What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?

(1) Even though the County won on the bottom line (its ordinance was upheld), it can still ask the Ninth Circuit to rehear the case en banc, in order to reconsider whether the Second Amendment is incorporated. What's more, other judges can by themselves ask for a rehearing en banc. If a panel decision is seen by some judges as containing an important legal error (or even as resolving a question that's so important that it needs to be reconsidered by more judges), the judges can vote for rehearing en banc in order to correct that error, never mind whether the bottom line was right. The judges, after all, would be laboring under the reasoning (and not just the bottom-line result) of this panel decision for years to come, since judges on one panel are supposed to be bound by the decisions of previous panels; they thus have an interest in making sure that the panel decision is right in its reasoning.

This having been said, I expect that rehearing en banc isn't very likely. First, such en banc review is always hard to get. Second, here at least two of the Democrat-appointed judges — Pregerson and Gould — have expressed their views that the right to bear arms should indeed be incorporated, Gould both here and in the Silveira v. Lockyer case, and Pregerson in Silveira. (Two other Democrat-appointed judges, Reinhardt and Fisher, stated in Silveira that "One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser" — the cases often cited as rejecting incorporation of the Second Amendment — "rest on a principle that is now thoroughly discredited"; but those judges also took the view that the Second Amendment only secured a collective right, and it's not clear whether they would reconsider their position now, following Heller.) Three Republican-appointed judges, Kozinski, O'Scannlain, and Kleinfeld, are likewise on the record as supporting incorporation.

For there to be a majority — 14 of the 27 active judges — for taking the case en banc, all of the 16 Democrat-appointed Ninth Circuit judges other than Pregerson and Gould would have to vote for en banc, or each Democrat-appointed defector would have to be balanced by a Republican-appointed vote for en banc. That's not impossible; some conservatives do indeed support gun controls, just as some liberals support gun rights. But it doesn't seem very likely. (Judge Alarcon, as a senior judge, can't vote on the en banc.)

(2) What about the Supreme Court? The county can't ask the Supreme Court to take the case, because it won below on the bottom line, which bars a certiorari petition (though not an intra-Ninth-Circuit suggestion for rehearing en banc). And if the gun shows petition for certiorari, it's not clear that the Court would want to take the case, since the issue on which they would be petitioning — chiefly the scope of the Second Amendment as applied to government property — is one on which there isn't yet a split among the circuits.

(3) But don't forget the nunchakus! The petition in Maloney v. Cuomo, a Second Circuit case decided January 28, 2009, is due in a bit over a week. [UPDATE: The filing deadline in Maloney has just been extended to June 26, and the name for the case in the Supreme Court is now Maloney v. Rice; thanks to Benjamin Wolf (Elliot Schlissel N.Y. Law Blog).] Maloney, who lost in the Second Circuit both on the incorporation question and on the bottom line, is certainly entitled to petition, and he's sure to stress the now-existing split between the circuits.

As I blogged earlier, my guess is that the Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. Moreover, the incorporation issue will surely arise in other circuits, mostly in cases involving more traditional arms, so the Court could decide to wait until then.

On the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments. Maybe four of the Justices will thus conclude that there's no time like the present to decide the incorporation issue, and will therefore agree to grant certiorari in Maloney (though not Nordyke).

Melancton Smith:
Aren't the Chicago cases further along in the pipeline that the nunchak case?
4.20.2009 3:46pm
Benjamin Wolf (mail) (www):
The deadline for the cert petition in the Nanchaku case, Maloney v. Rice (no longer Cuomo), was just extended today by Justice Ginsburg. See the full information at my post here:
4.20.2009 3:46pm
Melancton Smith:
Ah, right, I forgot they already lost in Appeals court.
4.20.2009 3:52pm
Frog Leg (mail):
This opinion makes pains to distinguish itself from Fresno Rifle, but it really implicitly contradicts it. Isn't the fact that there is now a conflict within the circuit make en banc review more likely?
4.20.2009 4:47pm
Now we wait for our robed masters to explain to us that it doesn't mean anything, because just about anything short of an outright ban is permissible.
4.20.2009 8:37pm
Maloney seems a very likely cert grant. The court didn't have to reach out the way it did on Heller, but it did. The issue will come up inevitably, is clean, and selective incorporation is particularly context free. Remanding on the arms in question makes plenty of sense in Maloney once the incorporation issue is spelled out.

I'm also going to go out on a limb and guess that SCOTUS not only takes Maloney, but that it affirms. Support for the gun right in Heller as evidenced by the opinion itself, is a mile wide and an inch deep on the Court.

While one can imagine a version of the Second Amendment right that is selective incorporation worthy, the one described in Heller is so circumscribed that it isn't worth much more to the average person than the federal right to a grand jury which wasn't incorporated. And, while conservatives may like the Nordyke result on incorporation, the opinion itself is everything that conservative legal minds love to hate -- flabby unsupported social science, inconsistent tests related to international law, and an end result that leaves the pro-gun plaintiffs kicked out of court on a motion for summary judgment. Conservatives also have a huge literature from Roe v. Wade about the risks of taking things out of the legislative sphere and into the judicial sphere. They may be winning concessions from small villages in Illinois now with threats of litigation, but what will they do when the laws they hate get a green light from the courts as reasonable regulations permitted under the Second Amendment after the big cities fight lawsuits in the courts?
4.20.2009 9:20pm
ohwilleke: Conservatives also have a huge literature from Roe v. Wade about the risks of taking things out of the legislative sphere and into the judicial sphere. They may be winning concessions from small villages in Illinois now with threats of litigation, but what will they do when the laws they hate get a green light from the courts as reasonable regulations permitted under the Second Amendment after the big cities fight lawsuits in the courts?

