Development in Nordyke v. King
Nordyke is the incredibly long-lived challenge to a California ban on gun shows at a county facility. A three-judge Ninth Circuit panel had ruled that the Second Amendment applies to the States via the 14th, but that the ban was limited and constitutional. Then the Circuit voted, as a whole, for en banc review (meaning in most circuits, that the entire group of judges votes on it, but in the oversized 9th Circuit, it means the chief judge and ten others chosen at random, do so).
Today, the en banc panel voted to remand the case to the three judge panel for a ruling in light of McDonald. I've never seen this done before.
Hat tip to reader Gene Hoffman of CalGuns.
UPDATE: the only reading I can see is that the panel ruling, while upholding the law, fired up some anti-RKBA judges who weren't on the panel -- and enough of them to win a vote on rehearing en banc, where they could have a shot at reversing the panel. Now with McDonald, they know they have no chance at changing things, and have given up.
Could you expand on the ramifications of this? What does this action imply given that it's never been done before?
Posted by: Cory Brickner at July 12, 2010 03:28 PM
It looks like the judge who called for an "en banc" review decided to fold his tent.
What could the original three judge panel possibly do other than reaffirm their decision, thereby allowing it to become judicial precedent?
Of course Rusty and his counsel (Kilmer?) could appeal to SCOTUS knowing at least that the incorporation language will stand.
Posted by: CDR D at July 12, 2010 03:37 PM
Maybe the three judge panel will kick back to the district court. Who is to say in light of what has happened so far.
Posted by: harp1034 at July 12, 2010 03:47 PM
@CDR - the three judge panel could decide that the County Fairgrounds don't count as "sensitive places".
Posted by: jdberger at July 12, 2010 03:47 PM
The three judge panel could decide that the county fairground is not a sensitive place I suppose, but since they suggested that it might be such in the original decision, I'd be surprised if they do. It's thin, I know, but since the gun show is not held when the fair is in session, and many other types of trade shows are allowed on the fairground when the fair is not in session it seems to lead back to the other, the 1st Amendment issue...the county supes are on record as saying they didn't want to endorse any idea that guns are "okay", and by their banning the shows they are making a statement to that effect. That could also be grist for a SCOTUS appeal.
IOW, does shutting the show down meet the so-called "sensitive area", and if not, is it a violation of the 1st Amendment.
Posted by: CDR D at July 12, 2010 03:58 PM
Nice and Short, strike the law, I believe that is what they meant. Perhaps it goes to scotus either way.
Posted by: 5thofNov at July 12, 2010 06:13 PM
Does the fact SCOTUS ruled RKBA a "fundamental right" make any difference in Nordyke? How did the SCOTUS ruling differ from the original 9th ruling on RKBA? Perhaps the gun show ban is now impermissible?
Posted by: Brad at July 12, 2010 10:00 PM
The words "fundamental right" SHOULD trigger strict scrutiny. Notice how many time Alito repeats that phrase in the decision? A bunch. Should give the rest of our employees a clue. Repeat should. Not that we'll get actual strict scrutiny without a fight. Plenty of jurisdictions will call what they come up with "strict scrutiny." That won't be what they propose. See Chicago's "New" gun laws for what the gun-grabbers will attempt. Lipstick on the pig, and so on.
To pass strict scrutiny, the law or policy must satisfy a three pronged test - it must be justified by a compelling governmental interest, narrowly tailored to achieve that goal or interest and must be the least restrictive means for achieving that interest.
As to Nordyke specifically, 9th Circuit already ruled in a 3 judge panel that the 2nd Amendment was incorporated and that the law was still OK. It' going back to the same three judges. Will they rethink their decision? Unlikely in my book. They're going to attempt judicial nullification is my take - but I say that without personal knowledge of the judges involved, but based on their track record so far. This situation is not unlike what happened recently in Tarraco v. Port Authority of NY. 2nd Circuit decision was criminal. Wrong on the facts and wrong on the law, and it was out 2 days after McDonald.
Posted by: RKV at July 12, 2010 10:38 PM
At the En Banc hearing (I was there), the county specifically said it was OK for people to carry openly at the fairgrounds. The metal detectors were in place only to prohibit illegal concealed carry. (No, I am not kidding. Check the transcripts.)
Thus the county has already conceded the "sensitive place" doctrine/issue. At En Banc, the chief judge was hankering to strike Silveria. Done by the SC. The 3-judge panel is on our side.
The best outcome would be for a wide ranging strike at obviously unconstitutional California gun laws. It is important to do this *now* because the California Legislature is locked down, unable to pass new bills due the Fiscal Emergency (Jan. 8, 2010). If the Nordyke panel strikes hard enough, there will be no law in effect, and California will revert to Constitutional Carry, like Vermont, Arizona, and Alaska.
Posted by: Frank Perdicaro at July 12, 2010 11:18 PM
Frank, do you really see such a thing happening? I just don't see even the the most supportative judges doing that. If anything, they will stay their action pending an opportunity for the GA to take action.
Posted by: Jim at July 13, 2010 11:44 AM
Will the court defer to the California Legislature and wait for them to take action?
Let us hope not. The Legislature created the law with racist intent back in the 1920s, and has expanded it a few times. But sometimes they see the light. Last July the Assembly apologized for creating the a gun law with specific racist intent. Do we really need to wait another 70 years for the Assembly to move to strike a law that impedes a fundamental right?
The court should not agree until the Assembly creates a budget. The Assembly has not created a budget in the last 3500 days and is unlikely to create one any time soon. (Ten years of spending plans, not budgets.) The Assembly is unconcerned with upholding the law. The Fiscal Emergency is now in its 8th month, and the Constitutional "deadline" for passing a budget went by weeks ago. The Assembly adjourned for the summer, just to show its contempt for the California Constitution, and its hatred of the plain language of the US Constitution.
No judge has any reason to defer to an openly defiant Assembly on this point. The state has no vested interest in defending those that continue to defy the US Constitution, even when those people are elected officials.
Posted by: Frank Perdicaro at July 13, 2010 01:48 PM
If they find for the plaintiffs (which is a toss up), the only thing that would be struck would be the county ordinance. All other CA laws would still stand (for now).
Posted by: forrightsnow at July 14, 2010 02:50 AM