Nordyke v. King - Madison Society

Transcription

Law Offices of Donald Kilmer
A Professional Corporation
1645 Willow Street, Suite 150
San Jose, California 95125
E-Mail: Don@DKLawOffice.com
Phone: 408/264-8489
Fax: 408/264-8487
July 20, 2010
Via:
E-Mail
To:
Don B. Kates, Alan Gura, Steven Halbrook, Robert Dowlut, Chuck Michel,
Bruce Colodny, Robert Levy, Eugene Volokh, Ilya Shapiro, Tracy DuellCazes, William Van Alstyne, Bob Cottrel, David Kopel, David Hardy, Gene
Hoffman, Alan Gottlieb, Jason Davis, Clayton Cramer, Mark Barnes, AliceMarie Beard. (My apologies for any inadvertent exclusions.)
Re:
Nordyke v. King, Case No.: 07-15763
United States Court of Appeals for the Ninth Circuit
Before: Alarcón, O’Scannlain and Gould, Circuit Judges.
Memorandum Suggesting Amicus Briefs
Ladies and Gentlemen:
Attached are the Order from the 3-judge panel with guidelines for the issues to be
addressed and the deadline for supplemental briefs. Also enclosed is a copy of the
Joint Statement of Undisputed Facts from the case. The matter is on appeal from
the County’s successful motion for summary judgment. The JSUF was used for that
motion, which resulted in a judgment for the County.
The Second Amendment issue is on appeal from denial of a motion to amend.
Unless the county changes its mind, the parties have conceded that the Court of
Appeals can summarily deal with the Second Amendment issues without further
discovery. In my opinion this hurts the County more than it does us, because there
are no facts in this record to suggest that the fairgrounds are a sensitive place.
I have also enclosed my amicus brief to SCOTUS in the McDonald case which fairly
outlines what we think the Ninth Circuit got wrong in this case.
The purpose of this memo is to open a discussion about amicus briefs in the Nordyke
case. As you can see from the order, we have a panel that is open to reconsidering
its original opinion published at Nordyke v. King, 563 F.3d 439 (9th Cir. 2009). If
you recall, it was a pyrrhic victory for gun rights. (i.e., The Court incorporated the
Second Amendment under Due Process, but found that the County ordinance did
not offend that amendment.)
Page 1 of 3
I have the following thoughts about briefs that might be submitted by various
amici:
1.
Principle Brief by the parties will swing for the fence on strict scrutiny and
sensitive places.
2.
It would be nice to have a Criminologist "Brandeis Brief" on crime statistics
(judicially noticeable from Cal DOJ website) in Alameda County not
correlating with lack of gun shows, and loss of FFLs in Alameda County. e.g.,
The violent crime rate in Alameda County went up and down during the 11
years that the ordinance has been in place. Calguns Foundation and/or
Second Amendment Foundation have expressed an interest in this project.
3.
It would be nice to have a brief on whether statutory and field preemption
should be reconsidered in light of Heller/McDonald finding that the Second
Amendment protects a fundamental right. This would be a perfect brief for
Chuck Michel (CRPA) to write based on his recent victory in Fiscal v. San
Francisco. (the Prop H case) There is some wonderful language in Justice
Janice Rodgers Brown’s dissent in that case:
The majority concedes that state law might partially preempt the
county ordinance at issue here, but it concludes that the ordinance is
enforceable against plaintiffs, because plaintiffs seek only to promote a
gun show. The majority, in effect, reasons that, because the county could
prohibit gun shows on county property, the county is free to enforce the
totally different prohibition at issue here--so long as it does so against a
gun show promoter.
The flaw in this logic becomes apparent when we consider a
hypothetical involving the constitutional protection of free speech.
Suppose the county enacted an ordinance prohibiting any and all speech
favoring residential rent control--in other words, a content-based
restriction of political speech that would clearly violate First Amendment
principles. A billboard company seeks to display billboard advertisements
promoting rent control and challenges the ordinance on First Amendment
grounds. In those circumstances, I doubt the majority would hold that,
because the county is free to regulate billboard advertising (see City
Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 806-807 [104 S.
Ct. 2118, 2129-2130, 80 L. Ed. 2d 772]; Metromedia, Inc. v. San Diego
(1981) 453 U.S. 490, 507-512 [101 S. Ct. 2882, 2892-2895, 69 L. Ed. 2d
800]; City and County of San Francisco v. Eller Outdoor Advertising
(1987) 192 Cal. App. 3d 643, 658-661 [237 Cal. Rptr. 815]), it can enforce
its unconstitutional restriction of speech against the billboard company.
Rather, the majority would likely hold that the ordinance exceeds the
county's regulatory authority under the state and federal Constitutions. Put
another way, the question before us is not whether the county might be
able to enact some hypothetical ordinance prohibiting what plaintiffs want
to do. The question is whether the ordinance the county actually enacted
exceeds the county's authority, which it does.
Page 2 of 3
[...] The majority attempts to make the issue quite small, involving a
restriction applicable only to county property (maj. opn., ante, at p. 884);
the litigants, on the other hand, insist the stakes are large. It does not
matter whether the issue is large or small, though, if the government
exceeds its authority. As Judge Kozinski has noted, the small and
superficially benign acts of a democratic government can erode personal
freedom just as surely, and to the same end, as the large and malignant
acts of a tyrant or dictator: "Liberty--the freedom from unwarranted
intrusion by government--is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose
purpose it is to oppress . . . ." (U.S. v. $ 124,570 U.S. Currency (9th Cir.
1989) 873 F.2d 1240, 1246 [ 108 A.L.R.Fed. 643].) Because the
ordinance conflicts with state law and because I believe the structural
constraints on government authority are equally as important as the
substantive ones, I dissent.
Nordyke v. King, 27 Cal 4th 875, 885 (2002)
4. It would be nice to have a Brief on why the Alameda Ordinance can't even
pass intermediate scrutiny. This would be a tricky brief as we don’t want to
concede intermediate scrutiny, but since the County will argue this position,
it would be nice to have some counter-point.
5. It would nice to have a brief on what level of scrutiny (strict) to apply to
violation of equal protection of a fundamental right. i.e., the County allows
the Scottish games to bring guns onto the fairgrounds but still prohibits guns
at gun shows. NAAS ?
6. I would be nice to have a brief on the need for uniformity and a principled
approach to the law of constitutional scrutiny. Something that supports the
rejection by the McDonald Court of the idea that some fundamental rights
are more/less fundamental than others. (Call this that anti-Animal House
brief.) This might be a good one for the NRA and/or CATO.
7. I am open to other suggestions here.
Cordially,
/s/
Donald Kilmer, Attorney for Nordykes
enc:
Order
JSUF [Docket No. 145]
Amicus Brief
P.S. I heard a rumor that Paul Clement may lend his talents to this effort. I
have not had the pleasure of meeting Mr. Clement, nor do I have his contact
information. Can someone on this list forward this memo to him? Thank you.
Page 3 of 3
Case: 07-15763
07/19/2010
Page: 1 of 2
ID: 7409806
DktEntry: 129
FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL ALLEN NORDYKE; ANN
SALLIE NORDYKE, dba TS Trade
Shows; JESS B. GUY; DUANE DARR;
WILLIAM J. JONES; DARYL N.
DAVID; TASIANA WESTYSCHYN;
JEAN LEE; TODD BALTES; DENNIS
BLAIR, R.L. ADAMS; ROGER BAKER;
MIKE FOURNIER; VIRGIL
MCVICKER,
JUL 19 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
No. 07-15763
D.C. No. CV-99-04389-MJJ
Northern District of California,
San Francisco
ORDER
Plaintiffs - Appellants,
v.
MARY V. KING; GAIL STEELE;
WILMA CHAN; KEITH CARSON;
SCOTT HAGGERTY; COUNTY OF
ALAMEDA; COUNTY OF ALAMEDA
BOARD OF SUPERVISORS,
Defendants - Appellees.
Before: ALARCÓN, O’SCANNLAIN and GOULD, Circuit Judges.
The parties are ordered to file supplemental briefs addressing:
(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL
2555188 (U.S. June 28, 2010), on the disposition of this case; and
(2) any other issue properly before this court, including the level of scrutiny
that should be applied to the ordinance in question.
Case: 07-15763
07/19/2010
Page: 2 of 2
ID: 7409806
DktEntry: 129
Such briefs shall be no longer than fifteen (15) pages each and shall be filed
simultaneously no later than thirty (30) days from the date of this order.
Any amicus curiae brief addressing the issues identified above shall be no
longer than fifteen (15) pages, shall be filed simultaneously with the parties’
supplemental briefs, and shall otherwise comply with Federal Rule of Appellate
Procedure 29.
Parties and amici who are registered for ECF must file their briefs
electronically without submission of paper copies. Parties and amici who are not
registered ECF filers must file their original briefs plus seven (7) paper copies.
The time and location of oral argument, if any, will be set by separate order
of the court.
The Appellants’ Motion for Supplemental Briefing, filed with this court on
July 13, 2010, is DENIED as moot.
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DonaldE. J. Kilmer,Jr. [SBN: 179986]
LAW OFFICESOF DONALD KILMER
1645Willow Street.Suite150
SanJose,California95125
Voice:(408)264-8489
Fax: (408)264-8487
E-Mail: Don@DKLawOffice.com
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Attorneyfor Plaintiffs
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UNITED STATESDISTRrcT COURT
NORTHERNDISTRICTOF CALIFORMA
SAN FRANCISCODIVISION
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RUSSELLALLEN NORDYKE,et al.,
CaseNo.: CV -99-04389-MJJ
JOINT STATEMENTOF T]NDISPUTED
FACTS
Plaintiffs,
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Date:
October3.2006
.
Time:
9:30a.m.
Judge:
HonorableMartin Jenkins
Courthouse:U.S.CourtHouse
450 GoldenGateAvenue
SanFrancisco.CA 94102
VS.
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Defendants-
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The parties hereby stipulate that the following facts are undisputed for purposesof
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Defendants' pending summaryjudgment motion. The Defendantsobject to the inclusion
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of some of the facts for the reasonsnoted immediately underneatheach particular fact
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objected to. The undisputed facts set forth herein may be challenged and/or objected to
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by any partyat a later stageof the proceedingsin this case,consistentwith the Federal
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Rules of Evidence, the Federal Rules of Civil Procedureand all Local Rules.
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Don¡ld Kilmer
Attom€y at Iåw
1645WìllowSt.
Suitc150
Sæ Joæ,CA 95125
Vc:408264-8489
Fx:4081264-8487
MARY V. KING, et aL.,
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
l. On July 4, 1998a shootingoccurredat
the AlameâaCountyFairsrou"nds
la.k.a.
Pleasanton
Fairgroúnds)iíurine thè annual
CountyFair. Tñe shooiingresllted in
gunshotwoundsto I people.
Statement:Undisputed Facts
1. Declarationof JamesKnudsen:
Exhibit A attachedto DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT.
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Nordyke v. King
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
2. TheJuly4, 1998shootingincident
resultedin the arrestandconvictionof the
shooter:JamaiJohnson.He was
sentenced
to california statePrisonupon
conviction.
TO
2. DEFENDANTS'RESPONSES
PLAINTIFFS' REQUEST FOR
ADMISSION: #26.
3. The July 4,1998 shootingincident at
the PleasanionFairgroundsrias not
associatedin anv wav with anv of the
Plaintiffs or theír activities duiine sun
shows at the PleasantonFairgrouäã's.
3. DEFENDANTS'RESPONSESTO
PLATNTIFFS'REQUEST FOR
ADMISSION: #30 and#31.
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Defendant's Obj ection(s): Relevance.
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4. The DefendantCOUNTY OF ALAMEDA 4. Paragraph
31 of the Defendants'
BOARD OF SUPERVISORS
is the duly
AMENDED ANSWER TO THIRI)
electedlegislativebody with the powerto
AMENDED COMPLAINT.
passordinancesin accordance
with the county
charterandin accordance
with the laws of the
Stateof California. The BOARD OF
SUPERVISORS
alsohasultimate
administrativeauthorityoverthe Pleasanton
Fairgrounds.
