Tuesday, April 21, 2009

A Few More Thoughts on Nordyke

Now that I have had the chance to read the 9th Circuit panel's opinion in Nordyke I have a few more thoughts.

The narrow scope of the opinion is not really surprising.  Although the court incorporated the Second Amendment against the states and local governments, it declined to specify a standard of review.  The court appears to want to leave that up to the Supreme Court ("SCOTUS").

Regarding's Nordyke loss on the point of being allowed to hold gun shows on county property, states and municipalities have historically been granted more leeway when acting in the capacity of landlord, as here.  As such, unless and until SCOTUS determines the standard of review this sort of restriction is probably not going to be forbidden.

That said, the Nordyke would probably provide the basis for a challenge to things like California's assault weapons ban, due to Heller's protection of the right to keep and bear arms "in common use" by the American people.

In a related vein, the 9th Circuit relied on Heller, which was very narrowly tailored towards the RKBA in one's home.  Likewise, the Nordyke decision was very narrowly tailored as well.  It'll be up to future decisions to expand the scope of the right.

In general, I'm in favor of courts issuing narrowly tailored decisions which address only the issues presented to them. When courts promulgate broad, sweeping decisions which go beyond the facts of a particular case, they improperly step into the legislative realm.

We lost our RKBA incrementally.  We'll regain it the same way.

No comments: