Nordyke Ruling: Ninth Circuit Rejects Balancing Test, Provides for Intermediate Standard

The Ninth Circuit's ruling Monday in the energizer bunny of Second Amendment cases, Nordyke v King, seems to be, on balance, a good step in the right direction (here is the opinion).

The Court rejected any kind of balancing test involving the weighing of the individual right against any supposed government interest (geee, is it in the government's interest to take away our guns?); no, the Court says the entire focus must be on how the individual right is affected.

Also good news is the groundwork laid for a heightened standard of review, something more than the "rational basis" test under which all sorts of buffoonery is allowed.  The Court held: "only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment."  The Court did not adopt any particular scrutiny standard but whatever it is, it is some kind of intermediate standard, less than "strict scrutiny" because of the "substantial burden" hurdle.

No standard was adopted because, according to the opinion, Nordykes did not allege they wished to carry guns to defend themselves.  Nordykes were given leave to amend to cure this defect.

The holding emphasized that the Nordykes wanted to sell guns on government property, and that other alternatives were available for this commercial activity and that infringement of self-defense rights was not alleged.

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