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5. In 1999,DefendantsMARY V. KING,
GAIL STEELE,WILMA CHAN, KEITH
CARSON,andSCOTTHAGGERTY were
the duly electedmembersof the Boardof
Supervisorsfor the Countyof Alameda,
Califomia.
5. Paragraph
AMENDED COMPLAINT.
6. The Alameda County Fairgrounds (aka:
The PleasantonFairgrounds)is located in
Alameda County. Public and private events
are scheduledat the fairgrounds on a regular
basis.
6. Paragraph
AMENDED ANS\ryER TO THIRI)
AMENDED COMPLAINT.
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7 . The AlamedaCountyFairgroundsis
7. Parcgraph34 of the Defendants'
situatedwithin a Public andInstitutional
AMENDED ANSWER TO THIRD
zoningdistrict on unincorporatedcounty
AMENDED COMPLAINT.
propertywithin the City of Pleasanton,
California.The Fairgroundswereawardedto
the Countyin a Final Orderof Condemnation
filed on November17, 1965 "for public
purposes,namel5 for the construction
thereonof necessary
public buildings,. . ."
County
of
Alameda
v. Meadowlark
[See:
DairyCom.Ltd.;CaseNo;3227221
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Donald Kilntr
Anomcrya¡ I¿w
1645Wilow St.
Suite150
Sæ Jore,CA 95125
\,lc: 4081264-E489
Fx:408/264-8487
28
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Nordyke v. King
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EVIDENTIARY SUPPORT
8. The Alameda County Fair Association is
a non-profit corporation which managesthe
fairgrounds through an Operating Agreement
with the County of Alameda.
8. Paragraph
AMENDED COMPLAINT.
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9. On May 20,1999, Defendant,Mary V.
King sent ã memorandumto Couirff
Corñrsel- Richard Winnie - reque'sting
that he researcha wav to prohibit eun
shows on County Proþerty.
9. DEFENDANTS'RESPONSETO
PLAINTTFFS'REQUEST FOR
ADMISSION:#1,#2,and#3.See
ExhibitA of the PLAINTIFFS'
REQUESTFOR ADMISSION.
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Defendant's Objection(s): Relevance.
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T]NDISPUTEDFACT
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10. On July 20,1999, Alameda County
Supervisor,'Ma'fuV. King issued a press
release.announcinga proqosedordinance
to restnct trearm possessronon county
properfy.
10.DEFENDANTS' RESPONSETO
ADMISSION: #6. #7 and#8. See
ExhibitB of the PLAINTIFFS'
I l. On July 20,1999,AlamedaCounty
I I. DEFENDANTS' RESPONSETO
Supervisor,-Mary
V. Kine madea soeeóh PLAINTIFFS' REQUEST FOR
in õonnectionwith the aniouncemeirtof a ADMISSION:#l l, #12and#13. See
proposedordinanceprohibitingpossession Exhibit C of the PLAINTIFFS'
of firearmson countyproperty.
Defendant's Objection(s)
: Relevance.
12. On July 26,1999,Plaintiffs' Counsel 12. PLAINTIFFS' INITIAL
sent a letter to Alameda County Counsel
26 DISCLOSURESunderF.R.C.P.
requestingclarification of the ierms on the See:Exhibit H affachedthereto.
proposedordinanceand requesting
inftirmal resolution of any issuesrËlating
to implementation and inierpretation of"
the Ordinance as it applied to gott shows.
13. On August17,1999,theAlameda
CountyBoardof Supervisorsadopted
OrdinánceNo.: 0-2d00-ll. Which later
becameSection9.12.120of the Codeof
AlamedaCounty.The Ordinanceorohibits
the possession
of flreaÍns on County
Proþerty,includingthe Fairgrounds.
13.DEFENDAIITS' RESPONSETO
ADMISSION:#16.#17 and#18.See
ExhibitD OfthEPLAINTIFFS'
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Dotrrld Kilntr
^ttom€y at I¡w
1645willow St.
Suite150
Sæ Joæ,CA 95125
Vc: 408/264-8489
Fx:4081264-E487
28
Statement Undisputed Facts
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Nordyke v. King
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
14. OnAugust 23,1999, RichardWinnie,
Alameda County Counsel, sent a letter and
copy of the Ordinance to Richard K
Pickering, the General Manager of the
PleasantonFairsrounds. The letter
disagreeswith t[e pressreports that the
ordinancepreventsgun shõws,and asserts
that gun shows may be conductedon the
fairgrounds without the presenceof
firearms. The letter also statesthat the
Ordinancedoes not proscribe the sale of
firearms or arnmunition on countv
property, provided that such articies
cannot be displayed on the premises.
14.DEFENDAIITS' RESPONSETO
PLAINTIFFS' REQUESTFOR
ADMISSION:#16.#17 and#18.See
ExhibitD of the PLAINTIFFS'
15. In a September7, 1999letter,the
General Manager of the Alameda County
Fairgroundsreãuesteda written olan froín
the Ñordyke PÉintifß asking thát they
explain how they would conduct their gun
shõw at the Alameda Countv Fairerouñds
in compliance with the Ordinance]
I5. PLAINTIFFS' INITIAL
See:Exhibit H attachedthereto.
16. Durins the months of Aueust and
Septembeí tggg the Scottish"Caledonian
Gamescontactedthe Fairground's
Manager, the Alameda County Sherifl
Alameda Countv Counsel and Defendant
Scott Haggerty iegarding the Ordinance's
impact on the Scottish Gamesheld at the
Fairgrounds. The Scottish Gamesinvolve
the display/possessionof rifles with blank
cartridges in connection with historical reenacünentsof gun battles.
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16. Depositionof Rick K. Pickering.
9:16- 14:12;26:6-26:22; 30:7-34:8
- 80:9.
and78:18
Defendant's Objection(s): Relevanceasto
first sentence.
17. The ScottishCaledonianGames.
another cultural event that takes place at
the PleasantonFairgrounds,which
involves the possessionand displavof
firearms was not required to submít a
written plan for conducting their event in
compliance with the Ordinance.
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And Exhibit B attachedto
DEFENDANTS'MOTION FOR
SUMMARY JUDGMENT.
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Donald K¡ùner
1 o
LO
,{ttomey at Iáw
1645Willow St.
SuiteI 50
Sil Jow. CA 95 125
Yc:4081264-8489
Fx:408/264-8487
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Nordyke v. King
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EVIDENTIARY SUPPORT
UNDISPUTEDFACT
18. PLAINTIFFS' INITIAL
26 underF.R.C.P.
DISCLOSURES
thereto.
Exhibit
H
attached
See:
6
18. On September16,1999,Plaintifß'
Counsel sent a secondletter to Alameda
County Counsel seekingto avoid litigation
regarding the Ordinanceand its effect on
Plaintifß' gun shows. The letter also
statedthat Plaintiffs could not practically
or profitably conduct a gun show without
guns.
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19. On September
17,1999,the Plaintiffs 19. JudicialNotice of Docket Report.
filed this action.
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And Exhibit C attachedto
DEFENDANTS'MOTIONFOR
SUMMARY JUDGMENT.
ADMISSION:#21,#22 and#23.See:
Exhibit E OfthEPLAINTIFFS'
l0
20. On September20,1999, Alameda
Countv Counsel Richard Winnie sent a
letter fo the Alameda Board of
Supervisorsrecommendingchangesto the
Ordinance.
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21. On September24,1999,Plaintiffs'
Counsel sent a third letter to Alameda
County Counsel seekingto avoid litigation
and maintain the statusquo in order to
explore options regardingthe Ordinances'
application to gun shows at the Alameda
County Fairgrounds.
DISCLOSURESunderF.R.C.P.26 See:Exhibit H att¿chedthereto.
22. On September
28,1999,The
AlamedaCountyBoardof Supervisors
passedOrdinance0-2000-22,which
amendedAlamedaCountvCodeSection
9.12.120.
22. SeeExhibit A attachedto
MOTION FOR
DEFENDANTSO
SUMMARY JUDGMENT.
23. The Ordinancestill prohibitsthe
possession
of firearmson County
property.
SUMMARY JUDGMENT. 9- 12-120(b).
24. The Ordinance containsan exception
for the possessionof firearms for:
"authorized participants in a motion
picfure, television,video, danceor
theatrical production or event, when the
participant lawfully usesthe firearm as
part of that production or event, provided
that when such firearm is not in the actual
possessionof the authorizedparticipant, it
is securedto prevent unauthorizeduse."
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT.
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Donald K¡lmq
)e
Anomey at t¿w
1645Willow St.
Suite150
Sm Josq CA 95I25
Yc:4081264-8489
Fx:4081264-84E7
e-r2-r20(ÐØ).
25. On October19, 1999,Defendants'
Counselrespondedto Plaintifß' overtures DISCLOSURESunderF.R.C.P.26 to avoid litigation in a letterto Plaintifß'
See:Exhibit H attachedthereto.
Counsel.
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
26. OnOctober 20,1999, Plaintiff s
Counsel sent a letter to the General
Manager of the PleasantonFairgrounds
requestingcontractual and/or legal
authority for his request that Plaintiffs
provide a written plan for conducting gun
shows in compliancewith the ordinance.
27. IudicialNotice of DocketReport.
28. Plaintifß (Nordykes) canceledthe
gun show scheduledfor the weekend of
November6/7,1999due to:
a. prevent the fraud of hosting a gunless gun show,
b. the Court's November3,1999 Order
denyrng injunctive relief,
c. the demand bv the fairerounds to
produce a wri'tten plan"for hosting a
gun-lessgun show, which the
Plaintiffs were unable to do.
d. cancellation of reservationsby
several vendors and exhibitor-s due
to the passageof the Ordinance.
28. SeeTll34 and35 of theAMENDED
VERIFIED COMPLAINT FOR
DAMAGES, INJUNCTION, AI\D
DECLARATORY JUDGMENT.
Enteredon the Docketon November16,
1999.
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Defendant's Objection(s)
: Relevance.
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30. On January5,2000,the Events
Coordinatorof ihe AlamêdaCounty
Fairgroundssenta letter to the Norilykes
returningtheir depositsfor the year 2000,
becausePlaintiffs couldnot producea
plan to hold gun shows(witliout firearms)
that would complywith the Ordinance.
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SeealsoExhibit D attachedto
SUMMARY JUDGMENT.
27. November3. 1999.this Honorable
Court issuedan OrderdênyrngPlaintiffs'
requestfor pre-trialinjunctiverelief.
29. In a December10, 1999letter,the
EventsCoordinatorof the Alameda
CountyFairgroundsreleasedall reserved
datesheld for Plaintiffsfor the year2000.
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Exhibit
H
attached
thereto.
See:
H
attached
thereto.
Exhibit
See:
DISCLOSURESunderF.R.C.P.26 See:Exhibit H attachedthereto.
SeealsoExhibit E attachedto
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT; ANd
declarationof Rick Pickeringatll6.
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Dotrald Kiùns
Attomey aI I¿w
1645Willow St.
Suite I 50
Sæ Josq CA 95125
Yc:408/264-8489
Fx:408/264-8487
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Statemenu Undisputed Facts
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UNDISPUTED FACT
EVIDENTIARY SUPPORT
31. As of November3,2005,The
31. Depositionof Rick K. Pickering.
Scottish Gameshave never been required 9:16- l-4:12:26:6-26:22: 30:7-34:8
to submit a plan (written or otherwise)
and78:18- 80:9.
about how their show would comply with
the Ordinance.Instead,the Alamêdã
County Counsel and Alameda County
Sherifi simply "assured" the Fairgroind' s
managementthat the Scottish Games
complied with the Ordinance as amended.
32. To date, the Nordykes have not
explained how they could conduct a gun
Showat the Alameda Countv Fairerounds
(without firearms) consisterit with"the
Ordinance.
32. Declarationof Rick Pickeringatl7.
33. In 2005,the Nordykesheldmultþle
gun showsin California.
33. SeeExhibit F attachedto
DEFENDAI\TS' MOTION FOR
SUMMARY JUDGMENT.
3!. In.20Q5,þrq wereat least22 grxt
showsin California.
