June 15, 2009

Gun Cases Coming Before Supreme Court

The Supreme Court already has two cases it could use for a new look at the scope of gun rights under the Second Amendment, another case is on the way, and now, perhaps before long, there could be a fourth. The Ninth Circuit Court has received new briefs strongly urging it not to rehear en banc the case of Nordyke, et al., v. King, et al. (docket 07-15763), and one brief that is lukewarm on the subject, saying only that further — but only partial — review “would be useful.”

Each of the cases now at the Court or on the way focuses focus singly, or mainly, on whether the Second Amendment individual right to have a gun for self-defense at home restricts gun control laws at the state and local government level, not just federal laws. It is an issue the Justices mentioned but did not decide in their rulng last Term in District of Columbia v. Heller, recognizing the new individual right “to keep and bear arms” at least in some private surroundings.

Already at the Court are petitions in National Rifle Association v. City of Chicago (08-1497) and McDonald v. City of Chicago (08-1521), and on the way is a petition challenging a Second Circuit ruling in Maloney v. King — due to be filed by June 26. In those cases, the Seventh and Second Circuits found that, under binding Supreme Court precedent, the Second Amendment only applies to federal laws.

The Justices are not expected to act on any of the new cases before they recess for the summer near the end of this month. But all could be up for consideration fairly early in the new Term starting in October.

After a Ninth Circuit panel in May became the first federal appeals court to rule that the individual right applies to states, counties and cities, that Court — at the urging of one of its judges – called for new briefs on whether it should review that decision before the full en banc Court. With the briefs now in, the Court can decide whether to reconsider Nordyke.

The two opposing sides filed their briefs on that question last Monday, and on Thursday, the NRA sought to join in as an amicus. (The briefs can be downloaded from the Ninth Circuit’s website for those with a PACER account, under docket 07-15763, entries 88, 90 and 93.) If that Court votes to leave the panel ruling intact, the next step for this case would be the Supreme Court, since an appeal is likely, either way.

The Nordyke case involves the validity of an Alameda County, Calif., ordinance that bans all guns and ammunition from county property — a law that applies to gun shows on the county fairgrounds as well as gun possession at parks, recreational areas, and historic sites. The Ninth Circuit panel, while finding that the Second Amendment does apply to county laws, upheld the Alameda ordinance.

The Circuit Court panel ruling was attacked, for varying reasons, by all sides, and by the NRA.

Alameda County argued that the only live issue in the case was the county’s authority to regulate the use of its own property. Thus, it contended, it was mere “dicta” for the Circuit Court to pass on the question of the Second Amendment’s application to the ordinance. “Lawmaking through dicta has no constitutional legitimacy,” it declared.

An exception to the Amendment recognized by the Supreme Court in Heller — that guns may be banned or controlled in “sensitive places” - insulated Alameda’s ordinance, the county argued.

The opinion’s treatment of the Second Amendment, the county brief asserted, “is plainly superfluous to its holding….The panel could have, and should have, disposed” of the issue over applying the Amendment to state and local government by noting that, even if the right did so apply, the county ordinance was outside the scope of that right.

Since, it argued, the Circuit Court was right in upholding the county law, there is no need for en banc review. But, it went on, the panel’s treatment of the Second Amendment issue “creates the potential for substantial confusion,” perhaps leading people to believe that it actually ruled on that question. If the Court thinks there is a risk that the panel ruljng will be misread on that point, rehearing should be confined solely to the issue of whether the Second Amendment does apply below the federal law. The brief then proceeded to argue against that application.

The gun rights (and gun show) enthusiasts who favor full protection of their Second Amendment right, and believe that the right suffers under the Alameda ordinance, argued that the Circuit Court was correct in extending the right. Thus, their brief asserted, en banc review should be denied on that specific point.

Although this case is an “exceptionally important one,” the brief said, the full Circuit Cort “should not disturb the panel’s well-articulated affirmation of this right as applied to state action.”

