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Appeals Court Weighs Gun Rights Lawsuit

(AP Photo/Steve Helber)
Update 9/24 9:31 p.m.: The Ninth Circuit has just handed down a one-page order delaying consideration of this case until the U.S. Supreme Court decides whether or not to hear the lawsuits arising out of Chicago and New York state. The justices are scheduled to discuss those cases on September 29, and are likely to announce their decision soon after.

SAN FRANCISCO--A federal appeals court spent an hour on Thursday wrestling with America's next big gun rights question: Does the Second Amendment prevent states from enacting anti-gun laws?

An 11-judge panel of the U.S. Ninth Circuit Court of Appeals peppered attorneys for both sides with far-ranging questions about the history of the California constitution, if local governments would be able to ban the private ownership of handguns, and whether this case would be better decided by the U.S. Supreme Court.

Deciding the Second Amendment applies only to the federal government would create an "apartheid of civil rights" where gun rights vary by state, said Don Kilmer, an San Jose, Calif. attorney who filed the suit against the San Francisco-area county of Alameda. California is one of only about five states lacking protection in its state constitution for the right to keep and bear arms.

At one level, the topic at hand is relatively narrow: whether Russ and Sallie Nordyke can continue to hold their gun show at the Alameda County Fairgrounds in the face of an ordinance making it a crime to bring "a firearm, loaded or unloaded, or ammunition for a firearm" onto county property. But the case's ultimate impact could be much more broad, especially if the Ninth Circuit agrees with Kilmer that the Second Amendment must invalidate state anti-gun laws that go too far.

Alex Kozinski, the circuit's chief judge, sharply questioned an Alameda County attorney about her defense of the ordinance as being constitutional because fairgrounds were "sensitive places" where firearms could be prohibited.

What's so sensitive about this big arena?" Kozinski asked. Just because it's owned by the government, he wondered, does that mean that "every beach, every forest" and "every corner of Yosemite" could be deemed to be off-limits to firearms carried by otherwise law-abiding citizens?

"Crowd control is a legitimate function of government," replied Sayre Weaver, an attorney at the Richards, Watson & Gershon law firm who has built her practice around defending local municipalities in court. Weaver said that while "the county doesn't have a problem with people possessing weapons in self-defense," it has legitimate concerns about gun shows.

This case plays out against the backdrop created by last year's Supreme Court ruling in a case called D.C. v. Heller, which said the Second Amendment protects an individual right and prevents the federal government and federal enclaves like the District of Columbia from banning handguns.

But whether the Second Amendment applies to states remains an open question. It may seem like an odd one: After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from suppressing political speech. The Fourth Amendment has been interpreted to restrict state police from conducting "unreasonable searches," and while the right to an abortion is not clearly found anywhere in the U.S. Constitution, the 1973 Roe v. Wade decision struck down a Texas law on constitutional grounds.

So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?

This topic sounds a bit like one that only a law professor might appreciate, but in the last half-century or so, the Supreme Court has ruled that only "fundamental" rights in the Bill of Rights are incorporated. If a right is not deemed "fundamental," it doesn't apply to the states. So far, the justices have not yet ruled squarely on this question (even though Justice Antonin Scalia's majority opinion in D.C. v. Heller case noted that "the right to have arms had become fundamental" in the early American colonies).

Judge Diarmuid O'Scannlain noted that Alameda County's position was at odds with that taken by the state of California itself. In a brief filed in a Chicago case, California attorney general Jerry Brown wrote that the Supreme Court should extend "to the states Heller's core Second Amendment holding that government cannot deny citizens the right to possess handguns in their homes."

Weaver, the Alameda County attorney, said that only the Supreme Court, not the Ninth Circuit, could make that decision. "The Supreme Court has made very clear... that the court reserves to itself the right to overrule its own precedents," she said.

One possibility, which at least one judge seemed interested in contemplating, was for the appeals court to invoke the rare procedure of certifying the case to send to the Supreme Court -- effectively deferring any final decision. (American University law professor Steve Vladeck recently calculated that the certification procedure had not been successfully used since 1981.)

The question of incorporation is already bubbling up to the high court thanks to two Chicago Second Amendment cases and one case that arose out of New York. On September 29, the justices will meet to decide whether to accept those cases for the 2009-2010 term.

Those appeals courts declined to apply the Second Amendment to state laws, while a two-judge panel of the Ninth Circuit incorporated the Second Amendment but still upheld Alameda's anti-gun law. Similarly, the Seventh Circuit recently ruled that even if the Second Amendment applied to municipalities, they could get away with forcing citizens to register firearms or face legal consequences. For the gun rights advocates at the Calguns Foundation who gathered for lunch after the oral arguments -- not to mention the Nordykes, who have been fighting Alameda's ordinance for around a decade -- that might be the very definition of a hollow victory.

Declan McCullagh is a correspondent for He can be reached at You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
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