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The California Supreme Court Hears Two Gun Show Cases

by Michael Pelletier
mvpel@firearmsfreedom.net

February 7, 2002

On Tuesday, February 5, 2002, the seven-member California Supreme Court heard oral argument in two cases that will make or break the future of gun shows in the state of California.

At the heart of both cases is the concept of "preemption" whether provisions of state law override local ordinances regulating gun shows.

As you may already know, state preemption is a very important aspect of firearms law.  Instead of having a crazy-quilt patchwork of varying requirements, restrictions, and bans throughout the state, there is a single, uniform standard for firearms owners to follow.  In states where there is no preemption, such as in Illinois, it is possible to legally possess a handgun in one part of the state, but if you are in Morton Grove, Oak Park, and Winnetka, you would be committing a crime under a local ordinance.

The History

In the recent past, as most gun owners are aware, various groups have been fanning the flames of hatred toward gun owners, and gun shows have been slandered as "weapons bazaars for terrorists and criminals."  This is despite the fact that there is no so-called "gun show loophole" in California. All transfers must go through a licensed dealer, there is no such thing as "private party" transfer of firearms. All the legal requirements for such a transfer, including the 10-day waiting period, apply equally at a gun show or at a retail store.

In 1997, the Ninth Circuit decided Nordyke v. Santa Clara County [110 F.3d 707 (9 th Cir. 1997)] in favor of Russ & Sally Nordyke, the promoters of the T&S Gun Show.  In that case, the court found that gun shows are protected commercial free speech, and the county's effort to ban gun shows wound up costing them more than $400,000.

So instead of this head-on approach, which failed to pass Constitutional muster, the counties decided to take a different tack.  Los Angeles County banned the purchase or sale of firearms on county property, while Alameda County banned possession of firearms on county property.

Both ordinances were drafted and pushed through with the help of the anti-gun organization "Legal Community Against Violence," through their "Local Ordinance Project" which is funded by the California Wellness Foundation and the David and Lucille Packard Foundation, among others.

In both counties, the promoters of the respective shows targeted by these ordinances sued the counties.  Since the Ninth Circuit has deemed the Second Amendment a "collective" right, rather than an individual right as the Fifth Circuit recently held, the basis of the lawsuit was once again on First Amendment grounds, just as in Nordyke v. Santa Clara.

It is clear that gun shows provide a gathering place for pro-gun political activism and speech, and based on the tenor of the hearings held thus far in the Ninth Circuit, and the 1997 Nordyke victory, this argument has well-recognized traction. Indeed, the attorneys for both counties admitted that the First Amendment issue is why they didn't actually ban gun shows, but rather prohibited essential elements of gun shows instead.

In Great Western, a stay of enforcement against the ordinance was granted, allowing them to continue holding the shows in Los Angeles County while the case was litigated, while in Alameda County, the stay was denied, resulting in substantial lost revenue for Russ & Sally on top of tens of thousands of dollars in legal bills.

On the legislative side, in August of 1999 California enacted Assembly Bill 295, the "Gun Show Enforcement and Security Act of 2000," amending portions of the Penal code to expand on the existing regulation of gun shows under section 12071.1 and 12071.4, among others. The wording of these laws would become an issue during the arguments.

The Cases

The summaries and certified questions for each case, as published by the clerks of the Supreme Court, are as follows:

Great Western Shows v. County of Los Angeles, S091547
For Respondant: Michael F. Wright, Los Angeles
For Appellant, Lawrence L. Hafetz, Office of the County Counsel, Los Angeles

Request by the United States Court of Appeals for the Ninth Circuit for the answer to certified questions of state law pursuant to rule 29.5 of the California Rules of Court.  The certified questions, as restated by the court, are:

  1. "Does state law regulating the sale of firearms and gun shows preempt a municipal ordinance prohibiting gun and ammunition sales on county property?" and

  2. "May a county, consistent with Article 11, Section 7 of the California Constitution, regulate the sale of firearms and ammunition on its property located in an incorporated city within the borders of the county?"


Nordyke v. King, S091549 [C.A.9 (Cal.)2000, 229 F.3d 1266]
For Appellant Nordyke: Donald Kilmer, San Jose
For Appellant King: T. Peter Pierce, Los Angeles

Request by the United States Court of Appeals for the Ninth Circuit for the answer to a certified question of state law pursuant to rule 29.5 of the California Rules of Court.  The certified question is "Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property?"


