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CAL-ERT 10/03/08 ---
NOON
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CALIFORNIA LITIGATION UPDATE
This
information is accurate at the time this CAL-ERT was written and
originally distributed. The
NRA Members' Councils of California
will keep you informed as the legislative and/or litigation
situation changes in California
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The following is from NRA's California
Attorney, Chuck Michel.
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HISTORIC BRIEFS ON SECOND
AMENDMENT “INCORPORATION”
FILED IN GUN SHOW BAN APPEAL
Following on the heels of the June 2008 Supreme Court ruling in
District of Columbia v. Heller that the Second Amendment does
protect a fundamental individual right, a California law suit
that has been bouncing back and forth in the court for almost
ten years has become the unlikely vehicle by which the question
of whether the Second Amendment is “incorporated” so it
restricts state and local gun control efforts (in addition to
federal gun control efforts via the Heller ruling) may be
answered.
Today members of an NRA led coalition filed a flurry of “friend
of the court” amicus briefs in the case of Nordyke v. Alamenda,,
now before the Ninth Circuit Court of Appeals. The Nordyke case
was filed by gun show promoters challenging an ordinance that
bans guns on county property (effectively banning the gun show
at the county fairgrounds).
A number of police unions and several cities filed amicus briefs
on behalf of Alameda, arguing against incorporation. All of the
briefs are posted at
www.calgunlaws.com.
The case has a long history going back almost ten years. Alameda
County passed the ordinance in August of 1999. Gun show
promoters Russ and Sally Nordyke filed suit in federal court to
prevent enforcement of the ordinance. The suit alleged that
state law preempted the ordinance and that the ordinance
violated First Amendment free speech guarantees. The District
court denied their request for a preliminary injunction to stop
the ordinance from being enforced.
The Nordykes appealed to the Ninth Circuit Court of Appeals. The
three judge panel assigned to the case referred it to the
California Supreme Court to determine the state law question of
whether the ordinance was preempted by state law. The California
Supreme Court decided that state law did not preempt the
ordinance and then referred the case back to the Ninth Circuit.
(That preemption decision was heavily relied on by San Francisco
in the Fiscal case.)
The Ninth Circuit three judge panel heard arguments on the
remaining federal law issue; whether the ordinance violated the
First Amendment, in February 2003. Remarkably, the court also
agreed to hear arguments that the ordinance was invalid under
the Second Amendment. NRA submitted an amicus brief on the issue
at that time, and lead the efforts of several other amicus
submissions.
The three judge panel first determined that possession of
firearms is not always a form of speech and therefore is not
protected by the First Amendment. It did, however, essentially
invite the plaintiffs to amend their pleadings and show that
speech might be implicated in a particular situation and to
litigate that “ass applied” challenge in the trial court.
Additionally, the Ninth Circuit panel determined in 2003 that
the Second Amendment did not prohibit this ordinance, but not
necessarily because the panel actually thought that was the
case. The panel said it was bound by Ninth Circuit precedent
that had adopted a “collective rights” view of the Second
Amendment in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996).
Significantly, the panel concluded that the precedent adopting
the “collective rights” view of the Second Amendment was wrongly
decided, but held that this precedent could only be overturned
by an eleven judge (en banc) panel (or by the United States
Supreme Court). The Nordyke court also sharply criticized a
then-recent decision by another three judge panel of the Ninth
Circuit, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).
So the Nordykes petitioned for an en banc panel hearing. The
court denied the request, but five judges dissented from his
denial, and another judge expressed his agreement with the
positions contained within the dissent. Sevearl dissents laid
out or adopted remarkably articulate arguments that the Second
Amendment is an individual right, just like the rest of the
Bills of Rights. Some of the dissents were written by rather
liberal judges.
A petition for review by the United State Supreme Court was
submitted. The NRA and other filed an amicus brief asking the
Supreme Court to hear the case on August 27, 2004. The Supreme
Court denied review on September 27, 2004.
The case was then sent back to the trial court, and an amended
Complaint was filed. The Nordykes asked to be allowed to make
their Second Amendment claim (along with the “as applied” First
Amendment claim) again at that time, but the request was denied.
Cross-Motions for Summary Judgment were heard on October 31,
2006. The motions were ruled on March 31, 2007, with the trial
court granting the County’s motion and ruling that the Nordykes
had no valid claim.
The Nordykes appealed to the Ninth Circuit again on May 25,
2007. The Nordykes filed their briefs on the First Amendment
issue, expecting to be assigned to a new three judge panel.
Then the Heller case was decided. That prompted the Nordyke’s
lawyer to ask the Ninth Circuit to allow additional briefing on
the Second Amendment issue in light of the Heller ruling.
Interestingly, and perhaps significantly, the lawyers for the
County joined in the request.
The request was granted, and the original three judge panel that
had spoken favorably about the Second Amendment took the case
back.
With the supplemental briefs on the incorporation issue filed,
the Court will now set a date for oral argument. The Court will
almost certainly have to decide the incorporation question, and
then (assuming they find that the Second Amendment applies to
the states) either decide whether the gun show ban ordinance
violates the Second Amendment or send the case back (remand) to
the trial court to make that determination.
__________________
C. D. "Chuck" Michel
Managing Partner
TRUTANICH-MICHEL, LLP, Attorneys at Law
Los Angeles Office
180 East Ocean Blvd., Suite 200
Long Beach, CA 90802
Phone: 562-216-4441 / Fax: 562-216-4445
Email: cmichel@tmllp.com
Website:
www.chuckmichel.com
Gun law info:
www.calgunlaws.com
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