Nordyke v. King
664 F.3d 774
9th Cir.2011Background
- Alameda County enacted Alameda Code § 9.12.120 prohibiting firearm possession on county property; the text did not expressly ban gun shows.
- Nordyke family promotes gun shows in California, including events at Alameda County fairgrounds drawing around 4,000 attendees.
- Nordykes sue in 1999 alleging the ordinance effectively bans gun shows on county property and asserting First Amendment and state preemption claims.
- District court denied preliminary injunction; Ninth Circuit certified preemption question to California Supreme Court, which held no preemption.
- Courts subsequently addressed Second Amendment issues; after Heller and McDonald, the panel reconsidered standards of review and remanded for further consideration.
- Nordykes sought leave to amend to add Second Amendment, Equal Protection, and Due Process claims; district court denied leave to amend as futile; on appeal the Ninth Circuit affirmed First Amendment and Equal Protection and vacated/ remanded regarding the Second Amendment leave to amend in light of new law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard of review applies to Second Amendment challenges here? | Nordyke argues strict scrutiny applies post-Heller/McDonald. | County argues the Ordinance is a permissible regulation and should be reviewed under a substantial burden framework. | Substantial burden framework governs Second Amendment review. |
| Does the Ordinance as applied substantially burden the Nordykes' Second Amendment rights regarding gun shows on county property? | Nordyke contends the ban on gun shows on government premises substantially burdens Second Amendment rights. | County argues the ordinance does not prohibit gun shows and is a reasonable regulation. | The proposed amended complaint did not plausibly allege a substantial Second Amendment burden; leave to amend was properly denied, but remand is permitted if new facts are pled in light of Heller and McDonald. |
| Do Nordykes' First Amendment and Equal Protection claims fail as a matter of law? | Nordyke asserts First Amendment suppression of gun-show expressive activity and unequal treatment. | County defends regulation as content-neutral or non-suppressive and rationally related to safety. | District court's summary judgment against Nordykes on First Amendment and Equal Protection claims affirmed. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes individual right to keep and bear arms; sets framework for regulation analysis)
- McDonald v. Chicago, 130 S. Ct. 3020 (U.S. 2010) (incorporates Second Amendment against the states)
- O'Brien, 391 U.S. 367 (U.S. 1968) (establishes intermediate scrutiny for conduct with expressive and nonexpressive elements)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, and manner restrictions must leave open alternative channels)
- Gonzales v. Carhart, 550 U.S. 124 (U.S. 2007) (abortion regulations reviewed under rational basis with respect to the burden on the right)
- Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (protest restrictions under First Amendment with alternative channels)
- Heller v. District of Columbia, 554 U.S. 570 (U.S. 2008) (foundation of core Second Amendment rights and presumptively lawful regulations)
- One World One Family Now v. City & County of Honolulu, 76 F.3d 1009 (9th Cir. 1996) (supports government interest in regulation without proving specific plaintiff causation)
- Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (alternative channels for communication preserved)