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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 07-29-2009, 2:45 PM
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Default Volokh: Nordyke goes en banc

http://volokh.com/posts/1248906855.shtml


http://www.ca9.uscourts.gov/datastor...0715763ebo.pdf

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Old 07-29-2009, 2:48 PM
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Oh wow...

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Old 07-29-2009, 2:49 PM
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Aw crap.
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Old 07-29-2009, 2:52 PM
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Aw crap.

And then some...
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Old 07-29-2009, 2:53 PM
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Here's the link to the order.

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Old 07-29-2009, 2:53 PM
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Very good.... I got a copy using PACER...
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Old 07-29-2009, 2:56 PM
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F me running.
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Old 07-29-2009, 2:57 PM
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very interesting. damn. damn.

edit: fingers crossed

Whats the time frame of an en banc hearing? is it long and drawn out thing too, or is it a sit down one afternoon and sort it out?

Does the original judge get to sit in on the panel?
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Old 07-29-2009, 2:58 PM
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sux
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  #10  
Old 07-29-2009, 3:02 PM
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So what exactly does this mean and what's the likely outcome ?
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Old 07-29-2009, 3:05 PM
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someone should be in here shortly to give a good informed opinion for you...
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Old 07-29-2009, 3:11 PM
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So what exactly does this mean and what's the likely outcome ?
What it means is that for the time being, until the case is re-heard, the 2nd Amendment is not Incorporated against the State of California. It also means any pending cases before the judiciary (throughout the system) shall not cite the opinion as precedent.

A positive possible outcome would be that the Supreme Court agrees to hear the other cases (from the 2nd and 7th circuits) anyway and reviews, and finds for, Incorporation.

A negative possible outcome is that the SCOTUS decides not to review the 7th and 2nd Circuit cases since without the 9th Circuit Nordyke opinion there isn't a "split".

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Old 07-29-2009, 3:13 PM
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What it means is that for the time being, until the case is re-heard, the 2nd Amendment is not Incorporated against the State of California. It also means any pending cases before the judiciary (throughout the system) shall not cite the opinion as precedent.

A positive possible outcome would be that the Supreme Court agrees to hear the other cases (from the 2nd and 7th circuits) and reviews, and finds for, Incorporation.

A negative possible outcome is that the SCOTUS decides not to review the 7th and 2nd Circuit cases since without the 9th Circuit Nordyke opinion there isn't a "split".

--Neill

That is what I was thinking...
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Old 07-29-2009, 3:17 PM
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What I want to know is how big a bribe they took doing this.
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  #15  
Old 07-29-2009, 3:18 PM
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I think they will simply review what information the 3 judges used to come to their conclusion and not change a thing as far as incorporation. What I also expect will happen is that the en banc panel reverses the decision regarding gun shows on public property because the 2nd amendment is an individual right. To me the worst that can happen is that nothing changes and the en banc panel simply validates the 3 judges decision.
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Old 07-29-2009, 3:19 PM
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I think they will simply review what information the 3 judges used to come to their conclusion and not change a thing as far as incorporation. What I also expect will happen is that the en banc panel reverses the decision regarding gun shows on public property because the 2nd amendment is an individual right. To me the worst that can happen is that nothing changes and the en banc panel simply validates the 3 judges decision.
I think you're an optimist.
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Old 07-29-2009, 3:20 PM
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What this means is these F***ers are going to reverse the Incorporation decision and fall back with the 7th and 2nd and say that they are bound by precedent.
My guess is that SCOTUS wont hear it. This is the way these F****ers are going to violate the 2nd Amendment.
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Old 07-29-2009, 3:21 PM
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I think you're an optimist.
One can always hope.
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Old 07-29-2009, 3:26 PM
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My guess is that SCOTUS wont hear it.
Even without the circuit split, I would be jaw-dropped shocked if SCOTUS refuses to rule on incorporation. Every other damn thing is incorporated. Why wouldn't the 2A be?
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  #20  
Old 07-29-2009, 3:34 PM
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Originally Posted by bulgron View Post
Even without the circuit split, I would be jaw-dropped shocked if SCOTUS refuses to rule on incorporation. Every other damn thing is incorporated. Why wouldn't the 2A be?
Not that I think 2nd shouldn't be incorporated, but parts of V, VII, and VIII have been held to NOT be incorporated.
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Old 07-29-2009, 3:35 PM
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Originally Posted by bulgron View Post
Even without the circuit split, I would be jaw-dropped shocked if SCOTUS refuses to rule on incorporation. Every other damn thing is incorporated. Why wouldn't the 2A be?
I wouldn't be surprised. I believe this is the courts (SCOTUS) way of giving us the individual rights interpretation but not changing much nationally.
As much as I hate to admit it, I think the 9th Circuit was right in hearing this en banc because if they are in fact bound by precedent, then they shouldn't have ruled for incorporation in Nordyke.
I fully expect the 9th to reverse the incorporation ruling.
We will have to see if SCOTUS takes it up, but, I think there is going to be a lot of political pressure to leave it be. Especially since we have that b**** from the 2nd Circuit headed to SCOTUS.
I hope I'm wrong, but, I bet this is the way the way they shackle the 2nd Amendment.
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Last edited by tiki; 07-29-2009 at 3:37 PM.. Reason: I can't spell.
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  #22  
Old 07-29-2009, 3:50 PM
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The 3rd is also not incorporated.

