9th Circuit Incorporates 2nd Amdmt (and forecloses a "living Constitution" to boot!)

Nordyke v. King was issued Monday in the Ninth Circuit Court of Appeals.

Background: Appellant Nordyke operated gun shows on Alameda County grouds (I think fairgrounds) until 1999 when Alameda County prohibited guns on all its properties. They sued, unsuccessfully, under equal protection claims (there are exceptions for battle re-enactments where the guns fire blanks) and second amendment grounds. Their suit was never upheld because the Nutty Ninth always held the second amendment to be a collective right (whatever the hell that is) instead of an individual one. When District of Columbia v. Heller was handed down by the Supreme Court last year, they amended their complaint and tried again.

While the case was decided against Nordyke and they were denied the chance to hold their gun shows on Alameda County property (a decision which has its own faults), the opinion is significant for the fact that this is the first opinion (of which I'm aware) that holds the second amendment applicable to the States via the Incorporation Doctrine. They stated there's no reason to treat the second amendment any differently from any of the others.

This display of clear logic and rational thought is surprising for the Ninth Circuit, and what makes the opinion even more astonishing is little footnote 18, which reads:

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The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

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In what appears to be a part of the official opinion, as opposed to dicta, this one footnote has foreclosed the notion of a "living Constitution." At least, one could read it that way and hope for the best. I'm skeptical, but not pessimistic.

I need to find out more about this Judge O'Scannlain, the author of the majority opinion. Hizzonor seems to have at least half a foot grounded in common sense and reason.

I have a problem with people who can't discern between collective and individual rights giving any sort of review of a judicial decision. I don't know how you can make claims of "common sense and reason" when you don't have the common sense and reason to realize you just admitted to not knowing what the fuck you're talking about.

Laughable.


***USER RECEIVED AN INFRACTION FOR THIS POST***

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Originally Posted by ollie cromwell

I have a problem with people who can't discern between collective and individual rights giving any sort of review of a judicial decision. I don't know how you can make claims of "common sense and reason" when you don't have the common sense and reason to realize you just admitted to not knowing what the fuck you're talking about.

Laughable.

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Perhaps you'd like to try again, this time with a detailed criticism of this opinion instead of an ad hominem argument that served no purpose whatsoever.

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***USER RECEIVED AN INFRACTION FOR THIS POST***

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Oh, I don't know if that was really necessary. Sometimes people say things so... well, sometimes just preserving ignorance in all its glory is punishment enough.

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Originally Posted by John Galt

Perhaps you'd like to try again, this time with a detailed criticism of this opinion instead of an ad hominem argument that served no purpose whatsoever.


Oh, I don't know if that was really necessary. Sometimes people say things so... well, sometimes just preserving ignorance in all its glory is punishment enough.

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your first sentence is what he could have done to avoid the infraction

Does the actual U.S. constitution itself state or imply that the second amendment right to bear arms is an individual right or a collective right?

Are you aware of any other rights ensured by the Constitution which are only applicable when you're in a sufficiently-sized group supported by the state?

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Originally Posted by MrShrike

Does the actual U.S. constitution itself state or imply that the second amendment right to bear arms is an individual right or a collective right?

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In the historical context, it is certainly an individual right--it's self-declared purpose is to facilitate the formation of militias, and in the 18th century, militiamen provided their own weapons by basically showing up for service with their personally owned rifle slung over their shoulder. They were definitely not issued weapons by the state. This is evident from militia ordinances of the time, which list firearms and ammunition among the equipment that militiamen must provide for themselves. But no, the text of the amendment itself doesn't explicitly state whether it's collective or individual. It just says "the people"; however, it's also worth noting that this phrase is taken to confer individual rights in all other parts of the Bill of the Rights (First Amendment, Fourth Amendment, etc.). The Bill of Rights is pretty good about distinguishing between "the people" and "the states" (c.f. Tenth Amendment), so to me it doesn't make a lot of a sense to claim that the Second Amendment is actually saying that the states have the right to keep stocks of weaponry in order to equip their militias, which is a claim made by some gun control advocates who want to advance a "collective rights" interpretation.

