Ninth Circuit Will Rehear Nordyke v. King En Banc:

That’s the decision in which the Circuit held that the Second Amendment was incorporated against the states, and also that counties could — despite that — bar guns from county property (at least the fairgrounds and the fairground parking lots involved in that particular challenge).

As is usual with decisions to take the case en banc, the order provides that “The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.” This technically means that there’s no longer a circuit split on the subject, which diminishes the likelihood of Supreme Court review of the Second and Seventh Circuit decisions rejecting incorporation. (The Seventh Circuit decision involved the Chicago handgun ban.) But those two circuit decisions stressed that they felt themselves bound by Supreme Court precedent. That precedent is old and inconsistent with modern incorporation approaches (as D.C. v. Heller itself acknowledged). And over two thirds of the states (including California) support certiorari on this question, and support incorporation. This suggests that there’s still a very good chance that the Court will agree to hear the incorporation issue, notwithstanding the Ninth Circuit’s decision to review the matter en banc.

At the same time, I should acknowledge that I had wrongly predicted that the case probably wouldn’t be taken en banc. So please view my other guesses about what courts will do with suitable skepticism.

UPDATE: According to the Ninth Circuit, “En banc oral argument will take place during the week of September 21, 2009.”

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