Nordyke V. King 9th Circuit En Banc.

[vvvvvvv]

Affirmed? As in affirmed that those restrictions are presumptively constitutional or affirmed that those presumptively constitutional restrictions ARE constitutional?

Woody

The way that I read the plurality opinion (and I do admit that I am uneducated), the Court affirmed that their stance in Heller that such prohibitions that are presumed to be Constitutional are indeed Constitutional until proven otherwise.

Today's 7th Circuit ruling in United States v. Skoien cited both Heller and McDonald's stance on "longstanding prohibitions" in their majority opinion affirming the Constitutionality of a prohibition on possession of firearms by those convicted of a misdemeanor of domestic violence, although they did go on to say it that it would be "weird" to base their entire opinion on that considering that 922(g)(9) might not be considered by some to be "longstanding" until 2043. (It should be noted that they did stretch into First Amendment restriction analogies and restrictions on a sex offender's choice of residence to come to their final conclusion after making sure to opine that the only reason domestic violence is a misdemeanor is that the type of victim is more likely to come forward when it isn't considered a felony.)

You might also consider that the ruling in McDonald gave us a paradox of sorts. Yes, the majority did rule in favor of incorporation. But a majority also ruled against incorporation via Due Process. And a majority also ruled against incorporation via Privileges and Immunities. So to what extent, exactly, has the Second Amendment really been incorporated?

 

[Dr. Tad Hussein Winslow]

Yes, the majority did rule in favor of incorporation. But a majority also ruled against incorporation via Due Process. And a majority also ruled against incorporation via Privileges and Immunities. So to what extent, exactly, has the Second Amendment really been incorporated?

You just blew my mind!

 

[ConstitutionCowboy]

The way that I read the plurality opinion (and I do admit that I am uneducated), the Court affirmed that their stance in Heller that such prohibitions that are presumed to be Constitutional are indeed Constitutional until proven otherwise.So, basically they said that those presumptively constitutional restrictions are presumptively constitutional.

Today's 7th Circuit ruling in United States v. Skoien cited both Heller and McDonald's stance on "longstanding prohibitions" in their majority opinion affirming the Constitutionality of a prohibition on possession of firearms by those convicted of a misdemeanor of domestic violence, although they did go on to say it that it would be "weird" to base their entire opinion on that considering that 922(g)(9) might not be considered by some to be "longstanding" until 2043. (It should be noted that they did stretch into First Amendment restriction analogies and restrictions on a sex offender's choice of residence to come to their final conclusion after making sure to opine that the only reason domestic violence is a misdemeanor is that the type of victim is more likely to come forward when it isn't considered a felony.)I don't know why they keep trying to equate the First to the Second. The First is all about USING something - a language - and the second is about keeping and bearing with no use involved at all.

You might also consider that the ruling in McDonald gave us a paradox of sorts. Yes, the majority did rule in favor of incorporation. But a majority also ruled against incorporation via Due Process. And a majority also ruled against incorporation via Privileges and Immunities. So to what extent, exactly, has the Second Amendment really been incorporated?With both, actually. It's not about what was voted against in this instance but what has been voted for. Alito, Scalia, Roberts, and Kennedy signed off on DUE PROCESS and Thomas signed off on P or I. Without both, we have nothing. Those five said yes, the 2A applies to the states though for different reasons. It essentially matters not why, but it sure is nice to have P or I along with DUE PROCESS. And it's imperitive to note that the RKBA is not a "process" but a priviledge(right) with immunity(shall not be infringed). DUE PROCESS means the Second Amendment can be used in a case on the state level by a defendant as a defense against the state.

Woody

 

[vvvvvvv]

Woody

But under the Marks Rule, the swing vote in a 4-1-4 generally becomes the controlling interpretation. However, Due Process is a much narrower interpretation for incorporation than Privileges and Immunities, and the swing vote being a broader interpretation is a rare departure from the conditions under which the Marks Rule is usually applied. So we'll have to see through more litigation which interpretation becomes controlling.

If Nordyke becomes the test case, then I fear that Due Process will become the direction that the Court takes, and that will be bad news for the Second Amendment. It seems that most Second Amendment supporters don't realize that McDonald did not result in full incorporation of the Second Amendment, but only incorporation of the right (via Due Process) to possess a handgun for the purpose of self-defense in the home. (In that light, the new Chicago ordinance is within the bounds of the McDonald ruling.)

 

[ConstitutionCowboy]

Regardless of the Marks Rule, how is it possible to have due process exercised on a right that is strictly a privilege with its own specific immunity(the Second Amendment)? "Due Process" is "Due Process of Law". Due process can only be applied with law. So, here we have a right to keep and bear certain objects. A whole class of objects called "arms". If there is to be due process applied to any law touching on the keeping and bearing of arms, the only legitimate law covering that subject is the Second Amendment.

