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Thursday, December 1, 2011

Ninth Circuit Will Rehear County Gun Show Ban Case

On November 28, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled that it would rehear en banc its May 2, 2011 decision in Nordyke v. King.  That case involved a challenge to a municipal gun show ordinance.  The plaintiffs had promoted gun shows at the Alameda County fairgrounds from 1991 until the county enacted the ordinance in 1999 after a shooting.  Plaintiffs initially challenged the ordinance based on First Amendment and Equal Protection grounds, which were rejected by the U.S. District Court. The plaintiffs appealed to the Ninth Circuit after the District Court refused to allow them to add a Second Amendment claim in an amended complaint.
In the May decision, a three-judge panel of the Ninth Circuit affirmed dismissal of the plaintiffs’ First Amendment claim, holding that it was not convinced that Alameda had adopted the law to limit free expression among "gun culture" members or that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment.  The panel had also ruled in favor of the County on plaintiffs’ Equal Protection Clause argument. 
However, the panel ruled in favor of the plaintiffs on their Second Amendment argument, holding that they should be allowed to amend their complaint to add a Second Amendment claim because of recent decisions by the U.S. Supreme Court in the six years since they had initially raised their claim.  Specifically, the panel stated that:  “Since then, all of the Supreme Court’s modern Second Amendment case law has been created.  See McDonald v. Chicago, 130 S. Ct. 3020 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008).”  The panel then remanded the case to the District Court.
Based on this ruling, the full Ninth Circuit will have a chance to review Alameda County’s ordinance based on the analysis contained in McDonald and Heller. 


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