Constitutional Law

Oral argument in Nordyke v. King

Audio here, in Windows Media Format. Great line by one of the judges, when the County advocate argued that while you can't physically have guns at a gun show, you still could offer to sell them, then consummate the sale off the county fairgrounds:

"I just have trouble with the concept that you can have a gun show so long as you don't show guns."

Hard to judge the three-judge panel's inclinations from the argument (although their handling of the appeal suggests they are at least open to 14th Amendment incorporation). Not a lot of questions. They ask the appellant's counsel, Don Kilmer, whether they are bound by the previous 9th Circuit ruling in Fresno Rifle, refusing to incorporate. On the other hand, a judge does tell the county advocate that he should discuss incorporation when he tries to sidestep it. And then the judge suggests that, while Heller does not decide incorporation, it argues at great length that the right to arms is fundamental, is deeply rooted in American history, etc.. County advocate dodges with argument that the Heller right to possess in the home may be fundamental, but here we deal with possession on government land. Judge comes back with, what if this gun show were in D.C., so incorporation isn't at issue, would the result be different? County advocate gets tripped up. (No time meter showing, but this is about 90% thru the argument). County advocate argues Heller sez the reason right to arms was codified was fear of federal tyranny, hence it should not apply to States.

Side questions as to whether, if they incorporate, they should rule on the ordinance in question, or send it back to the trial court to determine the ultimate question.

Full post as published by Of Arms and the Law on January 16, 2009 (boomark / email).