Ninth Circuit may rule on Second Amendment incorporation issue

The San Francisco-based Ninth Circuit, which has jurisdiction over California (and a bunch of large Western states), looks set to address the Second Amendment incorporation issue in the wake of the Supreme Court's Heller decision in the long-running case of Nordyke v. King, a case in which gun show organizers challenged Alameda County, California's prohibition against possession of firearms on county property. The challenged county ordinance effectively shut down the plaintiffs gun shows, which had been held on county property.

Read a summary of the case and its long history here.

Read the Ninth Circuit panel's decision (from 2003!) upholding the trial court's denial of the plaintiff's preliminary injunction application here. Interestingly, the three judge panel that upheld the lower court's decision suggested that, were they not bound by Circuit precedent (Hickman v. Block, a Ninth Circuit decision from 1996) that held the Second Amendment was a collective, rather than an individual, right, that they may have ruled differently on the issue. Indeed, one of the judges wrote a concurring opinion stating that the collective rights view the panel was forced by the binding Hickman precedent to follow was wrong. In 2007, the district court ruled against the plaintiffs and for the county, and the plaintiffs appealed. In light of the Supreme Court's Heller ruling, the appeals court allowed the parties to brief the Second Amendment incorporation issue. The original three judge panel from 2003 is expected to retain jurisdiction and hear the appeal.

Reply and amicus briefs are available here (PDF).

Alameda County, naturally, opposes the application of the Second Amendment to the state or political subdivisions such as itself. Read the county's brief here.

This case may be one of the first post-Heller cases to address whether the Second Amendment's protections apply to states and their political subdivisions (cities, towns, counties, etc.), or only against the federal government. Ultimately, the Supreme Court will probably need to decide the issue, but the federal appeals courts will need to weigh in first. This may be the powerful Ninth Circuit's chance to do so.