Federal appeals panel reluctantly rejects challenge to county gun-show ban

By The Associated Press

02.20.03

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SAN FRANCISCO — A 9th U.S. Circuit Court of Appeals panel acquiesced to circuit precedent and reluctantly upheld a local California ordinance banning weapons bazaars on government property such as fairgrounds.

In dismissing a challenge to an Alameda County ordinance, a three-judge panel ruled on Feb. 18 that gun enthusiasts had neither a First Amendment nor Second Amendment right to possess weapons for sale on county property.

The decision, if it survives appeal, is expected to lead to an avalanche of similar ordinances across California, the nation's only state where municipalities have barred gun shows on government property. Los Angeles County and others already have adopted similar ordinances.

In court briefs, representatives from at least 20 California cities and counties urged the San Francisco-based court to grant them such powers. Besides California, the 9th Circuit's opinion sets precedent in Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The case concerned Alameda County's decision to bar possession of firearms on municipal property in 1999.

The decision, which outlawed weapons outside county courthouses, government offices and health centers, forbade gun shows at the Alameda County fairgrounds if weapons were on the premises.

The rule, which does not ban gun sales on private property, was in response to a shooting at the fairgrounds in Pleasanton, just east of San Francisco, in 1998. Trade show operator TS Trade Shows sued Alameda County.

NRA lawyer: Gun show without guns is unworkable
A lawyer for the National Rifle Association, which backed trade show operators Russell and Sallie Nordyke in the case, said a gun show without weapons is unworkable and akin to a fair without rides, sheep or cows.

"Ultimately, what this does is stop gun shows on county property," said Chuck Michel, an NRA attorney.

Michel said the court is likely to review the decision with 11 judges or, in the alternative, the Supreme Court could weigh in on the case.

That is because the three-judge panel was troubled with its own decision. While the panel had no problem upholding the ordinance against arguments it violated the First Amendment, the judges said they were only following a perhaps flawed circuit precedent when they set aside the gun show operators' right-to-bear-arms challenge under the Second Amendment.

The panel said that, because two other 9th Circuit three-judge panels have ruled that only state militias, not individuals, have the right to bear arms, it was bound by circuit rules to follow court precedent. Only an 11-member "en banc" panel or the Supreme Court can overturn three-judge panel opinions within the same circuit.

The most recent gun-rights ruling was in December, when a different three-judge 9th Circuit panel upheld California's assault weapons ban. Ruling 2-1, that panel said the Second Amendment guarantees the right of the states to maintain armed militias and does not grant individuals the right to bear arms. The circuit also is considering rehearing that case with 11 judges.

The New Orleans-based 5th Circuit ruled in 2001 that the Second Amendment affords individuals the right to bear arms, a position supported by the Justice Department. Because of the New Orleans decision, 9th Circuit Judge Ronald M. Gould proposed on Feb. 18 that an 11-judge panel of the 9th Circuit or the Supreme Court resolve the conflict.

Gould, appointed by President Clinton, added that under the circuit's own precedent, "a general confiscation of guns could become the order of the day." He added that the Supreme Court has "displayed limited analysis of the structure and meaning of the Second Amendment."

'[A] gun itself is not speech'
In addressing the First Amendment arguments in the case, the panel wrote that "a gun itself is not speech. … Here too, the correct question is whether gun possession is speech, not whether a gun is speech. Someone has to do something with the symbol before it can be speech.

"Gun possession can be speech where there is 'an intent to convey a particularized message, and the likelihood [is] great that the message would be understood by those who viewed it.' "

But the panel added, "Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it."

The panel also rejected the promoters' argument that the ordinance barring gun possession on county property unconstitutionally burdened their right to commercial speech. The panel cited an earlier 9th Circuit ruling, saying "[w]e have previously held that the act of exchanging money for a gun is not 'speech' for the purposes of the First Amendment."

Richard Winnie, Alameda County's chief counsel, said he was pleased with the ruling.

"The shooting made us realize there was a need to ban guns from county property," Winnie said.

Writing separately, Judge Diarmuid F. O'Scannlain, a President Reagan appointee, and Judge Arthur L. Alarcon, a President Carter appointee, said the panel's hands were tied.

"If we were writing on a blank slate, we may be inclined to follow the approach of the 5th Circuit," O'Scannlain said.

The case is Nordyke v. King, 99-17551.