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Finally, a ruling in Nordyke v. King
9th Circuit en banc opinion here. After thirteen years of litigation.... the County re-interprets its regulation banning gun shows to allow gun shows, under an exception that allows possession of firearms as part of an "event," provided they are secured when not in actual possession of the person participating, and the Ninth Circuit buys it. The majority argues that the minimal restriction employed (gun must generally be secured during gun shows on county property) would pass any level of scrutiny, The concurrences suggest that, after this many years of litigation, the court should at least state a level of scrutiny.
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From my reading it looks like the Nordykes lost, in the sense that their complaints were dismissed. So will they not be awarded attorneys fees? On the other hand, their complaints were dismissed because the county decided to allow the guns they had previously said were prohibited. So it seems the Nordykes should get their fees.
Mr. Hardy,
What is your read on this result?
The county folded. Gave the Nordykes more or less what they asked for (of course we have to make sure that Alameda actually does what they say they are going to do) as concessions made verbally before the panel of judges in oral argument. And yes, the Nordykes should get damages and costs to be made whole for the years of intransigence and bad faith on the part of Alameda County. That is another lawsuit.
I live in Alameda County, and the way the local news is reporting this is bizarre.
They are saying that the Court threw out Rusty and Sally's complaint because all along the County Ordinance allowed the guns to be at the show if "tethered".
This is a steaming pile of BS.
The County told the Nordykes they could have a show, but no guns. The participants with tables could have "pictures" of guns they were offering for sale or trade, but no actual guns.
The attorney for the Nordykes, accepted the guns being tethered in front of the panel...he should have said no. I'm not sure if he was the orginal attorney or not, but he didn't sound very good during orals...so you get what you pay for.
The County essentially said they would abide by the same firearm rules for gun shows as for the historical events (control of owner, tethered if not).
The narrow issue was the County wanting to -ban- guns on county property for gun show events but not other events, that the court ruled narrowly shouldn't be a surprise. Especially since private venues were and are available without such restrictions, so the 2A impact was localized.
The County got slapped, no bad precedent came into play, and the idea that effective bans are allowable is going to be hard to make in other contexts.
Such as in Peruta's appeal, which was waiting on this case to finish. Recall that the original judge in Peruta said discretionary "may-issue" was an allowable infringement on 2A rights because permitless open carry was theoretically legal. OC is now banned and there are good arguments out of other Circuits that some form of effective carry must be allowed.
The County folding in Nordyke on a lesser infringement (banning of gun shows on county property when the alternative of private venues remained wide open) rather than pushing for a decision in their favor can't help San Diego County's ability to claim that near-ban level restrictive may-issue, without an alternative method like OC, is somehow allowable.
I am very disappointed.