In 2009, a Ninth Circuit panel held (in Nordyke v. King) that the Second Amendment was incorporated against the states, but concluded that a ban on gun possession on county property was nonetheless constitutional. The Ninth Circuit then agreed to rehear the matter en banc, but then suspended its consideration of the case while it waited for the Supreme Court to resolve the incorporation question in McDonald v. City of Chicago. Following McDonald, the Ninth Circuit sent the case back to the panel; at the time, I predicted that the panel would likely just reaffirm its initial decisions.
That’s not so clear any more, because today the panel expressly called for further briefing:
The parties are ordered to file supplemental briefs addressing:(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and
(2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question.
The express mention of the level of scrutiny suggests that the panel might be willing to reconsider the issue. My guess is still that the panel will largely say what it said before, or perhaps reach much the same result but instead relying on cases such as Webster v. Reproductive Health Servs. (1989), which held that the right to abortion did not include the right to perform abortions in a state-owned hospital (even if the abortions imposed no extra cost on the hospital). But its most recent order makes that far more clear, and a victory for the gun show organizers more likely (though I think on balance still not very likely). Here, for whatever it’s worth, is my analysis of the original panel opinion:
The panel’s reasoning was basically this:
- The ordinance that barred possession of guns on county property did not materially burden people’s ability to defend themselves on private property, especially in the home.
- The government generally has the power to restrict the exercise of constitutional rights on government property, citing the Court’s abortion rights cases. Probably the strongest such case on the county’s side, which the panel didn’t cite, was Webster v. Reproductive Health Servs. (1989), which upheld a state law banning “the use of public employees and facilities [including any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof] for the performance or assistance of nontherapeutic abortions.”
- Heller‘s suggestion that the government may ban “the carrying of firearms in sensitive places such as schools and government buildings” also applied to “the open, public spaces the County’s Ordinance covers,” including county parks and the fairgrounds. The panel suggests that “The Court listed schools and government buildings as examples, presumably because possessing firearms in such places risks harm to great numbers of defenseless people (e.g., children). Along the same lines, we notice that government buildings and schools are important to government functioning.”
It’s not clear exactly what test the panel was applying for deciding what constitutes a “sensitive place[],” especially since county parks and the fairgrounds are probably not as “important to government functioning” as are schools (running which has long been seen by American state constitutions as a core government function) and many government buildings. Is it that all “prohibiti[ons on] firearm possession on municipal property,” including public streets and sidewalks — i.e., total carry bans, including in one’s car or on one’s person on the sidewalk — are constitutionally permissible? (Note that while the government generally has the right to restrict the exercise of many constitutional rights, including not just abortion rights but free speech rights, in many government buildings, it generally is substantially constrained by many provisions — such as the First and Fourth Amendments — on public streets and sidewalks.)
Would the “sensitive places” exception cover only prohibitions in places “where high numbers of people might congregate” (with the threshold perhaps higher than the number of people that would usually be present on a normal city sidewalk)? Would state and federal parks in the sense of Yosemite and the like, as opposed to small city and county parks, also qualify? What about people’s apartments in public housing projects, which are “municipal property” but not themselves places where many people congregate? (I discuss these questions to some extent in my Implementing the Right to Keep and Bear Arms in Self-Defense article, especially PDF pp. 31-33 and 87-91.) I’m inclined to say that the panel’s general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be — though I’d also say that, for reason 1 noted above, coupled with aspects of reason 2, the ordinance would be clearly constitutional when applied to selling guns on government property, and displaying them for sale there.
zippypinhead says:
It strikes me that the 9th Circuit panel may need to address several issues on the merits, including:
1. Does the post-Heller/McDonald Second Amendment RKBA implicate a right to possess firearms outside the home at all, and if so, is that right even implicated by the restriction on the private, commercial use of public property at issue in Nordyke (keeping in mind that the individual self-defense RKBA rationale of Heller isn’t directly raised the gun show facility use question)?
