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.
Related Posts (on one page):
- Ninth Circuit Will Rehear Nordyke v. King En Banc:
- Ninth Circuit Judge Calls for En Banc Review in Ninth Circuit's Second Amendment Gun Show Case:
- What Now for the Question Whether the Second Amendment is Incorporated Against State and Local Governments?
- Why the Gun Show Organizers Nonetheless Lost their Case,
- Concurrence by Judge Gould (a Clinton Appointee) in the Second Amendment Incorporation Case:
- Second Amendment Incorporated by Ninth Circuit Panel, in
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.
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.
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.
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!
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.
That runs up against CA's general prohibition of sound suppressors, which IMO should be overturned.
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.
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.)
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?
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.
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 saysand
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.
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.
To Shake Their Guns in the Tyrant's Face: Libertarian Political Violence and the Origins of the Militia Movement,
by Robert H Churchill.
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."
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