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Ninth Circuit Defers Considering the Second Amendment Incorporation Case

until the Supreme Court decides whether to grant certiorari in the Second or Seventh Circuit cases. The order is here. According to Declan McCullagh (CBSNews.com), "The justices are scheduled to discuss those cases on September 29, and are likely to announce their decision [on whether to hear the cases] soon after."

OrinKerr:
How does that work if the Ninth is responsible for the split? Does that mean there is no split right now, but if the Supreme Court denies cert, the Ninth Circuit can then (perhaps) recreate the split and then Nordyke goes up?
9.24.2009 11:40pm
Melancton Smith:
Doesn't this vacate the appeal en banc making the ninth's decision still applicable, hence a circuit split remains.

Frankly, a split of a sort remains anyway. The citizens of the urban metropolis of DC have a fundamental right to possess handguns yet the citizens of the urban metropolis of Chicago do not? Seems inconsistent with any rational concept of ordered liberty to me.
9.25.2009 12:01am
Jim at FSU (mail):
The circuit split stands until the en banc panel overturns it. It sounds like they put off the en banc petition until after cert is decided. Therefore it stands, no?
9.25.2009 12:03am
Jim at FSU (mail):
Er, meant to say that the opinion (nordyke) causing the circuit split stands (perpetuating the split) until it is overturned by the en banc panel.
9.25.2009 12:04am
CrazyTrain (mail):
"The circuit split stands until the en banc panel overturns it. It sounds like they put off the en banc petition until after cert is decided. Therefore it stands, no?"

No. In the Ninth Circuit (unlike some other circuits), the opinion of the 3 judge panel is vacated and is not precedent in the courts of the Ninth Circuit. Thus, the split is history.

I think Orin was making a joke (a very law nerd joke), but the "split" here is hardly the best reason to take cert. There are two other, much better reasons supporting a cert grant on this issue in the very near future (if not in these cases) that I can think of off the top of my head;

1. A seeming inconsistency between Supreme Court precedent -- ie Heller treats the right to bear arms as a fundamental and important right, while older precedent re incorporation of the 2d Amendment does not. And that older precedent is very outdated and predates more modern incorporation precedent (in fact, it probably predates ANY incorporation precedent). That strongly supports cert.

2. Incorporation has not really been SERIOUSLY addressed in many, many years (probably since the early Burger years), and not by most of the Justices on this Court. Incorporation of the 2d Amendment presents a fresh slate for the Justices to opine on the issue -- though I doubt they would really rock the boat at all as incorporation of most of the provisions of the bill of rights is so settled.
9.25.2009 12:16am
CrazyTrain (mail):
Following up on why Jim FSU is mistaken. Here is the text actual order taking the case en banc:

ORDER
KOZINSKI, Chief Judge:
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.
9.25.2009 12:23am
CrazyTrain (mail):
"Doesn't this vacate the appeal en banc making the ninth's decision still applicable, hence a circuit split remains. "

No, no, no. The appeal is not "vacated" -- whatever that would mean. Submission is vacated -- meaning that the en banc court has decided to defer voting on how to rule on the case and it is no longer under "submission." When the Supremes adjudicate the cases referenced, the 9th will either order further briefing, further oral argument (or some combo of both) or just resubmit it, vote and then issue opinion(s).

The appeal is still pending.
9.25.2009 12:26am
OrinKerr:
CrazyTrain,

I didn't mean it as a joke; I was just interested in whether there was still a split.

I gather the court will take the case anyway, because the conservatives presumably figure they have Kennedy on this (which is certainly what I would expect -- I think it's hard to see him come out the other way) and it's not like they'll get any more votes any time soon. So they'll probably vote to grant now.

As for how the more liberal Justices would come out in the end, I'm not sure. I can imagine this being 9-0, but I can also imagine a divided Court: it's not like incorporation is a live issue outside the 2nd Amendment setting, so there aren't really any long term stakes involved for the future of incorporation law if the liberal Justices vote against incorporation.
9.25.2009 12:44am
CrazyTrain (mail):
My prediction if they take it, which they should: 9-0 or 8-1 on incorporation, 5-4 on the merits of whether the Chicago ban violates the 2d Amendment if they reach that issue (which I think they really should).