34. SeeExhibit G attachedto
SUMMARY JUDGMENT.
35. THIRD AMENDED COMPLAINT
at fl 60.9.
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35. Plaintifß' zun shows"brins
hundreds,if nolthousands.of füearmsto
onelocation."
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36. Plaintiffs' gun shows"involve the
exhibition,displayandoffering for sale"
36. THIRD AMENDED
COMPLAINT at n n.
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37. Attendanceat the Plaintiffs' eun
37. THIRD AMENDED
showsat the AlamedaCountyFai-reroundsCOMPLAINT at 1T45.
wasat least4,000people.
38. At Plaintiffs' gun shows, in order for
a firearm to be sold, it must be physically
inspectedby both tlie seller and the buyer
to insure correct documentationof the
serial number, make, model and caliber of
the weapon; and to insure that the fi.rearm
may be legally sold.
38. THIRD AMENDED
60.i - 60.n.
COMPLAINT at T'1T
Defendant's Objection(s): Relevanceand
Questionof Law.
26
27
Donald Kikner
Attomcy at I¿w
ló45 Wilow St.
Suite I 50
Se Joæ,CA 95125
Yc:408/264-8489
Fx:4081264-8487
28
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
39. Fairground's Manaser. Richard
39. Declarationof RichardPickeringat
Pickerinsl basedon his läowledee of
I
e.
firearmsãnd his experienceas añNRA
instructor is not awãre that anv firearms
subjectto the Count¡r's ban orí possession,
andnot within an exception to ihe ban,
have been allowed on fhe Fairgrounds.
40. The Scottish Games eventsheld at the
Alameda County Fairgrounds involve
historical re-endctmeñtsof gun battles.
41. The General Manager, Richard
Pickering, has no personal knowledge of
any live alnmuniti^onbeing used in the
historical re-enactmentsthat are oart of
the Scottish Games,and that he would
take immediate stepsto prevent or
prohibit the use ofiive ammunition in
such a situation, and that rifles used
during the historical re-enactrnentsare
required to be unloaded or loaded with
blank cartridges.
42. According to Richard Pickering, as
part of the Orãinance being enforcèd,it is
gnly thosgpersonsdirectty-participatíngin
tne hrstorrcalre-enactrnentswho mav
possessa rifle, and those personsaré
required to have the firearm in their actual
possessionand when not in their
possession,to securethe rifle.
43. Defendantshave no evidenceof anv
violent criminal activitv occurrine at ariv
'
gun show hosted by thé Nordykeíand
held at the Alameda Countv Fairsrounds
for the years 1991through Feb. z*7,2006.
40. Declaration of Richard Pickering at
li 13.
41. Declaration of Richard Pickering at
13.
1T
42. Declarationof RichardPickeringat
1113.
Seealso:ExhibitA ($ 9.12.120(Ð(4))
AttAChEd
tODEFENDANITS'MOTION
FOR SUMMARY JUDGMENT.
43. DEFENDANTS' RESPONSETO
PLAINTTFFS'REQUESTFOR
ADMISSION:#30.
44. Defendantshave no evidenceof anv
violation of federal or state frearm laws
occurring at any gun show hosted by the
Nordykes and held at the Alameda County
Fairgiounds for the years l99l through
ADMISSION:#31.
February
27,2006.
27
Domld KilmÈ
Attom€y at [¿w
¡645 wil¡ow St.
Suite 150
So Jos, CA 95125
Yc:4081264-8489
Fx:4081264-84t7
28
Statement:
UndisputedFacts
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
45. The Alameda Ordinance contains no
languagedirecting any interestedparty to
any particular departmentor agency of the ADMISSION:#35.
County of Alameda for decisions
regarding interpretationsof the Ordinance.
46. The Alameda Ordinance does not
prohibit an offer to sell a firearm.
ADMISSION:#41.
47. The Alameda Ordinance does not
prohibit the actual sale of a firearm.
ADMISSION:#41.
PLAINTTFFS'REQUESTFOR
ADMISSION: #27.
t2
48. Sometimeafter the July4, 1998
shooting, the Alameda County Fair
Association purchasedmetal detectorsfor
the purposeof detecting weapons at the
entranceto the County Fairgrounds.
t3
14
49. RandiRossi,the Directorof the
FirearmsDivision of the California
Departmentof Justice,is awareof no
violationsof anv stateor federallaws
occurringat the gun showshostedby the
Nordykes.Furthermore.the Nordvkes
are
in compliancewith the þromoter
requirements
of CaliforniaPenalCode$
12071.4,a.k.a.:Gun ShowEnforcement
and SecurityAct of 2000.
7
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Defendant's Objection(s): Relevance
and
Question of Law.
23
50. IgnatiusChinn,a SpecialAgent
Supervisorwith the FirearmsDivision of
the CaliforniaDepartrnentof Justice,is
awareof no violationsof anv federal
and/orstatelaws bv the Norilvkes while
puttingon their gun shows.
24
Defendant'sObjection(s): Relevance.
2l
22
49. Depositionof RandiRossi. 16:1222:18.
50. Depositionof IgnatiusChinn. \2:5
- l2:8.
25
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27
Donsld Kilntr
Attom€y at [åw
1645WiüowSt.
Suite150
Sæ Jos, CA 95125
Yc:40E/2648489
Fx:40E/264-8487
28
Súatemenf Undisputed Facts
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
51. California PenalCode g 12071.4
otherwiseknown as the Gun Show
Enforcementand SecuriWAct of 2000
becamestatelaw after thê Nordykes
canceledtheir last show at the Alameda
County Fairgroundsin Novemb er, 1999.
5I. REQUESTFOR JUDICIAL
NOTICE Re: LEGISLATIVEHISTORY
oF PENAL CODE ç 12071.4.
Questionof Law.
52. Califomia PenalCode $ 12071.4(bX5)
requires gun show promoters to verifu that all
firearms in their possessionat the show or
event will be unloaded, and that the firearms
will be securedin a manner that prevents
them from being operatedexcept for brief
periods when the mechanical condition of a
firearm is being demonstratedto a
prospectivebuyer.
52. REQUEST FOR JUDICIAL
NOTICE Re: CaliforniaPenalCode$
1207r.4(b)(s).
Defendant's Obj ection(s) : Relevanceand
Question of Law.
53. Califomia PenalCode g 12071.a(g)
mandatesthat no person at a gun show or
event, other than security personnel or swom
peaceofficers, shall possessat the sametime
both a firearm and ammunition that is
designedto be fired in the firearm. Vendors
having those items at the show for sale or
exhibition are exempt from this prohibition.
1207r.4(Ð.
Defendant's Objection(s) : Relevanceand
Question of Law.
54. California PenalCode ç 12071.4(h)
mandatesno member of the public who is
under the age of 18 years shall be admitted to,
or be permitted to remain at, a gun show or
event unless accompaniedby a parent or legal
guardian. Anymember of the public who is
under the age of 18 shall be accompaniedby
his or her parent, grandparent,or legal
guardian while at the show or event.
1207r.4(h).
24
25
Defendant' s Objection(s) : Relevanceand
Question of Law.
26
27
Donald K¡lns
Attom€y at [áw
1645Wilow St.
Sùite 150
Sæ Jose,CA 95 I 25
Yc:408/264E489
Fx:4081264-848'1
28
StatementUndisputedFacts
Page10of 19
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EVIDENTIARY SUPPORT
UNDISPUTEDFACT
55. CalifomiaPenalCode $ 12071.4(i)
mandatesthat persons other than show or
event security personnel, sworn peace
officers, or vendors, who bring firearms onto
the gun show or event premisesshall sign in
ink the tag or sticker that is attachedto the
firearm prior to being allowed admittanceto
the show or event, as provided for in
subdivision(i).
55. REQUESTFOR JUDICIAL
NOTICE Re:CaliforniaPenalCode$
1207r.4(I).
Defendant's Objection(s) : Relevanceand
Question of Law.
56. California Penal Code $ 12071.4(k)
mandatesall personspossessingfirearms at
the gun show or event shall have in his or her
immediate possession,govemment-issued
photo identification, and display it upon
request,to any security officer, or any peace
officer.
56. REQUESTFOR JUDTCIAL
NOTICE Re: CaliforniaPenalCode
1207r.4(k).
Defendant' s Objection(s) : Relevanceand
Question of Law.
57. California PenalCode $ 12071.4(t')
mandatesthat all firearms carried onto the
premisesof a gun show or event bymembers
of the public shall be checked,clearedof any
ammunition, securedin a manner that
preventsthem from being operated,and an
identification tag or sticker shall be attached
to the firearm, prior to the personbeing
allowed admittance to the show. The
identification tag or sticker shall statethat all
firearms transfersbetween private parties at
the show or event shall be conducted through
a licensed dealer in accordancewith
applicable state and federal laws. The person
possessingthe firearm shall complete the
following information on the tag before it is
attachedto the firearm:
(1) The gun owner's signature.
(2) The gun owner's printed name.
(3) The identification number from the gun
owner's government-issuedphoto
identification.
57. REQUESTFOR JUDTCIAL
NOTICERe: CaliforniaPenalCode
1207r.4(ì.
Question of Law.
27
Donald Kil¡nq
Attomey at I¿w
lß5 Willow St.
Suite 150
Sð Jo*, CA 95125
Yc:408/264-8489
Fx:4O8/264-8487
28
Statemenf Undisputed Facs
Pagell of 19
Nordyke v. King
I
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
6
58. Plaintiff DARYL DAVIS has
testified through declaration,that he is a
member of the "gun culfure" and that
possessionofa gun at a gun show
supports,and is intendedto convev. his
be-lièfthat the SecondAmendmeniprotects an individual right to "keep and
bear arms."
7
Defendant'sObjection(s): Relevance.
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59. Plaintiff DARYL DAVIS has testified 59. SeeDECLARATION OF DARYL
through declaration,that he supportsthe
DAVIS, Plaintiff. 1l1T
l0-l 5.
National Rifle Association's intemretation
of the SecondAmendmenfi and tliat he
attendsgun shows with guns in order to
support the NRA by actually engagin-gthe
act ot'possessinga firearm at a sun show
in a j uiisdiction-(Northern Catiñrnia)
where that right is_called into question by
current stateãnd federal caseläw.
Questionof Law.
60. Plaintiff DARYL DAVIS has testified 60. SeeDECLARATION OF DARYL
that there is a great likelihood that others
DAVIS, PlaÍntiff. IT 16- 18.
would understandthesemessases.This is
basedon his own observationiof people
possessingand handlins zuns at eùn
^shows
he-hasattended." "
Hearsay.
23
61. Plaintiff DUANE DARR has
member of the "gun culfure" and that
supports,and is intended to convev. his
belièf that the SecondAmendmeni'
protects an individual right to "keep and
bear arms."
24
20
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58. SeeDECLARATION OF DARYL
DAVIS, Plaintiff. fT l0 - 15.
61. SeeDECLARATION OF DUANE
DARR, Plaintiff. Tf 8 - 12.
25
26
27
Donald Kilmø
.Attomeyat [åw
1645WillowSt.
Suite150
Sa Jos€.CA 95 | 25
!c:408/264-E489
Fx:408/264-8487
28
Statemenl Undisputed Facts
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62. Plaintiff DUANE DARR has testified 62. SeeDECLARATION OF DUANE
DARR, Plaintiff. lTll8- 12.
National Rifl e Association' s interpretation
of the SecondAmendment: and that he
attends gun shows with guis in order to
support the NRA by actually engagingthe
act ofpossessinga firearm at a gun show
in a jurisdiction (Northern California)
where that right is called into question by
current stateand federal caselaw.
8
Questionof Law.
9
63. Plaintiff DUANE DARR has testified
that there is a great likelihood that others
would understandthesemessages.This is
basedon his own observationsof people
possessingand handling guns at gun
shows he has attended.
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65. Plaintiff JESS GUY has testified
through declaration, that he is a member
of the "gun culfure" and that possessionof
a gun at a gun show supports,and is
intended to convey, his belief that the
SecondAmendméút protects an individual
right to "keep and bear arms."
