High-Profile Gun Rights Case Inches Toward Supreme Court

cbsnews.com ^ | August 25, 2009 | Declan McCullagh

[neverdem]

(IStockPhoto)

A federal appeals court on September 24 will hear a high-profile gun rights case that's a leading candidate to end up before the U.S. Supreme Court.

The U.S. Ninth Circuit Court of Appeals is likely to decide whether the Second Amendment's guarantee of a right to "keep and bear arms" restricts only the federal government -- the current state of affairs -- or whether it can be used to strike down intrusive state and local laws too.

A three-judge panel ruled that the Second Amendment does apply to the states. But now a larger Ninth Circuit panel will rehear the case, a procedure reserved only for issues of exceptional importance, which means the earlier decision could be upheld or overruled.

Two other circuits have said the Second Amendment does not apply to the states, a legal term known as "incorporation." If the Ninth Circuit's en banc panel continues to disagree with its peers, the Supreme Court almost certainly would step in.

The Ninth Circuit case involves Russell and Sallie Nordyke, who run a gun show business that would like to rent Alameda County's fairgrounds (the county includes Oakland and is across the bay from San Francisco). After being blocked, they sued. The author of the ordinance in question, then-county supervisor Mary King, actually claimed such shows are nothing but "a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

The hearing is set for 10 a.m. PT in the federal courthouse at 95 Seventh Street in San Francisco.

A few other items:

California Update: I wrote an article three months ago about a lawsuit filed by the Second Amendment Foundation and the Calguns Foundation saying routine denials of concealed carry permits violate the Second Amendment's right to bear arms. Oral arguments on a preliminary motion in that case are scheduled for the same day -- September 24 -- at 2 p.m. in Sacramento.

In a brief filed on Monday, Sacramento (one of the counties sued) says it wants more time to question the gun owners who filed the case to verify that they're in a position to sue. "Defendants seek to depose the individual plaintiffs on these issues to determine the basis of their alleged 'undisputed facts,' what process each plaintiff has engaged in to the end of obtaining a carry concealed permit in Sacramento County," it says.

Some Guns Are More Equal Than Others: Nobody has been hurt by the protesters who have legally carried guns to events where the president has been speaking, and I know of no evidence that they were even close enough to see the man.

Nevertheless, Eleanor Holmes Norton, the District of Columbia's non-voting Democratic rep in the U.S. House of Representatives, wants mandatory "gun-free zones around the president, his cabinet and other top federal officials," according to a report by the local Fox affiliate. Similarly, the Brady Campaign told CBS News that guns have no place at such an event.

It's Official: Congratulations to the Calguns Foundation for being awarded non-profit status by the IRS. Gene Hoffman, chairman of the Calguns Foundation, told me on Monday evening that the group is now officially a 501(c)(3) non-profit; previously, the non-profit status had been pending.

Montana Update: You may remember that a Montana state law seeks to challenge the federal government on the manufacture and sale of guns made entirely within the state. It takes effect on October 1. As soon that happens, according to Montana Shooting Sports Association president Gary Marbut, gun-rights types will have a lawsuit ready to file to prevent federal prosecution of local would-be gunsmiths.

"We have some strong arguments to make, including some that have never been argued before about the (U.S. Constitution's) Commerce Clause and the Tenth Amendment, as far as I know," Marbut told me on Monday.

Paging The Ninth Circuit: I just noticed yet another case in which a judge has declined to extend the Second Amendment to state or local laws. The case is called Slough v. Telb and arose out of a gun seizure in Ohio.

U.S. District Judge David Katz ruled on August 14: "The United States Supreme Court has never held that the Second Amendment is enforceable against the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Courts in other circuits have held that Second Amendment rights are not enforceable against the states under (civil rights laws). As the weight of authority holds that the individual right to bear arms may not be enforceable against the states, the constitutional right to do so is anything but clearly established."

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[neverdem]

Second Amendment cases up early

It appears that the 9th Circus is a day late and a dollar short.

[Sherman Logan]

Very odd. Everyone seems to take it for granted that all other Amendments were incorporated. I’m curious why some think the First and Fifth were and the Second wasn’t.

[scooter2]

If the Second Amendment does not apply to the states, then neither does the rest of the Bill of Rights.

[YouGoTexasGirl]

By what twisted logic could the 2nd amendment NOT apply to state and local government?

That’s like saying that your city could strip away your right to free speech, freedom of assembly, etc. even though the Feds can’t.

— Mr. YGTG (aka ‘Nervous Tick’)

[Gay State Conservative]

The U.S. Ninth Circuit Court of Appeals is likely to decide whether the Second Amendment's guarantee of a right to "keep and bear arms" restricts only the federal government -- the current state of affairs -- or whether it can be used to strike down intrusive state and local laws too.

What??????? The Heller case already **did** that.It affirmed that the Second Amendment applies to individual citizens as well as "the militia" and struck down at least one District of Columbia law/ordinance.

