That didn't take long
Notice of Docket Activity
The following transaction was entered on 09/24/2009 at 4:07:21 PM PDT and filed on 09/24/2009:
Case Name: Nordyke, et al v. King, et al
Case Number: 07-15763
Filed order (ALEX KOZINSKI): Submission is vacated pending the Supreme Court’s disposition of Maloney v. Rice, No. 08-1592, McDonald v. City of Chicago, No. 08-1521, and National Rifle Ass’n of Am., Inc. v. City of Chicago, No. 08-1497.
[Essentially, Nordyke will be held onto until the Supreme Ct disposes of the other cases, either granting cert. and ruling, or denying cert.]
UPDATE: by held onto I mean the Circuit will take no action, leaving it in a sort of limbo. It won't send it back to the lower court for action, nor give a final decision, which would mean it could move on to the Supreme Court. Judges do not like to be reversed , and here the exact issue is going before the Supreme Court, why take a position that might get crosswise with their ruling? If the Supreme Court grants review, the Circuit will hold onto it until the Supreme Court rules. If the Supreme Court denies review of the earlier Chicago cases, the 9th Circuit will proceed to rule.
This is nice in a way since it gives two shots at Supreme Court review, and IF the Chicago cases were refused, and the 9th then ruled for incorporation of the right to arms, there would be a second shot at Supreme Court consideration, now with a split among the circuits,
What does "held onto" mean?
Posted by: me at September 24, 2009 08:48 PM
I do not believe Nordyke has a snowball's chance in Hell of being ruled upon favorably by the 9th Circuit en banc.
If it did, there would have never been the call for en banc review. I know, I know. Another jurist on that Circuit is the one who called for the review. Judges don't like to be outvoted either, I think the votes are already lined up, despite not having heard the case. After all, it is the Ninth Circuit.
Posted by: straightarrow at September 25, 2009 01:21 AM
I listened to the hearing from the panel and The comment from one judge was why not wait until the Supreme Court decided was humourous. It was obvious that many of the judges did not want to be on the hook. The questions did indicate they were positive toward incorporation but why bother if Scotus is going to grant cert on the Chicago case.
Posted by: RAH at September 25, 2009 05:57 AM
Well to be fair, SCOTUS is SCOTUS. If they are going to decide the issue in a few months time, then there is no need for the 9th to wade in now. However, absent the 9th lower decision, there is no conflict among circuits. I hope SCOTUS will take both the Chicago and NY cases anyhow, combine them, and incorporate.
Posted by: Jim at September 25, 2009 12:46 PM
I also listened to oral argument. This decision makes sense.
I think argument did not go all that well for Nordyke. Not that Nordyke's attorney didn't present a good argument. But county counsel for the anti-gun side was very effective and seemed much more in sync with the concerns of an intermediate court on this issue.
One thing really struck me about the argument. Who was that judge who asked Nordkye's attorney a series of questions about the "hidden agenda" of the pro-incorporation side? I thought it was a very embarrassing series of questions for a judge to ask in an appellate oral argument. Agendas, hidden or otherwise, are for legislatures to worry about not judges. He clearly was not interested in the legal question. He was concerned about the social result of a pro-incorporation ruling.
Posted by: dave at September 25, 2009 01:08 PM
I think the one asking about the "hidden agenda" was Harry Pregerson.
Huge anti-freedom lib.
I guess Proctor Hug was not selected for the en banc panel. What a name. Suggests much about some of the flaming as......
...clowns in the 9th Circus.
Posted by: CDR D at September 25, 2009 04:51 PM
Although there won't be a circuit split on Second Amendment incorporation when SCOTUS meets next week, I hope the knowledge that another circuit is waiting for some enlightenment from above will inspire the SCOTUS justices to take at least one of the above mentioned cases. I hope the 9th circuit judges had this in mind when they chose to hold this case. This way they get to accomplish two goals at once. They get to nudge the Justices to take one of the above cases, and they don't have to hang their reputations out to dry to do so.
I do have to agree with Dave regarding the conspiracy theory judge. That was truly saddening. At that time, the only image in my head was Fidel and Che sitting behind a table, with a blindfolded man standing before them. Che was screaming "You Lie! What's your true agenda?!!!" Although that might be a sadder reflection upon me!
Posted by: robert12 at September 25, 2009 04:53 PM
This past Thursday I went to the hearing to watch
and listen. I was the 3rd person let in the court
and the last to leave.
The court was hostile to the plain meaning of
the 2nd and 14th, but equally hostile to the
absurd position of the county.
Eventually the court will rule for incorporation,
and then the Nordykes will be able to hold their
events at the fairgrounds. But it will take a
Posted by: Frank EP at September 27, 2009 09:47 PM
There are two cases working their way up in California that are dependent on Nordyke, both brought by CalGuns Foundation (CGF).
The first one filed is a challenge to the CA Handgun Roster, Pena vs. Cid (http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid).
The other is Sykes vs. McGinness that challenges the absurd requirement to show "good cause" in CA to obtain a CCW (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness). Sykes is on hold pending resolution of Nordyke.
Unfortunately, anti-gun opposition seems to be better organized, more diverse, better funded and capable of raising more issues than we can fight off at once. If not ammunition now, then loading components, or storage of ammo, or number of guns, or quantities of ammo, etc. There's a long way to go, and the oppostion continues to innovate new challenges.
Posted by: Jim D. at September 27, 2009 11:06 PM