There’s another showdown looming over Alameda County’s law prohibiting gun shows at the county fairgrounds. Back in May a three-judge panel voted 2-1 that the county could restrict gun shows so long as it didn’t “substantially burden” the right to own weapons. On Monday, a majority of the full 25-judge 9th U.S. Circuit Court of Appeals voted to reconsider that decision.
It is the second time a full 11-judge panel will consider the ruling. But it isn’t clear why they are taking it up because Judge Diarmuid O’Scannlain tossed the legal equivalent of a stink bomb into his majority opinion in May. He used the Second Amendment lawsuit to throw in comments about abortion rights, suggesting abortion is not a “fundamental right” and allows for plenty of government restriction.
It may be the majority wants to excise that, or more likely, the majority of the court wants to weigh in on gun rights. The May decision created a nearly insurmountable hurdle for gun show promoters to overcome if they hope to hold shows in the county.
This gun show case has bounced around the court since 1999. O’Scannlain’s opinion upheld dismissal of a lawsuit by Russell and Sallie Nordyke, who operate a business promoting gun shows across the state.
In Alameda County those shows routinely draw 4,000 people but the county also has plenty of gun violence and wanted to get out of the business of renting its fairgrounds to sell guns. Once the U.S. Supreme Court decided in 2008 that the Second Amendment protects an individual’s right to possess weapons in their home the Nordyke case heated up again.
An 11-judge panel of the Ninth Circuit sent it back to O’Scannlain, Judges Arthur Alarcon and Ronald Gould in 2009 for a second look. The May uling holds that Alameda County can regulate gun shows on county property so long as it does not significantly burden the private right to own firearms.
Gould, the dissenter in the gun case, took O’Scannlain to task for the anti-abortion asides. “This appeal is not about abortion rights and the opinion of the court errs, I think seriously, when it inserts its views on abortion rights in a Second Amendment controversy,” Gould said. He would have given the county even more leeway to limit weapons sales.
The suit now will wait for a new round of briefing and an oral argument, likely sometime in 2012.
Case: Nordyke v. King, 07-15763 (9th Circuit)