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Why the Gun Show Organizers Nonetheless Lost their Case,

even though the Ninth Circuit panel found that the right to bear arms generally applies to state and local governments:

(1) 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.

(2) 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."

(3) 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?

For more on these questions, you might have a look at PDF pages 31-34, 85-89, and 72-80 of my forthcoming UCLA Law Review article on implementing the Second Amendment. 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.

alkali (mail):
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 ...

As a matter of judicial craftsmanship, it's hard for me to see how you would do that in this case without generating a lot of dicta, given that there are almost no relevant precedents and that Heller itself does not provide much guidance.
4.20.2009 2:54pm
Preferred Customer:
Since the only issue before the court was whether the DCT erred in denying leave to amend the complaint, the court's whole discussion of the merits of a 2A claim seems misplaced.


[1] We begin with the Nordykes' attempt to revive their
Second Amendment claim. The district court rested its denial
of leave to amend the complaint on our precedent that an individual
lacks standing to bring a Second Amendment challenge
because the right it protects is a collective, not an individual
one. See Hickman, 81 F.3d at 102-03; see also Nordyke III,
319 F.3d at 1191. The Nordykes now argue that the Supreme
Court's decision in Heller abrogates our case law and compels
the district court to grant their motion for leave to amend
their complaint.

...

[3] The second obstacle facing the Nordykes is incorporation.
That is, we must decide whether the Second Amendment
applies to the states through the Fourteenth, a question that
Heller explicitly left open. See 128 S. Ct. at 2813 n.23.
Finally, even if the Fourteenth Amendment does incorporate
the Second against the states, we must determine whether it
actually invalidates the Ordinance
.


ISTM that this last sentence is not correct--the court should simply have determined that Heller abrogated the caselaw relied upon for denying the motion and then remanded the case to the DCT; let the plaintiffs amend and let the DCT have the first whack at figuring out whether the ordinance actually violated the Second Amendment.
4.20.2009 3:08pm
Jon Roland (mail) (www):
The 9th failed to properly define "sensitive places", leaving the implication that all public property constitutes sensitive places, including public roadways, sidewalks, and other areas to which access is not restricted, as it might be for government offices or warehouses. Clearly, the notion in Heller on this was that it only meant restricted access places, not public commons or right-of-ways. Unless clarified on this point, the finding on incorporation is really only dictum, even if called a conclusion. It could be cited on a case involving prohibition of firearms on private property, but without the ability to get to private property across a public commons or right-of-way the RKBA would be restricted to contiguous private parcels, and most private parcels are not connected except across public rights-of-way.

This case should be appealed to get the clarification that the ordinance is only properly applied to restricted access government property, not to public commons or rights-of-way.
4.20.2009 3:10pm
RAJ:
I can certainly see banning the constitutional right of carrying in certain sensitive county owned places, such as a courthouse. But there the first amendment right of free speech is also banned -- as protesting during a trial will get you a contempt of court.

But certain county owned property, such as a park, have to be open for exercising free speech rights, subject to time, place &manner issues. Shouldn't that hold true for second amendment rights as well?
4.20.2009 3:19pm
A Law Dawg:
But certain county owned property, such as a park, have to be open for exercising free speech rights, subject to time, place &manner issues. Shouldn't that hold true for second amendment rights as well?


No guns over 100 db, and none after 9PM!
4.20.2009 3:24pm
pintler:

I can certainly see banning the constitutional right of carrying in certain sensitive county owned places, such as a courthouse. But there the first amendment right of free speech is also banned -- as protesting during a trial will get you a contempt of court.


I would nominate as sensible the situation in WA state courts - a court may ban arms if they provide a facility to check them (and not actually required, but IMHE all the courts implementing this also have metal detectors and at least unarmed guards).

Doing that means:
1)People can exercise their right of self defense traveling to and from the restricted area.
2)The restricted area actually is a place where the bad guys are disarmed too.
4.20.2009 3:26pm
AD (mail):
"No guns over 100 db, and none after 9PM"

That runs up against CA's general prohibition of sound suppressors, which IMO should be overturned.
4.20.2009 3:35pm
Jim at FSU (mail):
This is irrelevant but:
There are no suppressors that are capable of reducing noise to below 100db. I think there are a 22LR suppressors that are capable of 115 or so and there are a bunch of VERY large centerfire ones that are capable of 120 or so with subsonic ammo.

I also have to disagree with their unsupported contention that the 2nd amendment only protects self defense in the home. Did they think that "bearing arms" means turning weapons into bears?

I think the main benefit of this case is that it sets up a circuit split (with the NY nunchaku case) about incorporation and it doesn't let the prosecution appeal it. Otherwise I'm not particularly fond of it.
4.20.2009 4:13pm
Sagar:
RE: the discussion last week about carrying guns in national parks - this 9th circuit decision is affirming the ban.
4.20.2009 4:24pm
alkali (mail):
@Preferred Customer: Since the only issue before the court was whether the DCT erred in denying leave to amend the complaint, the court's whole discussion of the merits of a 2A claim seems misplaced. ... the court should simply have determined that Heller abrogated the caselaw relied upon for denying the motion and then remanded the case to the DCT; let the plaintiffs amend and let the DCT have the first whack at figuring out whether the ordinance actually violated the Second Amendment.

