COUNTY PROPERTY, GUN SHOWS, AND THE SECOND AMENDMENT
On June 1, 2012 the Ninth Circuit U. S. Court of Appeal, in a unanimous en banc decision, ruled in Nordyke v. Alameda County Board of Supervisors, 2012 U.S. App. LEXIS 11076, that Alameda County’s (modified) ban on guns being sold on county property did NOT violate the Second Amendment to the Constitution.
In the prior case of Nordyke v. Alameda County et al, which has been in litigation for over a dozen years, the Court held that the county’s ordinance, banning possession of guns at a gun show, was a constitutional exercise of dominion over the County’s own property. It is the equivalent of the owner of private property banning people from bringing guns onto their property.
Gun Show Is an Event
The ordinance permits “(t)he possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.”
In this proceeding, the County concedes that the statute allows for certain limited exceptions to the ban, for events, and that the Nordyke’s gun show would be considered such an event.
It was noted, by four of the justices who wrote a concurring opinion, that it took the County twelve years to discover that an exception to the gun ban ordinance could be applied to the Nordyke’s gun shows. “Contrary to its previous assertions, the County now concedes that such an event can be held with firearms present and available for meaningful physical inspection by potential buyers.”
The County argued that it has stated, from its first arguments to the appellate courts, that it considers gun shows “events,” as referenced in the ordinance, and that “Plaintiffs, when conducting a gun show, may offer firearms for sale with the requirement that, when a ‘firearm is not in the actual possession of the authorized participant,’ the firearm must be secured to prevent unauthorized use.”
The County suggested that “a sturdy cable attaching the firearm to a fixture, such as a table, would suffice – much as cell phones, cameras, and other attractive items routinely are displayed for sale. The County further represents that buyers may physically inspect properly secured firearms.”
As such, one would argue, there is no infringement on possessing or owning a firearm, merely on how the weapons will be handled while on county property.
Second Amendment
The Nordykes had challenged the ordinance claiming it violated their rights under the Second Amendment. The Court notes that the Nordykes are licensed to sell firearms and are obligated to follow both state and federal statutes regarding their sales of guns. The County’s ordinance prohibits having a loaded or unloaded weapon on the property and violation of the statute is a misdemeanor.
The Court held that the County’s interpretation of the ordinance, in terms of the guns being secured, is reasonable and, therefore, “with that interpretation in mind, Plaintiffs cannot state a viable Second Amendment claim. Thus read, the ordinance regulates the sale of firearms at Plaintiffs’ gun shows only minimally, and only on County property.”
HOW THIS AFFECTS YOUR AGENCY
This case is significant to local governments, cities and counties, by reinforcing their right to exercise local control, especially as to the public’s safety, as long as their rules don’t violate someone’s constitutional rights.
In this case, the Court saw the government imposing “reasonable regulations” regarding the possession of the weapons, as opposed to banning any form of possession.
In terms of government imposing such regulations, the Court also observed that “there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate . . . and the government acting as proprietor, to manage its internal operations.”
If your city or county is involved in these types of legal disputes, the Nordyke case certainly provides the opportunity to reasonably regulate functions which create legitimate concerns for public safety.
As the Court said, in a footnote, “Alameda County could reasonably conclude that gun shows are more dangerous than military reenactments.” And, obviously, the regulations must be relevant to the functions being performed, and they must be fair and appropriate requirements for the event.
It is always important to seek out and secure advice and guidance from your agency’s legal advisor on matters involving the law – such as this one. However, if you wish to discuss the case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.