High-Profile Gun Rights Case Inches Toward Supreme Court

High-Profile Gun Rights Case Inches Toward Supreme Court

August 25, 2009 2:30 AM
High-Profile Gun Rights Case Inches Toward Supreme Court
Posted by Declan McCullagh .

A federal appeals court on September 24 will hear a high-profile gun rights case that's a leading candidate to end up before the U.S. Supreme Court.

The U.S. Ninth Circuit Court of Appeals is likely to decide whether the Second Amendment's guarantee of a right to "keep and bear arms" restricts only the federal government -- the current state of affairs -- or whether it can be used to strike down intrusive state and local laws too.

A three-judge panel ruled that the Second Amendment does apply to the states. But now a larger Ninth Circuit panel will rehear the case, a procedure reserved only for issues of exceptional importance, which means the earlier decision could be upheld or overruled.

Two other circuits have said the Second Amendment does not apply to the states, a legal term known as "incorporation." If the Ninth Circuit's en banc panel continues to disagree with its peers, the Supreme Court almost certainly would step in.

The Ninth Circuit case involves Russell and Sallie Nordyke, who run a gun show business that would like to rent Alameda County's fairgrounds (the county includes Oakland and is across the bay from San Francisco). After being blocked, they sued. The author of the ordinance in question, then-county supervisor Mary King, actually claimed such shows are nothing but "a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

The hearing is set for 10 a.m. PT in the federal courthouse at 95 Seventh Street in San Francisco.

A few other items:

California Update: I wrote an article three months ago about a lawsuit filed by the Second Amendment Foundation and the Calguns Foundation saying routine denials of concealed carry permits violate the Second Amendment's right to bear arms. Oral arguments on a preliminary motion in that case are scheduled for the same day -- September 24 -- at 2 p.m. in Sacramento.

In a brief filed on Monday, Sacramento (one of the counties sued) says it wants more time to question the gun owners who filed the case to verify that they're in a position to sue. "Defendants seek to depose the individual plaintiffs on these issues to determine the basis of their alleged 'undisputed facts,' what process each plaintiff has engaged in to the end of obtaining a carry concealed permit in Sacramento County," it says.

Some Guns Are More Equal Than Others: Nobody has been hurt by the protesters who have legally carried guns to events where the president has been speaking, and I know of no evidence that they were even close enough to see the man.

Nevertheless, Eleanor Holmes Norton, the District of Columbia's non-voting Democratic rep in the U.S. House of Representatives, wants mandatory "gun-free zones around the president, his cabinet and other top federal officials," according to a report by the local Fox affiliate. Similarly, the Brady Campaign told CBS News that guns have no place at such an event.

It's Official: Congratulations to the Calguns Foundation for being awarded non-profit status by the IRS. Gene Hoffman, chairman of the Calguns Foundation, told me on Monday evening that the group is now officially a 501(c)(3) non-profit; previously, the non-profit status had been pending.

Montana Update: You may remember that a Montana state law seeks to challenge the federal government on the manufacture and sale of guns made entirely within the state. It takes effect on October 1. As soon that happens, according to Montana Shooting Sports Association president Gary Marbut, gun-rights types will have a lawsuit ready to file to prevent federal prosecution of local would-be gunsmiths.

"We have some strong arguments to make, including some that have never been argued before about the (U.S. Constitution's) Commerce Clause and the Tenth Amendment, as far as I know," Marbut told me on Monday.

Paging The Ninth Circuit: I just noticed yet another case in which a judge has declined to extend the Second Amendment to state or local laws. The case is called Slough v. Telb and arose out of a gun seizure in Ohio.

U.S. District Judge David Katz ruled on August 14: "The United States Supreme Court has never held that the Second Amendment is enforceable against the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Courts in other circuits have held that Second Amendment rights are not enforceable against the states under (civil rights laws). As the weight of authority holds that the individual right to bear arms may not be enforceable against the states, the constitutional right to do so is anything but clearly established."

