Nordyke v. King 9th Cir. incorporates 2nd
A tip from reader Alice Beard that 9th held 2d was incorporated in a ruling not yet posted. Will update.
UPDATE: here's the ruling.
On a quick read:
Court incorporates the 2A on a selective incorporation, due process, theory, holding that the right is a fundamental one, deeply rooted in Anglo-American history, and traditionally seen as a natural right rather than a politically-created one. Court declines privileges or immunities incorporation, as ruled out by Supreme Court case law.
Court holds, tho, that the regulation at issue (banning firearm possession, but only on county owned property) was a reasonable regulation, etc..
My read on strategic posture:
1) This means plaintiffs, the good guys, are the ones who can petition the Supreme Court for cert.. They may have won on incorporation, but they "lost" on the appeal overall, and thus are the ones who can appeal further. This is good for them. Defendants are not in control, cannot move for rehearing en banc, or decline to file for cert..
2) It may however make the case less cert-worthy, a little less appealing to the Supreme Court. Not quite so clean an issue, need to reach reasonable regulation which the Court may be unready to do.
UPDATE: Yep, it's binding in the 9th Circuit. Can be cited in other Circuits, which they would take into account, but doesn't bind them. Note that "binding" is often more theory than fact, since there are ways to get around a binding decision (distinguish it -- facts in this case are somewhat different from facts in that case -- or sometimes outright ignore it, or call for en banc review by all the judges in the circuit and try to get them to overrule the prior decision). And a well-reasoned opinion from one circuit can carry weight in others; this one will surely be cited in the Chicago case. And a circuit split, where some circuits go one way and others go another, is a good basis for asking the Supreme Court to take it on and settle the issue.
ANOTHER UPDATE: This shows you how, esp. in the 2A arena, guessing a judge as liberal or conservative, or Demo or Repub appointee, does little good. Two of the judges are Demo appointees. The concurrence, which is even stronger than the majority, and argues that an armed citizen can be an important resource against terrorism, is written by a Clinton appointee.
This sounds like a very positive development!
Dave, you do an outstanding job!
Posted by: Turk Turon at April 20, 2009 11:44 AM
Reasonable is not the review standard for a fundamental right-- the standard is strict scrutiny.
Posted by: David McCleary at April 20, 2009 11:49 AM
Surprisingly good news out of the 9th Circus...
Posted by: JT at April 20, 2009 11:52 AM
Ah, strict scrutiny used to be the standard of review for fundamental rights. But the American people voted for "change" doncha know?
Posted by: Letalis Maximus, Esq. at April 20, 2009 11:53 AM
P.S. Does this mean that the Second Amendment is now incorporated in the Ninth District? And that the "losers" can't appeal because they "won" the appeal itself? Day-um! Sounds like a win-win.
Posted by: Turk Turon at April 20, 2009 11:54 AM
Query from us non-lawyers in the peanut gallery:
My understanding is that this incorporation is limited to the 9th circuit, and to get wider incorporation, we'll either have to get rulings circuit by circuit, or from SCOTUS?
Posted by: geekWithA.45 at April 20, 2009 12:13 PM
But could not a Ninth Circuit ruling be cited in a case in another Circuit court, or another court. Perhaps in a case like McDonald v. Chicago?
Posted by: Left Coast Conservative at April 20, 2009 12:17 PM
It will be limited to the Ninth, where the case can be cited as grounds that the Second is an individual right.
It won't apply ( except as advisory ) in other districts unless it gets into the SCOTUS.
Posted by: Kristopher at April 20, 2009 12:18 PM
LCC: it can be cited, but is only binding on judges in the Ninth.
Posted by: Kristopher at April 20, 2009 12:19 PM
So they find it a 'fundamental right'. Now do 'reasonable regulations' pass the strict scrutiny test?
Posted by: Stan at April 20, 2009 12:33 PM
So it doesn't apply to other "circuits" yet somehow we're supposed to have equal protection?
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
That is an "AND" not an "OR" meaning both federal AND state laws apply, and denying the protection of the federal constitution, if the state says otherwise, is a violation. Otherwise we'd likely still have slavery.
Also, isn't the 9th the most overturned?
Posted by: Tom at April 20, 2009 12:58 PM
Will this decision help the case against Chicago and various suburbs now in the 7th Circuit?