Still, it suggested, “en banc consideration would be useful to correct the errors by the panel that lead to a practical defeat of he right for a group of law-abiding citizens who want to conduct safe and historically well-regulated gun shows in a public forum.” If further review is granted, the gun rights groups asked for additional briefing.

Their complaint focused heavily on the panel’s finding that county property was a “sensitive place” from which all guns could be banned without running afoul of the Second Amendment right. The Supreme Court’s discussion of exceptions to that right, the brief insisted, was itself mere “dicta.”

The brief submitted by the National Rifle Association argued that the Circuit Court’s ruling on the sweep of the Second Amendment, to take in state and local laws, ”is in perfect harmony” with the Supreme Court’s Heller decision.

Once the Supreme Court recognized an individual right, this brief asserted, “its eventual application to the states became inevitable.”

Still, the filing said, if the full Circuit Court is prepared to rehear the case en banc, it should confine its review solely to the question of whether a ban on guns on all county property goes too far, and thus violates Second Amendment rights. The Supreme Court acknowledged government power to keep guns out of “sensitive places,” the brief conceded but it argued that this exception “can only apply to places like jails, prisons, mental institutions, schools and government buildings.”

If the Circuit Court does examine the case further, the brief suggested, it should uphold the Second Amendment finding and send the case back to the District Court to gather further facts on whether all county properties are places where introducing guns would pose special problems. There was no proof of that, it said.

Comments (33)

If we think that our Congress represents our actual views, we are sadly mistaken. Barney Frank and Nancy Pelosi keep getting re-elected, Obama GOT elected. In THIS man's world, that spells trouble with a capitol "T".
Go ahead and write your liberal,whiny , self indulgent Congressman. See if he or she even gives a rat's behind about the 2nd Amendment unless it pertains to THEM! Semper Fi

Posted by: Sharps | July 9, 2009 9:21 AM    Report this comment

Robert,

I was doing my duty as a juror in an assault and battery case as the jury foreman back a few years ago. They took my keys because I had an Ayoob Dejammer made by Monadnock on it, so I didn't lose my keys. I wonder what the look would have been on his face if I yanked out my Sig Sauer P226 Elite Stainless in .40 S&W and said "Here, hold onto this until the case is over..." :-)

Posted by: SaveTheGuns.com | June 26, 2009 8:28 AM    Report this comment

Don't you understand how vital it is to protect the lawyers and judges in a courtroom, however not so important to protect anyone else like schools or hospitals? I had a little knife on my key chain 1.2 inches long, no point just rounded, and they wouldn't let me into the courthouse for jury duty, however I could have made it into a school "gun free zone" with an AK-47 unchallenged. WTF! It seems the laws were created to protect the ones who made the laws. Ironic?

Posted by: Robert J | June 26, 2009 7:56 AM    Report this comment

pa-cman,

I agree with you that members of law enforcement agencies should not be given carte blanche rights, while non law enforcement personnel are treated like incompetent children. Holding every member of law enforcement to gun control legislation would quite likely stop many proposed laws in its tracks. It's an interesting approach, but it won't happen unfortunately. Elected officials wish to control us and keep us under their thumbs, the love the fact that law enforcement personnel are not bound by the same laws during the performance of their duties.

Posted by: SaveTheGuns.com | June 26, 2009 7:44 AM    Report this comment

instead of fighting this the way the NRA is doing how about filing a lawsuit against the county sheriffs and police and make sure that they can't enter the county courthouse, jail or for that matter their patrol cars afterall these are all county property. right? are they not wearing weapons? are they not citizens of the united states? what makes them any different than the average law abiding citizen? is it their training or the fact they carry a badge? are we to believe that opur founding fathers did not want all citizens armed and that it would only apply to federal or state workers involved in law enforcement. if filed i guarantee you, you would see such a public outcry from the F.O.P. that it would be louder than the shot fired around the world.

Posted by: pa-cman | June 25, 2009 1:34 PM    Report this comment

Robert J,

You are correct. Money is flowing incessantly into organizations that are actively working to destroy our way of life.

There are two things we can do about it.

1.) Stuff as much of our own money into organizations that actively oppose these restrictions and degradations of freedom.