If the answer(s) to #1 = yes, then:
2. What is the standard of review that must be applied in evaluating Second Amendment infringements in general?
3. Applying the relevant standard of review, is the county property at issue the sort of “sensitive place” contemplated by Heller - both in general, and in the very specific context of a rental of the facility by a private party for a special-purpose event like a gun show?
4. Applying the relevant standard of review, is limiting gun shows on public property nevertheless a minor enough burden on individuals’ ability to lawfully exercise their Second Amendment rights that it raises no Constitutional concerns, or is the gun show ban in Nordyke analogous to the plaintiffs’ allegations in the post-McDonald litigation challenging Chicago’s total gun shop ban ordinance?
If the Circuit panel gets that far, wouldn’t it have to remand to the District Court for factual findings on #s 3 and 4?
July 19, 2010, 5:36 pmmatt d says:
Is there a link to the holding, or call for briefing, or whatever you lawyer-types call it?
Does it say anything more than “The parties are ordered to file supplemental briefs addressing: …”?
-m@
July 19, 2010, 5:48 pmEugene Volokh says:
Matt D: I quoted pretty much all there is about what the court is interested in. The rest is procedure and scheduling.
July 19, 2010, 6:06 pmFiftycal says:
Hmmm. Well, let’s see. I believe in Mcdonald that SCOTUS refers to the Second Amendment as a “fundamental right”. Is that about the same as the First Amendment? So, are newspapers “allowed” to be sold on public property? And before you say it, yes, I have some ex-SF buds that can kill you with a rolled up newspaper. Are guns “inherently dangerous”? Well, let’s see how many people are killed by vehicles on county fairgrounds? Do they “allow” racing of cars, motorcycles, ATV’s, lawn mowers or any other wheeled/tracked vehicle? I seem to recall a few monster trucks that got out of control and killed people in the stands. Is that “inherently dangerous”? As to the potential “danger” of concealed guns, I believe that most of the male population is walking around with concealed penises. Is that not an open invitation to “potential” rape? Why has this dangerous situation not been addressed?
So, along with Chicago and DC trying to keep poor people from exercising their “fundamental right” by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a “want” instead of a “RIGHT”. The standard of review should be “SHALL NOT BE INFRINGED”.
July 19, 2010, 6:24 pmohwilleke says:
Perhaps the Panel, no longer having to make a landmark decision on incorporation, is interested in making a landmark decision on standard of review.
July 19, 2010, 6:25 pmPat H. says:
Leaning on my experience of living in the SF Bay area for 13 years (1992-2005), the rationale for the prohibition upon Nordike in particular and gun shows in general is to break the back of the gun culture in California. The Association of Bay Area Governments (ABAG) has made it clear that there is a coordinated effort by the various county and municipal governments to do just that.
There is no issue of gun sales at gun shows in California, it’s prohibited by CA law for any firearm to change hands without going through a dealer and DROS, no dealer that sells guns at gun shows can deliver one without the 10 day waiting period completion.
Hopefully the 9th Circuit will make a non-corrupt decision in Nordike, but I’m not holding my breath.
July 19, 2010, 6:31 pmBookworm says:
Sure, just like the First Amendment protections of speech and the press ‘Shall not be abridged’. Except for content-neutral restrictions. Or libel. Or obscenity. Or slander. Or commercial speech. How are restrictions on RKBA any different from these? If the restrictions are not, are you arguing speech restrictions should be removed as well?
July 19, 2010, 7:19 pmCDR D says:
>>>I’m inclined to say that the panel’s general analysis on this guns-on-public-property is considerably more cursory and less clear than it ought to be — though I’d also say that, for reason 1 noted above, coupled with aspects of reason 2, the ordinance would be clearly constitutional when applied to selling guns on government property, and displaying them for sale there.<<<Eugene
Well, maybe so, but if the county allows the display and offering for sale of other legal products (which can be dangerous if misused) on county property, how can this prohibition not be considered discriminatory?
