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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 09-09-2010, 5:28 PM
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Lightbulb Could Anderson v. Hermosa Beach (1A Tattoo shop victory) be relevant to Nordyke?

As always, of course... If there is a , please move this to the right thread. I thought this might be relevant here.

Today the 9th ruled that the City of Hermosa Beach could not pass a ban on tattoo parlors because it violates the 1st.

Johnny Anderson wanted a permit to open up a tattoo parlor in HB (Hermosa Beach), and was denied the permit on the grounds that the city thought that it was not safe to have a tattoo parlor because of how there is a risk of hepatitis, syphilis, tuberculosis, leprosy, and HIV from being tattooed. That risk exists from getting flu shots, but they don't ban the flu shot clinics, do they?? (sarcasm)

The Court held that the ban on tattoo parlors in HB is "facially unconstitutional to the extent that it excludes tattoo parlors." They hold "that tattooing is purely expressive activity rather than conduct expressive of an idea." What is the difference there (between purely expressive activity and conduct expressive of an idea)? Could the SAF GRPC posters in S.F. be considered "purely expressive activity", or are they "conduct expressive of an idea"?

The opinion indicates that the District Court ruling (which was reversed) applied "rational basis review". The 9th talks about whether the ordinance in HB can withstand strict scrutiny. Footnote 4 states: "Anderson does not contend that the City’s regulation is a content-based restriction on speech. And with good reason, as the City bans all tattoo parlors, not just those that convey a particular kind of message or subject matter. Thus, we do not subject the regulation to strict scrutiny."

The opinion is here.

Here is an article from none other than the LA TIMES.

Soooooooo...

Since the ALCO fair gun show ban should not be able to withstand muster because the firearms displayed are not actually loaded, and are in an enclosed case unaccessible, could the above case be relevant to the Nordyke case? Tattoo parlors are now protected under the 1st. Shouldn't gun shows be protected under not only the 2nd, but also the first, now that the above case has been decided, and should the Nordyke Court use this as guidance? I know that there is a 1A claim in Nordyke (I think)...

What about gun shop bans in certain jurisdictions? Could this be used to dissuade certain cities/counties from passing gun shop ordinances, or is there better case law (obviously, there's McDonald), but anything more specific to gun shops?

In the opinion, there is no mention of anything 2A, other than where it mentions that HB permits a wide variety of businesses, including movie theaters, restaurants, adult businesses, bars, fortune tellers, gun shops, and youth hostels.

Otherwise, I can't see why this would NOT be relevant, but please tell me why I'm wrong on that (if I am).

IANAL, these are just questions based on all that I have learned here.

Or do I need a sandwich & a nap? (I could use the nap)

Erik.
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Old 09-09-2010, 6:35 PM
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Nordyke will be a good reading of how strict scrutiny is applied to firearms and it comes up real soon.
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Old 09-09-2010, 6:52 PM
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Interesting find.

Nordyke was litigated initially under 1A protections...
Quote:
At the district court the Nordykes recast their argument from a facial challenge under the First Amendment to an as applied challenge. In April of 2007, Judge Jenkins ruled against the Nordykes holding that the ordinance was not specifically targeted at speech and therefor passed rational basis scrutiny.
But Nordyke has evolved and it is now about 2A rights and specifically the means to acquire them.

Nordyke v. King
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Old 09-09-2010, 7:38 PM
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I believe Nordyke makes a 1A challenge. I read this story in the news and had similar thoughts to the OP.
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Old 09-09-2010, 9:09 PM
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It's on my reading list - maybe tonight. It could certainly have some relevance.

-Gene
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Old 09-09-2010, 10:37 PM
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Quote:
Originally Posted by hoffmang View Post
It's on my reading list - maybe tonight. It could certainly have some relevance.

-Gene
Cool, look forward to hearing your view on this (if you have one to tell WR to this). Interesting that this comes right as the Nordyke hearing gets scheduled. At least it's nice to know that I wasn't the only one who saw the lightbulb when this was released.

Erik.
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Old 09-10-2010, 9:14 AM
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Wow, 4 WHOLE responses to this (not counting mine)... I might have to start recruiting s to post my topics, or maybe I'm the troll??

Erik.
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Old 09-10-2010, 9:21 AM
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One hopes it's relevant.

There, happy now?
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Old 09-10-2010, 9:51 AM
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Originally Posted by Window_Seat View Post
Wow, 4 WHOLE responses to this (not counting mine)... I might have to start recruiting s to post my topics, or maybe I'm the troll??