If the reason for denying leave to amend is that the claim proposed to be added would be futile as a matter of law, then it's perfectly appropriate for an appeals court to address that purely legal question, rather than waiting to address the issue two years hence on the inevitable second appeal. (I think an appeals court could kick the issue back to the district court in an appropriate case, but I don't see what would warrant that here.)
4.20.2009 5:03pm
Bart (mail):
Footnote 19 on page 4497 notes that fundamental rights usually receive strict scrutiny and the court saw no reason to treat the Second Amendment differently from the First.

Moreover, Heller's famous passage about the decision not reaching certain laws spoke about sensitive areas that were not traditionally public forums like schools and government buildings.

Thus, I was expecting to see the Circuit use a variation of the First Amendment reasonable time, place and manner test for speech in parks to apply the Second Amendment to county fairgrounds. However, I was disappointed in that expectation.

Has anyone read the plaintiff of amici's briefs? Did they make an argument along those lines that that the Circuit considered and rejected?
4.20.2009 5:14pm
CJColucci:
(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.)

I can think of a lot of Constitutional rights I undoubtedly have but can't exercise on public streets and sidewalks.
4.20.2009 5:54pm
Oren:

I can think of a lot of Constitutional rights I undoubtedly have but can't exercise on public streets and sidewalks.

Prize for best understatement.
4.20.2009 7:04pm
Kirk:
pintler,

Just a minor quibble: nothing about the WA prohibition on firearms in court facilities is optional, as far as I can tell. RCW 9.41.300 flatly says
It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon
and
the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the owner's visit to restricted areas of the building. [emphasis added]
4.20.2009 7:22pm
PubliusFL:
CJColucci: I can think of a lot of Constitutional rights I undoubtedly have but can't exercise on public streets and sidewalks.

Try excluding activities that fall under the umbrella of the "right to privacy," which if performed publicly are ipso facto not private, thereby making the activity not an exercise of the right under those circumstances.
4.20.2009 7:23pm
My $1/50:
I'm still amazed that the notoriously liberal 9th Circuit ruled in favor of incorporation. That being said, the liberal side still found a way to recognize the power of the 2nd Amendment while also ruling against the entity seeking to exercise the amendment's power.
The same thing happened in the Heller ruling. The four left-leaning justices dismissed the argument that the 2nd Amendment recognizes a "collective" right and agreed with the majority that it really protects an individual right to bear arms. Yet, the minority also argued that the District of Columbia was still free to enact a total ban on handguns and use of long guns — that it somehow didn't infringe on the individual's rights protected under the 2nd Amendment.
How liberals perform these mental gymnastics is beyond me. But it gives me pause when I hear President Obama say that he supports an individual right to bear arms. For the left, an individual right can still be no right at all.
4.20.2009 9:29pm
Tony Tutins (mail):
Regarding the Alameda County Fairgrounds as a public forum: I once heard the late Tiny Tim tiptoe through the tulips there. That has to set a generous bar for expression.
4.20.2009 9:31pm
Jon Roland (mail) (www):
New book on the militia movement provides some good historical background on firearms rights and militia.

To Shake Their Guns in the Tyrant's Face: Libertarian Political Violence and the Origins of the Militia Movement,
by Robert H Churchill.
4.20.2009 9:54pm
LarryA (mail) (www):
Not being an attorney I'd just love a court to find a law unconstitutional because it limits constitutional rights without providing any measurable benefits.
4.21.2009 2:46am
Disintelligentsia (mail):

Jon Roland:
The 9th failed to properly define "sensitive places", leaving the implication that all public property constitutes sensitive places, including public roadways, sidewalks, and other areas to which access is not restricted, as it might be for government offices or warehouses.


The court didn't define "sensitive places" per se, but it did list some things that were sensitive and one thing it found would be tenuous. Specifically:

"open space venues, such as County-owned parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds" were deemed "sensitive places" because they are gathering places where high numbers of people might congregate.

It only found "parking lots of public buildings" to be tenuous and not per se sensitive (See Nordyke at p. 4500).

I would argue that public roadways, sidewalks, etc. are more akin to parking lots than parks or fairgrounds. Roadways and sidewalks are not designed as a "gathering places where high numbers of people might congregate."

However, without really deciding the issue, it appears the Court indicated that strict scrutiny was the appropriate level of judicial review (it said it did not find any reason why the second amendment should be due any less scrutiny than any other fundamental right - p. 4497, footnote 19).

The disappointing aspect is that it really doesn't seem to apply strict scrutiny in reviewing the Alameda statute. The Court just makes a conclusory statement that the enumerated "sensitive places" seemed to be sensitive. They didn't evaluate whether the statute was narrowly drawn and used the least restrictive means to accomplish the goal of protecting the "sensitive place."
4.21.2009 7:51pm

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