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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 07-12-2010, 11:05 AM
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Default Nordyke: En Banc Dismissed, Remanded to Panel

All,

Nordyke was sent back to the 3-judge panel today; the original panel opinion was vacated and they are to reconsider the case in light of McDonald v. Chicago. The original panel is made up of Judges Gould, O’Scannlain and Alarcón.

Stay informed of the latest developments by following the Calguns Foundation twitter feed at http://twitter.com/CalgunsFdn.

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Old 07-12-2010, 11:06 AM
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Wow.
Can you remind us of the friendliness of each of these judges to our cause? Aside from the original incorporation decision? What do we expect? Nordyke for Dummies?
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Old 07-12-2010, 11:07 AM
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For goodness sake....
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Old 07-12-2010, 11:09 AM
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I suppose that's a good thing. Will they simply go with their initial decision, or will they say that, in light of McDonald, preventing guns at gun shows on public property is a violation of the second amendment?
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Old 07-12-2010, 11:11 AM
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OK, so that means it can be resolved quickly AND incorporation happens again 100% guaranteed. If it gets ruled on extra favorably, what's the possibility they'd try to en banc it again?
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Old 07-12-2010, 11:11 AM
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yeeeeeeehaaaa.....

So glad they acted quickly.

does this mean that Pena has the go ahead now?
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Old 07-12-2010, 11:13 AM
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Peña isn't the one that was stalled, Sykes is.
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Old 07-12-2010, 11:13 AM
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OK, so that means it can be resolved quickly AND incorporation happens again 100% guaranteed. If it gets ruled on extra favorably, what's the possibility they'd try to en banc it again?
The 3 judge panel will no longer be addressing incorporation it is settled law. It would seem, by the previous opinion (same judges and same facts) that the only thing they will be addressing is "sensitive areas" in light of the right to keep and bear arms being a FUNDAMENTAL right.
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Old 07-12-2010, 11:14 AM
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Quote:
Originally Posted by yellowfin View Post
Peña isn't the one that was stalled, Sykes is.
No, Sykes is moving forward starting at McDonald + 60 days. Pena is the one that is waiting for Nordyke.
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Old 07-12-2010, 11:18 AM
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I guess this means it's OK to find Sayre Weaver's sensitive places, but only in a parking lot.
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Old 07-12-2010, 11:18 AM
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The confusion on Sykes is natural. At one point (IIRC) Sykes was being held until after Nordyke but that was later changed to the McDonald + 60 days.

Do remember that these timelines are the times that the cases restart, not the time for the decision to be handed down.
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Old 07-12-2010, 11:20 AM
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I seem to recall somebody predicted this?


http://www.calguns.net/calgunforum/s...32&postcount=8
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Old 07-12-2010, 11:25 AM
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The panel at this point needs not consider the incorporation issue to reach their final analysis - that's done for them by McDonald. Ultimately, this will be an interesting opportunity for a circuit court of appeals to consider the meaning of "fundamental" as applied to firearms and related expressive conduct.

They could simply cut out the section on incorporation from the original panel opinion, insert a few McDonald cites and reissue but I would like to think that this panel, particularly, can read between the lines in McDonald regarding the Court's explicit rejection of certain forms of scrutiny (as found in both Heller and McDonald) and take a fresh look at the other issues presented in the case.
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Old 07-12-2010, 11:25 AM
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Quote:
Originally Posted by RomanDad View Post
I seem to recall somebody predicted this?


http://www.calguns.net/calgunforum/s...32&postcount=8
Could you explain a little more? To me (as a non-lawyer) it would seem like what happened is not what you predicted.

Edit: I thought that you were saying that the ruling they initially made would effectively be the one which would finally be issued. What my fevered non-lawyer mind thinks happened is that they made their previous opinion go away and are officially starting anew - although with the benefit of the previous pleadings and information.

It could be that what you predicted equates to that - but to my inexpert reading it doesn't seem like it.

I'm looking for an education. . .

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Old 07-12-2010, 11:26 AM
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Quote:
Originally Posted by bwiese View Post
I guess this means it's OK to find Sayre Weaver's sensitive places, but only in a parking lot.
Oh. No. You. Didn't.

