CA/9th Circuit: Nordyke goes en banc

[Librarian]

Late today Judge Kozinski, chief judge of 9th Circuit, posted

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Judge Rawlinson did not participate in the deliberations or vote in this case.

Net effect: as if Nordyke's April 20 decision never existed.

En banc arguments the week of September 21.

 

[Yosemite Sam]

Wonder why this happened. Are they trying to reverse the incorporation? Or rule in favor of Nordyke? I can't tell if this is good or bad.

 

[Birdmang]

The net effect stated by the OP does not sound good.

 

[USAFRetired]

The 9th Circuit Strikes Again

Ah the 9th circuit court never ceases to amaze me. I think they've written the book on "legislating from the bench".

Today the West coast, tomorrow the WORLD!!

 

[cbrgator]

Wonder why this happened. Are they trying to reverse the incorporation? Or rule in favor of Nordyke? I can't tell if this is good or bad.

It's the 9th Circuit so one could only assume they are trying to reverse it. Either way... SCOTUS appeal. Probably get merged with the 7th Circuit appeal.

 

[Old Fuff]

It would appear that a majority of judges that had not recused themselves (withdrawn from hearing the case for whatever reason) want the entire court to review the 3-judge decision. The most likely reason is that the more liberal ones want to reverse it. If they were satisfied with decision as it was rendered they're wouldn't be any reason to hold a full-court hearing.

No, this is not good news - but we will have to wait and see. Ultimately the issue won't be settled until the Supreme Court hears a case, and that could take a long time. :banghead:

 

[green-grizzly]

The 9th circuit, because it has so many judges (27?), does not have all of the judges hear cases en banc. The case is heard by 10 random judges, plus the chief. So although the circuit is known as fairly liberal, the panel could end up being quite conservative. It is kind of a crazy system.

At least we know we have one vote, the chief judge, who at least will write a passionate defense of the RKBA (even if it is just in dissent). Kozinski's dissent from the denial of the rehearing of Silveira v. Lockyer is a classic: http://www.thegunzone.com/rkba/rkba-9.html.

All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

 

[Oro]

Yes, keep in mind that inNordyke, while the incorporation issue was mentioned in passing, the actual decision was that a municipality had the right to ban the possession of firearms in public at will and without regard to any firm restraint or scrituny. This precedent alone is terribly frightening.

The intention here may be to review this choking restriction. There is some bizarre reasoning out there that Nordyke was some kind of victory. It was in fact a crushing defeat and throttling of the "bear" part of "keep and bear arms." It effectively erased that word from the 2nd Amendment. In Nordyke, a bone was thrown to the inevitable - incorporation - while a blow torch was applied to the 2nd Amendment itself. Too many people have been chewing at the bone and ignored the fire.

 

[mljdeckard]

I'm going to say it's not good. The most compelling reason for the SC to agree to hear a case and grant cert is if there is a conflict in the lower courts on the same issue, thus requiring a resolution. The 9th surprised us with the decision in the first place, it was probably an accident, (some of the justices wrongly guessing how their colleagues were going to vote, thus wrongly assuming that they could vote one way because it would still lose, but then they were wrong,) and the smart money certainly DOES NOT say that the 9th is going to render ANOTHER pro-RKBA decision.

They are recalling the decision to agree with the 7th, and therefore reduce the likelihood that the SC will hear it at all. I LOVE THIS SYSTEM.

 

[damien]

Don't worry. What the 9th Circuit Court of Appeals rules has no effect on the Supreme Court. The Supreme Court overturns them all the time. I think all the justices already have an idea how they want to rule on this. I'm more concerned this is going to delay the Supreme Court from taking up the incorporation decision until after the en banc appeal. I want them to take it next term.

 

[ArmedBear]

Alex Kozinski, himself, is known as a libertarian. One good thing...

 

[Zoogster]

The intention here may be to review this choking restriction. There is some bizarre reasoning out there that Nordyke was some kind of victory. It was in fact a crushing defeat and throttling of the "bear" part of "keep and bear arms." It effectively erased that word from the 2nd Amendment. In Nordyke, a bone was thrown to the inevitable - incorporation - while a blow torch was applied to the 2nd Amendment itself. Too many people have been chewing at the bone and ignored the fire.

