August 25, 2009 2:30 AM
High-Profile Gun Rights Case Inches Toward Supreme Court
Posted by Declan McCullagh .
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."