22
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DARR, Plaintiff. IlT 13- 16.
Hearsay.
64. Plaintiff DUANE DARR has
testified that the physical presenceof a
firearm is necessarvto conduct and
contract for the salé of a firearm.
especiallyantique firearms.
15
f - )
EVIDENTIARY SUPPORT
UNDISPUTEDFACT
DARR, Plaintiff.l[I 13- 16.
65. SeeDECLARATION OF JESS
GUY, Plaintiff. 1l1l8 - 19.
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DonrH KiLner
Anomey at [¿w
1645WillowSt.
Suite150
Sa Joæ,CA 95125
Vc: 408/264-8489
Ex:4081264-8487
28
Statement: Undisputed Facts
Page13of 19
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66. Plaintiff JESS GIIY has testified
GUY, Plaintiff. lTT8 - 19.
National Rifle Association's inÌerpretation
of the SecondAmendment: and tliat he
attendsgun shows with guis in order to
support the NRA by-actually engagingthe
act ofpossessinga firearm at a euñ show
in a juiisdiction-(Northern Cahfõrnia)
where that right is called into question by
cuffent state and federal caselaw.
Questionof Law.
9
l2
67. Plaintiff JESS GUY has testified that
there is a great likelihood that others
would understandthesemessases.This is
basedon his own observationiof people
shows he has attended.
13
Hearsav.
10
:
EVIDENTIARY SUPPORT
I
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UNDISPUTEDFACT
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68. Plaintiff JESS GUY attendedthe
NORDYKE'S sun show at the Santa
ClaraCounty Fãirgrounds on the weekend
of April 8 819,20:06.He was present
when the pictures that are attaõhedto his
declaratioirwere taken and he made the
observationsset forth in paragraphs22.a.
-22.s of his declaration.^
23
24
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GUY, Plaintiff, ffi22 -24.
69. Plaintiff VIRGIL Mc VICKER has
member of the "gun culture" and that
supports,and is intended to convey, his
belief that the SecondAmendment
bear arms."
20
G[.IY,Plaintiff.lTf20 -21.
69. SeeDECLARATION OF VIRGIL
Mc VICKER, Plaintiff.I'1T12- 14.
25
26
27
Don¡H K¡ùntr
Attom€y at Iåw
1645wi[ow St.
Suite 150
Sa Joç, CA 95 | 25
Yc:4O81264-8489
Fx:4081264-8487
28
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Donrld K¡ùntr
Attomey at I¿w
1645WiüowSt.
Suite150
Sæ Jos. CA 95I 25
Vc: 408/264-8489
Fx:4081264-8487
T]NDISPUTEDFACT
EVIDENTIARY SUPPORT
70. Plaintiff VIRGIL Mc VICKER has
testified through declaration,that he
supportsthe National Rifle Association's
interpretation of the SecondAmendment;
and that he attendsgun shows with guns
in order to supportihe Nnn by actuãlly
engagingthe act of possessinga firearm at
a gun show in a jurisdiction (Northern
California) where that right is called into
question by current stateand federal case
law.
12- 14.
Mc VICKER, Plaintiff.'lTlT
Questionof Law.
7 | . Plantiff VIRGIL Mc VICKER has
testified that there is a great likelihood
that others would understandthese
messages.This is basedon his own
observationsof peoplepossessineand
handling guns at guir shbws he hãs
attended.
Mc VICKER, PlaintÍff.lTT15- 18.
Defendant's Obj ection(s): Relevance
Hearsay.
72. Plaintiff MIKE FOURNIER has
member of the "gun culture" and that
supports,and is intendedto convey, his
belief that the SecondAmendment
bear arms."
72. SeeDECLARATION OF MIKE
FOURNIER, Plaintiff. TIT5 - 7.
testified through declaration,that he
supports the National Rifle Association's
interpretation of the Second Amendment;
and that he attends gun shows with guns
in order to support ihe NRA by actuãily
engaging the àèt of possessin{ a firearm at
a gun show in a jurisdiction (Northern
California) where that right is called into
question by current stateand federal case
law.
FOURNIER, Plaintiff. TT5 -7.
Questionof Law.
28
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UNDISPUTEDFACT
EVIDENTIARY SUPPORT
testified that there is a great likelilrood
that others would undeistandthese
messages.This is basedon his own
observationsof peoplepossessineand
handling guns at guir shbws he hãs
attended.
Hearsay.
75. Plaintiff MIKE FOURNIER doesnot
have a permit to carry concealedweapons
pglsuant to California Penal Code $
12050.
FOURNIER, Plaintiff. lTTl0 - 13.
76. Plaintiff MIKE FOURNIER sells. at
his store and at gun shows. manv of the
samekinds of eñgravedand
coÍrmemorative firearms that are shown
in the book Steel Canvas- The Art of
FOURNIER, PlaintÍff. tTT10- 13.
AmericanArms,by R.L. Wilson.
77. Patronsand exhibitors attend gun
shows for various reasons.but
overwhelming attend them in order obtain
political information about their "right to
keep and bear arms" and to assembiewith
like-minded individuals reeardine their
coÍrmon culture (i.e., the Srn cuÎ-ture.)
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26
27
Don¡ld Kil¡ner
Attomey at Iåw
1645W-illowSt.
Suite 150
Sæ Jose.C,4.95 t25
Yc:4081264-8489
Fx:408/264-8487
FOURNIER, Plaintiff. TI I - 9.
78. Patronsand exhibitors at Plaintifß'
gun shows are strongly opposedto
attending gun shows, and overwhelmingly
state that they will not attend gun shows,
where the possessionof fireañrs, and thê
therefore the presenceof firearml is
prohibited.
79. Guns and the possessionof guns,
especially at gun shows, can conîey
polltrcal messages.
77. Seethe morethan300 THIRI)
PARTY DECLARATIONS IN
SUPPORTOF INJUNCTIVE RELIEF
17,1999;
filed on or aboutSeptember
includinethe DECLARATION OF
AMY HÕ which includesthe statistical
breakdownregardingstatementsmadeby
patronsandexhibitorsfiled the sameday.
78. Seevideo tapedinterviewsof patrons
andexhibitorsattendingthe April 8/9,
2006gun show at the SantaClaraCounty
Fairgrounds,attachedto:
DECLARÁ.TION OF PLAINTIFFS'
COUNSEL DONALD KILMER RE:
TAPED INTERVIEWS AT T.S. GUN
SHOW AT SANTA CLARA COTJNTY
FAIRGROUNDS APRIL 819,2006.
79. See:PLAINTIFFS EXPERTS'
REPORT.
Defendant's Obj ection(s): Relevanceand
Hearsay.
28
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Lack of Foundation.
7
81. Plaintiffs RUSSELL and SALLIE
NORDYKE have testified through their
declarations,that they are membersof the
"gun culfure" artdthat possessionof a gun
at a gun show supports,and is intended to
convey, their belief that the Second
Amendment protects an individual right to
"keep and bear arms."
9
10
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80. The possessionof firearms on county
property, and therefore the ability to hold
gun shows on county fairgrounds, has
been bannedin the counties of: Alameda"
Sonoma,San Mateo, Marin; and the Ciry
of Santa Cruz.
6
8
,,::-
EVIDENTIARY SUPPORT
UNDISPUTEDFACT
t7
18
l9
20
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23
24
See:Exhibit N attachedthereto.
81. See:DECLARATION OF
RUSSELL AND SALLIE NORDYKE.
1n27&,28.
NORDYKE have testified through their
declarations,that they support the
&.28.
nn27
National Rifle Association' s interpretation
of the Second Amendment; and that they
host gun shows with guns,'inpart, in oráer
to support the NRA by actually engaging
the act of possessinga firearm at a gun
show in a jurisdiction (California) where
that right is called into question by current
state and federal caselaw.
Questionof Law.
83. Plaintifß RUSSELL and SALLIE
NORDYKE have testified that there is a
greatlikelihood that others would
understandthesemessages.This is based
on their own observationsof people
shows they host and promote.
-37.
Íïnze
Hearsay.
25
26
27
DotraldKilmù
Attomey at [.¿w
1645Willow St.
Suitc 150
Sæ Jose.CA 95I 25
Yc:408/264.8489
Fx:4081264-8481
28
PageITof 19
Nordyke v. King
I
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UNDISPUTED FACT
EVIDENTIARY SUPPORT
NORDYKE are unwilling to commit a
fraud upon their regular exhibitors,
vendors and patrons by hosting a gun-less
gun show. They
- maintain that the very
ldea is absurd.
6
Questionof Law.
7
NORDYKE maintain that they comply
with all Federal and StateLaws regüÉting
the firearms industry and gun shows in
particular, and that they are membersof
the National Associationof Arms. Inc..
and that thev follow that associatiôns
guidelines fôr conduct safe and lawful gun
shows.
8
9
10
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12
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24
25
RUSSELL A¡{D SALLIE NORDYKE.
-37.
T,1129
nn2e-37.
Questionof Law.
86. There is no gun show loophole at
California Gun SÉowsthat coriply with
California law.
Questionof Law.
NORDYKE have sustainedmonetary
lossesin the form of lost profits from the
ban on gun shows at the Alameda County
Fairgroùnds. They also have monetary
lossðs(though nof sought in this suit)'
ÍÌom the ban on zun shows in the
Counties of Mariã, Sonomaand San
Mateo.
86. Depositionof RandiRossi. I 1:916:12.
See:DECLARATION OF RUSSELL
AND SALLTENORDYKE.ffi32 &,33.
1T36.d.
Lack of Foundation.
88. Alameda CounWCounsel'sOffice is
authorized to interprét the Ordinance and
its exceptions.
88. DEFENDAIITS' RESPONSESTO
PLAINTIFFS' INTERROGATORIES.
#21.^.
26
27
Donald KiLner
Attomey at Iåw
1645wilow St.
Suite 150
Sæ Jose,CA 95125
Vc:408/264-E489
Fx:408/264-8487
28
Page18of 19
Nordyke v. King
I
2
UNDISPUTED FACT
EWDENTIARY SUPPORT
4
89. Richard Pickering, General Manager
of the Alameda County Fairgrounds, has
no authority to grant exceptions to
Alameda County Ordinances.
5
3
6
7
8
9
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90. Richard Pickering, General Manager
of the Alameda County Fairgrounds,
referred all decisions about exceptions to
Alameda Ordinance to County Counsel
and/or the Alameda County Sheriff.
89. SeeExhibit 8 attachedto Deposition
of Rick IC tictering.
90. Depositionof Rick K. Pickering. 36:
l 8 - 3 9 : 1 8a n d7 2 : 1 9- 7 5 : 2 . 8 0 : I - 1 0 .
Defendant's Objection(s) : Relevance.
END OF DOCUMENT
END OF DOCUMENT
ll
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The parties agÍee,by and through counsel,that facsimile signaturesshall constitute
originals.
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SO STIPULATED.
Date:á.q/(ærL
------T----7-)
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Attorney for Plaintiffs
Attorney for Defendants
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26
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DoDrld Kil¡trer
Aflomey at I¡w
I 645 Willow St.
Suire I 50
Sãn Jose,CA 95125
tlc: 4081264-8489
Fx:4OBt26Ç8487
28
Statement:UndisputedFacts
Page19of 19
Nordyke v. King
No. 08-1521
In the
Supreme Court of the United States
O TIS M CD ONALD, ET AL., Petitioners,
v.
C ITY OF C HICAGO, ET AL., Respondents.
On Writ of Certiorari to the United States
Court of Appeals
for The Seventh Circuit
AMICUS CURIAE BRIEF OF THE
APPELLANTS FROM THE NINTH CIRCUIT
INCORPORATION CASE of
NORDYKE V. KING, MADISON SOCIETY,
and GOLDEN STATE SECOND AMENDMENT
COUNCIL – IN SUPPORT OF REVERSAL
JASON A. DAVIS
DAVIS & ASSOCIATES
27281 Las Ramblas,
Suite 200
Mission Viejo, CA 92691
(949) 310-0817
DONALD E. J. KILM ER , JR .*
LAW OFFICE OF DONALD
KILM ER , APC
1645 Willow St., Suite 150
San Jose, CA 95125
(408) 264-8489
*Counsel of Record
Counsel Press, LLC (800) 274-3321
i
TABLE OF CONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . ii
I.
