Gun Rights at the Gun Show: The Ongoing Saga of Nordyke v. King

For the past decade the case of Nordyke v. King has been working its way through state and federal court. At issue is a 1999 Alameda County, California ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows out of the county fairground. Promoters Russell and Sallie Nordyke challenged the law, arguing that it was an unconstitutional infringement on the Second Amendment. In April 2009, the couple combined defeat with victory when a 3-judge panel of the federal 9th Circuit Court of Appeals held that while the fairground ban was permissible, it was also high time that the 9th Circuit recognized that the Second Amendment was "indeed fundamental" and therefore applied to both the federal government and to state and local governments.

That ruling created a split among the federal circuits and forced a constitutional showdown. In January 2009, the 2nd Circuit Court of Appeals, in an opinion joined by future Supreme Court Justice Sonia Sotomayor, held that the Second Amendment did not apply to the states. Thus the stage was set for the Supreme Court's landmark 2010 ruling in McDonald v. Chicago, which held that the Second Amendment did indeed apply to state and local governments via the 14th Amendment.

Now we enter what's likely to be the final chapter of the Nordyke saga. Yesterday the 9th Circuit announced that it would rehear the case en banc, which means that a full panel of 9th Circuit judges will hear the case. This doesn't mean the Nordykes will prevail, of course. In fact, it's likely they will lose, since the Alameda County ordinance seems to fall so comfortably within the range of acceptable gun control laws spelled out by Justice Antonin Scalia's majority opinion in District of Columbia v. Heller (2008), a list which includes "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

But however the case turns out, Nordyke has earned its place in the legal history books.

Correction: The 9th Circuit made its announcement yesterday, not today. Also, I made some minor edits for clarity.

Comments

[Res Publica Americana]

The history books? We're over two centuries past our republic's founding, and the Supreme Court of the United States announces that it's acceptable for governments to prohibit free people from carrying tools of power on public property, and that it's permissible for governments to determine where, how, and what you can or cannot sell if you're in a specific industry.

The Robed Imperators can eat shit and fuck off, and that goes especially to the various Circuit Courts that have gone full-statist.

[Tim Starr]

"Sensitive places" is undefined. To avoid unconstitutional vagueness, it needs to be defined as a place with mechanisms for keeping guns out and with dedicated protectors to provide security instead of armed citizens. The Alameda County Fairgrounds may or may not qualify under this definition, but it's certain that not all Alameda County property (e.g., parks) do not, unless the County is going to provide metal detectors w/ staff to operate them and armed security guards at every entry point to County property.

[Colonel_Angus]

A lot of roads are "county roads".

[Fist of Etiquette]

Did one damn thing change from Heller or McDonald? It seems that the those in power can still enact rules that are so prohibitive as to act as de facto gun bans.

[Barely Suppressed Rage]

Alan Gura and Steve Halbrook are working on it as we speak.

[DesigNate]

I am completely astounded that there are judges who believe that the states don't have to recognize my inalienable rights but the feds do. That is some twisted ass logic right there, regardless how one might feel about the 14th.

[Mark]

Isn't it amazing that the Federal courts have been all over the map on this issue? That the 2nd circuit would actually rule that the 2nd amendment did NOT apply to the states is incredible! But now it does via the 14th amendment...even more incredible! It is clear that our Federal court system needs a serious overhaul. Let's hope Congress & the Executive branch get a spine.

[Colonel_Angus]

Either the larger districts should be broken up, or some of the smaller ones should be combined. That's a start to at least evening out the populations in the districts.

[Colonel_Angus]

Either the larger districts should be broken up, or some of the smaller ones should be combined. That's a start to at least evening out the populations in the districts.

[Old Mexican]

That ruling created a split among the federal circuits and forced a constitutional showdown. In January 2009, the 2nd Circuit Court of Appeals, in an opinion joined by future Supreme Court Justice Sonia Sotomayor, held that the Second Amendment did not apply to the states.

Setting the tone for the "Wise Latina's" boilerplates.

By the way, the 2nd Amendment does not apply to the States because of the 14th Amendment, it applies to them because it is a direct prohibition on the infringement of the right to bear arms retained by the People - it does not say "Congress shall not..." It says "the right of the PEOPLE to bear arms shall not be infringed." PERIOD. The States ratified the Constitution as it was, making any (--- ANY ---) restriction on the right to carry and bear arms unconstitutional, without the 14th Amendment.

[Barely Suppressed Rage]

By the way, the 2nd Amendment does not apply to the States because of the 14th Amendment, it applies to them because it is a direct prohibition on the infringement of the right to bear arms retained by the People

I've seen that argument many times before, and there is no historical support for that assertion.