Exactly, many seem to forget that.
The details of the case that end up before the court for incorporation are not supposed to change the legal outcome, but they can play a big part in determining the rights that result from a decision.
Nordyke was a defeat in California, and a defeat that upholds the ability to prohibit weapons on any government property, national, state, county or city. It is certainly far from an ideal topic you want discussed during incorporation. After all public property is the property of the people, us.
The place where rights should be the most preserved.
Rather than including that topic in the situation of incorporation for the SCOTUS to determine together, incorporation alone in a much clearer case would be ideal.

A case more like Heller where someone is clearly being denied a right they should have, and a case which is not attached to further details that could result in justice opinions that remove or limit other freedoms while granting incorporation at the same time. You want as little additional room for extra opinions on other issues as possible.

 

[Librarian]

Oro and Zoogster, I strongly disagree with your characterization of the April Nordyke opinion as a defeat.

You both see only the problem with restrictions on 'bear', but entirely discount that while it was in force, California had a Second Amendment protection against state action that it had never had in its entire existence. It over-ruled Silviera and Kasler and other cases where court challenges to state gun laws were dismissed due to lack of a Second Amendment protection - courts would have been compelled to address merits (and such cases have been filed: Pena and Sykes.)

Since the decision now is mooted, neither opinion is relevant, but 'glass half empty' is very short-sighted.

 

[Oro]

I strongly disagree with your characterization of the April Nordyke opinion as a defeat.

Then it's clear you aren't one of the Nordykes. As an objective spectator, I try to leave it up to the defendants to declare whether a verdict is a triumph or loss. Then I read the opinion and see what it means for precedent. Nordyke was a crushing 2nd Amendment defeat.

You both see only the problem with restrictions on 'bear'

And they were massive and unrestrained. If you don't see that as a problem, we aren't likely to agree. The Second Amendment acknowledges two distinct natural rights citizens have; the right to both KEEP and to BEAR arms. The amendment is not severable, nor is the natural right. Nordyke was a shallow attempt to give a tip of the hat to the former (and throw in incorporation as an obvious corrolary), then completely sever from the constitution the second part. It was a horrible piece of judicial reasoning and it was somehow clever enough to delude many people.

but entirely discount that while it was in force, California had a Second Amendment protection against state action that it had never had in its entire existence.

And how many suits were brought now that this opinion was filed?

This is the looking at the bone and ignoring the flame - the decision made it clear any jurisdiction could legislate away carry and public possession. I am very inclined to believe the reason for this going en banc is not because they want overturn incorporation - that implies a collective childishness to the 9th Circuit that I don't think is even remotely credible. The reason is that the decision and justification in the Nordyke decision stray so very, very far from the dicta Scalia outlined in Heller the judges know it was a flawed and stupid decision. Perhaps this is Kozinski calling it in alone, but he's saving the 9th Circuit lots of ridicule in the future.

 

[Yellowfin]

Yes, keep in mind that inNordyke, while the incorporation issue was mentioned in passing, the actual decision was that a municipality had the right to ban the possession of firearms in public at will and without regard to any firm restraint or scrituny. This precedent alone is terribly frightening.

The reason that was done was to keep the other side from being able to appeal and get the en banc to take away incorporation. Obviously this didn't please the anti 2A judges so one of them--anonymously because they are a coward-- called for a sua sponte en banc vote and got it.

 

[everallm]

There is a small but vocal minority who seem to have a problem with positive outcomes in 2A.

Then it's clear you aren't one of the Nordykes. As an objective spectator, I try to leave it up to the defendants to declare whether a verdict is a triumph or loss


Neither are you nor are you one of the lawyers. This is two wholly separate and distinct issues. One, the "Nordyke" portion was about firearms exhibition and sales in public facilities the second about 2A as an individual right.

The ruling was BOTH good and bad in that 2A was ruled as an individual, not collective right for all of the 9th District, That's what's know as a win.

Calling it "a bone" shows a remarkable lack of proportion or understanding as to how significant this is in real terms of moving 2A forward.

Public facilities gaining a potential blanket ruling that they are inherently "sensitive" areas and subject to tight control was a stalemate not a loss for 2A but an individual loss for the "Nordyke" portion as this did little to change CA existing status.

