Nordyke v. King Decided by 9th Circuit - Second Amendment incorporated

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http://www.cato-at-liberty.org/2009...is-an-individual-right-to-keep-and-bear-arms/

This report from Cato, the good people that brought the Heller Case.

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I'd advise people review the discussion going on over at the Volokh Conspiracy (http://volokh.com/posts/1240247034.shtml). Eugene is a premier legal scholar on the 2A and a number of law professors blog there and you usually find excellent discussion in the comments.

Anyway, my $.02 is that the decision has a lot of good in it but is troubling regarding its lack of discussion as to what constitutes "sensitive places" - basically stating that any government controlled land can be declared sensitive.

The 9th circuit panel did not explicitly state the strict scrutiny applies, but it did indicate that this is what would be appropriate (see page 4497, footnote 19):

Quoting the court:
Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. . . . We find no reason to treat the Second Amendment differently.

And at 4495: "The point is that language throughout Heller suggests that the right is fundamental by characterizing it the same way other opinions described enumerated rights found to be incorporated."

at 4496: We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.”

Thus, the court incorporated it and all but outright declared that it should be subject to strict scrutiny.

However, disappointingly, it goes on to a weak analysis of how county fairgrounds are "sensitive areas" subject to infringement of the 2nd amendment right. A law subject to strict scrutiny must satisfy a compelling state interest that is narrowly tailored and uses the least restrictive means to achieve that interest. Rather than conducting an analysis using the three prongs of strict scrutiny, it makes a conclusory statement that County can deem "open space venues, such as County-owned
parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds" as "sensitive places" because they are gathering places where high numbers of people might congregate. It only found "parking lots of public buildings" to be tenuous and not per se sensitive (See Nordyke at p. 4500).

It seems to me that the County ordinance is overly broad because it is not narrowly tailored and does not use the least restrictive means to accomplish its goals. Particularly since the second amendment has language that is particularly restrictive of attempts to regulate bearing arms - "shall not be infringed".

However, I think that the Court's language regarding parking lots bodes well for general open carry on roads, sidewalks, etc.

The other thing which I found disturbing was the Court's finding that "the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their
homes with usable firearms, the core of the right as Heller analyzed it." That is not the "core right" found within Heller. Heller did not limit its analysis to self-defense and only drew its conclusion regarding firearms at home because that was all that was at issue in Heller. This one sentence draws a dark shadow over what would otherwise be a great case for open carry.

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Yes, I wonder why so few people bother to actually read this decision.

At any rate, none of that "disturbs" me by virtue of being very predictable. I didn't expect the 9th to go any farther than they did. Obviously, this will be getting the attention it needs from those who matter. The important part here is that now the Second is incorporated. The Nordyke decision didn't engage in proper strict scrutiny, and it was inconsistent with Heller. However, now that we have incorporation, the Nordykes should have grounds for appeal to the SCOTUS on Second Amendment grounds to get a decision consistent with Heller, right from the source.

This was going to be the case no matter how far the 9th Circuit went. In any event they went just far enough.

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Disintelligentsia wrote:

I'd advise people review the discussion going on over at the Volokh Conspiracy (http://volokh.com/posts/1240247034.shtml). Eugene is a premier legal scholar on the 2A and a number of law professors blog there and you usually find excellent discussion in the comments.

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This board software really hates links sometimes... this one should work:

http://volokh.com/posts/1240247034.shtml

TFred

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Mike wrote:

Thundar wrote:

Mike wrote:

Theseus wrote:

If I remember correctly the 2nd Circuit didn't actually incorporate

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Folks - there is no split - the 2d Circuit never incorporated because there was no need to consider this prior to Heller at n.23.

And remember, the federal courts do not bind state courts unless that federal court is the S. Ct.

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There is a post Heller split between the 4th and 9th Circuit. 4th dismissed Chet's civil rights lawsuit (the 2A part not the SSN part) based upon Cruikshank.

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Nope - Chet's case was dismissed by a district court - there was no appeal.

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Nope- the Federal District Court in Norfolk relied upon the 4th Circuit (Not 2nd and Heller at Circuit) finding that 2A was not incorporated to dismiss.

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Thundar wrote:

There is a post Heller split between the 4th and 9th Circuit. 4th dismissed Chet's civil rights lawsuit (the 2A part not the SSN part) based upon Cruikshank.

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Nope - Chet's case was dismissed by a district court - there was no appeal.

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Nope- the Federal District Court in Norfolk relied upon the 4th Circuit (Not 2nd and Heller at Circuit) finding that 2A was not incorporated to dismiss.

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OK, but that 4th Cir. holding was both pre-Heller's n.23 and cited to 19th century but binding S. Ct. rulings saying that not only is the Second Amendment not applicable to states but that none of the Bill of Rights was applicable to the states. "Incorporation" of rights to apply to the states is a 20th century phenomina that has proceeded bit by bit. Most Circuit courts have held the same, including the 9th Cir., as they were required to do.

There is no modern post Heller split of authority between the high federal and and state appeallate courts on incorporation of the Second Amendment. Besides, somebody in Nordyke would have to appeal or seek en banc review - neither effort, if attempted, is likley to succeed, and the City, which won the case, has no standing to appeal.

