Nordyke - Cert filed at SCOTUS

Al Norris

Moderator Emeritus
Read the decision here.

I've only skimmed it, but from what I'm seeing, it is a very bad decision. The panel has dismissed the 1A claim and while the case was vacated (as to the 2A claim) and remanded, it was in such a way that the panel has given the district court a roadmap on how to dismiss the 2A claim in its entirety.

After describing how the Alameda ordinance came into being, the panel concludes with this remark:

Whatever the intent of the Ordinance, the Nordykes assert
that its effect was to ban gun shows on county property.

Whatever the intent??? The panel just finished describing in detail the intent!

I may have more to say later, after I have completely read and digested the ruling.
 
Quick read -- if a law or regulation substantially burdens the Second Amendment rightthe court will scrutinize it more closely. Laws which are not aimed at or do not substantially interfere with the 2A rights are given more deference. They reject the dissent's approach which seems to be the rational basis/interest balancing test rejected by the Supreme Court.
 
Just registered so go easy on me (IANAL).

The way I read this is that the Nordykes did not raise a substantial second amendment complaint. Under Heller, the "core" second amendment is the right to "keep and bear arms" for self defense. Prohibiting a gun show on county property would be akin to stopping a strip club from establishing within the city limits. A strip club might try a 1st amendment defense but would most likely fail. But...from what I read of the ordinance, it does not prohibit gun shows, it prohibits ALL firearms from county property, with the mentioned exception:

"section 9.12.120(f)(4) exception for authorized fire-
arm use at certain artistic events." ( Nordyke v King 5653 )

It would follow that because the ordinance prohibits the exercise of the "core" 2nd Amendment right, it should fail on its face, if the proper complaint is raised.

One thing extra I would like to point out is that the 9th circuit, unlike a few others, has not limited its interpretation of Heller to "in the home". Unless I missed something.

McM
 
I've only skimmed it, but from what I'm seeing, it is a very bad decision.
Agreed.

[6] Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves alternative leaves law-abiding citizens with reasonable alternative manes for obtaining firearms for self-defense purposes.

Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive or more difficult to exercise.
This verbiage I was very uncomfortable with.

It tells me that the government can make gun ownership very expensive, and create numerous hoops for me to jump through, but that is OK.

In other words, the Fed could require me to pay a $1,000 tax for each gun that I purchase, and that would be acceptable since the right had not been totally removed.

God help us all!
 
This is a very bad decision. If we have to look for a silver lining in this cloud, perhaps it will create a good spot to appeal 9th Circuit precedent to the SCOTUS.

Bothersome points (on a fairly cursory reading):

1) The district court disallowed the addition of the 2A claim, citing Hickman v.
Block
, 81 F.3d 98 (9th Cir. 1996) for the proposition that the claim would be futile under 9th Circuit precedent. Under Hickman, though, " . . . .'t is clear that the Second Amendment guarantees a collective rather than an individual right.' (citations omitted). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed." Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996). As we all know, Heller and McDonald shot that notion down. (no pun intended). Unfortunately for us, the plaintiffs did not allege that they wanted to take firearms onto county property for purposes of self-defense. Marion MaGee (no relation, and welcome to TFL, MM!) mentioned this last part earlier.

2) "It was the handgun ban’s heavy burden on effective self-defense that offended the Second Amendment." Nordyke at 5639. This line opens the door to governmental agencies to test the waters to see just how heavy a burden the 2A will tolerate.

I need to read and digest this one more thoroughly.

Edited to add: One more comment. I'm bothered by the emerging necessity for the plaintiffs to plead self-defense purposes in order to mount a 2A challenge. Gun owners have a 2A right. It's spelled out in plain language. Do I have to explain my reasoning to assert my 5A right? 4A? 1A? In some cases yes, in some cases no, I guess.
 
Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment. [5644]
So now, we're down to the question of what constitutes a "substantial" burden. That's pretty subjective.

Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive or more difficult to exercise. [5646]
Actually, that's exactly the point of Ezell v. Chicago: whether an encumbrance on a right is an infringement. The 7th Circuit seems to think it is. The 9th doesn't. Result? Circuit split. This could have legs.
 
A positive view through a 2A lens.

Overall a positive view through a 2A lens.
http://www.courthousenews.com/2011/05/02/36272.htm

Courthouse News Service:

(CN) - The 9th Circuit on Monday gave new life to a long-running dispute over a California county's ordinance that could ban gun shows on its property, finding that several U.S. Supreme Court decisions over the last six years call into question whether the ban violates the Second Amendment . . .
Yet, the court said this:
For their equal protection claim, the Nordykes argued that the county favored military re-enactors over gun-show participants, as the ordinance allowed such re-enactors, who carry historic firearms loaded with blanks, to use the fairgrounds.
Again, the panel found the Nordykes' argument wanting.
"The county could reasonably conclude that gun shows are more dangerous than military reenactments," O'Scannlain wrote. "This is enough to satisfy rational basis scrutiny."
Isn't rational basis off the table for all fundamental enumerated rights according to Heller? I assume they are talking about the equal protection claim, or is equal protection of the law somehow not a fundamental right? What am I missing here?

