You Don’t Want To Go There, Mr. Bothwell

Cecil Bothwell is a City Councilman in Asheville, North Carolina. He also ran for Congress in the 11th District but was trounced in the Democratic primary. He is proudly the left-most member of the Asheville City Council.

Today Bothwell called for banning gun shows on city-owned property. He wants to use a city ordinance that prohibits the possession of firearms in parks and other city-owned property (other than concealed carry holders in parks.)

From a report in the Asheville Citizen-Times:

City Council member Cecil Bothwell today called for the City of Asheville to ban gun shows from City-owned properties, including the WNC Agricultural Center.

“Our municipal code specifically prohibits the carrying of weapons on City-owned properties. I don’t understand why that law is not being enforced,” Bothwell said.

The City of Asheville’s Civic Center and WNC Agricultural Center have both been rented to gun show promoters in recent years, despite this long-standing ban.

“Many citizens have contacted Council members asking for action in the wake of the Newtown school murders, but the City has very little ability to regulate guns, permitting or background checks under North Carolina and United States law,” Bothwell said. “However, we do have the power to enforce the laws that are on the books.

“Gun shows not only promote the ownership and use of weapons, including the glamorization of the assault-type, semi-automatic killing machines used in too many mass murders, but sellers at shows are not required to perform background checks on buyers. That means that guns intended for rapid fire killing may easily fall into the hands of persons who are mentally unstable or who have criminal intent.”

“This is one place we can easily draw the line,” Bothwell added. “The law is already on the books.”

 The ignorance in Bothwell’s statement astounds.

First, as a councilman, Bothwell ought to know what properties the city owns or doesn’t own. The WNC Agricultural Center is owned by the State of North Carolina and operated by the Department of Agriculture and Consumer Services.

Second, his statement about background checks and “rapid fire killing” is so ludicrous that I’ll just pass on it other than to say that FFLs are required to make NICS checks regardless of where the sale takes place.

Third, and on this I might excuse Bothwell, given Nordyke v. King was in the 9th Circuit. Despite being in another circuit, Asheville would be on very shaky legal ground to try and ban gun shows on city property. I don’t think the City of Asheville wants to be in Federal court for 13 years like Alameda County. Precedent is against them. More on Nordyke can be found here.

Two Responses To The Nordyke Decision

Two California gun rights organizations, the CalGuns Foundation and Cal-FFL, released statements on the 9th Circuits decision (finally after 13 years) in Nordyke v. Alameda County. That case challenged the ban on gun shows by Alameda County at the Alameda County Fairgrounds. The decision can be read here.

The response from CalGuns Foundation:

San Carlos, CA (June 4, 2012) – In an astonishing eleventh-hour about-face, the County of Alameda’s “sweeping concessions” in open court to allow gun shows at the Alameda County Fairgrounds was accepted by the Ninth Circuit in its opinion for Nordyke v. King, released on Friday.

As was noted in a concurring opinion by Circuit Judge Diarmuid O’Scannlain, the County’s representation at oral arguments that Plaintiffs could, in fact, now hold gun shows at the Fairgrounds, “change the game.”

“While it’s certainly fantastic that the Nordykes are once again able to have gun shows on Alameda County property, it’s clear to us that the County was willing to stop at nothing to dodge the Second Amendment bullet,” explained Calguns Foundation chairman Gene Hoffman.

“The Calguns Foundation is eager to see gun shows – long standing in our history and protected under the Constitution – at suitable public venues across the state of California. We stand ready to ensure that the rights of gun owners to gather and trade in self-defense arms are respected in every locale. California state law already severely regulates gun shows and these additional local requirements are solely an attempt to go beyond regulation into prohibition.”

And from Cal-FFL which is a newer organization representing California firearms dealers, range owners, collectors, and training professionals:

Madera, CA (June 4, 2012) – In a decision holding that “the County now concedes that [gun shows] can be held with firearms present and available for meaningful physical inspection by potential buyers,” the Ninth Circuit has settled a thirteen-year lawsuit between the County of Alameda and plaintiffs Russell and Sallie Nordyke, owners of TS Trade Shows, who operated gun shows at the Fairgrounds until the County enacted the gun show ban ordinance in 1999.

