Lead Opinion
Opinion by Judge O’SCANNLAIN; Concurrence by Judge GOULD.
We must decide whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments.
I
Russell Nordyke and Sallie Nordyke (dba TS Trade Shows) (“Nordyke”) have been promoting gun shows at the Alameda County Fairgrounds (“Fairgrounds”) since 1991. The Fairgrounds are located on un
In August 1999, Alameda County (“County”) passed an ordinance making illegal the possession of firearms on County property (“Ordinance”). In pertinent part, the Ordinance reads: “Every person who brings onto or possesses on county property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.” Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows, such as Nordyke’s, held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.
Seeking to prevent the Ordinance’s enforcement, Nordyke brought suit against the County in the United States District Court for the Northern District of California. Nordyke applied for a temporary restraining order, claiming that the Ordinance was preempted by state gun regulations and that it violated the First Amendment’s free speech guarantee. The district court judge treated the application as one for a preliminary injunction and denied it. The judge noted that under either test for a preliminary injunction, a litigant must at least show a fair chance of success on the merits and ruled that Nordyke had failed to do so. Because he concluded that Nordyke had little chance of success on the merits, he did not reach the balance of the hardships determination. Nordyke then filed this timely interlocutory appeal.
We certified Nordyke’s preemption claim to the California Supreme Court asking the following question: “Does state law regulating the possession of firearms and gun shows preempt a municipal ordinancе prohibiting gun possession on county property”? Nordyke v. King (“Nordyke I”),
The California Supreme Court granted certification and ultimately held, “whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to that extent, may ban possession of guns on its property.” Nordyke v. King (“Nordyke II ”),
Nevertheless, we must still decide Nor-dyke’s remaining constitutional claims. Nordyke urges, under the First Amendment, that the Ordinance impermissibly infringes upon constitutionally protected speech rights.
Nordyke also makes a Second Amendment challenge to the Ordinance. Pending the certification of Nordyke’s preemption claim to the California Supreme Court, there were several judicial developments relating to the Second Amendment. As a result, Nordyke filed a motion for supplemental briefing with this court which we granted. Because of our sister circuit’s holding in United States v. Emerson,
II
We consider first Nordyke’s challenge to the Ordinance on the grounds that it infringes his First Amendment right to free speech. The district court squarely rejected Nordyke’s argument that gun possession is expressive conduct protected by the First Amendment and that the ban on the possession of firearms unconstitutionally interferes with commercial speech.
A
As to Nordyke’s expressive conduct claim, the Supreme Court has “rejected the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Texas v. Johnson,
In the case at hand, Nordyke argues that possession of guns is, or more accurately, can be speech. In evaluating his claim, we must ask whether “[a]n intent to convey a particularized message [is] present, and [whether] the likelihood [is] great that the message would be understood by those who viewed it.” Spence v. Washington,
The first step of this inquiry— whether the action is protected expressive conduct — is best suited to an as applied challenge to the Ordinance. Hоwever, in this case, Nordyke challenged the law before it went into effect. Accordingly, he mounts a facial challenge, relying on hypo-theticals and examples to illustrate his contention that gun possession can be speech.
In evaluating Nordyke’s claim, we conclude that a gun itself is not speech. The question in Johnson was whether flag burning was speech, not whether a flag was speech.
As Nordyke’s “facial freedom of speech attack” does not involve a statute “directed narrowly and specifically at expression or conduct commonly associated with expression,” his challenge fails. See Roulette v. City of Seattle,
Nordyke points out that several of the rifles for sale are decorated with political messages, most prominently the National Rifle Association Tribute Rifle, which depicts the NRA banner, a militia member and an inscription quoting the Second Amendment: “The Right of the People to Keep and Bear Arms.” Where the symbols on the gun (not the gun itself) convey a political message, the gun likely represents a fоrm of political speech itself. See Gaudiya Vaishnava Soc’y v. City and County of San Francisco,
B
Next, Nordyke contends that the Ordinance’s prоhibition of gun possession
Pursuant to Nordyke III, the sale itself is not commercial speech. It is difficult to argue then that making the sale (non speech) more difficult by barring possession (non-speech) infringes speech. Nor-dyke cites no authority for this proposition. Nor is this the case of making a sale more difficult by barring speech. In cases such as Nordyke III, what renders the law unconstitutional is the interference with speech itself, not the hindering of actions (e.g., sales) that are not speech. As possession itself is not commercial speech and a ban on possession at most interferes with sales that are not commercial speech, we agree with the district сourt’s conclusion that the County’s prohibition on possession does not infringe Nordyke’s right to free commercial speech.
Ill
Finally, we turn to Nordyke’s challenge to the Ordinance on Second Amendment grounds. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const, amend. II. The meaning of this amendment and the extent of the constitutional right it confers have been the subject of much scholarly and legal debate.
