Nordyke v. King

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Nordyke v. King is a case challenging an effective ban on gun shows on county property by the county of Alameda. While the case was originally about gun shows on county property, it's mainly interesting recently (Mar 2009) because it may be the first case to "incorporate" the Second Amendment against the states.


May 18, 2009

Late the afternoon of Monday May 18th, the 9th Circuit informed
all parties in Nordyke that a judge of the 9th Circuit has has
called for a vote to determine whether the case will be reheard
en banc. Both sides have 21 days from the 18th to file briefs on
whether the case should be heard en banc.

Briefs due June 8. Calguns discussion here

April 20, 2009 Opinion of the court - see below.


A provision of the Federal Bill of Rights is incorporated when the Supreme Court declares that the 14th Amendment prohibits state governments from violating the right.

In 1833 the US Supreme Court decided in Barron v Baltimore that the states could violate the Bill of Rights, because the Bill of Rights only restrained the federal government. After the civil war, the 14th Amendment was passed to protect the rights of blacks and former slaves from violation by state governments. But in seeming defiance of the plain meaning of the 14th Amendment, the Supreme Court decided in the Slaughter-House Cases, that the 14th Amendment only protected the "privileges and immunities" of US citizens against state violations, not their rights. The courts are very reluctant to overturn their prior rulings, but finally in the early 20th century, the Supreme Court came up with a way to get around their Slaughter-House rulings without expressly overturning themselves. In the case of Gitlow v. New York, they declared that the 14th Amendment prohibited the states from violating some of the rights of citizens without "due process". But the court stopped short of "incorporating" all of the bill of rights at once. Instead each amendment or even part of an amendment, had to be incorporated by the court individually. The Second Amendment is one of the last rights in the Bill of Rights that has not been incorporated.


In August 1999, Alameda County passed an ordinance making illegal the possession of firearms on County property. In pertinent part, the Ordinance reads: “Every person who brings onto or possesses on county property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.” Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.

Russ and Sally Nordyke who own the TS Trade Show and various gun rights supporters represented by Don Kilmer filed suit against the County of Alameda alleging that Alameda's Ordinance was preempted by state law and violated various of their First Amendment rights.

Preliminary Injuction

The Nordykes moved for a temporary injunction to allow their shows to go on at the District Court level in front of Judge Jenkins. Jenkins sua sponte introduced the Second Amendment, treated the motion for temporary injunction as one for a permanent injunction and then denied that motion. The Nordykes filed an interlocutory appeal of that denial.

Question Certified to the California Supreme Court

The Ninth Circuit Court of appeals panel consisting of Alarcón, O’Scannlain and Gould certified the preemption question to the California Supreme Court. In April 2002, the California Supreme Court ruled in Nordyke v. King 44 P.3d 133, 138 (Cal. 2002) that state law did not preempt cities and counties from banning gun shows on their property.

Appeal after the Certified Question

The Ninth Circuit panel then turned to the merits of the Nordyke's First and Second Amendment claims. The panel held that on motion for permanent injunction, the Nordykes did not prevail in their first amendment claims. The court also rejected Nordyke's Second Amendment claims citing binding precedent from Hickman that only states have standing to bring Second Amendment claims. However, the panel strongly suggested (and Gould's concurrence stated plainly) that it did not believe that the previous Second Amendment rulings in Hickman and Silveira were good law. The case returned to Judge Jenkins.

District Court Ruling on the Merits

At the district court the Nordykes recast their argument from a facial challenge under the First Amendment to an as applied challenge. In April of 2007, Judge Jenkins ruled against the Nordykes holding that the ordinance was not specifically targeted at speech and therefor passed rational basis scrutiny.