2.) We can find out exactly where these anti-freedom organizations are getting their donations from and hold each of them responsible for this degradation of freedom and call them on it. For instance, where exactly is Bloomberg getting his cash from? Where exactly is Soros getting his cash from? Once we find that out, then focus a widespread effort to contact the top ten donors and demand they stop contributing to the organizations that are working to diminish freedom.

Posted by: SaveTheGuns.com | June 23, 2009 6:13 AM    Report this comment

The power factor in politics today is money. I think if the anti-gun movement did not have big money people like Soros and Bloomberg, their movement would be weak.

Posted by: Robert J | June 22, 2009 11:50 AM    Report this comment

Tommy H,

Your comments are likely correct. Most all Americans and at least 95% of gun owners don't care enough to lift a finger. We are the vocal minority.

Speaking for myself, not only do I know all of the names of my elected officials, they know mine as well. I have personally recruited 815 members of the National Rifle Association and am the 8th biggest NRA Membership Recruiter in the country. I do hear the sentiment of your post, loud and clear. We desperately need more than just 5% of America's gun owners to belong to a pro-gun organization and be active within. 95% of America's gun owners are sitting with their shooting buddies and discussing gun control over a cup of coffee and that's it. NOTHING COULD BE MORE USELESS THAN MERELY DISCUSSING THESE ISSUES AMONGST OURSELVES. I agree that we must get the Congressional phone/fax lines smoking and the congressional e-mail box jammed. But so few of even bother. It's frustrating.

Posted by: SaveTheGuns.com | June 22, 2009 11:18 AM    Report this comment

"SAVE THE GUNS", YOU REALLY THINK THAT AT SOME POINT PEOPLE WILL RISE UP AND SAY "NO MORE".....I WISH I HAD YOUR FAITH.....I CAN REMEMBER 40 YEARS AGO THAT WAS EXACTLY WHAT MY FATHER SAID....YOU SEE, THEY (LIBERALS) KEEP CHIPPING AWAY A LITTLE AT A TIME AND WE KEEP TAKING IT....WE ACT AS THOUGH WE ARE THINKING "WELL, THIS LITTLE BIT NOW AND THAT WILL BE ALL", BUT IT'S NOT. THEY KEEP TAKING AND WE KEEP LETTING IT HAPPEN. WE WILL ALL WAKE UP ONE DAY TO A DISARMED NEW WORLD ORDER AND IT IS ALL OUR FAULT BECAUSE WE ALLOWED IT TO HAPPEN. WE ALLOWED PRAYER TO BE TAKEN OUT OF OUR SCHOOLS, WE ALLOWED UNBORN BABIES TO BE KILLED, WE ALLOWED QUEERS TO MARRY AND WE ARE ALLOWING OUR ARMS TO BE OUTLAWED.....PEOPLE, PLEASE, STAND....STAND LOUD. BURN THE TELEPHONE LINES UP....DO NOT CONTINUE TO GO UNHEARD. WRITE LETTERS. SEND EMAILS AND DONATE TO THE NRA OR THE CCRKBA OR WHOEVER. IF YOU DON'T CURRENTLY SUPPORT A FIREARMS ORGINAZATION THEN FIND ONE THAT YOU CAN SUPPORT AND BECOME VERY VOCAL ABOUT IT. THE TIME FOR BEING PASSIVE IS OVER......DON'T TREAD ON ME

Posted by: TOMMY H | June 22, 2009 10:13 AM    Report this comment

I yearn for that someday. The bones of my forefathers cry out for that someday. The big question is, when will that day come? What will it take to get us that angry and that motivated? What will it take for us to agree as one body to put off all of our pressing daily concerns and march on the White House and the Capitol with signs in hand?

Would we have done this if D.C. v Heller fell on the side of Washington D.C., thereby nullifying the right to keep and bear our private arms?

Posted by: SaveTheGuns.com | June 22, 2009 9:49 AM    Report this comment

At some time in the future in these United States, there will be huge demonstrations and rallies consisting of hundreds of thousands of freedom-loving Americans, just like the demonstrations going on in Iran this week.

