Metropolitan News-Enterprise


Tuesday, April 21, 2009


Page 1


Ninth Circuit Upholds County’s Right to Ban Guns From Fairgrounds

Panel Rejects Challenge but Rules Individual Right to Bear Arms Applies to State, Local Governments


By STEVEN M. ELLIS, Staff Writer


The Second Amendment does not prohibit local governments from regulating gun possession on their property, a panel of the Ninth U.S. Circuit Court of Appeals held yesterday.

The court held that the individual right to bear arms recognized last year by the U.S. Supreme Court binds state and local governments, but nonetheless rejected a challenge to an Alameda County ordinance prohibiting firearms on county property.

Writing for the court, Judge Diarmuid F. O’Scannlain explained that the Supreme Court’s opinion in District of Columbia v. Heller, 128 S. Ct. 2783, “tells us that the Second Amendment’s guarantee revolves around armed self-defense,” and concluded the ordinance did not meaningfully impede individuals’ ability to defend themselves in their homes.

O’Scannlain—joined by Judge Ronald M. Gould, who concurred separately, and Senior Judge Arthur L. Alarcón—similarly rejected First Amendment claims in a suit by promoters of gun shows at county fairgrounds.

Russell and Ann Nordyke, as TS Trade Shows, promoted the gun shows from 1991 until the county enacted the ordinance in 1999 after a shooting at the fairgrounds.

Exception Created

The ordinance was subsequently amended to provide an exception for certain artistic events after representatives of the Scottish Caledonian Games inquired about the law’s applicability to their activities, which included reenactments with period firearms loaded with blank ammunition.

Contending the ordinance was enacted to silence members of the ‘gun culture’ from expressing their political and social views, the Nordykes brought a federal civil rights suit under both the First and Second Amendment.

However, then-U.S. District Judge Martin Jenkins of the Northern District of California—now a justice of the First District Court of Appeal—said they were unlikely to prevail and denied a preliminary injunction.

The Nordykes appealed to the Ninth Circuit, and in 2000 the court 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.

The California Supreme Court held there was no preemption, and the Ninth Circuit then ruled in 2003 that the Nordykes lacked standing to pursue their Second Amendment claim under circuit precedent interpreting the amendment to provide a collective right that applied only to state-regulated militias.

The Ninth Circuit also rejected the Nordykes’ claim that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment.

On remand, the Nordykes sought leave to amend their complaint to allege a violation of the Second Amendment, citing the then-pending case of Heller, but Jenkins denied the motion.

They also rephrased their First Amendment challenge, arguing the ordinance violated their freedom of expression by making gun shows impossible and alleged a violation of equal protection, but Jenkins granted summary judgment for the county.

Second Appeal

The Nordykes appealed again, and O’Scannlain agreed that the individual right to keep and bear firearms in the Second Amendment was incorporated against state and local governments under the Fourteenth Amendment’s Due Process Clause.

But he rejected the assertion that the ordinance violated the right, writing:

“The Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”

O’Scannlain then rejected the First Amendment free expression claim, noting that the county offered a plausible purpose for the ordinance unrelated to suppression of free expression, and that summary judgment was proper applying heightened scrutiny.

The judge also said the plaintiffs failed to demonstrate that the exception in the ordinance for certain artistic events was designed to favor other groups where the promoters were not situated similarly to other groups in that they could not meet exception’s safety requirements.

Representatives from the Alameda County Counsel’s Office did not return calls seeking comment, but Donald E. Kilmer Jr., who represented the Nordykes, said his clients were “very pleased the Second Amendment protects everybody’s rights and applies to state and local governments.”

However, he said he was at a loss to understand why the court upheld the ordinance, emphasizing that “no crime”—including the shooting at the county fairgrounds—had been attributed to the gun shows, and that the reasons for the ordinance had been “plucked out of thin air.”

No decision has been made by the Nordykes on whether to seek en banc review in the Ninth Circuit or ask the U.S. Supreme Court to hear the case, Kilmer told the MetNews.

The case is Nordyke v. King, 07-15763.


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