Ninth Circuit Will Rehear Nordyke v. King En Banc

[nemo2econ]

This is the California case that, from April 20th until today, had incorporated the Second Amendment to apply to the States within the Ninth Circuit's bounds: California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

While many of the readers of the Law and Civil Rights forum on Firing Line Forums won't care for it, this means that, technically, "[there is] no longer a circuit split on the subject." *

This is because the Ninth Circuit said "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Ergo, the lower courts in the Ninth Circuit no longer have an incorporation ruling in effect which they must follow.

I recommend reading this blog post by Prof. Eugene Volokh, a generally pro-Second Amendment law scholar who has published extensively on Second Amendment legal matters, before commenting further on this forum thread.

Oral argument of the case before the entire Ninth Circuit court is scheduled for the week of September 21, 2009.

And I hope I won't offend any of the fine folks on Firing Line by suggesting that we try to keep this post to a serious discussion of the decision and our perception of the implications, while trying to avoid the vitriol that can sometimes surface when court decisions don't go our way.


* quotation from Prof. Volokh, this evening, July 29, 2009.

[Yellowfin]

It's deliberate sabotage of pending cases. There is no other reason for this than simple malice.

[Tom Servo]

So, while one argument for cert is "diminished," the question of revisiting Slaughterhouse is still relevant.

There's a great deal of political pressure to get this issue heard. Thomas, Scalia and Kennedy all voiced a desire to visit the question of incorporation following the Heller decision. I don't think this tanks our chances.

While many of the readers of the Law and Civil Rights forum on Firing Line Forums won't care for it, this means that, technically, "[there is] no longer a circuit split on the subject."

Why wouldn't we? It's important and relevant, and I for one thank you for posting it.

[nemo2econ]

David Hardy over at Arms and the Law has some early analysis posted.

He correctly points out that not all 27 of the active judges on the Ninth Circuit will sit on the rehearing of the Nordyke case. Only the chief judge and ten judges picked at random will hear the case.

He also helpfully provides some "inside Baseball" that will seed the conjectural bloviating that may soon get started here as we all try to handicap the game:

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 [count] those remaining in [the running] as split 2-2. (Kozinski, as chief judge, is always in [the panel], thank goodness! [Kozinski is perceived as being pro-2A]):

Reinhardt -- anti, wrote Silvera.
Fisher -- anti, joined in Silvera

O'Scanlainn -- pro, wrote Nordyke.
Gould -- pro, joined in Nordyke.

[Yellowfin]

The question is whether there are more pro 2A or anti 2A judges available to be selected from.

[sholling]

At best this delays the 2nd Amendment rights of the people within the territory of the 9th until sometime between November and early next year. It also sabotages pending challenges to may issue CCW policies and the state's approved handgun list. Those challenges are scheduled to be heard before the 9th rules.

One of the things really brought home during the current SCOTUS confirmation hearings was the stylized kabuki of legal thought. Where clear written meanings and original intent take a back seat to a weave of precedents thought to overrule the constitution. Listening to the testimony was like listening to someone on an acid trip. Someone lost in their own little world of swirls and colors and completely divorced from the reality of written word and original intent.

[Bartholomew Roberts]

While many of the readers of the Law and Civil Rights forum on Firing Line Forums won't care for it, this means that, technically, "[there is] no longer a circuit split on the subject."

It means that there is temporarily not a circuit split on whether the Second Amendment is incorporated against the States, pending the outcome of the en banc decision. However, there is still a circuit split on what kind of incorporation test is applied and how it is applied, as Gura's brief on the matter outlined nicely.

If the Supreme Court doesn't address the issue now, that split in how courts are doing the analysis is still eventually going to create a split that they will have to address.

Unless the Ninth Cirucit en banc panel can also wrap that issue up nicely and tie a bow around it, the most a negative decision can do is delay the inevitable.

[Brian Pfleuger]

Where clear written meanings and original intent take a back seat to a weave of precedents thought to overrule the constitution. Listening to the testimony was like listening to someone on an acid trip. Someone lost in their own little world of swirls and colors and completely divorced from the reality of written word and original intent.

Well said.

Not to mention that the testimony is pointless anyway. They just do whatever they want after being seated.

[RDak]

Doesn't the fact that the other Circuits "pushed" the issue to the SCOTUS mean they can hear incorporation cases regardless of splits?

[alan]

The article appeared in today’s Pittsburgh Post-Gazette, by-lined The New York Times, and was headlined "Court mysteriously reconsiders gun rights verdict". This is the 9th Circuit ruling in Nordyke v. King, where a panel of the 9th Circuit seemingly leaned toward incorporation of The Second Amendment to the states, not currently the case, one wonders as to why, given that other parts of The Bill of Rights have long since been incorporated. Seems as if the stage is now set for an “en banc” hearing of Nordyke, which will bring who knows what sort of ending, and which might well effect consideration by the USSC.