At some point, a good portion of Americans will rise up in one unavoidable voice and clearly say "THIS FAR AND NO MORE." At some point, those who cherish true freedom in America will have had enough. On one day, we will choose to hold a sign demanding our freedom back instead of showing up at work. Someday, we will shout for our freedom back at the top of our lungs instead of going about our daily chores. Someday....

Posted by: SaveTheGuns.com | June 22, 2009 9:41 AM    Report this comment

I live in washington DC and I have been watching this subject go back and forth. dc is weakening and between the NRA and congress something will be done...I agree with robert J the money they spend fighting the second amendment and trying to keep it from the people could be used somewhere else. A while back in Crofton MD a family was at home, when a burgler kicked in the front door,the family wasnt a gun owning one. If you look at the stats looser gun laws will make the area safer, here in dc the murder rate is 180+ per year,baltimore its alot more and the gun restrictions are just as high.places like texas,wash state,vermont,and montana 'car-jacking' is a word that they donot understand and cannot comprehend according to my experiences out of state...One day these idiots might figure out that criminals have the guns already, taking them from law abiding citizens wont stop the crimes that go on and stop spending ooodles of dollars to do it..

Posted by: James T | June 21, 2009 4:58 AM    Report this comment

Gaviota, my friend and comrade in arms, I believe you are sniffing around something that is going to prove true beyond all of our wildest nightmares. Because the Second Amendment is one that is somewhat out of the mainstream in terms of general concern, not many except us "right wing extremists" are likely to pay very much attention to the limitations that the left wing totalitarians are trying to impose. It's the same old story of "when they came for the Jews, I didn't care, because I am a Christian" mentality. Even many of the 80 million gun owners are sticking their heads in the sand, because they don't think anybody will come after their sporting clays shotguns. It is incumbent on all of us to educate everybody we can concerning this totalitarian push to control the masses of American citizens. We must continue to support our gun rights organizations in every way we can, and we must continue to make our elected representatives fully aware of our expectations in terms of their positions on our special issues. Because these "special issues" are those that
will ultimately become general issues, we cannot countenance the thought of failure.

Posted by: canovack | June 20, 2009 8:30 PM    Report this comment

I look for the time when the fed.gov accelerates the trend toward treating the 1st amendment with the same disregard as the 2nd. We'll be seeing more and more calls for "licensing" of journalists, bloggers, and websites, with fees, taxes, and other disincentives for those ISP's hosting blogging websites, and the gradual destruction of the free flow of information throughout the world. If you think Americans and Europeans are dumbed down-and stupid now, wait until the Government takes over the Internet, TV and radio broadcasting companies, newspapers, and other publishers.

Get in, buckle up, and hang on. It's gonna be a bumpy ride.

Gaviota

Posted by: Lee W | June 20, 2009 6:51 PM    Report this comment

It has been revealed that, during WWII, one of the things that most concerned the Nazi forces during the occupation of Europe was the habit of some people to keep diaries, both written and photograpic, of their day-to-day experiences. The Nazis knew full well what a few people with that kind of information could do to their reputation in the rest of the world. Their response, typically, was the exercise of efficient, machine-like brutality.

We are facing the beginnings of a similar situation today. As our constant 24/7 news services become more and more dependent on the government line, talking points, and news conferences, they have come to fear that if they ask too many hard questions, their access to easy news stories will be cut off, and they'll have to gather their news the hard way - by old fashioned journalism. Then along comes the new independent investigative journalist - the blogger. First they were greeted with indulgent dismissal. Then, when they proved more accurate and incisive than the networks, they were ridiculed, mocked and scorned. Now we are hearing terms bandied about the halls of Congress such as "Authorized Journalist" and "Network Only" access, and it has now begun to edge into something a great deal more ominous - as when blogger (and journalist) David Codrea of WarOnGuns.com was actually threatened by a Federal Marshal for his efforts in revealing the abusive practices of the BATFE last year.

