9th Circuit & 2nd Amendment

[JohnRich 4]

News:

Citizens can challenge state, local gun laws

A federal appeals court ruled Monday that private citizens can challenge state and local gun laws by invoking the constitutional right to bear arms - the first such ruling in the nation - but upheld a ban on firearms at gun shows at the Alameda County Fairgrounds.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco followed last year's landmark Supreme Court decision that the Constitution's Second Amendment protects an individual's right to possess guns for self-defense.

While a few sections of the Bill of Rights apply only to the federal government, amendments that protect fundamental rights - including the Second Amendment - can be enforced against the states, said Judge Diarmuid O'Scannlain in the 3-0 decision.

"The right to bear arms is deeply rooted in the history and tradition of the republic," O'Scannlain said, citing selected passages from speeches and writings during the colonial and post-Revolutionary War period and the years leading up to the Civil War. "It is a means to protect the public from tyranny" as well as "to protect the individual from threats to life or limb."

Judge Ronald Gould, in a separate opinion, pictured a gun-wielding citizenry defending 21st century America against invaders or terrorists. "That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived," he said...

Source: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/21/BA1V1760BI.DTL

The 9th Circuit has been THE most anti-gun circuit court in America. Now they've finally seen the light.

[wolfriverjoe 1,339]

Well, the Attorney General of Wisconsin issued an opinion that municipalities shouldn't arrest people for open carry (usually cited for disorderly conduct).

http://www.wisn.com/politics/19235901/detail.html

"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

"~ya don't GET old by being weak & stupid!" - Airtwardo

[lawrocket 3]

I was just gonna post this but you beat me to it.

Here is the opinion http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

Here's a case where it looks to me like both sides got a significant victory. The 9th agreed that Hickman has been abrogated.

On the Second Amendment Rights side, the 9th Circuit expressly incorporated the Second Amendment under the 14th Amendment. This means that the 9th has held that the Second Amendment applies to the States as well as the Federal government. Examining the history from Page 19-27, the court concluded that,

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The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamental at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the collective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. (Page 27)

On Page 29 is the biggie:

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We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.17 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.

On the gun-control side, the Court held that the Heller decision was a self-defense opinion that guns could not be banned in private homes, etc. But, the government could ban their presence in sensitive areas. Quoting Heller:

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nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (Page 32-33)

So the ordinance was basically upheld. The 9th declined to analyze the statute under "strict scrutiny" and thus went with "heightened/intermediate scrutiny." They also didn't go with "rational basis" scrutiny - which is the usual death knell for any challenge of a law.

Under intermediate scrutiny of state or locality laws, the court first finds whether or not the state or locality has been pre-empted from making the law. The 9th found that Alameda County had not.

Next, is there a legitimate government interest in the law. The Court found there was.

Third - is the statute unrelated to freedom of expression? The court found that free speech was not implicated.

Fourth and finally - is the restriction on gun shows no greater than necessary to prevent gun violence on county property? The court found that banning guns on county property was not too broad.

The last portion was that the court did not find that the ordinance violated equal protection.


It's a pretty interesting opinion and I'd recommend y'all read it.

My wife is hotter than your wife.

[rushmc 18]

Quote

News:

Citizens can challenge state, local gun laws

A federal appeals court ruled Monday that private citizens can challenge state and local gun laws by invoking the constitutional right to bear arms - the first such ruling in the nation - but upheld a ban on firearms at gun shows at the Alameda County Fairgrounds.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco followed last year's landmark Supreme Court decision that the Constitution's Second Amendment protects an individual's right to possess guns for self-defense.

While a few sections of the Bill of Rights apply only to the federal government, amendments that protect fundamental rights - including the Second Amendment - can be enforced against the states, said Judge Diarmuid O'Scannlain in the 3-0 decision.

"The right to bear arms is deeply rooted in the history and tradition of the republic," O'Scannlain said, citing selected passages from speeches and writings during the colonial and post-Revolutionary War period and the years leading up to the Civil War. "It is a means to protect the public from tyranny" as well as "to protect the individual from threats to life or limb."

Judge Ronald Gould, in a separate opinion, pictured a gun-wielding citizenry defending 21st century America against invaders or terrorists. "That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived," he said...

Source: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/21/BA1V1760BI.DTL

The 9th Circuit has been THE most anti-gun circuit court in America. Now they've finally seen the light.

I will have to admit, when I saw 2nd Amendment and 9th circus in the same sentence I was a little concerned.

this is like a WOW!

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[TomAiello 25]

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Third - is the statute unrelated to freedom of expression? The court found that free speech was not implicated.

Now I wonder...

If you were to attend an event at the Alameda county fairgrounds with an unloaded pistol holstered openly on your hip, and then be arrested, could you then argue that you were engaged in (Constitutionally protected) political speech (specifically, protesting the ban)?