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5 years 36 weeks ago, 10:50 PM

runawaygun762

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I first thought no infringement at all was the correct answer, but after discussion with LLE, I began to realize states have more leeway in limiting rights, but then I thought about the same issue and how it would be judged if it were the first, fourth, or fifth amendments being tested. Can a city decide Mormons can't practice their religion? Can a county sheriff decide to go door-to-door searching for drugs in homes with no warrants? Can a state's attorney general charge someone for refusing to answer a potentially incriminating question during a trial? The more I think about it, the more it seems that because the right to keep and bear arms is a civil right, it should be just as protected, if not more so, from all levels of government. After all, the other civil rights make mentions of protecting against "unreaonable" infringements, whereas the second amendment simply says "...shall not be infringed". God, I hate being so dumb. But what does it all mean, Basil?

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 36 weeks ago, 11:05 PM

photobear6

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I used to live 5 mins from Canada aye. The Canadian border guys were always pretty cool and easy going(except for this cute blonde girl in Canada she was cute but not easy damn it), coming back to the states they usually were just down right assholes.

America is not at war. The U.S. Military is at war. America is at the Mall. If you don't stand behind our troops, PLEASE feel free to stand in front of them!
5 years 36 weeks ago, 11:20 PM

runawaygun762

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and he said one time him and a friend were driving along the ALCAN Highway in a mustang and they were hauling ass, passed quite a few Canadian cops, had one follow him for a bit, but never got pulled over. He said they stopped at a restaurant and brought it up to the waitress and she said since he had an American license plate, the Canadian cops probably thought they had guns in the car and didn't want to get shot. Guess that goes to show what reputation we have with out northern neighbors.

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 36 weeks ago, 11:26 PM

photobear6

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Actually thats one reason nobody wants to invade the USA. They fear all of the guns we have in our homes. I guess being a gun nut adds to our countrys security

America is not at war. The U.S. Military is at war. America is at the Mall. If you don't stand behind our troops, PLEASE feel free to stand in front of them!
5 years 35 weeks ago, 11:38 PM

runawaygun762

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I really don't feel that I, as a soldier, defend my country. The people I have fought in Iraq are not the ones who would have been used for terrorist cells here. While there are smaller, less well-known groups of servicemembers who actively seek out and kill terrorists every day, in all parts of the world, I am not one of them. The millions of gun owners in America are the ones who keep us safe. We soldiers are off agressively enforcing our nation's foreign policy (nice euphemism, huh?) while others are back here. Hell, even Admiral Isoroku Yamamoto had it right in WW2 when he said, "You cannot invade the mainland United States. There would be a rifle behind every blade of grass". With the number of guns in this nation, and the ability of many to use them, the military training and combat experience of our prior servicemembers, not to mention home-field advantage, no invading force could ever hope to withstand the type of guerilla campaign our citizens could wage. This is, of course, something every government official knows, which is why the Democrats try to disarm us, while the Republicans try to befriend us.

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 35 weeks ago, 11:56 PM

runawaygun762

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You kids need to get to bed. DON'T MAKE ME COME UP THERE!!!!

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 35 weeks ago, 11:58 PM

samD

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You prevert!

5 years 35 weeks ago, 12:02 AM

runawaygun762

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to automatically make it sexual. Too many PMs from Doll got your mind stuck in that mode? Hah hah, sam and dollpartzz, sitting in a tree, F-U-C-K-I-N-G!!! Just busting your nuts. Yeah, that sounds more gay than saying "just busting your balls", doesn't it? I wonder why?

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 35 weeks ago, 12:02 AM

runawaygun762

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Gotta stay up tonight and try to get adjusted.

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
5 years 35 weeks ago, 12:04 AM

samD

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runawaygunnutz

I don't think you would ever be construed as adjusted. Funny yes, adjusted no! samD don't climb trees anymore either.

5 years 35 weeks ago, 12:10 AM

runawaygun762

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Hee hee hee

My ex wife did call me "maladaptive" at one point. But I think that was before she stalked after me around the couch with a butcher knife in her hand and a blank stare in her eyes. That's the only time I've ever had to draw down on family, I think. hah hah, now who's the crazy one? that's right, I am. What? No I'm not. Yes you are. YOU may be nuts, but I'm fine. Deal. Huh?

"I have always been a soldier. I have known no other life. The calling of arms, I have followed from boyhood. I have never sought another." From The Virtues of War, by Steven Pressfield.
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