The Muscle Car exhibitions and auctions come to mind.
I still think there is a 1st Amendment issue involved here. Yes, the county said the gun show could be held, without guns, but the exhibitors could bring 'pictures' of the guns.
Okay, do the same for the car shows.
July 19, 2010, 7:44 pmAnthony says:
No, the equivalent question is whether the government is permitted to forbid the sales of newspapers in certain areas of public property, and the answer is pretty clearly yes.
July 19, 2010, 7:48 pmcboldt says:
– Except for content-neutral restrictions. Or libel. Or obscenity. Or slander. Or commercial speech. How are restrictions on RKBA any different from these? If the restrictions are not, are you arguing speech restrictions should be removed as well? –
July 19, 2010, 8:12 pmFor the most part, the 1st amendment is not regulated by prior restraint. And for the most part, the penalties for crossing the free speech line are not felonies. In some cases, the remedy is a civil action.
It is not unusual for restrictions on speech to be found unconstitutional. It is very unusual, since 1940 or so, for a law limiting free choice in keep and bear arms to be found unconstitutional.
CDR D says:
Well, if the county can refuse a trade show from exhibiting and offering for sale legal products (e.g. firearms) on county property, and yet allow other trade shows to exhibit and offer for sale legal products (e.g. muscle cars, RVs, you name it) on county property, there is perhaps a 1st Amendment issue here.
I can understand a private property owner getting to pick and choose, but not the government.
July 19, 2010, 8:21 pmDesertDweller says:
Isn’t one difference between these restrictions on free speech that they involve acts that directly injure another (e.g., disturbing the peace, libeling or slandering another, etc.) while the mere peaceful and non-threatening possession of a firearm does not in and of itself directly injure another? Kinda a new take on the “your freedom to swing your arm ends at my nose” saying?
July 19, 2010, 8:27 pmcboldt says:
– Isn’t one difference between these restrictions on free speech that they involve acts that directly injure another … –
July 19, 2010, 9:33 pmIn that vein, make note that the protected right, “keep and bear,” does not include a right to discharge any arm.
Joe in N. Calif says:
Bookworm, you will note that all your examples, with the possible exception of the obscenity laws, cause harm. The extreme example of harm caused by speech is inciting to riot. “Oh, but the guy talking isn’t doing anything but talking!” No, he is stirring up emotions until they boil over and then the oil of rage and resentment hits the fire and flames up. Causing damage sure as pulling a trigger.
July 19, 2010, 10:20 pmBrandon Combs says:
A right to travel but permissible regulation to ban all walking and driving beyond their property line? The core right of self-defense in Heller is a verb.
July 19, 2010, 10:29 pmcboldt says:
– A right to travel but permissible regulation to ban all walking and driving beyond their property line? –
July 19, 2010, 10:57 pmJust that discharge of a firearm is apt to require some justification, and might be regulated. Discharge is the action, keeping and bearing is passive.
Brandon Combs says:
Absolutely, and I presume you were not arguing that a right to keep and bear for self-defense does not imply some sort of permissible action outcome. I’ve not encountered any serious argument that 2A includes some unqualified right to injure another simply because they have a right to keep and bear arms.
July 19, 2010, 11:48 pmcboldt says:
– I’ve not encountered any serious argument that 2A includes some unqualified right to injure another simply because they have a right to keep and bear arms. –
July 20, 2010, 12:16 amI feel that “discharge” is at least an interesting point, in that it leaves a huge field of permissible regulation.
As for “injury,” I had a very broad definition in mind, including time of day, proximity to residences, prohibitions (except for self defense cause) in cities, etc. Some towns in my neck of the woods permit hunting, but shotgun only. None of those infringe “keep and bear,” and many of those, even if/when violated, do not result in an injury.
DanInAustin says:
You are missing the “well regulated” part of the second amendment. The militia can’t be well regulated if it isn’t allowed to train. Training requires actually shooting the weapons.