“Gun shows are important opportunities for firearms dealers, manufacturers, and buyers to connect with each other under one roof,” said Cal-FFL president Brandon Combs. “These events offer people the chance to browse thousands of products in the fast-growing self defense marketplace at one time, rather than being limited to the inventory of one or two area stores.”

While avoiding the question of how the Second Amendment might apply to gun shows, the court said in its opinion that “[s]hould the County add new requirements or enforce the ordinance unequally…. Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge.”

“California gun dealers and manufacturers rely on gun shows to educate thousands of people over the course of a weekend,” Combs explains. “Cal-FFL looks forward to helping the Nordykes, other promoters, and our federal firearms licensee members succeed in holding gun shows at county fairgrounds and similar public places throughout the state.”

Supplemental Briefing is Ordered in Nordyke Case

On Monday, the Ninth Circuit Court of Appeals ordered supplemental briefs from the attorneys for both sides in the Nordyke case. They also will accept amicus briefs in support of either party.

The parties were ordered to submit briefs of no longer than 15 pages addressing:

(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and
(2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question.

Eugene Volokh of the Volokh Conspiracy noted that:

The express mention of the level of scrutiny suggests that the panel might be willing to reconsider the issue. My guess is still that the panel will largely say what it said before, or perhaps reach much the same result but instead relying on cases such as Webster v. Reproductive Health Servs. (1989), which held that the right to abortion did not include the right to perform abortions in a state-owned hospital (even if the abortions imposed no extra cost on the hospital). But its most recent order makes that far more clear, and a victory for the gun show organizers more likely (though I think on balance still not very likely).

The Court denied the motion for a supplemental briefing by Nordyke as moot. I discussed that brief request here. Despite denying the motion, one must wonder if it spurred them to issue the order for a supplemental briefing.

You can read the full order below:

Nordyke v. King – Order for Supplemental Briefing

Shall Not Be Infringed

Professor Eugene Volokh of the Volokh Conspiracy blog, in response to a reader who says “The standard of review should be ‘SHALL NOT BE INFRINGED’”, has an interesting discussion on what the courts have said constitutes “infringement” as opposed to “reasonable regulation.”

Historically, the answer courts have generally given is that “reasonable regulations” of the right to bear arms aren’t infringements, while “prohibitions” are infringements. That of course just pushes the problem back to the question of what’s a reasonable regulation and what’s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be “reasonable regulations” when they should have struck down the restrictions as excessively burdening — and therefore infringing — the right.

The question came up with regard to the Nordyke case. Is the government controlling access to government property an infringement or a reasonable regulation? Volokh thinks most courts will tend to say that the government can restrict access to government property and will classify it a reasonable regulation.

In general, with regard to gun rights, Volokh says:

But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”

He ends by pointing readers to a 2009 article he wrote on the Second Amendment for the UCLA Law Review. The article is comprehensive (107 pages!).

I would also suggest reading the comments in the blog post as you have comments from Seond Amendment scholars such as Dave Hardy and David Young.

Request for Supplemental Briefing in Nordyke Case

Gene Hoffman of the CalGuns Foundations reports that the attorney for Nordyke, Donald Kilmer, has filed a request with the 9th Circuit for a supplemental briefing.

Kilmer argues in his brief that:

Among other issues that were resurrected in this case by
McDonald, the County has never proffered any evidence that the
fairgrounds is a sensitive place. Because the Supreme Court was
unequivocal in its pronouncement that the Second Amendment is a
fundamental right – that must now be respected by state and local
governments – it is imperative that this Court put the County to its
constitutional burdens of producing evidence (rather than conclusory
statements) that they are addressing a compelling government interest
and that the County’s means are narrowly tailored to that interest.

I don’t know whether they will allow this supplemental briefs or not. However, Kilmer does put in a wonderful footnote that just flat out sticks it to California and to Alameda County.

It is late in the game for either the County of Alameda (or the State of California for that matter) to claim that they “know” what the scope of the Second Amendment is, when they have maintained all along that it is a meaningless
anachronism that does not define a fundamental right.

Nordyke Remanded Back to Original 3-Judge Panel

Eugene Volokh of the Volokh Conspiracy analyzes the remand decision here. He notes that the original panel accepted Alameda County’s contention that the fairgrounds were a sensitive place which is not good news for Nordyke.