The first thing to note regarding both of these cases is that the questions are being posed by the United States Court of Appeals for the Ninth Circuit. The federal question at bar is whether the restrictions which these counties have imposed on gun shows infringes upon the First Amendment right of free speech and assembly.

Since it is required that a case be resolved in the lowest possible court in the judicial hierarchy, the Ninth Circuit asked the California Supreme Court the final arbiters of California law to resolve these questions of preemption. If the case can be resolved on the basis of preemption, there is no need to resolve it on the basis of the Bill of Rights.

Preemption

I had discussed the cases with Don Kilmer, the attorney representing Russ & Sally Nordyke and a past president of the Silicon Valley NRA Members' Council, and he brought me up to speed on various aspects of preemption analysis. I suspect that the reason that many of the articles that have been written about this case are so weak is that their authors lacked this understanding, and I found it to be essential to following the arguments that each side put forth.

There are three types of preemption: contradiction, duplication, and field preemption, as in a "field of law."  Field preemption is further divided into express and implied preemption.

Contradiction and duplication are easy to understand: if a law or ordinance passed by an inferior branch of government duplicates or contradicts an existing law or ordinance enacted by a superior branch, the inferior branch must give way to the superior. This applies to not only the relationship between state law and county ordinances as in these two cases, but also to that between county and city ordinances.

For example, a county ordinance prohibiting murder within the county would duplicate Section 187 of the California Penal Code, and would therefore be preempted.  A county ordinance allowing the trapping of raccoons in July within the county would contradict Fish & Game Code Section 4001, and would be preempted.

"Field" preemption, and its two categories of "express" and "implied," comes about when the legislature has occupied a field of legislation and regulation in such a way that local ordinances within that field of law can't be tolerated.

Express preemption arises when the legislature states that it has reserved all legislation-making power in a given field of law to itself, such as in Section 21 of the California Vehicle Code:

21.  Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein. 

Any local ordinance regarding vehicles in California, regardless of whether or not it was already addressed by state law, would be null and void unless specifically authorized by the code.  It would be "expressly preempted" per this section of the code.

Implied preemption gets into the often murky area of legislative intent. There is a three-prong test that is used:

  1. Has the state legislature so fully occupied the field as to render local regulation inappropriate?
  2. Has the state government only partially occupied the field, but on such an important topic that local regulations can't be tolerated?
  3. If the state legislature has only partially occupied the field, does the burden that would be imposed by local regulations in that field on transient citizens of California outweigh the local benefit?
If the answer to any one of these questions is "yes," then the local regulation is preempted.

Like the hierarchy of courts and governments, preemption has its own hierarchy. If a law can be preempted by either duplication or contradiction, analysis of field preemption is not called for.

The Hearing

I arrived at the Supreme Court building in plenty of time to go through the metal detector and have my briefcase thoroughly searched, after a very pleasant train ride up from my home in San Jose.

As an aside, today's Amtrak cars are clean, comfortable, and nicely appointed. If you can spare the time and money, the train is a good alternative to air travel and its strip searches.  San Jose to Sacramento was $18 each way, and took about 3 hours.

The court building, at 914 Capitol Mall in Sacramento, was suitably grand in its design and stature to befit the seat of justice of the most populous state, with rich wood everywhere, gilding, marble and granite. Ironically, the lobby of the building was dedicated to the military, and the quote on the east wall read:

"This abode of peace shall stand as long as there are those willing to die in its defense."

As I was walking in to the courtroom, I exchanged greetings with a few of the big names in the fight for California firearms and personal freedom: Ed Worley, the Sacramento NRA lobbyist; Chuck Michel, the Los Angeles-area attorney who has led the recent NRA legal efforts in the state; and Joe Banister, the former IRS agent who is working to get honest answers about the income tax code and how it applies US citizens.

Great Western

The court began session promptly at the scheduled time of 2:00pm, and moved immediately into the Great Western Case. As the Appellant having been defeated in the lower court with the issuance of the stay of enforcement the County argued first, represented by Lawrence Hafetz of the County Counsel's office.  Each attorney was granted 30 minutes.

Mr. Hafetz began by noting that this is a ban on the sale of certain property, not a ban on gun shows. As is common during oral argument, he did not get very far before the questions began.