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Old 07-12-2010, 11:27 AM
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Quote:
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Could you explain a little more? To me (as a non-lawyer) it would seem like what happened is not what you predicted.
Not exactly, but we won't know until we see additional orders (or an opinion) from the panel. However, his prediction that en banc would vacate and remand was indeed accurate.
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Old 07-12-2010, 11:27 AM
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Quote:
Originally Posted by glbtrottr View Post
Wow.
Can you remind us of the friendliness of each of these judges to our cause? Aside from the original incorporation decision? What do we expect? Nordyke for Dummies?
Nordyke was originally a 1A case that argued the display of firearms at a gun show was expressive speech and was protected.

It had changed into an incorporation case (the details I do not know.) The 3 judge panel ruled that the 2A was incorporated against the state in an opinion written by O'Scannlain. This was the first time that a circuit court held the 2A incorporated! Yay! However; they ruled that the Alameda Fairgrounds were sensitive enough that the county could deny gun shows under the "sensitive area" doctrine in Heller. Gould wrote in his concurrence about the value of having an armed citizenry to help hold off invading forces (particularly in border states such as CA) until the militia can be called up or the military can respond.

In light of incorporation there were a couple CGF suits filed challenging the Roster and the CCW permitting process in CA.

The circuit stayed the Nordyke opinion and called in en banc, a very unusual action when neither litigant requested such. This effectively closed down incorporation in CA until they decided the case. They then sat on the case because SCOTUS took McDonald.

Since the original opinion addressed 2 issues. 1) is 2A incorporated and 2) does the fairgrounds qualify as a Heller "sensitive area" they will most likely only address the second question again. It is quite possible that they will find, in light of McDonald's emphasis of FUNDAMENTAL when discussing the right defined in Heller, that the fairgrounds are not a "sensitive area."
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Old 07-12-2010, 11:30 AM
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This is great news!

Did the 3 Judge panel's original decision consider the sensitive places argument in light of the 2nd Amendment protecting a fundamental civil right?
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Old 07-12-2010, 11:35 AM
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Quote:
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Not exactly, but we won't know until we see additional orders (or an opinion) from the panel. However, his prediction that en banc would vacate and remand was indeed accurate.
Thank you!
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Old 07-12-2010, 11:38 AM
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I just can't wait until this is all behind us and we can have our fundamental god given rights back....

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Old 07-12-2010, 11:38 AM
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Wouldn't it be nice to have an order from the panel requesting the County to submit a brief describing what compelling interest the county has in denying gun shows access to the fairgrounds?
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Old 07-12-2010, 11:46 AM
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Quote:
Originally Posted by RomanDad View Post
I seem to recall somebody predicted this?


http://www.calguns.net/calgunforum/s...32&postcount=8
That there feller is pretty smart. But since the hold was not only lifted but the case was also sent back what does your crystal ball predict for the gun show in light of a fundamental right?
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Old 07-12-2010, 12:03 PM
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Quote:
Originally Posted by FreshTapCoke View Post
This is great news!

Did the 3 Judge panel's original decision consider the sensitive places argument in light of the 2nd Amendment protecting a fundamental civil right?
See, e.g., the panel's analysis on sensitive places pp. 4497-4501 (PDF 30-34); 1A pp 4501-4507 (34-40).

The original panel opinion is here.
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Old 07-12-2010, 12:13 PM
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I suppose that's a good thing. Will they simply go with their initial decision, or will they say that, in light of McDonald, preventing guns at gun shows on public property is a violation of the second amendment?
This sort of decision to me looks a lot like a "Grant, Vacate, Remand". Two of the en banc panel's judges were on the original panel, and if they wanted the decision to remain the same, they would have either written a short per curiam opinion upholding the decision.

I think we're going to win Nordyke.
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Old 07-12-2010, 12:17 PM
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My crystal ball predicts things that are full of WIN. This news just made my day!

