In Nordyke v. King, (— F.3d —-, C.A.9 (Cal.), May 2, 2011), the United States Court of Appeals for the Ninth Circuit addressed whether a local government may ban gun shows on its property without violating the Second Amendment. The court of appeals held that a ban on gun shows does not violate the Second Amendment if it does not substantially burden the right to keep and bear arms and “the restriction leaves law-abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes.”
Sallie and Russell Nordyke (collectively, the “Nordykes”) promote gun shows in California. The Nordykes have previously promoted gun shows at the public fairgrounds in Alameda County (“County”). In 1999, County passed an ordinance (“Ordinance”) that provides it is a “misdemeanor to bring onto or to possess a firearm or ammunition on county property.” The Ordinance, however, does not specifically address gun shows on County property. County claims it passed the Ordinance because of a shooting at the County fair. The Nordykes, however, assert the real purpose of the Ordinance is to ban gun shows and they cite statements made by the County supervisor to support this assertion.
After the Ordinance went into effect, the fairgrounds’ manager “asked the Nordykes to submit a written plan explaining how their next gun show would comply with the Ordinance.” The Nordykes did not submit a plan but instead filed a lawsuit. The district court granted summary judgment in favor of County. The Nordykes appealed. The Ninth Circuit Court of Appeals issued an opinion that affirmed the district court’s decision and on the issue of the Nordykes’ Second Amendment claim held “(1) the individual right to keep and to bear arms . . . is incorporated against state and local governments through the Due Process Clause of the Fourteenth Amendment; but (2) the Ordinance constituted a permissible regulation of firearms under the Second Amendment.” However, that opinion was vacated and reheard by the court of appeals en banc.
Before the en banc panel issued its opinion, the United States Supreme Court issued an opinion in McDonald v. Chicago, 130 S. Ct. 3020 (2010), and announced that “‘the Second Amendment right to keep and bear arms’ is ‘fundamental to our scheme of ordered liberty’ and, therefore, incorporated against the states through the Due Process Clause of the Fourteenth Amendment.” The Supreme Court rejected the argument “that the Second Amendment should receive less protection than the rest of the Bill of Rights.” The court of appeals was required to reconsider the Nordykes’ appeal in light of the Supreme Court’s decision in McDonald.
The court of appeals noted that the Supreme Court has not articulated a standard of review to be applied in Second Amendment cases. The court of appeals declined to apply a strict scrutiny standard to all laws aimed at controlling guns. The court stated, “Applying strict scrutiny to every gun regulation would require courts to assess the effectiveness of a myriad of gun-control laws.” A government is likely to claim a gun-control “law serves its interest in reducing crime.” The Supreme Court has previously held that a government’s “‘general interest in preventing crime’ is ‘compelling.’” A strict scrutiny standard of review would require a court to determine “whether a gun-control regulation is narrowly tailored” to prevent crime. However, “courts cannot determine whether a gun control regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective.” The task of “[s]orting gun-control regulations based on their likely effectiveness” should be left to the legislature.
The court held “that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.” The question in the Nordykes’ case is “not whether a county can ban all people from carrying firearms on all of its property for any purpose,” but “whether a ban on gun shows at the county fairgrounds substantially burdens the right to keep and to bear arms.”
When deciding the question of whether a restriction on gun sales substantially burdens rights guaranteed by the Second Amendment, the court “should ask whether the restriction leaves law-abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes.” A substantial burden is not imposed because a law makes Second Amendment rights more “expensive or more difficult to exercise.” Also, a law is not likely “to impose a substantial burden on a constitutional right where it simply declines to use government funds or property to facilitate the exercise of that right.”
The Nordykes’ complaint did not allege sufficient facts to state a Second Amendment claim. However, the court of appeals concluded the Nordykes must be given the right to amend their complaint to try and state a Second Amendment claim.
The court of appeals held the trial court properly granted summary judgment to County on the Nordykes’ claim that the Ordinance violated their First Amendment rights. The Ordinance furthers County’s interest in keeping people on County property safe from gun crime. The Ordinance is “unrelated to the suppression of free expression.” Finally, the restriction is not greater than necessary to protect County’s interest in protecting people on its property from gun violence. The court also found the Nordykes failed to state a claim for violation of the Equal Protection Clause.
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Jeffrey L. Massey | 916.321.4500