Ninth Circuit rehears Nordyke case

Last Thursday, the federal Ninth Circuit, sitting en banc, heard oral arguments in the rehearing of the Nordyke v. King Second Amendment case. See here for my post on the original panel's ruling from this past April, along with a link to the ruling.

Here's some coverage of last week's hearing:

San Francisco Chronicle: Court considers county's right to regulate guns

Law.com: 9th Circuit Reconsiders Controversial Gun Rights Case

CBS News: Appeals Court Weighs Gun Rights Lawsuit. An excerpt:

Update 9/24 9:31 p.m.: The Ninth Circuit has just handed down a one-page order delaying consideration of this case until the U.S. Supreme Court decides whether or not to hear the lawsuits arising out of Chicago and New York state. The justices are scheduled to discuss those cases on September 29, and are likely to announce their decision soon after.

Ninth Circuit agrees to review Second Amendment panel ruling

From SCOTUSblog we learn that the Ninth Circuit, based in San Francisco, has agreed to an en banc rehearing of the Nordyke ruling, which held that the Second Amendment applied to the states (see my post here for details on the Nordyke ruling).

From SCOTUSblog, on what this means for the pending petitions before the Supreme Court in Second Amendment cases:

Without a conflict, the Supreme Court may wish to wait for the issue to percolate further in lower courts. The issue also roiled the nomination hearings for Justice-designate Sonia Sotomayor, perhaps raising the sensitivity of the issue to the point that the Court might be reluctant to take it on when the lower courts are not in disagreement on it.

On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws. The effect of that order, of course, was to vacate the panel decision. Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.

Without the so-called "circuit split" on the Second Amendment incorporation issue between the Ninth, Second, and Seventh Circuits, the Supreme Court may be more inclined to defer the pending petitions related to the Chicago gun ban case and the Maloney (nunchaku) case from New York until after the Ninth Circuit has had a chance to rule on the issue.

I wouldn't be surprised if this is merely another delaying tactic by the notoriously Left-leaning Ninth Circuit to postpone a Supreme Court ruling on the incorporation issue. Sigh. As the old civil rights mantra proclaims: Justice delayed, is justice denied.

Life after Heller

From Reason Magazine, on the Ninth Circuit's recent Nordyke v. King decision (see my post here for more info and a link to the decision):

In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King, but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California’s Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller, when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions.

It’s not unusual for an important gun rights principle to be embedded in a decision upholding a gun law. In fact, that outcome has a positive historical pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case, U.S. v. Emerson, where the court declared that the individual right to possess weapons existed in principle (as distinct from some collective right connected with militia membership). But the opinion also said that the particular statute at issue, which barred individuals currently under restraining orders from owning weapons, did not violate the right.

What mattered for the future of gun rights was not whether the plaintiff won his challenge (he didn’t). What mattered was that Emerson created a split in judgment over what the Second Amendment meant among the federal judicial circuits. That laid the groundwork for the Supreme Court to take up the question in Heller. Similarly, what’s most important for the future of gun rights jurisprudence with Nordyke is not whether Alameda County will once again see gun shows on its property (it won’t) but that the decision creates a clear circuit split on whether or not the Second Amendment applies, through what’s called “incorporation” via the 14th Amendment, to state and local actions. ...

Read the rest here.

Gun Rights News Roundup

Articles, news stories, and op-eds of interest to gun owners:

From Gunowners of America, on Obama's support for a U.N. gun control treaty:

Remember CANDIDATE Barack Obama? The guy who “wasn’t going to take away our guns”?

Well, guess what?

Less than 100 days into his administration, he’s never met a gun he didn’t hate.

A week ago, Obama went to Mexico, whined about the United States, and bemoaned (before the whole world) the fact that he didn’t have the political power to take away our semi-automatics. Nevertheless, that didn’t keep him from pushing additional restrictions on American gun owners.

It’s called the Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. To be sure, this imponderable title masks a really nasty piece of work.

First of all, when the treaty purports to ban the “illicit” manufacture of firearms, what does that mean?

1. “Illicit manufacturing” of firearms is defined as “assembly of firearms [or] ammunition ... without a license....”

Hence, reloading ammunition -- or putting together a lawful firearm from a kit -- is clearly “illicit manufacturing.” ...

