Friday, June 1, 2012

County Pulls Rug Out From Under Second Amendment Claim

In the latest installment in the long-running saga Nordyke v. King, the en banc Ninth Circuit ruled today that Alameda County's ban on gun shows at the county fairgrounds didn't violate the Second Amendment, because, well, Alameda County changed its policy to allow gun shows.

The county's late-in-the-day move pulled the rug out from under the plaintiffs' original Second Amendment claim and gave the court an out (which it took) in articulating a Second Amendment standard.  The move also allowed the court to preempt any repleading by the plaintiffs.  Between the county's move and the court's ruling, the case now has virtually no chance of going to the Supreme Court.

Recall that the case involved Alameda County's ban on gun shows at the county fairgrounds.  The county ordinance banned firearms on the fairgrounds, but provided exceptions for, among other things, a "dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event."  The county originally interpreted the ordinance to ban gun shows, and the plaintiffs sued.

That was a long time ago, and the case has been up and down several times since.  But most recently, the county re-interpreted its ordinance to allow gun shows (as an "event"), provided that the weapons are secured or tethered (like cell phones are in a cell phone store).

The en banc Ninth Circuit ruled that the county's change in interpretation meant that the plaintiffs no longer had a Second Amendment claim against a ban on gun shows.  The court said nothing about the Second Amendment itself.

As to the requirement that the guns remain secured or tethered, the court said that that "[n]o matter how broad the scope of the Second Amendment . . . it is clear that . . . this regulation is permissible."

Judge O'Scannlain, joined by Judges Tallman, Callahan, and Ikuta, concurred, arguing that the court should have adopted a standard of scrutiny for the Second Amendment--the "measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights."  But even applying this standard, Judge O'Scannlain argued that the county's new interpretation of the ordinance would survive.

Judge Ikuta, joined by Judge Callahan, also wrote a concurrence, arguing that the court should adopt a standard and determine whether the plaintiffs could re-plead their case.

While we still don't have guidance from the Supreme Court as to the standard for Second Amendment claims, this case now makes a poor candidate for the Court to determine that standard.  Look for this case to (finally) end.

SDS

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