Rammifications of Nordyke on Pena???

[kcbrown]

The state will argue that it's all for "safety" yet they will not be able to prove that ANYTHING about the roster is about safety except perhaps for the drop testing. Everything else has nothing to do with safety and everything to do about restricting firearms in common use through arbitrary and capricious measures.

Thanks to the Nordyke opinion, the state doesn't have to prove that the law is effective. It is now sufficient for the government to merely claim that it is. Which is to say, the 9th will presume effectiveness and automatically defer to the government's claim.


So yes, the roster will now easily survive all the way up to the 9th Circuit. It will have to be smacked down by the Supreme Court.


Look, guys, with Nordyke, the 9th Circuit has declared war on the 2nd Amendment. I see no other reasonable way to interpret their ruling on that case.

[M. D. Van Norman]

We were always going to the Supreme Court.

[OleCuss]

kcbrown:

I'm disappointed as well, but I think you might be going a bit farther than necessary with your pessimism.

But heck, if they did declare war on the 2A that might be a good thing. Right now the 2A has much on its side and if a war to the point of unconditional surrender were to be engaged then the 9th circuit would likely lose. If the 9th Circuit truly loses the war then we've won and there is no further judicial opponent within our 9th Circuit region!!!!

I'm not really that pessimistic - or that optimistic.

[Wherryj]

just more sand in the hour glass.

i am going to stop waiting, move out of state, send CGF checks untill they win, and in thirty years when I am ready to retire, I bet the laws of this state will be palatable for my retirement.

Why would you return to the PRK for retirement? You actually WANT to pay higher taxes after retirement?

[kcbrown]

kcbrown:

I'm disappointed as well, but I think you might be going a bit farther than necessary with your pessimism.

Maybe. I'd love to be proven wrong. The only tiny little piece of evidence I've seen that might contradict my impression is that they didn't say "in the home".

But then, they did such a thorough job of gutting the 2nd Amendment that they may have felt that not saying "in the home" had greater strategic value to them.

I mean, the essence of their ruling is that (a) the government's legitimate interest and the effectiveness of the law is automatically presumed, (b) self-defense is the only thing that gets any "heightened scrutiny" at all (meaning, anything more than rational basis), and (c) you only get heightened scrutiny if the plaintiffs can prove a "substantial burden" on the right to self-defense.


What does this mean? It means the government can legitimately outlaw entirely classes of weaponry, as long as other classes are available. They can outlaw all firearms, for instance, as long as you can carry a knife. As long as you're able to carry just one weapon for self-defense, no matter how ineffective in reality, your right to self-defense could easily be regarded as not having been "substantially burdened".

Why? Because "substantially burdened" is defined and interpreted by the court. While Patrick seems to think that there is sufficient previous jurisprudence defining the nature and scope of that term, I think he ignores the fact that, as far as jurisprudence is concerned, this is a brand new right. That means all the terms can be redefined, and I have little reason to believe that the 9th Circuit won't take every opportunity to define the terms in ways that are abhorrent to the 2nd Amendment, based on what they did in Nordyke.

But heck, if they did declare war on the 2A that might be a good thing. Right now the 2A has much on its side and if a war to the point of unconditional surrender were to be engaged then the 9th circuit would likely lose. If the 9th Circuit truly loses the war then we've won and there is no further judicial opponent within our 9th Circuit region!!!!

I agree. Believe me, I don't see the 9th Circuit as being the last stop here, nor do I particularly believe they'll get away with their machinations as long as the Supreme Court retains its current membership. But if just one of the Heller 5 gets replaced by an anti-gun President, it's all over.

That's why I figured they'd just sit on this. But the nature of this ruling is such that it's easy to see why they didn't: they just threw the other circuit courts, and perhaps even a future anti-gun Supreme Court, a roadmap by which to reduce the 2nd Amendment to ashes.

[bwiese]

I doubt that'd be enough because one can still get off-roster pistols through PPTs and single-shot exemptions.

Those specialty paths are too small-scale and exceptional to have an effect.

The single shot/single action revolver conversion situations were examined in relation to Pena and found not to cause issues. It's also in part why we moved back from further driving NeRF situation thru court.

[navyinrwanda]

Plug the facts into the Nordyke IV framework. I can buy a black gun but I can't buy a mechanically identical two-tone gun, same make and model. How does this burden the exercise of the right to keep and bear arms for self-defense?

By itself, it doesn't. And that's a potentially fatal flaw in the roster litigation strategy.

But what's the rationale for banning an identical two-tone gun? Well, there isn't one... but the court wouldn't know this since evidence hasn't been put forth.

Looking back at the Nordyke

[kcbrown]

By itself, it doesn't. And that's a potentially fatal flaw in the roster litigation strategy.

But what's the rationale for banning an identical two-tone gun? Well, there isn't one... but the court wouldn't know this since evidence hasn't been put forth.

The problem now is that the evidence doesn't have to be put forth. If I'm not mistaken, the court said, in essence, that a rationale behind the law is presumed to exist by the court. One need not be explicitly given by the government.

Which is to say, judicial review for 2nd Amendment cases has just been taken off the table, and one of the prongs of the strict scrutiny test has now been declared by this court to always be considered as passed.

The litigation strategy needs to change. It's no longer enough to simply rely on legal arguments to overturn some of the more insidious restrictions – we must put forward convincing evidence that these schemes are irrational on their face. That's a harder and more complex undertaking. But if substantial burden becomes the standard, then don't expect to see things like assault weapons bans or not unsafe handgun rosters fall unless it's proven that they make no sense (vs. have no positive effects).

