Nordyke – LonelyMachines

U.S. v. Skoien To Be Reheard

News comes from Eugene Volokh that the 7th Circuit wants the Skoien case reheard en banc. There are two possibilities here.

The first is that there was widespread disagreement with Judge Sykes’ decision, and that the others on the panel hope to reverse it should we lose the McDonald case. This would be similar to the Nordyke situation, in which the initial decision was similarly remanded pending the Supreme Court’s decision.

The second possibility is that they want to try for a more lenient standard of scrutiny, which seems unlikely. Heller took rational basis off the table, and Sykes’ opinion was as close to “intermediate” scrutiny as could be workable. All that remains is strict scrutiny for the 2nd Amendment.

Maybe, just maybe, there’s actually support for that. We’ll have to wait and see.

In the meantime, the 4th Circuit has quietly agreed with the 7th, vacating William Chester’s conviction on similar grounds in an unpublished opinion.

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Civil Rights

Nordyke Brief Up

The appellants from Nordyke v. King have filed an amicus curiae brief [pdf] in support of McDonald v. Chicago.

My notes from the original verdict are here. As expected, the decision at hand created a circuit split. An order was filed to remand the verdict for a rehearing by the full 9th Circuit, who decided to shelve the matter pending the outcome of McDonald v. Chicago.

Their brief for McDonald not only argues that incorporation is necessary and prudent, but that the Supreme Court must establish a unilateral standard of review so as to give guidance to lower courts in deciding future litigation.

The original Nordyke verdict suggested strict scrutiny, as did the 7th Circuit in this week’s Skoien decision.

The current brief is more specific:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib.

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Civil Rights

I love Mondays

This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,

As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary.

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Civil Rights

NRA v. Chicago, up the ladder

It took less than a week, but the 7th Circuit has passed down their judgement in National Rifle Association of America v. City of Chicago [pdf]. They disagree with Nordyke and find that the 14th Amendment does not incorporate the 2nd Amendment against state and local governments.

I fully expected this. What I didn’t expect was for the 7th to so gleefully and eagerly hand the ball off to the Supreme Court, which is what they’re doing here.

Presiding Judge Easterbrook argues,

Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. [p. 2]

There’s just one little problem with that logic: this isn’t about the privileges and immunities clause, and it never was.

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Civil Rights

Pravda, Brady Style

They’re sticking to their guns, so to speak. Despite watching their agenda slip away, the Brady Campaign continues to put a sunny face on things. Their response to the 9th Circuit Nordyke decision reads,

The Ninth Circuit Court of Appeals today upheld Alameda County’s ordinance banning possession and sales of firearms on county-owned property, that was enacted to end gun shows on county fairgrounds.

“We are pleased that the court recognized that the Second Amendment does not prevent state and local governments from enacting common-sense gun laws,” said Paul Helmke, President of the Brady Campaign to Prevent Gun Violence.

Actually, that’s not the case at all. The ruling narrowly allowed Almeida County to ban guns from county-owned property. It did not allow anything further. To the contrary, the main story with the Nordyke case was that the 2nd Amendment is incorporated against State and local governments through the Due Process clause of the 14th.

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Civil Rights

2nd Amendment: Closer to Incorporation

Nordyke v. King has been winding its way up to the 9th Circuit Court in California since 2003. The plantiff charged that his 1st and 2nd Amendment rights were being violated by enforcement of a 1999 Alameda County ordinance prohibiting the carry of arms on County property.

In the shadow of Heller, this was one to watch.

Unfortunately, the 9th Circuit ruled that the ordinance was just and would stand.

But that’s not the big news. This is:

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. (Nordyke v. King, p. 29 [pdf])