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Second Amendment: Less chance of review?

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.

Without a conflict, the Supreme Court may wish to wait for the issue to percolate further in lower courts.  The issue also roiled the nomination hearings for Justice-designate Sonia Sotomayor, perhaps raising the sensitivity of the issue to the point that the Court might be reluctant to take it on when the lower courts are not in disagreement on it.

On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws.  The effect of that order, of course, was to vacate the panel decision.  Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.

The Ninth Circuit will rehear the issue during the week of Sept. 21, before an 11-judge en banc Court.  It is by no means certain that the majority will take the same view as the three-judge panel had in April.  At the same time, the vote to reconsider the issue does not necessarily mean that the full Court will rule the other way; it does signal, though, that members of the Court deem the issue sufficiently important to have it tested before a larger court.

In its 2008 decision in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment “right to keep and bear arms” embraced a personal right to have a gun for self-defense, at least in the home.  The Court, however, noted it was not deciding whether that right applied to state and local government gun laws; at issue in that case was a handgun ban in the federal enclave of Washington, D.C.

Three cases now awaiting the Court’s attention seek to raise the issue of whether Heller reaches the state and local level, too.  Two are from the Seventh Circuit Court (in the same litigation): National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521), and one is from the Second Circuit Court: Maloney v. Rice (08-1592).

In each, the lower court had ruled that binding Supreme Court precedent meant that the Second Amendment applied only to federal enactments.  The Maloney case from the Second Circuit got a quite thorough airing during Judge Sotomayor’s nomination hearings, because she sat on the Circuit panel that decided the case in a brief opinion. Her role has prompted the NRA to take a strong stand against Senate approval of her nomination to the Court.

In the Ninth Circuit Court now to be reheard, Nordyke v. King (Circuit docket 07-15763), the panel ruled that the Second Amendment does apply to local gun restrictions, but it still upheld a county ordinance banning guns from public property in Alameda County, Calif., because the panel said the Supreme Court in Heller had allowed gun restrictions in “sensitive places.”