Appeal of the Merits Ruling

The Nordykes have appealed the ruling of the District Court. Judge Jenkins has since left the Federal Courts for a state appellate appointment. The Nordykes and Alameda County filed motions for supplemental briefing on the Second Amendment questions in light of Heller. On July 18th it became clear that the original panel of Alarcón, O’Scannlain and Gould would retain jurisdiction in the case. Briefings on the Second Amendment Incorporation issues were filed September 11, 2008 (Nordyke and Alameda) and reply briefs from both sides were filed October 2, 2008 (Nordyke, Alameda.) Amicus Briefs filed include Second Amendment Foundation, NRA/CPRA, Pro-Incorporation Law Professors, and Various Pro-Incorporation Professors. Alameda's amici filed a joint brief. Oral argument was Thursday January 15, 2009. C-SPAN's recording of the arguments is available here. A transcript of the oral arguments is available here.

April 20, 2009 Opinion

The full opinion is posted.

Preliminary summary

  • the ordinance is upheld; the Nordykes may not hold gunshows on County property in violation of the ordinance
  • the Second Amendment is incorporated against states and local governments, but the ordinance does not violate the protections the amendment affords.

Commentary on the April 20 Opinion



Law professor Eugene Volokh

Note that at this early date, the Nordykes have not decided whether they will appeal.

The Future of the Case

3/29 extended explanation, update 4/25

We will first assume that the panel in Nordyke goes at least 2-1 in our favor.

  • The Opinion was 3-0; Alameda 'won' on the ordinance.


Alameda will have 14 days to file a "motion for rehearing or rehearing En Banc". It is one motion. Alameda can ask for and I believe almost always can get an extra 7 days.

  • That date is May 11, 2009 at the latest - 21 days from April 20.

Justifications for En Banc

There are two main claims that are used to justify a rehearing En Banc. The first is that the panel decision conflicts with a prior panel decision in the same circuit. The second criterion is that the decision conflicts with a prior Supreme Court ruling or a decision of a sister Circuit. I expect Alameda to claim all three.

  • Finally they'll claim it conflicts with the Second Circuit's decision in Maloney v. Rice which did not incorporate. Sadly, Alameda will be correct about Maloney which will add some additional risk that this case will go to the en-banc Ninth Circuit.

The only good news there is that also makes it more likely that one of the Incorporation cases will go to SCOTUS. However, Maloney may end up costing all of us in the Ninth Circuit many extra months...

9th decides on En Banc

Next, the original panel will consider whether they should reconsider. They usually do not.

While that is occurring, all 27 judges in the Ninth Circuit get a copy of the motion for rehearing En Banc. If none of them call for vote of the judges, we're done and it's up to Alameda to apply for certiorari to the Supreme Court.

If a petition for rehearing En Banc has been made, any judge may, within 21 days from receipt of the En Banc petition, request the panel to make known its recommendation as to en-banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for En Banc consideration, whereupon a vote will be taken.

If no judge requests or gives notice of an intention to request En Banc consideration within 21 days of the receipt of the En Banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing En Banc.

If 14 or more vote yes, then an order granting rehearing En Banc will be released and 10 judges will be drawn from a hat to join the Chief Judge (Kozinski - who wrote a very pro Second Amendment dissent in Silveira) on a panel of 11 judges to rehear the case En Banc.

If rehearing En Banc is granted they will usually request new briefing and set oral arguments. That process takes about 90 days from filing to oral arguments. Then we go back to a longer post En Banc wait for the En Banc opinion. (Don Kilmer's last En Banc had oral arguments the morning Heller was released and the opinion came out 2 weeks ago. June 26, 2008 to March, 2009: 8 months +.)

Once things are final in the ninth circuit (either because En Banc wasn't granted, or because we're past the En Banc process), Alameda has approximately 90 days to file for certiorari with the Supreme Court. However, the Nordyke opinion becomes the law of the Circuit unless and until SCOTUS grants cert.


  • So, best case to finality is decision day plus about 5 to 8 weeks if En Banc isn't granted.
  • If En Banc is granted it is decision day plus about 150 days to oral arguments and as much as 9 months after oral argument - aka: decision plus 14 months.

-- Gene Hoffman

External links