Three of the moderate-four (I don't think they are truly liberals) have already said the right is an individual right -- although apparently it does not have much punch. As an individual right, I don't see how they say it's not incorporated. I think Sotomayor goes along with this. The only one of the four who might waver is Breyer who might come up with some wacky way to say it's not incorporated.
9.25.2009 1:01am
Soronel Haetir (mail):
Reading that en banc order I could also see it being read as maintaining the split as far as SCOTUS is concerned. The order is very specific that the panel decision is not precedent within the 9th circuit.

I do, however, agree that there are plenty of other good reasons for especially the 7th circuit case to go up. It is nearly identical to Heller other than the state/federal enclave issue. Malloney is not so clear cut because it could easily be argued that even without incorporation that the nunchuka are not 'arms' within the 2nd amendment ambit. Certainly there are plenty of 19th century cases addressing what are and are not arms within the meaning of such provisions.
9.25.2009 1:09am
chris m (www):
Sounds to me like the 9th judges decided to play political games and hold off on saying anything until they could agree with the SCOTUS.
9.25.2009 2:54am
Dennis Nicholls (mail):
The order states "not for publication". What exactly does this mean? It sure looks "published" to me since a copy has been released. Is this the court's admonishment that the order shall not be cited?
9.25.2009 3:16am
James Gibson (mail):
What this just tells me is to watch SCOTUS blog for the pending Supreme Court arguments regarding certiorari.
9.25.2009 3:34am
Visitor Again:
Sounds to me like the 9th judges decided to play political games and hold off on saying anything until they could agree with the SCOTUS.

Doesn't sound to me like poltical games at all. Far from it. Sounds to me like the Ninth Circuit is conserving its resources on an issue the Supreme Court may well decide in another case rather than going ahead itself with the massive expenditure of time and effort involved in an en banc decision. Sounds to me also like the Ninth Circuit is exhibiting proper deference to the Supreme Court.
9.25.2009 5:18am
Visitor Again:
I should add that it is not at all uncommon that a court will hold a matter in abeyance if it presents an issue that is pending in another case before a higher court. It happened in a few of my cases. It makes sense in terms of both economy and deference.
9.25.2009 5:24am
Brett Bellmore:

Three of the moderate-four (I don't think they are truly liberals) have already said the right is an individual right -- although apparently it does not have much punch. As an individual right, I don't see how they say it's not incorporated.


Well, they shape their mouths like so, while exhaling in a controlled manner... Seriously, they don't need it to make sense, they just need some facile rationalization, and I'm sure they could find one in the anti-gun amicus briefs.

They only said it was an individual right in an effort to preserve a tattered remnant of the Court's reputation in the event they'd gotten one more vote; Public opinion is awfully lopsided on that point, and the salience of the issue is such that their declaring otherwise would not have gone unnoticed. The "not much punch" is the core of their position, except it's no punch at all. Incorporation would add to the amendment's punch, they're pretty sure to be against it.
9.25.2009 6:59am
ruuffles (mail) (www):

The order states "not for publication". What exactly does this mean?

In legalese, when a normal decision is issued, "not for publication" or "unpublished" means its only binding on the parties, and not to be used as precedent in the circuit. Not sure what it means in this context though.
9.25.2009 8:57am
egd:
CrazyTrain:

As an individual right, I don't see how they say it's not incorporated.

Well, personally I've never understood the rationale behind selective incorporation. Either the rights in the Constitution were intended to be incorporated, or they weren't. Incorporation is a tough argument to make on its own, the idea that the passage of the 14th amendment limited incorporation to a select number of rights is even more tenuous.