Thanks CGF!
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Old 07-12-2010, 12:17 PM
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Old 07-12-2010, 12:20 PM
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Originally Posted by dantodd View Post
Wouldn't it be nice to have an order from the panel requesting the County to submit a brief describing what compelling interest the county has in denying gun shows access to the fairgrounds?
I just hope they don't remand to the trial court.
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Old 07-12-2010, 12:51 PM
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I just hope they don't remand to the trial court.
Which may actually be the better outcome for on point fact-finding as to evidence on sensitive places. However, I would lean (both in preference and in probability, though my first preference would be an outright win) toward an outcome where the original panel reissues minus incorporation, Nordykes petition for cert, SCOTUS GVRs with a per curiam and they go back to go up on the sensitive places issue (and possibly the 1A issue also) with some direction.

http://volokh.com/2010/07/12/gun-sho...okh+Conspiracy)

Quote:
Originally Posted by Eugene Volokh
In early 2009, a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled (in Nordyke v. King) that the Second Amendment was applicable to state and local governments. But the panel also ruled that a county ban on gun possession in county parks and fairgrounds was constitutional, because such property fell within the “sensitive places” exception to Second Amendment protection (announced by the Supreme Court D.C. v. Heller). Not long after, the Ninth Circuit agreed to rehear the case using an 11-judge en banc panel, and then put the case on hold pending the Supreme Court’s consideration of whether the Second Amendment was indeed applicable to state and local governments.

Today, the Ninth Circuit sent the case back to the original 3-judge panel, instructing the panel to consider it further “in light of McDonald v. City of Chicago.” But since the Supreme Court in McDonald v. City of Chicago (1) agreed with the panel that the Second Amendment was indeed applicable to state and local governments, and (2) did not opine on the scope of the “sensitive places” exception, I’d expect that the Ninth Circuit panel would just reaffirm its original decision. The gun show organizers will therefore likely lose, as they lost originally.

For my limited views on restrictions of gun possession on government property, see PDF pp. 87–91 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.
To reiterate:

Quote:
Originally Posted by wildhawker View Post
The panel at this point needs not consider the incorporation issue to reach their final analysis - that's done for them by McDonald. Ultimately, this will be an interesting opportunity for a circuit court of appeals to consider the meaning of "fundamental" as applied to firearms and related expressive conduct.

They could simply cut out the section on incorporation from the original panel opinion, insert a few McDonald cites and reissue but I would like to think that this panel, particularly, can read between the lines in McDonald regarding the Court's explicit rejection of certain forms of scrutiny (as found in both Heller and McDonald) and take a fresh look at the other issues presented in the case.
Let's hope for the latter, and, in any case, a speedy resolution.
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Old 07-12-2010, 12:55 PM
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That there feller is pretty smart. But since the hold was not only lifted but the case was also sent back what does your crystal ball predict for the gun show in light of a fundamental right?
I think Nordyke stands as is (and the Nordykes are now free to challenge the "sensitive places" language that resulted in the ruling to SCOTUS- it truly is the case that never goes away.)
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Old 07-12-2010, 1:04 PM
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What differs in the Nordyke decision from the McDonald decision? Nordyke found the 2A incorporated against the State, then determined that the ban on guns on County property was not sufficiently restrictive to the fundamental right to warrant overturning the ordinance. Is it the level of scrutiny utilized in the Nordyke decision on the 2A infringement? I have not included discussion of the 1A portion of Nordyke, as I don't know that that portions is impacted by McDonald.
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Old 07-12-2010, 1:25 PM
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What differs in the Nordyke decision from the McDonald decision? Nordyke found the 2A incorporated against the State, then determined that the ban on guns on County property was not sufficiently restrictive to the fundamental right to warrant overturning the ordinance. Is it the level of scrutiny utilized in the Nordyke decision on the 2A infringement? I have not included discussion of the 1A portion of Nordyke, as I don't know that that portions is impacted by McDonald.
Exactly that - the scrutiny level changes dramatically when right is deemed 'fundamental'-. Once a right bears that label it is VERY difficult to impinge that right (IE: restrictions or barriers to exercising that right). Tests long used by courts such as rational basis & intermediate (heightened) scrutiny no longer apply. The court must use the strict scrutiny test which is much more difficult.

