Ninth Circuit Court Of Appeals Upholds Alameda County Ordinance Prohibiting Guns On County Property

On April 20, 2009 the Ninth Circuit Court of Appeals handed down its opinion in Nordyke v. King, a decision with potentially significant implications for California’s local governments. Although the Ninth Circuit upheld the Alameda County firearms ordinance challenged in Nordyke, it did so only after becoming the first appellate court to determine that the "right to bear arms" protected by the Second Amendment is a constraint on state and local governments.

In Nordyke, gun show operators challenged the validity of Alameda County’s ordinance banning firearms and ammunition possession on County-owned property, which the County adopted in the wake of a mass shooting on the County Fairgrounds. The lawsuit has a long history and has resulted in several published decisions, all upholding the ordinance.

The Nordyke lawsuit was pending in the Ninth Circuit for a second time when the U.S. Supreme Court handed down its recent decision in District of Columbia v. Heller, striking down D.C.’s handgun possession ban, and holding for the first time that the Second Amendment protects an individual right to possess firearms without regard to preserving or maintaining the effectiveness of a “well-regulated militia.” Because D.C. is a federal enclave, the Heller Court did not need to reach, and did not reach, the issue of whether the Second Amendment is “incorporated” against the states and local governments through the 14th Amendment, or whether it constrains only Congress. Since Heller, a number of courts, including the Second Circuit Court of Appeals, have faced that issue in challenges to state or local weapons regulations, but all have held that they must follow earlier Supreme Court cases in which the Court held that the Second Amendment constrains only Congress.

In Nordyke, the Ninth Circuit departed from these precedents, and its own earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, determining that the individual right to possess firearms recognized in Heller is fundamental to “ordered liberty” and thus applies to the states and local governments. The Ninth Circuit then addressed whether the ordinance violates the Second Amendment right delineated in Heller. The Court concluded that the ordinance does not impinge on that right because, unlike the ordinance challenged in Heller, the Alameda ordinance does not prevent or intrude on home possession of firearms for self-defense, the core right recognized in Heller. The Ninth Circuit also noted that in Heller, the Supreme Court cautioned that its decision regarding the Second Amendment should not cast doubt on certain firearms prohibitions, and provided a list of such presumptively valid regulations, including laws banning firearms in sensitive places, such as schools and government buildings.

In evaluating the ordinance under the Second Amendment, the Ninth Circuit rejected a strict scrutiny test, which would require the ordinance to be narrowly tailored to meet a compelling government interest. The Court implied the applicable test was whether the challenged ordinance creates an undue burden on the right protected by the Second Amendment, but declined to clearly enunciate the test. In a separate concurrence, Judge Gould articulated a similar test, albeit under a different label, that is, the important state interest/reasonable regulation test. This is the test that most state courts use when analyzing a state constitutional “right to bear arms” challenge to a state or local firearms law. In Heller, the Supreme Court also declined to specify the level of judicial review required when a law is challenged under the Second Amendment, but rejected rational basis review, the most lenient test for legislative decisions.

The Nordyke decision may not be the last word on the issues in the case. The Court's conclusion regarding incorporation of the "right to bear arms" against state and local governments may not be viewed as controlling by other courts because the Ninth Circuit could have reached its decision upholding the ordinance without deciding the incorporation issue at all. Also, one of the parties could petition for rehearing en banc by the Ninth Circuit or seek review in the Supreme Court. In the meantime, until there is clearer guidance from the courts regarding how the Second Amendment impacts firearms laws, local legislators should assess whether a proposed or challenged firearms regulation is similar to any firearms prohibition acknowledged as presumptively valid in Heller. If so, the regulation should more readily withstand a Second Amendment challenge than other types of firearms laws. Legislators should also consider whether the firearms regulation at issue serves an important government interest and does not unreasonably restrict possession of firearms in the home for self-defense by law-abiding citizens. If the regulation does not meet this test, it may be difficult to defend against a Second Amendment challenge.

published: April 2009


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