Nordyke v. King
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.
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 have filed a motion 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 have retained 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 are due October 2, 2008. Some Amicus Briefs have already been filed (NRA, Pro-Incorporation Law Professors). Oral argument has not yet been scheduled.