And how many suits were brought now that this opinion was filed?

Pena v. Cid
Sykes v. McGinness

The whole issue of "sensitive" areas is moot in any case as this is a specific area that the SC stated categorically during Heller (level of scrutiny and definition of sensitive etc) was do be decided by them at a later stage.. This is the "Bear" portion.

 

[Rmeju]

Oro,

I absolutely understand your argument, and in certain respects I agree. However, I look at this in practical terms. The most relavent (IMHO) thing to come of the decision is that there is now a split in the circuts, which makes the incorporation issue ripe for SCOTUS review.

If incorporated, as I think it would be, the 2A is then ripe for so many challenges of rediculous laws and judicial rulings (perhaps even to include the Nordyke restrictions) from NY to CA that it would almost certainly require the resolution of the 'scrutiny' question...assuming it is not resolved in the incorporation ruling. When that question is resolved, you're going to see a lot of 'reasonable' restrictions melt under that scrutiny.

The SCOTUS has already foreclosed the possibility of the Rational Basis test for the 2A, leaving only Intermediate or Strict Scrutiny (or another test that they make up for this particular issue). Though I shudder to think of only getting Intermediate, even with that, there is so much indefensible legislation and jurisprudence that we'd be spending quite a bit of time disinfecting the antigun stain from Americas books that we'll be busy for quite awhile.

So while I agree with you that I don't think Nordyke was a total victory for the Nordykes, 9th circut gun owners, or sane American people who know how to responsibly excercise their constitutional rights, I do believe it was a victory for the 2A, and believe it will push things in the right direction, if only indirectly.

 

[green-grizzly]

There is no doubt that the glass was half-full with Nordyke. We won on incorporation but the court basically held that the RKBA does not apply on public property.

A glass half full is not a full glass, but it is surely better than an empty glass. If we lost on the incorporation issue, we automatically lost on the second issue too. I don't see how that is a better result. At least with the victory on incorporation, it created a circuit split and gave us the opportunity to start attacking other laws in the 9th circuit.

Note that the plaintiffs did not ask for a rehearing. They must have gotten as much as they thought was possible from the 9th circuit. Incrementalism is key in civil rights litigation, as is picking your battles.

I suspect on rehearding that the 9th Circuit will leave us with an empty glass.

 

[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.

 

[natman]

This is the looking at the bone and ignoring the flame - the decision made it clear any jurisdiction could legislate away carry and public possession. I am very inclined to believe the reason for this going en banc is not because they want overturn incorporation - that implies a collective childishness to the 9th Circuit that I don't think is even remotely credible. The reason is that the decision and justification in the Nordyke decision stray so very, very far from the dicta Scalia outlined in Heller the judges know it was a flawed and stupid decision. Perhaps this is Kozinski calling it in alone, but he's saving the 9th Circuit lots of ridicule in the future.

You offer an interesting perspective, but I do have to question the reasoning of the last line. Being ridiculous has never stopped the 9th before.

 

[Zoogster]

Being ridiculous has never stopped the 9th before.

The 9th just decided not many years ago that the NFA does not apply to homemade or modified weapons intended for personal use because they never are a part of commerce or "interstate commerce". As a result they are outside federal jurisdiction which is only through the commerce clause.
Essentially saying if your state allows it, then you could build NFA items for personal use without being in violation of federal law.
This was done in United States v Stewart.
Then the SCOTUS created the crazy logic of the Raich case (which can cover anything the government says it does because it is all encompassing logic). The SCOTUS took the Stewart case and threw it back down to the 9th and told them to give a better result in light of the all encompassing endless federal power Raich gave. The 9th then complied, reversing its previous decision because the SCOTUS told it to.



Find me another district that has made that strong of a RKBA ruling in recent times.

The 9th is very unpredictable because such a small percentage of actual judges end up on most individual cases. But the 9th represents places like Arizona, Idaho, Alaska, and Montana. In addition to California, and Hawaii. (Nevada, Oregon, and Washington are more middle of the road due to Vegas, Portland, and Seattle metro areas.)
So with such a high number of judges, and a low number making specific case decisions with such widespread representation, the results can be very unpredictable.