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You are correct that Alameda can't appeal, but as you state in your post, they can seek en banc review so it's not entirely in Nordyke's control what happens next. The plaintiff has a real tough decision to make next. Do they take their victory on the larger issue and accept their lumps with the loss of the fairgrounds as a forum for their gunshow or do they appeal and risk losing the whole enchalada? I don't think that there's much chance that the incorporation win would be lost in an en banc review because of the strength of the panel's analysis, but there is the real danger that there would be a whole load of "dicta" regarding "sensitive places" in an attempt to significantly restrict the right to bear arms in public (you know - protect the public roadways, parks, parking lots, etc.).

As to whether or not their's a split on incorporation that would justify cert with SCOTUS, there's a split between the 2nd and the 9th. In Maloney v. Rice, the 2nd Circuit ruled that Presser still controlled and that the 2nd was not incorporated against the states. Justice Ginsburg recently gave the plaintiff an extension of time to file his cert application in Maloney.

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Disintelligentsia wrote:

You are correct that Alameda can't appeal, but as you state in your post, they can seek en banc review so it's not entirely in Nordyke's control what happens next. The plaintiff has a real tough decision to make next. Do they take their victory on the larger issue and accept their lumps with the loss of the fairgrounds as a forum for their gunshow or do they appeal and risk losing the whole enchalada? I don't think that there's much chance that the incorporation win would be lost in an en banc review because of the strength of the panel's analysis, but there is the real danger that there would be a whole load of "dicta" regarding "sensitive places" in an attempt to significantly restrict the right to bear arms in public (you know - protect the public roadways, parks, parking lots, etc.).

As to whether or not their's a split on incorporation that would justify cert with SCOTUS, there's a split between the 2nd and the 9th. In Maloney v. Rice, the 2nd Circuit ruled that Presser still controlled and that the 2nd was not incorporated against the states. Justice Ginsburg recently gave the plaintiff an extension of time to file his cert application in Maloney.

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The worst thing that the en banc 9th could do, aside from overturning the panel on incorporation, would be to give the "sensitive places" dicta substance by applying a constitutional balancing test to arrive at that result.

On the other hand, I think that it is inevitable that some court somewhere will do this soon (and we are probably better off if it is the 9th).

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Thundar wrote:

So we have case law that says 2A is incorporated but that strict scrutiny is not possible.

Very important that they got around Cruikshank.

Very important that it grants an incorporated individual right.

I would say half win.

What is now the standard for evaluating FEDERAL firearms law in the 9[suP]th[/suP] Circuit?

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What we have is the 9th ruled that the 2A is incorporated and then ruled that the 2A does not require governments to provide for a placeto engage incommerce in guns. Nowhere in the 2A doI see anything about the government having to provide a storefront for gun sellers.

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Disintelligentsia wrote:

As to whether or not their's a split on incorporation that would justify cert with SCOTUS, there's a split between the 2nd and the 9th. In Maloney v. Rice, the 2nd Circuit ruled that Presser still controlled and that the 2nd was not incorporated against the states. Justice Ginsburg recently gave the plaintiff an extension of time to file his cert application in Maloney.

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Hmm, is the the nun chuck case? Good grief, not the facts we want.

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I don't think that Maloney is really that bad of a case to bring in incorporation. There is really only one issue so the case is simple and clean and he has fantastic counsel representing him pro bono on his cert petition (Kirkland & Ellis LLP - one of the premier D.C. firms). You can find the ruling at Maloney's site - www.nunchakulaw.com.

The 2nd circuit's pithy decision was really only based on one issue - they ruled summarily that the 2nd is not incorporated against the states because of Presser v. Illinois and so no fundamental right was implicated by the law against nunchakus and that was the end of their analysis.

The SCOTUS could just give a clean read on the incorporation issue and remand the case for further findings (such as whether nunchaku constitute arms under the 2nd -- of course Heller gave a really permissive definition of arms so that issue really shouldn't be that close (although the liberals on the Court might get all aflutter about hordes of ninja warriors armed to the teeth with nunchakus roaming the streets).

Heller on arms:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

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Disintelligentsia wrote:

I don't think that Maloney is really that bad of a case to bring in incorporation. There is really only one issue so the case is simple and clean and he has fantastic counsel representing him pro bono on his cert petition (Kirkland & Ellis LLP - one of the premier D.C. firms). You can find the ruling at Maloney's site - http://www.nunchakulaw.com.

The 2nd circuit's pithy decision was really only based on one issue - they ruled summarily that the 2nd is not incorporated against the states because of Presser v. Illinois and so no fundamental right was implicated by the law against nunchakus and that was the end of their analysis.

The SCOTUS could just give a clean read on the incorporation issue and remand the case for further findings (such as whether nunchaku constitute arms under the 2nd -- of course Heller gave a really permissive definition of arms so that issue really shouldn't be that close (although the liberals on the Court might get all aflutter about hordes of ninja warriors armed to the teeth with nunchakus roaming the streets).

Heller on arms:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

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More importantly:

"The term was applied, then as now, to weapons that were not specifically designed for military use and werenot employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage:“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6,p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesauruslimited “arms” (as opposed to “weapons”) to “instrumentsof offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added)."