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SAF Argues For Stringent Judicial Review Of Alameda County Gun Ban

August 25, 2010 by  

SAF argues for stringent review of stringent judicial review of Alameda County gun ban The Second Amendment Foundation (SAF) has filed a friend-of-the-court brief in the Nordyke v King case, supporting the position that the Alameda County, Calif., gun ban is a Second Amendment issue, and as such should be subject to "strict scrutiny," which is the most stringent standard of judicial review in the United States.

The case stems from a decade-old ban imposed following a 1998 shooting at the county fair, and was brought by two operators of a gun show. They argue the incident was not related to their show and that the authorities used it as a pretext for a wholesale prohibition.

SAF Founder and Executive Vice President Alan M. Gottlieb said that the importance of the case stems from the fact that "it could establish the highest standard of scrutiny to which gun laws around the country would be subjected."

It "cannot be underestimated, or understated," he stressed.

Earlier this summer, SAF celebrated an important victory for gun ownership rights when the Supreme Court struck down the decades-long ban on handguns in Chicago.ADNFCR-1961-ID-19928798-ADNFCR

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  • James

    Nordyke v. King, ___ F.3d ___ (9th Cir., 2009) was decided in April of last year. The Court upheld an Alameda County ordinance that banned gun displays at the county fairgrounds. It decided on its own that the ordinance did not violate the Second Amendment because it only restricts the federal government, and the ordinance did not violate the individual right of the Nordykes, or any other Californian, to bear arms as long as it didn’t violate State laws.

    • 45caliber

      Yes, but the Supreme Court ruled in the Chicago case that the 2nd Amendment applied to ALL government entities, which disallows this decision by the 9th Circuit Court. Therefore it will have to be revisited.

      • James

        45caliber, Here’s some history on the Second Amendment:
        In the original Constitution (1789), the powers that were delegated to Congress (Article I, Section 8) made no mention of rights, and about half of the Founders believed that would suffice to prevent the new federal government from legislating over rights. However, others thought future congresses might misconstrue those powers, to include rights, and insisted upon adding a Bill of Rights (in 1791). The Preamble to the Bill of Rights reads:

        “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.”

        Thus the stated purpose for the Bill of Rights was to add “restrictive clauses” “in order to prevent misconstruction or abuse of its powers” with respect to rights, where ‘its powers’ referred to the federal government. The Second Amendment reads:

        “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

        Viewing the Second Amendment out of its Bill of Rights’ context has misled many to misconstrue its “shall not be infringed” as a proclamation to all governments, including state legislatures as well as Congress. But, just as the First Amendment’s “Congress shall make no law,” obviously applies exclusively to the federal government, so also does the Second Amendment.

        In Barron v. Baltimore, 32 U.S. 243, 247 (1833), Mr. Chief Justice Marshall said: “The [U.S.] constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states…the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.”
        In United States v. Cruikshank, 92 U.S. 542, 553 (1875), a mob of whites had disarmed two blacks (in Louisiana) and the issue was whether that action had violated the Second Amendment right of the blacks. Mr. Chief Justice Waite said: “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
        In District of Columbia v. Heller, 554 U.S. ____ (2008), the U.S. Supreme Court said: “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment of the Constitution.” After meticulous analysis of every word and clause in the amendment, the Heller Court stated: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

        Just remember that that decision involved an ordinance of a territory (the District of Columbia), which falls under federal jurisdiction, it has no effect within the States. The Heller Court cited Barron, Cruikshank and other High Court decisions as precedents.
        Stated otherwise no State law has ever been held violative of the Second Amendment. In McDonald v. Chicago, the case just recently decided, the issue was whether a state’s city ordinance, which prohibits handgun possession in a certain area, had violated the Second Amendment. The High Court McDonald decision, held that the Chicago ordinance violated one’s individual right to bear arms, which the “liberty” clause, of the Fourteenth Amendment protects. That was never the intent for that amendment, but the Court has also included in its “liberty,” the rights of miscegenation, abortion, and homosexual acts.
        In our entire history, no State or federal law has ever been held as violative of the Second Amendment’s “shall not be infringed.” To-date, the D.C. ordinance (in Heller) is the only violation.