Interests of Amici. . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Argument Summary. . . . . . . . . . . . . . . . . . . . . . 2
III. Why Scrutiny Matters . . . . . . . . . . . . . . . . . . . . 6
A.
The Nordyke Panel’s Scrutiny . . . . . . . 8
Analysis Was Just Plain Wrong
B.
The Nordyke Panel’s “Sensitive . . . . . 14
Places” Analysis Was Wrong
IV. Judicial Scrutiny: Second Amendment. . . . . . . 20
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ii
TABLE OF CITED AUTHORITIES
FEDERAL CASES
Acers v. United States, 164 U.S. 388 (1896). . . . . . . .4
Adamson v. California, 332 U.S. 46 (1947). . . . . . . 28
Alberty v. United States, 162 U.S. 499 (1896). . . . . . 4
Allen v. United States, 164 U.S. 492 (1896). . . . . . . . 4
Allison v. United States, 160 U.S. 203 (1895). . . . . . .4
Andersen v. United States, 170 U.S. 481 (1898). . . . 4
Beard v. United States, 158 U.S. 550 (1895). . . . . . . 4
Brown v. United States, 256 U.S. 335 (1921). . . . . . .4
Brown v. Walker, 161 U.S. 591 (1896). . . . . . . . . . . . 4
Bush v. Gore, 531 U.S. 98 (2000). . . . . . . . . . . . . . . 23
Corfield v. Coryell,. . . . . . . . . . . . . . . . . . . . . . . . . . .28
6 F. Cas. 546 (C.C.E.D. Pa. 1823)
Danforth v. Minn., 552 U.S. 264 (2007). . . . . . . . . . 23
District of Columbia v. Heller, . . . . . . . . . . . . . passim
554 U.S. ___ 128 S. Ct. 2783 (2008)
Duncan v. Louisiana, 391 U.S. 145 (1968) . . . . . . . . 2
Forsyth County v. The Nationalist Movement,. . . . .23
505 U.S. 123 (1992)
iii
Gourko v. United States, 153 U.S. 183 (1894). . . . . . 4
Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . 21, 22
Harris v. McRae, 448 U.S. 297 (1980). . . . . . . . . . . 11
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). . . . . 24
Korematsu v. United States, 323 U.S. 214 (1944). . 22
Lawrence v. Tex., 539 U.S. 558 (2003) . . . . . . . 21, 26
Lebron v. National R.R. Passenger Corp.,. . . . . . . . . 6
513 U.S. 374 (1995)
Logan v. United States, 144 U.S. 263 (1892). . . . . . . 4
McDonald v. City of Chicago,. . . . . . . . . . . . . . . . . . . 2
567 F.3d 856 (7th Cir. 2009)
Miller v. Tex., 153 U.S. 535 (1894) . . . . . . . . . . . . . . 3
Minneapolis Star & Tribune Co. v. Minn.
Commissioner of Revenue,. . . . . . . . . . . . . . . . . . . . .26
460 U.S. 575 (1983)
N.Y. Times. Co. v. United States,. . . . . . . . . . . . . . . 20
403 U.S. 713 (1971)
Nordyke v. King,. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
229 F.3d 1266 (9th Cir. 2000)
Nordyke v. King, . . . . . . . . . . . . . . . . . . . . . . . . passim
563 F.3d 439 (9th Cir. 2009)
iv
Nordyke v. King, (reh’g en banc granted). . . . . . . . . . 1
575 F.3d 890 (9th Cir. 2009)
Planned Parenthood v. Casey,. . . . . . . . . . . . . . .11, 21
505 U.S. 833 (1992)
Pleasant Grove City v. Summum,. . . . . . . . . . . . . . .12
129 S. Ct. 1125 (2009)
Police Department of Chi. v. Mosley,. . . . . . . . . . . . .14
408 U.S. 92 (1972)
Presser v. Ill., 116 U.S. 252 (1886). . . . . . . . . . . . . . . 3
Pruneyard Shopping Center v. Robins,. . . . . . . . . . . 5
447 U.S. 74 (1980)
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . .13
Rowe v. United States, 164 U.S. 546 (1896) . . . . . . . 4
Schenck v. United States, 249 U.S. 39 (1919) . . . . . 23
Silveira v. Lockyer, (reh’g en banc denied). . . . . . . . 22
328 F.3d 567 (9th Cir. 2003)
Starr v. United States, 153 U.S. 614 (1894) . . . . . . . 4
Texas v. Johnson, 491 U.S. 397 (1989) . . . . . . . . . . 13
The Civil Rights Cases, 109 U.S. 3 (1883) . . . . . . . . 3
The Slaughterhouse Cases, . . . . . . . . . . . . . . . . . . . . 3
83 U.S. (16 Wall.) 36 (1873)
v
Thompson v. United States, 155 U.S. 271 (1894) . . . 4
United States v. Carolene Products Co., . . . . . . . . . 26
304 U.S. 144 (1938)
United States v. Cruikshank, 92 U.S. 542 (1875) . . . 3
United States v. Gilbert,. . . . . . . . . . . . . . . . . . . . . . . 6
286 Fed. Appx. 383 (2009)
United States v. Harden, . . . . . . . . . . . . . . . . . . . . . . 7
2008 U.S. Dist. LEXIS 54717 (D. Or. 2008)
United States v. Miller, 307 U.S. 174 (1939). . . . . . 27
United States v. Walters, . . . . . . . . . . . . . . . . . . . . . . 7
2008 U.S. Dist. LEXIS 53455
United States v. White, . . . . . . . . . . . . . . . . . . . . . . . .7
2008 U.S. Dist. LEXIS 60115,
Va. Bankshares, Inc. v. Sandberg,. . . . . . . . . . . . . . . 5
501 U.S. 1083 (1991)
Wallace v. United States, 162 U.S. 466 (1896). . . . . 4
STATE CASES
Kasler v. Lockyer, 23 Cal. 4th 472 (2000) . . . . . . . . 24
Nordyke v. King,. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27 Cal. 4th 875, 118 Cal. Rptr. 2d 761
vi
FEDERAL STATUTES
Firearm Owner's Protection Act, . . . . . . . . . . . . . . . 25
Pub. L. No. 99-308, 100 Stat. 449 (1986)
Protection of Law Commerce in Arms Act, . . . . . . . .25
Public Law 109-92, 15 U.S.C. § 7901-7903
The Credit CARD Act of 2009, . . . . . . . . . . . . . . . . . 18
Pub. L. No. 111-24, 123 Stat., 1734 (2009)
STATE CONSTITUTIONS
Alaska Const. art. 1, § 19, . . . . . . . . . . . . . . . . . . . . 23
Vermont. Const. ch. 1, art. 16,. . . . . . . . . . . . . . . . . 23
STATE STATUTES
Cal. Penal Code § 12050 . . . . . . . . . . . . . . . . . . . . . .16
Cal. Pen. Code § 171.5 . . . . . . . . . . . . . . . . . . . . . . . 16
Cal. Pen. Code §171b. . . . . . . . . . . . . . . . . . . . . . . . .17
Cal. Pen. Code §171b(b)(7)(A)-(B) . . . . . . . . . . . . . . 17
MISCELLANEOUS
Alameda Ordinance § 9.12.120(f)(4) . . . . . . . . . . . . 16
Alameda Ordinance § 9.12.120(d) . . . . . . . . . . . . . . 16
vii
Alameda Ordinance § 9.12.120(f)(3) . . . . . . . . . . . . 16
Alameda Ordinance § 9.12.120(c). . . . . . . . . . . . . . .17
Nonsubstance Reorganization of . . . . . . . . . . . . . . . 26
Deadly Weapon Statutes,
Calif. Law Revision Commission (June 2009).
SCHOLARLY AUTHORITY
Black, Hugo L., The Bill of Rights, . . . . . . . . . . . . . 27
35 N.Y.U. L. Rev. 865 (1960).
Kopel, David, The Supreme Court's . . . . . . . . . . . . . .4
Thirty-Five Other Second Amendment Cases.
18 St. Louis Univ. Public Law Rev. 99 (1999 )
Massey, Calvin R., The New Formalism: . . . . . . . . 21
Requiem for Tiered Scrutiny?,
6 U. Pa. J. Const. L. 945 (2004)
Silberman, Laurence H.,. . . . . . . . . . . . . . . . . . . . . . .3
Uncommon Knowledge: The Law and
More with Judge Laurence Silberman.
Hoover Institution, Stan. U. (August 5, 2009)
1
I. INTERESTS OF AMICI1
Russell and Sallie Nordyke, along with the other
named plaintiff/appellants in the case of Nordyke v.
King, 563 F.3d 439 (9th Cir. 2009), have a special
interest in the outcome of this case. They are gun
show promoters, exhibitors and vendors who operate at
county fairgrounds throughout Northern and Central
California. The County of Alameda passed an
ordinance forbidding the possession of guns on county
property, which includes the County Fairgrounds. The
ordinance was intended to, and has the effect of
banning the Nordykes’ gun shows at that venue.
A sua sponte order was issued by the Circuit for the
case to be reheard en banc. Nordyke v. King, 575 F.3d
890 (9th Cir. 2009). En banc argument took place on
September 24, 2009. The case was then withdrawn
from submission pending the outcome of this case.
Amicus Virgil McVicker, in addition to being a
named plaintiff in the Nordyke case, is president of the
Madison Society. The society is a membership
organization whose purpose is to sponsor public
interest litigation to preserve and protect the
constitutional right to keep and bear arms for its
members and all responsible law-abiding citizens.
1
The parties were notified ten days prior to the
due date of this brief and all consented to the filing of this
brief.
No counsel for a party authored this brief in
whole or in part, and no counsel for party made a
monetary contribution intended to fund the preparation
and submission of this brief. No person other than amici
curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
2
Amicus Golden State Second Amendment Council
is an open membership association based in the San
Francisco Bay Area of California. The purpose of the
association is to educate the general public and
influence public policy regarding the right to keep and
bear arms; including but not limited to the right of selfdefense, the rights of hunters, and the hobbies of
collecting and sport shooting of firearms.
II. ARGUMENT SUMMARY
Even though incorporation is the question
presented by the grant of certiorari in this case; the
historical analysis of the fundamental nature of the
“right to keep and bear arms” and its significance to
American jurisprudence, has already been fully
examined by this Court in District of Columbia v.
Heller, 554 U.S. ___ , 128 S. Ct. 2783, (2008).
That historical/legal analysis already makes a
sufficiently strong case for Fourteenth Amendment due
process incorporation of the Second Amendment under
the test in Duncan v. Louisiana, 391 U.S. 145 (1968).
In Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), a
three-judge panel of the Ninth Circuit performed the
required analysis suggested by this Court in Heller,
128 S. Ct. at 2813 n.23. That opinion, found the
Second Amendment incorporated against state and
local governments.
The Seventh Circuit demurred on the incorporation
question. McDonald v. City of Chicago, 567 F.3d 856
(7th Cir. 2009). However, even if stare decisis trumps
the plain language and contemporary understanding of
the Fourteenth Amendment, the Seventh Circuit still
had a duty to articulate constitutional reasons for
3
denying the McDonald plaintiffs the protections of the
Second Amendment. The three-judge panel in that
Circuit did not even perform the Duncan v. Louisiana
“required analysis.” This is sufficient justification for
reversal.
The clear implication of the question presented by
certiorari in the McDonald case is that the mechanism
of incorporation for the Second Amendment will be
through the Fourteenth Amendment’s Privileges or
Immunities Clause and/or its Due Process Clause.2
This would suggest that the Supreme Court may be
open to a reexamination of its holding in The
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).
Purging the legacy of Slaughterhouse is reason
enough to reconsider the post-civil war insurgency
against the Fourteenth Amendment manifested by that
case and its progeny.3 However, overruling The
Slaughterhouse Cases is only useful to Second
Amendment litigants and the lower courts if this Court
provides a standard of review for the underlying
fundamental right.
