Gunshows Nordyke Audio case heard today!!

The court vacated the order applying the 2nd Amendment to the states and will let the SCOTUS decide - if they choose to. For now no incorporation.

"Filed order (ALEX KOZINSKI): Submission is vacated pending the Supreme Court’s disposition of Maloney v. Rice, No. 08-1592, McDonald v. City of Chicago, No. 08-1521, and National Rifle Ass’n of Am., Inc. v. City of Chicago, No. 08-1497. [7074146] (AF)"​
 
Gene Hoffman has the official order on his site. Download it here.

Just looked at the SCOTUS website, and all three (Maloney; NRA and McDonald) are now scheduled for conference next Tues. the 29th.

Let me see if I can put some kind of perspective on what just happened today.

We've had the en banc orals in Nordyke. There seemed, to me, to be 2 questions the 9th circuit was wanting more information on. First, the incorporation issue itself. Second, the issue of just what is a "sensitive" place. At least, that's what I get out of hearing the questions put to both sides at orals.

That kinda brings up another aspect. Normally, the audio of the orals are put up by noon the next day. Here however, the audio was up within a matter of minutes. Not in and of itself unusual, but odd, nonetheless.

Now just at days end, the case submission has been vacated and the 9th circuit is waiting on the what the Supreme Court does (if anything) with the three current Incorporation cases.

After weighing as many different scenarios as I can think of, my best guess is that the 9th Circuit is subtly asking the Supreme Court to grant cert.
 
Subtle request? It's about as subtle as:

nuclear%20blast.jpg
 
I think the two most striking things about today's events were 1) an appeals court justice demanding to know plaintiff's long term goal. The way he asked that question signaled that he would rule based strictly on his personal politics. Basically he was highly offended that his someone might want to restore the right to keep and bear arms. 2) the rapidity with which the court posted their decision is a clear signal that the decision was made well before they heard any oral arguments, and I suspect well before any of the filings. Today was nothing but a show trial to give some fig leaf of legitimacy to predetermined outcome.
 
"(09-24) 14:43 PDT SAN FRANCISCO -- A divided federal appeals court wrestled Thursday with potentially the most important gun case in its history, a dispute over a firearms ban at the Alameda County Fairgrounds that has expanded into a constitutional battle over state and local authority to regulate gun possession.
"

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/24/BA0119S7I5.DTL

So far, only the Chronicle has covered this story in the Bay Area.
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Short silver-lining analysis from David Hardy: http://armsandthelaw.com/

UPDATE: by held onto I mean the Circuit will take no action, leaving it in a sort of limbo. It won't send it back to the lower court for action, nor give a final decision, which would mean it could move on to the Supreme Court. Judges do not like to be reversed , and here the exact issue is going before the Supreme Court, why take a position that might get crosswise with their ruling? If the Supreme Court grants review, the Circuit will hold onto it until the Supreme Court rules. If the Supreme Court denies review of the earlier Chicago cases, the 9th Circuit will proceed to rule.



This is nice in a way since it gives two shots at Supreme Court review, and IF the Chicago cases were refused, and the 9th then ruled for incorporation of the right to arms, there would be a second shot at Supreme Court consideration, now with a split among the circuits,


Posts above not mine, reposted for your enjoyment
 
My guess is that the 9th reverses its previous ruling. The 9th isn't the least bit afraid of being reversed by SCOTUS - it is the most frequently overruled appellate court in all the land, so that wouldn't be a consideration in its eventual action (or inaction).

But...the 9th is a circuit of ideologues, and the fact that it even took the case en banc implies to me a predisposition to reverse itself. Further, reversing itself then has the effect of eliminating an important motivation for the SCOTUS to rule upon incorporation, since there would then be no discrepancy between appeals court rulings in different circuits.

I'd be astonished if the 9th allowed Nordyke to stand.
 
My guess is that the 9th reverses its previous ruling. The 9th isn't the least bit afraid of being reversed by SCOTUS - it is the most frequently overruled appellate court in all the land, so that wouldn't be a consideration in its eventual action (or inaction).

But...the 9th is a circuit of ideologues, and the fact that it even took the case en banc implies to me a predisposition to reverse itself. Further, reversing itself then has the effect of eliminating an important motivation for the SCOTUS to rule upon incorporation, since there would then be no discrepancy between appeals court rulings in different circuits.

I'd be astonished if the 9th allowed Nordyke to stand.
Click to expand...
It seems to me they have only decided to wait and see what SCOTUS does. That seems like a wise choice. No reason to spend a lot of time screwing around deciding something if SCOTUS is going to do so.

If SCOTUS refuses to take up the issue, the 9th wlll.
 
Interesting:

At the en banc arguments, Judge Diarmuid O'Scannlain, who wrote the panel opinion, brought up California Attorney General Jerry Brown. Brown filed a brief in the 7th Circuit case, taking the side of the National Rifle Association.

"Do you disagree with your own state attorney general?" he asked a lawyer representing the county.

"Yes. Yes I do," replied Sayre Weaver of Richards, Watson & Gershon.

"I won't tell him when I see him," quipped Chief Judge Alex Kozinski, breaking up the courtroom. To which Weaver turned and gestured toward the galleries packed with spectators and press: "I have a feeling he'll find out somehow."
Click to expand...

I don't think this is what Brown had in mind when he wrote the brief, but it does set up an interesting conflict.
 
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