Nordyke taken for en banc review
In Nordyke v. King, a 9th Circuit three judge panel ruled that the 2A was incorporated and applied to the States (and also that the regulation in question was reasonable). Neither party applied for en banc review, but at least one judge did (as the rules allow). Today the 9th Circuit issued an order stating that it would review the decision en banc (meaning that a majority of active duty judges had so voted), with argument to be set for week of Sept. 21 (quite rapidly for this sort of thing).
En banc review is traditionally review by all the judges of a circuit, not just a 3 judge panel of them. But the 9th is so large in terms of judges (27 active duty and 21 on senior status) that under its rules en banc is by a panel of the chief judge and 10 active duty judges picked at random.
The 9th has had at least two major anti 2A cases (Silveria and Hickman) and one major pro 2A case (the Nordyke panel). The requirement that the en banc panel be composed of active judges takes several of the judges on those cases out of the running. I could those remaining in as split 2-2. (Kozinski, as chief judge, is always in, thank goodness!):
Reinhardt -- anti, wrote Silvera.
Fisher -- anti, joined in Silvera
O'Scanlainn -- pro, wrote Nordyke.
Gould -- pro, joined in Nordyke.
I can't see any of the comments on the BATFEXesses post. are they in moderation?
Posted by: r at July 30, 2009 07:21 AM
I see this as a delaying tactic by anti-gun judges. My guess, they will sit on this claiming to wait for guidance from the Supreme Court.
Posted by: Jim at July 30, 2009 03:20 PM
If I understand the post here, counselor, it look like O'Scanlainn and Gould are out of consideration along with Reinhardt and Fisher.
Is that right?
Kozinski is a good guy, but what of the rest? A pack of Pregersons, Pugs, and Halls?
Doesn't look good for incorporation, and I'm not sure why some leaping, screaming, flaming liberal judge called for review of a 3-0, instead of just letting the circuit split go to the Supremes for determination, other than to head off a cert grant in the 7th case.
Posted by: CDR D at July 30, 2009 04:37 PM
It's probably Don Hammirck.
Thanks for the interesting post Dave. This case IS moving along quite fast.
Posted by: VXbinaca at July 30, 2009 06:23 PM
It's all a plot to get us to buy more heart meds....
Posted by: jdberger at July 30, 2009 11:46 PM
There is a reason they are doing this and it isn't the law or the interpretation of the law. It's politics. So expect an acceptable, to the administration, political decision.
Posted by: straightarrow at July 31, 2009 12:06 AM
You must not know about the courts fight with FDR during the New Deal.
Posted by: VXbinaca at July 31, 2009 10:48 AM
The only reason to rush it is to get on record before SCOTUS had a chance to vote on cert for the 2A cases. Expect 9th to overturn incorporation.
Posted by: federal farmer at July 31, 2009 11:01 AM
>>The only reason to rush it is to get on record before SCOTUS had a chance to vote on cert for the 2A cases. Expect 9th to overturn incorporation.
While I would expect a majority of the 9th CCA judges to scrub the incorporation language from *Nordyke*, I have to wonder if SCOTUS wouldn't decide on cert before the 9th's 9/21 hearing or not.
With over two thirds of the State AG's supporting cert to overrule the 7th and incorporate, I do have to wonder if the justices won't consider that their own legitimacy in the eyes of the public might be at stake.
Posted by: CDR D at July 31, 2009 03:55 PM
Yes vx, I know about it. But we were closer to our origins then and not nearly as meek a populace as we are today.
Federal Farmer and I are in agreement here. However, not much point in arguing about it. We'll know soon enough, and believe me, I hope I am proven wrong.
Posted by: straightarrow at July 31, 2009 04:04 PM
if i recall, the 9th circurit used bad information with the "lockyer case" and cite'ed micheal bellesiles and then at a later time had to retract mr. bellesiles so-called research. it is possible they may get some egg on their face, if they go the direction they appear to be head'ed.
Posted by: hey u'all at August 1, 2009 06:40 PM
"It [the fourteenth amendment] simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society."
"By the time of the founding, the right to have arms had become fundamental for English subjects."
I simply fail to see why this is even questioned.
Posted by: Graystar at August 3, 2009 08:17 AM