With Obama in office and his talk of some civil defense force, that scares the crap out of me.
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  #23  
Old 07-29-2009, 3:51 PM
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What I want to know is how big a bribe they took doing this.
Exactly my thoughts too...
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Old 07-29-2009, 3:54 PM
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Ouch.
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Old 07-29-2009, 3:57 PM
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OK, so can someone run down the numbers we're looking at w/the 9th circuit judges? It looks as if Kozinski should be on the panel, and he should be a lock for our side. How many other pro-gun judges on this circuit?
I hope the original Nordyke panel wasn't all of them outside of Kozinski.......

Couldn't the 2 sides make a deal like the Nordykes admit the fairgrounds are a sensitive place and the county admits the 2A is incorporated and everyone leaves happy?
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Old 07-29-2009, 4:01 PM
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I'm enraged.

What's the timetable on the docket? At what point is this BS heard...then how f-ing long do we have to wait for a decision? Like 180 days again?
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  #27  
Old 07-29-2009, 4:05 PM
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Help me out here guys, its been a long day and I'm a bit slow.

It says the opinion of the 3-judge panel will not be used as precident to other courts. Would that not mean they can't change anything - the ruling is as originally stated?
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Old 07-29-2009, 4:07 PM
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My question is, what affect does this have on Sykes? Naturally (and, as stated above) it means that Sykes cannot cite Nordyke as precedent until the matter is resolved, but is there some mechanism by which Sykes can be put on hold, pending the en banc panel's decision? Or must Sykes continue on its own merit, without the benefit of incorporation?
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Old 07-29-2009, 4:08 PM
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Volokh page says the week of Sept. 21, 2009

I missed the last party in SFO, but plan to go to this one.
Anybody want a carpool from SoCal? The other possibility
is an organized motorcycle ride. (Please no squids and
please no slugs. It is a fast route through _rural_ California.)
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Old 07-29-2009, 4:10 PM
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This very outcome was hypothesized in the original thread on Nordyke en banc. 9th reverses on en banc to remove the split, and SCOTUS then has no immediate reason to hear the 7th and 2nd cases, thus choosing to delay the debate until SCOTUS can be stacked against. I like the optimism I see on this board, but we need to dial in some pragmatic skepticism as well. If it can be foreseen by some dolt like me, maybe we should honestly take up the debate and plan for the contingency. I do expect that the masters here actually did consider and have something up their collective sleave, but.............
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Old 07-29-2009, 4:15 PM
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Quote:
According to the Ninth Circuit, "En banc oral argument will take place during the week of September 21, 2009."
So, yeah, another two months at least before we get another decision.

