Metropolitan News-Enterprise


Wednesday, February 19, 2003


Page 1


Court Upholds Ban on Possession of Guns on Public Property


From Staff and Wire Service Reports


Ordinances banning possession of guns on local government property do not violate the U.S. Constitution, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Upholding an Alameda County ordinance, the court rejected a challenge by Russell and Ann Nordyke, who, as TS Trade Shows, promoted gun shows at the county fairgrounds from 1991 until the county enacted the challenged ordinance in 1999.

The judges rejected the Nordykes’ claim that the sale of guns at shows is a form of advocacy or commercial speech protected by the First Amendment. And they concluded that circuit precedent denies the couple standing to challenge the law on Second Amendment grounds.

The Ninth Circuit held in 1996 that the Second Amendment protects the rights of the states to maintain militias for collective self-defense, rather than entitling individuals to possess guns. Another panel, in an opinion by Judge Stephen Reinhardt that contained an extensive discussion of the issue of collective rights versus individual rights, came to the same conclusion last year.

“[I]f we were writing on a blank slate,” Judge Diarmuid F. O’Scannlain wrote yesterday, “we may be inclined to follow the approach of the Fifth Circuit,” which held in a 2001 case that the amendment protects gun ownership by individuals, subject to reasonable regulation.

Contrary Opinion

The court held in that case, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that the federal law barring possession of firearms by persons subject to domestic violence restraining orders does not violate the Second Amendment. But the panel majority, in an opinion dismissed as dicta by a concurring judge, set forth an extensive historical and philosophical discussion of the amendment and endorsed the individual rights model.

The U.S. Department of Justice, although it urged the Supreme Court not to hear the challenge to the statute in Emerson, changed its longstanding position and endorsed the individual rights model.

The Nordykes filed suit soon after the ordinance was enacted in response to a shooting at the fairgrounds, but U.S. District Judge Martin Jenkins of the Northern District of California said they were unlikely to prevail and denied a preliminary injunction. They appealed to the Ninth Circuit, which in 2000 certified the case—along with one brought against Los Angeles County—to the California Supreme Court to determine whether state gun laws preempted the ordinances.

High Court Ruling

The California Supreme Court held there was no preemption, forcing the Ninth Circuit to rule on the constitutional issues. Los Angeles County recently reached a settlement, agreeing to pay the former gun show promoter at the Fairplex $1.6 million to drop its suits and agree not to seek to hold gun shows on county property in the future.

Yesterday’s decision, if it survives appeal, is expected to lead to an avalanche of similar ordinances across California, the nation’s only state where municipalities have barred gun shows on government property. Los Angeles and San Mateo counties are among those that have already adopted similar ordinances.

In court briefs, representatives from at least 20 California cities and counties urged the Ninth Circuit to uphold the Alameda County enactment, while the National Rifle Association argued the other side. San Pedro lawyer Chuck Michel, who represented the NRA, said a gun show without weapons is unworkable and akin to a fair without rides, sheep or cows.

“Ultimately, what this does is stop gun shows on county property,” Michel said. Michel said en banc review was likely, or in the alternative, the Supreme Court could weigh in on the case, given the conflicting views of the circuits.

Individual Rights

Judge Ronald Gould, in a concurring opinion yesterday, said the earlier Ninth Circuit cases are wrong and should be overruled by an en banc panel or by the nation’s highest court.

Gould noted that the amendment protects the right “of the people...not only to ‘bear’ arms, which may have a military connotation, but to ‘keep arms,’ which has an individual one.” In doing so, he said, it protects the people’s right “to participate in defense of the Nation.”

Richard Winnie, Alameda County’s chief counsel, was pleased with the ruling.

“The shooting made us realize there was a need to ban guns from county property,” Winnie said. “If they want to have a gun show and do photo demonstrations, videos, lectures leading to the sale of guns and ammunition, they can do it. They just can’t have the guns there.”

The case is Nordyke v. King, 99-17551.


Copyright 2003, Metropolitan News Company