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[councilman24 36]

Sure you can argue it. In court.

Always willing to have someone volunteer to be a test case. Thanks Tom.

BTW the City where I'm on the City Council was writing and implementing new park rules. One proposed was no firearms. I had to point out that Michigan law prohibits more restrictive local ordinances, and the City backed off. None of this was particularly anti-gun, just normal park language. I had to remind them of the law and prevent a fight in the future.

I'm old for my age.
Terry Urban
D-8631
FAA DPRE

[Andy9o8 0]

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a ban on firearms at gun shows

... phrases that make you go "?"

[kelpdiver 2]

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Here's a case where it looks to me like both sides got a significant victory. The 9th agreed that Hickman has been abrogated.

It's still more of a loss for gun rights. Heller meant that the 9th had to say the 2nd exists. But with the success the Bay Area has had in driving out gun shops like Traders, TriCity, and the Gun Exchange, gun shows were one of the few remaining locales where you had a variety of selection, and competitive price pressure in one location.

It's still a hassle to drive out to wherever the dealer is 10 days later, but you only have to do it once, rather than twice.

The reasoning about 'sensitive locations' really doesn't fly. No one can actually buy a gun at a gun show, so banning such shows is merely a political gesture, as well as making new ownership as difficult/expensive as possible.

[TomAiello 25]

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It's still a hassle to drive out to wherever the dealer is 10 days later, but you only have to do it once, rather than twice.

What's the law about bringing personal firearms into California these days?

Isn't it legal to buy a long gun in any state with an ID from another state? So couldn't you just drive up to Reno, buy a rifle there with no waiting period (I'm just assuming NV has no waiting period, I don't know that for sure), and bring it back home?

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[lawrocket 3]

I wouldn't necessarily say a "loss." Trust me - "incorporation" is absolutely HUGE. It means that the States must respect the 2nd Amendment.

As was commented in these forums after Heller, Heller is just the opening of this. The coming decades will show the SCOTUS and lower courts performing a fine tuning of the extent of the protections.

The victory, though, is that the individual states cannot ban private ownership and claim that the 2nd Amendment doesn't apply.

My wife is hotter than your wife.

[kelpdiver 2]

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It's still a hassle to drive out to wherever the dealer is 10 days later, but you only have to do it once, rather than twice.

What's the law about bringing personal firearms into California these days?

Isn't it legal to buy a long gun in any state with an ID from another state? So couldn't you just drive up to Reno, buy a rifle there with no waiting period (I'm just assuming NV has no waiting period, I don't know that for sure), and bring it back home?

You must be a resident of Nevada to buy a gun in Reno. I believe that to be true of every state.

A person moving to California must report any owned handguns they brought within 60 days. And pay $19/gun. The ten round limit of magazine applies. Long arms can voluntarily be disclosed. "Assault" rifles not permitted under state law may not be imported.

I thought it was necessary to give it to an FFL and wait 10 days. Either wasn't true, or no longer is.

[TomAiello 25]

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I wouldn't necessarily say a "loss." Trust me - "incorporation" is absolutely HUGE. It means that the States must respect the 2nd Amendment.

Well, only the states in the 9th Circuit.

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[TomAiello 25]

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You must be a resident of Nevada to buy a gun in Reno. I believe that to be true of every state.

I can say with great authority that it is completely legal to buy a long gun in Virginia while one is a resident of Idaho.

I had thought this was the case for the vast majority of states. I know the ATF has ruled that FFL's may transfer (in person) a long gun to out of state residents, but I'm not sure which states have superseded this with their own requirements.

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[TomAiello 25]

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"Assault" rifles not permitted under state law may not be imported.

Do you happen to know what the deal is with assault rifles (or standard capacity mags) that are still in the state, and were legally purchased by California residents prior to the current law? I'm pretty sure that someone in my family in California (and probably someone who knows zero about guns) is still in possession of some firearms my grandfather owned before his death, which probably qualify. Are they breaching current California law just by ignorance?

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[wolfriverjoe 1,339]

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"Assault" rifles not permitted under state law may not be imported.

Do you happen to know what the deal is with assault rifles (or standard capacity mags) that are still in the state, and were legally purchased by California residents prior to the current law? I'm pretty sure that someone in my family in California (and probably someone who knows zero about guns) is still in possession of some firearms my grandfather owned before his death, which probably qualify. Are they breaching current California law just by ignorance?

If they didn't register it during the now closed "Grace Period" then yes.

NRA-ILA

It's about halfway down the page under "Assault Weapons".

If I understand it correctly, the only thing they can legally do is turn it over to the cops.

Or they can try to smuggle it out of state to sell, give away or store it.
But don't get caught.

"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

"~ya don't GET old by being weak & stupid!" - Airtwardo

[kelpdiver 2]

Quote

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"Assault" rifles not permitted under state law may not be imported.