The “individual rights” view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L.Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit’s rеcent holding in United States v. Emerson,
We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson. However, we have squarely held that the Second Amendment guarantees a collective right for the states to maintain an armed militia and offers no protection for the individual’s right to bear arms. In Hickman v. Block,
As a result, our holding in Hickman forecloses Nordyke’s Second Amendment argument. We specifically held there that individuals lack standing to raise a Second Amendment challenge to a law regulating firearms. Id. at 103. Because “Article III standing is a jurisdictional prerequisite,” id. at 101, we have no jurisdiction to hear Nordyke’s Second Amendment challenge to the Ordinance. See Ex parte McCardle,
IV
For the foregoing reasons, the district court’s denial of Nordyke’s application for a preliminary injunction must be
AFFIRMED.
Notes
. See Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780, at 19 n. 3, available at http://www.usdoj.gov /osg/briefs/2001/0responses/2001-8780.-resp.pdf.
. In addition, the district court considered whether the Ordinance was a constitutional time, place, and manner regulation. Nordyke does not press this argument on appeal, however.
. However, we note that our holding does not foreclose a future as applied challenge to the Ordinance.
. We should note in passing that in Silveira v. Lockyer,
However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: ''[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right.” Silveira v. Lockyer,
There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit’s holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza,
Therefore, despite the burgeoning legal scholarship supporting the "individual rights” theory as well as the Fifth Circuit’s holding in Emerson, the Silveira panel's decision to reexamine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court,” Morton v. De Oliveira,
Concurrence Opinion
Specially Concurring:
I join the court’s opinion, and write to elaborate that Hickman v. Block,
Our panel is bound by Hickman, and we cannot reach the merits of Nordyke’s challenge to Second Amendment. But the holding of Hickman can be discarded by our court en banc or can be rejected by the Supreme Court if it decides to visit the issue of what substantive rights are safeguarded by the Second Amendment.
I write to express disagreement with the “collective rights view” advanced in Hickman and Silveira because I conclude that an “individual rights view” of the Second Amendment is most consistent with the Second Amendment’s language, structure, and purposes, as well as colonial experience and pre-adoption history.
* * * * #
Also, the “collective rights” view of the Silveira majority gives too little weight to the Second Amendment’s рrotection of a right to “keep” arms. The Silveira majority seeks to enhance collective rights theory by contending that to “bear” arms has a military meaning. Silveira,
The Silveira majority also urges that the word “keep” has no independent content because the Second Amendment does not protect a right to “own” or a right to “possess” arms. Id. at 1072 (“We consider it highly significant, however, that the second clause does not purport to protect the right to ‘possess’ or ‘own’, but rather to ‘keep and bеar’ arms.”). This argument is not valid. First, ownership is irrelevant. One can keep arms that belong to a friend or relative, and a bailee of arms can protect a homestead or serve in a militia. Second, as for the argument that the Second Amendment doesn’t say “possess” arms, consider the American Heritage dictionary’s first definition of “keep”: “to retain possession of.” The American Heritage Dictionary 459 (3d ed.1974); see also Thomas Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (defining “to keep” as “[t]o retain; to have in custody”); Samuel Johnson, A Dictionary of the English Language (7th ed. 1785) (defining “to keep” as “to retain; not to lose” and also “[t]o have in custody.”). Because literally a right to “keep” arms means a right to possess arms, Silveira’s argument, to the extent that it rests on a distinction between “keep” and “possess,” is not persuasive. Third, Silveira’s argument that a right to “keep” arms is subordinate to a right to “bear” arms sidesteps the literal conjunctive language of the Amendment and misconstrues the nature of a militia in which ordinary citizens contribute their personal arms to, and risk their lives for, the Nation’s defense.
The conclusion that the Second Amendment’s language supports an individual right to “keep and bear arms” is strengthened when we consider the nature and meaning of the term “Militia.” The Second Amendment’s language indicates that the “Militia” rests upon the shoulders of the people. As Professor Akhil Amar has
Perhaps most importantly, the Second Amendment’s purposes strongly support the theory of an individual right to “keep and bear” arms. The Second Amendment serves at least the following two key purposes: (1) to protect against external threats of invasion; and (2) to guard against the internal threat that our republic could degenerate to tyranny.
This view is also reinforced by English and colonial history. English history shows constant recourse to militia to withstand invading forces that arrived not rarely from England’s neighboring lands. See generally 2 Winston S. Churchill, History of the English Speaking Peoples: The New World (Dodd, Mead, & Co.1966); 3 Winston S. Churchill, History of the English Speaking Peoples: The Age of Revolution (Dodd, Mead, & Co.1967). In the colonies, not only soldiers, but also farmers, merchants, and statesmen typically owned weapons, and there can be no doubt that militia played important roles in defending the colonies in the seventeenth and eighteenth centuries and during the revolutionary break with Great Britain.
Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public.
It does not follow that such a right is absolute. The Bill of Rights, though robust, must be interpreted in light of societal needs. For example, even the broad protections of free speech in the First Amendment do not protect a person who “falsely shout[s] fire in a theatre and caus[es] a panic.” Schenck v. U.S.,
Restricting the Second Amendment to “collective rights” of militias and ignoring individual rights of the people betray a key protection against the recurrent tyranny that may in each generation threaten individual liberty.