Hafetz's, in response to questions posed by the bench, argued that counties have broad authority to regulate conduct under not only their police power, but also their property interests. California Government Code Section 23004 states that a county may "manage ... its property as the interests of its inhabitants require," and therefore banning the sale of firearms on county property falls under its authority to manage such property.

Regarding the issue of preemption, he argued that the ordinance is not "duplicate" law, but rather "supplemental," and therefore was not preempted, and cited a court case to that effect.  His position was that since there is no state law regarding the sale of firearms on county property, the county ordinance is not duplicate.  Counties have the authority to address local problems with local regulations.

Further, he stated that all county ordinances are "supplemental," which I took to imply a claim that there is no county ordinance that could be subject to preemption, but I'm not quite sure if he actually meant it that way.

In addition, he argued that only narrow areas of law are preempted under the California gun laws, alluding to the express preemption in the areas of licensing and registration of firearms in Section 53071 of the Government Code.  He also pointed out that local regulations are specifically allowed for in the state law.  In particular, Penal Code 12071(b)(1)(B)(ii) states that a firearms licensee may conduct business at a gun show anywhere in the state, regardless of the jurisdiction where the license was issued, provided he or she "complies with all applicable local laws, regulations, and fees, if any," and 12071.1(o)(1) states that a gun show must display a sign stating that they comply with "all federal, state, and local firearms and weapons laws without exception."

Next up was Mr. Wright, of the Los Angeles law firm Case, Knowlson, Burnett & Wright LLP, arguing on behalf of Great Western Shows.

The essence of his argument was that while gun shows are permitted by state law subject to local regulations, a total ban, which the attorneys for both counties admitted is what their ordinances amount to, oversteps the limits of that regulatory authority.

He first pointed out that 12071(b)(1)(B) of the Penal Code states that a licensed dealer "may take possession of firearms and commence preparation of registers for the sale, delivery, or transfer of firearms at gun shows or events," which is, in effect, a state grant of the authority for a licensed gun dealer to conduct gun sales and transfers at a gun show.

The second sentence of that same subparagraph, he argued, establishes an affirmative right to conduct such business at a gun show, through its use of the phrase "shall be entitled to conduct business..." While that affirmative right is subject to local laws and regulations, the Los Angeles County ban on sales of firearms strips away this entitlement to conduct the ordinary business of a licensed gun dealer at a gun show, and therefore contradicts state law.

In response to a question from the bench, Wright acknowledged the right of the government to regulate the location of gun shows, through ordinary zoning powers. For example, a zoning ordinance prohibiting gun shops or shows within a certain distance of a school is permissible regulation.  However, he said, this zoning power must be reasonably exercised.

Further, since Los Angeles did not actually ban gun shows because of Nordyke v. Santa Clara, and in fact specifically allows for "weapons shows" in the its contract with Fairplex (the fairground management organization), Mr. Wright argued that the county must allow all the activities provided for by state law at a gun show, or be subject to preemption.  For example, he pointed out that under the Resource Conservation and Recovery Act, certain requirements were imposed on the dumping of hazardous waste. When one county attempted to completely ban dumping of such waste within the county, the ordinance was overturned by the courts as preempted by the provisions of RCRA.

In essence, just because state law allows for local regulation of a given activity does not mean that such regulation can have the effect of making the state law meaningless or inapplicable.

During the rebuttals, there was some further back and forth between the justices and the attorneys regarding the "future ordinances" clause in the county's 50-year lease with Fairplex, and whether the ordinance overrode the allowance for "weapons shows," and whether the contract with Fairplex limits the county's property management authority. It was again pointed out that the ban is not on "gun shows," but on "selling firearms on county property," and that directly banning gun shows (instead of indirectly banning them) would likely run afoul of First Amendment protections.

As the clock ran out, both sides submitted and the next case was promptly called.

Nordyke v. King

Since the gun show promoters Russ & Sally Nordyke were appealing, due to the fact that their attempt to obtain a stay on enforcement of the Alameda ordinance was denied, their attorney Don Kilmer was the first to argue, followed by Alameda County's attorney, Mr. T. Peter Pierce of Los Angeles.

Don's arguments were articulately and capably presented, in noticeable contrast to the three other attorneys on these two cases. Considering that he's been dealing with this case for two and a half years, and was also involved in Nordyke v. Santa Clara, this is not surprising.