The Constitution created and empowered the federal government. The Bill of Rights was understood as applying to and limiting that federal government only, not the states - some of which had their own bills of rights, and some of which had laws and practices in place at the time that likely would have violated some of B of R provisions.

It is not true that people at the time understood the 2A or any other provision of the the first eight amendments as limiting state authority - only federal government authority.

In fact, if you read the Congressional Record from the introduction of the 14th Amendment, it specifically was this situation that the sponsors of the 14th Amendment sought to rectify. They expressly intended the 14th Amendment to apply the protections of the Bill of Rights against state government action.

Although you argument is appealing to a degree, there is no historical support for it.

[mofo]

" In fact, it's likely they will lose, since the Alameda County ordinance seems to fall so comfortably within the range of acceptable gun control laws spelled out by Justice Antonin Scalia's majority opinion in District of Columbia v. Heller (2008), a list which includes "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Im not so sure of that. IIRC, Nordyke is specifically not about carrying firearms at all, but rather about the sale of them on Government owned property. You could make the argument that this is about laws imposing conditions and qualifications on the commercial sale of arms, but its far from clear that forbidding the sale of arms on government property falls "comfortably within the range of acceptable gun control laws" as you claim, especially because the exact same sale is legal off of govt property.

[Barely Suppressed Rage]

I think it's a hands-down winner for the County. It's county property; the county can decide what gets bought or sold there. This does not prevent you from buying, selling or carrying guns - you just have to do it in a different venue.

[mofo]

I wouldnt be at all suprised if you are right, but i disagree that it is a hands down winner. Let me ask you this, if the county allowed religious revivals at the fairgrounds, could they then ban Islamic religious gatherings? Could they allow 'White expo' but not 'Black expo'?

[Barely Suppressed Rage]

Apples and oranges. Your first hypo would be treating one group of people favorably based on their religion. A practice that violates the First Amendment does not necessarily violate the Second. Your second hypo would violate the equal protection clause of the 14th Amendment. Again, you would have to first convince a court that "gun owners" are a protected class for purposes of equal protection.

The Second Amendment protects your right to "keep" (own) and "bear" (carry) arms (e.g., guns). It does not protect a "right" to sell or buy guns at the Alameda County fairgrounds.

It seems to me perfectly within a state's right to set rules regarding use of its property, as long as those rules do not run afoul of a constitutional protection. I don't see a rule saying you can't have guns on county property as violating the Second Amendment - just like rules establishing "time and place" restrictions on speech do not violate the First.

Maybe a bit of line drawing? Maybe. But I don't see this as a strong case for the pro-gun folks. And I most definitely count myself among them. I have a CHP and as I type this, my Para Ordnance .45 1911 is in the center console of my truck (which has an "I'm the NRA and I Vote" sticker on the rear window).

Given that (1) SCOTUS has yet to issue a case that clearly forbids such a state rule and (2) it's the Ninth Circuit, I'd say it doesn't look good for the appellants.

[mofo]

"But I don't see this as a strong case for the pro-gun folks."

I agree, i just dont think it is as obvious as folks here have made it out to be.

IANAL, but I believe that when a law has the effect of dampening or interfering with a constitutinal right, then the courts are supposed to weight the supposed risks with the supposed benifits of allowing that law.

I believe that forbidding gun shows at the fairgrounds would have the effect of dampening one's 2ndA rights, although only a small effect and that the county has not made the case that there is any benefit to banning such a show. This is not to say that Nordyke will win, on the contrary, i think you hit the nail on the head, its the 9th, they will find a way to rule against Nordyke come hell or high water, but on principle, i think they should have to at least try and come up with a reason why this particular type of sale is different than say, an antique show or a car show or any other type of show.

[Barely Suppressed Rage]

IANAL, but I believe that when a law has the effect of dampening or interfering with a constitutinal right, then the courts are supposed to weight the supposed risks with the supposed benifits of allowing that law.

Actually, no. That is, in fact, one of the questions yet to be fully resolved.

When determining the constitutionality of a law, courts have to apply a degree or level of scrutiny of the law, based on several factors. Laws potentially affecting or infringing up on certain "fundamental" rights (such as free speech, religion, etc.) must be subject to "strict scrutiny." This is not simply a balancing judgement of risks versus benefits. Where a law imposes upon a fundamental right, there must be a "compelling state interest" that the law furthers and the law must be "narrowly tailored" to further that specific compelling state interest.

For certain other constitutional guarantees, there is an "intermediate" scrutiny, and then the lowest level of scrutiny essentially is a "reasonableness" standard.

This is a key issue that the SCOTUS has yet to define, and over which the debate is ongoing - should laws imposing upon the right to keep and bear arms be subject to strict scrutiny, or some lesser level of review?