There are differing opinions on this, see reference to the thinking of Professors Vikram Amar and Eugene Volokh, respectively of UC Davis and UCLA Law Schools. Might it be that “the plot thickens”?

Unfortunately, since the article didn't originate with the P-G, it doesn't appear on ther web site or on-line edition, ergo the lack of it's text, or a link to it.

[green-grizzly]

alan:

Here is a link to that NYT story in the P-G:

http://www.post-gazette.com/pg/09212...cmpid=news.xml

[maestro pistolero]

Although we all suspect they are revisiting the incorporation issue, the court has said nothing about why they are taking this en banc. It is slightly possible that the court feels that the sensitive places rational was over-reaching.

OR, knowing that the SCOTUS will be reviewing the matter, they may want to frame the issue a little more to avoid any anticipated or imagined egg on their face. It is also not impossible that the court will re-affirm the decision with clarifications.

In the end, this is irrelevant, because there is no way around the fact that the SCOTUS must decide this for the whole country. This is one civil right that must be protected universally.

[Yellowfin]

The 9th has absolutely no aversion to egg on their face or stupidity or they wouldn't rule the way they rule most of the time. Make no mistake about it, this is about killing incorporation to sabotage Pena and Sykes.

[maestro pistolero]

My gut tells me this will not be exactly what we think.

[alan]

green-grizzly wrote:

alan:

Here is a link to that NYT story in the P-G:

http://www.post-gazette.com/pg/09212...cmpid=news.xml

-----------------

Green:

Thanks for the link. Obviously, I had already seen the article, however others who are interested might not have. I mentioned the piece not appearing in the P-G's on-line edition, and the lack of a link to it based on past conversations with people at the P-G, regarding articles and material published by other papers, then picked up by the P-G. I had been told, perhaps incorrectly, that things not written by P-G people would not appear on their on-line edition, something about copywrites. Looks like I misunderstood, or was incorrectly informed.

In any case, the matter at hand struck me as interesting.

[IZZY]

anyone else think it's more than a little pressure from O'hs admin???

[Al Norris]

IZZY? Who exactly is, "O'hs"?

If you cannot or will not spell out the man's name, then don't bother even posting. Invectives are not tolerated in this section of TFL.

As for your conjecture, how exactly does a President, or his administration, put "more than a little pressure" on an appointed-for-life Federal Circuit Judge?

[divemedic]

As for your conjecture, how exactly does a President, or his administration, put "more than a little pressure" on an appointed-for-life Federal Circuit Judge?

Not that I think this is happening in this case, but there are all sorts of ways that pressure can be applied. I am sure that the political powers that be are more inventive than I am, but one thing that comes to mind is that there are SCOTUS seats that are up for nomination, and it isn't as though previous administrations (FDR comes to mind) have not done so.

Here is an excellent article from the NYT in 2007.

[IZZY]

divemedic beat me to it...but when Chief Executive Officer has the backing of Congress and the senate, it becomes hard to resist the "zeitgiest":

http://www.associatedcontent.com/art...court_pg8.html

and more recently:

http://www.law.georgetown.edu/judiciary/

"A fair and impartial judiciary is a cornerstone of our system of government. Yet in recent days the judiciary has been subject to escalating attacks that threaten our nation's tradition of judicial independence. The judicial nomination and confirmation process has become a high-stakes partisan battle. Disagreement with judicial decisions has led to calls for the impeachment of federal judges and the recall of state judges. Congress has sought to influence the outcome of a single state case."

[sholling]

As for your conjecture, how exactly does a President, or his administration, put "more than a little pressure" on an appointed-for-life Federal Circuit Judge?

Purely conjecture but pressure can range from a talking to similar to the talking to that the President had with the head of the "completely independent" CBO, and that his staff had with the heads of "completely independent" ABC, CBS, and NBC to get them to give up yet another hour of profitable prime airtime to carry yet another primetime press conference. He couldn't fire them but the executive branch has the power to make their lives miserable. There is also the leverage of threatening to withhold consideration for the next SCOTUS nomination. I doubt that it happened but leverage does exist. Let's not forget FDR's ability to swing the SCOTUS 180 degrees to approve clearly unconstitutional laws of a type that they previously rejected as unconstitutional.

I think it's far more likely that either:

1. The antis on the court sought to delay incorporation, and possibility head of cert at the SCOTUS level.
2. The pro-freedom judges sought to restrict the sensitive places aspect of Nordyke.
3. A combination of both 1 & 2.

[Poseidon28]

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