The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old July 12, 2010, 07:25 PM   #1
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Nordyke en banc Dismissed and Remanded - Update!

From CalGuns Foundation: The Nordyke en-banc is remanded back to the original panel: Judges Gould, O’Scannlain and Alarcón.

Quote:
Filed July 12, 2010

Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Diarmuid F. O’Scannlain,
Pamela Ann Rymer, Michael Daly Hawkins,
Susan P. Graber, Ronald M. Gould, Richard C. Tallman,
Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges.


ORDER

The panel opinion in Nordyke v. King, 563 F.3d 439 (9th
Cir. 2009), is vacated and the case is remanded to that panel
for further consideration in light of McDonald v. City of Chi-
cago, No. 08-1521, slip op. (U.S. June 28, 2010).
The order is here.

This means that the panel will no longer be addressing the incorporation issue. That is now settled fact. What they will do is to visit the "sensitive places" doctrine of Heller in light of the RKBA being a fundamental right.
Al Norris is offline  
Old July 12, 2010, 07:46 PM   #2
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,153
Quote:
This means that the panel will no longer be addressing the incorporation issue. That is now settled fact. What they will do is to visit the "sensitive places" doctrine of Heller in light of the RKBA being a fundamental right.
Time to get the popcorn ready. Is there any opportunity for concerned parties to have input with the court on that issue? Friend of the court type brief, perhaps?
maestro pistolero is offline  
Old July 12, 2010, 08:09 PM   #3
armoredman
Senior Member
 
Join Date: May 22, 2007
Location: Arizona
Posts: 5,295
Interesting.
armoredman is offline  
Old July 12, 2010, 08:36 PM   #4
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,057
So, if I'm reading the sequence correctly, this opens up the way for Sykes and Pena.
__________________
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
Tom Servo is offline  
Old July 12, 2010, 09:28 PM   #5
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Sykes was limited to the en banc Nordyke issue. They are now free to go within 60 days, IIRC.

Pena was at first timed-out by Nordyke, but later ruled otherwise. Pena is continuing.
Al Norris is offline  
Old July 12, 2010, 09:38 PM   #6
Jim March
Senior Member
 
Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,417
Yeah, Sykes was previously un-linked from Nordyke and re-linked to the Supreme Court decision in McDonald, so that 60-day clock already started. Pena's 60-day clock ought to start now.
__________________
Jim March
Jim March is offline  
Old July 12, 2010, 10:03 PM   #7
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 447
Have Sykes (the carrying case) or Pena (the handgun roster case) been argued yet? Are they just awaiting an initial decision after argument?

Also does anyone know the status of Palmer in DC - I heard it was overdue for a decision on Gura's last motion for summary judgement.
mack59 is offline  
Old July 13, 2010, 12:47 AM   #8
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,153
If this is the now the first 'sensitive places' case post McDonald it is time to go to the mat, is it not? We can't afford a broad definition of 'sensitive'.
maestro pistolero is offline  
Old July 13, 2010, 07:17 AM   #9
Bartholomew Roberts
member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
Well considering this is the same panel of judges who actually took the time to consider whether the Second Amendment applies through the doctrine of substantive due process instead of punting on the issue, I feel good about this one.

On the other hand, I imagine a pro-RKBA decision is probably going to see an en banc review that is not quite as friendly.
Bartholomew Roberts is offline  
Old July 13, 2010, 08:49 AM   #10
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
As I understand, the panel can do one of three things.

1. Reword their prior decision (striping out the incorporation analysis) and reissue.

2. Actually brief the "sensitive places" issue (de novo), which wasn't done earlier.

3. Send it back to the District court to brief the "sensitive places" issue to develop a record in which an actual appeal can be made.

Option 3 seems to be the most sensible thing to do. Nothing was really explained at the prior appeal, to define what makes a gun show "sensitive" as opposed to the Scottish Games. Alameda briefly made claim to a shooting at a county fair, which has no bearing upon the other two events - one which has firearms and is even permitted to fire blanks, and the other is not permitted to have guns, at a "gun-show" - of all things!
Al Norris is offline  
Old July 13, 2010, 11:30 AM   #11
Bartholomew Roberts
member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
Well, it seems like #1 is probably the most likely. The alternative is basically for the three judge panel to admit that their earlier sensitive places analysis was flawed (either by not being done or by having no facts on which to base it).

Of course, they could always say that based on further definition of the protected right provided by McDonald, they have decided the issue needs a deeper investigation or something of that sort.
Bartholomew Roberts is offline  
Old July 13, 2010, 02:57 PM   #12
DogoDon
Senior Member
 
Join Date: January 8, 2010
Location: Charlotte, NC
Posts: 368
I'm not up to speed on Nordyke, although I just read the panel decision that has now been vacated. I must be missing something, because I don't see how the McDonald decision has any bearing on Nordyke. How would anything the SCOTUS said in McDonald change anything the 9th Circuit did in Nordyke?

