the first amendment causes of action, to decide the Second Amendment issue. But as a purely procedural matter under the rules of, under the federal rules of civil procedure, the Second Amendment cause of action is only here on a denial of a motion to amend. In which case if the court finds that that order was wrongly entered and wants to send us back to say now go engage in your pleadings contest and come back to us on a motion to dismiss, I suppose that is a procedurally proper basis. But I believe both sides have conceded that the court can [unintelligible] decide that case now.

Gould: And would you plead anything different in the light of Heller than the complaint that you tendered earlier?

Kilmer: I'm not sure I understand the question your honor. You'd earlier asked whether we should engage

Gould: In your earlier motion for leave to amend you had a Second Amendment claim that was not permitted. My question is, if you were now permitted to amend in the light of what the Supreme Court said in Heller, would you plead anything differently?

Kilmer: No. I would not. I believe that the ordinance is probably facially invalid and it is invalid also as applied to our gun shows.

O'Scannlain: Council you're down to about one minute. Do you want to reserve?

Kilmer: I'll reserve that minute your honor.

O'Scannlain: You may reserve. All right. We'll hear from the county.

Last edited by MindBuilder; 01-26-2009 at 2:27 AM..
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Old 01-26-2009, 2:22 AM
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Default Transcript of Nordyke Oral Argument Part 3 of 5

Peter Pierce: Good afternoon, may it please the court.

O'Scannlain: Would you identify yourself for the record please.

Pierce: Yes your honor, I'm Peter Pierce. And I

O'Scannlain: Pierce?

Pierce: represent the respondent of the appellee county of Alameda. With respect to the First Amendment issue the court has raised the question of whether or not the standard in Texas vs Johnson applies. It does not apply here because the county's interest in regulating the possesion of firearms on its own property is not related to the suppresion of free expression. The Texas vs Johnson case was a flag burning [noise] the court will recall. And in that particular case, the interest asserted by the state of Texas, protecting public safety, was implicated only when the act of expression was occurring, the burning of the flag. Contrast that with what is going on here. The county's interest in protecting public safety and in curbing violence on its own property is furthered regardless of the message that the plaintiffs may be trying to convey when they possess firearms on county property. And so the interest of the government here is not directly related to the suppression of free expression. Which means the O'Brien analysis that the district court properly used.

O'Scannlain: I suppose their argument is it's incidental. It may not be expressly set out, but the impact, the effect, is to chill their First Amendment rights.

Pierce: Well the O'Brien court recognized that when speech and non speech elements are involved in the same course of conduct, which is what is going on here, we use the less restricted four prong O'Brien analysis. And my opposing council has argued that prongs one and four are not met here. The first prong is whether or not the county has the constitutional authority to adopt this type of regulation. The only argument that the plaintiffs have asserted that it does not in their brief is that it was adopted for a nefarious purpose or motive. I think as this court knows, courts do not look to the underlying motive of the regulation to determine its constitutional validity. Mr Kilmer also challenged on First Amendment grounds under the O'Brien test the fourth prong, which is whether or not the regulation leaves open ample alternative channels of communication. And I note for the court that in the third amended complaint which was the operative pleading in this case, there were sixteen reasons why the plaintiffs said they wanted to put on their gun show on county owned property. Fifteen of those sixteen reasons are not even implicated by the prohibition on firearms. It was only arguably that the sale of firearms, one of sixteen reasons the plaintiffs said they wanted to conduct gun shows, was implicated. So that would seem to tell us that the plaintiffs can conduct their gun shows for the purposes they've asserted in their third amended complaint, with this ordinance in place.

O'Scannlain: Now is that with respect to exemption number four? Would that fit within four as an event? Except for the sale, would the rest of the demonstration and the showing fit within that exemption?

Pierce: If the plaintiffs wanted to conduct a gun show that fit withing the exception they could. And that is why they were requested by the general manager of the county fairgrounds to submit a written plan. To show the county, the general manager of the county fairgrounds, that they could conduct their event under the terms of the exception. Now the exception requires that only authorized participants in the event possess the firearm. And when the firearm is not within their immediate possession, that it be secured to prevent unauthorized use. If the plaintiffs could conduct their gun show under those terms, they would be allowed to use it on county property. Unfortunately, we never found out from the plaintiffs whether or not they could do so because they didn't submit a written plan.

O'Scannlain: But I assume from your earlier remark that in any event no sales would be permitted under this ordinance. Is that what you're saying?

Pierce: No your honor that is not the case at all. The ordinance prohibits only the possession of firearms. It has been the county's position all along that plaintiffs would be free to engage in the sale of firearms. But the plaintiffs responded by saying that's impossible, you can't sell a firearm without having the firearm present on the county fairgrounds. So it was the plaintiffs that made that determination. But the ordinance on its face does not prohibit the sale of firearms. Turning to the equal

Alarcón: Seems strange to me that, to say that you can have a gun show without showing of guns.