Posted by: Jeff Showell at April 20, 2009 01:18 PM
"But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self defense in the home".
So? The scope of the Heller decsion was intentionally limited to DC "home" gun regulations. Nordyke has to go to the US Supreme Court for cert to address the next step of "outside of the home" fundamental individual rights.
Posted by: arpjoe at April 20, 2009 01:25 PM
Re: standard of review
Page 30ff sounds like they're saying "D.C.'s law was so bad that it would have failed under any standard of review, therefore we have no guidance from SCOTUS as to what standard we should apply to the County's law". And then they say this in footnote 19 on page 30: "Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. But where the Due Process Clause incorporates one of the rights enumerated in the Bill of Rights, the standard of review becomes that appropriate to the specific right. For example, First Amendment rights, whether against the states or the federal government, trigger the same standards of review. We find no reason to treat the Second Amendment differently."
I'm confused. It sounds like they're saying that since 1A always triggers the same standard, 2A should also always trigger the same standard, but then in the pages following it sounds like they're deciding that 2A can have different standards applied to various challenges? Or are they just arguing that 2A should always be the same, and it should be "reasonable" instead of "strict scrutiny"?
Posted by: JT at April 20, 2009 01:36 PM
I think they just said that it gets similar treatment as 1st Amendment level standards. But 'reasonable' somehow fits in there.
If I may rephrase it:
"First Amendment rights trigger the strict scrutiny standards of review. We find no reason to treat the Second Amendment differently."
That still leaves me confused as JT is.
Posted by: Stan at April 20, 2009 02:04 PM
Note that the 9th specifically states that their previous decision in _Hickman_ is overruled... Which calls into question any case that relied on _Hickman_...
Posted by: James at April 20, 2009 02:09 PM
On second thought, I think I read that footnote all wrong. I think JT is right that they are saying the 2nd amendment standard of review should always be "reasonableness."
Posted by: Stan at April 20, 2009 02:17 PM
Errmmm ... the county can forbid free speech on county property.
You do not have the ability to haul a soapbox into the county vehicle impound yard and give a speech there.
You do have the right to put the soapbox in your own front yard.
I suspect this is where the ninth's decision springs from.
Posted by: Kristopher at April 20, 2009 02:28 PM
Lemme see if I can't clear this up:
"Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine."
I.e., if the right is "fundamental" it normally gets strict scrutiny.
"But where the Due Process Clause incorporates one of the rights enumerated in the Bill of Rights, the standard of review becomes that appropriate to the specific right."
I.e., where we're applying an enumerated right of the BOR to a state via incorporation (as distinguished from applying it directly to federal gubmint action), the standard of review is whatever is the correct standard of review for the given "right" at issue. The standard of review comes along with the particular right that is alleged to have been infringed and the particular nature of the infringement.
"For example, First Amendment rights, whether against the states or the federal government, trigger the same standards of review."
I.e., you always apply the same standard of review to First Amendment rights, whether you're applying it against federal government action, or against state action via incorporation. Put another way, the First Amendment has its own standards of review, which is what you use whether you're appyling the First Amendment directly to the federal gubmint or to a state gubmint action.
"We find no reason to treat the Second Amendment differently."
I.e., we think the Second Amendment also should have its own standards of review that applies to states the same way it applies to the feds, just like the First Amendment. We'll treat the Second just like SCOTUS has told us to treat the First.
Unfortunately, says the court, we don't know what that standard of review is, because SCOTUS didn't tell us in Heller, although SCOTUS did tell us that rational basis review is no good.
The court then says that because of the nature of infringement in Heller, D.C.'s outright ban would not have withstood any level of scrutiny. But then it distinguished the infringement here from the one in Heller. The ordinance here "does
not directly impede the efficacy of self-defense or limit selfdefense in the home. Rather, it regulates gun possession in public places that are County property." Because the infringement is less, the standard of review might not be a stringent. "not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right."
"If we apply these principles here, we conclude that although the Second Amendment, applied hrough the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property."
So although yes, 2A can be incorporated against the state and protect your right to have guns in your home for self-defense, that doesn't mean you also have the right to take a gun to a county-owned fairground.
"the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their
It's all about differentiating this case from the prior precedent-setting one.
