Nordyke v. King
2011 U.S. App. LEXIS 8906
| 9th Cir. | 2011Background
- Nordyke and Nordyke, gun show promoters, operated shows in California, including Alameda County Fairgrounds.
- Alameda County enacted an ordinance making it a misdemeanor to possess firearms on county property, not expressly banning gun shows.
- Nordykes argued the Ordinance’s real purpose was to ban gun shows; County suggested public-safety motive tied to gun violence.
- Nordykes sued in 1999; initial claims included First Amendment and preemption; pending issues led to multiple appellate steps and remands.
- Supreme Court decisions Heller (2008) and McDonald (2010) recognized an individual Second Amendment right and incorporation, prompting reconsideration of standards.
- The panel concluded the proper framework is a substantial-burden standard for Second Amendment challenges, with potential for amendment of the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard of scrutiny applies to Second Amendment regulations? | Nordykes advocate heightened scrutiny for burdened rights. | Alameda urges substantial burden framework as manageable per Heller/McDonald. | Substantial-burden framework adopted. |
| Does the Proposed Second Amended Complaint plausibly allege a substantial burden on the Second Amendment? | Possible facts post-McDonald could show burden on rights. | Complaint fails to show burden; ordinance merely declines to host gun shows on government property. | Complaint fails as pleaded; district court proper on futility; remand possible for amendment. |
| Did the district court correctly grant summary judgment on the First Amendment claim? | Gun show display forms expressive conduct; burden analysis needed. | Regulation not aimed at suppressing expression; O’Brien test applies. | Affirmed; district court proper on First Amendment claim. |
| Did the district court correctly grant summary judgment on the Equal Protection claim? | alleged favoritism via exception for artistic events signals discriminatory motive. | Rational basis review suffices; no suspect class harmed. | Affirmed; rational-basis review applied. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (D. 2008) (recognizes an individual right to keep and bear arms and discusses presumptively lawful regulations)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (incorporation of the Second Amendment against the states)
- United States v. Salerno, 481 U.S. 739 (U.S. 1987) (government's interest in preventing crime can be compelling in certain contexts)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, and manner restrictions must leave open ample alternatives)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (U.S. 1984) (content-neutral restrictions require accommodation of First Amendment rights with reasonable regulation)
- Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (picketing near residences; expressive conduct considerations)
- Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (precedent preceding Heller on arms restrictions)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (U.S. 1992) (undue burden framework in abortion regulations as analogous to burdens on rights)
- Harris v. McRae, 448 U.S. 297 (U.S. 1980) (government subsidies and burdens on rights; abortion context relevance)