Also, how does the court believe that the county to reasonably conclude gun shows are dangerous, when there was NO evidence in the record that the gun shows caused violence? I think the county even stipulated that there were no violent incidents elated to the the gun show.

No-one wants to commit robbery or assault at a gun show, yet the court believes the county could reasonably conclude otherwise.
__________________
 
Isn't rational basis off the table for all fundamental enumerated rights according to Heller? I assume they are talking about the equal protection claim, or is equal protection of the law somehow not a fundamental right?

I believe the court is taking the view that since a gun show is not a core part of the fundamental right of possessing a firearm for self-defense, it may be regulated under rational basis scrutiny.
 
I personally always thought this was a weak case. Even were the government to completely ban all gun shows everywhere, I doubt it would be a strong 2A issue since you are still able to purchase guns in gun shops. More likely to be a 1A or equal protection (kind of ancillary to 2A) issue in that case.

Just my opinion.
 
Another totally bass ackwards decision by the Ninth Circus Court of Idiots Savant.

Have not read the case yet, so I don't know if the Ninth addressed the issue of degree of scrutiny applicable. Doesn't sound like it, however.

They should have taken a more frontal approach, is a significant public interest served by the ban. If not, the ban is unconstitutional. SCOTUS will spit this one right back in their face.

The problem with the Ninth Circuit is there is not enough water left on the West Coast to flush those stupid yahoos down the nearest toilet.
 
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.
  1. The pharmaceutical and gun shows industries are heavily regulated by state/federal law to insure public safety.
  2. Guns shows are a market for the law-abiding public to engage in commerce related to the Second Amendment.
  3. 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.
  4. 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.
  5. 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​
  6. 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.
  7. 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.
  1. 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.
  2. 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.
  3. 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.
  4. 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.
 
As I announced in the Current 2A Cases thread, Alameda has filed their response.

In its response to Nordyke's request for rehearing, Alameda County makes a strong showing for a denial of the request, by "showing" that Heller meant only guns in the home; Sensitive places are places that a government may declare as such; That commerce in arms can be whatever they want it to be, besides, acquiring firearms is not a fundamental right; Since none of the activity that the Nordyke's want to pursue are protected in any manner, they fail. And on they go.... Virtually the same old 2A two-step we have seen in several other cases.

Instead, Alameda suggests that the remand to district court should be continued... To develop the 2A record.

While this response does spend a couple of pages on the Ezell decision, it spends no time whatsoever on the other two cases that Nordyke used as supplemental authorities, one of which was a Supreme Court decision (Brown).

Alameda certainly does not want the panel (or en banc court) to reconsider its "undue burden" test. Whatever else might be said, the 9th's new "undue burden" test almost certainly guarantees that most gun laws within the 9th circuit will pass any form of scrutiny.

Of course, there is the issue of not granting the rehearing and/or en banc. which will mean that Don Kilmer will immediately file a petition for certiorari before the Supreme Court.

That puts 3 potential cases in front of the Court for review. It also puts a lot of pressure on the 9th. While the Supreme Court may agree with the current outcome of Nordyke, I don't think they could buy into the logic used by this panel.

The 9th knows all this.

It may be to their own advantage to consider the case (which delists the panel decision, meaning no anti-gun jurisprudence), revise the logic while retaining the outcome. Such an action would almost certainly mean that this case will not make the next session of SCOTUS. This is also betting that if the SCOTUS does take one of the 2 cases currently before it, that any outcome would not affect a decision in Nordyke. Courtroom political maneuvering at its finest.
 
11/29/2011 198 Filed order (ALEX KOZINSKI) En banc oral argument will take place during the week of March 19, 2012, in San Francisco, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact Deputy Clerk Paul Keller at paul_keller@ca9.uscourts.gov or (415) 355-8026. Within seven days from the date of this order, the parties shall forward to the Clerk of Court twenty-five additional paper copies of the original briefs and excerpts of record. [7981447] (SM)

Unless I have my wires crossed, the above means that there will be no further briefs. For a 12 year old case, it is being fast-tracked now.
 
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Nordyke
a 12 year old case
 
I've been saying the the week of March 19th was going to be busy. Well, the date for the Nordyke en banc orals has just been set.

KOZINSKI, Chief Judge:

Oral argument in this en banc case will be held at 2:30 p.m. on Monday, March 19, 2012, in Courtroom One of the James R. Browning Courthouse, located at 95 Seventh Street in San Francisco, California 94103.
 

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