Nordyke v. King. For those who count such things, the unanimous panel consists of a Reagan appointee (Judge O'Scannlain, who wrote), a Carter appointee (Judge Alarcon), and a Clinton appointee (Judge Gould).
The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" And in footnote 16 it points out that
Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller’s suggestions. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls ....”). But see Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009) (concluding that Presser forecloses application of the Second Amendment to the states).(I should note that many scholars view Due Process Clause incorporation as historically unfounded, but take the view that the Privileges or Immunities Clause was originally understood as incorporating nearly all of the Bill of Rights against the states; but that is not the view the Supreme Court has taken.)
This sort of "fundamentalness" reasoning in naturally mushy — as it has been throughout the Court's selective incorporation cases — but here's roughly how the panel goes through it: (1) It points to evidence that the right was seen as very important by the Framers, and concludes, "This brief survey of our history reveals a right indeed 'deeply rooted in this Nation’s history and tradition.' Moreover, whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight."
(2) It points to continued support for the right from the Framing on, noting among other things that 44 state constitutions contain a right-to-bear-arms provision.
(3) It particularly points to the support of the right, including its self-defense component, around the time the Fourteenth Amendment was ratified.
Note that the better articulation of the test the panel actually applied was probably whether the right is "deeply rooted in this Nation's history and tradition" (citing Glucksberg), not whether it's "necessary to an Anglo-American regime of ordered liberty." Among other things, the Anglo- half of "Anglo-American" abandoned the right decades ago, and it's pretty clear that many of the rights that have indeed been incorporated (such as, for instance, the privilege against self-incrimination) aren't strictly necessary to our regime of ordered liberty. But that criticism would equally apply to many of the Court's selective incorporation cases, which probably also followed the "deeply rooted" test even if they didn't articulate their reasoning that way.
The panel's reasoning begins by pointing to the Framing Era sources
Thanks to Alice Marie Beard for the tip. Will blog more as soon as I can carefully read the opinion.
Related Posts (on one page):
- Ninth Circuit Will Rehear Nordyke v. King En Banc:
- Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:
- What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?
- Why the Gun Show Organizers Nonetheless Lost their Case,
- Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:
- Second Amendment Incorporated by Ninth Circuit Panel, in
Now it is gonna get reversed!
So:
1) Fundamental right, yes.
2) Incorporated, yes.
3) This Ordinance is protected by Scalia's wiggle room: Yes.
Still a remarkable opinion.
Scalia's dicta carries serious weight.
Wendy, Baron v. Baltimore threw out that line of reasoning almost 200 years ago. Also, I don't see how your religion is relevant.
I interpreted the opinion to say that if there are any good arguments against incorporation, the County didn't make them, and only argued the collective right.
Talk about winning the battle to lose the war . . .
If I was the Plaintiff there's no way in Hell I would appeal this.
The entire 'sensitive places' analysis seems very weak to me. Judging a place's sensitivity based solely on how many people are gathered feels like a cop out.
I thought only SCOTUS determined incorporation.
Is this good or bad for us gun owners?
The 9th Circuit's opinion binds all courts in the 9th Circuit (so, the entire West Coast).
I think this is a huge win for gun owners. Paraphrased, the SCOTUS's decision in Heller said "the 2nd Amendment provides some protection against Federal (or DC) regulations." The 9th Circuit basically said "Oh, and it protects against some state and local laws too . . . just not this one."
The application of the 2nd Am. to state and local government is (at least on paper) a profound development. We'll see how many exceptions get carved out.
Any court can hold that a particular amendment is incorporated; the decision, however, only has weight within the court's territorial jurisdiction, and only to the extent that there's not contrary higher authority.
So this decision applies throughout the Ninth Circuit (i.e., Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington). State and federal courts outside the Ninth Circuit aren't bound by it, though they can consider it as persuasive authority, and the Supreme Court can reverse it.
Can defendant cross-appeal the unfavorable disposition of their collective-rights interpretation? I thought Fed procedure allows such an appeal any time a court reaches an unfavorable legal conclusion, even if you ultimately prevail.
Of course, it's not a wise thing to do ...
(1) The Supreme Court listens to appeals, a lower court has to make the relevant factual and legal findings first. Ultimately the Supreme Court will determine whether this ruling stands, if they chose to review it (which is entirely voluntary on their part).
