Nordyke (III) orals were yesterday, audio is
here.
The first thing the court did was to ask Don Kilmer what he wanted the court to do. Remembering that the original District Court did not allow an amended complaint to include a 2A component (which was moot within the 9th Circuit at that time), did he want the case to go back to the District or decide the issue here?
While the lower court did not develop any record on the 2A merits, enough of a record has been developed within the appeals briefs and by the various amici briefs, that the record is there. This was inferred by Don when asked by the panel what they should do: send the case back or rule on the claim as pleaded.
As to the sensitive places argument, the County shot its own foot, when it admitted that it cannot exclude licensed CCW.
Despite what Mrs. Weaver claimed, the court can most certainly take under notice what the legislatures have said about what they passed. This was done in both Heller and McDonald.
Another fatal claim by the county was that people wanting to purchase a gun could do so at any of the 29 FFL's located in the county, therefore the right to purchase is little affected. This is akin to D.C. saying that they allow rifles and shotguns, therefore handguns can be banned, as the right is little affected.
The above are just a few random points that are percolating through my brain as I get ready for Jury duty this AM. Therefore...
In order to pursue judicial economy, at this late date, the panel may simply take de novo review from the pleadings as they stand: Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992). Such review is 'independent.' Premier v. Fuentes, 880 F.2d 1096, 1102 (9th Cir. 1989).