Nordyke en banc Dismissed and Remanded - Update!

[Al Norris]

From CalGuns Foundation: The Nordyke en-banc is remanded back to the original panel: Judges Gould, O’Scannlain and Alarcón.

Filed July 12, 2010

Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Diarmuid F. O’Scannlain,
Pamela Ann Rymer, Michael Daly Hawkins,
Susan P. Graber, Ronald M. Gould, Richard C. Tallman,
Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges.


ORDER

The panel opinion in Nordyke v. King, 563 F.3d 439 (9th
Cir. 2009), is vacated and the case is remanded to that panel
for further consideration in light of McDonald v. City of Chi-
cago, No. 08-1521, slip op. (U.S. June 28, 2010).​

The order is here.

This means that the panel will no longer be addressing the incorporation issue. That is now settled fact. What they will do is to visit the "sensitive places" doctrine of Heller in light of the RKBA being a fundamental right.

 

[maestro pistolero]

This means that the panel will no longer be addressing the incorporation issue. That is now settled fact. What they will do is to visit the "sensitive places" doctrine of Heller in light of the RKBA being a fundamental right.

Time to get the popcorn ready. Is there any opportunity for concerned parties to have input with the court on that issue? Friend of the court type brief, perhaps?

 

[armoredman]

Interesting.

 

[Tom Servo]

So, if I'm reading the sequence correctly, this opens up the way for Sykes and Pena.

 

[Al Norris]

Sykes was limited to the en banc Nordyke issue. They are now free to go within 60 days, IIRC.

Pena was at first timed-out by Nordyke, but later ruled otherwise. Pena is continuing.

 

[Jim March]

Yeah, Sykes was previously un-linked from Nordyke and re-linked to the Supreme Court decision in McDonald, so that 60-day clock already started. Pena's 60-day clock ought to start now.

 

[mack59]

Have Sykes (the carrying case) or Pena (the handgun roster case) been argued yet? Are they just awaiting an initial decision after argument?

Also does anyone know the status of Palmer in DC - I heard it was overdue for a decision on Gura's last motion for summary judgement.

 

[maestro pistolero]

If this is the now the first 'sensitive places' case post McDonald it is time to go to the mat, is it not? We can't afford a broad definition of 'sensitive'.

 

[Bartholomew Roberts]

Well considering this is the same panel of judges who actually took the time to consider whether the Second Amendment applies through the doctrine of substantive due process instead of punting on the issue, I feel good about this one.

On the other hand, I imagine a pro-RKBA decision is probably going to see an en banc review that is not quite as friendly.

 

[Al Norris]

As I understand, the panel can do one of three things.

1. Reword their prior decision (striping out the incorporation analysis) and reissue.

2. Actually brief the "sensitive places" issue (de novo), which wasn't done earlier.

3. Send it back to the District court to brief the "sensitive places" issue to develop a record in which an actual appeal can be made.

Option 3 seems to be the most sensible thing to do. Nothing was really explained at the prior appeal, to define what makes a gun show "sensitive" as opposed to the Scottish Games. Alameda briefly made claim to a shooting at a county fair, which has no bearing upon the other two events - one which has firearms and is even permitted to fire blanks, and the other is not permitted to have guns, at a "gun-show" - of all things!

 

[Bartholomew Roberts]

Well, it seems like #1 is probably the most likely. The alternative is basically for the three judge panel to admit that their earlier sensitive places analysis was flawed (either by not being done or by having no facts on which to base it).

Of course, they could always say that based on further definition of the protected right provided by McDonald, they have decided the issue needs a deeper investigation or something of that sort.

 

[DogoDon]

I'm not up to speed on Nordyke, although I just read the panel decision that has now been vacated. I must be missing something, because I don't see how the McDonald decision has any bearing on Nordyke. How would anything the SCOTUS said in McDonald change anything the 9th Circuit did in Nordyke?

DD

 

[maestro pistolero]

The best thing that could happen is they would apply the new, fundamental right status and equal protection, and say that the gun show must be permitted as long as the any one else is allowed to have guns on the property for lawful purposes.

As already pointed out, it is NOT a sensitive place as concealed carry permit holders are admittedly allowed.

 

[Al Norris]

Update!

A motion for supplemental briefing was filed in the Nordyke case today by Don Kilmer and Don Kates.

While highly unusual for a case at this late date, it is not unprecedented.

 

[Brian Pfleuger]

That is some good stuff, right there. My favorite part....

It is late in the game for either the County of Alameda (or the State of California for that matter) to claim that they “know” what the scope of the Second Amendment is, when they have maintained all along that it is a meaningless anachronism that does not define a fundamental right.

Hahaha! I love it.

 

[Al Norris]

Yeah, that was footnote 3. Absolutely hilarious!

 

[csmsss]

Wouldn't the trial court have ordered briefs anyway?

 

[Bartholomew Roberts]

According to the Volokh Conspiracy the Ninth Circuit has ordered the parties to brief the issue of how McDonald effects the case as well as any other issues that are related to the case, including the level of scrutiny.

Looks like the Ninth Circuit may be willing to take another look at the "sensitive places" issue despite the earlier ruling.

 

[Al Norris]

This is not entirely unexpected.

After theMcDonald decision was rendered, Don Kilmer filed a rule 28J letter. Then when the case was remanded, a motion for supplemental briefing was filed. From the news, it appears the motion was granted.

I read Eugenes comments. His analysis fails to account for the discrimination between guns at a gun show and guns and the Scottish Games. One is explicitly denied while the other is explicitly granted.

 

[Al Norris]

I stand corrected! With a bit of legal tom-foolery, the court called for supplemental briefing, then denied the motion for supplemental briefing as moot.

The Court Order can be read here.

One chuckles when asking which came first!!