Second Amendment Incorporated by Ninth Circuit Panel, in

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.

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Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:

It seems worth quoting, especially because Gould was one of the two Democrat-appointed judges on the panel (paragraph breaks added):

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision.

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.

The panel opinion, which Judges Gould and Alarcon fully joined, also says something similar:

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.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

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Why the Gun Show Organizers Nonetheless Lost their Case,

even though the Ninth Circuit panel found that the right to bear arms generally applies to state and local governments:

(1) The ordinance that barred possession of guns on county property did not materially burden people's ability to defend themselves on private property, especially in the home.

(2) The government generally has the power to restrict the exercise of constitutional rights on government property, citing the Court's abortion rights cases. Probably the strongest such case on the county's side, which the panel didn't cite, was Webster v. Reproductive Health Servs. (1989), which upheld a state law banning "the use of public employees and facilities [including any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof] for the performance or assistance of nontherapeutic abortions."

(3) Heller's suggestion that the government may ban "the carrying of firearms in sensitive places such as schools and government buildings" also applied to "the open, public spaces the County's Ordinance covers," including county parks and the fairgrounds. The panel suggests that "The Court listed schools and government buildings as examples, presumably because possessing firearms in such places risks harm to great numbers of defenseless people (e.g., children). Along the same lines, we notice that government buildings and schools are important to government functioning."

It's not clear exactly what test the panel was applying for deciding what constitutes a "sensitive place[]," especially since county parks and the fairgrounds are probably not as "important to government functioning" as are schools (running which has long been seen by American state constitutions as a core government function) and many government buildings. Is it that all "prohibiti[ons on] firearm possession on municipal property," including public streets and sidewalks — i.e., total carry bans, including in one's car or on one's person on the sidewalk — are constitutionally permissible? (Note that while the government generally has the right to restrict the exercise of many constitutional rights, including not just abortion rights but free speech rights, in many government buildings, it generally is substantially constrained by many provisions — such as the First and Fourth Amendments — on public streets and sidewalks.)

Would the "sensitive places" exception cover only prohibitions in places "where high numbers of people might congregate" (with the threshold perhaps higher than the number of people that would usually be present on a normal city sidewalk)? Would state and federal parks in the sense of Yosemite and the like, as opposed to small city and county parks, also qualify? What about people's apartments in public housing projects, which are "municipal property" but not themselves places where many people congregate?

For more on these questions, you might have a look at PDF pages 31-34, 85-89, and 72-80 of my forthcoming UCLA Law Review article on implementing the Second Amendment. I'm inclined to say that the panel's general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be — though I'd also say that, for reason 1 noted above, coupled with aspects of reason 2, the ordinance would be clearly constitutional when applied to selling guns on government property, and displaying them for sale there.

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What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?

(1) Even though the County won on the bottom line (its ordinance was upheld), it can still ask the Ninth Circuit to rehear the case en banc, in order to reconsider whether the Second Amendment is incorporated. What's more, other judges can by themselves ask for a rehearing en banc. If a panel decision is seen by some judges as containing an important legal error (or even as resolving a question that's so important that it needs to be reconsidered by more judges), the judges can vote for rehearing en banc in order to correct that error, never mind whether the bottom line was right. The judges, after all, would be laboring under the reasoning (and not just the bottom-line result) of this panel decision for years to come, since judges on one panel are supposed to be bound by the decisions of previous panels; they thus have an interest in making sure that the panel decision is right in its reasoning.

This having been said, I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat-appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the Second Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican-appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)

(2) What about the Supreme Court? The county can't ask the Supreme Court to take the case, because it won below on the bottom line, which bars a certiorari petition (though not an intra-Ninth-Circuit suggestion for rehearing en banc). And if the gun shows petition for certiorari, it's not clear that the Court would want to take the case, since the issue on which they would be petitioning — chiefly the scope of the Second Amendment as applied to government property — is one on which there isn't yet a split among the circuits.

(3) But don't forget the nunchakus! The petition in Maloney v. Cuomo, a Second Circuit case decided January 28, 2009, is due in a bit over a week. [UPDATE: The filing deadline in Maloney has just been extended to June 26, and the name for the case in the Supreme Court is now Maloney v. Rice; thanks to Benjamin Wolf (Elliot Schlissel N.Y. Law Blog).] Maloney, who lost in the Second Circuit both on the incorporation question and on the bottom line, is certainly entitled to petition, and he's sure to stress the now-existing split between the circuits.

As I blogged earlier, my guess is that the Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. Moreover, the incorporation issue will surely arise in other circuits, mostly in cases involving more traditional arms, so the Court could decide to wait until then.

On the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments. Maybe four of the Justices will thus conclude that there's no time like the present to decide the incorporation issue, and will therefore agree to grant certiorari in Maloney (though not Nordyke).

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Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:

The parties have been asked to file briefs within 21 days of yesterday on whether en banc review is warranted. After that, it would take a majority vote of all 27 active Ninth Circuit judges to vacate the panel decision, and thus cause a rehearing by a 11-judge subset of the Ninth Circuit (Chief Judge Alex Kozinski plus ten randomly drawn judges).

Unless I'm mistaken, the en banc review procedure in the Ninth Circuit is all or nothing: Though there are two conceptually separable issues in the case -- whether the Second Amendment is incorporated against state and local governments (on which the gun shows won), and whether under the Second Amendment governments may ban guns in county fairgrounds (on which the gun shows lost) -- a judge can't vote for en banc review of only one of the issues.

I tentatively stand by my prediction from last month as to the likelihood of en banc review:

I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat-appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the Second Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican-appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)

The Ninth Circuit doesn't reveal the identities of judges who call for en banc, or the identities of those who vote for or against en banc (except insofar as they may identifying themselves in any written opinions dissenting from the denial of en banc or supporting the denial of en banc).

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Ninth Circuit Will Rehear Nordyke v. King En Banc:

That's the decision in which the Circuit held that the Second Amendment was incorporated against the states, and also that counties could — despite that — bar guns from county property (at least the fairgrounds and the fairground parking lots involved in that particular challenge).

As is usual with decisions to take the case en banc, the order provides that "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This technically means that there's no longer a circuit split on the subject, which diminishes the likelihood of Supreme Court review of the Second and Seventh Circuit decisions rejecting incorporation. (The Seventh Circuit decision involved the Chicago handgun ban.) But those two circuit decisions stressed that they felt themselves bound by Supreme Court precedent. That precedent is old and inconsistent with modern incorporation approaches (as D.C. v. Heller itself acknowledged). And over two thirds of the states (including California) support certiorari on this question, and support incorporation. This suggests that there's still a very good chance that the Court will agree to hear the incorporation issue, notwithstanding the Ninth Circuit's decision to review the matter en banc.

At the same time, I should acknowledge that I had wrongly predicted that the case probably wouldn't be taken en banc. So please view my other guesses about what courts will do with suitable skepticism.

UPDATE: According to the Ninth Circuit, "En banc oral argument will take place during the week of September 21, 2009."

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