Legal Commentary

Gun Show Second Amendment Case Remanded Back to Original Panel ? a Bad Sign for the Gun Show

By Eugene Volokh

In early 2009, a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled (in Nordyke v. King) that the Second Amendment was applicable to state and local governments. But the panel also ruled that a county ban on gun possession in county parks and fairgrounds was constitutional, because such property fell within the ?sensitive places? exception to Second Amendment protection (announced by the Supreme Court D.C. v. Heller). Not long after, the Ninth Circuit agreed to rehear the case using an 11-judge en banc panel, and then put the case on hold pending the Supreme Court?s consideration of whether the Second Amendment was indeed applicable to state and local governments.

Today, the Ninth Circuit sent the case back to the original 3-judge panel, instructing the panel to consider it further ?in light of McDonald v. City of Chicago.? But since the Supreme Court in McDonald v. City of Chicago (1) agreed with the panel that the Second Amendment was indeed applicable to state and local governments, and (2) did not opine on the scope of the ?sensitive places? exception, I?d expect that the Ninth Circuit panel would just reaffirm its original decision. The gun show organizers will therefore likely lose, as they lost originally.

For my limited views on restrictions of gun possession on government property, see PDF pp. 87?91 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.

Full post as published by The Volokh Conspiracy on July 12, 2010 (boomark / email).