Font Size: 
9th Circuit OKs Ban on Gun Shows at County Fairgrounds
The Recorder
April 23, 2009
Counties can ban gun shows on public property without violating broad Second Amendment rights established by the Supreme Court last year, a 9th Circuit U.S. Court of Appeals panel held Monday.
Alameda County supervisors' desire to reduce gun violence is a "perfectly plausible" reason for enacting an ordinance that effectively bars gun shows at the county fairgrounds in Pleasanton, Calif., Judge Diarmuid O'Scannlain wrote. Fairgrounds, he said, can be considered a "sensitive place" where authorities may restrict gun possession without running afoul of the Supreme Court's decision in District of Columbia v. Heller. The landmark ruling cemented an individual's right to bear firearms for self-defense.
The plaintiffs "object that the county has provided no way to determine what constitutes a 'sensitive place.' But neither did Heller; Second Amendment law remains in its infancy," O'Scannlain wrote. "The [Supreme] Court listed schools and government buildings as examples ... . The open, public spaces the county's ordinance covers fit comfortably within the same category as schools and government buildings."
The ruling is the latest in a years-long effort by gun show promoters Russell and Sallie Nordyke to overturn Alameda County's 1999 ordinance that makes it a misdemeanor to carry a gun or ammunition onto county property. An exemption was later added for theatrical events.
Although the ordinance does not specifically mention gun shows, the Nordykes say the law unfairly targets firearm owners and sellers since it's unlikely that show organizers would host an event where guns are banned. The couple argued that the law violated First and Second Amendment protections and expressed hope that the Supreme Court's Heller decision would breathe new life into their lawsuit. It didn't.
Monday's decision in Nordyke v. King, 09 C.D.O.S. 4634, creates "an abstract right," said the Nordykes' attorney, Donald Kilmer Jr. of San Jose.
"If you have the right to run a printing press but can't buy a printing press, what good is freedom of the press?" he said.
Kilmer and his clients were still reviewing the 9th Circuit's ruling Monday afternoon and had not decided whether to appeal, he said.
Attorneys for Alameda County did not return phone messages.
Kilmer and gun rights groups took solace in the fact that the court said the Second Amendment applies against states and local government under the due process clause. That's especially important in a state like California, which does not include an individual right to bear arms in its constitution, he said.
"It's sort of like the NRA wins and gun shows lose," Kilmer added.
The 43-page decision was dominated by an elaborate analysis of gun ownership history in the United States. O'Scannlain cited the words of William Blackstone, Samuel Adams and Alexander Hamilton in dissecting the country's "deep" cultural and historical roots in firearm possession.
The decision concluded with a one-page concurrence by Judge Ronald Gould, who argued that an individual's Second Amendment rights do not preclude reasonable gun restrictions by a government agency.
"All weapons are not 'arms' within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense," Gould wrote.
