Major gun case shunted aside
A long-running, major court battle over gun rights — started even before the Supreme Court established a constitutional right to have a gun — has been pushed aside at least temporarily by the Ninth Circuit Court. It is the well-known “Nordyke” case, long seen as a major test case on the right to have access to guns outside the home and, in particular, the right to hold gun shows on public property. An attempt to mediate the dispute has now been ordered.
The case of Nordyke, et al., v. King, et al. (Circuit docket 07-15763) — initially filed in 1999 — has been to the Supreme Court (but review was denied there in 2004). It remains undecided in a final way. It was on its second trip before an 11-judge en banc panel of the Ninth Circuit when the mediation order came down on Wednesday.
The en banc Court had held a hearing on the case March 19, and was apparently well advanced in working on an opinion. One of the judges implied that he and his colleagues knew how the case was going to come out, arguing that the court should have attached to its order to mediate “a copy of a proposed disposition…so that the parties would know what they would face in the event mediation fails.” That judge, Milan D. Smith, Jr., gave no hint of what that outcome might have been. Two judges dissented, saying they wanted “no part” of the mediation order. They contended that the move overstepped the court’s authority and might not work, anyway, and only made the court look “foolish.”
After the Court has held its March hearing, post-argument filings between the gun show advocates and Alameda County, California governing officials brought out new details of a side issue over whether the county would allow gun shows at a public fairgrounds, if the weapons on display at the show could be made “secure.” The gun show owners said they never were given such assurances, but the county said the so-called “safety exception” (adopted after the lawsuit had been filed) has been available since its adoption.
The last of those written exchanges was filed with the Circuit Court on Tuesday. One day later, the en banc Court issued the mediation order. It said the Court “believes the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation.” The case thus was sent to the circuit’s mediation officer, with the case before the judges delayed for 45 days “or pending further order of the court.” The mediator was told to file a status report within 45 days.
Chief Judge Alex Kozinski, joined by Circuit Judge Ronald M. Gould, dissented. They said the parties had not asked for mediation, and had said nothing that would indicate that such an effort “would be fruitful.” The parties were asked about it in the hearing, the dissenters said, and “they displayed obvious distaste for the idea.” There appears to be frayed relations between the two sides, with each accusing the other of misleading the court.
The Nordyke case had begun as an attempt to gain Second Amendment protection for possession of guns, going to court initially almost nine years before the Supreme Court ruled in District of Columbia v. Heller in 2008. After the Justices established that right under the Amendment, at least in areas governed by federal law, the issue then arose as to whether the right would apply against state and local gun control laws. The Nordyke case then resulted in a ruling that the Amendment did extend nationwide. The Supreme Court agreed with that outcome, in the case of McDonald v. Chicago in 2010.
The next round in gun rights lawsuits then became whether the right existed outside the home, and outside the context of self-defense. Again, the Nordyke case became a test of both of those issues. In a ruling last May, a three-judge panel ruled that limitations on access to guns had to satisfy a stricter constitutional standard, but not the strictest form. It said that gun control laws would be invalid if they imposed a “substantial burden” on the individual right to have a gun. That ruling, however, did not settle the validity of the Alameda County gun control law that had been challenged by the gun show operators.
Last November, that panel ruling was vacated when the Ninth Circuit granted en banc review — leading to Wednesday’s mediation order. If mediation were to work, the case could be over. If it does not, it will return to the Ninth Circuit for a ruling. The case no doubt could wind up in the Supreme Court again.
(Thanks to Rick Hasen of the University of California-Irvine Law School for the tip to the Wednesday order.)