If government cannot make any law infringing upon the right of the people to keep and bear arms, the Court cannot adjudicate according to any law infringing upon that right. The Second Amendment must be recognized by the Court. It is part of the Constitution. The Court has to recognize the right specified in the Second Amendment and the immunity from infringement that right has in the Second Amendment. Ergo, due process cannot be applied with the only legitimate law touching upon the subject of keeping and bearing arms unless the Court abides that the right(privilege) exists and is immune from infringement as stated in the Second Amendment. (You can throw in the Fourteenth Amendment, too, if you like.)

In the end, you cannot have "due process" without recognizing that the right is a privilege - the right of the people to keep and bear Arms - and is a privilege with immunity - shall not be infringed. Due process is nothing more than the Constitution(the Second Amendment) telling the Court it cannot adjudicate according to any law infringing upon the right.

If you look at the Sixth Amendment, it covers a right that is itself a process, ergo, due process is an integral part of the right. The Sixth Amendment would also be covered under privileges and immunities as well. The right to a trial is the privilege and the immunity is that you shall not be held without a timely trial nor tried without public scrutiny.

Woody

 

[vvvvvvv]

I wrote this last night, but decided that it was good enough to post on my blog, so I posted it there first.

(I apologize for previously referring to the Privileges OR Immunities clause as "Privileges AND Immunities". I went to public-k skool. You'll see why I apologize later.)

Prior to the introduction of the Fourteenth Amendment, the Bill of Rights applied only to the Federal government. The Fourteenth Amendment brought about the idea of "incorporation" of the Bill of Rights against the States.

Purists, that is those who believe that the Fourteenth Amendment (and others) is an absurdity, argue that the Fourteenth Amendment itself is against the idea that the founding fathers had for our Constitution.

A key phrase to keep in mind from the Constitution is "in order to form a more perfect union". This is the founding fathers admitting that the Constitution, as written, is not a perfect document but rather the best that could be fathomed at the time, and is also why a reasonable process to amend the Constitution as necessary was laid out in Article V. The War of Northern Aggression brought to light that maybe it was necessary to incorporate the Bill of Rights against the states.

The Fourteenth Amendment offered us two paths to incorporate the Bill of Rights. Path One is through the Privileges or Immunities clause, which reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". Path Two is through the Due Process clause, which reads "...nor shall any State deprive any person of life, liberty, or property, without due process of law".

The Slaughter-House cases effectively gutted the ability of the Privileges or Immunities clause to provide a path for incorporation of any Rights against the states. In Slaughter-House, the Court held that the Privileges or Immunities clause only applied to those Rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws". Therefore, post-Slaughter-House, you would have to consider the right to keep and bear arms a Right granted by the government rather than a natural right in order to be able to argue for incorporation under the Privileges or Immunities clause. I'm not so sure that most here (including I) would like to take a position in that direction.

However, "Virtually no serious modern scholar-left, right, and center- thinks that this [interpretation] is a plausible reading of the Amendment" (Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001), p. 8 of plurality opinion). But even with multiple citations such as the one in the previous sentence, Justice Alito went on to say "We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding."

In other words, while scholars have a consensus that Slaughter-House is extremely flawed and should be revisited, we don't want to touch it. My thinking is that this may have been a compromise to get Justice Kennedy to vote in favor of incorporation. At least Justice Thomas had some balls.

To not revisit Slaughter-House is kind of disturbing because Slaughter-House arguably did not directly involve any Right enumerated in the Constitution.

Due Process does not incorporate a Right based on the fact that it is enumerated in the Constitution, but rather that it is required by the very definition of "Due Process" which may change over time depending on who is seated in the Supreme Court. Due Process is not the route that you want any Right incorporated, but unfortunately it is available as the most narrow path toward incorporation. Even Justice Frankfurter went so far as to say in Rochin v. California that only those Rights enumerated which would "shock the conscience" if not incorporated against the states should be incorporated.

So, judging by your wording in your third paragraph, do you believe that the right to keep and bear arms is a Privilege, and thus a Right that is granted by the Constitution, rather than a natural right of man? That is the only way that the Privileges or Immunities clause would apply without revisiting Slaughter-House as suggested by Justice Thomas.