(2) It's either good or neutral for gun owners, good if the CAs start applying scrutiny to gun laws, neutral if all or virtually all state/local laws stand up to whatever scrutiny here (e.g. the right could have no teeth).
Which is a shame. To me it's as if County Hospitals were free to prohibit abortions.
Last Friday Chicago argued:
P&I is basically a dead letter as far as I can tell. The language may as well be considered superfulous.
Now as for Chicago, if that court also rules for incorporation the pressure on SCOTUS gets even higher. And of course the higher that pressure gets, the higher the pressure on Congress (or certain States) not to impose further restrictions unless they want their new law immediately challenged and possibly overturned.
Nicely prescient of EV's latest post covering the analogy with Webster.
I disagree. If circuits start falling in line behind incorporation, the SCOTUS has no need to hear the issue.
Does this count as relying on "international law" in making a decision?
Of course not. Everyone knows that the Anglo-American regime of ordered liberty is given zero weight in international law.
But it would be good to get a clear SCOTUS incorporation ruling before the court begins swinging to the left.
No doubt, but I was responding to the suggestion that circuits coming into accord would exert pressure on SCOTUS to rule.
No doubt the Panel was just whoring for a blog post.
This case should be appealed to get the clarification that the ordinance is only properly applied to restricted access government property, not to public commons or rights-of-way.
If you can't license a right, what about all those Loving (v. Virginia) couples exercising their right to a license?
Agreed. I take that further and suggest that if the seventh circuit (Chicago) does NOT incorporate it will almost compel SCOTUS to intervene. One of the prime motivators for SCOTUS to take cases is when there is disagreement among the various circuits. That is very bad public policy and they like to clean those situations up.
As a Chicago resident, I am hoping for the seventh to incorporate.
And all those paraders getting parade permits.....
The big outlier in the 9th isn't California, it is Hawa'ii.
Everything criticized about Cali seems to be even worse on the islands, it will be interesting to see what happens out there.
Fearless prediction: if the AWB is ever challenged on Second Amendment grounds, courts will point to the "dangerous and unusual" dictum in Heller without any further analysis.
"The challenges of the 21st century necessitate the radical rejection of the Slaughterhouse Cases to enable Americans to secure the blessings of liberty for ourselves and our posterity. Any 'balancing test' jurisprudence based on 'compelling interest' or other subjective tests must fail in a world increasingly filled with weapons of mass destructions and enemies willing to use them. American citizens deserve the bright-line protection of our 'privileges and immunities,' but guests and other aliens do not. Government should not abridge fundamental American freedoms like speech, press, petition, assembly, privacy, and travel, but it should not protect the sworn enemies of America, either.
"Every person present on American soil deserves protection of life, liberty, and property, whether that person is a citizen or not, and whether that person is friendly to the United States or not--but our enemies should not invoke the Fourteenth Amendment protection of rights that only citizens should claim. An American citizen should the right to burn our flag on our soil--but nobody else does.
"We can and should protect the political rights of every American citizen to the highest degree possible--and we do that by treating speech, petition, assembly, privacy, and travel as privileges and immunities which no state may abridge, not as 'liberties' which the courts can balance away."
End of rant. Sorry--I've been saying this since 9/12/2001 but nobody seems to listen.
I don't think that's clear at all. The UK has lost much of its order and its liberty in recent decades, and the loss of the right of self defense is a cause of the loss of order and evidence of the loss of liberty.
Corrections welcome.
Moreover, Heller's famous passage about the decision not reaching certain laws spoke about sensitive areas that were not traditionally public forums like schools and government buildings.
Thus, I was expecting to see the Circuit use a variation of the First Amendment reasonable time, place and manner test for speech in parks to apply the Second Amendment to county fairgrounds. However, I was disappointed in that expectation.
Has anyone read the plaintiff of amici's briefs? Did they make an argument along those lines that that the Circuit considered and rejected?
The good, the 2A applies to the states.
Overall, the courts continue to recognize the right but nonetheless feel it appropriate to permit the states to limit it as the states see fit. I fear that we now have a body of law developing that merely acknowlege's the existence of the right, but ultimately will not protect it from infringment.
That would be nice ... reciprocity!
