Nordyke v. King

681 F.3d 1041, 2012 WL 1959239, 2012 U.S. App. LEXIS 11076

Opinions

Opinion by Judge GRABER; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge IKUTA.

OPINION

GRABER, Circuit Judge:

The law and the facts relevant to Plaintiffs’ Second Amendment claim have evolved during the 12 years since this case first reached our court. See Nordyke v. King, 644 F.3d 776, 781-82 (9th Cir.2011) (“Nordyke V”) (“summarizing] this case’s long and tangled procedural history”).¹ Under the present law and the present facts, we affirm the district court’s decision to dismiss the Second Amendment claim.²

Recently, the Supreme Court recognized an individual right under the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Even more recently, the Court held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment. McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Plaintiffs Russell and Sallie Nordyke, along with other co-plaintiffs, seek to conduct gun shows at the Alameda County fairgrounds. In 1999, Alameda County enacted an ordinance that provides in relevant part:

Possession of Firearms on County Property Prohibited

(b) Misdemeanor. 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.

(f) Exceptions. Subsection 9.12.120(b) does not apply to the following:

(4) The possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

Alameda County, Cal., Ordinance Code § 9.12.120.

Plaintiffs challenged that ordinance as a violation of their Second Amendment rights. It is undisputed that Plaintiffs are legally authorized to sell firearms and that, if allowed to conduct a gun show on County property, they would offer for sale only firearms that they lawfully could sell under federal and state statutes.

In its initial and supplemental briefing before the three-judge panel, and again during oral argument before the en banc court, counsel for Alameda County gave the County’s current, official interpretation of its ordinance. The County now avers that a gun show is an “event” within the meaning of exception (f)(4). Moreover, the County affirmatively asserts that Plaintiffs, when conducting a gun show, may offer firearms for sale with the requirement that, when a “firearm is not in the actual possession of the authorized participant,” the firearm must be “secured to prevent unauthorized use.” Id. The County represents that a sturdy cable attaching the firearm to a fixture, such as a table, would suffice — much as cell phones, cameras, and other attractive items routinely are displayed for sale. The County further represents that buyers may physically inspect properly secured firearms.

We hold the County to its interpretation of the ordinance, and its reading is a reasonable one. With that interpretation in mind, Plaintiffs cannot state a viable Second Amendment claim. Thus read, the ordinance regulates the sale of firearms at Plaintiffs’ gun shows only minimally, and only on County property. No matter how broad the scope of the Second Amendment — an issue that we leave for another day — it is clear that, as applied to Plaintiffs’ gun shows and as interpreted by the County, this regulation is permissible. See Heller, 554 U.S. at 626-27, 128 S.Ct. 2783 (“Although we 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 ... laws imposing conditions and qualifications on the commercial sale of arms.”); see also Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (observing, in the context of an equal protection claim against a governmental employer, that “there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operation” (internal quotation marks and brackets omitted)); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (recognizing a distinction, for First Amendment purposes, between governmental exercise of the “power to regulate or license, as law-maker” and governmental actions taken in its role “as proprietor, to manage its internal operations” (internal quotation marks and brackets omitted)).

Should the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices. But in the present case, they cannot succeed, no matter what form of scrutiny applies to Second Amendment claims.

AFFIRMED.

1 . See also Nordyke v. King, 229 F.3d 1266 (9th Cir.2000) ("Nordyke I ’’); Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133 (2002) ("Nordyke II"); Nordyke v. King, 319 F.3d 1185 (9th Cir.2003) {‘‘Nordyke III”); Nordyke v. King, 563 F.3d 439 (9th Cir.2009) {"Nordyke IV"), vacated, 611 F.3d 1015, 1015 (9th Cir.2010) (en banc).

2 . We affirm the district court's ruling on the First Amendment for the reasons given by the three-judge panel. See Nordyke V, 644 F.3d at 791-94. As to the Nordykes’ equal protection claim, because the ordinance does not classify shows or events on the basis of a suspect class, and because we hold that the ordinance does not violate either the First or Second Amendments, rational basis scrutiny applies. See Locke v. Davey, 540 U.S. 712, 720 n. 3, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 54, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The equal protection claim fails because Alameda County could reasonably conclude that gun shows are more dangerous than military reenactments. This is enough to satisfy rational basis scrutiny. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ("Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think.”).