Posted by: Bill at April 20, 2009 02:33 PM
This will not be appealed en banc or SCOTUS for risk of being overturned or diluted. The 2nd Amendment incorporation, particularly as related to overturning Hickman v Block, is vastly too precious to squander. We have all we need from this alone to attack most of CA’s egregious and utterly indefensible laws. Carry rights will be addressed in subsequent cases. In particular, CCW will be opened wide open with Hickman v Block being taken down.
Let freedom ring!!!
Posted by: Bill M. C. at April 20, 2009 02:38 PM
So let me get this straight (and I have not waded through the Hickman opinion - I can only read so much in the way of court rulings in one day before my eyes gloss over): Hickman basically upheld the "may" portion of CA's "may-issue" CCW law as being a-ok because they viewed the RKBA as a collective right at the time. They specifically said that Heller abrogated Hickman. Therefore someone in CA getting denied a CCW would have standing to challenge the may-issue CCW law (specifically the part about having to show good cause)? Hot damn! Maybe I won't feel as conflicted about moving back to CA (from TX, where I'd rather stay) like the wife wants (back to where there's family).
Posted by: JT at April 20, 2009 03:04 PM
The battle was won, but the war was lost. Seems like a fair trade.
Didn't the SCOTUS Heller decision promote Second Amendment cases to strict scrutiny?
Lay people would like to know ....
Thanks for your site David, it was very much needed.
Posted by: bill-tb at April 20, 2009 03:19 PM
What they're saying here:
"Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. But where the Due Process Clause incorporates one of the rights enumerated in the Bill of Rights, the standard of review becomes that appropriate to the specific right. For example, First Amendment rights, whether against the states or the federal government, trigger the same standards of review. We find no reason to treat the Second Amendment differently."
is that because of the method of incorporation (selective incorporation through the Due Process clause of the 14th Amend) the courts decide what standard of review is appropriate for the specific right, and that standard applies the the same at the state and federal level. Then they give the 1st Amend. example. Next, in the text, they note that Heller didn't set a standard of review. In other words, "Laws encroaching fundamental rights usually merit strict scrutiny, but the Supremes declined to require strict scrutiny in the Heller case and we're bound to use the same standard of review, but we aren't going to go off and utilize strict scrutiny in this case and we're not required to do so under due process selective incorporation, all we have to do is look to Heller for guidance."
My explanation is probably as bad as the opinion.
Posted by: mdmnm at April 20, 2009 03:41 PM
and Bill @2:33 did a better job anyway.
Posted by: mdmnm at April 20, 2009 03:44 PM
(JT-- don't move back to CA. Point out to your wife that her after-tax income will be 15% lower in CA.)
Anyway, though I welcome this decision, I stand by my earlier prediction that even formal incorporation will not do RKBA much good in the lower courts. Even this decision points the way: RKBA is to be quietly euthanized by balancing tests. Effigies representing the ghost of RKBA will be paraded in courtrooms from time to time but they will always remain silent, of course.
In every case, whatever gun restriction is being challenged will be upheld as "reasonable."
Soon enough there will be no lawful (that is "reasonably restricted") way to have a gun unless you inherit it from someone who bought it before 1968. That's assuming you can even get a personal-firearms-possession-license-- the license fee will be 10% of your Form 1040 Line 38 Adjusted Gross Income, and your license may be refused or revoked anytime without notice on the "reasonable" whim of any sheriff, police chief, or deputy State attorney. You'll have to store your gun at all times, other than your reasonably-allowed (single) annual trip to the (only) State-licensed shooting range, disassembled in a government approved floor safe (which you must remove if you ever sell or vacate your home), subject to warrantless surprise inspections four times yearly (inspection fee $350 per inspection). Also you will have to pay a $200 fee to re-register each gun annually (with confiscation and possible prosecution for unlicensed possession the punishment for late renewal).
Your credit card, supermarket affinity card, and bank records will be provided to the Brady Campaign and if you ever purchase beer, liquor, cigarettes, red meat, Kraft cheese, or Hostess Twinkies (or attend a boxing match) the Brady bunch will report you to the State Attorney's office which will revoke your personal firearms possession license, then immediately indict you for unlawful possession.
