(CN) – The 9th Circuit on Monday gave new life to a long-running dispute over a California county’s ordinance that could ban gun shows on its property, finding that several U.S. Supreme Court decisions over the last six years call into question whether the ban violates the Second Amendment.
More than a decade ago, Alameda County passed an ordinance that makes it a misdemeanor to bring or posses a firearm or ammunition on county property. Gun show promoters Russell and Sallie Nordyke sued the county, arguing that the ordinance was really meant to prohibit gun shows that the couple had hosted at the county’s fairgrounds since 1991.
While the ordinance did not specifically mention gun shows, the Nordykes citied public comments made by county officials that they claimed revealed the law’s real purpose. The county maintained that it passed the ordinance to combat an increase in gun violence on county property.
Several iterations of the lawsuit, first filed in 1999, ran a circuitous and long-suffering route from the District Court, to a full panel of the 9th Circuit to the California Supreme Court and back, resting finally in the Northern District of California, where U.S. District Judge Martin Jenkins ruled for the county.
Jenkins denied the Nordykes’ motion to amend their complaint to add claims under the Second Amendment, and granted summary judgment to the county on First Amendment and equal protection claims.
On remand from an en banc hearing in the 9th Circuit, a three-judge panel of the federal appeals court in San Francisco agreed with the District Court on the First Amendment and equal protection issues, but found that the Nordykes should be allowed to amend their complaint because all of the U.S. Supreme Court’s “modern Second Amendment case law” – including the landmark 2008 rulings in McDonald v. Chicago and District of Columbia v. Heller – has been decided during the six years since they submitted their proposed second amended complaint.
“Accordingly, there may well be facts which the Nordykes did not consider relevant in 2004, and thus did not allege in the proposed second amended complaint, but which, if now alleged, might plausibly suggest that the ordinance substantially burdens the Nordykes’ Second Amendment rights,” Judge Diarmuid O’Scannlain wrote for the panel.
“Therefore, to the extent that the District Court’s denial of leave to amend was with prejudice, it must be vacated and the Nordykes given the opportunity further to amend their complaint. If they do, the District Court should consider, in light of Heller, McDonald, and this opinion, whether the Nordykes have alleged a viable Second Amendment claim.”
In affirming the District Court’s ruling in favor of Alameda County on the Nordykes’ First Amendment claim, the judges said they were not convinced by the argument that the county had adopted the law to limit the free expression of members of the “gun culture.”
“The ordinance’s language suggests that gun violence, not gun culture, motivated its passage,” O’Scannlain wrote. “Here, there is sufficient evidence to suggest that the ordinance furthers the county’s interest in keeping those on its property safe from gun crime.”
For their equal protection claim, the Nordykes argued that the county favored military re-enactors over gun-show participants, as the ordinance allowed such re-enactors, who carry historic firearms loaded with blanks, to use the fairgrounds.
Again, the panel found the Nordykes’ argument wanting.
“The county could reasonably conclude that gun shows are more dangerous than military reenactments,” O’Scannlain wrote. “This is enough to satisfy rational basis scrutiny.”