Lawyers...help me out here.Am I hallucinating or am I correct?

[Mojave]

Everyone seems to take it for granted that all other Amendments were incorporated.

False. Grand jury.

[Filo]

What??????? The Heller case already **did** that.

Actually Heller deliberately and specifically avoided the concept of incorporation (which is BS in and of itself, IMO.)

DC is not a state so any findings do not impact the states. As written the BOR does not curtail anything but the Federal Government. The 14th applied it (and the rest of the "privileges and immunities" in The Constitution) to the states.

Incorporation is just the courts saying "duh, when they said everything they meant this too?"

[Natural Law]

"If the Second Amendment does not apply to the states, then neither does the rest of the Bill of Rights."

The wording of the Bill of Rights agreed upon by the Founding Fathers was a very important debate. They were not sloppy or careless. Some of the Amendments had boundaries established in them, other did not. The First Amendment states that "congress shall pass no laws" but did not directly deal with the powers or limitations of the states with respect to the freedom of speech, assembly, etc. The Second Amendment is absolute in its language by stating "shall not be infringed".

[Publius Valerius]

It appears that the 9th Circus is a day late and a dollar short.

I'm not so sure. Let's say the full Ninth Circuit reverses the earlier panel decision. There would no longer be a circuit split, and much less reason for the Court to weigh in.

Besides, the Heller decision appears as if it was written in such a way as to ensure they could get Kennedy. Let's not be in a rush to create bad law.

[Publius Valerius]

As someone else has already pointed out, the right to a grand jury is “absolute” under the Fifth Amendment, but in my state, I can be charged on an information. Completely constitutional.

[Mojave]

The Second Amendment is absolute in its language by stating "shall not be infringed".

That tortured rationalization was unanimously rejected by the United States Supreme Court 176 years ago.

“Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”—Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

[Carry_Okie]

I’m curious why some think the First and Fifth were and the Second wasn’t.

Is this a rhetorical musing?

HERE is an exploration of the selective incorporation abomination.

[neverdem]

BANG! See the link in comment# 1.

The cases are National Rifle Association v. Chicago (08-1497 [1]) and McDonald v. Chicago (08-1521 [2]).

IIRC, by agreeing to hear those petitions, SCOTUS has "granted cert." Somebody correct me if I'm wrong.

[Gay State Conservative]

DC is not a state so any findings do not impact the states.

Don't know if you're a lawyer or not but....the District of Columbia,like every state,county and municipality,passes "laws" and enacts "ordinances" by means of its "City Council" and Mayor that are unique to the District.Laws/ordinances regarding littering...parking...taxation...snow removal...murder...etc,etc.

Yes,under Federal law DC is a unique governmental entity but,in this case at least,these seem like distinctions without a difference.

I would think that the Equal Protection clause just might apply here.

(GSC glances at his diploma from the Close Cover Before Striking School of Law)

[Busywhiskers]

If the County Supervisor thinks guns are worshiped as deities then the gun show people should argue first amendment free exercise of religion.

[Filo]

Don't know if you're a lawyer or not

Not guilty. :)

the District of Columbia,like every state,county and municipality,passes "laws" and enacts "ordinances" by means of its "City Council" and Mayor that are unique to the District.Laws/ordinances regarding littering...parking...taxation...snow removal...murder...etc,etc.

True. . .

Yes,under Federal law DC is a unique governmental entity but,in this case at least,these seem like distinctions without a difference.

Unfortunately there is no such thing as a distinction without a difference where lawyers are concerned. DC is not a state so any findings regarding DC don't automatically apply to the states.

That is specifically why this case and this set of defendants was selected.

I would think that the Equal Protection clause just might apply here.

It should, as should the Second and the 14th. But lawyers and judges must perform their masturbatory machinations before reality (as recognized by the rest of us) makes its way into The Law (tm).

[Joe Brower]

[neverdem]

Very odd. Everyone seems to take it for granted that all other Amendments were incorporated. I’m curious why some think the First and Fifth were and the Second wasn’t.

IIRC, all of the other amendments have been selectively incorporated in whole or in part by either the privileges and immunity clause or the due process clause of the 14th Amendment in specific cases before SCOTUS with the exceptions of the 2nd, 3rd, 9th and 10th Amendments. IIRC, most, if not all, were due process arguments.

[William Tell]

Mojave said: "False. Grand jury. "

Does your comment mean that you agree with the omission of the grand jury protection from application to the states under the Fourteenth Amendment?

If so, what is so distinctive about that particular protection that justifies such omission? Or are you simply pointing out that the unjustified exclusion of one protection has relevance to whether the Second Amendment is to be "incorporated"?

[Smokin' Joe]

It affirmed that the Second Amendment applies to individual citizens as well as "the militia" and struck down at least one District of Columbia law/ordinance.

But the Federal District is not a State. It only established home rule in the 70s, and does not have a vote in Congress.