In the post-Nordyke panel, the attorneys’ worst-case scenario still had our side seeing the 9th Circuit panel voiding Cruikshank and incorporating the 2nd Amendment against California (and the other 49 states), thanks to Heller.
Don Kilmer’s awesome, he’s been working this case for the last decade. That’s him on the right below, with Don Kates, on the courthouse steps after the hearing.
More to come. UPDATE: I’ve got pics here! But here’s the oral argument for your listening pleasure. http://www.ca9.uscourts.gov/datastor…5/07-15763.wma
PRESS RELEASE:
FOR IMMEDIATE RELEASE: 1/15/2009 3:21 p.m. PST
PRESS CONFERENCE: 6:30 p.m. 1/15/2009
Hotel Whitcomb, 1231 Market St., San Francisco
Contact: for attorneys or Nordykes:
Tel.: Cally or David: 408-264-8489
January 15, 2009 Email: [email protected]SAN FRANCISCO – After hearing attorneys from both sides argue their cases today in the landmark case, Nordyke v. King, the U.S. 9th Circuit Court of Appeals has an historic task before it in answering the civil rights question of whether individual civil rights enshrined in the Second Amendment to keep and bear arms must be recognized by states and not just the federal government. The case also addresses free speech and equal protection rights of gun show owners.
It started nearly a decade ago in 1999, when the Alameda County Board of Supervisors passed a gun-ban ordinance with the intent to eliminate gun shows from Alameda County. After being forced to cancel scheduled shows, T&S Gun Shows, owned and operated by Russell and Sally Nordyke, they along with civil rights activists, gun collectors and enthusiasts filed suit, claiming the county was unconstitutionally violating their civil rights guaranteed under the U.S. Constitution.
“The larger impact of this case is to ensure that the Bill of Rights, including rights under the Second Amendment, applies to everyone,†Donald Kilmer, lead attorney for the plaintiffs, said. He said the County’s intent always has been to stifle a gun enthusiasts forum and a type of speech that those specific elected officials disagreed with. “The county concedes that my clients have always operated their shows in compliance with state and federal laws, and that there has never been any gun-related violence at one of their shows,†Kilmer said.# # #
TIME LINE OF NORDYKE v. KING
1999
• After the Alameda County supervisors instructed the county attorney to devise an ordinance to ban gun shows, supervisors later passed an ordinance making it illegal to possess firearms on county property. The ordinance also forbid the presence of firearms at gun shows, effectively banning gun shows at the fairgrounds.
• Russell and Sally Nordyke, Operators of T&S Gun Shows, contacted attorney Donald Kilmer after the county cancelled their shows because of the ordinance. Together, with a group of gun collectors and enthusiasts, they filed suit in federal court against King and the other supervisors challenging the ordinance on the grounds it violated the First and Second Amendments of the U.S. Constitution and was preempted by state law already regulating firearms.2000
• The trial court upheld the County ordinance. The Nordykes appealed, and the appellate court sent the preemption issue to the California Supreme Court.2002
• On appeal, the California Supreme Court found the ordinance was not preempted by state law – effectively sending the case back to the federal courts for the First and Second Amendment arguments.2003
• The federal Appellate court refused to hear the Second Amendment argument because previous law in this circuit held the right to keep and bear arms was not an individual right. (THIS DECISION IS NOW ON APPEAL)
• The Federal Appellate Court denied the First Amendment claims but left open the possibility for an “as applied†challenge, so the case went back to the trial court for further argument.2007
• The federal trial Judge, using the rational relationship test, denied the Nordyke’s First Amendment Free Speech claims based on the finding that the ordinance was not specifically targeted at speech. (THIS DECISION IS NOW ON APPEAL)2008
• In District of Columbia v. Heller, the U.S. Supreme Court for the first time defines the meaning of the Second Amendment and held that it is, indeed, an individual right.
• Since the District of Columbia is a federal enclave. The Court left undecided if this individual right also is incorporated to the states through the 14th Amendment, which would overrule the previous 9th Circuit case law used in the 2003 decision stating that the right to keep and bear arms is not an individual right. (PARTIES ASK THAT THIS BE DETERMINED)
ISSUES CURRENTLY BEFORE THE COURTBefore the court are four issues. The first applies to general individual civil rights of every individual; the other three apply to this case and to gun show owners:
I. Does the Second Amendment to the Constitution of the United States guarantee individual civil rights that must be honored by the states?
