Constitutional Law

Nordyke v. King 9th Cir. incorporates 2nd

A tip from reader Alice Beard that 9th held 2d was incorporated in a ruling not yet posted. Will update.

UPDATE: here's the ruling.

On a quick read:

Court incorporates the 2A on a selective incorporation, due process, theory, holding that the right is a fundamental one, deeply rooted in Anglo-American history, and traditionally seen as a natural right rather than a politically-created one. Court declines privileges or immunities incorporation, as ruled out by Supreme Court case law.

Court holds, tho, that the regulation at issue (banning firearm possession, but only on county owned property) was a reasonable regulation, etc..

My read on strategic posture:

1) This means plaintiffs, the good guys, are the ones who can petition the Supreme Court for cert.. They may have won on incorporation, but they "lost" on the appeal overall, and thus are the ones who can appeal further. This is good for them. Defendants are not in control, cannot move for rehearing en banc, or decline to file for cert..

2) It may however make the case less cert-worthy, a little less appealing to the Supreme Court. Not quite so clean an issue, need to reach reasonable regulation which the Court may be unready to do.

UPDATE: Yep, it's binding in the 9th Circuit. Can be cited in other Circuits, which they would take into account, but doesn't bind them. Note that "binding" is often more theory than fact, since there are ways to get around a binding decision (distinguish it -- facts in this case are somewhat different from facts in that case -- or sometimes outright ignore it, or call for en banc review by all the judges in the circuit and try to get them to overrule the prior decision). And a well-reasoned opinion from one circuit can carry weight in others; this one will surely be cited in the Chicago case. And a circuit split, where some circuits go one way and others go another, is a good basis for asking the Supreme Court to take it on and settle the issue.

ANOTHER UPDATE: This shows you how, esp. in the 2A arena, guessing a judge as liberal or conservative, or Demo or Repub appointee, does little good. Two of the judges are Demo appointees. The concurrence, which is even stronger than the majority, and argues that an armed citizen can be an important resource against terrorism, is written by a Clinton appointee.

Full post as published by Of Arms and the Law on April 20, 2009 (boomark / email).