[Al Norris]

On January 15th, 2009, oral arguments were heard on Nordyke v. King (Alameda County) 07-15763, before a panel of the 9th Circuit Court of Appeals.

The most memorable (and noteworthy) exchange in the orals:

Court: It seems strange to me to say you can have a gun show without showing of guns ... (laughter and mild applause) ... How does the ordinance take care of that? How could they have shown their guns without bringing them to the campgrounds? (sic)

Peter Pierce for Alameda County: Point taken your honor, but I do not think it could be assumed, as a matter of law, that a sale could never occur without the gun being physically present there. The sale could be consummated there and perhaps the individual could view the firearm immediately off the government property. I suppose that is a possibility ... (slight pause) ... That's my response to the question

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Overall impressions: Don Kilmer knew his case. At every question, he had an affirmative answer. When the Judges wanted to explore side angles, Kilmer skillfully evaded and brought the Judges to where he wanted them to go.

Not so Mr. Pierce. He conceded nothing (as seen in the above quotes). Heller only conferred a right to possess handguns in the home for self defense. Heller did not confer a right to self defense anywhere else but the home. Mr Pierce, in a direct question from Judge O'Scanlon, stated that Heller did not confer a corollary right to buy firearms. Heller only conferred, what limited right it did confer, to a federal enclave. Mr. Pierce did not concede that the (2A) right could be incorporated at any level lower than the Supreme Court.

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The first amendment argument, by Kilmer, was, I thought, a bit weak. While it relied upon freedom of expression, I didn't hear where he included freedom of assembly, which to my non-attorney ears, would be another and stronger vehicle.

Regardless, from the type of questions asked about 1st amendment rights, it is fairly clear (IMO), the panel will not rule favorably in this regard.

The 14th amendment Equal Protection argument was stronger and relied upon the Equal Protection clause.

For part of his incorporation argument, Kilmer used footnote 23 of Heller, as a starting point (Kilmer: "With respect to FN #23, the Court almost invites incorporation"). Cruikshank and Presser were both cases where the 2a did not apply to the States, long before there was an incorporation issue.

Kilmer did modify his stance on the P&I clause. He argued that until the SCOTUS overturned the Slaughterhouse Cases, it was controlling precedent. That did not stop him from characterizing that Cruikshank, and its progeny, as non-controlling, in light of current incorporation doctrine and dicta within Heller.

Kilmer than proceeded to argue that Fresno was not controlling as it was decided solely upon P&I issues and not current controlling incorporation issues. If any cases were controlling, it would be Cruikshank and Presser. Yet they are no longer controlling under current doctrine.

Pierce, on the other hand, relied upon Cruikshank, Presser and Fresno Rifle, as precedent and that until such a time that the SCOTUS overturned Cruikshank and Presser, then Fresno Rifle was the controlling precedent.

It should be noted that Cruikshank was decided 50 years before Due Process and Equal Protection became to be used as part of the Selective Incorporation Doctrine. It should also be noted that Presser relied almost solely upon Cruikshank. Further, that Fresno Rifle relied upon the two former cases. If Cruikshank is to be bypassed (for purposes of incorporation), the other two cases can not be controlling. Most especially, Fresno.

Pierce contends that Fresno is controlling because it relies upon the P&I clause which is foreclosed in Slaughterhouse. Pierce does not follow-up on the Due Process and Equal Protection clauses, nor does the panel question this omission.

Mr. Pierce completely ignored the fact that Cruikshank and Presser have been bypassed by the Supreme Court as controlling, when looking at current incorporation doctrine. The panel did not question Pierce on this omission.

My conclusion is that the panel will incorporate and send the case back to the District court for further consideration. At this point, the appellee will ask for an en banc review and barring this, seek cert before the SCOTUS. It will then be at least another year before anything else is done.

If cert is petitioned, I suspect it will be denied. The issue is far from ripe.

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FN#23 - With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.