What will they do? Presumably fight the "reasonable regulations" legislatively, the same as they would have to if they hadn't taken the gun issue out of the legislative sphere and into the judicial sphere.
4.21.2009 12:46am
Soronel Haetir (mail):
I do have problems calling "Anglo-American" an international legal standard given that it simply describes the US' legal inheritance from England. Every bit of documentation the opinion uses from after the revolution is American in origin. As far as I can tell everything used in support after Blackstone came from the American side.

Not surprising if the revolutionary period is seen as a break with some practices of the past such as a legislature without any limit on power.
4.21.2009 7:15am
Jim Maloney (mail) (www):
Oh, oh, ohwilleke (4/20 post, above), I think you must mean "reverse," not "affirm." A binary error?

Anyway, I do hope the Supreme Court grants cert and reverses the Second Circuit in my case, which is now captioned Maloney v. Rice.

As for the question of whether a nunchaku is an "arm," I don't see any need for a remand, since Heller already decided what an "arm" is:

"The 18th-century meaning [of 'arms'] is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined 'arms' as 'weapons of offence, or armour of defence.' . . . Timothy Cunningham's important 1771 legal dictionary defined 'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.'" 128 S.Ct. 2783, 2791. (NOTE: This is not dicta because the Court necessarily reached the question of the definition of an "arm" to decide the case.)

For more propositions and sources of authority on issues arising in my case, see the pdf table I've created.

Jim Maloney
4.21.2009 10:34am
Ride Fast (mail) (www):
[...] Ninth Circuit Court chickens out on Second Amendment [...]
4.21.2009 12:57pm
Tony Tutins (mail):
'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.'

I hope the nunchaku was carried openly, lest it run into the holding of Aymette v. State, 2 Humphreys 154 (Tenn. 1840)


Nashville, December, 1840.

CONSTITUTIONAL LAW-Act prohibiting the wearing of a bowie-knife. The act of 1837, 137, 2 (Code, section 4746), making it a misdemeanor to carry a bowie-knife under the clothes, or concealed about the person, is not in violation of the constitution, article 1, section 26, securing to the citizen the right to keep and bear arms for the common defence.

Should I start shopping now for brass knuckles, switchblade knives, rubber truncheons, etc.?
4.21.2009 1:32pm
@Jim Maloney I mean hold that the Second Amendment is not incorporated which as I understand the Second Circuit decision would be to affirm it.

I don't think that the U.S. Supreme Court is really interested in opening up federal constitutional litigation over every state and local weapon control statute in the nation, even if they are willing to give a symbolic victory by overturning a D.C. ordinance and perhaps discouraging more strict federal gun control legislation.

It would be an easy out to say that it is an individual right to bear arms for self-defense, but that the right only extends to federal laws, leaving states to divise their own compromises.
4.21.2009 2:01pm
Jim Maloney (mail) (www):
OK, ohwilleke, got it. Thanks for the disambiguation (Wiki word).

You're right, I suppose, that a finding against incorporation would be an "easy out." Of course, it would have been even easier in the case of the First Amendment, which begins "Congress shall make no law," but the First has been fully incorporated for over a century now.

Perhaps my being an optimist is all that has kept me going this far.

I wonder how many on this forum have fully considered the distinction made in Heller between the right to "keep" arms and the right to "bear" arms in the context of incorporation. The former implies only having the weapon in one's home, which is the only aspect of NY's laws that I am challenging.

Since four justices can grant cert, but it takes five to decide the case, a simple "game theory" analysis means that four should vote to grant cert only if they believe a fifth will join in the actual decision in the way those four want to go.

Seems to me that Justice Kennedy could more reliably be counted on to be persuaded that the right to "keep" arms should be incorporated than would be the case with the right to "bear" (carry) arms...

Jim Maloney
4.21.2009 2:56pm
I suspect that the way the holding in Nordyke came out, the case will have little to no chance of being certworthy. But the Nordyke panel decision helps the chances of Jim Maloney's forthcoming cert petition quite a bit, since there's now a direct and irreconcilable split between the Second and Ninth Circuits on the incorporation issue. So the chances of SCOTUS resolving the incorporation question next term are suddenly looking a lot better.

And, yeah, in the interest of full disclosure, I'm the same pinhead who expressed semi-snarky skepticism on this blog about Maloney being a good first vehicle for the Supreme Court to address Second Amendment incorporation, only 6 weeks ago. Although I am sticking by my gut reaction that other questions like the definition of "arms" raised in Maloney might ultimately cause problems -- problems that won't be present if/when the Chicago gun ban cases eventually go up.
4.21.2009 5:05pm

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