2
Silberman, L., The Law and More with Judge
Laurance Silberman. Stan. U. (Aug. 5, 2009), suggests
the Second Amendment may not require incorporation
because it is broadly written and does not address
Congressional authority like the First Amendment’s
“Congress shall make no law [...].” Video and transcript:
http://www.hoover.org/multimedia/uk/63317727.html
3
United States v. Cruikshank, 92 U.S. 542 (1875);
Presser v. Ill., 116 U.S. 252 (1886); Miller v. Tex., 153
U.S. 535 (1894); and The Civil Rights Cases, 109 U.S. 3
(1883).
4
A second plain error made by the Seventh Circuit
was its suggestion (almost an implied finding) that the
right of self-defense itself can be abrogated by state
and local governments. That implied finding not only
contradicted Heller itself – it ran afoul of dozens of
Supreme Court cases holding that the right of selfdefense is recognized by our constitutional case law in
ways that should make it enforceable against the
states by any method of incorporation. See Logan v.
United States, 144 U.S. 263 (1892); Gourko v. United
States, 153 U.S. 183 (1894); Starr v. United States, 153
U.S. 614 (1894); Thompson v. United States, 155 U.S.
271 (1894); Beard v. United States, 158 U.S. 550
(1895); Allison v. United States, 160 U.S. 203 (1895);
Brown v. Walker, 161 U.S. 591 (1896); Wallace v.
United States, 162 U.S. 466 (1896); Alberty v. United
States, 162 U.S. 499 (1896); Acers v. United States, 164
U.S. 388 (1896); Allen v. United States, 164 U.S. 492
(1896); Rowe v. United States, 164 U.S. 546 (1896);
Andersen v. United States, 170 U.S. 481 (1898); and
Brown v. United States, 256 U.S. 335 (1921).4
The modern talisman of the three-tiered method of
judicial scrutiny was not explicitly used in these turnof-the-century cases. Perhaps that is why these cases
were overlooked by the Seventh Circuit.
In those states that do not have a state
constitutional right to keep and bear arms (California,
Iowa, Maryland, Minnesota, New Jersey and New
York) this newly incorporated right will be the only
substantive protection of this enumerated right.
4
Collected from: David Kopel, The Supreme
Court’s Thirty-Five Other Second Amendment Cases. 18
St. Louis University Public Law Review 99 (1999).
5
In those states with a Second Amendment analog
in their constitutions, incorporation will guarantee a
baseline right, in much the same way that the criminal
procedure protections of the Fourth, Fifth, and Sixth
Amendments have standardized the minimum rights
afforded the accused throughout the United States.
Incorporation of the Bill of Rights is a form of
constitutional preemption that insures a baseline
uniformity of the rights, privileges and immunities of
all persons entitled to the protections of our
Constitution, in every jurisdiction subject to its reach.
This is the very essence of the Fourteenth Amendment.
Of course enforcement of constitutional rights
against the states, does not prevent those states from
affording greater protection of those rights. See
Pruneyard Shopping Center v. Robins, 447 U.S. 74
(1980), for operation of this principle in a First
Amendment context.
The incorporation issue was foreshadowed, but not
compelled, by the facts of Heller. It may be argued that
the scrutiny question is similarly not yet ripe for
resolution in the McDonald case. However when the
court below spent as much ink on how the Second
Amendment might be applied in the states (i.e., a state
might have the power to nullify the right of selfdefense), as it did about whether it applies to the
states, it was addressing scrutiny.
When a lower court passes on an issue sua sponte,
the issue may properly be presented to the Supreme
Court. Va. Bankshares, Inc. v. Sandberg, 501 U.S.
1083, 1099 n.8 (1991). (raising such an issue before the
Court is particularly appropriate where the question
(1) is in a “state of evolving definition and uncertainly,”
and (2) is “one of importance to the administration of
6
federal law”). See also Lebron v. Nat’l R.R. Passenger
Corp., 513 U.S. 374, 379 (1995), (“even if this were a
claim not raised by the petitioner below, we would
ordinarily feel free to address it since it was addressed
by the court below”).
Since judicial scrutiny and the incorporation issues
are inextricably intertwined in McDonald, this Court
should resist the minimalist approach of Heller now
that the Second Amendment will apply in 50 more
jurisdictions. The sheer number of potential cases and
controversies that may arise after incorporation of this
Amendment suggests that this Court may want to
address the scrutiny issue now, even if only in the
name of judicial economy.
III.
WHY SCRUTINY MATTERS
The rules for judicial scrutiny of the Second
Amendment are critical for at least two reasons: (1) to
define the substantive “right to keep and bear arms” in
a way that insures uniform justice throughout the
United States, and (2) to keep judicial scrutiny of
fundamental rights in general – as a device for
insuring liberty – from turning into a unprincipled
empty gesture with no application to future cases.
The Heller opinion made it clear that certain long
standing regulations of the right to keep and bear arms
were presumptively valid under the Second
Amendment. Heller, at 128 S. Ct. 2816-17. However
the Court provided no abstract rules for determining
that validity beyond the concrete examples cited.
Several cases involving felons in possession of
firearms have attempted to exploit Heller. See e.g.,
United States v. Gilbert, 286 Fed. Appx. 383, 2008 U.S.
7
App. LEXIS 15209 at 4-5 (9th Cir. 2008) (noting that
the possession of machine guns and short-barreled
rifles and possession of firearms by felons are all still
prohibited post-Heller); United States v. Harden, 2008
U.S. Dist. LEXIS 54717, at *1-2 (D. Or. 2008)
(upholding prohibition on possession by felons). United
States v. White, 2008 U.S. Dist. LEXIS 60115, 2008 WL
3211298 (S.D. Ala.)(citing United States v. Walters,
2008 U.S. Dist. LEXIS 53455, 2008 WL 2740398
(D.V.I.))("no court has, ever under an individual rights
interpretation of the Second Amendment, found 18
U.S.C. § 922(g) constitutionally suspect."). With
justification, these cases were summarily adjudicated
in accordance with the Heller decision, i.e., the Second
Amendment does not protect violent criminals.
But most guns in the United States are possessed
by law-abiding citizens. A rule for scrutinizing state
action that touches on Second Amendment rights is
particularly critical when the government is
interfering with the rights of the law-abiding when
they are engaged in activities that are already wellregulated and that present no danger to the public.
The Nordyke three-judge panel ultimately found for
the County in that case and the ordinance withstood
challenges under the First, Second, and Fourteenth
Amendments. Whether the Nordyke three-judge
panel’s scrutiny analysis on those claims was correct is
still an open question. An analysis of that opinion, as
it relates to scrutiny (on the First, Second, and
Fourteenth Amendment claims) is presented here in
the hope that this information will aid the Court in
resolving the incorporation and scrutiny issues raised
in the McDonald case.
8
A. The Nordyke Panel’s Scrutiny Analysis
Was Just Plain Wrong.
The Supreme Court did not announce a formal
standard of review in Heller. This omission was
criticized in Nordyke, at 563 F.3d 458. However,
rational basis is clearly off the table. See Heller, at
128 S. Ct. 2818, n.27.
Even though the Nordyke panel suggested that
Second Amendment rights should trigger the same
strict scrutiny standard of review as First Amendment
rights Nordyke, at 563 F.3d 458, n.19; they appeared to
abandon that test when they proceeded to engage in
the kind of balancing test rejected by Heller, at 128 S.
Ct. 2821. See Nordyke, at 563 F.3d. 457-60.
The Nordyke three-judge panel also invoked a
“sensitive places” doctrine/definition that was
introduced, but not explained, in Heller, at 128 S. Ct.
2816-17. See Nordyke, at 563 F.3d. 459-60.
What is unique about the Nordyke fact pattern is
that it is particularly well suited to a discussion of
“judicial scrutiny” as a legal doctrine, because it forces
us to compare and contrast a new application (Second
Amendment) of tiered scrutiny with those areas of
constitutional law that have historically analyzed
rights in this way. (e.g., First Amendment and Equal
Protection). Even if the Nordyke panel got the result
right, Second Amendment litigants in the McDonald
case (and throughout the country) would benefit from
an authoritative explanation from this Court as to why
they got it right.
The Nordykes held their gun shows at the County
Fairgrounds, without incident, for more than 10 years
before the case was filed in 1999. They have continued
9
to hold gun shows at other fairground venues for more
than 20 years. The California Department of Justice
and local law enforcement testified that the gun shows
promoted by the Nordykes, locally and throughout the
state, are safe and well regulated.
The government in the Nordyke case admits that
the gun shows at the fairgrounds are neither a primary
nor a secondary source of crime. Alameda County cites
no discreet public safety reasons for its ordinance. Its
sole justification is generalized statistics about violent
crime rates, which have nothing to do with the
Nordykes’ gun show activities.
Nordyke’s First Amendment component rests on
the Defendants’ concession that possession of guns at
gun shows can convey particularized messages, likely
to be understood by their intended audience. The
author of the ordinance (King) even announced in a
press release that the purpose of the law was to ban
gun shows and eliminate the fairgrounds as “a place
for people to display guns for worship as deities for the
collectors who treat them as icons of patriotism.”
The Equal Protection aspect of the case arises
because the County permits the Caledonian Scottish
Games to possess firearms at the fairgrounds for their
expressive purposes, but still prohibits gun shows that
operate under substantially identical regulations.
The right to possess a gun at a gun show arises out
of an ancillary “right to keep” which implies a right to
acquire or purchase. The Second Amendment protects
two distinct rights – “the right to keep” and “the right
to bear” arms. Heller, at 128 S. Ct. 2830-31. It also
arises out of the “right to bear” or carry arms for lawful
purposes. Heller, at 128 S. Ct. 2793 passim.
10
The County of Alameda has even maintained the
absurd position that gun shows and gun sales can take
place on county property (e.g., the Fairgrounds) as long
as no guns are present.
There is no so called “gun show loop-hole” in
California as state law requires that all firearm sales
(including those at gun shows) be processed through a
federal and state licensed firearm dealer. The County
conceded that the Nordykes’ gun shows complied with
all federal and state laws, and all safety regulations
relating to gun shows and firearm transactions.
A recitation of the sheer volume of federal and
state laws regulating sales, possession and gun show
activities would exceed the limited space permitted in
this brief. It is an undisputed fact that the promoters,
exhibitors, vendors and patrons comply with all these
laws. Brief examples include: (1) guns at gun shows
must be unloaded and secured in a manner that
prevents operation, except for brief periods of
mechanical demonstration for a prospective buyer; (2)
no person (except security and sworn peace officers)
may possess a firearm and the ammunition for that
firearm at the same time; (3) no person under 18 years
is permitted to attend a gun show unless accompanied
by an adult; and (4) no person may bring a gun to a
gun show unless they have a government issued photo
identification, and the firearm must be tagged and
identified with the information from that I.D.
These state/federal laws are substantially identical
to the exceptions for gun possession contained in the
Alameda ordinance. Yet the Nordyke panel found no
violation of equal protection (in the exercise of a
fundamental right) when it differentiated the gun
shows from the Caledonian Scottish Games.
11
The Nordyke panel cited Planned Parenthood v.
Casey, 505 U.S. 833, 873 (1992), and Harris v. McRae,
448 U.S. 297, 315-16 (1980), for the proposition: “not
every law which makes a right more difficult to
exercise is, ipso facto, an infringement of that right.”
But these cases dealt with a demand that government
maintain medical facilities, personnel, funding and
equipment to perform abortions for women (indigent or
not) who sought to exercise their right to an abortion.
Furthermore, the laws forbidding abortions that were
challenged in these cases all had lifesaving exceptions
for the life of the mother. See Casey, at 505 U.S. 87795. Self-defense (preservation of innocent life) is the
primary right recognized in Heller for which keeping,
bearing, and acquiring arms is the means.
The Nordyke plaintiffs were not asking the Court
to force the County to maintain the fairgrounds so that
they could conduct gun shows. They were asking to
compete on a level playing field with other
organizations (e.g., Scottish Games, County Fair, Auto
Shows, Dog Shows, Antique Shows, Sportsman Shows,
Art Shows, etc...) that leased the fairgrounds for their
events.
