Monday, May 02, 2011

Nordyke v. King (9th Cir. - May 2, 2011)

What's the right test for a Second Amendment claim?

This case has been around for over a decade, and has repeatedly bounced around the Ninth Circuit, from panel to en banc court to panel (and all points in between) for the last eight years.  In the end, Judge O'Scannlain writes a majority opinion (joined by Judge Alarcon) that says there should be heightened scrutiny for virtually all Second Amendment claims, while Judge Gould concurs and argues -- borrowing from First Amendment principles -- that there should be heightened scrutiny only for "core" Second Amendments claims (like "core" speech) and that (as with speech) reasonable time, place and manner restrictions should be fine.

It's an extremely powerful concurrence.  Written by someone who's hardly a gun control freak.

I wouldn't be surprised to see the en banc court take it up again.  If they're not too tired of the thing by now.