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Originally Posted by Syme

In the historical context, it is certainly an individual right--it's self-declared purpose is to facilitate the formation of militias, and in the 18th century, militiamen provided their own weapons by basically showing up for service with their personally owned rifle slung over their shoulder. They were definitely not issued weapons by the state. This is evident from militia ordinances of the time, which list firearms and ammunition among the equipment that militiamen must provide for themselves. But no, the text of the amendment itself doesn't explicitly state whether it's collective or individual. It just says "the people"; however, it's also worth noting that this phrase is taken to confer individual rights in all other parts of the Bill of the Rights (First Amendment, Fourth Amendment, etc.). The Bill of Rights is pretty good about distinguishing between "the people" and "the states" (c.f. Tenth Amendment), so to me it doesn't make a lot of a sense to claim that the Second Amendment is actually saying that the states have the right to keep stocks of weaponry in order to equip their militias, which is a claim made by some gun control advocates who want to advance a "collective rights" interpretation.

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That's what I wanted to say, but was too lazy, so instead I simply asked a question that made his premise look silly.

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Originally Posted by coqauvin

your first sentence is what he could have done to avoid the infraction

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Sorry, the hyperbole of "whatever the fuck that means" got me distracted. OP was too busy being angsty and emo to make a clear statement regarding his ability to tell the difference between the two. Not my fault if his heavy handed rhetoric confused my ability to tell if he really knew the difference between a collective right and an individual right.

I was equally confused by his decision that the "nutty ninth" as it were has somehow foreclosed the notion of a living constitution any more/less than all previous decisions to come before any court making calls based on constitutionality. Maybe I'm high, but have judges suddenly started ruling "living constitution!" instead of merely battling it out on issues of jurisprudence? Is this changing the status quo whatsoever? The decision was made at the Supreme Court level in DC v. Heller -- all the Ninth is doing is aligning itself so that the cases don't make repeat appeals.

And I find it interesting that *I* get to be nailed on ad hominem, while the OP's post contains numerous examples of implicit ad hom attacks (related to notions of common sense and reason) on previous "nutty Ninth" decisions to ultimately deliver a news report with little conversational value. OP made a pretty posting of a statement of fact with very little to discuss -- either we cheer with the OP and rally against the nutty Ninth, or we sit on our hands and say, "yup, that's how the court decided." There ain't discussion here, just baiting.

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Originally Posted by ollie cromwell

And I find it interesting that *I* get to be nailed on ad hominem, while the OP's post contains numerous examples of implicit ad hom attacks (related to notions of common sense and reason) on previous "nutty Ninth" decisions to ultimately deliver a news report with little conversational value. OP made a pretty posting of a statement of fact with very little to discuss -- either we cheer with the OP and rally against the nutty Ninth, or we sit on our hands and say, "yup, that's how the court decided." There ain't discussion here, just baiting.

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The OP may not be a model OP, but criticizing, or even insulting, a government institution such as a isn't the same as making an ad hom attack against a fellow poster. When a mod gives someone an infraction for an ad hom attack, the offense they click on is "insulted another member", not "insulted anyone, including the Ninth Circuit Court". John Galt, yourself, and any other poster is free to say whatever horribly insulting things you want about a court or it's decisions, or any other government agency or institution, or any law or governmental policy, or any politician or public figure, or whatever--just don't say them about each other. If the OP wants to editorialize about how he thinks the Ninth has made bad rulings in the past, that's not against any rule.

As for what there is to discuss in this thread, I think it's obvious: This thread is for discussion of the ruling, and the idea of incorporating the 2nd Amendment. People are free to share their opinions on these issues, and debate them. That's implicitly clear. The OP doesn't have to explicitly say, "So what do you guys think about this?" at the end of his post in order for a thread to have something to discuss. You are presenting a false dilemma when you say that all you can do is rally with the OP, or sit on your hands and accept the court's decision. You have plenty of other options: You can, for instance, explain why you disagree with the court's decision or why you think the OP's position is flawed. You can disagree as strongly as you like with the decision or the OP's argument. You can rail against them if you like. Just don't make a post that doesn't say anything about the issue, and only contains an ad hom attack.

I'd like this to be the last post in this thread about whether the OP was good or not. Any reasonable person can see that there is plenty of opportunity for discussion in this thread; just make a post saying "I think this is a bad decision and here's why". Discussion and debate will ensue between those who agree with the decision, and those that don't.

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Originally Posted by John Galt

That's what I wanted to say, but was too lazy, so instead I simply asked a question that made his premise look silly.

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Actually I had no premise. I was asking a question.

In answer to yours, I'm not familiar with all the rights enumerated in the U.S. constitution. Which is why I asked.