As Justice Thomas pointed out on pp. 49-50 of his concurrence, "The record is scant that the public understood the Clause to make the Federal Government 'a perpetual censor upon all legislation of the States' the Slaughter-House majority feared." Furthermore, Justice Swayne made clear in his dissent in Slaughter-House that "The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which be long to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection." This is clearly the direction that we must go to overturn Slaughter-House and fully resuscitate the Privileges or Immunities clause. Justice Thomas made the first step for us; now we need a case (or two) that will consider his opinion as controlling from McDonald.

We can move on to Cruikshank, if you wish, which further neutered the ability of the Privileges or Immunities clause, especially since it held that the Second Amendment is not a Privilege of American citizenship. But if one studies Slaughter-House and Cruikshank, it comes to light that they centered on only one part of that clause: Privilege.

It seems to me that the operand is getting overlooked, which is OR. This means the Privileges and Immunities are independent of each other, which means they should be subject to separate scrutiny, as defined in the Fourteenth Amendment. Keep in mind that the Privileges and Immunities clause of Article IV has a much different and distinct function.

So, until we have a Court with the balls to confront Slaughter-House, Cruikshank, and other related precedents that consider the wrong operand and an incorrect (as politically correct for the time as it may be) viewpoint on what the Privileges or Immunities clause truly entails, we're likely going to be stuck fighting the Courts for every last detail of our Right to Keep and Bear Arms, and those details are subject to change on the whim of the Court thanks to the Due Process clause.

 

[ConstitutionCowboy]

To not revisit Slaughter-House is kind of disturbing because Slaughter-House arguably did not directly involve any Right enumerated in the Constitution.

Do you find it odd that Slaughter-House has been and continues to be applied with a broad brush considering the narrow issue it was brought up on, yet Heller and McDonald will be applied on the narrowest of terms? That is a great example of how the Court will selectively apply its "stare decisis" according to its whims, and that the whole concept of "stare decisis" is nothing more than dictatorial law created and applied by a Judaical oligarchy.

So, judging by your wording in your third paragraph, do you believe that the right to keep and bear arms is a Privilege, and thus a Right that is granted by the Constitution, rather than a natural right of man? That is the only way that the Privileges or Immunities clause would apply without revisiting Slaughter-House as suggested by Justice Thomas.

I consider the RKBA a right preextant to the Constitution. The use of the word "privilege" in the Fourteenth Amendment covers everything from rights to freedoms and privileges. As for "revisiting" Slaughter-House, that abomination should be laughed out of existence. (I'm disappointed in Scalia, Roberts, and Alito for not concurring with Thomas on P or I. I wouldn't expect it from Kennedy nor the four dissenters.) Anything created by the Court or used by the Court that falls under the heading of stare decisis should be disregarded and discarded where any of it is in conflict with the simple reading of the Constitution. The only legitimate "stare decisis" is the Constitution. If the decisions the Founding Fathers made when crafting the Constitution aren't prior decisions amounting to established precedents for use by the Court, then the Constitution is for naught.

As for Due process, I don't see how it can be applied in ANY case regarding our rights, privileges, and immunities and their protections in the Constitution without the simple truth of the matter - that We the People HAVE those rights, privileges, and freedoms to begin with! It's a big 'ole DUH! followed by the heel of the palm striking the forehead with the exclamation we've all come to love - D'OH !!!

Woody

 

[vvvvvvv]

I do not consider the Right to Keep and Bear Arms a Privilege of a United States citizen; I consider it an Immunity because it far predates the era of the Founding Fathers.

Unfortunately, it will be quite some time before we will have a Court that is willing to take on Slaughter-House. This means that Court will have to be willing to actually remove power from the Federal government, at which time will be one of the greatest miracles to ever happen.

Unless this Court does something VERY odd once Nordyke makes it up there, I'm certain that Nordyke will be the next step in the gradual erosion of our natural Right protected by the Second Amendment by means of applying "Due Process" selectively at the whim of the sitting Justices. "...shall not be infringed" makes it very clear that the protection of this Right is an Immunity of a United States citizen.

The last bit of hope that I hold out for with this Court is that they will make a very surprising ruling that results in the overturning (or at least, severe neutering) of Slaughter-House. We've seen some fairly surprising rulings recently such as United States v. Morrison and United States v. Lopez.

 

[vvvvvvv]

Nordyke has been sent back to district court. In short, the Alameda County ordinance does not pose a substantial burden to the right to display or sell firearms at a gun show because there are still other avenues available besides county property. However, the Ninth Circuit did recognize that the ordinance has further reaching effects than just gun shows on county property and ordered the district court to allow the Nordykes to amend their case with new facts that the ordinance poses a substantial burden on the right to keep and bear arms for personal defense in light of Heller and McDonald (case was last amended in 2004 prior to those SCOTUS rulings).