Currently, only Los Angeles and Alameda are in litigation over gun show restrictions, but they are known to be merely the trial balloons for the LCAV's Local Ordinance Project.  There are several other counties that have ordinances ready to go to prohibit gun shows if either of these ordinances are upheld. It makes one wonder if they got together and drew lots to see which county would go first and be forced to spend their taxpayers' money to litigate the cases.

As Don began, he laid out the concept of preemption in much the same way that he had explained it to me.  Before field analysis can be entertained, duplication and contradiction must be addressed, he said.

First of all, one of the several problems with the Alameda ordinance is that it addresses actions that are already addressed in state law with respect to possession and carrying of a firearm. One of the more perverse outcomes of the ordinance is that a person who is carrying a loaded, concealed weapon without a permit which can be charged as a felony under the state law and who is arrested on county property, can simply plead guilty to the misdemeanor violation of the ordinance.  By doing so, the person would face six months in a county jail, but would also be able to evade state felony prosecution by claiming "double jeopardy."

In California, county ordinance violations cannot be charged as felonies, only as misdemeanors or infractions.

He also pointed out that simply adding an element of "on county property" does not eliminate duplication considerations. For example, an ordinance banning murder "on county property" would clearly be duplicate, even though there is no state law regulating the commission of murder on county property.

The county is trying to create a third category a "purgatory," as Don put it of gun possession law.  Under state law, it is legal to carry an unloaded firearm openly, and it is legal to carry concealed provided one has a concealed carry permit issued under Penal Code 12050, but the county ordinance prohibits the former and allows the latter.

With respect to conflict analysis, the list of exemptions to the county ordinance does not match state law.  The ordinance exempts peace officers, but county corrections officers are not "peace officers" under California law.

If a corrections officer were to check out a shotgun, and then go to the county jail (county property) in order to bring out prisoners for trial at the county courthouse (also county property), he would be in violation of the ordinance and subject to six months in jail!

Under state law, motion picture companies are exempt from various gun laws, and the county ordinance also exempts them, but it also exempts "dance" productions, creating a lack of clarity with respect to the overlap between state law and the county ordinance.

The ordinance also does not exempt antique firearms such as the cannons at war memorials in county parks! Alameda County also owns fourteen private residences which it acquired through eminent domain, and is leasing them out to individuals until the properties are needed. The ordinance subjects those residents, who happen to live on county property, to punishment for possessing firearms in their own homes something that is permitted under state law.

And, as Don related to me later, in all of these problem areas the ordinance is simply not being enforced.  The only enforcement of the ordinance apparently comes about as part of the effort to drive Russ & Sally Nordyke and their T&S Gun Show out of Alameda County.  A Scottish event, complete with a kilted regiment sporting rifles, as well as a Fourth of July event with musket-bearing minutemen, were both allowed the use of the county fairgrounds without so much as a raised eyebrow. And of course, county corrections officers are not being thrown in jail because they bring a beanbag shotgun along with them to the jail.

With respect to "all applicable local laws," as mentioned by the attorney for Los Angeles, Don pointed out that this can mean a local sales tax, for example.  Local governments in California can enact sales taxes within cities or counties, in addition to that imposed by the state.

And finally, with respect to implied field preemption analysis, Don indicated that one must look to the intent of the legislature.  In that regard, the intent of the legislature has been demonstrated repeatedly over the years bills that would have allowed local governments to enact their own gun control laws were voted down year after year.

As Mr. Pierce began, he made similar arguments to the county counsel of Los Angeles.  With respect to duplication, he stated, there is no state law regulating possession of firearms on county property, therefore it is not duplicating state law in spite of Don's argument that simply adding an element does not evade duplication.  The ordinance was enacted in response to a shooting on county property, he noted, and in the same sense that Los Angeles county can exercise its property management authority by banning skateboarding and roller-blading at the Compton Civic Center, in an effort to avoid liability claims, it can ban possession of firearms on county property as well.

This, to me, pointed to the serious problem that exists in our courts with respect to liability, and illustrates the stunning decline in the ethic of personal responsibility that is sapping the vitality and independence of this once-great nation... but that's just me.

