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Two months after court liberals sent a shot across the bow of gun rights advocates, a more conservative panel of the Ninth Circuit U.S. Court of Appeals fired back Tuesday, staking out battle lines in a fight over the meaning of the Second Amendment. In upholding an Alameda County ban on possession of guns within county property — an ordinance that effectively bans gun shows — a three-judge panel nevertheless ripped into one court precedent and reduced to dicta a December opinion by Judge Stephen Reinhardt. The latest opinions cement the court’s place at the center of the debate over whether the Constitution confers an individual, rather than a collective, the right to keep and bear arms. “There’s an awful lot of silver lining in this cloud,” said C.D. “Chuck” Michel, an attorney for the National Rifle Association, which filed an amicus curiae brief. “They have just gone out of their way to discredit the Silveira decision by Judge Reinhardt.” In reluctantly setting aside the individual rights argument and affirming the gun ban, Judge Diarmuid O’Scannlain said he was bound by precedent and scolded Judge Stephen Reinhardt for “improperly” reaching the issue in December. In a concurring opinion, Judge Ronald Gould urged an expansive reading of the Second Amendment, one synonymous with the Bush administration’s position that gun possession is an individual right, not a collective one. Gould noted that the Ninth Circuit’s 1996 precedent — decided before the renewed debate over the meaning of the Second Amendment began — could only be overruled by an en banc panel or the U.S. Supreme Court. But he and O’Scannlain left no doubt how they’d rule given a free hand. The 1996 precedent, Hickman v. Block, 81 F.3d 98, found that the Second Amendment confers only a collective right. Two years ago, the Fifth Circuit concluded the Second Amendment grants an individual right. December’s Ninth Circuit ruling in Silveira v. Lockyer, 312 F.3d 1052, by Reinhardt, examined the Second Amendment in greater depth before essentially reaffirming Hickman. In Tuesday’s Nordyke v. King, 03 C.D.O.S. 1430, O’Scannlain wrote that Reinhardt’s “exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary.” On the merits, Tuesday’s case was essentially decided during the summer, when the California Supreme Court ruled against Russell Nordyke and his challenge to Alameda County’s gun ban. The Ninth Circuit had asked the state high court to decide certain issues related to state law. The Alameda County ordinance did not ban gun shows per se, but banned possession of such weapons on county property. The action followed a shooting at the Alameda County Fair in the late 1990s. O’Scannlain left open the door for Nordyke to launch a future challenge to the ordinance, but held that on its face the ordinance is not unconstitutional. That leaves plaintiff’s attorney Donald Kilmer Jr., a San Jose solo, with a choice: to go back to a lower court and develop an “as applied” challenge if his client is actually denied a gun show permit or to take the case one step further by asking an en banc Ninth Circuit panel to clarify the court’s jurisprudence. “We haven’t made up our minds as to what we’re going to do,” Kilmer said. A related case between Los Angeles County and Great Western Gun Shows settled Friday, with the county agreeing to pay $1.6 million. Alameda County Counsel Richard Winnie distinguished the two cases. The Los Angeles ordinance banned the sale of weapons, while Alameda County’s banned merely their possession. “We were concerned about the possession of guns on county property, period,” Winnie said. “You could have a gun show. You just couldn’t have a gun.” Kilmer, however, pointed out that if the county didn’t intend to ban gun shows, it could have given them one of many exceptions written into the ordinance. He disputed that you could hold a show without guns present. “That’s absurd,” Kilmer said. Without guns, “It’s a gathering of people who like to talk about guns.”

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