CPOA Magazine Article- Possession of Handguns – New Case Decisions


August, 2008

By:  Martin J. Mayer

In June, 2008, the United States Supreme Court issued a landmark decision in the case ofDistrict of Columbia v. Heller, 2008 DAR 9613.  In a 5 – 4 decision, the United States Supreme Court ruled that the District of Columbia’s law, which prohibited handgun possession, was unconstitutional and violated the Second Amendment of the Constitution, which guarantees an individual’s right to own a gun for self defense.  The Court ruled that the District could not have a total ban on handguns, nor could it have a requirement that firearms kept in one’s home must be non-functional (by requiring the use of trigger lock mechanism), since it would interfere with the weapon being used for self defense purposes.

The Supreme Court also ruled that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a Militia, and to use that arm for traditionally lawfully purposes, such as self defense within the home.”  The opinion, which was written by Justice Antonin Scalia, stated that the Second Amendment “surely elevates above all other interests the right of law abiding, responsible citizens to use arms in defense of hearth and home.”  In the first fifty-six pages of a sixty-four page opinion, Justice Scalia analyzed the history of the Second Amendment which states:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

However, the majority stated that, “like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.  The Court’s opinion should not be taken to cast doubt on long standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The majority opinion states, “we are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.  The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns….”  The Court goes on to state, however, that the Constitutional right to possess the weapon excludes certain policy choices from being implemented.  “These include the absolute prohibition of handguns held and used for self defense in the home.”

On several occasions, the Court focuses on the right of an individual to maintain a weapon in his or her own home while, at the same time, recognizing that reasonable regulations regarding the possession of handguns outside of the home can be imposed by the individual states.

Nordyke v. King (Alameda County)

In 2002, the Ninth Circuit U. S. Court of Appeal issued a ruling in the case of  Nordyke, et al. v. King, et al., 319 F.3d 1185. In that decision, the Court ruled that an Alameda County ordinance which prohibited possession of firearms on county property did not infringe upon the First or Second Amendment to the United States Constitution.

Nordyke was a gun show promoter who brought a section 1983 action against the county alleging that the ordinance violated his Constitutional rights.  The ordinance was preventing Nordyke from promoting gun shows at the Alameda County Fairgrounds since the fairgrounds were located on unincorporated county land.

The exhibitors at the gun shows, which had been held since 1991, included sellers of antique firearms, modern firearms, ammunition, old West memorabilia and outdoor clothing.  In August 1999, Alameda County passed the ordinance which made it illegal to possess firearms on county property.  The ordinance made it illegal to have the presence of firearms at gun shows and, therefore, made it unlikely that the gun show could profitably be held at that location.

In the Ninth Circuit’s decision it stated “we have squarely held that the Second Amendment guarantees a collective right for the States to maintain an armed Militia and offers no protection for the individual’s right to bear arms.” (Emphasis in original.)  In referring to a 1996 decision, Hickman v. Block, 81 F.3d 98, the Nordyke court stated that “it is clear that the Second Amendment guarantees a collective rather than an individual right.  Because the Second Amendment guarantees the right of the States to maintain armed Militia, the States alone stand in the position to show legal injury when this right is infringed.”

The Nordyke court also acknowledged that there are decisions and arguments supporting the position that the Second Amendment creates an individual, rather than collective, right to possess and bear arms.  Nonetheless, the Ninth Circuit concluded that the Second Amendment provides only a collective right, not an individual right and, therefore, upheld the county’s ordinance.

Nordyke Re-Hearing

Following the decision by the United States Supreme Court in the D.C. v. Heller case, where it held that individual Americans have the right to own guns for personal use, the Ninth Circuit, on it’s own motion, requested the parties to submit supplemental briefs on that decision’s impact, if any, on the Nordyke decision. The Court also extended the time for amicus briefs to be submitted, until October 2, 2008.  The League of California Cities will be submitting an amicus brief supporting local government’s right to regulate possession of weapons on it’s own property.

It does not appear from the language in the Supreme Court’s decision that the Ninth Circuit will reverse the Nordyke ruling since the Supreme Court itself stated that its “opinion should not be taken to cast doubt on long standing prohibitions on the possession of firearms….”  It then goes on to articulate examples of legitimate prohibitions which have been imposed by states including possession of such weapons at schools and government buildings.

Again, it is important to note that the Supreme Court’s decision focuses on the individual’s right to possess weapons in his or her own home for the lawful purpose of self-defense.  In any event, since the Supreme Court specifically ruled that the Second Amendment guarantees an individual’s right to own a gun, and the Ninth Circuit, in the Nordyke decision, ruled that it was
a collective, not an individual, right additional briefing has been requested.

Martin J. Mayer, a name partner with the firm of Jones & Mayer, has served as General Counsel to California Peace Officers’ Association for approximately twenty-five (25) years.  The firm is located in Fullerton, California and is a public sector law firm which focuses its attention on representing the interests of law enforcement in cities and counties throughout the State of California.