Vindicating the Second Amendment: A Pioneering Gun Rights Case Comes to a Close


The final chapter of a trailblazing Second Amendment lawsuit appears to have been written. Yesterday a full panel of the United States Court of Appeals for the 9th Circuit issued its decision in Nordyke v. King, upholding an Alameda County, California gun control ordinance regulating gun shows at the county fairgrounds. The case first originated more than a decade ago when gun show promoters Russell and Sallie Nordyke filed a Second Amendment challenge against the county's 1999 ban on the possession of firearms on county-owned property, a law enacted primarily to prevent any guns from being sold at the fairgrounds. The Nordykes' suit didn't really pick up steam until 2008, however, when the U.S. Supreme issued its decision in District of Columbia v. Heller, which struck down Washington, D.C.'s handgun ban and ruled definitively that the Second Amendment secures an individual right, not a collective one, to keep and bear arms.

One issue Heller did not address was whether the Second Amendment also applied to state and local governments. In April 2009, a 3-judge panel of the 9th Circuit pushed that issue into the spotlight with a decision in the Nordyke's case. Although the 9th Circuit voted to uphold the Alameda County gun law, the court also declared that the time had come for the Second Amendment to be enforced against the states. "The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental," wrote Judge Diarmuid O'Scannlain. "We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments."

Because a different federal appeals court, the 2nd Circuit, had ruled in January 2009 that the Second Amendment did not apply to the states (in an opinion joined by future Supreme Court Justice Sonia Sotomayor), the Supreme Court was left with no choice but to step in and resolve the split among the circuits. The Court did so in its landmark 2010 ruling in McDonald v. Chicago, which struck down the Windy City's handgun ban and ruled that the Second Amendment did indeed apply to the states via the 14th Amendment.

Which brings us back to the Nordykes. In the course of all this litigation, Alameda County decided to modify its 1999 law, finally permitting fairground gun sales so long as the guns aren't loaded and various other safety measures are followed. In its ruling yesterday, the 9th Circuit found these new regulations to be constitutional. So while the Nordykes lost repeatedly at earlier stages in their case, they ultimately succeeded in their bid to bring gun shows to the county fairground. And more important, they played a crucial role in advancing Second Amendment rights throughout the country. The Bill of Rights stands on a stronger footing thanks to their efforts.