While Pierce pointed out that under the CCW law in California, the issuing authority can limit the "time, place, and manner" in which the individual carries their firearm, and that the county ordinance was just a limitation on the "place" where gun shows can take place, he did admit that the underlying purpose is to do away with gun shows.

Again, the question was posed, "why not just ban gun shows?" And again, the answer was "we can't because of the First Amendment per Nordyke v. Santa Clara."

Pierce acknowledged the problems with the conflict in jurisdiction created by the county ordinance and the state laws , but seemed to wave them away, saying in essence that they could cross that bridge when they got to it.

He also brought up California Government Code section 53071, "it is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms," which creates an express field preemption under the law, but only for those areas, and he pointed out that there is no equivalent for the field of possession of firearms.

During Don's rebuttal, he pointed out that Pierce was only dealing with express field preemption, not implied field preemption.  Additionally, he pointed out that the ordinance does not provide for a defense to prosecution under Section 12025.5 of the Penal Code, if you are covered by a restraining order and in reasonable fear of grave danger to your safety, you may use that fact to justify carrying a concealed weapon without a permit.  There is no such defense in the county ordinance.

And finally, he summed up the various problems of prior notice the county might own a parking lot, and it would be possible for a person otherwise fully complying with state law to break the county ordinance by crossing a county-owned parking lot or sidewalk, without realizing that it was a violation.

With that, the two sides wrapped up and submitted their cases.

The Post-Game Show

As Don was standing in the lobby of the Supreme Court building, he was approached by a number of reporters, including David Kravets of the Associated Press.

Mr. Kravets' primary question to Don was a common-sense one: "so what?"  What difference does it make, he asked, if gun shows can't be held on county property when there's plenty of other venues for them to take place?

Don's reply, which didn't make it into the Associated Press story, summed up the issue quite well.

The fairground plays host to doll shows, quilt shows, car shows, and many other types of shows, fairs, and events, and the enthusiasts that attend those events are making use of publicly-owned property as a venue for their gatherings, as members of the public.  Telling firearms enthusiasts that they are not permitted to use public property, paid for by their own tax dollars, as a venue for a gathering around their field of interest, is to relegate them to the status of second-class citizen.

While Don specifically discounted the idea that gun owners would do anything illegal by making underground gun purchases in the absence of gun shows a comment that was lost on Mr. Kravets based on his article he pointed out that a gun show, where police officers provide security, and any member of the public or any branch of police may enter and inspect the practices, procedures, and transactions taking place there without a warrant or pretext, is a secure and reasonable venue for such transactions.  Preventing gun shows from taking place eliminates these benefits.

The discussion among the attorneys and others involved in the case revolved around the "tea leaf reading" exercise of trying to guess how the court will rule. Every nod, gesture, glance, and eye movement of the seven justices was recounted and analyzed.  While most attorneys refrain from guessing how a court will rule on an issue, those present generally felt very confident that if the justices follow the law, both the Nordykes and Great Western will chalk up victories.

What's Next?

Under the rules of the California Supreme Court, the justices have 90 days to render their opinion, meaning that the opinion could come within a week or two if they had already made up their minds based on the briefs previously submitted, or the full ninety days after Thursday the 5th.

If they rule against the gun shows, deciding that the local ordinances are not preempted by state law, the case then goes back to the federal Ninth Circuit court for a decision on the First Amendment issues, giving the shows another chance at a legal victory, the odds of which are significantly enhanced by the 1997 victory in that same court in Nordyke v. Santa Clara.

In the meantime, Russ & Sally Nordyke continue to work to make ends meet despite their lost show revenue and their mounting legal bills, holding shows in counties other than Alameda.  There is one this weekend, February 9-10, at the Santa Clara County Fairgrounds in San Jose.

If the counties win a legal victory, either in the California Supreme Court or in the Ninth Circuit, it could very well spell the end of gun shows in the state as Russ & Sally, and other show promoters like them, are driven out of business and into bankruptcy, or at least out of California, as county after county enacts the anti-gun-show ordinances that are waiting in the wings.

But if the gun shows prevail, it will mean not only that gun shows will resume in Alameda County, but also that the county itself, and thereby its taxpayers, will be on the hook for legal fees as well as damages owed to the Nordykes, thanks to the efforts of the Legal Community Against Violence and the gun-haters in the county's political hierarchy to destroy their business and livelihood.

Let's all hope for a just outcome to both of these cases.

 

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