Erik.
Erik, your opening post is excellent. I surmise that the reason for so few replies is that the subject matter is complex and a detailed understanding of the law is required to make an informed opinion. I am like yourself (not a lawyer) but I do read much of what is posted here and all the legal briefs and case law I can get my hands on. It's fun.

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Originally Posted by N6ATF View Post
One hopes it's relevant.

There, happy now?
I hope it's relevant too!
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Old 09-10-2010, 10:08 AM
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I like the sound of this.

At first Nordyke was a first amendment case, then the second came in after Heller.

Now it can go back to the first because a gun show is a "purely expressive activity" based around a fundamental civil right "rather than conduct expressive of an idea" (which in the case of gun rights would be LOC or even just LC?).

And the equal protection angle gets stronger because the Highland Games are allowed "conduct expressive of an idea" when they actually fire guns at the fair grounds.

Unless there is a more direct legal referece or controling prescedent, I think this could factor in heavily.

But I'm not a lawyer, it just seems like that would work.
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Old 09-10-2010, 10:27 AM
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If the gun show is protected speech, then it is 1st amendment activity with 2nd amendment activity for it's subject matter. Kinda like this:



Even Gorski could make a case for . . . . .nevermind.
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Old 09-10-2010, 6:33 PM
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Maybe Nordyke wins on 1st Amendment grounds, but I'd rather it be on 2nd Amendment grounds. The 1st has been stretched farther than the straps on Rosie's over-the-shoulder-boulder-holder. It's time for the 2nd to be flexed.
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Old 09-10-2010, 6:50 PM
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I reread the briefs filed in the Nordyke case. What's most interesting is Don Kilmer's Brief Brief on behalf of the Nordykes. Don argues 1st amendment protection even before the second amendment argument. To me his arguments are extremely compelling.

Start on PDF page 11.

Quote:

The County concedes that possession of a gun at a gun show is expressive conduct, thus making that possession a species of speech protected by the First Amendment
And again on PDF page 13 Argument 1.)

Quote:

This case raises First Amendment, Second Amendment and Equal Protection issues in conjunction with historically law-abiding gun shows at the Alameda County Fairgrounds.

