Possible Ninth Circuit Win For Gun Rights

The seemingly endless Nordyke v. King may be a possible Second Amendment victory. The Ninth Circuit ruled 2-1 that a "substantial burden" test should be applied to determine if a law undermines the right to keep and bear arms for self defense. The Ninth Circuit cited DC v. Heller, 554 U.S. 570 (2008) for the test and acknowledged that Heller did not specifically set the standard.

Now, you probably noticed that I italicized "possible". There's a good reason for that.

Right now, there is a debate among the lower courts on what test should be applied to the Second Amendment since Heller and McDonald v. Chicago, 130 S.Ct. 3020 (2010) did not prescribe a specific test. Depending on the court, there have been rulings from "heightened scrutiny" (where the government must show that a law advances an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest, slightly more difficult than the lowest "rational basis" test) to "strict scrutiny" (the highest standard, and nearly impossible for laws to pass because the government must show a specific compelling interest that the law specifically serves).

The "substantial burden" test that the Ninth Circuit formulated from language in Heller requires the plaintiffs to prove that a restriction on firearms places a substantial burden on their right to keep and bear arms for self defense. Because of that, the 12 year trek of Nordyke will continue for at least another few years as it has been sent back to the District Court for the Nordykes to add evidence that the Alameda County ordinance prohibiting firearms on county property places a substantial burden on the right to keep and bear arms for self defense.

Most people only remember Nordyke as a gun rights case, but forget what the case is really about. The Nordykes are gun show promoters and brought the lawsuit against Alameda County when a law was passed prohibiting firearms or ammunition on county property. Gun shows were held at the county fairgrounds, and the ordinance was specifically targeted at prohibiting gun shows. The case does not deal with carrying firearms, only displaying and offering them for sale on county property.

Previously, the Ninth Circuit held that the Second Amendment was applicable to state and local governments through Due Process, but county property could be considered a "sensitive place" per Heller. However, the decision was vacated to be heard en banc but was sent back to the panel to rehear in light of the recent decision in McDonald.

Now, here's where the possible comes in.

When the panel was reaching a conclusion on the validity of the Alameda County ordinance under the incorporated Second Amendment, the Ninth Circuit held that, even if the real world consequence of the ordinance was prohibiting firearms for self defense on county property, "the restriction leaves open sufficient alternative avenues for obtaining the good or service" because the gun shows could take place elsewhere. I hate to say it, but the Ninth Circuit's logic is sound under a "substantial burden" test with respect to gun shows on county property.

The good news is that the Ninth Circuit ordered the district court to allow the Nordykes to amend their challenge with new facts that "might plausibly suggest that the Ordinance substantially burdens the Nordykes’ Second Amendment rights" under Heller and McDonald, as their complaint was last amended in 2004 previous to those Supreme Court decisions.