To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s [...]]]> Over at the conspiracy, Eugene Volokh points out an odd fact — while the L.A. Times gives rather extensive coverage to the recent NRA v. Chicago, it gave no coverage at the time to Nordyke v. King, which was a California case. Eugene offers a few possible rationales for this difference:

To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s made higher profile by the controversy about Judge Sotomayor’s participation in the Second Circuit’s no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit’s incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

(In comments, VC readers seem to mostly be of the opinion that the story shows a concerted editorial campaign to promote gun control through skewed news reporting.)

I’d suggest another possible reason — there’s a man-bites-dog aspect of the story which Eugene doesn’t mention; and no, it’s not the cheesy “wow, Republican judges can rule against gun rights” factor. Rather, it’s the fact that incorporation was widely expected to have an easier road than this.

For instance, take a look at a few recent statements made by VC bloggers:

Dale Carpenter, last year:

Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.

Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

Eugene Volokh, last year:

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It’s at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions.

Randy Barnett, earlier this year:

Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described “progressive” Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC’s brief (available here) was filed on behalf of professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Their brief speaks only to the incorporation issue and did not argue that the challenged gun regulations are unconstitutional.

These statements reflect the general opinion as I’ve observed it. I asked Alan Gura about incorporation at a talk recently; I talked with Mike O’Shea about it; everyone I’ve talked to who follows the issue assumed that incorporation, if not quite a slam dunk, was something that was quite likely to happen — and Maloney was viewed as the quirky outlier. It’s a genuine surprise to see a(nother) circuit court unanimously ruling against incorporation; and ultimately, surprises are often what make it into the news.

Add that to the factors that Eugene notes (i.e., Nordyke was about a more obscure issue; NRA v. Chicago was about a much bigger-impact law) and it doesn’t seem quite as surprising (or sinister, as VC commenters suggest) that the LAT’s Supreme Court reporter took a pass on Nordyke but wrote about NRA v. Chicago.

Image: Wikicommons

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property [...]]]> Wow.   A pharmacist accused of murder decided to pay his lawyer with his firearm collection.  When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.  Quick: which amendment gets play?  (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store.  You can see the video here.  And as for the constitutional right to withhold information about Ersland’s gun collection?  That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter.  And never, ever, take the instruments of the crime.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat [...]]]> This Thursday I’ll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on “The Future of the Right to Arms After D.C. v. Heller.” at the kind invitation of ‘Bama’s chapter of the Federalist Society. I hope to discuss Heller’s revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal “assault weapons” ban. Time permitting, I’ll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I’ve never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I’m staying)? I do plan to visit the Birmingham Civil Rights Institute.