Nordyke: Another Right to Arms Case
by David T. Hardy
California – -(AmmoLand.com)-The “Chicago Gun Cases” are now pending in the Supreme Court, which should vote on September 29 whether to hear them or not. In the meantime, yet another case is slowly moving in the same direction. Like the Chicago cases, the main issue is whether the 2nd Amendment applies to the States via the 14th Amendment.
Nordyke v. King challenges an Alameda County, California, regulation forbidding carrying of firearms on county property, a rule that was aimed at barring gun shows from the county fairground. Gun show organizers filed suit in 1999 – yes, the case has bounced from one court to another for a full decade! It finally arrived in the 9th Circuit Court of Appeals, which covers the far west and has historically been anti-gun.
The 9th Circuit has 27 judges, who divide into three judge panels to hear ordinary appeals. In April of this year, the panel that heard Nordyke ruled 3-0 that the 14th Amendment made the 2nd Amendment binding on the States. This was the first time a Federal appeals court had so ruled.
The decision of a three judge panel can be reviewed by the entire court en banc – in most circuits, this means by all the Circuit judges, but in the 9th Circuit it means by 11 judges chosen at random. Motions for en banc rehearings are rarely granted. But something even rarer happened in Nordyke – without either party asking, a majority of the judges requested rehearing on their own.
The en banc hearing was held on September 24. Based on past votes, of the 11 judges, four or five were pro-gun, two were antigun, and 4-5 were unknown. Nordyke’s counsel, Don Kilmer, thought that two of the unknowns seemed favorable during the argument. Few of the questions were hostile to the core issue of applying the 2nd Amendment to the States – most concerned whether gun shows could be held elsewhere, or similar minutae.
Five hours later, the Ninth Circuit announced that it would hold the case, without ruling, until the Supreme Court disposed of the Chicago gun cases. The Circuit saw no reason to stick its neck out, guess what the Supreme Court will think and get its decision reversed if it guesses wrong. If the Supreme Court takes the Chicago cases, the Ninth Circuit will wait for the results before ruling. If it declines the Chicago cases, the 9th Circuit will have to rule (don’t hold your breath: en banc rulings usually take many months), and once it does, the issue may have a second shot at the Supreme Court.
David T. Hardy is a Tucson attorney who has authored four books and eighteen law reviews articles, mostly on Second Amendment issues. In Heller, he filed an amicus brief for Academics for the Second Amendment. He produced and directed the documentary DVD “In Search of the Second Amendment,” available at www.secondamendmentdocumentary.com.
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