Gaviota

Posted by: Lee W | June 20, 2009 6:50 PM    Report this comment

I'm afraid to say it, but one of the only things that will awaken most of America from their political slumber is when a U.S. President becomes a tyrannical dictator and then it will be too late to preserve the America that our Founding Fathers intended for us.

I had a relative in the Massachusetts Militia who was an actual 'minuteman'. My family has been on this land since the first Pilgrim stepped off onto Plymouth Rock in 1620 and I'll be damned if I let freedom fall on my watch.

Posted by: SaveTheGuns.com | June 20, 2009 10:04 AM    Report this comment

It's frustrating to me that we have at our fingertips more available information than ever before. A full lifetime is not nearly enough to gobble up even a fraction of the information available to any American with access to the Internet.

But even with this huge amount of data and facts available, a good portion of the country still remains ignorant. Right now, there are only an estimated 150,000 American citizens who can name America's first five presidents in order. About half of the country can name even one Justice on the SCOTUS. People just don't care about freedom anymore. Not until it directly affects their own life; it's very sad.

Posted by: SaveTheGuns.com | June 20, 2009 9:58 AM    Report this comment

Joseph D,

You pose the most challenging and intriguing question that is on the mind of just about all patriots. How do we begin to turn back the tide of American ignorance toward the founding principles and the limits on government power and reach that are plainly visible in the Constitution.

The answer is multi-faceted and complex. Reversing the mind-numbing ignorance and significant apathy of the average American citizen is the biggest challenge of our time. If most Americans remain ignorant of the founding principles and uninterested in learning about them, the challenge is daunting indeed.

Posted by: SaveTheGuns.com | June 20, 2009 9:48 AM    Report this comment

Canovack, I agree with you 100%. Well said. Unfortunately, most US citizens have become so brainwashed (to Tommy H.'s point) that the unabashed truth is alarming to them. What will it take to reverse the collective brain damage has occurred in the 20th and now 21st century?

Posted by: SUCCESS1@GMAIL.COM | June 20, 2009 8:39 AM    Report this comment

I would find it interesting to know for certain what the Founding Fathers would think about modern-day America and how small our world has become. The Atlantic Ocean was largely a barrier to foreign invasion and now a news story can get around the planet in under three seconds. I believe they would be shocked to find Mason & Madison's Bill of Rights still somewhat intact.

Posted by: SaveTheGuns.com | June 20, 2009 6:38 AM    Report this comment

I TOTALLY AGREE CANOVACK. NOTHING EXSIST THAT WON'T KILL A HUMAN BEING. IT'S NOT THE OBJECT BUT THE PERSON BEHIND THE OBJECT. IT'S SIMPLY A PLAN TO DISARM THE PUBLIC. WE ALL SHOULD HAVE AN RPG IN EVERY CLOSET AND UNDER EVERY BED. IT WILL BE MUCH EASIER TO CONVERT TO A NEW WORLD ORDER WHEN EVERY ONE EXCEPT THE GOVERNMENT IS DISARMED, BUT.......DON'T TREAD ON ME.

Posted by: TOMMY H | June 19, 2009 3:24 PM    Report this comment

SaveTheGuns, I must disagree with you. I have no problem with any law-abiding US citizen owning Apache helicopters, sidewinder missles, Abrahms tanks, field artillery, or anything else they wish to own.
I do have a problem with people who, using any type of weapon including box-cutters, criminally attack other people.
I have a huge problem with the government, using any ruse or excuse, telling me what I can or cannot own or possess for any purpose.
How many times must it be said? It is not the ownership or possession of weapons that is the problem or crime. It is the misuse or criminal use of weapons that is the crime, and that's already illegal!! How much more illegal can something be? It is impossible, and not in government's jurisdiction, to preempt criminal acts. Government can, or should, only investigate and prosecute after a crime is committed.

