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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 05-19-2009, 12:35 AM
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Default Nordyke: 9th Request en banc Briefing

All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene
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  #2  
Old 05-19-2009, 12:38 AM
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Whew.
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Old 05-19-2009, 12:39 AM
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Oh, boy. Here we go.
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Old 05-19-2009, 12:46 AM
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Never mind, found the answer.
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Old 05-19-2009, 12:48 AM
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How often can they do this? For instance, could they do this 5 years from now, if it doesn't go to SCOTUS?
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Old 05-19-2009, 12:49 AM
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A little over Two Weeks....
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  #7  
Old 05-19-2009, 12:56 AM
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From my limited knowledge that has happened only three times. Gene, what is your estimate?
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Old 05-19-2009, 12:57 AM
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Someone in the Circuit had reason to want to see Nordyke solidified?
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Old 05-19-2009, 1:02 AM
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I thought this was a bad thing? Didn't we want them to leave it alone?
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Old 05-19-2009, 1:07 AM
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It really comes down to who you want making the argument. It has recently become more apparent that 2A incorporation is going en banc and probably beyond. Once that has been all but assured the only thing to do is try and get those most capable in front of the judges with the most winnable case possible.

The question is, is that Nordyke or Gorski1?
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Old 05-19-2009, 1:07 AM
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Originally Posted by hoffmang View Post
All,

...a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc...

Sorry to ask this, but is there a plain-English translation to this. Is the Nordyke decision in trouble??

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Old 05-19-2009, 1:10 AM
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>:-|
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  #13  
Old 05-19-2009, 1:12 AM
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A judge on the circuit has asked that the decision be reviewed. This will only happen if the full circuit votes to review the case.

If this happens it is possible that the decision will not hold. But, if the decision is held or strengthened (incorporation plus declaration that fairgrounds aren't "sensitive areas") then the 3 judge panel Gorski is going to argue in front of will be FORCED to accept incorporation.
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Old 05-19-2009, 1:19 AM
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There was hope that this case would not go en banc. It is not usual for the court to call for en banc when the losing side does not, but it is not unheard of.

En banc has not been granted, but it will move out the time line for a Cert petition. After briefing the case for en banc it is anyones guess on whether it will go en banc. If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene
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  #15  
Old 05-19-2009, 1:26 AM
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If this is under review during the current Gorski1 trial scheduled for June hearings will it be unreviewable by panel whether it is ultimately accepted en bsnc?
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Old 05-19-2009, 2:21 AM
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Quote:
Originally Posted by hoffmang View Post
If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene
They would rather hear "our" side in Court rather than that Gorski guy?
Or, they want En Banc so they can toss incorporation completely?
if so, no cert for SCOTUS?
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  #17  
Old 05-19-2009, 5:45 AM
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Quote:
Originally Posted by hoffmang View Post
There was hope that this case would not go en banc. It is not usual for the court to call for en banc when the losing side does not, but it is not unheard of.

En banc has not been granted, but it will move out the time line for a Cert petition. After briefing the case for en banc it is anyones guess on whether it will go en banc. If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene


Can anything be guessed about the matter related to who made the request? That is, is the judge making the request a rabid leftie or rightie?

Related to this, the only problem I see in Nordyke is that the panel decided that the main thrust of Heller was towards "in the home." If we're going to go back in, could this be better addressed? IE, could we get it clarified that Heller's main thrust was NOT "in the home"?

The Raisuli
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  #18  
Old 05-19-2009, 6:34 AM
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I'll wait until the 9th Circuit votes to rehear Nordyke en banc to actually react.

-Jason
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  #19  
Old 05-19-2009, 6:37 AM
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Old 05-19-2009, 6:37 AM
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If the 9th circuit does not vote for an en banc hearing, does that mean "incorporation" is law and all 9th circuit judges are bound by it?
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  #21  
Old 05-19-2009, 6:41 AM
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Originally Posted by DDT View Post
Whew.
I don't really understand what's going on here, but I assume this is a positive development, especially given the situation with Gorski? Also, this is something very very unusual, right, for a judge to request en banc without either of the parties requesting it?
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  #22  
Old 05-19-2009, 7:14 AM
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Now everyone (9th circuit) wants to play because the outcome did not rule in their favor. WTH!!!!

FYI: En Banc means the entire bench/everyone of the judges in the 9th Circuit. But all 48 of them?????

Gene, any idea what prompted that decision & which judge made the call?
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Old 05-19-2009, 7:17 AM
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Very interesting!!!

Is there any chance they might attempt to declare that only certain rights are incorporated?
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  #24  
Old 05-19-2009, 7:18 AM
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I don't know if it is the case, but I am wondering if perhaps they did see the Goski case and the people in the 9th didn't want to have to hear from this guy and perhaps get a bad contra-incorporation ruling from a less favorable panel. . .

I don't know if that is the case, but it could be.

It is a good thing my case doesn't solely rely on Nordyke!
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Old 05-19-2009, 7:25 AM
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It is hard to keep read up on all the ins and outs of the Nordyke case from out here. Need to hurry up and get back to CA.
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Old 05-19-2009, 7:27 AM
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Quote:
Originally Posted by TenSeven View Post
Sorry to ask this, but is there a plain-English translation to this. Is the Nordyke decision in trouble??
Let me see if I can sum this up with a sports analogy.....

