A federal judge has ruled that a lawsuit brought by gun show promoters Russ and Sally Nordyke can proceed and that they can argue that their free-speech rights are violated by an Alameda County ordinance that bans guns on county property. By banning firearms on County property the ordinance was designed to, and did, put the gun show out of business.
In a tremendous victory for gun rights activists, on September 27, 2005 United States District Judge Martin Jenkins ruled that the gun show promoters, who had filed a lawsuit challenging the Alameda ordinance, could proceed with their case.
The Nordykes promoted gun shows at the Alameda County Fairgrounds in Pleasanton from 1991 to 1999, when the county adopted an ordinance making illegal the possession of firearms on county property. The county had asked the judge to dismiss the Nordykes challenge, arguing that the gun ban is a public safety issue rather than a constitutional one. But Judge Jenkins ruled that the promoters had established both a claim under the equal protection clause and the First Amendment of the United States Constitution.
The case has great significance because the gun ban lobby in California has made a concerted effort to pass these types of ordinances around the state and to ban all gun shows in the process. By allowing the First Amendment argument to proceed, the court has made it possible for other gun show promoters to file similar lawsuits against ordinances that are prohibiting them from doing business in California jurisdictions.
"Plaintiffs have articulated a particularized political statement that they intend to convey through possessing guns at gun shows," Jenkins wrote in denying the county's request for dismissal. "Plaintiffs have sufficiently alleged that their conduct ... constitutes speech."
The 9th U.S. Circuit Court of Appeals in San Francisco earlier sided with the county and rejected the Nordykes arguments that their First and Second Amendment rights were violated, but the court said they could raise the First Amendment challenge again if they stated their claim differently.
The plaintiffs appealed the Second Amendment ruling to the U.S. Supreme Court, which declined to take the case last October. The Nordykes' attorney, Donald Kilmer of San Jose, then retooled the Complaint to conform to the Ninth Circuit’s instructions on the First Amendment claim. Specifically, Kilmer argued that possessing guns at gun shows expresses a "firmly held belief" in the Second Amendment right to keep and bear arms, and conveys support for the National Rifle Association's interpretation of the Second Amendment.
Kilmer said the judge agreed that having guns at gun shows can be constitutionally protected "expressive conduct" — a form of free speech. "Gun shows are cultural events and are protected by the First Amendment and the California Constitution's Freedom of Expression clause," Kilmer said.
The case number is C99-04389MMJ. You can read the opinion at www.calgunlaws.com.
