Guns, dicta and “sensitive places”
on Jun 13, 2009 at 5:27 pm
The Supreme Court already has two cases it could use for a new look at the scope of gun rights under the Second Amendment, another case is on the way, and now, perhaps before long, there could be a fourth.  The Ninth Circuit Court has received new briefs strongly urging it not to rehear en banc the case of Nordyke, et al., v. King, et al. (docket 07-15763), and one brief that is lukewarm on the subject, saying only that further — but only partial — review “would be useful.”
Each of the cases now at the Court or on the way focuses focus singly, or mainly, on whether the Second Amendment individual right to have a gun for self-defense at home restricts gun control laws at the state and local government level, not just federal laws. It is an issue the Justices mentioned but did not decide in their rulng last Term in District of Columbia v. Heller, recognizing the new individual right “to keep and bear arms” at least in some private surroundings.
Already at the Court are petitions in National Rifle Association v. City of Chicago (08-1497) and McDonald v. City of Chicago (08-1521), and on the way is a petition challenging a Second Circuit ruling in Maloney v. King — due to be filed by June 26. In those cases, the Seventh and Second Circuits found that, under binding Supreme Court precedent, the Second Amendment only applies to federal laws.
The Justices are not expected to act on any of the new cases before they recess for the summer near the end of this month. But all could be up for consideration fairly early in the new Term starting in October.
After a Ninth Circuit panel in May became the first federal appeals court to rule that the individual right applies to states, counties and cities, that Court — at the urging of one of its judges — called for new briefs on whether it should review that decision before the full en banc Court. With the briefs now in, the Court can decide whether to reconsider Nordyke.
The two opposing sides filed their briefs on that question last Monday, and on Thursday, the NRA sought to join in as an amicus. (The briefs can be downloaded from the Ninth Circuit’s website for those with a PACER account, under docket 07-15763, entries 88, 90 and 93.) If that Court votes to leave the panel ruling intact, the next step for this case would be the Supreme Court, since an appeal is likely, either way.
The Nordyke case involves the validity of an Alameda County, Calif.,  ordinance that bans all guns and ammunition from county property — a law that applies to gun shows on the county fairgrounds as well as gun possession at parks, recreational areas, and historic sites. The Ninth Circuit panel, while finding that the Second Amendment does apply to county laws, upheld the Alameda ordinance.
The Circuit Court panel ruling was attacked, for varying reasons, by all sides, and by the NRA.
Alameda County argued that the only live issue in the case was the county’s authority to regulate the use of its own property. Thus, it contended, it was mere “dicta” for the Circuit Court to pass on the question of the Second Amendment’s application to the ordinance. “Lawmaking through dicta has no constitutional legitimacy,” it declared.
 An exception to the Amendment recognized by the Supreme Court in Heller — that guns may be banned or controlled in “sensitive places” – insulated Alameda’s ordinance, the county argued.
The opinion’s treatment of the Second Amendment, the county brief asserted, “is plainly superfluous to its holding….The panel could have, and should have, disposed” of the issue over applying the Amendment to state and local government by noting that, even if the right did so apply, the county ordinance was outside the scope of that right.
Since, it argued, the Circuit Court was right in upholding the county law, there is no need for en banc review. But, it went on, the panel’s treatment of the Second Amendment issue “creates the potential for substantial confusion,” perhaps leading people to believe that it actually ruled on that question. If the Court thinks there is a risk that the panel ruljng will be misread on that point, rehearing should be confined solely to the issue of whether the Second Amendment does apply below the federal law. The brief then proceeded to argue against that application.
The gun rights (and gun show) enthusiasts who favor full protection of their Second Amendment right, and believe that the right suffers under the Alameda ordinance, argued that the Circuit Court was correct in extending the right. Thus, their brief asserted, en banc review should be denied on that specific point.
Although this case is an “exceptionally important one,” the brief said, the full Circuit Cort “should not disturb the panel’s well-articulated affirmation of this right as applied to state action.”
Still, it suggested, “en banc consideration would be useful to correct the errors by the panel that lead to a practical defeat of he right for a group of law-abiding citizens who want to conduct safe and historically well-regulated gun shows in a public forum.” If further review is granted, the gun rights groups asked for additional briefing.
Their complaint focused heavily on the panel’s finding that county property was a “sensitive place” from which all guns could be banned without running afoul of the Second Amendment right. The Supreme Court’s discussion of exceptions to that right, the brief insisted, was itself mere “dicta.”
The brief submitted by the National Rifle Association argued that the Circuit Court’s ruling on the sweep of the Second Amendment, to take in state and local laws, “is in perfect harmony” with the Supreme Court’s Heller decision.
Once the Supreme Court recognized an individual right, this brief asserted, “its eventual application to the states became inevitable.”
Still, the filing said, if the full Circuit Court is prepared to rehear the case en banc, it should confine its review solely to the question of whether a ban on guns on all county property goes too far, and thus violates Second Amendment rights. The Supreme Court acknowledged government power to keep guns out of “sensitive places,” the brief conceded but it argued that this exception “can only apply to places like jails, prisons, mental institutions, schools and government buildings.”
If the Circuit Court does examine the case further, the brief suggested, it should uphold the Second Amendment finding and send the case back to the District Court to gather further facts on whether all county properties are places where introducing guns would pose special problems. There was no proof of that, it said.
