Skip to comments.9th Circuit Giving Gun Case Another Look(CA)
Posted on 07/31/2009 6:58:31 AM PDT by marktwain
The 9th U.S. Circuit Court of Appeals just agreed to host another shootout over gun rights.
The court decided Wednesday to review en banc a panel ruling that had significantly broadened Second Amendment protections by applying them to state and local governments. This holding, arrived at by Judge Diarmuid O'Scannlain, is at odds with other rulings from around the country -- including one penned by 2nd Circuit Judge Sonia Sotomayor.
The 9th Circuit panel had still upheld an Alameda County, Calif., ordinance that forbids a gun show at a public fairground. Thus neither side had asked for en banc review.
"I suppose they were both afraid of what could happen," said Arthur Hellman, a professor at the University of Pittsburgh School of Law.
Hellman speculated that pro-gun control forces on the 9th Circuit may be seeking to resolve the circuit split now, which would relieve some of the pressure on the U.S. Supreme Court to weigh in.
O'Scannlain found that the U.S. Supreme Court's 2008 decision in District of Columbia v. Heller, 128 S.Ct. 2783, should allow the right to bear arms to be treated as one of due process under the Fourteenth Amendment -- and thus binding on state and local governments.
"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," he wrote in April.
However, where the D.C. statute at issue in Heller forbids guns in the home, O'Scannlain recognized the need to regulate firearms in "sensitive places" like a fairground with 4,000 people milling around. Judge Ronald Gould and Senior Judge Arthur Alarcon, who were both picked by Democrats, voted with O'Scannlain, a Reagan appointee.
"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," Gould wrote in a concurrence.
Attorneys involved in the case reacted cautiously to Wednesday's order. San Jose, Calif., solo Donald Kilmer Jr., who represents the plaintiff gun show promoters, struck an optimistic tone.
"Perhaps the liberal members of the court will want to interpret the Second Amendment liberally," he said.
Alameda County Counsel Richard Winnie referred questions to outside counsel T. Peter Pierce, of Richards, Watson & Gershon in Los Angeles.
"It's the county's position that the panel did not need to reach the issue of whether the Second Amendment is incorporated to apply to state and local governments," Pierce said. "It's the county's hope that that's what attracted the court's attention."
Added Pierce: "It's our fervent hope the en banc call was not to review the constitutional validity of the ordinance."
En banc arguments are slated for the week of Sept. 21 in San Francisco. The case is Nordyke v. King , 08 C.D.O.S. 4634.
I would like to understand this too.
They know that the gun control movement is going to be screwed when SCOTUS incorporates the 2nd. They are trying to keep it out of SCOTUS but it’s far too little far too late.
Sufficient number of members on the 9th Circuit are probably uncomfortable with having gone against the grain of the other circuits. The other circuits find the incorporation argument to be out of bounds, foreclosed by SCOTUS precedent, namely Cruickshank and Presser.
I think Nordyke should lose, on the grounds that the 2nd amendment does not protect gun shows. Presser's argument was similar, in that he said the 2nd amendment rendered parade permit laws unconstitutional, since he was going to parade with arms. The 2nd amendment is not a parade permit clause, it is a RKBA clause.
I also think the 2nd amendment should not be incorporated. The RKBA does not depend on the 2nd amendment, and does not come from the 2nd amendment. Even the Presser Court said that ...
... the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms ...
Petition the court? Activist judges don’t need no steenking petition to hear a case, again. (/sarc off)
The Second Amendment does not confer a right. It recognizes a fundamental right that precedes government...that is the right to self defense of persons and property against those seeking to do harm; criminal types, foreign nations, and domestic government. The Second Amendment is the Constitution’s reset switch.
It’s time to take back the country.
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.
I think the gun control movement, especially as operated by the federal government, is all too healthy. SCOTUS and the feds have been engaged in unconstitutional law making and law enforcement for decades, and are using dishonesty in law to maintain a fiction.
I find the Heller case to be an abomination, the likes of the Dred Scott decision. I can point to numerous District and Circuit cases that are similarly abominable in cutting off legitimate defenses, by LYING about what binding precedents say.
