Posted on 07/20/2010 1:14:39 PM PDT by neverdem
The Ninth Circuit Panel in Nordyke v. King Seems Open to Reconsidering Its Earlier Decision About the Second Amendment and Gun Shows
In 2009, a Ninth Circuit panel held (in Nordyke v. King) that the Second Amendment was incorporated against the states, but concluded that a ban on gun possession on county property was nonetheless constitutional. The Ninth Circuit then agreed to rehear the matter en banc, but then suspended its consideration of the case while it waited for the Supreme Court to resolve the incorporation question in McDonald v. City of Chicago. Following McDonald, the Ninth Circuit sent the case back to the panel; at the time, I predicted that the panel would likely just reaffirm its initial decisions.
That’s not so clear any more, because today the panel expressly called for further briefing:
The parties are ordered to file supplemental briefs addressing:
(1) the impact of McDonald v. City of Chicago, No. 08–1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and...
(Excerpt) Read more at volokh.com ...
Is this a good thing?
Can’t say, but IIRC, the 9th Circus is the most overturned Circuit Court in the U.S.
It’s a very good thing if even the Ninth Circus is realizing it may have to rethink its decisions in light of MacDonald.
It can't hurt. The panel previously found that (1) the right was incorporated and (2) could be subjected to a county premises ban.
They've now asked the parties to explain how they feel McDonald affects this case. McDonald was unequivocal that 2A was an individual right, in fact a "fundamental" right, and that it was incorporated against states. So in looking to McDonald, the panel can't possibly be trying to open the door to reconsidering their first conclusion, that the right was in fact incorporated. The only explanation is that they're open to reconsidering the other part, that a county property ban meets the required level of scrutiny, no doubt especially in light of McDonald's fundamental right finding. That sets the bar pretty high for government who wish to regulate or limit such a right.
The 9th circuit is very afraid that the Supreme Court would overturn this and create a rock solid precedent.
The 9th Circuit once ruled that felons could build and keep their own homebrew machine-guns. Logic: as felons are prohibited from participating in intrastate commerce in firearms, the law prohibiting civilian manufacture of new machine-guns, being based on the “commerce clause”, did not apply to them.
The 9th has been often right on RKBA.
Let’s hope they get this one right then.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.