The California Supreme Court
Hears Two Gun Show Cases
by Michael Pelletier
February 7, 2002
On Tuesday, February 5, 2002, the seven-member
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
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
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 summaries and certified questions for each
case, as published by the clerks of the Supreme Court, are as follows:
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.
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,
- "Does state law regulating the sale
of firearms and gun shows preempt a municipal ordinance prohibiting gun
and ammunition sales on county property?" and
- "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?"
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.
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
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
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.
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.
Implied preemption gets into the often murky
area of legislative intent. There is a three-prong test that is used:
If the answer to any one of these questions is
"yes," then the local regulation is preempted.
- Has the state legislature so fully occupied
the field as to render local regulation inappropriate?
- Has the state government only partially
occupied the field, but on such an important topic that local regulations
can't be tolerated?
- 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
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.
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.
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
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
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
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
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
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
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
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
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.
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
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