Once Incorporated the anti-gun RATS are going to be faced with the fact that ‘keep’ means in the home and ‘bear’ means carry.
That means they will have to allow either open, or concealed, carry with few restrictions.
Rat heads will explode!
Here is a good discussion on a gun forum with some embedded links with legal analysis.
You have the odds on your side should you vote opposite of Sonia "Always Wrong" Sotomayor.
It appears that any sitting circuit judge has standing to request an en banc review of its own circuit's decisions. This might be interesting.
I'm curious about your thinking.
Enumerating a fundamental right does not make it any less fundamental. And "incorporating" that fundamental right does not make it any less fundamental.
The fact of the matter is that some states are infringing the right to keep and bear arms. Though prior Supreme Courts have ruled that one may not bear arms in a parade, such a ruling cannot mean that one is prohibited from bearing arms at least somewhere.
It's rather laughable that the Nordyke decision claims that a gun show is a "sensitive place" because it might attract thousands of people who desire to purchase firearms and accessories. It's been a rare fairgrounds gun show that I have attended where the attendees did not constitute at least half of the people present at the fairgrounds if not virtually all of them.
If one believes that the Fourteenth Amendment has any meaning at all, then it ought to include a prohibition against disarming former slaves whether that disarmament extends to the keeping of arms in the home or the bearing of arms in public.
It took millions of soldiers bearing arms to accomplish the freeing of the slaves and so it should be no surprise if the keeping and bearing of arms by those former slaves is essential to maintaining that freedom.
It is simply a fact of life that the degree of federalism on which our republic was founded was dramatically altered by both political action and force of arms to end involuntary servitude and action by any state which would perpetuate second-class citizenship through disarmament.
-- I'm curious about your thinking. --
It has two components. One being that it shifts the pressure point on the gun-rights lobby. So far, the gun-rights lobby has put all its eggs in the incorporation basket, which implies a paradigm that the RKBA flows out of the 2nd amendment. I reject that paradigm (and I think most of the gun lobby does, even though it doesn't argue that way), and prefer that gun-rights proponents pay more attention to the dicta in Presser that asserts the states cannot prohibit KBA, even in the absence of the 2nd amendment.
Related to this, or maybe just another way of saying the same thing, is my belief that the RKBA in fact does not depend on the federal government for existence. That the citizens of every state have a RKBA that may not be infringed, and this is so even absent a positive statement in a state or federal constitution.
As a technical matter, I think "incorporation" is wrong, in toto. Not to belabor the point, but some of the rights in the 1st eight amendments pertain to the people against all governments (but in a federal constitution, expressly only against the feds), yet others are only against the feds (grand jury). The other component is that I think a rejection of incorporation will result in more of the public finding the courts to be illegitimate. I think finding the courts to be intellectually corrupt on the 2nd amendment is the ONLY rational conclusion, once one understands what the federal courts have done with Presser and Miller.
-- The fact of the matter is that some states are infringing the right to keep and bear arms. Though prior Supreme Courts have ruled that one may not bear arms in a parade, such a ruling cannot mean that one is prohibited from bearing arms at least somewhere. --
I agree with that, and I think the federal courts are corrupt in their application of Presser and Miller. People have been imprisoned and killed over this, at least as against the federal laws (Weaver, Waco), and probably as against state and local laws.
I also think the state courts are corrupt as to the RKBA. The Illinois decision, Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266 (1984), was a close decision, and is a very interesting read. Obviously, I think the dissent got it right. But eventually, at some level, the people have to engage some "self help," and that ought to be directed at the correct miscreants.
So, if the Congress/Exec/Courts ignores the US Constitution, we run to the UN? At some point, the people are supposed to act for their own benefit, and the more local/limited that action, the better. If the Illinois government is corrupt as to denying freedom to its citizens, the first solution is to throw out the local miscreants, not appeal to the federal constitution. If the miscreants ignore their state constitution, what makes them amenable to any other?
