As McDonald goes back to the 7th Circuit, what about Nordyke v. King in the 9th Circuit?

July 4th, 2010

In McDonald v. Chicago, the Supreme Court reversed and remanded the case back to the 7th Circuit, where Judges Posner, Easterbrook, and Bauer will get another bite at the apple, and this time, incorporate the 2nd amendment. But what about Nordyke v. King from the 9th Circuit? Nordyke was decided in April, 2009, and Judge O’Scannlain found that the 2nd Amendment should be incorporated through the due process clause. It would seem, after McDonald, that O’Scannlain was correct.

In July, the 9th Circuit vacated the panel opinion, and agreed to rehear Nordyke En Banc. That en banc oral argument was originally scheduled to take place during the week of September 21, 2009. On September 24, 2009, the Supreme Court deferred consideration of Nordyke until the Supreme Court disposed of Maloney, McDonald, and NRA v. Chicago. Here is Chief Judge Kozinski’s order:

Submission is vacated pending the Supreme Court’s disposition of Maloney
v. Rice, No. 08-1592, McDonald v. City of Chicago, No. 08-1521, and National Rifle Ass’n of Am., Inc. v. City of Chicago, No. 08-1497.

Cert was granted in McDonald v. Chicago on September 30, 2009, and the case was decided on June 28, 2010.

It would seem that the Supreme Court has disposed of Maloney, McDonald, and NRA. So what is the 9th Circuit’s next step?

The 9th Circuit already vacated the panel opinion (even though that opinion matches the holding in Heller). WIll the 9th Circuit just remand to the District Court to proceed in accordance with McDonald? We shall see.

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Update #2: Don Kilmer, who is counsel of record for the Nordykes and argued this case before the 9th Circuit commented below:

McDonald helps Nordyke in at least two ways.
(1) McDonald puts to rest the false distinction between “individual rights” and “fundamental rights.” The 3-judge panel rejected that argument in April 2009, but McDonald keeps the rest of the en banc panel from resurrecting it. Without any direct help from SCOTUS, this may be the only thing the Nordykes have to support a fresh look at the scrutiny question as it applies to the 2A in their case. (2) By rejecting the dissent’s “laboratory of democracy” argument when it comes to fundamental rights, it may be possible to get the 9th Circuit to take fresh look at the preemption argument that we lost back in 2002.