In an important sequel to the Supreme Court’s two decisions on the right to have a gun, the Ninth Circuit Court has made it easier for gun owners to challenge laws seeking to regulate how that right can be exercised outside the home.  Although the ruling may ultimately mean that local governments may take action to limit gun shows, it reached that result after first raising the barrier that gun regulations have to clear in order to withstand a Second Amendment challenge.

The ruling came Monday in the long-running case of Nordyke, et al., v. King, et al. (Circuit docket 07-15763), a case that has been bouncing back and forth in the courts (including the Supreme Court) since it was first filed in 1999.  In the new ruling, the Ninth Circit panel split 2-1 in declaring that a gun regulation law may be struck down if it imposes “a substantial burden” on the right to have a gun for self-defense.   The dissenting judge argued that this standard will work to nullify almost all gun control laws.

The majority’s chosen standard is something like the middle tier of tests for constitutionality.  The highest is “strict scrutiny,” which is a barrier high enough that few laws could clear it because it requires proof of a very important government need, with the regulation closely keyed to that need   The gun show promoters involved in the Nordyke case wanted the Circuit Court to adopt that standard.

The lowest constitutional standard is “rational basis,” which is so tolerant that a law will be upheld if there is any believable reason to support it.   The dissenting judge in Nordyke said he wanted the standard a little bit higher than “rational basis,” at what he called a “reasonableness” level, at least for most gun laws.

When the Supreme Court decided, in the 2008 case of District of Columbia v. Heller, that the Second Amendment guarantees an individual a personal right to have a gun for self-defense, at least in the home, it apparently did not settle what constitutional standard would apply to gun laws as that decision was implemented in lower courts.  (In 2010, in the case of McDonald v. Chicago, the Supreme Court  extended the Second Amendment gun right to apply to state, county and city laws, as well as federal statutes, giving the right a much wider reach.)

The Nordyke case has been unfolding over the past 12 years, and has been closely watched as the pressure for new constitutional protection for gun rights mounted in recent years.  When the case was first filed, it mainly involved a First Amendment challenge to a 1999 ordinance in Alameda County, Calif., barring anyone from bringing a gun or ammunition onto county property.  The measure’s chief sponsor said the aim was to shut down gun shows, which had been held for years on the county fairgrounds, drawing some 4,000 people.

The lawsuit later added a Second Amendment challenge, and that challenge took on added significance after the Supreme Court’s decision in Heller three years ago.  (The Heller decision specifically struck down a flat ban on all handguns in Washington, D.C., but did indicate that not all gun control laws would fail under the Second Amendment.)

Lower courts have been moving to fill in the blank on what standard to use in judging gun regulations.  At least one federal District judge has ruled that such controls must satisfy “strict scrutiny.”  Others have opted for “heightened scrutiny,” something above mere rationality.

Because of the Ninth Circuit’s prominence among appeals courts, and because of the wide interest in the Nordyke case itself, the panel’s decision on Monday is likely to intensify the legal debate over how to judge gun control laws.  In an opinion written by Circuit Judge Diamuid F. O’Scannlain, joined by Circuit Judge Arthur L. Alarcon, the panel majority opted for the “substantial burden” test.  It found that test emerging from language Justice Antonin Scalia had used in the Heller decision, even though the Circuit Court acknowledged that Heller did not set a standard.

In a significant part of the panel decision, it said that the “substantial burden” test is to be applied specifically to whether a gun law or regulation impinges on the right to have a gun for self-defense.  It rejected the argument that courts should weigh the interest in having a gun and balance that against the government’s interest in reducing gun crimes.  The focus, it said, must be on what a law does to the personal right.  Moreover, the majority said that the Supreme Court in Heller had explicitly rejected a balancing test, advocated by Justice Stephen G. Breyer in dissent in that case.

In turning aside the plea to set the standard at “strict scrutiny,” which surely would have doomed the Alameda County fairgrounds ordinance, the Circuit Court majority said that would be inconsistent with Heller.  ”We are satisfied,” the majority said, “that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws….The substantial burden test…will not produce nearly as many difficult empirical questions as strict scrutiny.”

After spelling out the standard, the Circuit Court discussed its impact on the Alameda ordinance, and, while not reaching a final decision on that law’s validity, showed considerable sympathy toward the county’s authority to adopt the measure. Even if the ordinance worked out in practice to mean that no guns could ever be carried on county property, the majority said, the ordinance did not shut off all avenues for people to possess guns for their personal defense.  Moreover, it said, the ordinance did not even flatly ban gun shows; it merely ordered them off county property.

Even though the case has now run on for a dozen years, Monday’s decision still did not bring it to an end in the lower courts.  The Circuit Court ordered the District Court that had handled the case to allow the gun show promoters to amend their challenge, if they seek to add new facts that “might plausibly suggest that the ordinance substantially burdens the Nordykes’ Second Amendment rights.”   The O’Scannlain opinion noted that the show promoters had filed their current complaint in 2004, and that was before the Supreme Court’s decisions establishing and expanding gun rights.

Circuit Judge Ronald M. Gould supported the result in the case, allowing it to go back to District Court, but he wanted the Court to establish a standard of “reasonableness” for judging gun regulations, at least when a law imposed only “incidental burdens” on gun rights.  He did say, though, that he would support heightened scrutiny in judging any law that restricted what he called “the core purposes of the Second Amendment, that is, regulations aimed at restricting defense in the home, resistance of tyrannous government, and protection of country.”

Although the gun show promoters did lose on the constitutional standard, it would appear unlikely that they would take the case on to the Supreme Court at this point, since the decision gives them a chance to try again in the District Court to get the Alameda ordinance nullified even under the Circuit Court’s new, mid-level standard.   The county, similarly, would not seem to have much reason to go on to the Supreme Court because it is, so far, winning the case.

(Thanks to Howard Bashman of How Appealing blog for the alert to this new decision, and for the link to it.)

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Circuit Court bolsters gun rights, SCOTUSblog (May. 3, 2011, 4:09 PM), http://www.scotusblog.com/2011/05/circuit-court-bolsters-gun-rights/