Even that may not be enough in the face of the 9th Circuit's opinion.


It seems clear to me that, perhaps, as of now, 2nd Amendment cases in California will need to be tailored to win at the Supreme Court, and only at the Supreme Court. The only maneuvering at the lower levels that should be done is that which is required to maximize the chance of getting the case bumped all the way up. I'm not sure what risks that brings to the table in the overall scheme of things, though...

[Bhobbs]

By itself, it doesn't. And that's a potentially fatal flaw in the roster litigation strategy.

But what's the rationale for banning an identical two-tone gun? Well, there isn't one... but the court wouldn't know this since evidence hasn't been put forth.

Looking back at the Nordyke record (and recognizing the exceptional precision of hindsight), it's now clear that it was thin on evidence refuting the County's assertions.

The litigation strategy needs to change. It's no longer enough to simply rely on legal arguments to overturn some of the more insidious restrictions – we must put forward convincing evidence that these schemes are irrational on their face. That's a harder and more complex undertaking. But if substantial burden becomes the standard, then don't expect to see things like assault weapons bans or not unsafe handgun rosters fall unless it's proven that they make no sense (vs. have no positive effects).

The part you are missing is there is no logic and reason behind banning a firearm because it is a different color. The anti gunner only sees it as being different, therefore it must be tested by the state. The company doesn't want to or can't afford to pay to have all their different makes and models on the roster so it just doesn't put any or all through the testing.

The ends justify the means to them and it doesn't matter what they do. Look at the precedence this ruling sets.

You can ban gay marriage because a gay person can still marry a straight person. You can ban Christianity because they can still be Muslim or Buddhist. The state can search anyone's house, property, email, etc because they have a compelling interest in public safety. I am not a lawyer but I can see this as being used for many different cases to strip us of more rights.

[hoffmang]

FGG,

1. The common use test for firearms doesn't allow long arms to substitute for handguns. Why would it allow a state to ban half of handguns?

2. Do you really think that the state wants to question our one armed plaintiff on the record? Really? LOL.

-Gene

[glockwise2000]

just more sand in the hour glass.

i am going to stop waiting, move out of state, send CGF checks untill they win, and in thirty years when I am ready to retire, I bet the laws of this state will be palatable for my retirement.

Or probably have collected so much off-roster while OOS and enjoys them.

[command_liner]

Plug the facts into the Nordyke IV framework. I can buy a black gun but I can't buy a mechanically identical two-tone gun, same make and model. How does this burden the exercise of the right to keep and bear arms for self-defense?

Good question.
Here is an area where I have some expertise. I was the first person
to fight the Springfield XD Bitone 45 fight. Eventually this got wrapped
up in the Pena case.

The State's behavior is arbitrary and capricious, and they violate their
own laws.

LEOs can buy the XD Bitone 45 right off the shelf.

Anybody else can buy the XD 45 Bitone, but not in one step. If you buy
an XD 45 Bitone in 2 transactions, it is "not unsafe". If you (non-LEO)
buy it in one transaction, it is "unsafe".
(Yes, I am very sure of this, and I still have the correspondence from the
California Attorney General. As does CGF.)

The key issue in play is that the "firearm" is the serialized object, the
frame. Even though the frame does not change, the state holds that
the firearm is "unsafe" because the color of the slide changes.

It gets more bizarre. When the polymer of the frame (the serialized part)
*DOES* change, the state holds the resulting firearm is "not unsafe"!
The state holds that changing the polymer of the receiver does not
change the "unsafeness", but changing the finish of a non-serialized
part does change the "unsafeness". Only when buying the firearm
in one transaction, and only for non-LEO. "Unsafeness" is not altered
when buying the firearm in two or more transactions.

The law in this area is compact and understandable. The opinions
of the AG do not follow the plainly worded law.

If a LEO were to buy the firearm in 2 or more transactions, many
departments would consider the resulting firearm "custom", and thus
unfit for a duty weapon. Probably because it would be "not known to
be non-unsafe".

From a historical point of view, the *right* way to solve this bit of idiocy
would be to hang all the lawmakers, judges and bureaucratic weasels
that had anything to do with forming this opinion.

[eeeeman]

Nordyke on pema

What we should do is push to have this law apply to LE also. I do not see a reason for there exception. if its training then offer us the same.

[ddestruel]

What we should do is push to have this law apply to LE also. I do not see a reason for there exception. if its training then offer us the same.

this has always been a question of mine. if LEO's are civilian's there to protect and serve then the sa,e rules apply to them as do the rest of us. if exceptions are granted through current legislation then it is only for on duty and even then it creates a different class fo citizen. is the fight at re-establishing the fact that "all men are created equal" ?

[CHS]

What we should do is push to have this law apply to LE also. I do not see a reason for there exception. if its training then offer us the same.

The ONLY reason LEO have historically been exempted from these laws is to get the laws passed in the first place. LEO's tend not to fight against laws that don't affect them.

It's the "easy pass" for the legislature.

The exemptions are ALREADY in place for LEO's in their official capacity (including exemptions for machineguns, DD's, etc), so it makes absolutely no sense whatsoever to exempt them from laws that would only affect the civilian side of their life, unless you want less resistance to pass a piece of gun control.