Nordyke (California)

[krucam]

Nordyke is still alive unfortunately. This order doesn't constitute a Decision.

This case is a Zombie that won't die...

 

[esqappellate]

So what happens to all the CGN cases that were stayed pending Nordyke?

They sit. And sit. And sit....

 

[krucam]

The "Paperwork" to start the settlement conference call (required before you officially enter into the Mediation Program, I assume). Pfffttt..

April 13 telcon.

I don't recall any Circuits outside the 9th doing this Mediation stuff. I'll bite my tongue and move along now...

 

[Al Norris]

Calling for exercise of the Court's supervisory powers? Interesting idea.

Couldn't be any worse than what they have now. Might even get a Per Curiam answer within a week!

 

[esqappellate]

Couldn't be any worse than what they have now. Might even get a Per Curiam answer within a week!

That would be rich. The 9th Circuit seems to get more than their fair share of those. Indeed, I think they have the corner on that market.

 

[esqappellate]

The "Paperwork" to start the settlement conference call (required before you officially enter into the Mediation Program, I assume). Pfffttt..

April 13 telcon.

I don't recall any Circuits outside the 9th doing this Mediation stuff. I'll bite my tongue and move along now...

All the circuits have a mediation program. It is the in thing. And the 9th Circuit mediation program is actually very well run. No slap at them, for sure. But, what the en banc court did here is really quite bizarre. In all my 37 years of appellate practice, I have never heard of a panel, much less an en banc court, ordering the parties to mediation *after* oral argument, especially in the absence of any motion from any party asking for it. Jeeez. Judge Kozinski is right. It makes them look foolish. The parties and counsel are all going to die of old age before this case gets resolved. It even made Scotusblog. com. http://www.scotusblog.com/2012/04/major-gun-case-shunted-aside/#more-142570

 

[Al Norris]

That would be rich. The 9th Circuit seems to get more than their fair share of those. Indeed, I think they have the corner on that market.

My opinion on this matter is based solely on what the SCOTUS said in Cavazos v. Smith, where the Court, for the third time (this time a PC ruling), reversed and remanded the same case! This was also the first case out of the gate in this session.

Pretty obvious that the SCOTUS is getting fed up with what the 9th is doing.

Oh, Good link to Lyle Denniston. I don't always agree, but he is always a good read.

 

[esqappellate]

My opinion on this matter is based solely on what the SCOTUS said in Cavazos v. Smith, where the Court, for the third time (this time a PC ruling), reversed and remanded the same case! This was also the first case out of the gate in this session.

Pretty obvious that the SCOTUS is getting fed up with what the 9th is doing.

Oh, Good link to Lyle Denniston. I don't always agree, but he is always a good read.

Yes, I saw Cavazos when it came out. Not the first time that the Court has admonished the 9th. Probably won't be the last either. Not even the dissenters could actually muster a case that the 9th was actually right, only that cert should not have been granted and/or not disposed of summarily. I like to read what Lyle writes (I check that site every day during the Term). He doesn't much hide his preferences, but he does a pretty good job notwithstanding.

 

[Al Norris]

No, it's not the first time. But I believe this is the first time that the Court has admonished the same panel, for the same case, 3 times in a row. Of course, since I've only been (studiously) watching this stuff since the Raich case, I could be wrong on that, also.

 

[Patrick]

Judge Kozinski's frustration is shared. Do we know the results?

Not yet, but keep in mind his views from the Ninth's refusal to re-hear Silveira v Lockyer en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or… the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases -- or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon -- a sawed-off shotgun -- was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion -- popular in some circles -- that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth -- born of experience -- is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341- 42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees*. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.​

The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed.

I find it telling that on the eve of deciding Nordyke (again/finally?) that the anti-gun jurists force mediation as the pro-rights judges push for release of the decision.

 

[Boxcab]

Patrick,

Thanks for that read. I'm glad to see all is not lost in the 9th.

 

[krucam]

Patrick,

Thanks for that read. I'm glad to see all is not lost in the 9th.

It is a beautifully written piece. It is ironic that it is the 9th Circuit's Chief Judge writing it. It is unfortunate the rest can't "see the light".

Chief Judge Kozinski's parents are both Holocaust survivors from Romania. It likely explains his passion...

 

[esqappellate]

No, it's not the first time. But I believe this is the first time that the Court has admonished the same panel, for the same case, 3 times in a row. Of course, since I've only been (studiously) watching this stuff since the Raich case, I could be wrong on that, also.

Yes, I think you are right about the 3 times in a row being unique. Usually it only takes twice....

 

[esqappellate]

Judge Kozinski's frustration is shared. Do we know the results?

Not yet, but keep in mind his views from the Ninth's refusal to re-hear Silveira v Lockyer en banc:

I find it telling that on the eve of deciding Nordyke (again/finally?) that the anti-gun jurists force mediation as the pro-rights judges push for release of the decision.

That dissent is well known in the biz. It ought to be required reading for law students.

 

[krucam]

Opinion is Out

The County must allow gun shows on County property.

Nothing of note on level of scrutiny for 2A as was anticipated.

http://calgunsfoundation.org/resources/litigation/nordyke_v_king/07-15763 Nordyke Opinion 6-1-12.pdf

A decade of court time, appeals, lawyers....all for a kiss from your sister...

 

[EL1227]

The County must allow gun shows on County property.

Nothing of note on level of scrutiny for 2A as was anticipated.

http://calgunsfoundation.org/resources/litigation/nordyke_v_king/07-15763 Nordyke Opinion 6-1-12.pdf

A decade of court time, appeals, lawyers....all for a kiss from your sister...

But did they slip her some tongue ?

If this is played right, the over-taxed sheeple of California should be asking hard questions of why it took their public officials so long to come to a decision that could have been made without legal action.

What a waste ... well except for that kiss.

 

[Boxcab]

So, does this free up any other cases to now continue?

 

[krucam]

So, does this free up any other cases to now continue?

Undoubtedly. Filings were already in the works in Peruta to unstay, this before Nordyke was released. Back to work...

 

[Maestro Pistolero]

Pay day for Don Kilmer?

I think even the county will be so glad to have this behind them that piling on of new, unusual restrictions is unlikely, at least until they get their bill!

Each justice characterized the 11th hour consessions as broad, sweeping, etc:

The County now avers that a gun show is an event within the meaning of the exception . . . . We hold the county to it's interpretation of the ordinance, . . .

Twelve years into this appeal, the County now represents that its ordinance presents no barrier to conducting gun shows. Contrary to its previous assertions, the County now concedes . . .etc, etc,

The County's sweeping concession - made at oral argument before the en banc court - change the game and make this a far different case from the one argued before the three judge panel.

In light of the breadth of the County's concessions at oral argument, I am satisfied that the ordinance, as applied to Plaintiff's gun shows and as now interpreted by the County, survives this [undue burden] standard

Looks to me like Don's going to get paid. May it cause an undue burden on the county coffers.

 

[press1280]

With this hurdle out of the way, Peruta and Richards can move forward. I believe they've also been fully briefed so we should have orals being scheduled soon.