In addition to Don's email to me earlier today (see the
Enos thread), I spoke with him about Nordyke
Don Kilmer said:
FRAP 28(j) already submitted in Nordyke giving notice of Ezell decision.
... a little later ...
Don Kilmer said:
BTW, there were 3 FRAP 28(j) letters filed. One on Ezell, one on Brown v EMA, and one correcting a misspelled word in the Brown letter.
These are in addition to the notice of supplemental authority #185, which was filed a little earlier. So here's what has been happening.
On 06-24, a supplemental authority Sorrell was filed. Docket #185.
Attached is Sorrell v. IMS Health, 564 U.S. ___, filed June 23, 2011. It compels a reconsideration of the Nordykes’ First Amendment claims.
- The pharmaceutical and gun shows industries are heavily regulated by state/federal law to insure public safety.
- Guns shows are a market for the law-abiding public to engage in commerce related to the Second Amendment.
- An argument rejected by the Sorrell Court tried to draw a distinction between information for marketing and information for academic purposes. Alameda’s attempt to distinguish gun possession by the Scottish Games – and gun possession at gun shows is similarly suspect under Sorrell.
- Considering the exceptions in the Alameda ordinance and state law which prohibits the possession of loaded guns in public; the effect of the ordinance is to prohibit possession of unloaded, safety-tied guns at the disfavored gun shows at the fairgrounds.
- Devastating to the ordinance is the shift in emphasis when interpreting O’Brien in the context of content based distinctions (i.e., gun shows vs. mock battles) that are coupled with an attempt to target a disfavored group.
Formal legislative findings accompanying §4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U. S. 367, 384 (1968).
Sorrell slip opinion at 9
- Like Berger v. City of Seattle, 569 F.3d 1029 (2009), Sorrell compels a heightened form of means/ends testing to ensure that the government interest is proportional to the burdens placed on speech so as to prevent suppression of disfavored messages. Slip opinion at 16 et seq.
- The same arguments for sending Nordyke back to the trial court to amend their Second Amendment claims in light of Heller and McDonald, are applicable to their commercial speech claims (previously dismissed and upheld on appeal), which now appear to be resurrected by the Sorrell opinion.
On 07-06, a supplemental authority Ezell was filed. Docket #186.
Attached is Ezell, et al., v. City of Chicago, No. 10-3525, from the U.S. Court of Appeals for the Seventh Circuit, filed July 6, 2011. It compels a reconsideration of the Nordykes’ Second Amendment claims.
- At issue in Ezell was the City of Chicago’s ban of firing ranges within city limits. The Court found that the Second Amendment “[...][R]ight to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; [...]” Slip opinion at page 35. This would be analogous to the Nordykes’ assertion that the bundle of rights protected by the Second Amendment includes lawful commerce to acquire arms, admire arms, and receive instruction in their purchase and collection.
- The Seventh Circuit was somewhat critical of the analytical framework of the Nordyke opinion, and specifically rejected the “undue burden” test – as adapted to the enumerated Second Amendment – but which was adopted by the Nordyke panel from the U.S. Supreme Court’s un-enumerated abortion rights cases. Slip Opinion at page 40. See also footnote 12.
- The Ezell opinion also places great weight on whether the plaintiffs applying to the court for relief are “law-abiding responsible citizens.” Slip Opinion at 44. The Court might recall that Alameda has conceded that Nordykes’ gun shows are law-abiding and comply with all federal and state laws regulating commerce in firearms.
- The Seventh Circuit also adopted a protocol, urged by Appellants herein, to put the government to some burden of justifying its action under some heightened standard of review; and that this involves more than mere recitation of speculative dangers. (i.e., The government must supply actual reliable evidence to justify restrictions based on secondary public-safety effects.) Slip Opinion at 45-46.
Further analogies between Nordyke and Ezell would require more
space than is permitted by the Rule of Appellate Procedure 28(j).
On 07-06, a supplemental authority Brown was filed. Docket #187.
At issue in Brown was California’s restrictions on the sale or rental of violent video games. As this Court might recall, part of Alameda’s justification for banning firearms on County property, and thus putting an end to gun shows at the Pleasanton Fairgrounds, was idea that the mere presence/proliferation of firearms has a cause and effect relationship that is detrimental to public health and safety. Alameda Ordinance 9.12.120(a).
This hypothesis that the mere presence of firearms makes otherwise law-abiding people susceptible to crimes of violence is also known as “the weapons effect.” See generally: Dr. Craig A. Anderson, Distinguished Professor & Director, Center for the Study of Violence, at Iowa State University. See C.A. Anderson, A.J. Benjamin, & B.D. Bartholow, Does the gun pull the trigger? Automatic priming effects of weapon pictures and weapon names, 9 Psychological Science 308 (1998) (summarizing prior literature, arguing for a weapons effect, and reporting a new study involving word responses).
This U.S. Supreme Court opinion rejects this hypothesis of social science and suggests that justifications for banning guns that rely upon “the weapons effect” do not even rise to the level of legitimate state interests when scrutinizing fundamental rights.
The Brown opinion seriously undermines Alameda’s justification for its gun show ban at the fairgrounds masquerading as a mere ban on guns on county property.
Docket #188 is a correction to #187 (which I've done in the above - hypothesis was misspelled).
Alameda County had also asked for a 6 day extension to file their response and it was granted. Their response is due on the 11th.
