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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).

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