Ninth Circuit issues holding in Nordyke v. King

[JohnPierce]

The Ninth Circuit Court of Appeals, sitting en banc, has finally issued a holding in the case of Nordyke v. King.

This case involved an ordinance passed by Alameda County in California. The ordinance generally prohibited the possession of firearms on county property, including fairgrounds where gun shows were traditionally held.

The Nordykes, gun show promoters, challenged this ordinance as a violation of their Second Amendment rights.

Excerpt ... Read more

 

[Rmeju]

Here's what I think: At the outset, the ability to buy a gun, particularly at a traditional gun-buying forum such as a gun show, certainly falls within the 2A self-defense right, albeit in a bit of a tangential way (after all, how do you vindicate your right to SD without the ability to buy a gun?).

1. The burden the county seeks to impose needs to be more precisely defined. The safe harbor they defined doesn't cut it. Nor should it in any way be the outer limit of what counts as "safe" storage.
1A. Whatever that burden is, based on what I've seen so far, does NOT amount to a direct burden on the fundamental right of self-defense (i.e. it is unlikely that copliance with this law will leave a victim unarmed in the event of a violent criminal attack). That means (in my world, download the article here if you're interested) this measure should be subjected to intermediate scrutiny.

2. That burden needs to be supported by an "important" justification
2A. The health and safety justification will almost certainly meet this requirement, but we don't care so much about that, because we just want them to DEFINE what the justification is at this point. However, since this is intermediate scrutiny, the government DOES bear the burden of showing that their safety interest is justified. Sadly, I'm guessing most Cali judges would not require much of a showing for this, but if the plaintiffs were able to produce evidence that the safety problem complained of wasn't really a problem, the county could get tripped up here.

3. This justification must be "narrowly tailored" to meet the asserted justification in #2. This does NOT mean that the burden imposed in #1 needs to be the least burdensome way of vincidating that safety interest, but it certainly cannot be obviously more burdensome than some other method sufficient to vindicate the county's interest in keeping people safe--if they can even make that showing.

4. Ample alternative opportunity to vindicate SD right might well not come into play here. Also, no one argues that the government can't pass this law. It can. Whether it passes constitutional muster is another matter.

Ultimately, I think that under this framework, the county can probably impose some kind of "safe storage" requirement, but it can't be wishy washy and vague, nor can it require any old safe storage requirement it wants. That storage requirement will not be allowed to unduly burden firearms transactions at gun shows, and I think the "tethering" requirement is more burdensome than necessary to vindicate that government interest.

Hope that wasn't too long winded for you guys!

 

[cbrgator]

Rmeju,

Perhaps I missed something, but per your assignment of intermediate scrutiny, why must the justification be narrowly tailored? That's strict scrutiny.

 

[Rmeju]

Both intermediate and strict scrutiny have a narrow tailoring requirement, but they are different in how they are applied.

Strict scrutiny's tailoring is a "least burdensome" standard. That is, the restriction must impose the least possible burden that accomplishes the asserted (compelling) government interest. If there is any less burdensome way to accomplish that objective, the restriction will fail constitutional muster.

Intermediate scrutiny's narrow tailoring requirement only requires a "close fit" between the burden imposed on the right and the asserted government interest at stake. That is, the government does not need to prove the restriction imposes the least possible burden on the right in question, while at the same time accomplishing the asserted (important) government objective. Rather, it only needs to show that it is not unduly burdensome in achieving that objective. It is important to remember here that a restriction on a right can be quite burdensome, so long as it is not obviously more burdensome than necessary to achieve the objective.

So, here, we can certainly say that a "tethering" requirement at a gun show would certainly accomplish the government's asserted safety objectives. Yet, it seems that this would be an undue burden, because one need not think too hard to come up with much less burdensome methods of achieving that objective.

Hopefully that helps!

 

[cbrgator]

Maybe I've already forgotten my Con Law II class. Isn't the test for intermediate scrutiny, "substantially related to an important government interest?"

 

[Rmeju]

You have not forgotten it. You're right. I'm not being very precise in my terminology, although we're essentially saying the same thing.

Requiring a substantial relation to an important government interest is a tailoring requirement. It means that the government's restrictions cannot be too broad. What's "too" broad? Depends on whether SS or IS applies

 

[Shadow 7D]

Doesn't anything thats wrapped around an amendment justify STRICT scrutiny?

 

[Rmeju]

Doesn't anything thats wrapped around an amendment justify STRICT scrutiny?

No. Definitely not. Normally, the rights granted by the bill of rights are considered "fundamental" rights.

The courts will generally separate governmental restrictions on fundamental rights into two basic categories: "direct infringements" of "core" protected rights, and "incidental burdens" on protected rights (this is not precise terminology).

Infringements on core protections usually get strict scrutiny. Incidental burdens usually get intermediate scrutiny.

The above paints in broad strokes, but hopefully it's helpful to you!

 

[Frank Ettin]

...The courts will generally separate governmental restrictions on fundamental rights into two basic categories: "direct infringements" of "core" protected rights, and "incidental burdens" on protected rights (this is not precise terminology)...

There are many good examples in First Amendment jurisprudence. For example, regulation of commercial speech would generally be examined under intermediate scrutiny.

 

[cbrgator]

For example, regulation of commercial speech would generally be examined under intermediate scrutiny.

As would a time, place, or manner restriction.

 

[usmarine0352_2005]

.

At work. Can't read this. What was the ruling? Was it pro-2nd Amendment or against?
.

 

[Rmeju]

^ The appellate court basically punted on the major 2A issues. The government pulled some shennanigans by changing its interpretation of the law at the very last minute such that they conceded that the Nordykes are allowed to hold a gun show, but that they intended to impose a requirement that while a gun was not being inspected, they must be "secured."

Because the Nordykes are now allowed to have their show, and the only restriction on it is that the guns must be secured while not being inspected, there is no 2A violation.

What is "secured?" We don't know, exactly. We only know that the county says that it will consider the gun to be properly secured if it is tethered to a metal cable (similar to how cell phones are secured at your average phone store). Are other methods sufficient? Maybe, but I can expect that no one is going to take another decade out of their life to sue the county and get that question answered.

Bottom Line: Nordykes get their gun show (but not because the court made them), and the county can impose some restrictions on how to secure those firearms