Taking Liberties
August 25, 2009 2:30 AM

High-Profile Gun Rights Case Inches Toward Supreme Court

A federal appeals court on September 24 will hear a high-profile gun rights case that's a leading candidate to end up before the U.S. Supreme Court.

The U.S. Ninth Circuit Court of Appeals is likely to decide whether the Second Amendment's guarantee of a right to "keep and bear arms" restricts only the federal government -- the current state of affairs -- or whether it can be used to strike down intrusive state and local laws too.

A three-judge panel ruled that the Second Amendment does apply to the states. But now a larger Ninth Circuit panel will rehear the case, a procedure reserved only for issues of exceptional importance, which means the earlier decision could be upheld or overruled.

Two other circuits have said the Second Amendment does not apply to the states, a legal term known as "incorporation." If the Ninth Circuit's en banc panel continues to disagree with its peers, the Supreme Court almost certainly would step in.

The Ninth Circuit case involves Russell and Sallie Nordyke, who run a gun show business that would like to rent Alameda County's fairgrounds (the county includes Oakland and is across the bay from San Francisco). After being blocked, they sued. The author of the ordinance in question, then-county supervisor Mary King, actually claimed such shows are nothing but "a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

The hearing is set for 10 a.m. PT in the federal courthouse at 95 Seventh Street in San Francisco.

A few other items:

California Update: I wrote an article three months ago about a lawsuit filed by the Second Amendment Foundation and the Calguns Foundation saying routine denials of concealed carry permits violate the Second Amendment's right to bear arms. Oral arguments on a preliminary motion in that case are scheduled for the same day -- September 24 -- at 2 p.m. in Sacramento.

In a brief filed on Monday, Sacramento (one of the counties sued) says it wants more time to question the gun owners who filed the case to verify that they're in a position to sue. "Defendants seek to depose the individual plaintiffs on these issues to determine the basis of their alleged 'undisputed facts,' what process each plaintiff has engaged in to the end of obtaining a carry concealed permit in Sacramento County," it says.

Some Guns Are More Equal Than Others: Nobody has been hurt by the protesters who have legally carried guns to events where the president has been speaking, and I know of no evidence that they were even close enough to see the man.

Nevertheless, Eleanor Holmes Norton, the District of Columbia's non-voting Democratic rep in the U.S. House of Representatives, wants mandatory "gun-free zones around the president, his cabinet and other top federal officials," according to a report by the local Fox affiliate. Similarly, the Brady Campaign told CBS News that guns have no place at such an event.

It's Official: Congratulations to the Calguns Foundation for being awarded non-profit status by the IRS. Gene Hoffman, chairman of the Calguns Foundation, told me on Monday evening that the group is now officially a 501(c)(3) non-profit; previously, the non-profit status had been pending.

Montana Update: You may remember that a Montana state law seeks to challenge the federal government on the manufacture and sale of guns made entirely within the state. It takes effect on October 1. As soon that happens, according to Montana Shooting Sports Association president Gary Marbut, gun-rights types will have a lawsuit ready to file to prevent federal prosecution of local would-be gunsmiths.

"We have some strong arguments to make, including some that have never been argued before about the (U.S. Constitution's) Commerce Clause and the Tenth Amendment, as far as I know," Marbut told me on Monday.

Paging The Ninth Circuit: I just noticed yet another case in which a judge has declined to extend the Second Amendment to state or local laws. The case is called Slough v. Telb and arose out of a gun seizure in Ohio.

U.S. District Judge David Katz ruled on August 14: "The United States Supreme Court has never held that the Second Amendment is enforceable against the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Courts in other circuits have held that Second Amendment rights are not enforceable against the states under (civil rights laws). As the weight of authority holds that the individual right to bear arms may not be enforceable against the states, the constitutional right to do so is anything but clearly established."

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

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Add a Comment
by proseshooter August 25, 2009 4:49 PM EDT
Lets see if I understand the 9th circuits's latest idiocy. Freedom of speech applies to all states. Search an seizure protection applies to all states. The right to remain silent applies to all states. The right to vote applies to all states. But the right to possess firearms does not. Instead of changing healthcare, lets overhaul our judicial system. I am speaking as a lawyer.
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by Illhunter August 26, 2009 2:52 PM EDT
As a non lawyer, I concurr. I recommend, should the USSC find against incorporation that the tree of liberty be watered. No greater question faces this republic. Will the citizens see the disembowling of the Constitution for what it is, or continue to graze? Baaa!
by Illhunter August 26, 2009 3:02 PM EDT
The 7th decision to not "see" Heller and wait for the USSC to change course, speaks to the stupidity sitting on the federal bench. See also their decision 06-1363 Parveen Idiris etal v City of Chicago ie: "Is it rational to fine the owner rather than the driver: Certainly so. A camera can show reliably which cars and trucks go through red lights but is less likely to show who was driving. That would make it easy for owners to point the finger at friends or children - and essentially impossible for the City to prove otherwise. A system of photographic evidence reduces the costs of law enforcement and increases the proportion of all traffic offenses that are detected; these benefits can be achieved only if the owner is held responsible." Statist Crap!
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by Illhunter August 26, 2009 3:06 PM EDT
Easterbrook's socialist bent is evident in both decisions, Idiris and NRA.
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by Grommit1978 August 26, 2009 8:05 PM EDT
I agree with proseshooter. I would recommend that if we depart on this one issue that we reverse course on all other "incorporated" issues -- heck, lets get rid of cruel and unusual punishment and return to courthouse hangings...Afterall, you can't pick and choose which laws we want to agree with, and which we do not.
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by Ragnar4972 August 26, 2009 9:30 PM EDT
As a non-attorney, it strikes me that if the second amendment to the US Constitution does NOT apply to the states, then one could credibly argue that none of the amendments apply to the states. If that is the case, then there goes the Constitution out the window, and anarchy or tyrany reigns.

Am I missing something here??
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by troy_in_fw August 27, 2009 8:06 AM EDT
I do not claim to understand all of this but I hear people talk about "Watering The Tree of Liberty" when they think the government is going to infringe on our right to keep and bare arms. What about religion, abortion, affirmative action, healt care, the fact the President will not release his birth certificate? One is just as important to me as the other. I have a CHL. I am a member of the TSRA and the NRA. My whole family is in the shooting sports. If this is what has to happen before men get off of thier rears and protect our GOD given rights and the rights set forth in our Constituion then I hope it happens. We should be fighting them now! All they are going to do is brain wash a generation of children to believe that guns are evil and then have them had them in if the future. We need to set the presidence NOW!
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by Ride_Fast August 27, 2009 10:43 AM EDT
[...] Concealed carry lawsuit in Sacramento [...]

This is a really important case, too bad we have to fight the state legislature this way.

RF at Ride Fast & Shoot Straight
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Declan McCullagh's iconoclastic take on politics, the economy, and individual rights. (Iconoclast: From Medieval Latin "iconoclastes," and from Middle Greek "eikonoklast's," meaning image destroyer.) Sample topics: economy, politics, interviews, free speech, property rights, gun rights, lessons in economics, individual rights, interviews, technology, features.

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