Do you happen to know what the deal is with assault rifles (or standard capacity mags) that are still in the state, and were legally purchased by California residents prior to the current law? I'm pretty sure that someone in my family in California (and probably someone who knows zero about guns) is still in possession of some firearms my grandfather owned before his death, which probably qualify. Are they breaching current California law just by ignorance?

Perhaps. Guns no longer available under the law that took effect on Jan 1, 2001 (perhaps 2000) were to register them. I'm sure compliance was very low.

Nothing was required for owners of non crippled magazines, but I would want to make sure no markers on it would indicate a purchase date after the deadline.

[TomAiello 25]

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Nothing was required for owners of non crippled magazines, but I would want to make sure no markers on it would indicate a purchase date after the deadline.

I'm not too worried about that, because my grandfather died in 1989. It would have been impossible for anything in that collection to have been purchased after his death.

Isn't there a limit to the total number of assault rifles you can own, too? I wonder how that plays in if there are more than the legal limit.

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[downwardspiral 0]

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"Assault" rifles not permitted under state law may not be imported.

Do you happen to know what the deal is with assault rifles (or standard capacity mags) that are still in the state, and were legally purchased by California residents prior to the current law? I'm pretty sure that someone in my family in California (and probably someone who knows zero about guns) is still in possession of some firearms my grandfather owned before his death, which probably qualify. Are they breaching current California law just by ignorance?

Perhaps. Guns no longer available under the law that took effect on Jan 1, 2001 (perhaps 2000) were to register them. I'm sure compliance was very low.

Nothing was required for owners of non crippled magazines, but I would want to make sure no markers on it would indicate a purchase date after the deadline.

Yup...it's ok to own and possess standard capacity magazines as long as it was purchased BY YOU prior to the ban. It is a felony to transfer it even if the weapon it belongs to is sold.

www.FourWheelerHB.com

[kelpdiver 2]

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Isn't there a limit to the total number of assault rifles you can own, too? I wonder how that plays in if there are more than the legal limit.

no, no limit. The only limit in play is the tired one handgun purchase a month rule.

[lawrocket 3]

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I wouldn't necessarily say a "loss." Trust me - "incorporation" is absolutely HUGE. It means that the States must respect the 2nd Amendment.

Well, only the states in the 9th Circuit.

True. But right now there is no other authority. If any circuit was going to disagree it would have been the 9th.

In the event that other circuits disagree it sets the table for the SCOTUS to hear it to resolve the dispute.

My wife is hotter than your wife.

[warpedskydiver 0]

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It's still a hassle to drive out to wherever the dealer is 10 days later, but you only have to do it once, rather than twice.

What's the law about bringing personal firearms into California these days?

Isn't it legal to buy a long gun in any state with an ID from another state? So couldn't you just drive up to Reno, buy a rifle there with no waiting period (I'm just assuming NV has no waiting period, I don't know that for sure), and bring it back home?

You must be a resident of Nevada to buy a gun in Reno. I believe that to be true of every state.

A person moving to California must report any owned handguns they brought within 60 days. And pay $19/gun. The ten round limit of magazine applies. Long arms can voluntarily be disclosed. "Assault" rifles not permitted under state law may not be imported.

I thought it was necessary to give it to an FFL and wait 10 days. Either wasn't true, or no longer is.

I am not aware of any state tha does not allow someone to buy a gun if she or he abides by the home states laws.

[auburnguy 0]

To my knowledge no state forbids sale of long guns to non residents. Handguns are another issue entirely. It should be noted that these rules do not apply to private sales.

"If you don't like your job, you don't strike! You just go in every day, and do it really half assed. That's the American way."
- Homer Simpson

[JohnRich 4]

The 9th Circuit does the right thing for guns, again! Pigs fly!

News:

Claims against gunmaker Glock dismissed

A federal appeals court dismissed damage claims against gun manufacturers Monday by the victims of a white supremacist's shooting rampage in the San Fernando Valley, saying a 2005 federal law backed by the firearms industry bars such lawsuits.

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said Congress had the case in mind when it passed the law. Lawmakers did not violate the rights of victims of the 1999 shootings by limiting their right to sue federally licensed gunmakers and dealers for criminals' actions, the court said.

Source: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/12/BA0O17IHVV.DTL

The gun-o-phobe's logic goes like this:

The shooter's name was Furrow. Furrow bought the Glock handgun from a private individual. That person had bought it from another individual. That individual had bought it from yet another individual. That individual had bought it from a police department. The police department had bought it from Glock.

And therefore, Glock is responsible for the criminal acts of Furrow. Got it?

[piper17 0]

"Pigs fly" = swine flu?

"A man can never have too much red wine, too many books, or too much ammunition"...Rudyard Kipling