9th Circuit sets aside 2ndA incorporation ruling . . .

[Will E Orwontee]

Is this a setback?

Or will an en banc hearing make the issue, no matter how it is decided, a more likely case for SCOTUS to take?

"A federal appeals court in San Francisco set aside its ruling Wednesday - the only one of its kind in the nation - that allowed private citizens to claim a constitutional right to bear arms in challenging state and local gun laws.

The Ninth U.S. Circuit Court of Appeals ordered a new hearing on a challenge by gun show promoters to a ban on firearms at the Alameda County Fairgrounds in Pleasanton. The plaintiffs say the ban, which county supervisors enacted in 1999, violates free speech and the constitutional right to possess guns.

A three-judge panel of the court ruled in April that the Second Amendment is binding on state and local governments and allows individuals to challenge a county ordinance as a violation of the right to guns.

"The right to bear arms is deeply rooted in the history and tradition of the republic," Judge Diarmuid O'Scannlain said in the 3-0 ruling.

But the court also said the Alameda County law was a valid public safety measure.

The gun show promoters prepared to appeal to the U.S. Supreme Court. But Wednesday, the full appeals court said a majority of its judges had called for a new hearing before an 11-judge panel, nullifying the April ruling."

San Francisco Chronicle http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/07/29/MNAA19177V.DTL

Personally I think NRA v Chicago is a stronger candidate for SCOTUS to hear and render a comprehensive decision. Nordyke raises interesting issues but since California has no RKBA provision in its own constitution they lazily relied on the "collective right" lower federal court holdings to validate their own laws. That entire perversion was overruled by Heller so there's really not a great deal to discover or further rule on.

NRA v Chicago is a much better case because Illinois and the 7th Circuit developed a significant body of precedent deciding the gun rights of those "protected" by a state RKBA provision that includes a qualifier / restrictive clause:

"Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Art. I, § 22 (enacted 1970)

One need not strain their brain to understand why such a "but not you" qualifier was included in this 1970 provision. The Democratic Convention unrest, political assassinations, Black Panthers marching armed in statehouses and of course, the race riots themselves were all in recent memory.

There is so much to examine and so much to rule on with a hearing of NRA v Chigago and I'm hoping that's the one that moves forward.

[derby378]

1. Agreed on NRA V. CHICAGO

This is not the least bit surprising from the 9th Circuit.

[TiredOldMan]

2. Most Overturned.

Not surprising from an appeals court that is overturned about 75% of the time. A monkey with a dart board would be more successful.

[TheWraith]

3. I don't know where the hell you heard that number, but it's wrong.

First, the 9th Circuit is not the most overturned appeals court. That's the 4th Circuit. Second, ANY appeals court is going to be upheld on 90+% of it's rulings, and I believe the 9th Circuit is around 94%.

[rfranklin]

4. Those are statistics filtered throught the NRA flacks...

If they can't distort it, they make it up.

[TiredOldMan]

5. You're Wrong

The SCOTUS reviewed 22 9th Circuit decisions in this year's session. 19 of those 22 decisions were overturned. I was generalizing when I said 75%. It is actually 86% of the time. Link is attached:

http://articles.latimes.com/2007/jul/11/opinion/oe-fitzpatrick11


They have a tough job and a wide area to cover, but the facts show that they get it wrong sometimes and I believe this is one of those times. It is a very slippery slope when the government decides which of our Constitutional rights we are "allowed" to have. I like the WHOLE Constitution.

[Statistical]

13. 94% on the 9th come on. It is common knowledge that the 9th is the most overturned circuit.

I didn't know the exact percentage but only a 6% overturn rate. Lol! Now who is making up numbers.

Ironically 94% is correct (or at least at the time of this article) but it is 94% overturned not 94% upheld.
http://www.post-gazette.com/pg/09186/981662-176.stm

[eallen]

17. SCOTUS takes up only a small fraction of cases

If you want to see how closely the 9th aligns with other courts and with case law, you need to look at all its decisions, not the very few that SCOTUS takes up to review. Those, by definition, will be the ones that SCOTUS are not happy to let sit.

:hippie:

[Statistical]

12. Another +1 on NRA V. Chicago

For 3 reasons:

1) The legal team is lead by Alan Gura (aka won Heller when most people didn't want the case to be heard).
2) The case is simpler. DC had gun ban = unconstitutional. Chicago has a very similar gun ban = unconstitutional?
3) The arguments are razor sharp and very focused. In the gunshow case they are trying to use a shotgun.
4) Gun for personal defense v. gunshows on public property. Chicago case has more appeal.

I hope SCOTUS hears NRA v. Chicago case. The only bad thing is the decision in the 9th was what I though would force the Chicago case to be heard. Split precedent is not something the SCOTUS can allow to stand.

[sharesunited]

6. Deeply rooted in the history and tradition of the republic.

Those chickens have come home to roost. 19yo worker at frozen custard store in Kenosha shot dead for fourteen dollars.

[proteus_lives]

8. More tales of "evil guns" influencing people to commit crimes.

Just can't blame the person pulling the trigger can you? Coward.

[sharesunited]

9. Yes, the person pulling the trigger is guilty. But his access to the gun is the problem.

The gun and the ammo.

[TiredOldMan]

10. Bad Logic

I guess spoons make people fat. Spoons must be outlawed.

[sharesunited]

11. There is fat, and then there is killed by bullets entering your body.

I see a difference. Even if force feeding is involved.

[eqfan592]

16. You may "see" a difference, but the logic is still the same.

Somebody puts that spoon to their mouths, just like somebody pulls the trigger. The problem is what a person is doing with the tools at hand, not with the tools themselves. Your problem has NOTHING to do with saving lives or lowering crime. You could care less how people die, you just hate guns. At least, that is the logic you apply day in and day out here. You somehow seem to think that a life lost because of a gun (even the life of a criminal in the act of committing a crime) is some how more tragic than a life lost in any other way (including a criminal stabbing/beating/etc. an unarmed victim to death). In order for you to say this is not correct, then you have to seriously reevaluate your logic.

But you're not going to do that, are you shares? Things like logic, reason, and facts mean as little to you as your typical religious zealot.

[Statistical]

14. Access to people who can pull a trigger over $14 is the problem. n/t

[gorfle]

15. The chickens never left.

Those chickens have come home to roost. 19yo worker at frozen custard store in Kenosha shot dead for fourteen dollars.

Since gunpowder dates to the 12th century, I'm pretty sure there was firearm crime in 1776.

[X_Digger]

7. En Banc review is actually good..

Much as I like the Nordyke ruling, I've always contended it's on shaky ground.

[russ1943]

18. A "reduces liklihood of review" opinion from a blogger.

Thursday, July 30th


SCOTUSBLOG's perspective



Second Amendment: Less chance of review?
The chance that the Supreme Court might feel a need to resolve the most important question left open by last year’s ruling on gun rights under the Second Amendment may now have diminished. The conflict among lower courts that had made review seem a good deal more likely has now vanished, at least temporarily.
On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws. The effect of that order, of course, was to vacate the panel decision. Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.
Three cases now awaiting the Court’s attention seek to raise the issue of whether Heller reaches the state and local level, too. Two are from the Seventh Circuit Court (in the same litigation): National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521), and one is from the Second Circuit Court: Maloney v. Rice (08-1592).
In each, the lower court had ruled that binding Supreme Court precedent meant that the Second Amendment applied only to federal enactments.



http://www.scotusblog.com/wp/second-amendment-less-chance-of-review/#more-10233