Me @ 7.3.2009 6:11pm
-- It took millions of soldiers bearing arms to accomplish the freeing of the slaves and so it should be no surprise if the keeping and bearing of arms by those former slaves is essential to maintaining that freedom. --
Keeping and bearing arms is, at bottom, a show of credible ability and willingness to assert violence of force. If the people don't prevail in that credible show, they WILL be disarmed.
I'm still confused.
"Incorporation" is the result of the non-enumeration of the scope of the Fourteenth Amendment. The situation has demonstrated that neither enumeration of rights nor non-enumeration of rights is a perfect solution.
I agree that the lower courts and even the Supreme Court have used tortured logic to get the decisions they wanted instead of the decisions that the language would suggest is due.
But I fail to see how the right to keep and bear arms is negatively impacted by the various attempts to ensure its recognition.
The right to keep and bear arms pre-existed the Constitution and the Bill of Rights. That has implications for what must not be infringed by any government.
The Bill of Rights enumerates the right to keep and bear arms as a right which, at the very least, shall not be infringed by the U.S. government.
The Fourteenth Amendment recognized the predicament of former slaves being "re-enslaved" by action of the states; which would logically include a prohibition against disarming such former slaves.
Except for the tortured way in which various courts have attempted to subvert the meaning of all this, each of the factors I have listed should argue for greater protection of the right to keep and bear arms rather than less.
Some states today do not outlaw manufacture of machine guns. "Incorporation" does not increase the power of any state to outlaw machine guns if the state did not formerly have such power. On the surface it would appear that a state protection for the right to keep and bear arms should become identical to the federal protection, but that is a logical fallacy that rules out the possibility that the federal protection is not currently being properly recognized. The Heller decision is a prime example of how the federal protection has been, up until that decision, an infringement.
I have no fear that Texas, for example, will suddenly become anti-gun because "incorporation" suggests that the state of Texas must protect the right at least as extensively as the federal government.
I think this is on account of your viewing the outcome as desirable when imposed on Chicago. That, in combination with viewing the rights/balance of powers between the people and the government as existing separate from constitutions, makes the the means innocuous, even if technically flawed.
That is, if RKBA is inherent, and the people expressly reserve it in state constitutions, which the states in turn reserve against the feds, what does it matter if the feds affirm it, or if the states do? Same result, any way one slices it. My preference is that the people get the remedy themselves, without resort to the feds, when the state abrogates its contract with the people.
-- I fail to see how the right to keep and bear arms is negatively impacted by the various attempts to ensure its recognition. --
I didn't and don't argue that RKBA is negatively impacted by favorable decisions. If SCOTUS says everybody has the right to machine guns, tanks, bombs, RPGs, hand grenades, bazookas, and so forth, that ruling would tend to level the field between the government's army and the people's army. But if SCOTUS rules that the people may keep handguns (but only if permitted by a personal license), and these limitations may constitutionally be applied by the feds, then the feds will have shifted the balance in the government's favor - as it already has, see 1934 NFA and 1968 GCA.
That aside, I think incorporation as a remedy shifts power to the feds and amounts to a concession that the RKBA comes from the 2nd amendment. So, when the 2nd amendment is repealed, bye bye RKBA. Think it can't happen?
-- Some states today do not outlaw manufacture of machine guns. --
I don't know of any state that bans the manufacture of any armament. What's restricted (and this by the feds) is who may keep and bear. Regulation of manufacture of machine guns is also a federal matter. A state cannot even operate its own machine gun armory without federal permission. See http://www.lcav.org/content/machine_guns.pdf
-- The Heller decision is a prime example of how the federal protection has been, up until that decision, an infringement. --
You may recall my opinion of the Heller decision. It positively reinforces unconstitutional infringement by the feds, and does so by deliberate misread and misapplication of precedent. I hold the Heller decision with the same sort of disdain that I hold for the Dred Scott decision. The LAST group of people that I want to have in charge of defining the boundary of RKBA is the federal court system marching in lockstep with Congress.
I meant to comment on that first time around, then lost sight of it.
My point of view is that the language in the Miller and Presser precedents don't suggest the opposite reasoning, they demand and compel it. That is to say, it is not possible to read the later decisions as honest interpretations of precedent.