Reasonable restrictions on ammunition will limit you to buying or reloading one box of 50 or fewer cartridges in any 13-month period. Of course you'll have to order cartridges or components 3 months in advance since both bullets and cases must be individually engraved with your Social Security Number plus a unique serial number and the propellant must contain 1% taggants marked with your personal firearms possession license number. Anyway, you won't need much ammo because you will be reasonably restricted to firing it at the state's (only) licensed shooting range, where range staff must count and log by serial number all of the ammo in your bag on the way in, and again on the way out, so the State has a reasonable record of which cartridges you fired lawfully. During warrantless surprise inspections of your licensed gun safe you will have to produce all unfired cartridges which State records indicate you ought to possess. If any are missing you will be presumed (rebuttably, of course) to have fired them unlawfully. You will be tried on one count for each missing component (case, bullet, propellant charge, primer) of a cartridge, for each day it was missing (that is, since it was last logged by personnel at the (only) State-licensed shooting range, unless you confess to unlawfully firing it or leaving it where a child could take it on a specific date prior to the date the inspectors discovered you could not produce it) but the maximum penalty for each count will be just 360 days, so you will not be entitled to a jury trial-- none of the "missing ammo" charges against you will be "felonies," even though the penalty upon conviction on all counts will be decades in prison.
There is no end to the parade of "reasonable" restrictions antigun fanatics will dream up and write into law. As soon as an appeals court lets any restriction pass as "reasonable" the underlying Constitutional right has been thrown down the cloaca maxima.
Posted by: Boadicea at April 20, 2009 04:10 PM
If a person has no right to bear arms on government property, then the right to bear arms is a hollow shrill. Every road, street, lane, highway is government property. The right to bear arms, if such restrictions are held to be reasonable and therefore permissible, is limited to your own property.
But having arms on your own property is keeping arms, not bearing them. I would hope Scalia and the other four in the Heller majority would strike this down.
Plaintiffs should appeal. There is nothing to lose.
Posted by: Jim at April 20, 2009 04:25 PM
Always has been interesting that the North forced through the 14th making equal protection the law in every state BUT the federal constitution has no equivalent that forces equal protection across the entire Union.
Ticohfaidh ar la!
Posted by: fwb at April 20, 2009 04:30 PM
I have to wonder how this might affect a show held on private property such as a large hotel ballroom.
Also, IIRC the Nordykes won a similar case in the 9th CCA on 1A grounds against Santa Clara County (early '90s?).
I'm glad for the incorporation language on the 2A, but don't know what to make of the rest of it.
Posted by: CDR D at April 20, 2009 05:12 PM
The plaintiffs lost. The Nordykes need to win to restore their livelihood. Therefore they will appeal. The fact that "we" as a group received benefit from the decision is of no consequence to them.
As the appeal goes up the food chain, we walk an increasingly narrower path. The incorporation on the grounds of due process could be reversed. Hickman could be ruled to stand. The County could lose on other grounds. The test of "reasonableness" could stand, and we could forever lose the forbearance of strict scrutiny on a fundamental right.
I'm kinda hoping the County "defends" its win with a cash settlement.
Posted by: Jim D. at April 20, 2009 07:02 PM
Errrm, what does this mean in plain English? Can someone translate this for those of us who don't know legalese?
Posted by: Andrew at April 20, 2009 07:21 PM
As Jim @ april 20 says "Every road, street, lane, highway is government property", and as this is true, Who actualy ownes this type of property?? Is'nt it "THE PEOPLE" as defined in the Constitution? As the Governments gets its power (and Money) from the People? I would think that it makes Govenment Property the Peoples Property!!
Posted by: david at April 21, 2009 01:10 AM
It means that the Colonist at Lexington Bridge were not allowed to posses firearms.
200+ years later, General Gage is vindicated.
Posted by: mike123 at April 21, 2009 06:49 AM
Well don't forget that there are different types of government property. There is "public" government-owned property and then there is "private" (so to speak) government-owned property. A public road or sidewalk, although perhaps public property owned by the government certainly is not the same as a military base or federal office building. So a prohibition on walking down a public sidewalk with a concealed handgun would certainly be scrutinized differently than a ban on carrying a concealed handgun into, say the U.S. EPA's headquarters building in Washington, D.C. (setting aside the problem of carrying a gun anywhere in D.C., of course).
