Federal Court Backs County Ban on Guns

A federal appeals court Tuesday upheld Alameda County’s ban on gun possession on county property, saying that the ordinance does not violate 1st or 2nd Amendment constitutional rights.

The U.S. 9th Circuit Court of Appeals, in a 3-0 vote, rejected a challenge lodged by Russell and Sallie Nordyke, who have promoted gun shows at the Alameda County Fairgrounds since 1991.

Citing a 1996 9th Circuit decision, the court said there is no individual right to keep and bear arms -- the same conclusion that another 9th Circuit panel reached in December.

However, the judges Tuesday sharply criticized the panel in the December case. That decision was “both unpersuasive and even more importantly unnecessary” in its lengthy exposition on the 2nd Amendment, wrote 9th Circuit Judge Diarmuid O’Scannlain.

The exhibitors at Nordyke shows typically include sellers of antique (pre-1898) and modern firearms, ammunition, Old West memorabilia and outdoor clothing. The shows also host educational workshops and political organizations.

In August 1999, Alameda County enacted an ordinance making it illegal to possess firearms on county property. “As a practical matter, the ordinance makes it unlikely that a gun show could profitably be held there,” O’Scannlain wrote.

The Nordykes challenged the ordinance in federal district court. Judge Martin J. Jenkins denied their request for a preliminary injunction. The Nordykes appealed.

Initially, the 9th Circuit referred the case to the California Supreme Court, which cleared the path for further federal review after ruling that a state law regulating firearms possession and gun shows did not preempt Alameda County from having its own ordinance.

The ruling Tuesday was the latest chapter in a long-running debate over the meaning of the 2nd 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.”

The Bush administration’s position is that individuals have a constitutional right to keep and bear arms. That position was adopted by the U.S. 5th Circuit Court of Appeals in New Orleans in 2001.

In Tuesday’s ruling, O’Scannlain said he was bound by the 9th Circuit’s 1996 decision but he expressed sympathy for the 5th Circuit’s position.

That court “engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the 2nd Amendment,” O’Scannlain wrote.

That was the first such decision taking that position, in contrast to previous federal court rulings on that issue, including the 1996 9th Circuit decision, Hickman vs. Block.

In their ruling, O’Scannlain, a Reagan appointee, Arthur Alarcon, a Carter appointee, and Ronald Gould, a Clinton appointee, took sharp issue with the reasoning of the December decision by a 9th Circuit panel upholding California’s assault-weapons ban.

In that case, Silveira vs. Lockyer, Judge Stephen Reinhardt, in a lengthy opinion, said the 2nd Amendment protects only the right of states to organize and maintain militias.

That ruling, O’Scannlain wrote, “was improper.”

In a separate concurring opinion, Gould went further. He said that although the 9th Circuit was bound by the Hickman decision, he believed that it had been wrongly decided and expressed the hope that the U.S. Supreme Court, which last spoke on the matter in 1939, would review the issue.

“We should recognize that individual citizens have a right to keep and bear arms, subject to reasonable restriction by the government,” Gould wrote. “Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public.”

Citing U.S. Supreme Court precedent, the 9th Circuit Tuesday rejected the Nordykes’ 1st Amendment claims that the ordinance violated their free- speech rights.

“Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it,” O’Scannlain wrote.

The fact that a few rifles were emblazoned with slogans from the National Rifle Assn. was not sufficient to create a 1st Amendment problem, the judge said.

Eugene Volokh, a constitutional law professor at UCLA, who agrees with Judge Gould’s position on the 2nd Amendment, said he was pleased by Tuesday’s development. “This is a signal that this is a really contested issue. Here we have an area with very little Supreme Court law and a very rich debate,” Volokh said.

But Erwin Chemerinsky, a USC constitutional law professor, said that Tuesday’s opinions were “an inappropriate slap” at the December decision. That decision, he said, is binding on the 9th Circuit “until it is upset by a larger panel of 9th Circuit judges or the Supreme Court.”

Attorney Richard Winnie, who successfully represented Alameda County, said he “was very pleased” with the ruling.

Attorney Donald E.J. Kilmer, who represents the Nordykes, said Tuesday that he may ask that a larger 9th Circuit panel review the decision.