Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012). · Go Syfert
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Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012). Cases Citing This Book View Copy Cite
84 citation events (84 in the last 25 years) across 20 distinct courts.
Strongest positive: B & L Prods., Inc. v. Gavin Newsom, 700 F. Supp. 3d 894 (C.D. Cal. 2023)
Treatment trajectory · 2012 → 2026 · click a year to view as-of
2012 2019 2026
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At page 1044 Analyzing ordinance restricting firearm possession on county property10 citing cases“every person who brings onto or possesses on county property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.”2 citing courts quote it · passage not found verbatim in the opinion (81%) · 9 listed here
  • John Teixeira v. Cnty. of Alameda, 873 F.3d 670 (9th Cir. 2017).published 3 cites
    The Supreme Court’s assurance in this regard guided our analysis in Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir. 2012) (en banc), in which we upheld an Alameda County ordinance that regulated the manner of displaying firearms at gun show…
  • GeorgiaCarry.org, Inc. v. U.S. Army Corps of Engineers, 212 F. Supp. 3d 1348 (N.D. Ga. 2016).published
    “[e]very person who brings onto or possesses on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor”
  • Bauer v. Harris, 94 F. Supp. 3d 1149 (E.D. Cal. 2015).published
    Although the Ninth Circuit has left determining the scope of the Second Amendment “for another day,” Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir.2012) (en banc), that court holds that, “[t]o determine whether a challenged law falls outsi…
  • GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 38 F. Supp. 3d 1365 (N.D. Ga. 2014).published
    “[e]very person who brings onto or possesses on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor”
  • State v. Jorgenson, 312 P.3d 960 (Wash. 2013).published 2 cites
    (declining to determine what type of heighted scrutiny applies to laws that substantially burden Second Amendment rights)
  • United States v. Parker, 919 F. Supp. 2d 1072 (E.D. Cal. 2013).published 2 cites
    However, in a later en banc review of the same case in Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir.2012), the Ninth Circuit used a general “rule of thumb” which did not direct the standard of review to be used in ensuing cases.
  • Ronald Koons v. Attorney Gen. New Jersey, No. 23-1900 (3d Cir. Sept. 17, 2025).published
    See United States v. Class, 930 F.3d 469 , 464 (D.C. Cir. 2019); Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir. 2012) (en banc).
  • Ronald Koons v. Attorney Gen. New Jersey, 156 F.4th 210 (3d Cir. 2025).published 2 cites
    See United States v. Class, 930 F.3d 469, 464 (D.C. Cir. 2019); Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir. 2012) (en banc).
  • Robert Mahoney v. City of Seattle, 871 F.3d 873 (9th Cir. 2017).published
    The Court concluded that the “government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employe…
At page 1045 Distinction between regulatory and proprietary government action5 citing cases“the level of scrutiny applied to gun control regulations depends on the regulation's burden on the second amendment right to keep and bear arms.”1 citing court quotes it · 4 listed here
  • City of Seattle v. Evans, 366 P.3d 906 (Wash. 2015).published
    In Heller II, the court found that intermediate scrutiny is appropriate where laws “ ‘do[ ] not severely limit the possession of firearms.’ ” 670 F.3d at 1257 (alteration in original) (quoting Marzzarella, 614 F.3d at 97 ). ¶71 Although ou…
  • Clifford Tyler v. Hillsdale Cnty. Sheriff's Dep't, 775 F.3d 308 (6th Cir. 2014).published 2 cites
    Several Ninth Circuit judges would adopt an approach that expressly considers “the extent of the regulation’s burden on Second Amendment rights.” Nordyke v. King, 681 F.3d 1041, 1045 (9th Cir. 2012) (en banc) (O’Scannlain, J., concurring i…
  • Fotoudis v. City of Honolulu, 54 F. Supp. 3d 1136 (D. Haw. 2014).published 2 cites
    But Heller “expressly left for ‘future evaluation’ the precise level of scrutiny to be applied to laws trenching upon Second Amendment rights.” United States v. Booker, 644 F.3d 12, 22 (1st Cir.2011) (citing Heller, 554 U.S. at 626, 634-35…
  • Edward Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014).published
    B Having concluded that carrying a gun outside the home for self-defense comes within the meaning of “bearing] Arms,” we ask whether San Diego County’s “good cause” permitting requirement “infringe[s]” the right. 1 a To determine what cons…
At page 1043 Incorporation of second amendment rights against states4 citing cases“recognized an individual right under the Second Amendment ... [and has] held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment”1 citing court quotes it
  • Silvester v. Harris, 41 F. Supp. 3d 927 (E.D. Cal. 2014).published 2 cites
    See McDonald v. City of Chicago, 561 U.S. 742 , 130 S.Ct. 3020, 3042 , 177 L.Ed.2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570, 595 , 128 S.Ct. 2783 , 171 L.Ed.2d 637 (2008); Peruta v. County of San Diego, 742 F.3d 1144, 1149-…
  • People v. Brown, No. C066262M (Cal. Ct. App. July 21, 2014).published
    (Id. at p. 479.) The Kasler court said, “ ‘ “[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protec…
  • People v. Brown, 227 Cal. App. 4th 451 (Cal. Ct. App. 2014).published
    (Kasler, at p. 479.) The Kasler *470 court said, “ ‘ “[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fimdamental constitutional rights must be upheld against equ…
  • Nichols v. Brown, 945 F. Supp. 2d 1079 (C.D. Cal. 2013).published
    “recognized an individual right under the Second Amendment ... [and has] held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment”
Other citing cases12 with no pin cite or quoted language on record
Show 2 more citing cases
Russell Allen NORDYKE Ann Sallie Nordyke, dba TS Trade Shows Jess B. Guy Duane Darr William J. Jones Daryl N. David Tasiana Westyschyn Jean Lee Todd Baltes Dennis Blair R.L. Adams Roger Baker Mike Fournier Virgil McVicker
v.
Mary V. KING Gail Steele Wilma Chan Keith Carson Scott Haggerty County of Alameda County of Alameda Board of Supervisors
No. 07-15763.
Docket on CourtListener (RECAP)
Court of Appeals for the Ninth Circuit.
Jun 1, 2012.
Published opinion
681 F.3d 1041
2012 WL 1959239
2012 U.S. App. LEXIS 11076
Donald Kilmer, Law Offices of Donald Kilmer, San Jose, CA, and Don B. Kates, Battleground, WA, for the plaintiffs-appellants., T. Peter Pierce and Sayre Weaver, Richards, Watson & Gershon, Los Ange-les, CA, for the defendants-appellees., John M. Grenfell, Pillsbury Winthrop Shaw Pittman LLP, Jordan Eth, Morrison & Foerster LLP, San Francisco, CA; Jason Andrew Davis, Davis & Associates, Mission Viejo, CA; C.D. Michel, Michel & Associates, P.C., Long Beach, CA, and S.P. Halbrook, Fairfax, VA; Herbert W. Titus, William J. Olson, P.C., Vienna, VA; Jeffrey S. Bucholtz, King & Spalding LLP, Washington, D.C.; and Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, for the amici curiae.
Callahan, Diarmuid, Gould, Graber, Hawkins, Ikuta, Kozinski, Pregerson, Reinhardt, Scannlain, Smith, Tallman.
Cited by 61 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 76%
Citer courts: Second Circuit (1) · C.D. California (1)