That is one of the complaints regarding Heller. It created a new standard for scrutiny, but did not define it. All we really know is it is less than strict, greater than rational basis. They did list some areas where the govt can regulate:
- Require a license
- "Sensitive places" like schools and government buildings (but did not define it further than that).
- Can restrict "dangerous and unusual" weapons. No definition of this either. It almost certainly applies to a bazooka or nuke, not so sure about an AR-15, that will get tested over time.
- Can regulate/ban concealed carry. They did not discuss open carry or general transportation issues.
- some other things I am probably forgetting and/or have not arisen yet.
They basically suggested most of the current laws are fine.
The strictest parts of Chicago's laws, and probably some of California's laws, are the most likely to be found unconstitutional (assuming incorporation succeeds).
Laws against machine guns, bazookas, etc. are likely to be left alone.
Laws against so-called "assault weapons" are likely to be litigated in the next phase.
We have a clear circuit split and a well defined question of law relevant to probably thousands of lower court cases before its all over, concerning a newly described and defined individual constitutional right which is part of the bill of rights.
It is hard to imagine a case that is more cert worthy.
Seems to me that a state AWB runs afoul of of Article 1 Section 8, in the case that the 2nd is incorporated vis a vis the states (depending on the level of scrutiny of course). Weapons similar to what the military or police use are best suited to help the militia perform it's constitutionally defined missions.
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"
Hard to imagine repelling an invasion with single shot .22s, while an AR would be just the ticket.
The Court in two sentences invited the Nordykes to re-phrase their application...
"In any event, only if the Scottish Games ensure that 'authorized participants' possess the firearms or that the firearms are secure can they get the benefit of the exception. If the Nordykes could meet one of those criteria, they could get the benefit of the exception as well.
--- Nordyke vs. King, p37 of the PDF....
As a practical matter, gun-shows could assure that only 'authorized participants' possess guns and that all other firearms are 'secure' ... and, presumably, should then be able to argue that they are entitled to come within the exception crafted by the County. If the County still refused a permit, I think this Court has indicated they would be in for a rough ride.
Or is that too practical for the 9th Circuit ?
"A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution."
— MURDOCK V. PENNSYLVANIA 319 US 105 (1942)
In California there are no "gun show loopholes": all sales at shows must go through licensed dealers, who hold the cash and firearms until the waiting period is over.
So, the class of selling dealers can be made secure, and the class of transfer dealers can be made secure. Private sellers have their firearms inspected and listed at the door to the show, so presumably they can be made secure. The only unsecure group would be the private sellers trying to make deals in the parking lot, which presumably the show operator would also like to prevent.
You've saved time and gas driving to/from his shop (and presumably money over the local dealer), and he made a sale that he would've otherwise lost to a competitor with a closer location.
'course, in a just world anyone trying to ban the primary infantry rifle of the regular army from civilian ownership would be slapped down in court, with an opinion consisting entirely of the words: "See amendment 2". ;)
-m@
The question is, with Hickman now "abrogated," coupled with Heller's holding that complete bans are per se violations of the 2nd Amd, is Silveira v. Lockyer still good law? I posit that it is not, as it specifically stood on the now discredited collective rights model and never addressed the 2nd Amd merits. The upshot: Is the Cal assault weapons ban constitutional under Heller and Nordyke?
Thoughts?
IANAL, but to clarify, it only applies to federal courts in the 9th. State courts aren't bound by federal circuit courts.
An excellent point. Does anyone know how California state courts weigh the precedential value of Ninth Circuit interpretations of the Constitution?
I would have thought so, but this article seems fairly persuasive that Circuit Court decisions are not binding on state courts.
The first half of the article discusses Federal courts' Erie interpretations of state law; the second half discusses Federal courts' interpretations of Federal law, which is the issue here.
A very interesting article. Since I went to law school in Arkansas, one of the states that adhere to the rule that federal appellate court decisions regarding purely federal law was controlling I was unaware of the contravailing decisions. However I still believe the state courts would be bound in this particular case because the issue involved is the question of whether the 2nd is incorporated against the states. I suppose the the state court could just say, "Nope, we think Cruikshank controls and since we're bound by SCOTUS and not the 9th, we're going to disregard the 9th's decision that the 2nd is incorporated." I think it's more an academic question than anything else because I really don't see it happening. It's an interesting argument though.
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