I agree with Sebastian at Snowflakes In Hell when he says:

I think the reasoning is poor, since not all government property can rightly be considered a sensitive place. I hope the panel does a more thorough analysis this time around of sensitive places.

As Donald Kilmer, attorney for the Nordykes, noted in his 28j letter, Alameda County did not show that banning gun shows in the fairgrounds would reduce crime nor did they produce evidence that the fairgrounds were a sensitive place.

Update on Nordyke Case

From, it is reported that Nordyke’s counsel of record, Donald Kilmer, has filed a 28j letter with the Ninth Circuit Court of Appeals.

A “28j letter” informs a court that has a pending decision before it of new relevant decisions that could impact their decision. In this case, the relevant decision is McDonald v. Chicago.

Kilmer notes in his letter that the controlling opinions in McDonald placed great emphasis on Congressional interpretations of fundamental rights as shown by statutory language. He then notes that the Protection of Lawful Commerce in Arms Act recognizes that the Second Amendment protects more than just the mere possession of a handgun in the home. He concludes that since Alameda County has produced no evidence that banning gun shows on their fairgrounds will reduce crime or that it is a sensitive place, then the court should force the county to meet it constitutionally required burden and allow gun shows on the fairgrounds.

What Now for Nordyke v. King?

Legal blogger Josh Blackman wonders what the 9th Circuit will do in the Nordyke case. They have already vacated the 3 judge decision on the case in anticipation of an en banc hearing. However, this en banc hearing was deferred until after the McDonald decision. Will they still hear the case or will they remand it back to the District Court?

I posted last week on Sayre Weaver, one of the attorneys for Alameda County (King et al), and her thoughts on McDonald here.

Reality Bites

Sayre Weaver is one of the leading legal lights of the gun control movement in California. She is one of the lead attorneys for the County of Alameda in the Nordyke case and she helped the City of West Hollywood develop their law prohibiting the sale of “junk guns”(sic). She has won awards from Women Against Gun Violence and the California Wellness Foundation for her work on gun control. The LA Times writes glowing articles about her that characterize her “as the California gun lobby’s Public Enemy No. 1.” So, when she says the McDonald decision is likely to spawn lawsuits challenging local gun control laws, I listen.

Weaver released her analysis on the impact of McDonald v. Chicago on Monday. Her analysis centers on the likely immediate impact that McDonald will have for local governments in California.

  • Local ordinances regulating firearm possession and sale are now more open to challenge on Second Amendment grounds

It appears likely that McDonald will generate challenges to a wide range of local firearms regulations, as well as ammunition regulations…..Because the Court has given little guidance on what standard a firearms regulation must meet to survive challenge under the Second Amendment, we anticipate that the decision will embolden individual litigants to challenge a wide range of firearms laws, including long standing laws that have previously survived challenge in the courts.

  • Local firearms ordinances must now meet a more rigorous constitutional standard to survive legal challenge

Because any restriction on firearms possession or sale might be argued to create some burden on the right to possess a firearm for self-defense in the home, local governments should anticipate numerous lawsuits challenging a wide range of firearms laws. There are already a number of such challenges in the California courts, which were stayed while those courts waited for McDonald.

  • Local ordinances regulating possession of handguns or prohibiting certain types of handguns are more vulnerable to challenge under the Second Amendment

Because the Second Amendment right articulated by the Court pertains to possession of handguns, which the Court characterizes as the most popular weapon among Americans for self-defense, it is likely that local regulations of handguns will be challenged under the Second Amendment.

  • Successful Second Amendment challenges to local laws may result in the award of attorney fees against a city and to the challenging party

While she doesn’t come out and say it, if a city loses a challenge to a firearm restriction in court, they will end up paying the costs for both the defense and the plaintiffs. In case-strapped California, this should make some municipalities think twice.

  • Local governments considering adopting new firearms ordinances may wish to consult with their City Attorneys

…ordinances will now be subject to a stricter test in the courts, and the legislative findings that may be needed for a given law to pass muster under the Second Amendment will be of particular importance.

The bottom line for Weaver is that the world as she knew it has changed with McDonald.