The County had not offered a scintilla of evidence
that the Nordykes’ gun shows imposed a greater
burden on the County than any other event. In fact,
the Nordykes contribute to the County by paying to
lease the venue, they maintained insurance like any
other promoter, and they comply with all special laws
directed at their particular endeavor; all while
generating indirect revenue for the County through
rent, food sales, parking fees and sales taxes.
Nor were the Nordykes complaining about a mere
burdening of any of their rights. They would welcome
12
any appropriate regulation designed to address issues
of gun safety and crime prevention.5 But the ordinance
is not an appropriate regulation aimed at a community
evil. It seeks to ban gun shows and the “gun culture”
from county property through the pretext of public
safety.
Furthermore, the citation to Pleasant Grove City v.
Summum, 129 S. Ct. 1125 (2009), in Nordyke, at 563
F.3d 459, n.21, is confusing. If the panel means that
the county is free to express its own anti-gun viewpoint
under a Second Amendment analysis, why does its
later First Amendment analysis proceed as if the
ordinance is a neutral regulation instead of the
county’s pretextual vehicle for a partisan anti-gun
message? First Amendment scrutiny can not be that
different from Second Amendment scrutiny.
The sponsor of the ordinance, Mary King (County
Supervisor) sent a memorandum to County Counsel
prior to introducing the ordinance. It was copied to all
board members. It requested that County Counsel
research a way to prohibit gun shows on county
property. The memorandum clearly set forth a
purposeful intent, based on political philosophy, to
deny gun shows access to county property.
The County, speaking through Supervisor King,
issued a press release in connection with the ordinance.
That press release reiterated that the purpose of the
pending legislation was to deny gun shows access to
5
E.g., The County could supplement the State law
that prohibits a person from simultaneously possessing a
firearm and the ammunition for the firearm, by
requiring ammunition vendors to be physically
segregated from the firearm vendors.
13
the fairgrounds because the County did not agree with
the political values of the people attending gun shows.
(i.e., The County should not provide “[...] a place for
people to display guns for worship as deities for the
collectors who treat them as icons of patriotism.”)
The Nordykes are entitled to the factual inference
that their gun shows were targeted for extinction
because of the political values expressed at gun shows
and the County’s disagreement with those values. This
targeting of a disfavored group is relevant to the
scrutiny discussion of the First Amendment (under a
Texas v. Johnson analysis), the Second Amendment
(overbreadth), and the Fourteenth Amendment (Equal
Protection). See also: Romer v. Evans, 517 U.S. 620
(1996).
Nordyke is wholly different from Pleasant Grove
City v. Summum because the Nordykes are not asking
to place a permanent monument on county property.
But the panel’s strong inference that the County is
engaged in anti-gun propaganda as a property owner,
is certainly probative as to whether the County is
engaged in the regulation of expressive conduct by
banning gun shows in order to “send a message” that
guns are bad. And because the County is engaged in
its own expression and the regulation of expression by
others, the panel should have applied the more
rigorous scrutiny analysis under Texas v. Johnson, 491
U.S. 397 (1989).
Another inconsistency arises with a finding that
the County’s ban on gun shows does not violate Equal
Protection (of a fundamental right) vis-á-vis guns
possessed at gun shows vs. guns possessed at the
Scottish Games. The guns at gun shows are secured
pursuant to state law. While the guns at the Scottish
14
Games are secured pursuant to a county ordinance.
This is a distinction without a difference and cannot
survive strict scrutiny of a fundamental right under an
Equal Protection claim.
Under the First and/or Second Amendment and
under an Equal Protection (for fundamental rights)
analysis, the government is required to: (1) produce
evidence, (2) that demonstrates a compelling interest,
(3) and prove that the government’s regulation is not
more restrictive of the right(s) than is necessary to
address the compelling interest. Police Dep’t of Chi. v.
Mosley, 408 U.S. 92 (1972).
The County failed on all three counts because it
has conceded that gun shows are not a source of any
community evil. So if the County’s exclusion of gun
shows from the Fairgrounds is based on a desire to
engage in a hoplophobic message for Second
Amendment purposes, then its ordinance is invalid
under Heller, as it is not designed to address public
safety or crime prevention. And if the County is
expressing its hoplophobia by banning the expressive
conduct of possessing guns at gun shows, then it is
violating the First Amendment’s commandment
against censorship; and/or it is violating Equal
Protection by permitting expression with guns by the
Scottish Games, but forbidding expression with guns at
gun shows.
B. The Nordyke Panel’s “Sensitive Place”
Analysis was Wrong.
The Nordyke three-judge panel also indulged the
County’s argument that the fairgrounds is a “sensitive
place.”
15
But the County presented no evidence – none –
that the Fairgrounds (or indeed any county property)
is a “sensitive place.” How could it? Discovery was
closed and this case was already on appeal out of the
district court when the Heller opinion was filed on June
26, 2008. Heller’s “sensitive places” concept was set
forth in dicta at 128 S. Ct. at 2816-17:
[W]e do not undertake an exhaustive
historical analysis today of the full scope
of the Second Amendment, nothing in our
opinion should be taken to cast doubt on
longstanding prohibitions on the
possession of firearms by felons and the
mentally ill, or laws forbidding the
carrying of firearms in sensitive places
such as schools and government
buildings, or laws imposing conditions
and qualifications on the commercial sale
of arms. (Emphasis added)
The adjective “longstanding” modifies the noun
“prohibition” regarding felons and the mentally ill;
and it might be stretched to cover sensitive places.
There was no factual record in the Nordyke case
that the county fairgrounds had a longstanding history
as a sensitive place. The facts construed in the light
most favorable to the Nordykes are: (1) Mary King had
been trying for “years” to get rid of gun shows, (2) the
Nordykes had conducted gun shows at the Alameda
Fairgrounds for almost 10 years before the ordinance
was passed, and (3) the Nordykes continued to hold
gun shows at other fairgrounds throughout California
while this case has been pending. When and how did
“fairgrounds” as a class of property undergo a
transformation to a sensitive place?
16
The Nordyke panel tried to describe a distinction
without a difference for the ways guns are handled at
gun shows (secured unless the gun is being
mechanically demonstrated to the buyer) and the way
guns are handled during the Scottish Games (secured
until the re-enactors are actually staging their mock
battles). This has nothing to do with defining a
sensitive place. A sensitive place, like a courthouse,
would neither permit mock battles nor gun shows.
How can the fairgrounds be a sensitive place if
secured guns are possessed at gun shows, but “not-asensitive” place when guns are possessed by
“authorized participants in a motion picture, television,
video, dance or theatrical production or event, [...] ” ?
[Alameda Ordinance § 9.12.120(f)(4).] Neither the
County nor the Nordyke opinion provides any
compelling explanation for this inconsistency. Why
aren’t gun show patrons and exhibitors, who pay their
admission and follow all federal and state laws
regulating gun shows, “authorized participants” at an
event? Furthermore, why is the County’s property not
sensitive to functional movie prop guns, but is
sensitive to gun show guns which are secured unless
being mechanically demonstrated?
How can the fairgrounds be a “sensitive place”
when the ordinance exempts imitation firearms or BB
guns and air rifles? [Alameda Ordinance § 9.12.120(d).]
An airport “sterile area” or airliner does not tolerate
the presence of imitation firearms. See Cal. Pen. Code
§ 171.5.
Persons with valid licenses to carry loaded and
concealed firearms under Cal. Penal Code § 12050, are
also exempt from the ordinance. [Alameda Ordinance
§ 9.12.120(f)(3).] A jail or prison does not permit such
17
licensees to retain their weapons when interviewing or
visiting inmates.
The County’s ordinance is not delineating
“sensitive places.” At best, the County is describing
permissible and impermissible “uses” of guns, which
negates any argument that county property is per se
sensitive to the presence of guns.
The only place where the ordinance attempts to
define “places” is where it exempts from the ordinance
“local public buildings” as defined in Cal. Pen. Code §
171b. [Alameda Ordinance § 9.12.120(c).] This state
law in California bans guns in government buildings,
but this code section cited by the ordinance specifically
includes an exception for the purpose of conducting
a law-abiding gun show. See Cal. Pen. Code §
171b(b)(7)(A) and § 171b(b)(7)(B).
Consider these easily verified general facts
regarding places where guns show up in parks and
fairgrounds:
!
The publication: Gun Shows: Brady
Checks and Crime Gun Traces was jointly
published in January 1999, by the United
States Department of Justice and the
Department of the Treasury See
http://www.atf.gov/pub/treas_pub/gun_s
how.pdf. Gun shows are described on
page 4. Nationally there were 4,442 gun
shows advertised in a trade publication
for calendar year 1998. California was
among the top 10 states where gun shows
took place. “Ordinarily, gun shows are
held in public arenas, civic centers,
fairgrounds, and armories,...”
18
!
On May 22, 2009, President Obama
signed into law a bill that was passed
with bipartisan support that permits lawabiding citizens to possess firearms in
National Parks – consistent with the law
of the state in which the park is located.
[The Credit CARD Act of 2009, Pub. L.
No. 111-24, 123 Stat, 1734 (2009).]
These facts can be judicially noticed for the
proposition that public places, where many people
gather, like: parks, fairgrounds, public arenas, civic
centers, and government buildings where gun shows
take place, are not longstanding examples of
historically “sensitive places.”
The Nordyke three-judge panel made a prejudicial
unwarranted finding regarding sensitive places. The
County did not even request that the case be returned
to the trial court so that it could attempt to prove that
its fairgrounds (or indeed all of Alameda County’s
properties) are particularly sensitive places.
Neither is there is any legal basis for the panel’s
creation of a definition of “sensitive place” out of the
dicta in Heller. The panel did note that “Second
Amendment law remains in its infancy” and that
Heller itself “does not provide much guidance.”
Nordyke, at 563 F.3d 460.
This state of affairs should have triggered a default
fundamental rights analysis. It should be the County’s
burden to demonstrate a compelling justification for
classifying its fairgrounds as a sensitive place, and the
County must be required to demonstrate that there is
no less burdensome regulation that addresses the
19
compelling interest that they assert.6 The County did
not meet that burden, and the Nordyke three-judge
panel was wrong to give it a pass on this issue.
An expansive interpretation of “sensitive places” is
not unique to the Nordyke facts. In its post-Heller
opposition to a motion for summary judgment in
Palmer v. District of Columbia, Civil Action No.: 0901482 (HHK), an ongoing challenge to D.C.’s complete
ban on carrying firearms, the defendants argued that
the entire federal enclave is a sensitive place:
Defendants aver that the whole of the
District of Columbia should be considered
a “sensitive” place, given its dense
concentration of iconic structures,
government facilities, embassies, and
regular meetings of diplomats and
leaders from around the world. See
Hearing on the Impact of Proposed
Legislation on the District of Columbia’s
Gun Laws Before the House Comm. on
Oversight & Government Reform (Sept. 9,
2008). (Testimony of Cathy L. Lanier,
Chief of Police) at 5 (“[T]he District of
Columbia, as the seat of the Federal
government with its multitude of critical
official and symbolic buildings,
monuments, and events and high-profile
public officials traversing its streets every
6
For example, the County took steps to control
the unlawful possession of deadly weapons at the
fairgrounds by the simple expedient of installing metal
detectors at the entrance to the fairgrounds during the
county fair.
20
day, is a city filled with “sensitive” places.
Our laws should reflect that reality.”)7
Without guidance from this Court, judicial scrutiny
of infringements of the Second Amendment will
proceed in a chaotic and, perhaps, regionally-biased
manner among the Circuits. Certainly the en banc
panel of the Ninth Circuit would benefit from a word or
two about judicial scrutiny when they revive their
deliberations of the Nordyke case after the opinion in
McDonald is published.
IV. JUDICIAL SCRUTINY:
SECOND AMENDMENT
Judicial scrutiny requires identification of the role
of the constitutional right at issue.
In the First Amendment the Founding
Fathers gave the free press the protection
it must have to fulfill its essential role in
our democracy. The press was to serve
the governed, not the governors. The
Government's power to censor the press
was abolished so that the press would
remain forever free to censure the
Government. The press was protected so
that it could bare the secrets of
government and inform the people.