Audience: [Laughter]

Alarcón: How did the ordinance take care of that? How could they have shown their guns without bringing them to the campground?

Pierce: Point taken your honor. But I do not think that it can be assumed 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 an individual could view the firearm immediately off the government property. I suppose that is a possibility. That's my response to the question.

Alarcón: All right.

Pierce: With respect to the equal protection claim, there has been no unequal application of this ordinance as between the plaintiffs and the Scottish Games. If the plaintiffs could hold an event that falls within the exception to the ordinance, they would be alowed to have that event. The Scottish Games holds an event that falls within the exception to the ordinance. Furthermore, the Scottish Games and plaintiffs are not similarly situated. The Scottish Games holds an event where only authorized participants in the event can possess a firearm. And the firearm must be within the immediate possession of the authorized participant. When it is not, it must be secured. Plaintiffs have not furnished a written plan as to how they would go about falling under that exception. But if they wanted to, if they wished to conduct a gun show, they could under that exception. It also bears noting that the Scottish Games could not conduct the type of gun show that plaintiffs apparently want to conduct, where all of these hundreds and thousands of firearms are brought on to county property. The Scottish Games could not conduct that type of gun show. Unless the court has any questions with respect to the First Amendment and equal protection issue, I will move on to the Second Amendment.

O'Scannlain: You may proceed councilor.

Pierce: Thank you your honor. Before the court reaches the incorporation question, it seems appropriate to ask whether a Second Amendment right is even implicated on the record before this court. We know after Heller that there is a Second Amendment right to possess a weapon for self-defense in the home. We also know after Heller that the Second Amendment right is not unlimited. We know that it does not allow an individual to possess a firearm for confrontation in any place, in any manner that individual chooses, or for any reason. And we also know that there are a category of regulations that fall outside the scope of the Second Amendment. The sensitive places label that the Heller court, the moniker that the Heller court established.

O'Scannlain: Your opposing council specifically refered to the sensitive places passage. What's your response?

Pierce: Your honor, our response is that the county fairgrounds is a sensitive place, and that that determination can be made based on the record before this court. The first undisputed fact in the statement of undisputed facts before the district court, and this is at page 436 of the record, was that on July 4th 1998, the year prior to the adoption of this ordinance, there was a shooting on the county fairgrounds that injured eight people, and there were many others who were injured in the resulting melee. Also undisputed is the fact that many public events are held on the county fairgrounds. Furthermore, pursuant to the condemnation order in 1965, by which the county took fee title to the property, it is required that the property be used for a public purpose. Also with respect to the plaintiff's shows, there is no dispute, this is undisputed fact number 35, that plaintiff's shows involve thousands of firearms being brought on to public property, and that at least four thousand individuals attend their gun shows. Based on those undisputed facts, it would seem that the county fairgrounds is a sensitive place that falls outside of the reach of the Second Amendment as construed in Heller. Another reason why the Second Amendment is not even implicated here is because the Heller majority recognized that the core of the Second Amendment right is the right of self-defense. There is not a word in the record that any plaintiff wishes to bring a firearm on to county property for the purpose of defending himself or herself.

Gould: Council, Judge Gould, I have a question for you on that.

Pierce: Yes your honor.

Gould: Actually two related questions. The first is, if individuals, as Heller says, have a right to bear arms for self-defense, don't they necessarily have to have a corollary right to buy the firearms? To buy them somewhere? And then second question, does the record that was made on the First Amendment issues tell us what opportunities are available to buy firearms in places other than the gun shows on county property?

Last edited by MindBuilder; 01-26-2009 at 2:26 AM..
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Old 01-26-2009, 2:25 AM
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Default Transcript of Nordyke Oral Argument Part 4 of 5

Pierce: Your honor, with respect to the first question, is there a corollary right that ensues from Heller, a right to buy firearms, Heller's language does not lead to the conclusion that there is such a corollary right, for several reasons. First of which is that Heller recognized that regulation of the sale of commercial firearms is presumed valid. And therefore it would seem that those regulations on the sale of firearms fall outside of the reach of the Second Amendment as um, that's the current state of the law. Secondly is the county ordinance does not restrict the sale of firearms as I had mentioned earlier. I wasn't quite sure, I didn't realy understand your question with respect to the First Amendment your honor, I'm sorry.

Gould: Well, does the record that was made on the First Amendment claim tell us what opportunities people have to buy guns other than at a gun show?

