Vol. 24 No. 9- Cities And Counties Can Prohibit Guns On Public Property

April 21, 2009

On April 20, 2009, a unanimous Ninth Circuit U.S. Court of Appeals ruled, in the case ofNordyke, et al v. King, et. al, that local governments can regulate the use of public property which, therefore, allows them to ban guns on such property, despite Second Amendment protections.  Nordyke, who is the owner of a business which promotes gun shows, sued Alameda County in an effort to overturn a county ordinance which banned possession of firearms on county property, thereby effectively banning gun shows on any public property.  Alameda passed the ordinance in 1999 after a man shot to death eight people at the county’s fairgrounds.

As would be expected on a matter of such constitutional significance, there were numerous amicus curiae briefs filed on both sides of this issue.  The California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA), and the California Peace Officers Association (CPOA), joined with the City of Oakland, the City and County of San Francisco, and several other organizations, in an amicus brief supporting the right of Alameda County (or any other city or county) to reasonably regulate possession of weapons on its property or in its buildings.
Second Amendment Protections

Last year, the United States Supreme Court issued a landmark decision in the case ofDistrict of Columbia v. Heller, 554 U.S. 290, wherein the Court ruled that the Second Amendment gives to individuals the right to keep and bear arms.  Prior to that decision, courts had ruled that the Second Amendment applied to a collective, such as a state militia, but not to an individual.  The Heller Court, for the first time, ruled that it was, in fact, an individual right, however, the decision centered on the right to be armed in one’s own home for the purpose of self defense.

The Nordyke court stated that “we therefore conclude that the right to keep and bear arms is deeply rooted in the nation’s history and tradition,” however, the court stated, the Alameda ordinance did not interfere with that right, nor with the holding in Heller.  “The ordinance before us is not of that ilk.  It does not directly impede the efficacy of self-defense or limit self-defense in the home.  Rather, it regulates gun possession in public places that are county property.”
Government’s Right to Regulate

In the Heller decision, after concluding that laws which ban the possession of weapons in one’s own home, or require that they be inoperable (as did the District of Columbia’s ordinance), were unconstitutional, the U.S. Supreme Court stated that, “nothing in our opinion should be taken to cast doubt on longstanding 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.” (Emphasis added.)

The Nordyke court concluded that the Alameda “ordinance merely forbids the carrying of firearms in sensitive places, which includes the Alameda County fairgrounds and other County property.”  Furthermore, the court held that “the ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it.”

“Finally,” the court wrote, “prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for “sensitive places” that Heller recognized.”  Based on this finding, therefore, cities and counties can reasonably regulate the carrying of weapons on public property or in public buildings.  This would be true whether or not, for example, one possesses a permit to carry a concealed weapon (CCW).  The issuance of a CCW permit will not trump local government’s authority to prohibit the possession of such weapons on its own property.
The Second Amendment and Local Government

One issue left unresolved by the U.S. Supreme Court in the Heller decision was whether or not the Second Amendment applied to cities and counties through the Fourteenth Amendment, in an issue known as “incorporation.”  By concluding that the right to bear arms was fundamental to the nation’s founding, the Nordyke court held that the Second Amendment is incorporated into the Fourteenth Amendment and applies to local governments.  ‘We are therefore persuaded that the due process clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

As such, local governments cannot pass laws, such as was done by the District of Columbia, which infringe upon that fundamental right.  However, the court pointed out, “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.”  As a result, the court stated, “we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.”

As was articulated in the amicus brief filed on behalf of law enforcement, it is important to allow local government to reasonably regulate the possession of weapons on its property and in its buildings (including courts), in order to provide for the public’s safety.  This decision gives local government that tool.  At the same time, the court concluded that the Second Amendment applies to local government and, therefore, outright prohibitions on possession of weapons in one’s home, for self-defense purposes, will not be permitted.

If a city or county adopts an ordinance banning weapons from its property and/or buildings, it gives law enforcement the ability to ensure that such weapons are not allowed to be carried, even if one has been issued a CCW.  This is an option afforded local government and each city and county will need to make its own decision regarding such ordinances.

As always, we urge that you confer with your agency’s own attorney for legal advice and guidance.  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