There is a difference between the government preventing you from exercising a constitutional right on open, public property versus "private" property from which the government may rightly exclude you. E.g., standing on a street corner holding up a sign is not the same as trying to hold that sign up on the runway at Edwards Air Force Base.
The end result of the Nordyke opinion might be predictable, but at least the court did find 2A incorporated against the states, and recognized the central holding of Heller.
Posted by: Bill at April 21, 2009 08:31 AM
Yes Bill, you are correct, but a public park - which is what is at issue - much more resembles a street corner then the town administrators office.
After having read the decision quickly last night, I see that the Court drew a connection between schools and government buildings as defined in Heller as "sensitive places" and this fairground. The common element is that, more or less, its a place where people gather.
Frankly, I think that analogy is off. A school and a county office building are limited access places, not places generally open to the general public. There is a good distinction here. The Court seemed to be as deferential to the County as possible, lacking guidance not to be from SCOTUS.
Posted by: Jim at April 21, 2009 09:24 AM
My thoughts are the same as Jim's - I didn't like the "where lots of people gather" reasoning at all. But I do recognize (as Jim does) a difference between access-controlled spaces (like Edwards AFB) and open spaces (like a public park with no fences). I don't know enough about the county fairgrounds at issue in the case, but the fairgrounds I've been familiar with have been fenced-in, access-controlled areas.
Posted by: JT at April 21, 2009 09:39 AM
[...] Ninth Circuit Court chickens out on Second Amendment [...]
Posted by: Ride Fast at April 21, 2009 10:48 AM
Gene Volokh makes a very good point here in pointing out that although the reasoning behind the court's upholding of the gun show ban on county property is less clear than it should be, a distinction should be drawn between a law banning posssession/carry on county property and a law banning sales on county property. Volokh cites a SCOTUS decision upholding a state law restricting abortions performed in hospitals on county property - that is, a government entity can control what kinds of commercial activities are performed on the property "owned" by that entity.
So the 9th Circuit should have directed the county to re-write the ordinance to say that holding a commercial gun show on county grounds isn't allowed, without outright restricting possession in any capacity, which I think is what the ordinance says. I'm no lawyer, but since the 9th left that so vague, couldn't a future ruling by the 9th or another circuit (or a rehearing en banc, or a cert in SCOTUS) clear that up the right way?
Posted by: JT at April 21, 2009 01:48 PM
BOADICEA has it.
Any regulation less broad that the D.C.Heller "You cannot have a working gun in your house" law will be found reasonable by the time it hits the Supreme Court.
That was the only way the majority swung the one J. they needed- by basically saying that anything less restrictive than the law being reviewed could pass. That's what Heller very carefully, and obviously, says.
Posted by: staghounds at April 21, 2009 09:07 PM
Unfortunately, I think Staghounds is right. The line drawn in Heller was that an absolute bar on possessing a functioning handgun in your own home went too far, by any standard of review. Any restriction short of that, Heller did not address. And so the states are free to push that line and argue that Heller expressly said that it did not affect other "reasonable" restrictions and that their particular restriction is "reasonable" does not amount to the type of infringement found unconstitutional in Heller and.
Posted by: Bill at April 22, 2009 12:39 PM
We must be vigilent and quick.
Congress writes unconstitutional laws with a fire hose, and the courts, after years of procedureal wrangling and parsing, rule on VERY NARROW issues, and rarely say, "This is blatently Unconstitutional on it's face."
Nowhere in the 18 enumerated powers is there a mention of stationary (so they can't be involved in interstate commerce) National Parks, for instance, yet we have them, and large beaurocracies issuing rules with the force of law.
Posted by: CB at April 22, 2009 03:45 PM
In ''Nordyke'' (p. 4501) Judge O'Scannlain (after reviewing ''Heller'') said: "These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile." That is, the Nordykes did not file a Second Amendment claim. The Circuit Court's excursion into possible incorporation of the amendment was only an example of what the Court could have held, if the Nordykes had been allowed a Second Amendment claim.
Posted by: Finn at April 28, 2009 01:51 PM
I wonder if this would apply to someone "bluffing" possession of a functional firearm?
What if the specific situation involved nothing more than "stuft" gun cases?Giving those who "saw" the gun cases the impression the content was a firearm.
Posted by: dirtball at April 28, 2009 10:20 PM