An idiots guide to incorporation

[ChuckBooty]

Can someone explain this to me? As I understand it the DC Gun Ban case set the standard and this next case means that the rest of the country must follow this example?

Also...how does this effect us here in California? Once the case is won, do we automatically have incorporation? Does this mean no more hand-gun roster, ten-day wait, CCW all day every day or what?

Thanks in advance!

[huggybear]

i asked the same thing and here r the answers i got.

http://www.calguns.net/calgunforum/showthread.php?t=254539&page=11

[bruss01]

Chuck,

Nothing is automatic, but a lot of doors will be opened if/when McDonald prevails.

For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune. Because of those prior decisions which set precedent, no case can be brought in CA which cites the 2nd Amendment vs a CA state law. It is a lost case before it is ever filed.

However, if/when McDonald prevails, it will effectively over-rule those prior cases... at that point, any case filed on 2nd Amendment grounds can at least go to trial. It will be a series of court cases... one after another... to bring down the roster... the 10 day wait... mag cap limits... and the AW ban.

A lot of people said of Heller and say now about McDonald that these two cases don't change diddly. That's true in the sense that no anti-gun laws magically go *poof* and disappear from the law books. But another way to look at it is, before Heller/McDonald, we were dead in the water with a motor that wouldn't start... after McDonald, we will at least have the motor up and running, now it is up to us to pilot the craft towards the shore of 2nd Amendment freedom. There will still be currents to fight, waves to crest, rocks to avoid, and other obstacles to overcome. Nothing will be guaranteed, but at least we will have a fair fight of it.

[bulgron]

Can someone explain this to me? As I understand it the DC Gun Ban case set the standard and this next case means that the rest of the country must follow this example?

Incorporation means that the entire country is limited in its actions by the second amendment in exactly the same way as the Federal Government. However, exactly how strong those restrictions are have not yet been defined by the courts. This will be fleshed out over the next century or so by continuing court cases, just as all civil liberties litigation just goes on and on and on.

Also...how does this effect us here in California? Once the case is won, do we automatically have incorporation? Does this mean no more hand-gun roster, ten-day wait, CCW all day every day or what?

Thanks in advance!

What incorporation means for us here in California is that we can sue the State of California over gun laws that we believe violate the Second Amendment, and we can bring those lawsuits in federal court (instead of state court). These lawsuits will help to flesh out exactly what the second amendment protects and how strict those protections are.

In terms of CCW, once we have incorporation the Sykes case can proceed. At the moment that case is on hold while we all wait to find out what happens with McDonald. If we win Sykes, then the State is going to have to let us bear loaded arms somehow, in someway, and without all the hoopla.

So, in other words, on the day that we win McDonald (I'm being optimistic, but hopefully not wildly so), we can all let out a great big cheer. Then we should all write a big check to CalGuns because they're going to need money to pursue the legal cases that will finally convince the State of California that they can't trample on our gun rights anymore.

[ChuckBooty]

Chuck,

Nothing is automatic, but a lot of doors will be opened if/when McDonald prevails.

For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune. Because of those prior decisions which set precedent, no case can be brought in CA which cites the 2nd Amendment vs a CA state law. It is a lost case before it is ever filed.

However, if/when McDonald prevails, it will effectively over-rule those prior cases... at that point, any case filed on 2nd Amendment grounds can at least go to trial. It will be a series of court cases... one after another... to bring down the roster... the 10 day wait... mag cap limits... and the AW ban.

A lot of people said of Heller and say now about McDonald that these two cases don't change diddly. That's true in the sense that no anti-gun laws magically go *poof* and disappear from the law books. But another way to look at it is, before Heller/McDonald, we were dead in the water with a motor that wouldn't start... after McDonald, we will at least have the motor up and running, now it is up to us to pilot the craft towards the shore of 2nd Amendment freedom. There will still be currents to fight, waves to crest, rocks to avoid, and other obstacles to overcome. Nothing will be guaranteed, but at least we will have a fair fight of it.

THAT is the best answer that I've heard. Thank you!

[barrym66]

Nice summary and conclusion, bulgron!

[sytfu_RR]

Thanks for the explanation. lol

[smt77]

Those were very well worded, clear explanations. Thank you.

[SP1200]

For instance, the 9th Circuit Court (which governs court cases in CA) has issued legal decisions (decisions that set precedent for the 9th Circuit) which state that the 2nd Amendment applies to the FEDERAL government, but the states are immune.

But didn't the 9th Circuit recognize incorporation in the Nordyke case???

[ke6guj]

But didn't the 9th Circuit recognize incorporation in the Nordyke case???

temporarily. A 3-judge panel did rule with a pro-incorporation ruling, but it was put on hold due to an en-banc rehearing. The ruling from the en-banc panel has been postponed pending McDonald.

[bigcalidave]

They wussed out, decided they didn't want to be the ones responsible for making the decision, and with a supreme court case coming up that asks the same question..... They took a vacation.

[SP1200]

temporarily. A 3-judge panel did rule with a pro-incorporation ruling, but it was put on hold due to an en-banc rehearing. The ruling from the en-banc panel has been postponed pending McDonald.

I hate this crap! Every freak'n time we get all excited, ya we won! We really don't! And didn't CA AG JB also recognize incorporation?

So what's en-banc? Judges re-thinking their ruling?

[SP1200]

They wussed out, decided they didn't want to be the ones responsible for making the decision, and with a supreme court case coming up that asks the same question..... They took a vacation.

So is McDonald a direct case about incorporation on the states?
Or is their going to be a bunch more BS to do after?

Isn't McDonald just another hand gun ban challenge?

[hoffmang]

I hate this crap! Every freak'n time we get all excited, ya we won! We really don't! And didn't CA AG JB also recognize incorporation?

So what's en-banc? Judges re-thinking their ruling?

en-banc usually means a hearing in front of all the judges of an appellate court. Here in California that means a hearing in front of a large panel of the appellate court since we have such a large circuit and number of judges.

Nordyke is held pending McDonald. However, McDonald will be determinative of whether the 2A applies as against the states independent of Nordyke. After McDonald's decision is released (most like the last week of June 2010) then Nordyke will become solely a decision about whether gun shows can be banned as the 2A will most likely already be applied to the states.

-Gene

[SP1200]

What are the details about McDonald that will allow incorporation?
Isn't it just another hand gun ban case?