  • http://gmail i41

    Just another contradiction of laws, when Calpyso Louie Farrakan and his muslim scowling knuckle draggers go out in public packing guns, we never see the DOJ or any agency, getting after these clowns over breaking gun laws or voting rights. But if a White group are out on private land,talking smack and eating a roasted hog, DOJ and FBI are on them like white on rice. Same goes for the rainbow gangs and their off shoots in cities. Or is this Omoron’s private army he has espoused for?

  • Marilyn

    Guns in every home and right to carry have detered many criminal acts. PROVEN! See the criminal activity in Vermont where permit to carry has decreased crime. Countries that demand each home has a gun…crime rate is almost nil. My daughter in a southern State was stalked. She made sure she had a permit to carry and was taught how to use her gun. Now, she isn’t running scared and knows she can take out the stalker if need be.
    There is a LOT of crime in Chicago and criminals, when caught, are given the Hotel Ritz to live in. I’m sure they don’t mind going back once in a while to have a free cot and a hot; in style. Much unlike our good Sheriff in Arizona who treats criminals as criminals and they sleep in tents. BRAVO for the Arizona Sheriff! I agree with him that if our military who are not criminals and protecting American Freedom must sleep in tents, then criminals have nothing to gripe about.

    Criminals will ALWAYS have guns! They do not respect other’s property or lives. WAKE UP ALAMEDA, CA!!

    Let me ask this: Obama has security around him at all times. Do they carry guns? If Obama, Pelosi, Holder, Reid and all of his cronies want to step all over the 2nd Amendment and remove guns from private homes, will their security guards still carry guns? Think about it. I figure my life is important and I refuse to die at a criminal’s hands without a good fight!

    • 45caliber

      I agree with all you said but the last I heard Vermont allowed concealed or open carry by anyone without a license. Have they changed that?

    • 45caliber

      Every anti-gun person I know about in Washington with the possible exception of Schumer either carry a gun themselves or have body guards that do. And all, when questioned, have stated that they HAVE to carry since there are people out there who might want to harm them so they can’t possibly give up their guns if they ban them.

      • vicki

        My question to them. If guns are banned then no one out to get you will have one so WHY do YOU need one.

        Bet you can guess what their answer will be :)

        • JC

          Excellent point!

  • George

    The way it is going in this country with Obitch loading the Supreme Court with gun hating judges, God help Us.

  • Christian American

    The constitutional rights of all US citizens is unimportant, after all we are living in a Utopia! Just watch CNN.

    • James

      Christian American, Rights are not constitutional, they are unalienable, that is, independent of any constitution. Read my above High Court brief. Referring to our right to bear arms as a Second Amendment or constitutional right is what got us into this mess.

  • Yvan

    Yes George
    Take the machine gun a bazooka away from Americans and they will all commit suicide. What a future for this Great Nation of gun maniac.

    • Jim H.

      Yes Yvan, Take away my bazooka and I’m lost, nothing else to do but commit suicide. Whats a gun maniac like this American to do.( what a moronic statement)

    • independant thinker

      Yvan……………You know nothing of which you attempt to speak about.

    • slickporsche

      You are a nut case. I will go to my workshop and construct my own gun.I have the know how, the tools, and the ambition. In case you need one someday let me know.

    • 45caliber

      Out of curiosity, were you even born in this country? Everyone has the right of self defense – even if the liberals try to deny it.

    • JC

      Take away the right to bear arms and you have…Nazi Germany, Stalin’s Russia, Mao’s China…yeah Yvan that’s reality!

  • mitch

    we the people have the right to defend ourselves, the police don’t have the money or muscle to do this, the constitution gives every law abiding citizen certain rights and “self protection from criminals whether individual or governmental,” is a right that is not to be infringed upon by any county or city, the federal law trumps state law, this was just shown by the arizona immigration case, feds jumped arizona for trying to do the job the fed were supposed to be doing and weren’t, now nobody is doing the job and arizona is suffering for it, citizens of arizona need to be able to protect their selves from criminals who niether respect nor care about the law, we the people need to understand that we are the police when social conflict is not controlled by the paramilitary organizations we pay to maintain order.