N.Y. Times. Co. v. United States,
403 U.S. 713, 717 (1971).
Justice Hugo Black, Concurring.
7
http://www.archive.org/download/gov.uscourts.dcd.137887
/gov.uscourts.dcd.137887.6.0.pdf page 27-28.
21
Heller examined the Second Amendment in a
context of the right of self-defense in the home, because
those were the facts of that case. Without an
articulation of the contours of the right, the Nordyke
panel felt constrained to recognize the right solely in
that context. Nordyke, at 563 F.3d 458. And because
the county ordinance challenged in that case merely
burdened the right outside the home it was upheld.
How is it possible that an un-enumerated
fundamental right (abortion) is important enough to
warrant an “undue burden” test8 – but an enumerated
right may be so circumscribed? Will judicial scrutiny
of the Second Amendment enhance or further erode the
device of three-tiered scrutiny?9 What will be the
replacement doctrine?
The Second Amendment plays a vital role in our
republic. As Heller points out, at the very least it
recognizes a Blackstone-like fundamental “law of
nature” in the use of force by individuals for selfdefense. Heller, at 128 S. Ct. 2798. Only recently in
the dissent on Second Amendment issues, Chief Judge
Kozinski and Judge Gould of the Ninth Circuit have
offered defense of the community and resistance
against tyranny to the catalogue of Second Amendment
8
See Planned Parenthood v. Casey, 505 U.S. 833
(1992).
9
For a discussion about the way recent Supreme
Court decisions (e.g., Lawrence v. Tex., 539 U.S. 558
(2003), and Grutter v. Bollinger, 539 U.S. 306 (2003).)
may be undermining a principled approach to tiered
scrutiny. See Professor Calvin R. Massey’s article: The
New Formalism: Requiem for Tiered Scrutiny?, 6 U. Pa. J.
Const. L. 945 (2004).
22
values important to the republic. See, respectively:
Silveira v. Lockyer, (reh’g denied) 328 F.3d 567, 569-70
(9th Cir. 2003); Nordyke v. King, 563 F.3d 439, 464 (9th
Cir. 2009).
The First and Second Amendment complement
each other. They share a common purpose by
recognizing that liberty of thought is useless without
the right to defend ideas. Our constitutional form of
government also recognizes that liberty of action leads
to anarchy without a civic virtu of understanding that
is brought about by a “marketplace” of ideas. These
amendments taken together remind us that that
marketplace is best protected by the governed and the
government.
The Nordyke three-judge panel suggested that a
fundamental rights analysis (i.e., strict scrutiny)
should be applied to the Second Amendment in much
the same way as the First Amendment. Nordyke, at
563 F.3d 458, n.19. Instances of government action
surviving strict scrutiny are rare and have historically
been confined to equal protection and racial
classification schemes. See Korematsu v. United
States, 323 U.S. 214 (1944), and Grutter v. Bollinger,
539 U.S. 306 (2003).
With the Heller presumption that long standing
regulations will survive strict scrutiny, Heller, at 128
S. Ct. 2816-17, it becomes imperative to define the
compelling government interest at stake in Second
Amendment cases. Future judges who take up the
“loaded weapon” described in Justice Jackson’s dissent
in Korematsu, at 323 U.S. 246, need to know how to
use strict scrutiny in a safe and responsible manner.
Prevention, and if that fails, prosecution of
criminal violence should be the only compelling
23
justification for infringing the individual’s right to keep
and bear arms. Background checks to prevent violent
and mentally unstable persons from acquiring firearms
are the quintessential means for achieving this
government interest.
Rules that make sensitive places like courthouses,
jails, and prisons off limits to private firearms, where
the government must exercise a monopoly of force –
because that is the function of the building – probably
pass constitutional muster. This might be a Second
Amendment analogue to the First Amendment’s
anecdote about shouting fire in a crowded theater.
Schenck v. United States, 249 U.S. 39 (1919).
Rules regulating, but not prohibiting, the carrying
of firearms in non-sensitive places, should probably
take the form of non-discretionary, ministerial duties,
not unlike issuing a driver’s license or parade permit.
See Forsyth County v. The Nationalist Movement, 505
U.S. 123 (1992). Though for a contrary view, see the
state Constitutions of Vermont (Vt. Const. ch. 1, art.
16) and Alaska (Alaska Const. art. 1, § 19).
Maintaining uniformity in the application,
operation, and interpretation of laws that touch on
fundamental rights, especially in the context of
criminal law, is another important constitutional value
that should apply equally to all fundamental rights.
See generally, Bush v. Gore, 531 U.S. 98 (2000). Of
course this must be done in a way that recognizes that
states have legitimate interests in addressing their
own policy considerations. Danforth v. Minn., 552 U.S.
264 (2007).
The Nordyke case initially had a preemption claim.
Nordyke, at 563 F.3d 444. In 2000, the Ninth Circuit
certified to the California Supreme Court the question
24
whether state laws regulating gun shows and the
possession of firearms preempted the Ordinance. See
Nordyke v. King, 229 F.3d 1266 (9th Cir. 2000). The
California Supreme Court answered that the
Ordinance was not preempted. See Nordyke v. King, 27
Cal. 4th 875, 118 Cal. Rptr. 2d 761.
That all occurred before Heller. When she was
sitting on that Court, Associate Justice Janice Rogers
Brown (currently of the D.C. Circuit Court of Appeals)
dissented from the finding of “no preemption” – in part
– because her colleagues on the California Supreme
Court refused to analogize the rights of the gun show
promoters to core First Amendment rights. At the time
of that decision, the law in the Ninth Circuit was that
individuals had no standing to assert Second
Amendment rights. Hickman v. Block, 81 F.3d 98 (9th
Cir. 1996). Furthermore, the State of California does
not recognized a right to keep and bear arms in its own
State Constitution. See Kasler v. Lockyer, 23 Cal. 4th
472, 480 (2000).10
Justice Brown went on to warn that even small
intrusions on liberty can erode personal freedom just
as surely as the malignant acts of dictators. See
Nordyke v. King, at 118 Cal. Rptr. 2d 768-69. Her
point was that uniformity of law was as much a
component of liberty as the underlying substantive
constitutional right. At a minimum state laws that
trench on the right to keep and bear arms should be
uniform within their respective jurisdictions.
10
This was another case addressing equal
protection and the right to keep and bear arms, in which
Justice Brown also wrote a dissent. Kasler v. Lockyer, 23
Cal.4th 472, 503-10 (2000).
25
An opinion in the McDonald case that incorporates
the Second Amendment against the states, but which
also includes a holding that all laws regulating the
“right to keep and bear arms” must be uniform within
each state serves the following functions: (1) Since
firearms are ubiquitous, exercising the right to possess
firearms should not conflict with the right of intrastate
travel11; (2) law-abiding firearm owners need only
acquaint themselves with federal and state laws,
instead of being held criminally accountable in every
town, city, county, and parish they travel through
within their state while exercising a fundamental
right; and (3) instead of the municipal codes of tens of
thousands of cities and counties being subjected to
challenges under the Second Amendment, a
constitutionally recognized, baseline preemption of
“the right to keep and bear arms” that funnels down
those challenges to the bodies of law of 50 states plus
one federal body of law, strangles the majority of
potential lawsuits in their crib.12
Turning to a conventional analysis, based on case
law, of the Chicago Municipal Code challenged in the
Mc Donald case: (1) The handgun ban is D.O.A. via
Heller upon a finding that the Second Amendment
applies to state and local governments under either
theory of incorporation; (2) The re-registration scheme,
with its forfeiture consequences and arbitrary
11
Interstate travel with firearms is already
protected by the Firearm Owner’s Protection Act, Pub. L.
No. 99-308, 100 Stat. 449 (1986).
12
This would be the corollary application of the
principle at work in the Protection of Lawful Commerce in
Arms Act, Public Law 109-92; 15 U.S.C. § 7901-7903.
26
deadlines, would not even pass rational basis review
under United States v. Carolene Products Co., 304 U.S.
144 (1938). See also: Lawrence v. Tex., 539 U.S. 558
(2003), which applied a kind-of rational basis test by
refusing to apply intermediate or strict scrutiny to laws
infringing on sexual intimacy; (3) The fee requirements
are fatally tied to the re-registration scheme, but
probably still fail as a special tax that burdens a
constitutional right. See generally: Minneapolis Star &
Tribune Co. v. Minn. Commissioner of Revenue, 460
U.S. 575 (1983).
Scrutiny of Chicago’s gun laws in the abstract
should start with a presumption of invalidity to the
extent that Illinois State law already regulates “the
right to keep and bear arms.” That would assume
Illinois state law meets a compelling government
interest test and that those laws are necessary to
address that interest.13 The Second Amendment, as an
equally dignified part of the Bill of Rights, deserves at
least this level of judicial scrutiny.
V. CONCLUSION
This renaissance of the Second Amendment must
be vigorous, principled and complete. The Bill of Rights
13
See Nonsubstance Reorganization of Deadly
Weapon Statutes, Calif. Law Revision Commission (June
2009). In response to a veto message on SB 1140
(Scott)(2004) by California Gov. Schwarzenegger, citing
byzantine complexities in his state’s firearms laws, the
legislature commissioned this study to revise and simplify
California’s Deadly Weapons Control Act.
http://www.clrc.ca.gov/pub/Printed-Reports/RECpp-M300.
pdf
27
will only work if virtuous citizens are exercising all of
their rights as actual limitations on government. The
Court can, and should, take this opportunity to provide
all of the jurisdictions in this country with rules for
judicial scrutiny of the Second Amendment, at the
same time it takes up the issue of incorporation.
Associate Justice Hugo L. Black liked to say that
written constitutions are indigenous to the United
States, and that the consequences of the freedoms
guaranteed by the Bill of Rights were already taken
into account by those who wrote and ratified that
document. He went on to warn against the danger of
granting any branch of government the power to
balance its interests against the rights of the people.
In his iconic speech14 on the Bill of Rights, Justice
Black quoted one of his heroes, Thomas Jefferson, to
remind us that, “Our peculiar security is in the
possession of a written Constitution. Let us not make
it a blank paper by construction.”
In that same speech, Justice Black gave us a
(reverse) countdown of the “absolute” constitutional
values set forth in the Bill of Rights. He did not
patronize the Second Amendment as less than
absolute, so long as the arms that are regulated (not
banned) are necessary to a well-regulated militia.15
14
James Madison Lecture at New York University
School of Law on February 17, 1960. Black, Hugo L., The
Bill of Rights, 35 N.Y.U. L. Rev. 865 (1960).
15
Having served in the Senate when the 1934
National Firearms Act (NFA) was passed and on the
Supreme Court when United States v. Miller, 307 U.S.
174 (1939), was decided, Justice Black was in a unique
28
Justice Black’s dissent in Adamson v. California,
332 U.S. 46 (1947), is emerging as the inevitable
standard for application of at least the Bill of Rights to
state action, even though Privileges or Immunities
incorporation may subsume more than those Ten
Constitutional Commandments. Corfield v. Coryell, 6
F. Cas. 546 (C.C.E.D. Pa. 1823).
The contest on the Court between the “balancers”
and the “absolutists” evolved into the present day
three-tiered approach to constitutional rights. In order
to keep one-tenth of the Bill of Rights from becoming
a “blank paper by construction” this Court should
define the contours of judicial scrutiny for the Second
Amendment along side the incorporation question.
Respectfully Submitted,
DONALD KILMER *
LAW OFFICES OF
DONALD KILMER , APC
1645 Willow Street,
Suite 150
San Jose, CA 95125
(408) 264-8489
JASON DAVIS
DAVIS & ASSOCIATES
27281 Las Ramblas,
Suite 200
Mission Viejo, CA 92691
(949) 310-0817
*Counsel of Record
position to expound on the relationship between mere
regulatory legislation (i.e., the taxing of machine guns
and short-barreled shotguns) and the absolute protections
afforded individuals by all of the Bill of Rights as against
government action infringing any one of those rights.

Nordyke v. King - Madison Society

Transcription

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