Image courtesy of the Violence Policy Center
The 9th U.S. Circuit Court of Appeals just agreed to host another shootout over gun rights.
The court decided Wednesday to review en banc a panel ruling that had significantly broadened Second Amendment protections by applying them to state and local governments. This holding, arrived at by Judge Diarmuid O'Scannlain, is at odds with other rulings from around the country -- including one penned by 2nd Circuit Judge Sonia Sotomayor.
The 9th Circuit panel had still upheld an Alameda County, Calif., ordinance that forbids a gun show at a public fairground. Thus neither side had asked for en banc review.
"I suppose they were both afraid of what could happen," said Arthur Hellman, a professor at the University of Pittsburgh School of Law.
Hellman speculated that pro-gun control forces on the 9th Circuit may be seeking to resolve the circuit split now, which would relieve some of the pressure on the U.S. Supreme Court to weigh in.
O'Scannlain found that the U.S. Supreme Court's 2008 decision in District of Columbia v. Heller, 128 S.Ct. 2783, should allow the right to bear arms to be treated as one of due process under the Fourteenth Amendment -- and thus binding on state and local governments.
"The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited," he wrote in April.
However, where the D.C. statute at issue in Heller forbids guns in the home, O'Scannlain recognized the need to regulate firearms in "sensitive places" like a fairground with 4,000 people milling around. Judge Ronald Gould and Senior Judge Arthur Alarcon, who were both picked by Democrats, voted with O'Scannlain, a Reagan appointee.
"The recognition of the individual's right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry," Gould wrote in a concurrence.
Attorneys involved in the case reacted cautiously to Wednesday's order. San Jose, Calif., solo Donald Kilmer Jr., who represents the plaintiff gun show promoters, struck an optimistic tone.
"Perhaps the liberal members of the court will want to interpret the Second Amendment liberally," he said.
Alameda County Counsel Richard Winnie referred questions to outside counsel T. Peter Pierce, of Richards, Watson & Gershon in Los Angeles.
"It's the county's position that the panel did not need to reach the issue of whether the Second Amendment is incorporated to apply to state and local governments," Pierce said. "It's the county's hope that that's what attracted the court's attention."
Added Pierce: "It's our fervent hope the en banc call was not to review the constitutional validity of the ordinance."
En banc arguments are slated for the week of Sept. 21 in San Francisco. The case is Nordyke v. King , 08 C.D.O.S. 4634.