Comment: Gunowners of America has a link to send a message to the Senate regarding opposition to ratification of this treaty here.


New Jersey Senator Lautenberg pushing to close gun show "loophole":

Several high-ranking senators led by Frank Lautenberg (D-N.J.) on Tuesday relaunched their push to require gun sellers to conduct background checks on purchases of all types of guns at state gun shows.

On the heels of the 10-year anniversary of the Columbine shootings the lawmakers pushed to close the gun show “loophole” that exists in more than 30 states.

These states do not require personal gun sellers, who are authorized to hawk their own firearms at gun shows, to conduct a background check on buyers of the guns. This allows people with criminal histories to easily obtain weapons like those used in the Columbine killings, according to lawmakers.

Measures similar to Lautenberg’s bill have passed the Senate twice before but have failed to pass the House because of pressure from gun lobbying organizations like the National Rifle Association, said Lautenberg, who was joined Tuesday by Sens. Dianne Feinstein (D-Calif.) and Jack Reed (D-R.I.). ...

Dave Workman discusses the Nordkye decision:

The U.S. Ninth Circuit Court of Appeals on Monday handed down a long-awaited ruling in the epic case of Nordyke v. King, which started as a lawsuit by gun show operators Russell and Sallie Nordyke against California’s Alameda County, and became something considerably larger.

The court panel, with Judge Diarmuid F. O'Scannlain writing the opinion and Judge Ronald M. Gould offering a concurring opinion, rule that the Second Amendment is incorporated to the states; that is, the right to keep and bear arms that is affirmed by the Amendment now becomes a limit on state and local governments, same as it is a limit on the federal government. ...

Another article on Nordyke:

As my colleague, David Codrea, has already reported, the 9th Circuit Court of Appeals has ruled that state and local governments are bound by the Second Amendment. Since the advent of the Fourteenth Amendment, most provisions of the Bill of Rights have gained power over not only the federal government, as originally intended, but over state and local governments, as well. The Second Amendment was one of the few exceptions--and that has never made sense (and was clearly not intended by the drafters of the Fourteenth Amendment).

In Nordyke v. King, however we may very well be seeing the beginning of the end of that very unsatisfactory set of circumstances, wherein state and local governments need not so much as pay lip service to the Second Amendment. In the 9th Circuit, in fact, that end has indeed arrived. Granted, the 9th is but one circuit court, and unless and until the Supreme Court rules similarly, the other federal circuit courts are free to ignore the Nordyke ruling. Still, this development is very significant, because the 9th is the largest, and thus one of the most important, federal circuit courts. It is also considered the most "liberal," and thus perhaps the most resistant to protecting the right to keep and bear arms.

That perception, actually, was borne out to some degree by the decision, which despite ruling that the Second Amendment applied to state and local governments, also ruled that such governments could ban gun shows on public property. The judges of the 9th Circuit, apparently, attach a different meaning to shall not be infringed than one might expect, based on the . . . actual meaning of those words. In that, the decision resembles some of the more regrettable aspects of the Heller decision. ...

Howard Nemerov on New York Senator Kirsten Gillibrand turn towards the Dark Side:

Once again, anti-rights forces in Congress are attacking the Tiahrt Amendment as restricting law enforcement from doing its job, using their pretty new face: Kirsten Gillibrand. But examination of Gillibrand’s campaign finance, and comparing rhetoric to reality, are in order before trusting her as a disinterested public servant trying to protect us.
...
NBC New York reports:

Sen. Kirsten Gillibrand is calling for the repeal of a federal policy on record keeping for gun background checks, a law she originally co-sponsored in Congress.

Sen. Gillibrand and fellow New York Senator Chuck Schumer want to change the Tiahrt Amendment, which requires records of gun background checks be destroyed after 24 hours. The amendment restricts cities, state and members of law enforcement from using so-called "trace data" to track how guns are trafficked across state lines.

Gillibrand, a supporter of the National Rifle Association, had originally co-sponsored the bill, which was added on to a appropriations bill, as an upstate Congresswoman. [Emphasis added]

Maintaining background check records creates a registration database, a key goal for gun banners because it enables them to know what guns you own and sets the stage for confiscation. ...