To be honest, though, I'm of the opinion that although this does hurt us, the issue of incorporation will indeed be heard by SCOTUS in their next session. I think the amicus curiae filed by Jerry Brown and 2/3 of the remaining states will stand by itself and get the attention we want. That many states, including Kalifornjistan, supporting incorporation has to at least count for something.

Let's just hope that the outcome of, first, the en banc hearing, and then the SCOTUS hearing, go in our favor. Here's keeping my fingers crossed.
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Old 07-29-2009, 4:18 PM
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Quote:
Originally Posted by M1A Rifleman View Post
Help me out here guys, its been a long day and I'm a bit slow.

It says the opinion of the 3-judge panel will not be used as precident to other courts. Would that not mean they can't change anything - the ruling is as originally stated?
No, it nullifies it. It is possibly lost forever if the en banc panel overturns it.
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  #33  
Old 07-29-2009, 4:18 PM
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I thought it was past the allotted time for them to go en banc?
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Old 07-29-2009, 4:18 PM
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Quote:
Originally Posted by Flopper View Post
Not that I think 2nd shouldn't be incorporated, but parts of V, VII, and VIII have been held to NOT be incorporated.
Where did you get that?

According to Wikipedia, the 5th, 7th and 8th certainly have been incorporated. Or at least parts of them have, anyway.

http://en.wikipedia.org/wiki/Incorpo...ncorporated.3F
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Old 07-29-2009, 4:19 PM
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Quote:
Originally Posted by loather View Post
So, yeah, another two months at least before we get another decision.

To be honest, though, I'm of the opinion that although this does hurt us, the issue of incorporation will indeed be heard by SCOTUS in their next session. I think the amicus curiae filed by Jerry Brown and 2/3 of the remaining states will stand by itself and get the attention we want. That many states, including Kalifornjistan, supporting incorporation has to at least count for something.

Let's just hope that the outcome of, first, the en banc hearing, and then the SCOTUS hearing, go in our favor. Here's keeping my fingers crossed.
I think that's a good analysis of the situation. My main concern is that it kills very-near-term litigation.
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Old 07-29-2009, 4:36 PM
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Quote:
Originally Posted by smallshot13 View Post
This very outcome was hypothesized in the original thread on Nordyke en banc. 9th reverses on en banc to remove the split, and SCOTUS then has no immediate reason to hear the 7th and 2nd cases, thus choosing to delay the debate until SCOTUS can be stacked against.
This doesn't really make sense though, because it's the justices on SCOTUS who will decide both questions. If they want a SCOTUS decision against incorporation (which seems highly unlikely given their statements), it would be stupid to wait "until SCOTUS can be stacked against" it, because they could simply take the case now, rule against incorporation, and not hope that at some uncertain time in the future a different court might rule the way they hope. Since it is the same people making the decision whether to grant cert as would be deciding incorporation, putting the decision off makes no sense at all, no matter which way they want the decision to fall.

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Old 07-29-2009, 4:46 PM
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Waits for Bill & Gene
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Old 07-29-2009, 4:48 PM
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I was not suggesting that SCOTUS wanted a delay, only the liberal 9th. If they overturn en banc, that is their only hope of delaying until Mr. O can stack the deck. If there is no split, then SCOTUS will need another reason to hear the other cases. I am sure I am wrong, but I thought both cited the split.
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Old 07-29-2009, 4:48 PM
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hehe! Me Too!!!!
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Old 07-29-2009, 4:51 PM
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Someone stop me if I'm wrong, but I think one of the things to keep in mind is that a vote to rehear the case en banc is not necessarily a vote to overturn the case.

But this isn't the outcome we had hoped for, clearly. Don Kates actually foreshadowed this at the Nordyke dinner when he noted that in his 'many years of litigating he hadn't seen a court that liked guns' or something along those lines.

--Neill
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