Ninth Circuit Signals it is Waiting for Supreme Court Guidance on 2nd Amendment Incorporation

Yesterday, after rehearing Nordyke v. King, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit sent a strong signal to the Supreme Court that the lower courts are waiting for guidance on whether the individual 2nd Amendment right to “keep and bear arms,” recognized by the Court in Heller v. District of Columbia (2008), applies to state and local governments.

Just a few hours after the 11-judge en banc panel heard argument, Chief Judge Alex Kozinski issued an order holding off on further consideration of the case until the Supreme Court disposes of three outstanding petitions for certiorari in similar cases —McDonald v. City of Chicago (No. 08-1521), in which CAC filed an amicus brief urging Supreme Court review; National Rifle Ass’n v. City of Chicago (No. 08-1497), the companion case to McDonald, also out of the Seventh Circuit; and Maloney v. Rice, (No. 08-1592), the comparable New York “numchucks” case coming out of the Second Circuit. All three of these petitions present challenges to local laws restricting the sale or possession of arms, and are asking the Court to determine whether, and if so how, the individual right to bear arms is “incorporated” against state and local action.

These three petitions are currently scheduled to be considered at the Supreme Court’s so-called “long conference” on September 29. The Court is expected to announce its decision on whether to hear the cases soon thereafter.

The Ninth Circuit’s action suggests that the Supreme Court should not wait any longer for the Circuit courts to weigh in on the incorporation question. So far, both the Second and Seventh Courts have found no incorporation, citing binding Supreme Court precedent, thus there is technically no “split” on the matter. While the Court frequently waits until a pronounced split has developed among the federal circuit courts before granting review, here, the lower courts have indicated that they feel this is a matter for the High Court to decide.