SCOTUS, Second Amendment: Less chance of review?

[tdyoung58]

http://www.scotusblog.com/wp/second-...ew/#more-10233

The chance that the Supreme Court might feel a need to resolve the most important question left open by last year’s ruling on gun rights under the Second Amendment may now have diminished. The conflict among lower courts that had made review seem a good deal more likely has now vanished, at least temporarily.

http://www.scotusblog.com/wp/second-...ew/#more-10233


If you don't troll this blog regular you should . . . daily

gotta know what they're up to ya'know

[LittleRedToyota]

yeah, i had the same thought on reading about the grant for en banc review.

there is still the chance that the en banc review will come to the same conclusion. the argument was well made. there is even the possibility that the en banc review will conclude not only that the 2nd applies to states, but that the ordinance actually is a violation of the 2nd--which would be the correct ruling given the actual definition of "shall not be infringed" (the panel let the ordinance stand based on an intellectually dishonest definition of the word infringe).

i also think SCOTUS might still want to review the issue even if the en banc review rules that the 2nd is not incorporated. the other circuits are relying on the logic of "SCOTUS hasn't incorporated the 2nd yet and only SCOTUS can do that", so they are almost a call for SCOTUS to review the issue as well.

and certainly it seems that much of the country wants SCOTUS to review the issue.

we will have to wait and see, i guess.

[pyld]

I have a bad feeling that an en banc review from the 9th Circus won't go well .

[press1280]

Although this en banc probably won't help, I think there's still a lot going for review of the McDonald case:
1) Privleges or immunities clause revisited(judges have been grumbling about this for some time now, one of whom is Clarence Thomas).
2) 34 amicus briefs from attorney generals(not something a run-of-the mill case would have).
3) Chicago's ban is nearly identical to that of DC's.
4) Cruikshank being overturned(read about the Colfax Massacre)

Only thing lost(at least temporarily) is a circuit split. The 2nd and 7th circuits are relying on discredited cases, and didn't put forth any good arguments WHY the 2nd amendment isn't incorporated like (most of) the rest of the Bill of Rights.
BTW-the chief justice of the 9th will be on the panel, he is very pro-gun.

[son of the revolution]

Ya know , there seems to have developed a real " awakening " recently in California in the gun rights community . Nor**** , OCing in San Diego , etc . With the Cheif Justice of the 9th being on our side , I wonder if the en banc could have been subtly " engineered " to revisit the mistakes they made the first time . Like others said , the 7th and 2nd Circuit decisions rested on last Century , discredited cases , even after the Supreme's specifically said to look at precedant of newer cases .

Then theres this apparently 10 page thread over at calguns

http://www.calguns.net/calgunforum/s...6&postcount=72


1. This is certainly annoying in that it does make our lives a bit more complicated over the next 11 months. However, for reasons I'll lay out, it actually isn't all that bad and is certainly temporary.

2. There are three and only three issues in Nor****:
a. Is the ordinance a violation of the First Amendment?
b. Is the 2A Incorporated via the 14A?
c. Does the ordinance violate the 2A per b.

3. Here is the really important thing to understand. 2.b. is a foregone conclusion. Everyone on both sides of our issue can count to 5. Cert will be granted on the issue in 2.b. Even though the 9th Circuit is moving quickly on Nor****, they really can't move quickly enough or actually be able to stop cert being granted in McDonald or NRA. The absolute best that someone on the other side could do is make things weirder here until June of 2010.

4. Since everyone can count to 5, the only real issues out there are a. and c. The 9th Circuit is pretty evenly split on the issue of gun rights. The first amendment issues don't stack neatly against the justices 2A predilections either. What very well may be happening here is that people who think this was wrongly decided on the 1A issues or on the "sensitive places" 2A doctrine may be in an odd coaltion with the anti-2A folks who just want to delay.

5. What this really means for Nor**** is that we're going to have a real chance to argue that the ordinance violates a strict scrutiny or intermediate scrutiny analysis as well as being a violation of the 1A. Incorporation is basically a moot point at this time due to the activity out of Chicago.

6. The impact on Pena is oddly limited. The State of California has opined that the 2A should be incorporated in an Amicus in the Chicago cases. As such, they're all but foreclosed in arguing that Pena should lose on "not incorporated" plus they've already filed their motion to dismiss. There certainly is now a risk that we lose in the district on incorporation, but that is a very short term "loss." Either way, we'll simply now have to make the native incorporation argument where we otherwise would have simply cited Nor****.

7. Sykes is similar in that the major change is just making the incorporation argument instead of citing Nor****.

The only real risk we all run is being a bit delayed depending on the relatively complex matrix of decisions and timing interplay between all the various cases and the Supreme Court calendar. The opportunity is that if there is any sort of recalcitrance on the part of the 9th circuit to take the 2A seriously (and I don't think there is), that should actually have the effect of strengthening a decision we'll otherwise be getting from the Supreme Court on incorporation.

The best thing is we have an opportunity to be heard on the real merits of Nor**** were we can address the failings of the panels' misinterpretation of the "sensitive places" doctrine.