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With five judges protesting, the 9th U.S. Circuit Court of Appeals declined Monday to hear en banc a case that would have allowed it to revisit whether the Second Amendment gives individuals the right to own guns. In a lengthy dissent, the five argued that an earlier Second Amendment ruling was wrong and needed to be corrected. The en banc denial in Nordyke v. King, 04 C.D.O.S. 2885, is a victory for gun control advocates, who can continue to lean on the circuit’s 2002 ruling in Silveira v. Lockyer, 312 F.3d 1052. In Silveira, which challenged California’s restrictions on assault weapons, Judge Stephen Reinhardt wrote that the Second Amendment applies to militias and guarantees a collective right to bear arms, but doesn’t guarantee individuals’ rights. If a majority of the circuit’s 26 active judges had voted to take up Nordyke en banc, the court could have revisited the issues in Silveira. “Our court has erased 10 percent of the Bill of Rights for 20 percent of the American people,” wrote Judge Andrew Kleinfeld, one of the dissenters. “No liberties are safe if courts can so easily erase them, and no lover of liberty can be confident that an important right will never become so disfavored in popular or elite opinion as to be vulnerable to being discarded like the Second Amendment.” At least four other judges — including Diarmuid O’Scannlain and Ronald Gould, who signed the panel decision — voted with Kleinfeld to take the case en banc. One other, Judge Alex Kozinski, indicated he agreed with the dissenters, but suggested the court shouldn’t revisit the issue — yet. In his typical style, Kozinski contributed an 88-word concurrence that included no less than five Second Amendment puns: “triggered,” “misfired,” “shot down,” “militiate” and “bull’s-eye.” Kozinski wrote that “prudential considerations” weighed against hearing the issue so soon after the Supreme Court, in December, denied certiorari in Silveira. The rest of the lead 21-page dissent, written by Gould, served as a counterpoint to the Silveira decision. He also wrote a concurrence in Nordyke that criticized the Silveira decision. Nordyke was filed by gun show promoters challenging an Alameda County ordinance banning guns on county property. Although ostensibly a response to a nonfatal shooting at the county fair several years ago, the measure is broad enough that it outlaws commercial gun shows. San Jose, Calif., solo Donald Kilmer, who represents the gun show promoters, could not be reached for comment. In earlier interviews he has discussed wanting to get the issue before the U.S. Supreme Court. So far, though, the high court has dodged that bullet. Even though 9th Circuit judges in favor of individuals’ rights could not muster enough votes for the en banc, Monday’s ruling showed they, like advocates on both sides of the gun debate, have very strong feelings on the matter. But Eugene Volokh, a law professor at UCLA and advocate of individuals’ rights, said he doesn’t believe the 9th Circuit will take up the controversy again. Considering how many disparate circuit court opinions there are, it’s just a matter of time before the Supreme Court settles it, he said. Volokh said judges in other circuits will also pay attention to the 9th’s ruling. He said people should watch the Washington, D.C., circuit court because Washington has the most restrictive gun laws in the country. The big question, Volokh said, is “whether the D.C. circuit will be influenced more by the views of the majority or the dissent.”

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