BF2S Forums Nordyke, Incorporation, and the 2nd Amendment

I'm confused as to what happened here

They are basically saying that large groups of people combined with firearms and ammo in abundance represents a potential mass casualty site.

The issue revolves around the fact that many re-enactors, people who like to dress as paratroopers or civil war area soldiers, etc. also carry weapons.

A happy medium and one that is already in place at the O.C. guns shows is one where you can wear all the kit but the weapon must be visibly disabled; like a Garand rifle but missing the hammer assembly, or guns with their actions opened and gun locks in them.


Seems like a common sense thing, and not some over reaching fist strike by the long, hairy ham handed hand of the man, or even activist judges gone wild.

ATG wrote:

They are basically saying that large groups of people combined with firearms and ammo in abundance represents a potential mass casualty site.

The issue revolves around the fact that many re-enactors, people who like to dress as paratroopers or civil war area soldiers, etc. also carry weapons.

A happy medium and one that is already in place at the O.C. guns shows is one where you can wear all the kit but the weapon must be visibly disabled; like a Garand rifle but missing the hammer assembly, or guns with their actions opened and gun locks in them.


Seems like a common sense thing, and not some over reaching fist strike by the long, hairy ham handed hand of the man, or even activist judges gone wild.

Partially.  Alameda county actually rewrote the law so that reenactments could take place, but would not grant Nordyke's organization permission to host a gun show at the same location.

I agree with the Court's interpretation of history and incorporation.  However, I disagree with their application of the "sensitive places" language from Heller.  A park is very different from a K-12 school or the White House!  I think their application of Heller is overly broad, since it could be taken as any place where people gather is now considered too dangerous for civilians to have firearms.  I think the past decade or so of CCW experience has proven that completely wrong.

how about he just moves the location?

I'd say any appeal of a 9th Circuit decision would go to the SCOTUS...wouldn't it?

The fact that this decision came out of the 9th Circuit should be enough to warrant SCOTUS to look at it, based on the activism from the bench that historically comes from that jurisdiction.

I agree that the 9th's interpretation of the SCOTUS opinion in Heller is overly broad. It was clearly not intended to apply to all govt property.

RAIMIUS wrote:

So, what do you think?
Did the 9th decide correctly?  Will this make it to the Supreme Court, in light of the fact that other courts have ruled differently?  What will this mean to the future of the 2nd Amendment and gun-control in the US?

Well, I don't remember any specific mention in the opinion of a circuit split on this issue.  It is promising that even the Ninth Circuit held the second amendment to be applicable to the states.

I found their reasoning suspect (and possibly grounds for appeal) when it came to the equal protection claims.  The court explained nothing when it held that the re-enactment society could use functional weapons for their events as long as they fired blanks and the weapons were secured against unauthorized use when not being used for re-enactment purposes.  Perhaps the court thinks there's something special about blanks that prevents them from being fired from a weapon that also can fire live rounds, but I can see no reason why a gun show that won't be firing anything is inherently more prone to be a site of violence than a war recreation that's making heavy use of blank rounds.  I further wish the Nordykes had required vendors to use tie-downs and steel cables in order to secure the firearms at the tables.  This would have met the conditions in the amended ordinance and given them more solid grounds upon which to base their equal protection claims.

I really don't understand, however, their discussion of the second amendment as it relates to the fundamental right (which they acknowledge) of self-defense.  They state their intention is to reduce crime and to do that they'll abridge the ability of people to effectivel defend themselves on county property.  If country property is really so prone to violent activity, it doesn't seem at all helpful to disarm people and make them targets.

There is a silver lining to this cloud, however, beyond the incorporation doctrine espoused by the opinion.  In what is possibly the most coherent statement seen in a 9th Circuit opinion in quite some time, footnote 18 has a glimmer of hope for the sanity of that court:

18The 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.

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.  Regardless, footnote 18 is fucking awesome.

They consider the act of moving firearms to be "carrying"...at least that's how it looks.

I believe the re-enactment exception was part of the county ordinance, not the court's decision.

I'm assuming they consider it a government interest to limit the ability of people to carry weapons where large groups will be.  IMO, they probably base this off of "weapon theory"--the idea that the possession of weapons automatically increases the likelyhood of violent crime.  I don't buy the theory, ESPECIALLY with regards to CCW and gun shows (since the evidence doesn't support it).  That's my best guess, since the court really didn't explain why they consider county grounds to be "sensitive places" or why "sensitive places" should be restricted.


I concur about the "living Constitution" theory of judicial activism.  IMO, Plain text reading > Original intent > whatever the hell the judges feel like.