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
Docket Text:
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,
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Nordyke v. King en banc
One of the good-guy attorneys says the argument went well for them. Of course, there's no predicting a ruling, least of all by a group of 11 people, but this is a good note.
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Nordyke ready to go
Oral argument en banc, in Nordyke v. King is set for 10:00 a.m. on Thursday, September 24, 2009, in Courtroom One at the James R. Browning Courthouse, located at 95 Seventh Street in San Francisco.
UPDATE: I think it's 9th Circuit custom to reveal names of a panel, but only very close to argument -- 1-2-3 days, that manner of thing. Here it could make a big difference. In most circuits, en banc hearing means every active (non-senior status) judge in the circuit. Due to the size of the 9th, its form of en banc consists of the Chief Judge (who is quite pro right to arms) and ten out of 20+ judges, chosen at random. The Circuit also is sharply divided, with staunch defenders of and detractors of the right to arms.
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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.
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Is Nordyke's 2A/14A section holding or dictum?
Over at the Volokh Conspiracy, Prof. Volokh argues that Nordyke's finding that the 14th Amendment incorporates the 2nd Amendment is part of its holding, and not dictum.
BTW, postings have been slack because I'm still recovering from the operation. Had a complication, infection, that put me on my back for days, and now another -- a tube into me that came partially loose -- and this does tend to reduce blogging time!
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Additional thoughts on Nordyke
This has got to hurt. Only three days ago Chicago filed its brief in the 7th Circuit. Reading over it--
"The cited footnotes were dicta and when the issue was actually presented in the Ninth Circuit, it ruled that the Second Amendment does not limit the States."
Lots of followup at the Volokh Conspiracy, especially this post, where Prof. Volokh discusses en banc review. You need not be the technical loser to ask for such (unlike a petition for cert.), so the County could do so. But to get it takes a majority of active judges, in this case 14. Two Demo appointment signed the panel opinion, so it would take all remaining 14 Demo appointees to get a majority, or at least one GOP appointee agreeing for every Demo who refuses. Not impossible, but a long shot.
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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.
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Oral argument in Nordyke v. King
Audio here, in Windows Media Format. Great line by one of the judges, when the County advocate argued that while you can't physically have guns at a gun show, you still could offer to sell them, then consummate the sale off the county fairgrounds:
"I just have trouble with the concept that you can have a gun show so long as you don't show guns."
Hard to judge the three-judge panel's inclinations from the argument (although their handling of the appeal suggests they are at least open to 14th Amendment incorporation). Not a lot of questions. They ask the appellant's counsel, Don Kilmer, whether they are bound by the previous 9th Circuit ruling in Fresno Rifle, refusing to incorporate. On the other hand, a judge does tell the county advocate that he should discuss incorporation when he tries to sidestep it. And then the judge suggests that, while Heller does not decide incorporation, it argues at great length that the right to arms is fundamental, is deeply rooted in American history, etc.. County advocate dodges with argument that the Heller right to possess in the home may be fundamental, but here we deal with possession on government land. Judge comes back with, what if this gun show were in D.C., so incorporation isn't at issue, would the result be different? County advocate gets tripped up. (No time meter showing, but this is about 90% thru the argument). County advocate argues Heller sez the reason right to arms was codified was fear of federal tyranny, hence it should not apply to States.
Side questions as to whether, if they incorporate, they should rule on the ordinance in question, or send it back to the trial court to determine the ultimate question.
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Nordyke v. King oral argument
Nordyke v. King, presenting the 14th Amendment incorporation issue, is set for argument Jan. 15 at 1 PM. Here's its Wiki page, with links to the briefs. (An appeal has its own Wiki page? I feel so 20th Century at times like this).
The case had already been briefed, with the incorporation issue raised below but not briefed, when DC v. Heller came down. The panel on its own motion directed briefing of that issue. I can see three possible outcomes.
1) 2A is incorporated and binds the States: the regulation at issue is unreasonable and struck down. VERY cert-worthy, and a good shot at the Supreme Court (unless the county decides not to petition).
2) 2A is not incorporated. Cert-worthy, and a petition will be filed.
3) 2A is incorporated, but the regulation upheld as reasonable. The county can't go to the Supreme Court, because they won, even if they don't like how the court reasoned. Plaintiffs can go to the Supreme Court, but odds of getting review are much lower than 1 and 2.