Posted by: EdD270 | June 19, 2009 3:05 PM    Report this comment

I knew that when I read the title of this article, many of my old friends would be making the comments that they have made here.
You all have made some sound, common sense
input to this forum. That leaves precious little for me to add except my agreement that the more Second Amendment cases that get to the SCOTUS, the better it will be, as far as understanding just where our rights actually
pertain. It just seems plain ridiculous to me that any of the Bill of Rights amendments can be construed as pertaining only to federal law.
Hell.....with that interpretation, we should all be gagged and hog tied because the First Amendment limits our free speech only to federal matters. How simply stupid can people be to discard our nation's documents of origin and order with the interpretation that our rights do not hold under state and local law?

Posted by: canovack | June 18, 2009 8:15 PM    Report this comment

Thanks for the generous feedback, guys. I appreciate it.

SaveTheGuns - Waddaya mean, no Sidewinders? What are you, a pinko? ;)

Gaviota

Posted by: Lee W | June 18, 2009 6:29 PM    Report this comment

But seriously speaking, we need to see perhaps dozens of gun-related cases make it to the SCOTUS, in order to fully flush out where the borders of the Second Amendment lie in modern-day America.

I'm not of the mindset that all law abiding Americans should have ready access to Apache AH1 helicopters, 20MM gatling nose cannons, sidewinder missles and such things. We need to have likely more than a dozen cases make it to the SCOTUS to find out what is deemed constitutional and what stands outside the protections of the 2nd.

Posted by: SaveTheGuns.com | June 18, 2009 2:34 PM    Report this comment

Once again, violent crime is almost at a 40 year low and many violent criminal acts that harm another individual are felon-on-felon crime, which can continue unabated as far as I'm concerned. In fact, if a violent habitual felon promises to only attack other violent habitual felons, I will gladly give them free marksmanship instruction. (that's meant to evoke a smile btw)

Posted by: SaveTheGuns.com | June 18, 2009 2:28 PM    Report this comment

Bans, bans, bans. Bans are ridiculous on their face simply because they ignore common sense. It is elementary common sense that those who are willing and/or inclined to commit violent acts upon innocent people, would not obey any law regulating firearm possession, carry, purchase, transfer or transportation.

It is plainly obvious that any blanket prohibition upon guns, short of nation-wide confiscation that is, would not positively affect rates of violent crime where guns are used.

Posted by: SaveTheGuns.com | June 18, 2009 2:23 PM    Report this comment

Gaviota, Good Mencken quotes. I always enjoy your comments. Thanks.

Posted by: mookien | June 18, 2009 12:12 PM    Report this comment

Confronting liberals with facts confuses them further. Recently, 20-20 did a piece on concealed carry in college settings. The rigged spot showed the perp winning and some students accidentally. Their conclusion.. It is dangerous to try to defend yourself in this situation. Translation..go on and bow your head and die politely. Then we can blame the lack of gun control once you're dead. Not one mention of Pearl MS and other such situations. DUH.

Posted by: Tim C | June 18, 2009 10:12 AM    Report this comment

THEY WILL NEVER GIVE UP.......AND NEITHER SHOULD WE. STAND PROUD, STAND LOUD,TOGETHER WE CAN AND WILL DEFEAT THIS......I'M SENDING ANOTHER DONATION TO THE NRA.

Posted by: TOMMY H | June 18, 2009 10:03 AM    Report this comment

Gaviota, you are wise beyond your years.

Posted by: Robert J | June 18, 2009 6:32 AM    Report this comment

“The urge to save humanity is almost always only a false face for the urge to rule it.”

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary."

Two quotes from Henry Louis Mencken, both of them timelessly relevant. The leaders of our nation for the last century have been sounding clamoring alarums over the people's freedom and liberty, attempting to deceive people into allowing them to rule. Sadly, it's been more or less successful.

Gaviota

Posted by: Lee W | June 17, 2009 4:38 PM    Report this comment

It makes me sick to think of the millions of dollars spent trying to deny citizens of their Constitutional rights. If the liberals really want to help people, maybe their money would be better spent feeding the needy or helping our wounded soldiers returning from war. Liberals act like they want to help people, however its all about control with them, not helping mankind. Unbelieveable!

Posted by: Robert J | June 16, 2009 7:04 AM    Report this comment

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