The Legal Meaning of the Second Amendment Further Clarified in Nordyke v. King


A long-simmering Second Amendment case that both I and Damon Root (twice) have written about here before came to another semi-conclusion today, with a California law that banned gun shows on county property in Alameda again upheld by the federal 9th Circuit Court of Appeals in Nordyke v. King.

I explained how, even in an earlier loss also at the 9th Circuit Court of Appeals last April, King struck a victory for the expansion of Second Amendment liberties, one that has since been cemented federally by McDonald v. Chicago:

In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King, but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California's Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller, when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions…..

Thus, even though the particular gun show operators who fought Nordyke lost, they won a great victory for the gun rights cause and almost certainly laid the ground for a future Supreme Court case.

The San Francisco Chronicle with the latest 9th Circuit decision news from today:

A federal appeals court panel ruled Monday that gun show promoters have failed to show that a ban on firearms at the Alameda County Fairgrounds violates their right to keep and bear arms.

Rather than dismissing the promoters' 12-year-old lawsuit, however, the Ninth U.S. Circuit Court of Appeals in San Francisco gave the plaintiffs another chance to produce evidence that the ban unreasonably restricts law-abiding citizens' ability to obtain guns for self-defense…..

Monday's ruling also sets new standards for review of gun control laws in the nine-state Ninth Circuit.

The court said laws that impose "substantial burdens" on the right to keep and bear arms are constitutionally suspect. Dissenting Judge Ronald Gould said the court was making it too easy to challenge reasonable restrictions on gun ownership and use.

The Supreme Court [in Heller] also said the government could prohibit guns in "sensitive places." The appeals court upheld the Alameda County ban under that standard a year ago, reconsidered it under the high court's latest ruling and tentatively reached the same conclusion Monday.

Gun rights scholar David Hardy sums up the opinion and why it isn't yet the final end for this long-running case:

On a quick read, it looks as if the majority analogizes the right to arms to abortion rights, and holds that a "substantial burden" or "undue burden" is subject to strict scrutiny, and lesser burdens to intermediate review. It remands for the trial court to apply intermediate review (which means the Methusala of gun rights cases will live yet longer). It will likely be a useful ruling—which the majority didn't go with strict scrutiny, they went with the next best thing.

My Reason feature on the story of McDonald v. Chicago, the case that won application of the Second Amendment to the states. My book on how the Second Amendment was brought back to life by the Supreme Court in the 2008 Heller case, Gun Control on Trial. The meaning of the Second Amendment will continue to be unveiled slowly through cases like this.

Today's 9th Circuit decision in Nordyke.