A long-running challenge to Alameda County’s ban on gun shows at the annual county fair in Pleasanton will go before a federal appeals court in San Francisco on Thursday.
An 11-judge panel of the 9th U.S. Circuit Court of Appeals will hear arguments on a claim by gun show promoters Russell and Sallie Nordyke that the ban violates their constitutional Second Amendment right to bear arms.
The Alameda County ordinance was enacted by the county Board of Supervisors in 1999 in the wake of a 1998 fair shooting in which eight people were injured.
The measure prohibits most gun possession on county property, and the Nordykes, from Willows in Glenn County, say it has “the purpose and effect” of banning gun shows at the fair.
The couple’s challenge, filed in 1999, has already gone before smaller three-judge panels of the federal appeals court twice as well as before the California Supreme Court.
Now, the Nordykes argue, a landmark ruling by the U.S. Supreme Court last year has cleared the way for them to win a Second Amendment right to present their gun shows at the fair.
The high court said in that ruling, known as the Heller case, that the Second Amendment right to bear arms applies to individuals as well as to state militias.
But the Supreme Court left unresolved the question of whether citizens can use the Second Amendment to challenge state and local gun laws as well as federal laws.
The Nordykes have argued in court briefs that the Second Amendment “is deeply rooted in the nation’s history and tradition” and should govern local as well as federal laws.
But lawyers for the county, citing three Supreme Court rulings from the late 1800s, contend the court’s existing precedent shows that the Second Amendment doesn’t extend to state and local laws.
The 11-judge 9th Circuit panel’s eventual ruling on the issue is likely to be appealed to the Supreme Court.
Two federal appeals courts in New York and Chicago have said the Second Amendment does not extend to state laws, while a three-judge panel of the 9th Circuit said in an earlier ruling in the Nordyke case in April that it does.
The issue makes the Nordykes’ appeal one of “exceptional importance,” the couple’s lawyers have told the court.
In the April ruling, the three-judge panel said the Second Amendment applies to the county law, but nevertheless upheld the county measure under an exception allowed by the Supreme Court last year for gun bans in “sensitive places” such as public buildings.
The county is asking the expanded 11-judge court to confirm the law is valid under the exception and to refrain from ruling on the scope of the Second Amendment.
The Nordykes want the court to strike down the county law on the grounds that the Second Amendment applies to local laws and that a county fair is not a sensitive place.
The 9th Circuit judges are expected to take the case under submission after hearing arguments at their courthouse at Seventh and Mission streets and to issue a written ruling at a later date.