Friday, July 31, 2009
The Ninth Circuit earlier this week voted to rehear en banc Nordyke v. King, the panel decision ruling that the Second Amendment is incorporated against the states. The Ninth Circuit order states that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."
The panel opinion in Nordyke created a circuit split on Second Amendment incorporation. The Second and Seventh Circuits ruled that the Second Amendment was not incorporated against the states; the Ninth Circuit panel opinion ruled that it was.
But this wouldn't necessarily mean that the Supreme Court would be any less interest in the case. The Supreme Court left the incorporation question open in D.C. v. Heller, and it has been a hot legal and political issue since (making an appearance most recently in the Sotomayor nomination hearings and debates).
And there's still the question of how to incorporate. No circuit has ruled that the Second Amendment is incorporated via the Privileges or Immunities Clause--the Ninth Circuit ruled that it is incorporated via the Due Process Clause--but the Privileges or Immunities Clause has received some attention and argument by paties or amici in each of the three cases. These cases offer the Supreme Court an opportunity to straighten out its incorporation doctrine--another reason the Court may take an interest, irrespective of what the full Ninth Circuit does.
All this is speculation at this point, of course. But the Ninth Circuit's vote to review is a sure signal that the full circuit is unhappy with at least some aspect of the panel's decision.