Ninth Circuit Orders Re-hearing En Banc in Second Amendment Incorporation Case

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Yesterday, the U.S. Court of Appeals for the Ninth Circuit announced that it would re-hear Nordyke v. King en banc, thus postponing a final ruling from that court on the issue of Second Amendment incorporation.

As we discussed here, Nordyke is the case in which a three-judge panel of the Ninth Circuit held that the Second Amendment individual right to bear arms, recognized by the Supreme Court in District of Columbia v. Heller, is incorporated into the Fourteenth Amendment through the Due Process Clause, and thus protected against infringement by state and local governments. That ruling ran contrary to decisions by the Second and Seventh Circuits, which held that still-binding Supreme Court precedent required lower court judges to find against incorporation of the Second Amendment. The issue has been much in the news of late, since Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that decided that court’s case and was questioned extensively about the Second Amendment at her recent confirmation hearings.

As is common practice when a full court orders re-hearing of a case, the Ninth Circuit’s order yesterday provided that the panel decision in Nordyke “shall not be cited as precedent by or to any court of the Ninth Circuit.” As Eugene Volokh pointed out, this technically means that there is no longer a split among the Circuit Courts of Appeals on the incorporation question, which could influence whether the Supreme Court decides to review the Second or Seventh Circuit decisions rejecting incorporation. However, the existence of a circuit split is only one reason for the Supreme Court to grant review in a particular case. Here, the Court should grant review for another important reason — to provide clarity with respect to an important federal constitutional question. As we explained in our brief in support of Supreme Court review of the Seventh Circuit case, the lower courts have felt compelled to follow outdated, 19th-century Supreme Court precedent that precludes incorporation of the Second Amendment. Once the lower courts consider themselves bound to follow Supreme Court precedent, regardless of how much they may disagree with the decisions’ outdated reasoning, only the Supreme Court can state definitively that these precedents are no longer binding on the courts of appeal.

Accordingly, regardless of whether the full Ninth Circuit ultimately rejects the substance of the panel’s ruling and agrees with the Second and Seventh Circuits, the question of whether the Second Amendment is incorporated against the states through the Fourteenth Amendment is one that fully warrants Supreme Court review.

The re-hearing en banc in Nordyke is scheduled to take place the week of Sept. 21, in San Francisco.