My Nordyke rant.

For the Cliff notes, David Hardy at Of Arms and Law explains why Nordyke is held until June.

For my rant…

I’m not a lawyer.  My attention span for legal documents  is narrow.  If I have made a mistake regarding facts, please let me know.

Why Nordyke is important.

California has been the butt of jokes for quite awhile.  As a result of many insane laws that are enacted in the “Golden Shower” state, other “free” states have perpetually harassed subjects of California hoping they fall into the Pacific, get what they deserve or offer the simple solution to “just move out.”

Granted, living in California isn’t easy.  You’re taxed more, the elected civil servants don’t do their job and you run into more public employees than private industry folk. The gun “culture” isn’t as prevalent either.  Nonetheless, things are changing in California regarding our Right to Keep and Bear Arms.  With new tactful leadership, reinvigorated sense of activism and consistency, the People of California are acting more like citizens and creating opportunities that affects everyone.

Many of our representatives do not care what we think, regardless how logical or polite our communication with them might be.  Many individuals who wish to make sweeping change in California through “extreme” activism and “in-your-face” tactics often hurt our cause than promote.   Considering the lack of concentrated effort to fight for our rights in the past, I’m not surprised why California is in its’ current condition regarding our civil liberties.  Then Calguns.net became the epicenter for what is about to change history.

Calguns.net have done what others thought were unimaginable.  At one point, AR-15 clones were thought to be illegal – forbidden to even THINK about having one.  Through the work and research conducted by citizens of California, black rifles are now abundant.  The folks at Calguns.net are citizens working long hours conducting sound legal research, recording and reporting documents, challenging the way we think about gun laws in general and providing the leadership we all needed.  This approach is what California needed– what ALL gun owners needed.

With that said, the case of Nordyke vs. King is important.  How it relates to your rights is important as well.  The decision in Heller v. District of Columbia essentially stated that the People have the RKBA for individual use.  The problem?  The ruling only affirmed that DC’s restriction to keep functional firearms in a private home only affects the immediate area of DC.  The question was then asked if incorporation is held against the states.  It was not answered in SCOTUS, but the discussion was open for debate.

Robert and Sallie Nordyke operated a legal and private business conducting gun shows in Alameda County, California.  After Mary King had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio,” Alameda County adopted an ordinance to not allow guns at gun shows on County property.  Many attempts to find solutions through exceptions and alternatives, Robert and Sallie Nordyke, as well as other gun owners, sued Alameda County for violating their First Amendment right.  Through the process, the Nordykes waded through procedural hell; however, also introduced the question if the “Second Amendment prohibits a local government from regulating gun possession on it’s property.”  After Alan Gura successfully argued that firearm ownership is an individual right, the Nordykes filed a supplemental brief citing the Heller decision.  This permitted the United States Court of Appeals for the Ninth Circuit to focus concerning if the Fourteenth Amendment incorporates against the states – or otherwise forcing other states to recognize and abide by precedent set by Heller.  In this Court, it was concluded that, “the Second Amendment is indeed incorporated against the states.”  Unfortunately, the Nordykes did not succeed in their First Amendment claims.  For a brief moment; however, California had a Second Amendment.

After the Court’s decision, a judge requested en banc with neither party requesting it.  En banc was granted and was reheard on September 24th 2009.  To make it clear, Gene Hoffman stated, “The judge who called for en banc briefing is and shall forever remain anonymous. We will not know the why, but many can speculate.”

Had en banc not been granted, California would continue to have a Second Amendment.  On the bright side, two bad cases, Mehl v. Blanas and Rotherly v. Blanas led by Gary Gorski, become moot for California’s own carry case, Sykes v. McGuiness.

Shortly after en banc, the Court punted and are going to sit on it until SCOTUS grants or denies cert for Maloney v. Rice, McDonald v. City of Chicago and National Rifle Ass’n of Am., Inc. v. City of Chicago.  In other words, David Hardy stated, “Nordyke will be held onto until the Supreme Ct disposes of the other cases, either granting cert. and ruling, or denying cert… by held onto I mean the Circuit will take no action, leaving it in a sort of limbo. It won’t send it back to the lower court for action, nor give a final decision, which would mean it could move on to the Supreme Court. Judges do not like to be reversed, and here the exact issue is going before the Supreme Court, why take a position that might get crosswise with their ruling? If the Supreme Court grants review, the Circuit will hold onto it until the Supreme Court rules. If the Supreme Court denies review of the earlier Chicago cases, the 9th Circuit will proceed to rule.

This is nice in a way since it gives two shots at Supreme Court review, and IF the Chicago cases were refused, and the 9th then ruled for incorporation of the right to arms, there would be a second shot at Supreme Court consideration, now with a split among the circuits.”

Though Nordyke v. King isn’t the only case that offers opportunity for incorporation, it appears to be a solid option if Maloney v. Rice, McDonald v. City of Chicago or National Rifle Ass’n of Am., Inc v. City of Chicago is not grated cert.  It’s really looking good for all of us.

Many understand that California has some of the craziest gun laws in the Union, but we’re approaching opportunities never seen before.  The bottom line?  Nordyke is the golden case we hold onto for incorporation solidifying the Second Amendment for ALL states.

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Categories: Firearms, Guns

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2 Comments on “My Nordyke rant.”

  1. September 28, 2009 at 10:16 pm #

    [..] We’re all junior lawyers now [..]

    Most excellent, Derek!

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