Nordyke V. King 9th Circuit En Banc.

Filed order (ALEX KOZINSKI): Submission is vacated pending the Supreme Court’s disposition of Maloney
v. Rice, No. 08-1592, McDonald v. City of Chicago, No. 08-1521, and National
Rifle Ass’n of Am., Inc. v. City of Chicago, No. 08-1497. [7074146] (AF)

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Veggie Meat said:

The case just got sent back to the original 3 judge panel to be heard "in light of McDonald v. City of Chicago"...

My bet is that they will lose (again) because the Supreme Court did not give an opinion on the "sensitive places" exception from Second Amendment protection announced in Heller.

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In DC v. Heller. at 54, Scalia wrote:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

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This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?

Further along at 54 and 55, Scalia wrote:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

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(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(DC v. Heller).

Now I'll address Footnote 26 in which Scalia wrote:

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

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What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.

It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.

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woodcdi said:

This will be a good starting place to answer that very question on "sensitive places" and other "reasonable restrictions". While it's true the Court gave no definitive answer, it did not endorse nor affirm that any of the current restrictions on bearing arms in "sensitive places", etc., are constitutional. The Court in Heller made a point of saying those restrictions were "presumptively" constitutional

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We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

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Rather, the Court has haphazardly created a few simple rules, such as that it will not touch “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” or “laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 544 U. S., at ___ (slip op., at 54–55); Ante, at 39 (plurality opinion). But why these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicago’s handgun ban is different.

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Given the competing interests, courts will have to try toanswer empirical questions of a particularly difficult kind.Suppose, for example, that after a gun regulation’s adoption the murder rate went up. Without the gun regulationwould the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cutsthat led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawfulpurposes without affecting their possession by criminals?
Consider too that countless gun regulations of manyshapes and sizes are in place in every State and in manylocal communities. Does the right to possess weapons forself-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense?Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to findguns? When do registration requirements become severe to the point that they amount to an unconstitutional ban?Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability totake special measures during, say, national security emergencies? As the questions suggest, state and local gunregulation can become highly complex, and these “are only a few uncertainties that quickly come to mind.” Caperton
v. A. T. Massey Coal Co., 556 U. S. ___, ___ (2009) (ROB-ERTS, C. J., dissenting) (slip op., at 10).

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Veggie Meat said:

... and affirmed that presumption in McDonald.

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