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Post by subdjoe on Apr 20, 2009 22:09:32 GMT -5
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Post by The Big Dog on Apr 21, 2009 15:17:30 GMT -5
While it's less than half a loaf for the Nordykes, this ruling represents a potentially massive win for firearm owners in California.
The court not only pronounced clearly that Amendment Two is incorporated to restrict the states and local government from infringing, but it essentially vacated it's own ruling in Hickman v. Block which has been the club the anti's have used to beat us down time and time again here in California.
The ruling instantly opens up a wide sweep of potential litigation over the most draconian of our gun laws, both state and local. It also puts the Legislature and local government on notice that they will need to consider any new regulations very, very carefully. There is precious little money out there that taxpayers are going to be willing to spend defending unconstitutional laws. Mayor / Candidate Newsom found that out when his unconstitutional gun ban in San Francisco was tossed and when he folded his tent and settled a suit over residents of city housing not being able to own firearms. No money and no stomach for a fight he knew he would almost certainly lose.
But, and this is a big but, the narrow scope of Heller in part hamstrung the Nordyke appeal as a whole and why they lost on their appeal as a whole. The key holding in Heller, is that owning and keeping a firearm in one's home for self defense can not be infringed with the notable exceptions such as felon in possession which even I, Mr. Absolutist as some have labelled me elsewhere, find perfectly reasonable. It is going to take years, if not decades, more litigation to undo some of the more egregious damage to our freedom that the Legislature and local government have done.
Having said that, I am as certain as I am sitting here that a number of actions are already written and need only be filed.
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Post by subdjoe on Apr 21, 2009 15:33:29 GMT -5
Good post, Big Dog. Yes, it is half a loaf, but that is a hell of a lot better than the crumbs that we had. This is more than a battle, but less than the war won.
Heller is an odd decision, since it pretty much said half of the 2nd is an individual right - you can keep but not bear. But at least that has now been incorporated to the states. Now all the pro-civil rights groups need to huddle and work out a new campaign of litigation to press this and eliminate the anti-civil rights laws that the national socialist have put in place in the last 20 or 30 years.
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Post by The Big Dog on Apr 21, 2009 16:11:08 GMT -5
Heller is not that odd when you consider what it was that the justices had to address, based on the case as the Heller team presented it. Clearly it was designed to be an incremental first step, just broad ranging enough to be a landmark, but narrow enough in scope that it can't be easily overturned.
Heller was fought and designed to open doors. This ruling in Nordyke has forced the door open a bit farther and has the corollary effect of making Mayor Daley's shit in Chicago for his own gun ban look pretty weak.
I do not expect Alameda County to appeal Nordyke as they got what they've long sought, summary judgement of their ordinance. I actually don't expect the Nordykes to appeal either, as they don't really have much to gain. The court made a fairly cogent ruling, apparently well founded in the law (novel) for why the county could enact such an ordinance and not infringe in light of Heller.
But we have incorporation now. That means the that, simply, the Constitution means something. There is just going to have to be a whole lot more litigation. As Judge O'Scainlain wrote in Nordyke... Second Amendment law is in it's infancy.
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Post by subdjoe on Apr 21, 2009 17:15:17 GMT -5
As Judge O'Scainlain wrote in Nordyke... Second Amendment law is in it's infancy. Which I don't quite get. Since until recently it was not open to question. Here from the infamous Dred Scott decison, on what may happen is Negros were to be free and considered citizens: "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. "To keep and carry arms wherever they went." Just like any other citizen. There are many other examples of the 2nd being used as an example of an untouchable and basic civil right. Even the favored decsioson, Roe v. Wade cites the 2nds as an example of an indiviual right. So I'm really confused as to why the judge would say it is in its infancy. |
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Post by The Big Dog on Apr 21, 2009 18:58:39 GMT -5
Because Cruikshank has been heavily relied on by the anti's for years ( and which the Nordyke decision mentions along with Presser ). If you ever want to read a bunch of racist drivel that not only institutionalized Jim Crow but effectively disarmed an entire class of people (southern blacks) you would be hard pressed to find a better example than Cruikshank.
That decision, effectively, said that states and local jurisdictions could stand in the way of Amendment Two, and that it only applied federally. It has been the basis and the foundation for nearly all the draconian firearms law in this country and in California particularly. The Ninth Circuit, when they rendered Hickman v. Block (which Nordyke thankfully wipes the slate clean of), relied heavily on Cruikshank.
What is in it's infancy is actual examination of what Amendment Two, now that it has firmly been established as an individual right and has been incorporated to the states of the Ninth Circuit (so far) actually protects. Heller was very narrow on this, hence why the litigation has only just begun.
But the breeze is swinging smartly in our favor after years of us having to sail against the wind. And that is a good thing.
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