Oral Argument in 2nd Amendment case Nordyke v. King (Libertarian Kozinski v. Lefty Reinhardt)

The above link is to the audio of the en bank rehearing by the 9th Circuit of Nordyke v. King, a California case dealing with whether the federal individual Right to Keep & Bear Arms should be incorporated against the States. This argument took place just this morning.

I don't pretend to know all the facts & procedural history of this case, but what looks to be a good summary is provided by the CalGuns Foundation here.

The previously published 9th Circuit decision in Nordyke v. King (link to PDF), which the present en bank panel will uphold or reverse, held that:

1) Yes, the 2nd Amendment is incorporated against the States, however,

2) The challenged regulation - impacting "gun shows" on County property - is nevertheless consistent with the federal Right to Kep & Bear Arms.

I'm personally interested in listening to this because one judges on the panel - Judge Kozinski - was an advocate of the individual rights interpretation of the 2nd Amendment before it was cool, and before his view was vindicated last year by the Supreme Court's Heller decision. Here's Kozinski back in 2003, dissenting his colleagues' refusal to rehear a case - Silveira v. Lockyer (link to PDF) - in which the 9th Circuit denied a federal individual Right to Keep & Bear Arms:

The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few—were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The panel is: Kozinski, Pregerson, Reinhardt, O'Scannlain, Rymer, Hawkins, Graber, Gould, Tallman, M. Smith, Ikuta.

I mentioned Reinhardt in the title because he's a fairly notorious lefty - pretty much the public face of the 9th Circuit - and sure to be against the federal individual Right to Keep & Bear Arms. He also often gets into arguments with Kozinski, which are interesting and funny to listen to.

But I haven't listened to the audio myself yet. BTW, Judge Kozinski is the guy with the heavy East European accent.

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