Whether the four liberal justices will side with freedom (incorporation) or oppression (non-incorporation) is a toss up IMO. Will they favor more rights for individuals, or cave to anti-gun groups? It will certainly be an interesting argument (assuming the Court grants cert).
9.25.2009 9:01am
Talman:
The not for publication means that the discretion exercised in this case is not citable in future cases. Of course, you won't have allot of cases where the en banc hearing is a few days before the Supreme Court is to decide cert on the same issue in another case.

I agree with those who say there is no current circuit split because the three judge panel decision is no longer law but also with those who say that the high court doesn't need a split to entertain the issue.
9.25.2009 9:07am
Jay:
Soronel--It says that because it by definition wouldn't be precedent anywhere else, since it's a 9th circuit case. If there's no circuit that has adopted a view, then that view can't be part of a circuit split.
9.25.2009 9:27am
ruuffles (mail) (www):

Whether the four liberal justices will side with freedom (incorporation) or oppression (non-incorporation) is a toss up IMO.

Just because it's incorporated doesn't magically make all gun laws disappear. See recent opinion by Judge Wood of 7th Ct.
9.25.2009 9:28am
Jay:
Also, "not for publication" in this case is literally just a direction to West not to publish the order in F.3d. It's not that the order is not "citable," since unpublished decisions are citable. It's essentially a discretionary call, so I'm not sure how anyone in the future could claim a court was bound by its precedential effect, even if it were marked as such.
9.25.2009 9:33am
Phatty:

Three of the moderate-four (I don't think they are truly liberals) have already said the right is an individual right

I'm dying to know which justice said it wasn't an individual right.
9.25.2009 9:46am
ruuffles (mail) (www):

I'm dying to know which justice said it wasn't an individual right.

Don't bother looking in the Heller dissents, both were joined by all four.
9.25.2009 9:51am
Phatty:

Don't bother looking in the Heller dissents, both were joined by all four.

Yeah, I'm fully aware of that, which is why I was so curious as to his opinion of the phantom justice who broke ranks with the other three dissenters.
9.25.2009 9:55am
Talman:
Jay: I meant to say not citable as precedent, 9th Cir. R. 36-3(a), it can be cited generally. (b).
9.25.2009 10:11am
egd:
ruuffles:

Just because it's incorporated doesn't magically make all gun laws disappear. See recent opinion by Judge Wood of 7th Ct.

Who said anything about making all gun laws disappear?

If the 2nd amendment is not incorporated, then it is a "Constitutional right" of all U.S. citizens which can be infringed by the states at their own discretion. The result being that there is actually no such right, as the term is commonly understood.*

If the 2nd amendment is incorporated, then States will be forced to acknowledge that there is an individual right to own firearms.

Tyranny exists where there is a right that is routinely stepped upon by the state.

* Although I think that all rights should be fully incorporated through the 14th amendment, I would be willing to concede that incorporation may be based on poor legal reasoning.
9.25.2009 10:14am
Phatty:

As an individual right, I don't see how they say it's not incorporated.

The "right" that the four Heller dissenters found in the 2nd Amendment is a right to keep and bear arms in connection with service in a state militia. That's a pretty hollow right in modern times where state militias are practically nonexistant.
What if Justice Stevens had written, "The Second Amendment protects a fundamental, individual right to bear arms that cannot be infringed or regulated under any conditions. The arms protected by the 2nd Amendment are all rifles manufactured on or before 1790." Can you see why you can't simply hang your hat on the "individual right" language? You need to actually read the opinions to determine the scope of the right being recognized.

Keeping the dissenters' view of the 2nd Amend right in mind, it is easy to see how they could find the right is not incorporated. For one, why would it make any sense at all to enforce the 2A against the states if the right only applies in the context of state militias? Without question, a state has the power over its own militia. If the right (as interpreted by the dissenters) was incorporated against the states, I can't think of a single scenario where a state could actually violate the 2A. Thus, it doesn't make sense to incorporate the right.

