More on the Nordyke Case (CA - 9th Circuit)

[Al Norris]

Of the 19 cases (so far) listed in the Current 2A Cases thread, the following cases are supported by the SAF, CRPAF (CA Rifle and Pistol Assoc. Foundation), CalGuns Foundation or some combination of the foregoing:

• Nordyke v. King
• Palmer v. District of Columbia
• Pena v Cid
• Sykes v. McGinness
• Peruta v. County of San Diego
• Peterson v. LaCabe (a colorado case, but sponsored by CalGuns)
• State Ammunition v. Lindley
• Parker v. California
• OOIDA v. Lindley

That's 9 of 19 cases, Folks. Nearly ½ the current cases!

I mention this, because to an awful lot of gunnies, CA is a distasteful word in their mouths and thoughts. So it appears that CA is going to help lead the pack on how to restore our 2A rights at the State level. Consider that, the next time you wish to deride Californian gun owners.

Since I put Nordyke at the beginning of the list above, I thought some of you might be interested in knowing what is going on. As you might recall, the en banc sent the case back to the original panel to weigh in, now that McDonald has been decided, vacating their original decision. The panel made a call for supplemental briefs in light of McDonald.

These briefs were due today. The first brief was an amicus brief by the CRPAF, yesterday which focused upon the "sensitive places" issue. Today, the rest of the briefs were filed:

• Brief on behalf of the Nordykes;
• Amicus Brief of the CRPA Foundation;
• Amicus Brief of the NRA;
• Amicus Brief of the Calguns Foundation;
• Amicus Brief of Gun Owners of California, Inc.;
• Amicus Brief of SAF;
• Brief on behalf of the County of Alameda
• Amicus Brief of LCAV;
• Amicus Brief of Brady Center

Notice that there are 7 amici briefs; 5 for Nordyke and 2 for Alameda. If you are interested, you can find these briefs over at http://www.calgunlaws.com. While registration is not required to download these pdf files, it would be neighborly to do so.

[CowTowner]

Thanks for staying on top of this, Al. As a California ex-patriot, what happens there still means something to me and the family members of mine still living there.

[TheGoldenState]

Thanks for posting

-CA front line soldier

[Tom Servo]

In short, the NRA brief mentions the finding in McDonald that the right protected by the 2nd Amendment is "fundamental," and therefore deserving of strict scrutiny. The Nordyke brief argues along the same lines, asserting that the ordinance is not "narrowly tailored to address a legitimate compelling interest."

The Brady Campaign brief rehashes their argument in McDonald that the 2nd Amendment can be regulated more broadly than other liberties because its exercise carries perceived material risks.

The SAF brief takes a novel approach in showing that the ordinance creates an undue burden on those seeking to procure a gun, since the number of gun dealers in Almeida county has decreased drastically. Eliminating gun shows severely limits the ability of citizens of the county to acquire weapons.

The LCAV brief is the one that worries me. It provides a relatively (to judges so inclined) painless roadmap towards a standard of intermediate scrutiny which looks quite close to rational basis.

[maestro pistolero]

The NRA brief is led by non-other than Paul Clement, of Heller I infamy, in which he openly recants his intermediate scrutiny argument, and makes a impregnable case for strict scrutiny. Clements has huge personal credibility with the court.

The SAF brief in my opinion, destroys any ground on which arguments for the fairgrounds being sensitive, or arguments for intermediate scrutiny could survive.

Gura's SAF brief is brilliant, compelling and crystal clear, as usual.

[CowTowner]

The LCAV brief is the one that worries me. It provides a relatively (to judges so inclined) painless roadmap towards a standard of intermediate scrutiny which looks quite close to rational basis.

After reading the brief, Mr. Dyke himself rules out rational-basis by stating "First, Heller makes plain that rational-basis scrutiny is out".
Intermediate scrutiny may need to look less like rational-basis for it to get by the court in this case.

Or did I miss something else in the brief? Heck, I ain't no lawyer.

[maestro pistolero]

"First, Heller makes plain that rational-basis scrutiny is out"

And so is interest-balancing, another term for intermediate scrutiny.

[DogoDon]

The Brady Campaign brief rehashes their argument in McDonald that the 2nd Amendment can be regulated more broadly than other liberties because its exercise carries perceived material risks.

How are you able to see the Brady Campaign's brief? It says the file cannot be found, when I click on it. Same for Alameda County's brief.

