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.

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  1. I’ve long wondered how the phrase …shall not be infringed has come to mean, shall be free to be infringed so long as the gov’t believes there is a reason to do so and passes the generic muster of certain levels of scrutiny.

    1. It’s right up there with the confusion over Congress shall make no law…

    2. Yep.

  2. It could be worse, you could live in Canada!

    1. 5 ft/lb limit on airguns.”You’ll shoot your eye out”!

  3. If only the police are armed
    The people are harmed
    One school shooting or even two
    Doesn’t mean guns kill
    People do.

  4. When did “the right of the people to keep and bear arms shall not be infringed” become the equivalent of “{no} ban {which} unreasonably restricts law-abiding citizens’ ability to obtain guns for self-defense…”???

  5. I personally think a gun show is a good use of the fairgrounds. But the county taxpayers through their elected representatives have the right to decide how and for what purposes county owned fairgrounds are used.

    1. The purpose of a republic is not to carry out the will of the people, but to obstruct and tame it.

      1. If you want to have a gun show, rent your own space. Nothing says you are entitled to the fair grounds.

    2. Have the taxpasyers done so? I don’t recall a vote about it.

  6. Well, this is truly great read for me. I enjoyed reading this post and hope to see more post from you. thanks for sharing.

    1. Hogan!

  7. But the county taxpayers through their elected representatives have the right to decide how and for what purposes county owned fairgrounds are used.

  8. Oh wow, OK those guys seem to know whats going on man. Wow.

  9. Will someone please show me where in the Constitution there is anything about any “balancing test”? Where are these varying levels of judicial review found?

    There is no sliding scale in the constitution. It does not say “shall not unreasonably be infringed” or “shall not be infringed too much”.

    The question is whether the state action infringes upon the individual right to keep and bear arms. Not whether it infringes more than is reasonable or more than it should. Of course, that then requires a defining of what that right actually is.

    It’s been a long time since I’ve read the facts of the case, but as I recall, I unfortunately have to agree with the court – sure, you’ve got the right to keep and bear arms, but you don’t have a right to use the county fairgrounds for your gun show, and if the county denies your use of the fairgrounds, it doesn’t mean it’s infringing your 2A rights – they’re not preventing you from owning and possessing firearms. Go have your gun show somewhere else.

    Of course, I suppose there could be other facts that I’m not recalling right now that make their 2A argument stronger… don’t have time right now to go back and read it all.

  10. “sure, you’ve got the right to keep and bear arms, but you don’t have a right to use the county fairgrounds for your gun show”

    since the 2A doesn’t grant any right to the citizens, it merely acknowledges an existing right, the real question should be, where does the county get the right to prohibit the sale (ie. right to keep and bear and sell) of firearms at the county fairgrounds?

    1. Even more so, where is the government granted the power to own land?

      1. I guess you’d need to start in the California constitution and go from there.

      2. Amend X.

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  11. So, the government can suspend Constitutional rights on land that it “owns”? Think beyond the evul gun nuts and consider rights that you do care about.

    Aren’t streets and the like considered “public land”? So the government can also suspend the Constitution if you use “their” roads and sidewalks?

    1. This is where the Constitutional issue arises. The government does not act merely as a landowner; it is always the government, even on land it owns.

      Its interesting that this is being fought on the issue of whether there can be a gun show on the county land, and not on hte issue of whether the county has the authority to actually bar all possession of guns on county land (which is what the county has done).

      Now, you would think that being barred from possessing a gun would be an infringement of your right to keep and bear arms.

    2. “their” roads, sidewalks, schools, courts, libraries, parks (local, state and national), national forests, coastal waters….

    3. roads, sidewalks, schools, courts, libraries, parks (local, state and national), national forests, coastal waters….

  12. Glad to see the judicial branch upholding the 2nd amendment.


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

    Wrong. Wrong! WRONG!

    The 9th Circuit Court of Appeals is by far the most overturned appellate court in the federal system. Their word doesn’t clarify anything because their word is mud. Wait for the appeal to SCOTUS and then another 9th opinion getting the boot.

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