CLIENT ALERT MEMORANDUM
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer, Esq.
NINTH CIRCUIT UPHOLDS COUNTY’S RIGHT TO BAN GUN SHOWS ON COUNTY PROPERTY
May 03, 2011
On May 3, 2011, the Ninth Circuit U.S. Court of Appeals upheld Alameda County’s right to prohibit gun shows from being held on the county fairgrounds. In the case of Nordyke v. King, the Court ruled that the Second Amendment to the U.S. Constitution does not prevent such a ban and that it is not an unconstitutional infringement on an individual’s right to possess a handgun for personal protection.
The case was originally decided in April, 2009 and then re-heard following the decisions rendered by the United States Supreme Court in the cases of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 130 S. Ct. 3020 (2010). Following the McDonald decision,
the Ninth Circuit “. . . then ordered supplemental briefing addressing ‘the impact of McDonald on the disposition of this case,’ as well as ‘any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question.’ After further oral argument, the case was resubmitted.”
The California Police Chiefs’ Association, the California State Sheriffs’ Association, and the California Peace Officers’ Association joined with others in filing an amicus curiae brief in support of Alameda County’s right to restrict such gun sales on county property. As general counsel to the three associations, the firm of Jones & Mayer reviewed the proposed brief, which was prepared by the firm of Nixon Peabody, and recommended that the associations sign on in support.
FACTS
Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, the Nordykes have promoted numerous shows across the state, including one at the public fairgrounds in Alameda County. In the summer of 1999, the county passed an ordinance making it a misdemeanor to bring onto, or to possess a firearm or ammunition on county property. The Ordinance does not mention gun shows.
The county asserted that it passed the Ordinance in response to a shooting that occurred the previous summer at the annual county fair. The Ordinance’s text reflects this, finding that “gunshot fatalities are of epidemic proportions in Alameda County.
The Nordykes, however, alleged that the Ordinance’s real purpose was to ban gun shows from county fairgrounds. Although the Ordinance did not expressly prohibit gun shows or the sale of firearms, the Nordykes insisted then and maintain now that they cannot hold a gun show without bringing guns to the shows. After the passage of the ordinance, in 1999, the Nordykes filed suit against the County and the ensuing litigation was extensive and convoluted.
HELLER AND MCDONALD
The significance of the Heller case was the determination by the Supreme Court that a, virtually, total ban on the possession of a handgun in one’s home, for personal protection, was an unconstitutional infringement on a person’s Second Amendment right. In addition, in theMcDonald case, the Court ruled that the Second Amendment applied to individuals and not just to groups, such as militias.
The Ninth Circuit noted that, following the Supreme Court decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual’s right to keep and to bear arms for self-defense, it called for further briefing and then rendered a decision.
On the Second Amendment issue, “ . . . we held: (1) the individual right to keep and to bear arms recognized in Heller 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. We declined to adopt an explicit standard of review for evaluating gun-control regulations.” (Emphasis added.)
Once again, the U.S. Supreme Court became a factor when it decided the McDonald case. As the Ninth Circuit notes, the Supreme Court held 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. To support this holding, the Court went to great lengths to demonstrate that the right to keep and to bear arms is a “fundamental” right.”
However, “McDonald, like Heller before it, did not explicitly adopt a standard of review for Second Amendment cases” and, therefore, that burden falls to the various courts of appeal.
WHAT REGULATIONS ARE PERMISSIBLE?
The Ninth Circuit held that “ . . . courts cannot determine whether a gun control regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to beeffective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control regulations based on their likely effectiveness is a task better fit for the legislature.”
Additionally, the Court states as an example that, “ . . . rather than strictly scrutinizing every law which burdens [one’s fundamental] rights, the Supreme Court has held that “the rigorousness of our inquiry into the propriety of a state . . . law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” The Ninth Circuit ruled that “. . . only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.”
Therefore, said the Court, “ . . . the proper inquiry is whether a ban on gun shows at the county fairgrounds substantially burdens the right to keep and to bear arms; not whether a county can ban all people from carrying firearms on all of its property for any purpose.”
In keeping with that conclusion, the Court said that “ . . . when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves law abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes?”
Furthermore, held the Court, “a law does not substantially burden a constitutional right simply because it makes the right more expensive or more difficult to exercise.” And, “ . . . regulations of gun sales do not substantially burden Second Amendment rights merely because they make it more difficult to obtain a gun.” In addition, “ . . . the Ordinance does not prohibit gun shows, but merely declines to host them on government premises.”
HOW THIS AFFECTS YOUR AGENCY
Although this case has been remanded to the lower court for further matters to be decided, it appears to continue to uphold the argument raised by the county, and which was raised in the amicus brief in which CPCA, CSSA and CPOA joined. Namely, that the banning of weapons on county property is a reasonable regulation recognized by the United States Supreme Court in both the Heller and McDonald decisions.
It is likely that further litigation will be forthcoming. However, unless this ruling is overturned, it allows local governments to reasonably regulate activity occurring on its property.
As the Court stated in its decision, anytime a constitutional right is restricted, there must be a legitimate governmental interest which can justify such action. In the instant case, Alameda County “ …recites several statistics about gunshot deaths and injuries in Alameda County and then concludes that “[p]rohibiting the possession of firearms on County property will promote the public health and safety by contributing to the reduction of gunshot fatalities and injuries in the County.” That is considered to be a legitimate and significant governmental interest.
There have been and, in all likelihood, will continue to be challenges to restrictions on possession of weapons. As counsel to CSSA, CPCA and CPOA, we are currently
involved in a case which challenges a sheriff and/or police chief’s right to determine if “good cause” exists in deciding on whether to issue a private person a permit to carry a concealed weapon. In addition, there have even been challenges to laws which restrict weapons from those who suffer from various mental illnesses. In each of those cases, the burden will be on the government, which is attempting to impose such restrictions, to show justification for so doing.
If you are interested, Jones & Mayer published two Client Alerts in the past regarding these issues. Please see Client Alert Memo, Vol. 24, No. 9 (4/21/09) regarding the earlier decision in Nordyke and Vol. 25, No. 2d (6/28/10) regarding McDonald.
As in all such matters, it is imperative that you receive advice and guidance from your designated legal advisor. As always, however, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.