Summary resolution of the Federal suit filed last May 5 against Sacramento Sheriff John McGinness and others, Sykes v. McGinness, was delayed by a September 1 written order from Judge Morrison C. England Jr. His decision gives time to the defendants to determine whether the plaintiffs are qualified to bring the suit, and also waits for a decision from the Ninth Circuit Court of Appeals, rehearing the case of Nordyke v. King.

In the Nordyke case, a gun show operator challenged an Alameda County decision to ban gun shows from using the county fairgrounds to hold shows. The appeals court said that the Second Amendment applied to states, just as most of the other provisions in the Bill of Rights do, but that the county's interest in security at its facilities was a legitimate reason to prohibit gun shows.

If the ruling that the Second Amendment restricts what states can do stands, then in the western states under the jurisdiction of the Ninth Circuit, individuals have a personal Constitutional right to bear arms. That principle was established by the U.S. Supreme Court in the 2008 case of District of Colombia v. Heller, but the court limited its application to the case before it, since the District of Colombia is a federal district, not a state.

If courts determine that individuals have a Constitutional right to bear arms, then any action by a state (or any lesser government subdivision, such as county or municipal agencies) that infringes on that right must pass a "strict scrutiny" test, requiring the agency to establish a compelling reason to justify any restriction. While the immediate impact of such a ruling in this suit would be to place a nearly impossible burden on the sheriff should he try to restrict permits based on his definition of "good cause" for a permit, many California laws restricting firearms would be subject to challenge as well.

For example, California bans many weapons based purely on cosmetic features or caliber, neither of which have been shown to have any bearing on criminal use. Further, California may soon require that guns incorporate a "microstamping" technique that purports to make empty cartridges traceable to a particular gun, but there is no evidence showing that this will reduce crime in any way, since it is untested and speculative. Also, such a feature could be easily disabled. However, it would make guns prohibitively expensive, creating an extreme burden on the individual. A court challenge to such a requirement would require the state to show evidence to justify it.

Judge England wrote in his order that the Ninth Circuit's decison in the Nordyke case will directly affect the issues in Sykes v. McGinness. Even if the court strikes the initial decision, it is unlikely to rule that the Second Amendment does not apply to the states. In that event, Judge England would have to make a decision as to whether it does apply, and no matter what the ruling on that issue, the losing side would no doubt bring the matter back to the Ninth Circuit for a further ruling. A number of such cases are being brought in various places in the country, based on the Heller decision, so ultimately, the matter will no doubt be resolved by the U.S. Supreme Court.