II. If so, does the Alameda County Ordinance unconstitutionally violate the Nordyke’s Second Amendment rights?
III. Does the Alameda County Ordinance unconstitutionally violate the Nordyke’s constitutionally protected right to freedom of speech/expression by banning guns from gun shows – effectively eliminating that form of public forum?
IV. Does the Alameda County Ordinance violate constitutional equal protection rights when it allows other groups to have firearms, but not gun shows?
THE NORDYKES
T&S Gun Shows
Plaintiffs Russell and Sally Nordyke may be contacted via their web site: www.tsgunshows.comABOUT THE ATTORNEYS
Don E.J. Kilmer, Jr., Lead Attorney for Plaintiff/Appellants
Donald Kilmer is an active family law and civil rights lawyer based in the Willow Glen district of San Jose, California, and is an adjunct professor of constitutional law at Lincoln Law School of San Jose.
As a civil rights lawyer he has represented local bay area citizens in cases involving self-defense and police misconduct. Donald Kilmer attended San Jose State University and Lincoln University – The Law School. Donald is the author of the amicus brief for the U.S. Supreme Court’s District of Columbia v. Heller arguments on behalf of Shelly Parker, an African American woman seeking to protect herself from death threats of drug dealers. He is associated with many civil rights groups, including the Golden State Second Amendment Council and the Madison Society.Don B. Kates, Co-Counsel for Plaintiff/Appellants
Don Kates is a retired professor and noted scholar of constitutional and criminal law, and a criminologist associated with the Pacific Research Institute in San Francisco, California.
As a civil liberties lawyer he has represented gun owners challenging the constitutionality of certain firearms laws. Don B. Kates, Jr., attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler. Thereafter, he focused on civil rights and police misconduct litigation for the federal War on Poverty program.
AWESOME!!!
I’ll read and listen more tonight. I’ve been on pins and needles all day wondering what the outcome was.
Pingback: The View From North Central Idaho
Pingback: Free In Idaho! » Blog Archive » Heartburn
Wow, the counties argument was rather weak.
The concern I have, is that the court may find that they cannot rule on the higher issue of fundamental rights.
A convincing argument could be made (and was addressed by the county, but poorly in my opinion), that an incorporation ruling does not NEED to be made here, because the activity Nordyke is seeking a ruling on is not explicitly protected by the second amendment; nor is there a subsidiary violation of equal protection within the cites (the scottish games et al).
Also, they could defer such a ruling, because there is a procedural remedy, as well as alternative locations to hold a gun show, and alternative means to purchase arms.
They could also defer such a ruling, because they believe that they cannot bypass stare decisis on Cruikshank or Fresno (though I believe Heller makes it clear that it is controlling as regards the second amendment, superceding all previous rulings as regards gun rights, and strongly suggests incorporation).
Of course, in some ways deferring on a ruling could be a good thing, because the case would go back to the supreme court and we’d get a binding incorporation ruling for the whole nation; but the case isn’t the strongest on second amendment and equal protection grounds.
Oh and I should note, I thought Kilmer argued very well; and he was well prepared and did his research; whereas it seemed clear the county had not.
Pingback: Random Nuclear Strikes » It’s not John Moses Browning, but it’ll do
The missing part, Chris, is that this particular panel’s last ruling on Nordyke practically begged for a rehearing on 2nd Amendment grounds once a decision like Heller had been made. These judges WANT to kick Cruikshank in the nuts.
We’ll see….
Oh — you also may not be aware that not only is it illegal in CA to sell guns anywhere other than an FFL’s premises or a gunshow, but also that there’s a specific penal code section prohibiting sales in the parking lot outside of a gun show. So county counsel’s assertion on that point demonstrated his ignorance.
I myself was relieved that his ignorance of gun sales generally prevented him from talking about how people can buy guns over the ‘net in Cali (I do it all the time — you just have to take delivery through a brick-and-mortar CA FFL), so theoretically it is possible to have gun sales at a gun show without any guns being present. But happily that’s not part of the record. I also don’t think such gun shows would be particularly well-attended or profitable. 🙂
Pingback: SayUncle » Incorporation
Pingback: Random Nuclear Strikes » Getcher Nordyke Here