    • slickporsche

      Mitch the criminal element we need to be looking for and defending ourselves against is our own government.

    • 45caliber

      mitch:
      Courts have ruled that police do not have the responsibility to defend you. In fact, I know of at least one case in Houston a couple of years ago where a cop actually sat in his car and watched a man brace and shoot a couple of criminals who tried to attack him. And the cop only called the shooting in. He never got out of his car or anything. He even watched the criminals break into the house they robbed without calling that in.

      But England and Austrailia have both taken the stance that self defense is not justification to harm another person. In fact several years ago, a 20 year old woman, 110 lbs., had to defend herself from a 295 lb man who tried to rape her. She used pepper spray. The man got six months for assault – she got a year for using undue force against an unarmed man. Several of our politicians have stated that we need to do the same thing.

      • Jim H.

        The last thing a rapist should see is a muzzle flash, heading straight between his eyes.

      • James

        45 caliber, If the shooter fired before he was attacked, that would be a crime in any State. That case might have involved jurisdiction. If Highway Patrolmen witness a crime in a city, it would fall under city police jurisdiction. The vice-versa is also true. But if city or state police witness such a shooting in their own jurisdiction, and do nothing about it, that is a dereliction of duty. All courts have held that before shooting, one must be attacked first. If not, all one would have to do to murder someone is to entice him out somewhere, shoot him dead, then claim he attacked you.

    • James

      Mitch, the Constitution did not give us our rights, they existed before the federal government was created. Indeed, the Bill of Rights restrictions on Congress wasn’t added until two years later.

  • s c

    Go for the jugular, SAF. While you’re at it, don’t forget to use a vertical thrust to the bridge of the nose and a swift kick to the groin.

  • vicki

    “The case stems from a decade-old ban imposed following a 1998 shooting at the county fair, and was brought by two operators of a gun show. They argue the incident was not related to their show and that the authorities used it as a pretext for a wholesale prohibition.”

    I was at that fair and within 100 ft of the shooter. I can say from direct observation that there is absolutely no reasonable connection between the incident and any gun show. It is obvious that the “authorities” used the incident for a wholesale ban on a peaceful legal event that was NOT EVEN in the fair at or near the time of the shooting.

    For an interesting statistic people should compare the number of violent incidents at a county fair with the number of violent incidents at a gun show on the same fair grounds. The result, for those willing to discover, would be most illuminating.

  • http://LibertyDigest Michael G.

    I for one am glad I don’t live in California. I used to visit there when younger, but not today–too many liberals and their crazy ideas. I have the Al Capone approach to gun control: “You mess with me, I’m gonna’ mess with you.”
    I had a local police office tell me, and I do agree with this: “An armed society is a polite society.” I have no reason to use a gun except for ligimit purposes, and self defense. Pray God I never have to use one for that last purpose.
    God save the Constitution and the 2nd Ammendment.

    • James

      Michael, if the Constitution and the Second Amendment were repealed, we would still have the unalienable right to bear arms. Rights are from God. The theme of the Bill of Rights is “Congress shall make no law…, it’s restrictive on the federal government.

  • Leonardo

    If you a have a good record. No felony charge or are not crazy, then, you have a right to a weapon to defend yourself and your family. If you think differently then, you are in a world of trouble. If you are in need of a law officer to defend you at any given moment, by the time he gets there and in response to the 9-1-1 call you made, guess what. Your dead meat. Be a think tank not a fool.

  • http://PersonalLiberty Ray

    mitch, the Constitution does not give us anything. Sorry to say anyting given can be taken by the giver. But the Constitution by way of the first ten amendments garauntees to us that which GOD has given us.

  • Lubo

    Trust me, the “Progressives” understand the 2nd amendment right to keep and bear arms. This is an issue that cannot be defeated head on because the constitution is VERY clear about this right. May be the reason it is the 2nd amendment after freedom of speech.

    However, when you are dealing with progressives, always remember not to watch the hand they are waving at you but the hand behind their backs.

    Watch the EPA VERY carefully my friends because the “target” now will be your ammunition!

    As reported:

    This petition would ban all traditional ammunition under the Toxic Substance Control Act of 1976. When originally passed by Congress, the law expressly exempted ammunition.

