View Full Version : Alert: 9th circuit to vote on en banc hearing for Nordyke

maestro pistolero
May 19, 2009, 08:25 PM
An unidentified judge in the 9th circuit has requested a vote for an en banc hearing of Nordyke.


Tom Servo
May 19, 2009, 09:55 PM
Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.
So, the request was not from the plantiff or defendants?

Wondering if said judge is reacting from pressure from the Attorney General's office, perhaps.

If this goes to SCOTUS, then incorporation will be nationwide.

Al Norris
May 19, 2009, 10:28 PM
For whatever the political reasons, this is a dangerous game to be played, for all concerned.

May 19, 2009, 10:42 PM
For whatever the political reasons, this is a dangerous game to be played, for all concerned.

Agreed. Incorporation, though a long time coming, is still scary. It could be used as a back-door to set a national standard on what firearms are allowed and which are banned. Although the states could seemingly loosen their own regulations, it could make for further SCOTUS cases running the gambit from magazine capacity limits to changing the legal definition of a firearm in our country.

May 19, 2009, 11:56 PM
Lack of 2nd amendment incorporation will not keep the feds from passing anti-gun laws. The interstate commerce clause gives them all the power they need to pass those laws. The only barrier to more federal anti-gun laws is a proper reading of the 2nd amendment, and that applies to the feds regardless of incorporation.

There are already national standards: heavy restrictions on ownership and transport of title 2 weapons (MGs, SBRs, suppressors), and an import ban on a variety of innocuous semi-auto firearms. Not to mention the obvious restrictions that force interstate transfers to go through FFLs.

The only way in which I see the incorporation debate possibly fueling more federal anti-gun laws is by bringing firearms issues into the limelight and allowing the anti-gun media machine to convince joe average that up is down, black is white, thus delivering enough popular support for gun bans to allow congress to pass one.

Still, even in that case the problem is not incorporation itself, but rather the media attention that the incorporation debate will generate.

maestro pistolero
May 20, 2009, 12:30 AM
I wonder if THIS makes the news. The incorporation decision was nearly panned.

Al Norris
July 4, 2009, 04:12 PM
It finally dawned on me, that the briefs for the en banc hearing were long overdue. So a little digging over at CalGuns.net today, produced what I needed.

As you (should) know, there was a call for an en banc review of the Nordyke decision. Briefs were due on June 6th. The appellants (Nordyke) brief is here (http://www.calgunlaws.com/images/stories/Docs/appellants%20brief%20re%20en%20banc%20review.pdf)(2MB PDF). The appellees (Alameda County) brief is here (http://www.calgunlaws.com/images/stories/Docs/appellees%20brief%20re%20en%20banc%20review.pdf) (934KB PDF).

Here, Kilmer and Kates argue that while incorporation was the right call, the panels analysis was flawed in that the Gun Show did not impose any burden upon the county and that the fairgrounds are not a "sensitive" place. That if an en banc hearing goes forward, that only the panels flawed analysis should be heard.

The County on the other hand, sees nothing flawed in the judgment, except the incorporation issue, which it holds as dicta. Therefore, if en banc is granted, only the incorporation issue warrants a hearing. The court need not bother with the actual holdings of the panel.

I think the above two paragraphs provide a fair comparison of the opposing sides take on the original panel and what, if anything, the 9th Circuit should do.

Should the circuit Judges vote for an en banc hearing, we would then have 60 days (I think) for briefs from the party's and their amici.

Here's where it gets dicey for me, as I have no idea on the proper procedures for the various courts that are now involved in 2A litigation.

Would the Supreme Court wait to grant or deny cert in the 7th Circuit and 2nd Circuit cases, while the 9th Circuit en banc hearing was pending? Or would the 9th Circuit grant a stay on their hearing if cert was granted on the 7th and/or 2nd Circuits cases?

Can anyone tell us what might be the way this proceeds?

Bartholomew Roberts
July 5, 2009, 02:33 AM
I sure can't tell you how it proceeds; but I think one of the cert briefs for Chicago made a compelling case that the Supreme Court needed to intervene even if the en banc opinion reverses the panel opinion in the 9th because it obviously isn't clear how to proceed since the three cases (Maloney, Nordyke and Chicago) reached their decision using three totally different forms of 14th amendment analysis.

Al Norris
July 5, 2009, 07:44 AM
Bart, that was the cert petition from Maloney. Which incidently, was a brilliant move on their part.

Consider: The 9th had just argued; The 2nd was decided a week later; At almost the end of the 90 day period to file for cert, Maloney asked and was granted an extension (by Justice Ginsberg, no less); Then the 7th was decided; Petitions for cert were filed by the parties in the 7th; Briefs were filed for the en banc hearing in the 9th; Maloney files his cert. now knowing where all the other players stand.

All this to make what he (Maloney) hopes is a compelling case, that all three circuits decided the issue on different grounds. Certainly a case for Supreme Court guidance here.

Meanwhile, back in the 9th... If the vote is for an en banc hearing, the judgement of the panel will be set aside and the entire appellet case will be heard from scratch. I believe that it is safe to say that, as the nature of the two opposing briefs demand nothing less.

Should the 9th Circuit vote not to hold the hearing, we now know how the petitions for cert will run, should Alameda and/or Nordyke further their appeals.

The timing of all this is nothing short of amazing.

July 5, 2009, 08:01 AM
Since the SCOTUS is not required to accept or demur from accepting any particular case, it's really a question of whether there are any four justices who wish to tackle the 2A incorporation issue at any particular point in time. I suspect that Alito, Roberts, Scalia and Thomas would happily hear these cases, regardless of the decision of the 9th circuit as to whether it will rehear Nordyke en banc.

Old Wanderer
July 5, 2009, 03:13 PM
The en banc motion is pretty much standard fare in the circuit courts. (Almost every case does this when they do not like the outcome.) It is rarely granted...I would be surprised if the motion is granted this time. However with the new Chief Justice and outlook, I could be wrong....(Now if we could select which 15 judges of the 26 get to hear the case.....


Al Norris
July 5, 2009, 03:21 PM
Old Wanderer, ordinarily I would agree with you. However the request for an en banc hearing did not come from Nordyke or Alameda County. A sitting Circuit Judge made the request.

So it's anyones guess how this will shake out.

maestro pistolero
July 5, 2009, 05:14 PM
So it's anyones guess how this will shake out.
My understanding is that all 40-some judges fro the 9th vote on whether there will be a hearing at all, which could be the end of the matter. If they vote for the hearing, then 10 are drawn by lot, with an 11th seat going to the chief justice.

Since the request came from a judge, it does seem likely that it may get more serious consideration than a typical en banc request from a disgruntled litigant. Also, If any matter is weighty enough to warrant the full attention of the court, I imagine it would be a 14th amendment incorporation case. On the other hand, I doubt that the 9th circuit judges take lightly the prospect of second guessing their colleague's ruling.

It IS anyones guess. My gut says they will NOT vote to take Nordyke en banc. The 9th now has the benefit of reading the cert briefs from Gura and others, and now has a glimpse of the humiliation that awaits them of they were to reverse, as well as the promise of validation once the SCOTUS incorporates.