July 20, 2010, 12:30 amcboldt says:
– The militia can’t be well regulated if it isn’t allowed to train. Training requires actually shooting the weapons. –
July 20, 2010, 1:01 amHow does my noting that the right to discharge can be infringed affect that? Certainly, while total ban is a species of “infringe,” and certainly while I think the Courts will take “ban” to be the synonym for “infringe,” that isn’t at all what the amendment memorializes.
Anyway, I agree that training and practice are important. I think it would be cool if range time was mandatory.
Progress in Nordyke | Snowflakes in Hell says:
[...] The panel the case has been remanded to has asked for supplemental briefs speaking to the standard o… that ought to be used. Eugene Volokh also speaks of standards of reviews, addressing the SNBI crowd: The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. [...] [...]
July 20, 2010, 1:43 am____ says:
Aren’t requests for supplemental briefing on remand thoroughly routine? I’m not familiar with the ninth circuit specifically, so maybe they take a more lax approach. But elsewhere a court of appeals panel would always ask for such briefing on remand, regardless of how it might eventually decide the case. Am I missing something here?
July 20, 2010, 9:03 amRKV says:
WRT the definition of “sensitive places” I’d like to suggest that an appropriate analysis runs as follows… IF the government has an affirmative duty to protect at a specific place, to the extent that it may be successfully sued for damages should it fail in it’s obligation, then such a place is “sensitive.” Given the court’s position on the general obligation for government agents such as police to provide specific protection to individuals – which after South v. Maryland and others is nonexistent, any other interpretation leads the citizen into a situation whereby they are called on to submit to a restraint of their right to self-defense without a concomitant obligation to protect by the government. To borrow a phrase, the government gets “something for nothing.” Not a good deal from the standpoint of the citizen.
“The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Rehnquist for the majority in DeShaney v. Winnebago County
July 20, 2010, 9:25 amRichard Allen Pierce says:
RKV exactly the point I have been trying to make for years. If someone denies me my natural right to defend myself then they assume the responsibility for my safety. If they fail then they are liable to myself or my family (in the event of death) for any damages received. This would hold for both public and private locations.
July 20, 2010, 11:59 amJim Kilpatrick says:
1. If the government has the DUTY to PROTECT citizen’s rights, and 2. the restrictive document stipulates “shall not be infringed”, and 3. One right cannot be used to restrict or disparage other rights pursuant to the law of the land, and 4. the right in question existed PRIOR to the establishment of government/society, where does the government get the LEGITIMATE authority to deny or restrict those rights anywhere?
Unless the particular government entity is assuming responsibility for the lives and welfare of all concerned by providing sufficient armed trained security and searching/scanning everyone coming into that specific location, I submit they do NOT have any such legitimate authority. And, even then, it’s questionable.
Of course, I’m just a layman and haven’t been trained and mind conditioned to give high regard to the repugnant, blatantly unconstitutional and unlawful “precedents” previously issued by corrupt courts and judges and actually recognize the U.S. Constitution as the “supreme law of the land” just like it is constitutionally required to be by every government official in every branch and/or level of the government — federal, state and otherwise in the country and its territories and possessions.
July 20, 2010, 12:10 pmJBM, III says:
Having not read Webster, I have a few basic questions. Was the healthcare provider operating the hospital for the state under a management contract? Operating the hospital for itself under a lease? If under a lease, was an explicit prohibition on abortion included in said lease? If under a lease which lacked an explicit prohibition, was not the tenant/provider entitled to the “right of quiet enjoyment?” How should state statute and regulation interact with the conflicting provisions of a lease to which the state is a signatory?
July 20, 2010, 12:22 pmLeif Rakur says:
The Supreme Court needs to come up with its own definition of the phrase “shall not be infringed” before it can complete its rewrite of the Second Amendment.
The framers of the Bill of Rights were hardly dullards. They well knew the considerable danger to society of arms in the hands of the incompetent, the mentally deranged, and the irresponsible scofflaw. They would not have written the Constitution’s Second Amendment intending to express an individual right that could not be infringed and including no words under which exceptions could be made.
