Nordyke v. King: The Majority View
In Nordyke v. King , Judge O’Scannlain wrote the majority opinion for the Ninth Circuit upholding a county ordinance prohibiting the possession of firearms on county property. The challengers had argued that the ordinance unconstitutionally prevented them from holding gun shows on county property.
The court began by rejecting the argument that all laws burdening gun possession must receive strict scrutiny review—the highest possible level of review. After examining cases involving abortion, content-neutral speech regulations, election laws and the right to marry, the court concluded that only those laws that substantiallyburden the right to possess firearms for self-defense purposes would receive heightened scrutiny. The court did not reach the question of what standard of review should apply to laws that pass this threshold, because plaintiffs’ claim did not satisfy this requirement.
In this context, Judge O’Scannlain considered whether the challenged law left open reasonable alternative means for individuals to exercise their right to keep and bear arms. Clearly, he said, restricting opportunities to purchase firearms at gun shows on county land did not interfere with numerous other available venues for obtaining firearms, even if these other avenues involved some increased cost or inconvenience to some would-be purchasers.
Judge Gould’s Concurrence
Judge Gould concurred with the majority’s bottom line but strongly disputed its reasoning. Using free speech doctrine as his guide, he argued that gun control laws should be subject to heightened scrutiny only when they are directed at restricting the core purposes of the Second Amendment, which include possessing firearms for the defense of one’s home, and for “resistance of tyrannous government and protection of country.”
All other gun regulations, he argued, should be reviewed under a mid-level, but deferential, reasonableness standard of review, somewhat akin to that used to evaluate content-neutral, time, place, and manner speech regulations. To Judge Gould, the substantiality of the burden on the right was entirely irrelevant to the standard of review to be applied.
These competing opinions also clashed on the meaning of the non-exhaustive list of longstanding, presumptively constitutional gun control regulations detailed in Heller (and discussed in our first column in this series.) Judge O’Scannlain maintained that the Supreme Court intended this list merely to describe laws that it presumed would survive the appropriate level of constitutional scrutiny—whatever that standard might be.
By contrast, Gould maintained that the list demonstrated that many gun control regulations should be subject to deferential review. He argued that the very existence of the Court’s list is inconsistent with O’Scannlain’s contention that laws substantially burdening the right to possess firearms for self-defense purposes must receive some form of heightened scrutiny. Surely, a law prohibiting felons from possessing firearms substantially burdened their right to keep and use guns to defend themselves, and yet the Court in Heller stated that laws banning felons from possessing firearms are presumptively constitutional. Under O’Scannlain’s analysis, such laws would be presumptively unconstitutional because they substantially burden the right to self-defense and must be justified under rigorous review.
The Ninth Circuit has decided to review the Nordyke decision en banc. We endorse this en banc review—as we find that there are some serious unanswered questions in both the O’Scannlain and Gould approaches. And, we hope that the Ninth Circuit appreciates the limits of both the O’Scannlain and Gould frameworks when it resolves the case en banc.
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