2 seconds left in the semi-final basketball game. your team is up by three and have the ball. You're walking out of the arena and looking forward to the championship....

Suddenly the ref calls a foul and sends the other team to the free throw line where they sink three to tie the game and send it to overtime.


Is the game lost? Not by a long shot.... Youve got an entire overtime period coming up.... You head back to your seat for more exciting basketball....


But you would rather have already won the game without playing the overtime.


Right now, were somewhere between the ref calling the foul and the game being tied up..... Were not sure there will even BE a hearing....
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Old 05-19-2009, 7:29 AM
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Now everyone (9th circuit) wants to play because the outcome did not rule in their favor. WTH!!!!

FYI: En Banc means the entire bench/everyone of the judges in the 9th Circuit. But all 48 of them?????
No.... Just 11 of them.
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Old 05-19-2009, 7:38 AM
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If I understand things correctly, only the full bench of Judges on the 9th (en banc) or SCOTUS can change the decision on Nordyke. If they agree with the decision the panel made, only SCOTUS can change it.

But seeing as this is the 9th Circuit, I do not see this as necessarily a good thing. If they were coming after the Nordyke decision, and thus Heller incorporation, this is how they would do it.

What am I missing?
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Old 05-19-2009, 7:39 AM
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Originally Posted by hoffmang View Post
All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene
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Old 05-19-2009, 7:53 AM
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If Nordyke is the law of the circuit until the en banc, this shouldn't change Gorski's strategy in his case, right?

So if Gorski screws up and then the en banc goes against incorporation, we're screwed?

Who is the judge that asked for this?
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Old 05-19-2009, 7:56 AM
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What am I missing?
If the 9th denies incorporation, we drive the case to SCOTUS where I'm 98% sure we'll get incorporation. At that point, it's a done deal. Just takes longer to settle the matter, but the issue is then set in cement which is a real good thing.

The only risk is if the 9th denies incorporation and SCOTUS refuses to hear the case. That would suck for us because it denies us the 2A in California until SCOTUS does take an incorporation case. It has to happen sooner or later. The only question is, when.

I too would like to know which judge called for the en banc hearing. The political leanings of that judge will tell us a lot about what the 9th is thinking about Nordyke and 2A incorporation.
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Old 05-19-2009, 7:58 AM
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Quote:
Originally Posted by RomanDad View Post
Let me see if I can sum this up with a sports analogy.....

2 seconds left in the semi-final basketball game. your team is up by three and have the ball. You're walking out of the arena and looking forward to the championship....

Suddenly the ref calls a foul and sends the other team to the free throw line where they sink three to tie the game and send it to overtime.


Is the game lost? Not by a long shot.... Youve got an entire overtime period coming up.... You head back to your seat for more exciting basketball....


But you would rather have already won the game without playing the overtime.


Right now, were somewhere between the ref calling the foul and the game being tied up..... Were not sure there will even BE a hearing....
Nice summary!
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  #33  
Old 05-19-2009, 8:15 AM
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No.... Just 11 of them.
If the majority of the 9th votes for rehearing, what are the odds of the panel being stacked one way or the other?
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Old 05-19-2009, 8:23 AM
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If the majority of the 9th votes for rehearing, what are the odds of the panel being stacked one way or the other?
Kozinski will definitely be on the panel as he is the chief justice. He's extremely pro-gun.

I also believe that the judges from the original three judge Nordyke panel would sit en banc on this case. If so, that gives us 4 judges that agree the 2A is incorporated.

A simple majority wins in en banc reviews, so all we'll need is two more judges who agree that the 2A is incorporated. It's a crap shoot as to whether we'd get them.

But it isn't worth being excited about unless the 9th agrees to hear Nordyke en banc.
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Old 05-19-2009, 9:02 AM
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Originally Posted by hoffmang View Post
All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene
One question, why would they?
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Old 05-19-2009, 9:03 AM
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It sucks for the delay, but ultimately, isn't it good for us to move upwards with this? Don't we want to get a SCOTUS decision on incorporation sooner than later, before someone else (Gorski, Maloony) gets there?
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Old 05-19-2009, 9:09 AM
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It sucks for the delay, but ultimately, isn't it good for us to move upwards with this? Don't we want to get a SCOTUS decision on incorporation sooner than later, before someone else (Gorski, Maloony) gets there?

We have, or had, a decision that gave us incorporation. There is a risk in an En Banc hearing that it could go the other way, it could happen at SCOTUS too....
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Old 05-19-2009, 9:26 AM
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Someone in the Circuit had reason to want to see Nordyke solidified?
Or nullified? What are the chances that the Obama administration was blown away by the uber liberal 9th being the first to incorporate Heller and found a politically connected justice to try to bring the full "liberalness" of the 9th to bear on getting it turned around?

Just because you're paranoid doesn't mean they are not after you!
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Old 05-19-2009, 9:28 AM
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Come on. Don't drag the administration into this. Intellectual fellow-travelers doth not a conspiracy make.

Shared worldview, folks, not conspiracies. Shared worldview.

7x57
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Old 05-19-2009, 9:28 AM
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Yes, who is the judge that asked for this? Is there a reason why we haven't found out yet who the judge is???? Are they allowed to keep it a secret and just go straight to the panel without saying which judge asked for this??
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