Font Size: 
9th Circuit Reconsiders Controversial Gun Rights Case
The Recorder
September 25, 2009
En banc arguments in a controversial gun rights case were animated Thursday, but don't be surprised if the 9th U.S. Circuit Court of Appeals sits on this one for awhile.
A federal appellate court in Chicago said in June that the Second Amendment should not restrict state gun control laws until the Supreme Court rules that the right binds the states. The high court is scheduled to make up its mind next week about whether to grant cert.
"That may well give us an answer, and there would be no need for us to decide this case," 9th Circuit Judge Stephen Reinhardt said. Judge Susan Graber also wondered aloud at another point whether the circuit needed to rule on the constitutional issues.
A 9th Circuit panel disagreed with the 7th Circuit and found in an April ruling that the Second Amendment should apply more broadly. However, the three-judge panel still upheld an Alameda County, Calif., gun control ordinance, which prohibited firearms in sensitive public places and put the kibosh on a gun show at the county fairgrounds.
At the en banc arguments, Judge Diarmuid O'Scannlain, who wrote the panel opinion, brought up California Attorney General Jerry Brown. Brown filed a brief in the 7th Circuit case, taking the side of the National Rifle Association.
"Do you disagree with your own state attorney general?" he asked a lawyer representing the county.
"Yes. Yes I do," replied Sayre Weaver of Richards, Watson & Gershon.
"I won't tell him when I see him," quipped Chief Judge Alex Kozinski, breaking up the courtroom. To which Weaver turned and gestured toward the galleries packed with spectators and press: "I have a feeling he'll find out somehow."
Brown didn't file any briefs in the California case, but his 7th Circuit brief disappointed gun control advocates. Earlier this week his office called it a "common-sense" approach to gun control and the Second Amendment.
The 9th Circuit appeared split on how far to go with the Second Amendment. Liberal stalwart Judge Harry Pregerson lambasted gun show attorney Donald Kilmer Jr., asking whether there would be more guns in California if Kilmer's side prevailed.
"What is the hidden agenda here?" Pregerson demanded, prompting O'Scannlain to shake his head with disdain.
"I don't know that there's a hidden agenda," Kilmer said, adding that a broad interpretation of the Second Amendment may not necessarily mean an increase in gun ownership.
Kozinski posed tough hypotheticals to both sides. To Kilmer, he persistently asked whether his clients could simply find somewhere else -- on private property, for instance -- to hold their shows. Kilmer replied that their business model was based on using county fairgrounds.
"You know, people do change business models with changing conditions," Kozinski said.
To the county, Kozinski queried why fairgrounds are such sensitive places. Because large gatherings raised crowd control concerns, Weaver replied.
