Tuesday, November 29, 2011
The Ninth Circuit announced yesterday that it would rehear Nordyke v. King en banc. The case involves a Second Amendment challenge to a municipal gun show ban. The three-judge panel upheld the ban in May; the case will now go to the full Ninth Circuit.
The ruling gives the full Ninth Circuit a chance to determine the standard for Second Amendment challenges. Two of the judges on the panel applied a "substantial burden" test and upheld the ban:
Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . . .
The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .
We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.
Judge Gould would have upheld the ban under a rational basis test:
Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.