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August 18, 2010
Today multiple briefs have been filed in the Ninth Circuit Court of Appeals supporting gun show owners who have challenged an Alameda County ordinance banning firearms on county property, including the county fairgrounds. These include amicus briefs by the National Rifle Association, CATO Institute, Second Amendment Foundation, and Calguns Foundation, as well as the brief for the plaintiffs, the Nordykes. Yesterday the California Rifle and Pistol Association Foundation (CRPAF) filed its amicus brief.
Copies of the briefs are being posted at www.calgunlaws.com as they become available. The following are the briefs that are currently available:
The Alameda ordinance effectively prohibits gun shows from taking place on the Alameda County Fairgrounds in Pleasanton, California. The Nordyke family promoted gun shows at the fairgrounds from 1991 to 1999. Although no violence was associated with the gun show, Alameda County nonetheless passed the ordinance in 1999 as a way to stop pro-Second Amendment and civil rights activists from gathering there. The Nordykes sued, challenging the ordinance on multiple grounds.
The case has a long and convoluted history. But as the case has progressed the legal issues have narrowed down to whether the ordinance unconstitutionally infringes on the Second Amendment rights of those who promoted or attended the show.
After the trial court most recently ruled against the Nordykes, they appealed. On April 20, 2009, the three-judge Nordyke appeals court panel was the first in the nation to rule that the Second Amendment’s prohibition against infringing on the individual right to keep and bear arms applies not just to federal action, but state and local action as well. Two other circuits, the Second and Seventh, had ruled that the Second Amendment only limits federal government actions.
A federal appellate court ruling applying the Second Amendment to the states via the "incorporation" doctrine was the next major goal for gun rights advocates following the June 2008 decision in District of Columbia v. Heller, in which the United States Supreme Court confirmed that the Second Amendment protects a fundamental individual right to self defense and to keep and bear arms. So the Ninth Circuit incorporation ruling in Nordyke was welcome news, and bolstered the arguments for incorporation made in McDonald v. Chicago before the United State Supreme Court.
Although the three-judge panel ruled that the Second Amendment was incorporated, it also held that the Alameda County ordinance was not an unconstitutional infringement of the Second Amendment. The case went up to the Ninth Circuit en banc panel, which stayed the case pending the McDonald decision. When the McDonald decision came down in June 2010 and confirmed the three-judge panel’s conclusion that the Second Amendment applied to state and local actions, the en banc panel sent the case back down to the three judge panel for further consideration.
So the Nordyke case is now back being reconsidered before the three-judge panel in light of the ruling in McDonald v. Chicago. But with the incorporation issue resolved, the three-judge panel is now primarily considering whether the fairgrounds, or county property, is a "sensitive place" of the type mentioned in the Heller case where restrictions on firearms such as the Alameda County ordinance would not be unconstitutional under the Second Amendment.
The Nordyke case is significant because the gun ban lobby in California has made and continues to make a concerted effort to pass these types of ordinances around the state and to ban all gun shows in the process as a way to eradicate the gun culture.
#cgl#
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