From the "In case no one is watching Dept."
After the flurry of cases filed in the aftermath of Heller, we all thought it would be a few more years before the matter of incorporation would reach any Circuit, let alone the SCOTUS. Well, we were all wrong.
The following are the briefs filed in the ongoing Nordyke, et al v. King, et al case, before the 9th Circuit as of 10/03/08:
Litigants Briefs:
10/3/08 SUPPLEMENTAL REPLY BRIEF: RUSSELL ALLEN NORDYKE; et al.
10/3/08 APPELLEES’ BRIEF IN REPLY TO SUPPLEMENTAL BRIEF OF APPELLANTS [opposition brief]
Amicus Curiae Briefs:
10/01/08 Amicus Curiae: The National Rifle Association of America and California Rifle & Pistol Association brief
10/01/08 Amicus Curiae: Professors of Law brief
10/01/08 Amicus Curiae: Professors of Law, History, Political Science or Philosophy brief
10/03/08 Amicus Curiae: SECOND AMENDMENT FOUNDATION, INC.
10/3/08 SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE
The one I would like to comment upon, is the Brief filed by the SAF. As it is the most presuasive of the amicus briefs filed.
On 2 Oct. 2008, the Second Amendment Foundation (SAF) has submitted an amicus curiae brief in the revived Nordyke case that is now before the 9th Circuit. Alan Gura is the counsel for the Amici and has written one heck of a brief.
There are 5 points to the brief.
1) The Court (9th Circuit) is required by Heller to consider the question of incorporation, and that such a question cannot use Cruickshank, et al, as they are relics of the pre-incorporation era, and that the previous controlling precedents (i.e.Fresno) of the 9th are now obsolete, via Heller.
2) Makes the argument that under modern incorporation doctrine, the 2A is already incorporated, and that is is only required for the Courts to acknowledge this. This argument stems from the fact that the SCOTUS has ruled that the right in question is a fundamental right. Such a right, under incorporation doctrine, is necessary for the ordered Liberties of a free society.
3) That the 2A does nothing to interfere with the normal police powers of the State. Here, Gura equates what Alameda County really wants is a police-state, and this is untenable under the Constitution.
4) That the BOR was to be and is an improvement over the English Bill of Rights. It was never meant to be the same or less than their English counterparts, which is the argument of the appellee's.
and 5) That lawful commerce in arms is a protected subsidiary right of the 2A. That is, the State may not curtail the working implements of the right without running afoul of the right. In this, the power to regulate firearms does not reach to the power to deny firearms. A crucial holding in Heller.
Incidently, it is in this section (5) that that the amici brief states that the only reason for the prohibition of gun shows at the county fairgrounds, in light of other lawfully entertained permissions (literally, exceptions to the gun regulations), is to deny (suppress) the exercise of 2A rights.
I particularly liked the first section, as it deftly kills any reliance upon Cruickshank, Presser and Miller as any kind of valid precedent under current incorporation doctrine. Along the way, Gura makes the argument that the 14th was a direct response to Barron (by overturning it through amendment) and how the Court has begun (and continues) to correct its Slaughter-House decision.
To those of you (absolutists) that did not like some of Gura's holdings in his briefs and Orals in Heller, you will likewise take exception to some things said in part III.
In light of Heller, it will be interesting to see how the appellee's climb out of this hole that has been dug. As it is, the appellee's only real argument is that the 2A is not incorporated. None of their arguments state why (with any credibility) it should not be incorporated within the Due Process Clause of the 14th.
Granted, there are some serious arguments against incorporation, but this case has the best chance, as the panel that is reviewing the case has all but said they would incorporate.
After the flurry of cases filed in the aftermath of Heller, we all thought it would be a few more years before the matter of incorporation would reach any Circuit, let alone the SCOTUS. Well, we were all wrong.
The following are the briefs filed in the ongoing Nordyke, et al v. King, et al case, before the 9th Circuit as of 10/03/08:
Litigants Briefs:
10/3/08 SUPPLEMENTAL REPLY BRIEF: RUSSELL ALLEN NORDYKE; et al.
10/3/08 APPELLEES’ BRIEF IN REPLY TO SUPPLEMENTAL BRIEF OF APPELLANTS [opposition brief]
Amicus Curiae Briefs:
10/01/08 Amicus Curiae: The National Rifle Association of America and California Rifle & Pistol Association brief
10/01/08 Amicus Curiae: Professors of Law brief
10/01/08 Amicus Curiae: Professors of Law, History, Political Science or Philosophy brief
10/03/08 Amicus Curiae: SECOND AMENDMENT FOUNDATION, INC.
10/3/08 SUPPLEMENTAL BRIEF OF AMICI CURIAE LEGAL COMMUNITY AGAINST VIOLENCE
The one I would like to comment upon, is the Brief filed by the SAF. As it is the most presuasive of the amicus briefs filed.
On 2 Oct. 2008, the Second Amendment Foundation (SAF) has submitted an amicus curiae brief in the revived Nordyke case that is now before the 9th Circuit. Alan Gura is the counsel for the Amici and has written one heck of a brief.
There are 5 points to the brief.
1) The Court (9th Circuit) is required by Heller to consider the question of incorporation, and that such a question cannot use Cruickshank, et al, as they are relics of the pre-incorporation era, and that the previous controlling precedents (i.e.Fresno) of the 9th are now obsolete, via Heller.
2) Makes the argument that under modern incorporation doctrine, the 2A is already incorporated, and that is is only required for the Courts to acknowledge this. This argument stems from the fact that the SCOTUS has ruled that the right in question is a fundamental right. Such a right, under incorporation doctrine, is necessary for the ordered Liberties of a free society.
3) That the 2A does nothing to interfere with the normal police powers of the State. Here, Gura equates what Alameda County really wants is a police-state, and this is untenable under the Constitution.
4) That the BOR was to be and is an improvement over the English Bill of Rights. It was never meant to be the same or less than their English counterparts, which is the argument of the appellee's.
and 5) That lawful commerce in arms is a protected subsidiary right of the 2A. That is, the State may not curtail the working implements of the right without running afoul of the right. In this, the power to regulate firearms does not reach to the power to deny firearms. A crucial holding in Heller.
Incidently, it is in this section (5) that that the amici brief states that the only reason for the prohibition of gun shows at the county fairgrounds, in light of other lawfully entertained permissions (literally, exceptions to the gun regulations), is to deny (suppress) the exercise of 2A rights.
I particularly liked the first section, as it deftly kills any reliance upon Cruickshank, Presser and Miller as any kind of valid precedent under current incorporation doctrine. Along the way, Gura makes the argument that the 14th was a direct response to Barron (by overturning it through amendment) and how the Court has begun (and continues) to correct its Slaughter-House decision.
To those of you (absolutists) that did not like some of Gura's holdings in his briefs and Orals in Heller, you will likewise take exception to some things said in part III.
In light of Heller, it will be interesting to see how the appellee's climb out of this hole that has been dug. As it is, the appellee's only real argument is that the 2A is not incorporated. None of their arguments state why (with any credibility) it should not be incorporated within the Due Process Clause of the 14th.
Granted, there are some serious arguments against incorporation, but this case has the best chance, as the panel that is reviewing the case has all but said they would incorporate.