The Second Amendment protects not the rights of militias but the rights “of the people.” It protects their right not only to “bear arms,” which may have a military connotation, but to “keep arms,” which has an individual one. By giving inadequate weight to the individual right to keep arms, the Silveira majority does not do justice to the language of the Second Amendment and disregards the lesson of histоry that an armed citizenry can deter external aggression and can help avoid the internal danger that a representative government may degenerate to tyranny. The right to “keep and bear arms” is a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy that an individual right be recognized and honored.
I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny, and that there is little threat that others would invade our shores or attack our heartland. However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad. And it was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack. As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.
. This view is the current view of the United States. See Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780, at 19 n. 3, available at http://www.us-doj .gov/osg/briefs/2001/0responses/2001-8780.resp.pdf ("The current position of the United States ... is that the Second Amendment more broadly protects the rights of in
. Emerson,
. Whether and to what extent the Bill of Rights should be incorporated into the Due Process Clause of the Fourteenth Amendment is a question that has intrigued many. See Felix Frankfurter, Memorandum on “Incorporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L.Rev. 746 (1965); Hugo Lafayette Black, A Constitutional Faith, at xvi-vii, 34-42 (1968); William J. Brennan Jr., The Bill of Rights and the States, 36 N.Y.U. L.Rev. 761 (1961); William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L.Rev. 535 (1986); Duncan v. Louisiana,
The Silveira majority states that United States v. Cruikshank,
We have held that the Second Amendment is not incorporated and does not apply to the states. Fresno Rifle and Pistol Club, Inc. v. Van De Kamp,
Although the Supreme Court has incorporated many clauses of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, the Supreme Court has never explicitly overruled Barron. More importantly, the Supreme Court has never explicitly overruled Cruilcshank and Presser. If reconsideration of Fresno is nonetheless permissible, we must ask whether the liberty guaranteed by the Second Amendment is protected by the Due Process Clause of the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment protects those liberties which are "deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S.
.Another potential avenue for incorporation is via the Privileges and Immunities Clause of the Fourteenth Amendment which also may convey restrictions of the Second Amendment on the states. See Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation 2001 Utah. L.Rev. 889, 898-899. See also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Porm Method in Constitutional Interpretation, 108 Harv. L.Rev. 1221, 1297 n. 247 (1995) (advocating use of the Privileges and Immunities Clause and calling for SlaughterHouse Cases,
. The Supreme Court’s Second Amendment cases have displayed limited analysis of the structure and meaning of the Second Amendment. See generally 1 Laurence H. Tribe, American Constitutional Law 894-902 (3d ed.2000). The Supreme Court in any appropriate case, however, may decide to review and clarify Second Amendment theory and application, and, as Justice Thomas has remarked, "determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.' ” Printz v. United States,
. In addition to the Fifth Circuit, see Emerson,
. On the general problem of risks that a democratic republic may not endure, a classic work, first published in 1885 by nineteenth-century legal scholar Sir Henry Sumner Maine, is Popular Government (Liberty Classics 1976).
. A few examples from state constitutions illustrate the point:
"[T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangеrous to liberty, they ought not be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” N.C. Declaration of Rights, § XVII (1776)
"[T]he people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And ... the military should be kept under strict subordination, to, and governed by, the civil power.” Penn. Const. Declaration of Rights, cl. XIII (1776)
''[T]he people have a right to bear arms for the defence of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and ... the military should be kept under strict subordination to and governed by the сivil power.” Vt. Const, ch. I., art. 16 (1777)
"[A] well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; ... standing armies, in time of peace, should be avoided as dangerous to liberty; and ... in all cases the military should be under strict subordination to, and governed by, the civil power.” Va. Const, art. I., § 13 (1776).
."One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sakе of mere private
. The law develops through interdependent actions of academics advancing theories, advocates championing them in litigation, and Judges making decisions that clarify doctrine. The process is ongoing, for after decisions, academics will critique and offer suggested improvements, advocates will bring cases arguing what Judges said as refined by academic feedback, and more refined decisions result from this process. See Hon. Wade H. McCree, Jr., The Annual John Randolph Tucker lecture, Partners in a Process: The Academy and the Courts, 37 Wash. & Lee. L.Rev. 1041 (1981).
. In my view it is an error, though understandable one, to view the Second Amendment exclusively or primarily with the issue in mind of whether it constrains gun control. That controversial issue, as important as it may be, can be a distorting lens through which to view the Amendment if it clouds judgment and prevents understanding of the basic purposes of the Second Amendment. Instead, the Second Amendment should be considered in light of its core purposes of protecting the nation's safety from external threat or internal tyranny. 'However, recognition of individual right in the Second Amendment, to protect national security, is not inconsistent with reasonable regulation, which may be permissible under several theories: (1) all weapons are not "arms” within the meaning of the Second Amendment; (2) "arms” protected may be limited to those consistent with use by an organized military force, as suggested in Miller; and (3) important government interests may justify reasonable regulation.
.We should instead heed the observations of President John F. Kennedy on the Second Amendment, which have remaining vitality:
"By calling attention to ‘a well regulated militia,', the 'security' of the nation, and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave*1198 rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important.”
John F. Kennedy, Know Your Lawmakers, Guns, April 1960, at 4.