[West Virginia] Win some, lose some: Permit privacy bill loses, reciprocity provision wins:

CHARLESTON — When the smoke cleared away on the final night of the legislative session, the West Virginia Press Association held the winning hand in a duel over guns and the public’s right to know who is toting concealed firearms.

For two years, the battle has raged between the press association and the National Rifle Association in a bill initially offered to allow West Virginia to enter into and honor reciprocal pacts so that states recognized each other’s concealed weapon permits.

But the NRA amended the measure so that no citizen could access permits under the Freedom of Information Act, a move the press association viewed as poor policy in regard to the public’s right to know and scrutinize government records.

“The logic behind it was contrived,” Phil Reale, a Charleston attorney and lobbyist for the press association, said of the NRA’s opposition to public access on grounds it might expose someone in a domestic rift to danger if his or her concealed weapon permit were publicized.

The NRA did score on getting the reciprocal agreements approved.

“They got something out of it, which we didn’t object to,” Reale said. ...

Ninth Circuit says Second Amendment applies to states

Yesterday, the Ninth Circuit, based in San Francisco, and which covers the big Western states (Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington, along with Hawaii, Guam, and the Northern Marianas), ruled in the case of the long-running Nordkye v. King case, that citizens' Second Amendment protections apply not just against the federal government, but also against states (and political subdivisions thereof, such as cities, counties and towns).

The case was decided by a three judge panel, who ruled unanimously that the Second Amendment is "incorporated" against the states. In the wake of the Supreme Court's Heller decision, the court was also forced to abrogate their own prior precedent that held the Second Amendment was a collective, rather than an individual, right.

From the opinion, on the incorporation issue:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. [Slip op. at 29, footnotes omitted and emphasis added]

And from Judge Gould's short concurring opinion:

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision. First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.”

The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. [emphasis added]

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence. [emphasis added]

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not "arms" within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense.

Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment. [Gould, J., concurring, slip op. at 41-43, footnotes omitted and paragraphs breaks added for readability]

Ironically, the plaintiff gun show organizers lost their case, as the appeals court held that the municipal ban on guns on county property (where the gun shows were held) did not violate the Second Amendment.

Read the court's ruling here.

UCLA law professor Eugene Volokh has some commentary here (on the court's incorporation reasoning), here (on why the plaintiff gun show organizers ultimately lost on the merits), and here (on the concurring opinion by Judge Gould, a Clinton appointee).

This is an important step in getting the Supreme Court to rule (for the entire nation) that the Second Amendment is incorporated against the states, i.e., applies to the states as well as the federal government.

The other critically important issue that the Supreme Court needs to rule on is the standard of review that courts must apply when assessing the constitutionality of gun control laws. This is where the rubber meets the road, so to speak, and will determine which gun-control laws the courts will strike down as violative of the Second Amendment. I know, I know, what part of "shall not be infringed" don't they understand? I'm simply referring, however, to the process by which the courts operate today in reviewing constitutional issues, and that process involves differing "standards of review" for different constitutionally protected rights. You might not like it, but that's the way it is.

We still have the Chicago gun ban case now up on appeal, so we'll have to wait and see how the Seventh Circuit rules on the incorporation issue. If the Seventh Circuit rules that the Second Amendment does not apply to the states, then we would have what's known as a "circuit split". The Supreme Court is more likely to get involved in resolving such circuit splits, where different federal appeals courts have ruled differently on the same legal issue.

Incorporation and the Nordyke case

From an article in Reason discussing the long-running Nordyke case, which I blogged about previously, and discussing the issue of whether the Second Amendment applies to state and local governments via the Fourteenth Amendment:

Nordyke, it now appears, might help with the answer. Last week, four preeminent legal scholars—Michael Kent Curtis, Richard Aynes, Michael Lawrence, and William W. Van Alstyne—filed a friend of the court brief arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Second Amendment, of course, is right there on that list.
...
For its part, Alameda County currently maintains that, "the Second Amendment constrains only Congress," while the amendment's core purpose of "self-preservation...is best advanced through the establishment and exercise of the police power." Which means that while Congress may not legally disarm the American people, state and local governments may.

Article here.

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.