A lawyer for two gun show operators asked an 11-judge panel of a federal appeals court in San Francisco today to overturn an Alameda County ban on gun shows at the annual county fair in Pleasanton.

Donald Kilmer, representing Russell and Sallie Nordyke, told the judges of the 9th U.S. Circuit Court of Appeals, “Our position is to have Second Amendment rights apply to all citizens in the country.”

The Nordykes, who are from Willows in Glenn County, say the ban enacted by the Alameda County Board of Supervisors in 1999 violates their constitutional Second Amendment right to bear arms.

The county contends the law is a reasonable public safety measure, passed in the wake of a 1998 shooting at the fair in which eight people were injured.

Sayre Weaver, a lawyer for the county, argued, “The county actually had a shooting incident at the fairgrounds. It had 11 liability lawsuits and it had eight people shot, four of them children.”

There are two key issues in the long-running lawsuit, initially filed by the Nordykes in 1999.
The first – which is likely to be appealed to the U.S. Supreme Court – is whether the Second Amendment applies to state and local laws as well as federal laws.

In a landmark ruling last year, the U.S. Supreme Court said the Second Amendment includes an individual right to possess guns and that federal laws could not intrude on that right. But the court left unresolved whether the Second Amendment limits state and local laws.

The county contends that three 19th-century Supreme Court decisions show that the amendment doesn’t extend to local laws and that only the high court itself can change that doctrine.

“The Supreme Court has made very clear that the court reserves for itself the right to overrule its own cases,” Weaver argued to the appeals court.

The second issue is whether the Alameda County law fits into an exception in which the high court said last year that gun bans can be allowed in “sensitive places” such as public buildings and schools.

The 11 judges on the panel asked questions on all sides of both issues and did not indicate how they will rule. They took the case under consideration after an hour-long hearing and will issue a written ruling later.

Chief Circuit Judge Alex Kozinski asked Kilmer whether the Nordykes couldn’t find an alternative public space, such as a parking lot or mall, within Alameda County for the show, since the law applies only to county property.

Kilmer said the Nordykes view fairgrounds as “the traditional public forum for gun shows.”
Judge Susan Graber inquired whether the county is entitled to hold “family-friendly fairs,” with no activities – such as nude dancing, alcohol sales or gun shows – that would be inappropriate for children.

Judge Harry Pregerson asked Kilmer, “Where is this going to take us? Will there be more guns or fewer guns in California? Will there be more or less regulation? What is the hidden agenda?”

It was to that question that Kilmer said the Nordykes’ goal was to extend Second Amendment rights to “apply to all citizens in the country” by encompassing state and local laws.

The 11-judge panel is reviewing a decision in which a three-judge panel of the same court said in April that the Second Amendment applies to state and local laws, but upheld the Alameda County law on the ground that it fits into the exception for sensitive places.

If the larger panel reaches the same conclusion about the scope of the Second Amendment, it would create a doctrinal conflict within U.S. courts because two other circuit courts in Chicago and New York have ruled the Second Amendment restricts only federal laws.

The Alameda County measure bans most gun possession on county property except by law enforcement officers and participants in theatrical entertainments. Guns must be secured when not in use by an authorized participant.

Kilmer told the court, “We’re blocked” from holding shows at fairs and noted that Marin, Sonoma and San Mateo counties and the city of Santa Cruz have passed measures similar to Alameda County’s.

Alameda County maintains its law would allow a gun show so long as customers were not permitted to pick up and handle guns.

But the Nordykes say the measure has the “purpose and effect” of banning gun shows.
Kilmer told the court, “You can’t have a gun show without guns.”

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