The United States Court of Appeals for the Ninth Circuit recently upheld the dismissal of a gun show promoter’s claim against a county that banned firearms on county property. The court found the gun show promoter could not state a Second Amendment claim because the county conceded that an exception to the ban allows gun shows to be held on county property as long as the firearms are properly secured to prevent unauthorized use. (Nordyke v. King (— F.3d —-, C.A.9 (Cal.), June 1, 2012).
In 1999, Alameda County (“County”) passed an ordinance (“Ordinance”) that provides, “Every person who brings on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.” The Ordinance provides an exception for “[t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event” where the firearm is used as part of the production or event provided that “when such firearm is not in the possession of the authorized participant, it is secured to prevent unauthorized use.”
Sallie and Russell Nordyke are legally authorized to sell firearms and seek to conduct gun shows at the County fairgrounds. The Nordykes previously promoted gun shows at public fairgrounds within County. The Nordykes and other individuals (collectively, “Nordykes”) brought a lawsuit against County that alleged the Ordinance violated their Second Amendment rights.
The lawsuit was in process for 12 years. In 2011, the Ninth Circuit Court of Appeals held in Nordyke v. King, 644 F.3d 776 (9th Cir.2011), 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.” (See the link to our previous Legal Alert on this case). The district court dismissed the Nordykes’ Second Amendment claim. The Nordykes appealed en banc to the Ninth Circuit Court of Appeals.
During the latest appeal, County gave its “current, official interpretation of its ordinance.” County now asserts that a gun show is an “event” within the meaning of the exception set out in the Ordinance. County now claims that when conducting a gun show on County property, the Nordykes “may offer firearms for sale with the requirement that, when a ‘firearm is not in the actual possession of the authorized participant,’ the firearm must be ‘secured to prevent unauthorized use.’” County states the firearms can be secured with a sturdy cable that attaches the firearm to a table, like the cables used to secure cameras, cell phones and other items displayed for sale. County maintains that buyers may physically inspect firearms that are secured.
The court of appeals sitting en banc stated, “We hold the County to its interpretation of the ordinance, and its reading is a reasonable one.” In light of County’s interpretation, the Nordykes cannot state a viable claim under the Second Amendment because the Ordinance “regulates the sale of firearms at [the Nordykes’] gun shows only minimally and only on County property.” The court left for another day the issue of the breadth of the Second Amendment because “it is clear that, as applied to [the Nordykes’] gun show and as interpreted by County, this regulation is permissible.”
The court cautioned that “should the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, [the Nordykes] or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices.” However, at this point the Nordykes cannot prevail on their Second Amendment claims.
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Jeffrey L. Massey | 916.321.4500