From aw.jrank.org:

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

Read more: Strict Scrutiny http://law.jrank.org/pages/10552/Str...#ixzz0tVPaDI86
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Old 07-12-2010, 1:30 PM
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Quote:
Originally Posted by smallshot13 View Post
What differs in the Nordyke decision from the McDonald decision? Nordyke found the 2A incorporated against the State, then determined that the ban on guns on County property was not sufficiently restrictive to the fundamental right to warrant overturning the ordinance. Is it the level of scrutiny utilized in the Nordyke decision on the 2A infringement? I have not included discussion of the 1A portion of Nordyke, as I don't know that that portions is impacted by McDonald.
The Nordyke court found that the ban on gun shows was OK, but allowed renactments of gun battles, ones that had the actors firing blanks. The three-prong standard they have to use now: The law is necessary to achieve a compelling state interest, narrowly tailord to meet that interest, and the least restrictive means to do so. How they let actors fire blanks during a show, but not let us look at guns at a show is hard for me to understand. But, there is no federal law banning gun shows.
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Old 07-12-2010, 1:36 PM
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...an outcome where the original panel reissues minus incorporation, Nordykes petition for cert, SCOTUS GVRs with a per curiam and they go back to go up on the sensitive places issue (and possibly the 1A issue also) with some direction.
Oh yes, I forget the must lose to win strategy of Heller/McDonald. Here is to Losing (this round)!!!
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Old 07-12-2010, 2:01 PM
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It's great to see things moving forward!
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Old 07-12-2010, 2:09 PM
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This news is faster and better than I was expecting.
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Old 07-12-2010, 2:12 PM
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Damn, look what happens when I go out to lunch and get stuck in a meeting!

This sounds like great news.

I'm guessing that the origional pannel will move quickly thus un-sticking Pena fairly soon.

It will be great if Nordyke gives SCOTUS the chance to explicitly specify what a sensitive place is.

I think we are going to see some really great things come out of this and Don Kilmer is going to get paid.
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Old 07-12-2010, 2:13 PM
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Is this good? I thought there was some issue with this allowing Gorski to restart his destruction of gun rights in this state?
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Old 07-12-2010, 2:15 PM
OleCuss OleCuss is offline
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Just a word of warning?

I'm pretty sure there is as yet no ruling that the 2A restrictions require strict scrutiny. It would appear to be implied by the repeated statement in McDonald that the RKBA is "fundamental" and it would appear that SCOTUS was telegraphing that a ruling for strict scrutiny was expected - but it hasn't yet been ruled as the standard.

So while "rational basis" appears untenable, I consider it possible that a court could still try to apply intermediate scrutiny. I think SCOTUS would eventually slap them around over this - but they could still choose intermediate or some novel form of scrutiny for the time being.
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Old 07-12-2010, 2:23 PM
NightOwl NightOwl is offline
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Quote:
Originally Posted by RomanDad View Post
I think Nordyke stands as is (and the Nordykes are now free to challenge the "sensitive places" language that resulted in the ruling to SCOTUS- it truly is the case that never goes away.)
This is the case that never ends,
and it goes on and on, my friends.
Some people started suing it, not knowing what it was,
And they'll continue suing it forever just because...
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Old 07-12-2010, 2:26 PM
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nicki nicki is offline
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Default Sensitive zones

It seems to me that we will have to come up with a "Sensitive Zone" standard and perhaps that is where we will have to go.

First, what makes a "Zone" "Sensitive" that those who go into those zones have to waive a "fundamental right".

What makes the county fairgrounds sensitive?

Now, if a zone is sensitive and those who enter the zone have are now "gun free" and therefore stripped of their self defense rights, what are the people who are running the zone doing to provide security for the zones?

What are they doing to limit access and what are they doing to secure that bad people don't take arms into the zone? A open fairground with limited security, no gate screening wouldn't meet those standards.

I guess this also brings up equality under the law issues. Seems to me that if it is a public venue, why are gun owners being discriminated against.

Alameda county made an arguement that there was a shooting at the county fair, seems to me that they demonstrated that their security is inadequate and perhaps one could make the arguement now that since Alameda can't or won't provide effective security at the fairgrounds, the people who attend should be able to protect themselves.

Nicki
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