A premise of the Revolution was that it is “the right of the people” to create their own new government in the interests of life, liberty, and the pursuit of happiness. The founders said so in the Declaration of Independence. The Second Amendment plainly picks up on that aggregate right of the people. It declares that it is also the “the right of the people” to keep and bear arms to meet the security needs of their new government through a well regulated militia made up of themselves.
July 20, 2010, 12:57 pmTrey says:
Leif Rakur
You seem to be re-arguing Heller, with as much merritt as Stevens.
A collective right is no right at all.
July 20, 2010, 7:01 pmLeif Rakur says:
Well, Trey, no matter how YOU choose to categorize rights now, I say that the right of a people to form their own government and the right of a people to secure that government through a well regulated militia made up of themselves were rights of prime importance to the Founders.
July 21, 2010, 12:45 amLarry says:
Hmmm. In the Second Amendment, the words “well regulated” means composed of a lot of regular militia, not just high ranking officers, but foot soldiers who know how to use (keep and bear arms). It has nothing to do with formal regulation by government authority, but has everything to do with having a lot of foot soldiers (people)that know how to keep and bear arms. None of use would be here today if the people had not exercised such a right and placed it in the Constution.
July 21, 2010, 1:08 amwaypasthadenough says:
The bottom line to all this shysterspeak is that we are dealing with communists/authoritarians in black robes. We will be forced to put up with them until those who love Liberty grow the backbone to do what will be required to restore Liberty: an extensive and thorough “Liberal”(communist) season whereby enough of the garbage is eradicated to destroy it’s power base. End of discussion.
Don’t understand? Start here:
http://willowtown.com/promo/quotes.htm
And don’t miss my column on the latest SCOTUS decision:
http://www.willowtown.com/reality/columns.htm
titled “We have a long way to go”
July 21, 2010, 8:58 amlongbeard says:
Well, I’ll give Mr. Rakur “some” credit for being on this site, perhaps trying to understand his adversaries points of view. Perhaps if he reads here often enough, he will become enlightened.
July 21, 2010, 9:19 amH Jernigan says:
Very good news for the plaintiffs, but I’m still not sure this is the best vehicle to argue for elevated scrutiny; the connection to the “core of the right” i.e. self-defense is there but it’s remote and the “government property” issues complicate things.
July 21, 2010, 10:25 amTrey says:
Not I Sir, SCOTUS. The McDonald decision makes plain (even though the clueless 7th circuit evidently did not READ the decision) that the 2nd is an individual right and that it is a fundamental right as well
“In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
p 31 Chicago v McDonald
And an Individual right
“Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.”
p.19 Chicago v McDonald
As for “collective rights” that was disposed of in heller
“1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.”
DC v Heller p.5
July 21, 2010, 11:12 amSteve says:
Because libel, slander etc are inherently bad acts which cause harm. The simple possession or carry of a gun or any other weapon in and of itself does no harm at all. Prohibition of possession and carry stems from the rather absurd belief that criminals, who, by definition, don’t obey laws, will be deterred by a law forbidding possession or carry. If that were the case they would also be deterred by laws against murder, robbery, etc and we wouldn’t need to worry about them having a gun in the first place because they wouldn’t misuse it. Obscenity is largely discouraged by the marketplace with regard to many publications as much or more than it is prohibited by the government. There are many other publications both electronic and print that publish what many consider obscene and enjoy full first amendment protections.
July 29, 2010, 8:34 amorlando rv rental says:
Noticeably, this article is in fact the finest about this worthy subject. I agree with your conclusions and will thirstily expect your incoming updates. Saying thank you won’t just be sufficient, for your remarkable quality in your writing. Most definitely i’ll at once snap up your rss feed to remain privy of any updates. Legitimate work and much accomplishment in your business venture!
September 16, 2010, 8:23 am