Pierce: Other than at a gun show, No. But gun shows can be held, I would note, on private property. At least the ordinance before this court does not prohibit gun shows on private property within Alameda county. I think there are two undisputed facts in the record, fact 33 and 34 which are found at page 444 of the record, that bear I think indirectly in response to your honor's question. Fact 33 was that the Nordykes held multiple gun shows in California in 2005. And fact 34 was that there were 22 gun shows in California in 2005. So those gun shows would have presumably provided an opportunity for the purchase of firearms.

Gould: Thank you.

Pierce: So it is the county's position that before the court can even reach the incorporation question, it must be decided whether or not the right implicated here is even a right at all under Heller. And because the right the plaintiffs are asserting here, a right to possess firearms on public property, is not a right that's even recognized in Heller, and on the state of the law is not a Second Amendment right at this point, the incorporation question need not be reached.

O'Scannlain: Well if we're not persuaded by your sequence, in other words we alternatively might reach incorporation and then get to the merits, you may want to talk about the incorporation issue just to help us.

Pierce: Yes your honor. First it is the county's position that this court is bound by precedent to conclude that the Second Amendment is not incorporated against states and their political subdivisions.

O'Scannlain: You're relying on Fresno for that?

Pierce: I am relying on Cruikshank, Presser, and Fresno. This court in Fresno Rifle recognized that Cruikshank and Presser held that the Second Amendment is a constraint only upon the actions of the federal government and does not constrain state or local action. Plaintiffs in the Fresno Rifle case raised the argument that in Cruikshank and Presser, the incorporation issue was not addressed. And that is true. Nevertheless, this court in Fresno Rifle rejected that argument and said until the Supreme Court overturns Cruikshank or Presser, the lower courts are bound by those decisions and must conclude that the Second Amendment is not incorporated. Also advanced in the Fresno Rifle case was the argument that there had been intervening Supreme Court authority. In that particular case the plaintiff said that the Supreme Court case of United States against Verdugo-Urquidez could be cited for the proposition that the Second Amendment conferred and individual right to bear arms. This court in Fresno Rifle rejected that argument and said, be that as it may, even if the Second Amendment could be construed as conferring an individual right, we are still bound by Cruikshank and Presser. And that is one of the arguments that the plaintiffs advance here. I think it is very difficult if not impossible for this court not to follow the Fresno Rifle precedent. And as Judge Gould astutely observed, the Miller vs the, Gammie precedent, the test for whether or not one panel of this court may depart from a prior panel, is whether or not the intervening Supreme Court authority, in this case Heller, has issued a decision that is clearly irreconcilable with the prior panel decision. And I think it is a stretch to say that Heller is clearly irreconcilable with Fresno Rifle. Heller does not purport to overturn Cruikshank. Heller makes the comment in footnote 23 that Judge O'Scannlain referred to earlier. But that is not a purported overruling of Cruikshank. Cruikshank remains good law until the Supreme Court says otherwise. And it would only be speculation as to how the Supreme Court might rule if it chooses to address that question in the future.

O'Scannlain: Notwithstanding the literal text of footnote 23, the entire rest of the opinion seems to dwell enormously on such considerations as whether or not the right to bear arms is deeply rooted in the United States history and tradition, and cites going back to 1689 the fundamental right to bear arms that was recognized as a right of Englishmen. Well I should be careful, only protestant Englishmen. I wouldn't have been eligible for it. But in any event it was fundamental to that tradition which of course we've inherited. So what's going on in Heller? We know about footnote 23, but then you see this entire multi-page historical analysis which seems to establish the fundamental rationale under which we now look at the question of whether these rights are incorporated.

Pierce: Well your honor, I think that discussion would bear upon whether or not the right to possess a firearm in the home for self-defense is a fundamental right. But it seems to me an entirely different question on this record whether the right to possess a firearm in any location at all, and in this case on public property is a fundamental right. I think that would be a separate question. 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, states historically have regulated public safety with respect to their own property. It was recognized by the Supreme Court, uh, well in Heller actually, Heller cited Cruikshank, and did so for the observation that the states were free to restrict or protect the right, referring to the Second Amendment right, under their police powers.

O'Scannlain: Well suppose this were the District of Columbia instead of a county of a state. What would the answer be?

Pierce: Whether the right is incorporated?

O'Scannlain: Well, what I'm trying to do is put Heller in the context of this case. Obviously Heller was a statute which prohibited possession anywhere within the district. So that was an absolute ban on possession anywhere, not the limited ban that we have here in Alameda county in this case. But suppose a total ban were at stake in this case, which it is not, but suppose it were just for the sake of discussion. What would the answer be?

Pierce: 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 libery, would seem to depend on whether or not

O'Scannlain: Didn't you just distinguish the right to have the arms in the home or for purposes of self-defense? Didn't you just distinguish that a moment ago as crucial in this analysis?

