2aHawaii
General Topics => Legal and Activism => Topic started by: 2aHawaii on August 25, 2009, 08:23:45 AM
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If you don't know, incorporation is the legal definition for applying the Bill of Rights to the individual States and as such, individual States cannot make laws which affect our rights given by the Bill of Rights. Or as quoted from the 14th Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When it comes to the Second Amendment, it has not yet been ruled that it must be incorporated and this is a problem that restricts our right to bear arms. The case Nordyke v King (http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King) is fighting for these rights and is slowly creeping forwards. Right now the case is in the Ninth Circuit Court of Appeals and arguments are being heard next month on Thursday, September 24th. This case as well as a few others could be the spark that helps change Hawaii's laws regarding the right to keep and bear arms.
For a an article that explains it better, check out this CBS blog post by Declan McCullagh (http://www.cbsnews.com/blogs/2009/08/25/taking_liberties/entry5263569.shtml).
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Well it looks like the Nodyke v King case is being heard this Thursday. Does anybody want to share their thoughts on how this case will go?
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I predict that the court will uphold our 2nd amendment rights in clear and incontestable terms. The appeal will be heard by the Supreme Court, which will also land squarely on the side of the the right to bear arms, and as part of its decision will mandate the repeal of all state-level gun laws and the destruction of state-held records of firearms transactions. No later than February 2013, HPD will actually organize a public bonfire at which all of their records will be incinerated. HRA will provide hot dogs. The public will dance and cheer, proudly and safely bearing all manner of firearms.
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Well it looks like the Nodyke v King case is being heard this Thursday. Does anybody want to share their thoughts on how this case will go?
Actually, the case is being reheard "En banc" which means that the entire 9th Circuit, not just the three judge panel that recently concluded the Second Amendment was incorporated, will hear the case. There is an excellent coverage and explanation of this at "Of Arms and the Law" by attorney David Hardy.
http://armsandthelaw.com/ (http://armsandthelaw.com/)
Specifically for Nordyke: http://armsandthelaw.com/archives/nordyke_v_king/index.php (http://armsandthelaw.com/archives/nordyke_v_king/index.php)
Here is one of the entries for this:
In Nordyke v. King, a 9th Circuit three judge panel ruled that the 2A was incorporated and applied to the States (and also that the regulation in question was reasonable). Neither party applied for en banc review, but at least one judge did (as the rules allow). Today the 9th Circuit issued an order stating that it would review the decision en banc (meaning that a majority of active duty judges had so voted), with argument to be set for week of Sept. 21 (quite rapidly for this sort of thing).
En banc review is traditionally review by all the judges of a circuit, not just a 3 judge panel of them. But the 9th is so large in terms of judges (27 active duty and 21 on senior status) that under its rules en banc is by a panel of the chief judge and 10 active duty judges picked at random.
The 9th has had at least two major anti 2A cases (Silveria and Hickman) and one major pro 2A case (the Nordyke panel). The requirement that the en banc panel be composed of active judges takes several of the judges on those cases out of the running. I could those remaining in as split 2-2. (Kozinski, as chief judge, is always in, thank goodness!):
Reinhardt -- anti, wrote Silvera.
Fisher -- anti, joined in Silvera
O'Scanlainn -- pro, wrote Nordyke.
Gould -- pro, joined in Nordyke.
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If you want audio on the hearings: http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000003933 (http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000003933)
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Wow, I just listened to the audio of the hearing and found it pretty amazing. From my elementary understanding of courts, it sounded like Nordyke had a very strong argument and Alameda County was pretty weak.
Does anyone know how long these decisions usually take. I noticed that the judges had mentioned waiting for the SCOTUS case judgments before making their own judgment. Will that be the case?
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It looks like the decision is going to have to wait until the SCOTUS cases are heard.
http://www.ca9.uscourts.gov/enbanc/view.php?pk_id=0000000037 (http://www.ca9.uscourts.gov/enbanc/view.php?pk_id=0000000037)
Status: Argued and submitted September 24, 2009. Submission vacated pending the Supreme Court's disposition of Maloney v. Rice, 08-1592, McDonald v. City of Chicago, No. 08-1521, and National Rifle Ass'n v. City of Chicago, No. 08-1497
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McDonald will be the key to getting 2A incorporated.
My legal knowledge has increased vastly over the time when I was a simpleton who believed what I learned in school about the bill of rights guaranteeing our freedoms.
The 14th's "privileges and immunities" clause quoted above was basically rendered meaniningless by the SCOTUS decision in the http://en.wikipedia.org/wiki/Slaughter-House_Cases (http://en.wikipedia.org/wiki/Slaughter-House_Cases) , which was the first case in which SCOTUS looked at what the 14th amendment meant.
Writings of the people who actually wrote, debated, and passed the 14th Amendment make it clear that it was intended to to hold all of the bill of rights against state and local governments. Later SCOTUS decisions invented the "incorporation" doctrine. For a list of exactly which items (or parts of items) in the bill of rights have been incorporated so far, see http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights) (http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)) .