California case: Nordyke v. King

Wow!
That's law in the fast lane!
I'm sure that, at the time, some of the judges were chuckling to themselves that, "Delay is the cruelest form of denial."
But then the Heller decision comes along in the middle of this imbroglio.
Poetic justice?

Does anyone else out there think that Heller clearly supported the right to carry a gun in public? The only two comments I've seen on this issue say it was only about bearing arms in one's home. Does that mean that the 9th circuit will have to pass it to the Supreme Court? I doubt those three judges will but they might if they feel bound by precedent. Will they have the option of incorporating the 2nd or will they have to let the Supreme Court do that too?

Heller clearly states that individuals have the right to carry a gun in case of confrontation. Can anyone seriously suggest that the only reason the framers put "bear arms" into the bill of rights was to protect the right to carry a gun on your own property? I know that the court's order only required DC to let Heller carry in his house, but I think the order was limited to that only because that's all Heller asked for. The court had to decide the meaning of "bear arms" in order to give the order, so I don't think it's just dicta unless you buy the idea that the framers put bear arms in the 2nd only to protect the right on your own property. I've never heard that interpretation from anyone before.

Critic ,

Great point! Indeed the crux of the majority opinion seemed geared toward the idea of self-protection. The core of ANY self-defense argument has a logical conclusion to the defense of a person. Indeed, handguns allow for portability upon the person and a ready defense of themselves due to their ease of access. The Heller decision's tended to be on two distinct points:

1. The use of handguns as a popular means of self-defense to a person's life.

2. The fact that government should not prohibit it from law-abiding citizens without just cause. (felony conviction, Mental illness, etc..)

So based upon the two prongs of the decision. How can government reasonably prevent someone from carrying a handgun on their person if they are law-abiding?
What I am trying to say is even though the decision was a "5-4 for .38 revolver," is there to say that there is a workable, logical conclusion for future case law from Heller for the carrying of firearms outside of one's property? With that, do you think it is strong enough to overturn government prohibitions of carrying in any form?

ATL

When I first read Heller I noticed that they mentioned concealed carry might be prohibited but they didn't mention open carry. I assumed that it was because it went without saying that if carry was legal then at least open carry had to be protected. But some have interpreted Heller more narrowly. It seems clear to me that if a case can be gotten to the Supreme Court before any of these five justices retire then the right to public carry will be upheld. I also think there is a small chance that these five justices might even protect concealed carry once they're informed of the fact that there has been no evidence that concealed carry presents extra risk. In the past the right was infringed because legislatures believed that concealed carry increased violence, but now that we have statistical evidence that they didn't used to have to prove that concealed carry isn't dangerous, I don't see how the infringement can be upheld. They phrased their remark about concealed carry so that the question wasn't settled.

Well, since Scalia contemplated restrictions on bearing arms in government buildings and schools, there seems little doubt that he was talking about arms bearing in public.

I was amazed when I read it in Heller so it sticks in my mind.

The fed can ban open carry or concealed carry but not both.

On topic I see that the RO was denied. Seems wrong to me. In the DC case the appellate held status quo. In the case at hand the operators presumably lost a great deal of money for an ordinance that should be overturned. I hope when the dust settles Nordyke sues Alameda into bankruptcy.

Critic,

I think that is true. There are enough states with CCW's that there is enough evidence for some type of ruling on the issue. I think that it wouldn't do as well with the Heller decision because Heller dealt with full prohibition which was clearly unconstitutional, and this merely deals with the right to carry. I think the saving grace of it might be the restrictions that are in place for CCW's (schools, secure section at airports, courthouses, etc..) that present within the concealed carry a reasonable and practical usage that would probably swing a good portion of the middle court.

>>>I hope when the dust settles Nordyke sues Alameda into bankruptcy.

***

The last time I talked to Rusty about that, he said that was what he was going to do if he prevails. He's lost a ton of income.

Getting the same 9th Cir panel would seem to be good news. O'Scannlain wrote that had they been writing on a blank slate, the opinion could well have been different... but *Hickman* and *Silviera* were binding them.

Gould wrote a separate special concurrence that has to be one of the best reasoned defenses of the individual RKBA I have seen.