A. POSSESSION OF A FIREARM AT A GUN SHOW IS EXPRESSIVE
CONDUCT PROTECTED BY THE FIRST AMENDMENT.

The County has conceded this issue in the trial court and the trial court made that finding. See fn. 3, supra. Appellants aver that since the Ordinance purports to generally regulate expressive conduct with guns on county property – including exempting the Scottish Games and guns used in motions pictures, television and theatrical productions – that the Ordinance must be subject to the strict scrutiny test laid down in Texas v. Johnson, 491 U.S. 397 (1989).
I read the 9th Cir. opinion in the tattoo case. It was interesting in that Hermosa City Beach didn't actually ban the act of tattooing but rather their municipal building zone were written such that it was impossible for tattoo businesses to operate. They city was mean too. The City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The district court did a really bad job of deciding the case. Reversing it was the right thing to do. I like how Judge Bybee made fun of the district court when he wrote the following:
Quote:
Under the district court’s logic, the First Amendment would
not protect the process of writing most newspaper articles—
after all, writers of such articles are usually assigned particular
stories by their editors, and the editors generally have the
last word on what content will appear in the newspaper. Nor
would the First Amendment protect painting by commission,
such as Michelangelo’s painting of the Sistine Chapel.
My favorite part of the opinion was in part of the analysis section where he applied the 1A protections.
Quote:
[6] The principal difference between a tattoo and, for
example, a pen-and-ink drawing, is that a tattoo is engrafted
onto a person’s skin rather than drawn on paper. This distinction
has no significance in terms of the constitutional protection
afforded the tattoo; a form of speech does not lose First
Amendment protection based on the kind of surface it is
applied to. It is true that the nature of the surface to which a
tattoo is applied and the procedure by which the tattoo is created
implicate important health and safety concerns that may
not be present in other visual arts, but this consideration is relevant
to the governmental interest potentially justifying a
restriction on protected speech, not to whether the speech is
constitutionally protected. We have little difficulty recognizing
that a tattoo is a form of pure expression entitled to full
constitutional protection.
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Old 09-14-2010, 1:56 AM
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Read that case Friday. Filed this letter Monday.
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Old 09-14-2010, 2:16 AM
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I thought the 9th already ruled on first amendment grounds relating to Nordyke. While Mcdonald changes the second amendment argument completely, I doubt the court will change it's opinion on the first amendment grounds. I would think they will simply echo what was said in the first Nordyke ruling.
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Old 09-14-2010, 3:17 AM
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Originally Posted by E Pluribus Unum View Post
I thought the 9th already ruled on first amendment grounds relating to Nordyke. While Mcdonald changes the second amendment argument completely, I doubt the court will change it's opinion on the first amendment grounds. I would think they will simply echo what was said in the first Nordyke ruling.
When Nordyke went en banc, the entire opinion was suspended and could not be cited for legal authority on any point of law. After McDonald the en banc panel specifically vacated the entire opinion and sent the whole case back to the original panel for a redo. When that panel ordered supplement briefing their instructions called for a discussion of the impact of McDonald and any other developments in the law effecting the case. Because there had been significant First Amendment legal developments (Berger, Citizens United, etc...), they were cited in the Nordyke Supplement Brief. The FRAP 28(j) Letter bringing Anderson to the attention of the Court is an extension of that process.
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Old 09-14-2010, 3:20 AM
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Quote:
Originally Posted by Lex Arma View Post
When Nordyke went en banc, the entire opinion was suspended and could not be cited for legal authority on any point of law. After McDonald the en banc panel specifically vacated the entire opinion and sent the whole case back to the original panel for a redo. When that panel ordered supplement briefing their instructions called for a discussion of the impact of McDonald and any other developments in the law effecting the case. [b]Because there had been significant First Amendment legal developments (Berger, Citizens United, etc...), they were cited in the Nordyke Supplement Brief. The FRAP 28(j) Letter bringing Anderson to the attention of the Court is an extension of that process.[b]
I was unaware that any changes in 1st amendment law occurred. I should have said "In My Incorrect Opinion".
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Old 09-14-2010, 9:41 AM
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Quote:
Originally Posted by Lex Arma View Post
Read that case Friday. Filed this letter Monday.
This sounds great.

I just wonder how persuasive it is, that was in a lower court, right?

Not that it's not a good argument but that the circuit court maybe can ignore it if they want.

So Don, when you read the Anderson decision did you jump for joy or just think "this supports our case I should file a FRAP 28(j) Letter".
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Old 09-14-2010, 10:33 AM
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Quote:
Originally Posted by wash View Post
This sounds great.

I just wonder how persuasive it is, that was in a lower court, right?

Not that it's not a good argument but that the circuit court maybe can ignore it if they want.

So Don, when you read the Anderson decision did you jump for joy or just think "this supports our case I should file a FRAP 28(j) Letter".
Nope. Its a 9th circuit decision (not a lower court)
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Old 09-14-2010, 10:40 AM
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This:

Quote:
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Quote:
Anderson v. City of Hermosa; 2010 U.S. App. LEXIS
18838 (9th Circuit)
means that's it's a 9th Circuit decision, not a lower court.

http://www.ca9.uscourts.gov/datastor...9/08-56914.pdf
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Old 09-14-2010, 10:47 AM
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Awesome!
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You suck!!! Your are wrong!!! Stop it!!!
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Old 09-14-2010, 12:11 PM
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I LOL'd:
Quote:
We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Dürer, but
we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated.
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Old 09-14-2010, 12:32 PM
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Quote:
Originally Posted by N6ATF View Post
I LOL'd:
That is funny! Judge speak is hilarious at times. This is especially true when encountered after having read many pages with a serious tone.
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Old 09-14-2010, 12:38 PM
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While your opinion of the average tattoo artist may be low, there are some tattoo artists who are exceptional.

My cousin has traveled the country to be tattooed by the best and the result is quite beautiful.

Not all tattoos are tramp stamps or some girl's name.

After enjoying the exercise of my second amendment rights, I decided that I should exercise my first amendment rights and I got a tattoo. While it's not as large or detailed as any of my cousin's tattoos, that's more due to where it was done. The subject matter was chosen specificly to encompass as many first amendment clauses as possible, I think I got everything except petition and assembly.

So tattoos can be good for a lot more than a few LOL's.
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Old 09-14-2010, 11:19 PM
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I agree. As I am allergic to a great many things, I am hoping infinitink will work as a hypo-allergenic substitute, when I decide what to get.
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