From where I'm standing, if it is a specifically enumarated right in the Bill of Rights, which SCOTUS now has ruled to be individual and fundamental, based deeply on the history of this country, it should be subject to strict scrutiny review. But that's what we're going to have to wait and see what comes out of the circuit courts.

[mofo]

Ok i believe you, but whatever it is, its not a slam dunk or open and shut case or whatever metaphor people want to use.

Weather the standard is strict scrutiny, compelling state interest, or reasonableness, the state still needs to make the case that the prohibition in question has some purpose above and beyond simply "i dont like guns" and i dont think they have done that, make a real case that there is some compelling interest in banning gun shows.

In an event, you are saying the same thing i am, that the state cant just forbid Nordyke on a whim, you are just using more precise language than i was.

[mofo]

"The Second Amendment protects your right to "keep" (own) and "bear" (carry) arms (e.g., guns). It does not protect a "right" to sell or buy guns at the Alameda County fairgrounds."

The first amendment also does not protect a right to assemble at the Alameda County fairgrounds, yet i think we both agree that the county cannot say "this one group of religious people can use the fairgrounds, but not this other religious group"

[Barely Suppressed Rage]

Yes, but that does not answer the question of whether the county can say "you can sell cakes and pies, but not guns." It is not at all the same thing.

[mofo]

No, but its the same concept, that if the state provides something, a service, a venue, a platform on which to speak, they cannot discriminate in who has access to that service.

Again, if the state allows the fairgrounds for religious reasons, it cant then go on to say, "but not that religion" It could say, no religious uses of the fairgrounds at all, but it cant say religious uses for only those religions we tolerate. Again, is it the same thing as forbidding a gun show but not a car show? No, but it is clearly the same concept, that the state cant offer a service then discriminate who can use it.

[jdberger]

Another correction - "all of the 9th Circuit judges" will not hear the arguments. Only 11 will. The Ninth Circuit has 29 active judges.

[Oso Politico]

According to Sotomeyer (la sabia latina)then, some amendments apply to the States and others don't. Verily the wisdom of Solomon, or whatever...

[Barely Suppressed Rage]

Nothing novel in that theory - it is entirely consistent with the "selective incorporation" doctrine. Which has been around for many decades.

It's complete bullshit, of course, but it's been around for many decades. So it's not so outrageous that Sotomayor or any other judge would adhere to that rule, as it unfortunately is the established law of the land.

[Charles Nichols]

Although it would be nice for the Court of Appeals to say something nice about the individual's Second Amendment Right, that isn't what is at issue in this case.

In the last en banc hearing the attorney for the County acknowledged that right, albeit reluctantly.

Nordyke is a case about the commercial sale of arms in a government building.

Under the Heller opinion, that is a pretty high hurdle for the Nordykes.

[mofo]

Its a government *owned* building, one where other commercial activity is permitted. This isnt a sensitive area as laid out by heller, this is a commercial outlet held and operated in trust by the government.

If this were a privately held facility, then it would be a open and shut case, the owner has the right to exclude whomever he chooses (except based on race). However, the fact that the government owns it does change things.

[mad libertarian guy]

They tried this shit in Kentucky when Fayette Country tried to restrict firearms from public buildings (where the local gun show takes place).

The state government smacked that bitch down with the quickness.

[Don Kilmer]

The County conceded in the trial court that their ordinance does not prohibit the sale of firearms on county property. In fact that issue was resolved in an earlier Ninth Circuit case titled Nordyke v Santa Clara County on commercial speech grounds that was favorable to the gun shows.

What makes Alameda's policy irrational is that they admit gun sales can take place on county land and that gun shows can even take place on county land, they just don't want any actual guns possessed by the buyer/sellers or the gun show attendees while these mythical events take place.

Alameda has also admitted in the trial court that the Nordyke's shows comply with all state and federal firearm laws, including California's very strict regulations of gun shows. (e.g., no transactions outside the show, no private sales without the use of federal/state licensed gun dealers, mandatory safety-ties on all weapons, extra security - paid for by the show promoters, etc...)

Alameda has also conceded that they can not trace any crime or crime-related artifacts to the gun shows. (I.e., the gun shows do not produce 'secondary effects' that necessitate public safety legislation that impacts a fundamental right.)

The Nordykes already run their gun shows in compliance with reasonable 'time, place & manner' regulations.

Alameda's objection to gun shows at their fairgrounds is based on an ideological antagonism to the Second Amendment and the ancillary rights that a liberal interpretation of that amendment implies.

[mofo]

This. If anyone is still reading this thread, that is what i have been saying, that the state needs to demonstrate a real actual need to ban gun shows, it cant simply do so on a whim.

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