    If the EPA approves the petition, the result will be a total ban on all ammunition containing lead core components. This would include all hunting and target shooting ammo. The deadline for consideration of the petition by the EPA is November 1, 2010.

    Now, that would mean no LEAD in bullets which is the primary component at the end of the powder charge within the casing. This means alternatives would be needed, such as, STEEL or titanium which are MUCH more expensive. In addition, I think they are toying around with the idea to tinker with the powder base so it is useless within a short period of time thus keeping FREE AMERICANS from stock pilling ammo.

    I would think the necxt thing down the pike will be “Special Taxes” on ammo so eventually the regular Joe cannot afford a box of bullets because it will a $100 a box for 20 rounds.

    Never underestimate the cunning intentions of the left!

  • James

    It is fairly obvious that the federal government has ignored the Second Amendment restriction on them, and intends to disarm Americans.

  • James

    I’m curious, if one believes the Second Amendment gave us the right to bear arms, but declares the right “shall not be infringed,” to whom does that restriction apply? Did Congress violate it by the National Firearms Act of 1934? Or the Gun Control Act of 1968? Does anyone here believe that the federal government can violate the Second Amendment?

  • James

    Double-dog dare ya to answer that.

  • James

    Second Amendment History:
    In the original Constitution (1789), the powers that were delegated to Congress (Article I, Section 8) made no mention of rights, and about half of the Founders believed that would suffice to prevent the new federal government from legislating over rights. However, others thought future congresses might misconstrue those powers, to include rights, and insisted upon adding a Bill of Rights (in 1791). The Preamble to the Bill of Rights reads:

    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.”

    Thus the stated purpose for the Bill of Rights was to add “restrictive clauses” “in order to prevent misconstruction or abuse of its powers” with respect to rights, where ‘its powers’ referred to the federal government. The Second Amendment reads:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    Viewing the Second Amendment out of its Bill of Rights’ context has misled many to misconstrue its “shall not be infringed” as a proclamation to all governments, including state legislatures as well as Congress. But, just as the First Amendment’s “Congress shall make no law,” applies exclusively to the federal government, so also does the Second Amendment.

    In Barron v. Baltimore, 32 U.S. 243, 247 (1833), Mr. Chief Justice Marshall said: “The [U.S.] constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states…the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.”
    In United States v. Cruikshank, 92 U.S. 542, 553 (1875), a mob of whites had disarmed two blacks (in Louisiana) and the issue was whether that action had violated the Second Amendment right of the blacks. Mr. Chief Justice Waite said: “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
    In District of Columbia v. Heller, 554 U.S. ____ (2008), the U.S. Supreme Court said: “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment of the Constitution.” After meticulous analysis of every word and clause in the amendment, the Heller Court stated: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

    Just remember that that decision involved an ordinance of a territory (the District of Columbia), which falls under federal jurisdiction. The Heller Court cited Barron, Cruikshank and other High Court decisions as precedents.
    In McDonald v. Chicago, the case just recently decided by the High Court, the issue was whether a state’s city ordinance, which prohibited handgun possession in certain areas, had violated the Second Amendment. In McDonald, the Supreme Court held that that ordinance violated the “liberty” in the Due Process clause, of the Fourteenth Amendment.
    That is, it violated Illinois citizens’ unalienable right to bear arms, not the Second Amendment. As the Court stated above, the right is not dependent on the Second Amendment for its existence. Stated otherwise, the only entity that can violate the Second Amendment is the U.S. Congress. Fourty-four state constitutions have similar clauses that apply to them. For example, read Article I, Section 22 of the Illinois Constitution.

  • James

    So, I would repeat my question. Does anyone, here, believe that it is possible for the U.S. Congress to pass any law that’s violative of the Second Amendment?

  • James

    Did the U.S. Constitution place any restriction on Congress, at all, to refrain from legislation that would infringe on the people’s right to bear arms?

  • James

    Let’s make it simpler: Is it possible for Congress to violate the U.S. Constitution? Has it ever done that?

  • James

    Obviously, no one cares, or dares, to answer that. With that I’ll leave this article.

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