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Old July 12, 2011, 10:35 PM   #14
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
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.
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