Latest Decision in Nordyke v. King, the California Gun Show Case

The opinion is here. Some key excerpts:

[W]e hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment. [Footnote: We need not decide today precisely what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights.] …

The Nordykes only challenge the ordinance as an effective prohibition of gun shows on county fairgrounds. That is, they complain that they cannot display and sell guns on county property; they do not allege that they wish to carry guns on county property for the purpose of defending themselves while on that property. Thus, the proper inquiry is whether a ban on gun shows at the county fairgrounds substantially burdens the right to keep and to bear arms; not whether a county can ban all people from carrying firearms on all of its property for any purpose….

Where, as here, government restricts the distribution of a constitutionally protected good or service, courts typically ask whether the restriction leaves open sufficient alternative avenues for obtaining the good or service. For instance, courts reviewing a restriction on the time, place, or manner of protected speech will ask whether the restriction “leave[s] open ample alternative channels for communication of the information.” … Likewise, the Supreme Court recently held that a ban on one particular method of performing an abortion did not constitute an “undue burden” on the right to an abortion in part because “[a]lternatives [were] available to the prohibited procedure.”

Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves law-abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes. Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive or more difficult to exercise. See Carhart, 550 U.S. at 157-58 (“ ‘The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.’ ” (quoting Casey, 505 U.S. at 874)); Zablocki, 434 U.S. at 387 n.12 (noting that a law reducing the federal benefits of a couple by twenty dollars on account of their marriage did not “substantial[ly] … interfere[ ] with the freedom to marry,” because it was unlikely to “significantly discourage[ ]” any marriage). Thus, regulations of gun sales do not substantially burden Second Amendment rights merely because they make it more difficult to obtain a gun.

Finally, a regulation is particularly unlikely to impose a substantial burden on a constitutional right where it simply declines to use government funds or property to facilitate the exercise of that right. For instance, the Supreme Court held that excluding even medically necessary abortions from Medicaid coverage did not constitute an “unduly burdensome interference with [a pregnant women’s] freedom to decide whether to terminate her pregnancy.” Regulations that simply refuse to provide government subsidies to gun dealers, therefore, do not constitute a substantial burden on the right to keep and to bear arms.

Applying the foregoing considerations, we must determine whether the Proposed Second Amended Complaint alleged sufficient facts to suggest plausibly that the Ordinance substantially burdens the Nordykes’ right to keep and to bear arms. It does not assert that the Ordinance makes it materially more difficult to obtain firearms. Nor does it allege a shortage of places to purchase guns in or near Alameda County. In any event, the Ordinance does not prohibit gun shows, but merely declines to host them on government premises. The Proposed Second Amended Complaint, therefore, does not allege sufficient facts to state a Second Amendment claim capable of surviving a motion to dismiss. Accordingly, we conclude that the district court properly denied the Nordykes’ motion for leave to amend to that extent…. [But the court concludes that the Nordykes should be given the opportunity to further amend their complaint, in case there are facts that they think might show that the law does substantially burden their Second Amendment rights. -EV]

This strikes me as quite right, for reasons I mentioned in my Implementing the Right to Keep and Bear Arms in Self-Defense article. The substantial burden test is indeed often used to decide whether heightened scrutiny is necessary (at least where substantive rights, as opposed to equality rights, are involved); and I think the test is especially apt here. I also think that banning gun shows on county property is indeed likely not a substantial burden on the right to keep and bear arms in self-defense.

I think if a regulation makes the exercise of a right considerably more costly, and not just more costly, it might be a substantial burden; but I wouldn’t read the opinion as disagreeing on that: Though the court does say that “a law does not substantially burden a constitutional right simply because it makes the right more expensive or more difficult to exercise,” it goes on to note that the challengers didn’t say the law made it “materially more difficult to obtain firearms.” Had a law made guns materially harder — including materially more expensive — to get, then this would have been a different case.

Finally, as the court points out, the government often has considerably more authority to restrict behavior on its property than on private property or on public streets and sidewalks. As the court notes, the right to abortion doesn’t include the right to perform abortions at a government-owned hospital, even if that means no extra cost to the government. Likewise, the right to get a private education doesn’t include the right to hold classes at a government-run school, even after hours when the school isn’t in use. The same, it seems to me, should apply to gun shows. (The court also rightly rejects the gun show organizers’ First Amendment expressive conduct claim; see the opinion for that discussion. And the concurrence suggests a less protective test, which would apply heightened scrutiny only to “arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country,” and would likely categorically foreclose any claims to a right to keep and bear arms in self-defense outside the home; I think the majority was also right to reject that position, for reasons that it gives and that I give in my article, especially in Part II.C.1, pp. 1516-24.)

I don’t support such gun show limitations as a policy matter. But not all bad government policies are unconstitutional government policies. I think the court is likely correct in concluding that this policy is not unconstitutional.

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