Search Results for : nordyke

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Nordyke Brief Up

The appellants from Nordyke v. King have filed an amicus curiae brief [pdf] in support of McDonald v. Chicago.

My notes from the original verdict are here. As expected, the decision at hand created a circuit split. An order was filed to remand the verdict for a rehearing by the full 9th Circuit, who decided to shelve the matter pending the outcome of McDonald v. Chicago.

Their brief for McDonald not only argues that incorporation is necessary and prudent, but that the Supreme Court must establish a unilateral standard of review so as to give guidance to lower courts in deciding future litigation.

The original Nordyke verdict suggested strict scrutiny, as did the 7th Circuit in this week’s Skoien decision.

The current brief is more specific:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib.

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Civil Rights

First Fallout from Nordyke

The ink’s barely dry, and there’s already a challenge to California’s practice of maintaining a list of “approved handguns.”

Defendant’s handgun roster program violates Plaintiffs’ rights to equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution, in that Defendant allows some people access to handguns barred to plaintiffs, and otherwise make arbitrary, capricious, irrational, and otherwise unjustifiable distinctions among the handguns that Defendant deigns to allow Plaintiffs in their exercise of fundamental Second Amendment rights. Defendant is thereby propagating customs, policies, and practices that violate the Fourteenth Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against such customs, policies, and practices.

Pena v. Cid [pdf], 9th Circuit, p. 10

Civil Rights

An Unexpected Win

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Today, the 9th Circuit Court of Appeals delivered a surprising verdict in the case of Peruta v. San Diego [pdf]. California’s requirement that applicants for concealed carry permits prove “good cause” has been ruled unconstitutional.

The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense. [p. 77]

Wow. Nobody really expected that from this court, and I really didn’t expect this from Judge O’Scannlain, who was less than helpful in Nordyke.

Civil Rights

Feinstein’s Charity

Govtrack and Thomas haven’t posted it yet, but the full text of Dianne Feinstein’s proposed Assault Weapons Ban of 2013 is posted here. It appears to be numbered S. 150.

The list of prohibited weapons is pretty much what we saw on Thursday, and the list of weapons she deigns to let us keep begins on page 23. We would be granted the privilege to keep historic “assault” rifles like Garands and M1 carbines so long as they don’t have folding stocks or extended magazines. Beyond that, it’s more or less deer rifles and turkey guns. On her reasoning for this, she had this bit of sage insight:

Military-style assault weapons have but one purpose, and in my view that’s a military purpose, to hold at the hip, possibly, to spray fire to be able to kill large numbers.

How very conciliatory of her to leave a few crumbs on the table for the lowly civilians.

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Civil Rights

Ezell v. Chicago: Full of Win

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Does the right to keep and bear arms include the right to fire them? According to today’s 7th Circuit opinion [pdf], it does.

In order to keep a functional firearm in the home, Chicago residents must acquire a permit. Part of getting the permit involves proving proficiency through a live-fire course at a range. However, the city has an ordinance that prohibits anyone from opening a range in which the average person can do so. Read that again. Yep.

The 2nd Amendment Foundation sought an injunction against enforcement of the ordinance last year, but Judge Kendall upheld its constitutionality in District Court. The case moved to the 7th Circuit in April, and they were not pleased with the city.

Stung by the result of McDonald v. City of Chicago, the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of liveâ€range instruction, and then banned all live ranges within City limits.

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Civil Rights

U.S. v Skoien Decided

We’ve got our first post-McDonald decision [pdf], and it’s a bit of a disappointment. Judge Skyes’ original decision, in which the 7th Circuit had applied strict scrutiny to the “core right” of the 2nd Amendment and “intermediate” scrutiny to the rest, has been overturned.

The Heller dicta regarding “presumptively lawful” regulations and “longstanding prohibitions” were on full display here. I worry that those two phrases will continue to cause us trouble into the foreseeable future.

For now, the constitutionality of §922(g)(9) (the Lautenberg Amendment) still stands, and the bar for scrutiny has been lowered from strict to intermediate scrutiny across the board:

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that §922(g)(9) is valid only if substantially related to an important governmental objective. [p. 8]

Civil Rights Info Dump

McDonald v. Chicago, 5-4

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The 7th Circuit’s decision in McDonald v. Chicago has been reversed by the Supreme Court and remanded for further proceedings. That means we won.

To some extent, that is.

The ruling [pdf] was a narrow 5-4 decision, and the 2nd Amendment has been incorporated against the states through the Due Process clause of the 14th.

We get incorporation, but Slaughterhouse stands.

Civil Rights

U.S. v. Skoien To Be Reheard

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News comes from Eugene Volokh that the 7th Circuit wants the Skoien case reheard en banc. There are two possibilities here.

The first is that there was widespread disagreement with Judge Sykes’ decision, and that the others on the panel hope to reverse it should we lose the McDonald case. This would be similar to the Nordyke situation, in which the initial decision was similarly remanded pending the Supreme Court’s decision.