Second, I'd bet a lot of money that the four dissenters would have a difficult time coming to the conclusion that the 2A is a fundamental right implicit in the context of ordered liberty. They will find that the 2A right is simply not necessary in this day and age so it shouldn't be incorporated.
9.25.2009 10:16am
winniethepoop:
Aren't we only talking about 8 SCOTUS votes here? Shouldn't we expect Justice Sotomayor to recuse herself since she was on the panel that decided Maloney v. Rice? So if SCOTUS does take cert, it will either be 5-3 or 8-0?
9.25.2009 10:37am
Soronel Haetir (mail):
On the topic on not for publication, didn't SCOTUS recently rule that such decisions can in fact be cited, circuit rules to the contrary notwithstanding?

I seem to recall that coming up on the VC at some point.
9.25.2009 10:41am
CrazyTrain (mail):

Yeah, I'm fully aware of that, which is why I was so curious as to his opinion of the phantom justice who broke ranks with the other three dissenters.


Justice Souter retired. Justice Sofomayor did not join any of the dissents as she was not on the court at the time. Thanks for trying though. Next time you might want to think a little bit.
9.25.2009 10:56am
ShelbyC:
Like Orin says, this does seem kind of funny. Why would the 9th wait except to increase the odds that it's Nordyke that gets reviewed?
9.25.2009 11:03am
Sara:
not for publication - as i understand it, in response to that SC rule the ninth circuit adopted the -- not cited as precedent, but can be cited as pursuasive or otherwise rule 36.
9.25.2009 11:09am
Sara:
To me it seems sensible not to spend time on the case, if the Supreme Court is reveiwing the issue, at the same time.
9.25.2009 11:14am
ShelbyC:

Thanks for trying though. Next time you might want to think a little bit.


Or just read your whole comment. Not that I'm one to talk, I often fail to do either :-).
9.25.2009 11:24am
first history:
Aren't we only talking about 8 SCOTUS votes here? Shouldn't we expect Justice Sotomayor to recuse herself since she was on the panel that decided Maloney v. Rice? So if SCOTUS does take cert, it will either be 5-3 or 8-0?

Here are Justice Sotomayor's comments on recusal from her confirmation hearings. The questioner is Sen. Feingold:


. . . . First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?

SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.

FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same
position as your position in Maloney, would you have to recuse yourself from that one as well?

SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.

And in response to Sen. Kyl:

KYL: .....You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.

SOTOMAYOR: In that case, yes.

KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing. If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?

SOTOMAYOR: I haven't actually been responding to that question, and I think you're right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to
apply the same principle.

But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...

KYL: Sure.

SOTOMAYOR: ... with respect to a question like this.

KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," end of quote.

And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no
difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.

SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.

KYL: Would you not be willing to make an unequivocal commitment on that at this time?

SOTOMAYOR: It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I
would have to await to see what happens.
9.25.2009 12:21pm
Aaron Nielson:
Why doesn't the Ninth Circuit just certify the incorporation question to the Supreme Court? Cf. United States v. Seale (5th Circuit, July 2009).
9.25.2009 12:24pm
cboldt (mail):
-- Why doesn't the Ninth Circuit just certify the incorporation question to the Supreme Court? --
.
Probably a few reasons. A big one being that the outcome of Nordyke doesn't depend on "incorporation," so there is no need to have the question answered, in order to reach an outcome in the case. The 2nd amendment does not protect a right to conduct a gun show, any more than it protected Presser's "right to conduct a parade without a permit."
9.25.2009 12:42pm
Andrew Hyman (mail) (www):
In the recent oral argument in the 9th Circuit (painfully boring soundtrack available at How Appealing), there was some discussion toward the end about the disputed facts of the case. The county's attorney seemed to say that the county would allow the gun show to occur at the county fairground if the plaintiffs would merely make sure that the guns are connected by wire to the display table, so that the guns could not be taken and freely carried around prior to purchase. Judge Kazinski suggested that the plaintiffs could get a decision from the local superior court to resolve the case, and save everyone the time and trouble of en banc review. This Nordyke case presently seems like a very fuzzy candidate for Supreme Court review.
9.26.2009 1:40pm

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