DD
DogoDon is offline  
Old July 13, 2010, 03:05 PM   #13
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,153
The best thing that could happen is they would apply the new, fundamental right status and equal protection, and say that the gun show must be permitted as long as the any one else is allowed to have guns on the property for lawful purposes.

As already pointed out, it is NOT a sensitive place as concealed carry permit holders are admittedly allowed.
maestro pistolero is offline  
Old July 14, 2010, 08:57 PM   #14
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Update!

A motion for supplemental briefing was filed in the Nordyke case today by Don Kilmer and Don Kates.

While highly unusual for a case at this late date, it is not unprecedented.
Al Norris is offline  
Old July 14, 2010, 09:14 PM   #15
Brian Pfleuger
Moderator Emeritus
 
Join Date: June 25, 2008
Location: Austin, CO
Posts: 19,578
That is some good stuff, right there. My favorite part....


Quote:
It is late in the game for either the County of Alameda (or the State of California for that matter) to claim that they “know” what the scope of the Second Amendment is, when they have maintained all along that it is a meaningless anachronism that does not define a fundamental right.

Hahaha! I love it.
__________________
Nobody plans to screw up their lives...
...they just don't plan not to.
-Andy Stanley
Brian Pfleuger is offline  
Old July 14, 2010, 10:09 PM   #16
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Yeah, that was footnote 3. Absolutely hilarious!
Al Norris is offline  
Old July 14, 2010, 10:23 PM   #17
csmsss
Senior Member
 
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
Wouldn't the trial court have ordered briefs anyway?
csmsss is offline  
Old July 20, 2010, 08:25 AM   #18
Bartholomew Roberts
member
 
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
According to the Volokh Conspiracy the Ninth Circuit has ordered the parties to brief the issue of how McDonald effects the case as well as any other issues that are related to the case, including the level of scrutiny.

Looks like the Ninth Circuit may be willing to take another look at the "sensitive places" issue despite the earlier ruling.
Bartholomew Roberts is offline  
Old July 20, 2010, 09:20 AM   #19
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
This is not entirely unexpected.

After theMcDonald decision was rendered, Don Kilmer filed a rule 28J letter. Then when the case was remanded, a motion for supplemental briefing was filed. From the news, it appears the motion was granted.

I read Eugenes comments. His analysis fails to account for the discrimination between guns at a gun show and guns and the Scottish Games. One is explicitly denied while the other is explicitly granted.
Al Norris is offline  
Old July 20, 2010, 10:17 AM   #20
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
I stand corrected! With a bit of legal tom-foolery, the court called for supplemental briefing, then denied the motion for supplemental briefing as moot.

The Court Order can be read here.

One chuckles when asking which came first!!
Al Norris is offline  
Old July 20, 2010, 10:30 AM   #21
Brian Pfleuger
Moderator Emeritus
 
Join Date: June 25, 2008
Location: Austin, CO
Posts: 19,578
Quote:
With a bit of legal tom-foolery, the court called for supplemental briefing, then denied the motion for supplemental briefing as moot.
What was the point in that nonsense?
__________________
Nobody plans to screw up their lives...
...they just don't plan not to.
-Andy Stanley
Brian Pfleuger is offline  
Old July 20, 2010, 06:30 PM   #22
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 18,434
Quote:
Originally Posted by peetzakilla
What was the point in that nonsense?
Brinksmanship.

"No, we didn't give them their motion. We made everyone do things OUR way!"
Aguila Blanca is offline  
Old July 20, 2010, 06:55 PM   #23
csmsss
Senior Member
 
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
Brinksmanship, probably - but they would almost certainly have ordered briefs anyway.
csmsss is offline  
Old July 20, 2010, 07:33 PM   #24
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,153
I am totally confused. The court ordered supplemental briefing and denied the request for supplemental briefing as moot? Why, because they ordered it up themselves? No need to grant a request for something that they ordered?
maestro pistolero is offline  
Old July 20, 2010, 09:50 PM   #25
Al Norris
Moderator Emeritus
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
I'm now thinking that the panel wants to expedite this case.

Consider, the motion would have required a response from Alameda and then a further response would have been filed Nordyke. Then the wait for further orals, should the panel want them.

Now however, both parties are ordered to file their supplemental briefs no later than 30 days from the order. The order also includes any amici that may be filed. Further, all briefs are to be no more than 15 pages. A future order will state the time and location of oral argument.
Al Norris is offline  
Reply

Tags
9th circuit , california , nordyke , second amendment

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:39 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2024, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2021 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Page generated in 0.06950 seconds with 10 queries