Nordyke v. King Historical Notes
- 1 Background
- 2 Incorporation
- 3 Preliminary Injuction
- 4 Question Certified to the California Supreme Court
- 5 Appeal after the Certified Question
- 6 District Court Ruling on the Merits
- 7 Appeal of the Merits Ruling
- 8 April 20, 2009 Opinion
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 Sallie 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.
Incorporation was achieved through the 2010 landmark Supreme Court case McDonald v. Chicago, where the court incorporated the right through the Due Process Clause. Prior to the Supreme court answering the incorporation question, the Ninth Circuit court of appeals also found that the second amendment was incorporated. For more information see the April 20, 2009 Opinion section below.
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.
- 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
Note that at this early date, the Nordykes have not decided whether they will appeal.
9th Circuit Judge Calls for En Banc Briefing
Neither side chose to appeal this case en banc. However, on May 18, 2009 an anonymous Judge of the Ninth Circuit Court of Appeals called for briefing from both sides on whether the case should go en banc.
On June 8, 2009 all 27 judges in the Ninth Circuit received a copy of the briefing for rehearing En Banc from both sides.
In cases where rehearing En Banc is granted, the Ninth Circuit will usually (but not always) request new briefing and set oral arguments. That process takes about 90 days from filing to oral arguments. Then there is a longer 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 8+ months later (June 26, 2008 to March, 2009).
Once things are final in the ninth circuit, The Nordykes have approximately 90 days to file for certiorari with the Supreme Court. However, the Nordyke opinion remains the law of the Circuit unless and until SCOTUS grants cert.