DD

[Al Norris]

Originally Posted by Tom Servo

The SAF brief takes a novel approach in showing that the ordinance creates an undue burden on those seeking to procure a gun, since the number of gun dealers in Almeida [sic] county has decreased drastically. Eliminating gun shows severely limits the ability of citizens of the county to acquire weapons.

Nope. That was the CGF (CalGuns) brief. Complete with charts and graphs!



A few notes of what caught my interest on what the briefs have to say. First, Alameda County:

In the Brady Center amicus brief for Alameda County, among their many errors, one particular error stands out. The Brady brief suggests that no State High Court has ever applied the strict scrutiny standard to 2A challenges;

... State v. Cole, 665 N.W.2d 328, 336-337 (Wis. 2003) (“If this court were to utilize a strict scrutiny standard, [for application of the Wisconsin right to keep and bear arms provision] Wisconsin would be the only state to do so.”).

Not so! In the early years of the 20th century, both Supreme State Courts of Idaho and Vermont applied strict scrutiny to the State Legislatures attempts to deny carry of arms upon its citizens. Both Courts said that while the Legislatures may regulate such carry, it may not deny its citizens the right to freely bear arms. The Vermont Court went further than the Idaho Court, in that no form of carry may be denied or unduly regulated, whereas the Idaho Court agreed that the Legislature may regulate one or another form of carry (open or concealed) but not both.

The Brady Center used the Wisconsin case, ignoring prior precedent. Something I'm sure the 9th Circuit panel will not do.

As usual, the Brady brief centers on the idea that because guns can kill, this makes the right something different than what it is. Such a second class right needs only a deferential balancing test (ignoring that both Heller and McDonald rejected such a balancing test).

The LCAV brief tries to make the inference that the conduct of commerce falls outside of the 2A (there is no right of the people to obtain firearms) and therefore mere rational basis scrutiny attends. The police powers of the County extend to keeping its residents safe on County property, over and above any imagined enumerated right.

The brief by the County of Alameda insists that it has the proper role of protecting its citizens who meet "in large numbers" (left undefined) on county property. Even though there has never been any violence at any gun show, the County reasons that because "gun violence" occurred at a prior county fair, this alone meets the criteria of a sensitive place and for keeping gun shows out of county grounds.

That's about it for the opposition. IMO, these briefs are weak on their face.

Meanwhile, the briefs for the Nordykes (and their amici), delve into what the SCOTUS has actually said. They take into account that gun shows are a means for expressive speech. That the law is unlawful in that it disallows speech based upon content alone, and not based upon neutral time, place or manner restrictions. That without a right to buy and sell property (guns and ammo), the 2A right is meaningless. That the County enacted a law, solely to keep gun shows out, while allowing other commercial organizations to have guns, thereby discriminating against a class of people (equal protection clause of the 14th). Finally, that in both Heller and McDonald, the Court took rational basis off the table, as well as deferential intermediate scrutiny. Therefore, strict scrutiny must apply, as it does in most 1A cases.

If you decide to read any of the briefs, I would suggest that you read the NRA brief first. It is authored by former S.G. Paul Clements. In this brief, he basically states that he was wrong in his position, as he argued for the government in Heller. Despite the time taken from Alan Gura during the orals in McDonald, this brief is a "must read." Mr Clement goes to a great length showing how the SCOTUS not only rejected any rational basis test on 2A grounds, but that Justice Breyers "interest-balancing" approach is nothing more than intermediate scrutiny, cloaked in other words, which both Heller and McDonald also rejected. The only test left, is strict scrutiny.

Secondly, read the SAF brief. It is authored by Alan Gura. In this brief, Gura notes that the 9th Circuit panel can simply do what the SCOTUS did, and knock down the law (as rational basis and interest balancing are off the table), without stating any level of scrutiny at all.

What I liked most about Guras brief, is that he correctly shows that intermediate scrutiny is not descended from strict scrutiny, but rather is a more imposing form (of scrutiny) arising from rational basis.

[maestro pistolero]

Excellent. When is the next date of any activity on this case? 'The Future of the Case' segment on Wiki ends at the en banc decision.

[Young.Gun.612]

Just have to say, I would never deride a CA gun owner. It's not their fault the legislature in their fair state are a bunch of fear mongering anti-gun loonies! Empathize, yes. Deride, never.

just my .02

[Al Norris]

Ordinarily, there would be a given time line for things to be done. In this case, because the en banc court vacated and remanded back to the originating panel, things appear to be expedited.

My best guess (and that's all it is) is that within 2 weeks, we will hear if there will be new orals or if the panel will simply take the case as argued in the supplemental briefs.