The second possibility is that they want to try for a more lenient standard of scrutiny, which seems unlikely. Heller took rational basis off the table, and Sykes’ opinion was as close to “intermediate” scrutiny as could be workable. All that remains is strict scrutiny for the 2nd Amendment.

Maybe, just maybe, there’s actually support for that. We’ll have to wait and see.

In the meantime, the 4th Circuit has quietly agreed with the 7th, vacating William Chester’s conviction on similar grounds in an unpublished opinion.

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Civil Rights

Chicago Responds

Counsel for the City of Chicago have responded [pdf] to the McDonald/NRA petitions to have their case heard before the Supreme Court next term. If you’re just tuning in, jump in here.

First off, it’s a mess. Seriously, as I parsed through this and took notes, I felt like I was grading a grammar-school book report rather than a legal argument.

They pounce very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts. That removes one of our arguments for petitioning for cert.

Of course, that situation may change in the near future.

They seem to be trying their best to preclude incorporation under Privileges or Immunities clause. Their strategy seems to be to force the issue to be decided by the Due Process clause.

Why? Because they’re trying to prove that keeping and bearing arms is not a “natural” right, and therefore not subject to incorporation, I guess.

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Civil Rights

First Briefs for NRA/SAF v. Chicago

California Attorney General and former Presidential Candidate Edmund “Jerry” Brown has submitted an Amicus Curiae brief (pdf), asking the Supreme Court to hear the joint NRA and SAF suits against Chicago. At first, it seems surprising and perhaps a bit heartening, but don’t worry, Brown’s got an agenda here.

It opens with the pronoucement:

(…) unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller.

He points out that the Heller ruling failed, “to establish a standard of review applicable to asserted Second-Amendment infringements,” which is correct. He also concurs with Halbrook and Gura that the current schism between the 9th Circuit and other circuit courts on the matter of incorporation can only be settled by the Supreme Court.

Civil Rights

I love Mondays

This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,

As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary.

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Civil Rights

NRA v. Chicago, up the ladder

It took less than a week, but the 7th Circuit has passed down their judgement in National Rifle Association of America v. City of Chicago [pdf]. They disagree with Nordyke and find that the 14th Amendment does not incorporate the 2nd Amendment against state and local governments.

I fully expected this. What I didn’t expect was for the 7th to so gleefully and eagerly hand the ball off to the Supreme Court, which is what they’re doing here.

Presiding Judge Easterbrook argues,

Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. [p. 2]

There’s just one little problem with that logic: this isn’t about the privileges and immunities clause, and it never was.

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Civil Rights

On Strategy

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I got a call from an NRA rep this morning, asking me for my support on a “critical issue.” OK, which one?

His response? HR 45, a bill that was introduced in January. I wrote about it in February, and it hasn’t gained an inch of traction since. It’s dead, people. Just like last year.

And yet, I’m getting frantic calls about it in May. It was the big story in America’s First Freedom last month. Are they truly this far behind the curve? I don’t think so.

So, why are they bugging me about it?

Civil Rights

Pravda, Brady Style

They’re sticking to their guns, so to speak. Despite watching their agenda slip away, the Brady Campaign continues to put a sunny face on things. Their response to the 9th Circuit Nordyke decision reads,

The Ninth Circuit Court of Appeals today upheld Alameda County’s ordinance banning possession and sales of firearms on county-owned property, that was enacted to end gun shows on county fairgrounds.

“We are pleased that the court recognized that the Second Amendment does not prevent state and local governments from enacting common-sense gun laws,” said Paul Helmke, President of the Brady Campaign to Prevent Gun Violence.

Actually, that’s not the case at all. The ruling narrowly allowed Almeida County to ban guns from county-owned property. It did not allow anything further. To the contrary, the main story with the Nordyke case was that the 2nd Amendment is incorporated against State and local governments through the Due Process clause of the 14th.

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Civil Rights

S. 843: Cause for Concern

Frank Lautenberg’s at it again. S. 843 is a piece of legislation intended to “establish background check procedures for gun shows.”

Because, as we all know, gun shows represent a huge artery of supply to the criminal community:

The wording isn’t up yet, but it’s safe to assume that Here is the wording, and it’s a carbon copy of S. 2577, which he tried to get passed last year. In fact, he’s been trying to get something like this passed every year since the twilight of the Clinton administration.

Civil Rights

2nd Amendment: Closer to Incorporation

Nordyke v. King has been winding its way up to the 9th Circuit Court in California since 2003. The plantiff charged that his 1st and 2nd Amendment rights were being violated by enforcement of a 1999 Alameda County ordinance prohibiting the carry of arms on County property.

In the shadow of Heller, this was one to watch.

Unfortunately, the 9th Circuit ruled that the ordinance was just and would stand.

But that’s not the big news. This is:

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. (Nordyke v. King, p. 29 [pdf])