Nordyke v. King
2012 U.S. App. LEXIS 11076
| 9th Cir. | 2012Background
- Nordyke plaintiffs challenge Alameda County Ordinance 9.12.120 prohibiting possession of firearms on county property.
- Ordinance contains an exception for authorized participants in productions; County interprets this to include gun shows as an event
- County asserts firearms at gun shows may be displayed securely (tethered) and inspected by buyers
- Plaintiffs are legally authorized to sell firearms and would offer only firearms lawfully saleable under federal/state law
- En banc court affirms dismissal of the Second Amendment claim under current interpretation; implications for scrutiny not fully resolved
- Concurrences discuss level of scrutiny and post-argument concessions by the County regarding the ordinance
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Second Amendment claim viability as applied | Nordyke asserts the ordinance blocks gun shows in violation | Alameda County's reading allows gun shows, limiting sale and display under tethering rule | As applied, no Second Amendment violation |
| Standard of scrutiny applicable | Nordyke seeks appropriate heightened scrutiny for gun regulation | County's concession renders scrutiny framework moot; regulation permissible under applicable standard | Court adopts majority approach; outcome depends on burden under applicable standard |
| Impact of County concessions on outcome | Concessions may not bind future interpretations or applications | Concessions render ordinance constitutional as applied | Concessions binding; district court ruling affirmed |
| Whether amendment would state a viable claim | Nordyke could amend to state a claim under an appropriate standard | Amendment would be futile given current interpretation | Court implied amendment would be futile under the adopted standard |
Key Cases Cited
- Heller v. District of Columbia, 554 F.3d 570 (U.S. 2008) (recognizes an individual right to keep and bear arms)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (incorporates Second Amendment against states)
- Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (U.S. 2008) (distinguishes government as proprietor vs. regulator in constitutional analysis)
- Kokinda v. United States, 497 U.S. 720 (U.S. 1990) (First Amendment scope distinction for government actions as proprietor vs. regulator)
- Nordyke v. King, 644 F.3d 776 (9th Cir.2011) (discusses burden standard for Second Amendment gun-control regulation)
- Heller v. District of Columbia (D.C. Cir.), 670 F.3d 1244 (D.C.Cir.2011) (develops framework for reviewing gun-control regulations by burden on rights)