California’s Ninth Circuit Comes Out with Guns Blazing
Following the Heller decision, Nordyke’s lawyers refiled, because the Second Amendment was now clearly an individual right. Nordyke’s lawyers asked the Ninth Circuit to reconsider, and with respect to incorporation of the Second Amendment against the states. As the Ninth Circuit opinion eloquently observes on p. 4490:
This brief survey of our history reveals a right indeed “deeply rooted in this Nation’s history and tradition.” Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.
The Heller decision answered a very specific question: is there a right to have a handgun, or any loaded firearm, in your home? The Alameda County ordinance, as silly as it was, did not prevent that. Nor did it apply to public streets. It applied only to non-public facilities owned by the county. A government acting as landlord has substantially more discretion than the government acting as government.
Because Alameda County technically “won,” they can’t appeal to the Supreme Court. They can, at most, request what is called an en banc hearing of the Ninth Circuit (in which a larger panel of judges decides whether this decision is correct or not). It appears unlikely that such an en banc hearing will take place.
Since other circuits of the Court of Appeals have ruled that the Second Amendment does not apply to the states, we will have what is known as a “circuit split,” which means that some circuits have come to one conclusion while others have come to another. While the U.S. Supreme Court is not required to hear such an appeal, when an important question of law is involved, it usually does so.
The Heller decision alluded to the question of incorporation, and some informal remarks by members of the Heller majority suggest that they had thought about this question and agreed that incorporation against the states was inevitable. Best of all, it looks like such a Supreme Court hearing will take place sooner rather than later — and while the five judge majority that decided Heller still sits on the bench.
Not every state gun control law will necessarily be overturned by incorporation of the Second Amendment. It will, however, put the burden of proof on governments to show that a gun control law serves at least some legitimate governmental purpose. In some cases it may require the government to establish that there is no other way to accomplish a legitimate end. That’s a standard that few state and local gun control laws can meet.
If liberals think that gun-controls work, then feel free to visit Australia. Our laws are a joke, and even one major airport found out the hard way.
What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home! How timely is that?
The leftists extremeists got shot down. Now the liberals can go ban spoons in the battle of obesity.
“What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home!”
I wonder if the court was worrying about the big “0″
After a crazy paedophile killed a large number of children in a school in Dunblane, Scotland, hanguns were totally banned. Since then gun crime has rocketed especially amongst urban blacks whipped up by rap, crack and a victim culture mentality. Areas of London and Manchester with pockets of high immigrant density are particularly affected. So, you can take the guns away yet the gun mentality escalates. And escalates thus proving that it’s not the guns but the mindset of ones who use them. And also banning them doesn’t mean that they are unobtainable. If say handguns were banned in the US what happens to the millions in circulation? Amnesty and handing in? Doesn’t work. We’re reaching the end of a socialist nightmare. Obama resembles Blair so much with his slick tongue and faux cool persona. You’re stuck with him for four years. Thankfully our Blair replacement will be gone next year. It won’t kill you but it will certainly change America for the worse. And you’ll be a lot poorer as millions pour down experimantal swamps never to be seen again. Batten down. Hold resolve and it’ll soon pass.
Maybe this will be Obama’s response to the fact that disarming the public is becoming harder and harder to do as the courts catch up to the obvious meaning of the constitution…. It seems he has already planned on having to defend the government from the electorate.
The 9th Circuit ? Are you sure ? This can’t be. You’re sh**ing me right ? Ahhhh…I know, this is one of those jokes going around the internet, right ?
After following the 9th Circuit for years, I’m now convinced that pigs really do fly.
I would feel better about this development if the 9th wasn’t the most overturned circuit in the courts. Further, it is my sincere hope that other litigants are coming forward after this ruling. Here in the PRK we far too many unconstitutional enactments (they aren’t laws) which need stricken down. E.g. it would appear to me, and IANAL, that Murdock v. Pennsylvania (319 U.S. 105) would appear that the “assault weapon” registration should found unconstitutional, as a license fee imposed to enjoy a right – “A state may not impose a charge for the enjoyment of a right granted by the federal constitution.” And let’s not get caught up in the “granted” vs. pre-existing discussion, please.
#1 BPT..I have always wanted to take a trip to Australia and New Zealand. I am curious if Australia suffers the same left-wing dogma as America? Are the schools in Australia indoctrination centers? Is the media extremely biased? Just Curious?
The second amendment was made part of the Constitution in order that the people might protect their liberties from and eventually overthrow a tyrannical government. Evidently the 9th circus has just learned this.
What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home! How timely is that?
Very timely since gun owners, those who lean to the right politically have been branded and dangerous right wing extremists. As this came out of the 9th circus court of appeals I will need to wait a bit longer before I celebrate like I really want to. An excellent outcome for sure. A hand gun ban in the USA?? I suppoose that is possible but they would never find mine and the market would go underground for sure
and not many would be willing to turn their weapons in. The way this administration is caving in to our enemies, who knows what is going happen. I will protect my family, and to the death if need be.
Liberalism=tyranny!
steveg, in case BPT doesn’t get back to you, the answer is yes. The schools are lefty indoctrination centres.
If any aussie readers want to disagree with me, then I can point out one child who came home telling me that Japanese people are evil for killing and eating whales (mine), and white people are mean to aboriginal people (also mine).
My child is nearly 7, so it’s not looking good for her.
At least she thinks our PM Kevin Rudd (a lefty suspected to be in the pocket of China) is an idiot and likes John Howard.
Another child brought home an art project last year which consisted of making a model of a toll road and then explaining why it was a good thing. Here in Melbournistan we have a rather socialist government who were voted in in part on the promise of finally building a freeway and not tolling it. They lied. It’s a great road, but it’s not free.
That child also had a homework assignment on recycling – she had to give a talk on recycling with a list of words that had to be included. That was at grade one, which is 7/8 years old.
So that’s two for two.
Will obama take over the ammo industry?
To steveg re: Socialistic Oz — yes to each issue you ponder.
For excellent insight into Australia today (and, indeed, the U.S. and world affairs), visit Andrew Bolt’s blog (http://tinyurl.com/2klgya) and Tim Blair’s blog (http://tinyurl.com/5n3nee).
Without the second amendment all the others mean nothing. Most people don’t realize that fact.