Pierce: Well I was, what I was saying is that that right is not implicated on this record. That what is crucial to the holding in Heller was the possession of a weapon for self-defense in the home.

O'Scannlain: Exactly. So my question then comes back to why shouldn't, if we had the Heller statute in the state of California, why shouldn't that interpretation be incorporated?

Pierce: Because your honor, the Second Amendment, Judge Gould made reference in his concurrence earlier in this case that, whether the Second Amendment is incorporated, or should be incorporated against the states, might depend on wheather or not the Second Amendment was animated by a fear of federal tyranny, or whether what animated the Second Amendment and propagated its adoption, was a fear that states would disarm citizen militias. And I believe Heller speaks directly to that when Heller says at page 2801, the threat that the new federal government would destroy the citizens militia by taking away their arms, was the reason that right, unlike some other english rights, was codified in a written constitution. So Heller seems to recognize that it was a fear or a concern about federal tyranny that drove the adoption of the Second Amendment. Not a concern that the states themselves would disarm citizen militias. In fact there were statutes at that time your honor, which, several states had statutes providing for the arming of their citizen militias. Pennsylvania, Virginia,

O'Scannlain: Thank you councilor. Your time has expired. Mr. Kilmer you have about a minute.

Kilmer: Thank you your honor. First we are not here asking the court for permission to carry guns anywhere in the county or anywhere on county property. We're asking to hold traditionally law abiding gun shows at the fairgrounds where they've taken place for ten years without incident. We're asking to be allowed to comply with federal and state law. And California state law is very

O'Scannlain: Well in terms of compliance you heard what Mr. Pierce had to say. Why don't you fit within exception number four?

Kilmer: Mostly because your honor when we specifically asked the county in correspondence before, that occurred before the lawsuit was filed

O'Scannlain: But they say you didn't give them a plan.
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Old 01-26-2009, 2:33 AM
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Default Transcript of Nordyke Oral Argument Part 5 of 5

Kilmer: Well actually your honor, the person who requested the plan was the fair grounds manager, after county council had told fairgrounds manager, in correspondence that's in the record, that a gun show can take place as long as there are no gun shows present.

O'Scannlain: Guns present.

Kilmer: Excuse me. Correct. If there are no guns displayed or present. It went on to say that gun sales could take place as long as no guns were displayed and no guns were present. So I think that the county is reading the exceptions even broader then even they have enforced it. The only other thing I have to say your honor is, the county has already taken steps to control deadly weapons at the fairgrounds. They have metal detectors there for the county fair. Which is where the horrendous shooting took place. It's important also your honor, there are two places where firearms dealers may lawfully sell firearms in the state of California, and that is at their store or at a gun show. And the reproductive cases that we cited in our briefs, are that if the government engages in a substantial interference with access to the right, then it is engaged in unconstitutional conduct.

O'Scannlain: Thank you council. The case just argued will be submitted for decision and the court will adjourn.

[end of audio]
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Old 01-26-2009, 7:54 AM
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Wow! Thanks for doing that!

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Old 01-26-2009, 10:43 AM
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Thank you sir. I was having trouble listening to the argument in the overflow room.
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Old 01-26-2009, 1:23 PM
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i watched it on cspan this morning...good stuff
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Old 01-26-2009, 1:26 PM
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Wowsers! Thanks, MindBuilder!

I was there, in the main court room, and it was worth going, but I read a heck of a lot faster than I listen.
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Old 01-27-2009, 10:30 AM
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Quote:
Originally Posted by Hopi View Post
No, that's my head at the beginning and end of the video
Here ya go:



You're famous! Oh nevermind it's CSPAN.
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Old 01-27-2009, 12:12 PM
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Quote:
Originally Posted by MudCamper View Post
Here ya go:



You're famous! Oh nevermind it's CSPAN.
Mudcamper, it was good to meet you too.

.
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Old 01-27-2009, 1:44 PM
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LOL nice diagram.
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Old 01-28-2009, 10:49 AM
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Quote:
"how do you have a gunshow without guns ?"
What he ment to say was "you can't dum ***"
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Old 02-01-2009, 10:06 PM
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I haven't been following this thread as much as I should have and I don't think I have the time to read the whole thread so I'll pose my question here. Does anyone know the status of this case? Has a decision been reached? Thanks.
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Old 02-01-2009, 10:13 PM
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waiting for a ruling. No decision reached yet. No time limit on when decisiion must be reached, but many expect it to be in 2-3 months.
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Old 02-03-2009, 9:10 AM
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Here ya go:



You're famous! Oh nevermind it's CSPAN.
Fresh Tap Coke is the other body dead ahead and to port.
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