Lead Opinion

Opinion by Judge GRABER; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge IKUTA.

OPINION

GRABER, Circuit Judge:

The law and the facts relevant to Plaintiffs’ Second Amendment claim have evolved during the 12 years since this case first reached our court. See Nordyke v. King, 644 F.3d 776, 781-82 (9th Cir.2011) (“Nordyke V”) (“summarizing] this case’s long and tangled procedural history”).[1] Under the present law and the present facts, we affirm the district court’s decision to dismiss the Second Amendment claim.[2]

Recently, the Supreme Court recognized an individual right under the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Even more recently,[*1044] the Court held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment. McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Plaintiffs Russell and Sallie Nordyke, along with other co-plaintiffs, seek to conduct gun shows at the Alameda County fairgrounds. In 1999, Alameda County enacted an ordinance that provides in relevant part:

Possession of Firearms on County Property Prohibited
(b) Misdemeanor. Every person who brings onto or possesses on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.
(f) Exceptions. Subsection 9.12.120(b) does not apply to the following:
(4) The possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

Alameda County, Cal., Ordinance Code § 9.12.120.

Plaintiffs challenged that ordinance as a violation of their Second Amendment rights. It is undisputed that Plaintiffs are legally authorized to sell firearms and that, if allowed to conduct a gun show on County property, they would offer for sale only firearms that they lawfully could sell under federal and state statutes.

In its initial and supplemental briefing before the three-judge panel, and again during oral argument before the en banc court, counsel for Alameda County gave the County’s current, official interpretation of its ordinance. The County now avers that a gun show is an “event” within the meaning of exception (f)(4). Moreover, the County affirmatively asserts that Plaintiffs, when conducting a gun show, may offer firearms for sale with the requirement that, when a “firearm is not in the actual possession of the authorized participant,” the firearm must be “secured to prevent unauthorized use.” Id. The County represents that a sturdy cable attaching the firearm to a fixture, such as a table, would suffice — much as cell phones, cameras, and other attractive items routinely are displayed for sale. The County further represents that buyers may physically inspect properly secured firearms.

We hold the County to its interpretation of the ordinance, and its reading is a reasonable one. With that interpretation in mind, Plaintiffs cannot state a viable Second Amendment claim. Thus read, the ordinance regulates the sale of firearms at Plaintiffs’ gun shows only minimally, and only on County property. No matter how broad the scope of the Second Amendment — an issue that we leave for another day — it is clear that, as applied to Plaintiffs’ gun shows and as interpreted by the County, this regulation is permissible. See Heller, 554 U.S. at 626-27, 128 S.Ct. 2783 (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms.”); see also Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (observing, in the context of an equal protection claim against a governmental employer, that[*1045] “there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operation” (internal quotation marks and brackets omitted)); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (recognizing a distinction, for First Amendment purposes, between governmental exercise of the “power to regulate or license, as law-maker” and governmental actions taken in its role “as proprietor, to manage its internal operations” (internal quotation marks and brackets omitted)).

Should the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices. But in the present case, they cannot succeed, no matter what form of scrutiny applies to Second Amendment claims.

AFFIRMED.

1

See also Nordyke v. King, 229 F.3d 1266 (9th Cir.2000) ("Nordyke I ’’); Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133 (2002) ("Nordyke II"); Nordyke v. King, 319 F.3d 1185 (9th Cir.2003) {‘‘Nordyke III”); Nordyke v. King, 563 F.3d 439 (9th Cir.2009) {"Nordyke IV"), vacated, 611 F.3d 1015, 1015 (9th Cir.2010) (en banc).

2

We affirm the district court's ruling on the First Amendment for the reasons given by the three-judge panel. See Nordyke V, 644 F.3d at 791-94. As to the Nordykes’ equal protection claim, because the ordinance does not classify shows or events on the basis of a suspect class, and because we hold that the ordinance does not violate either the First or Second Amendments, rational basis scrutiny applies. See Locke v. Davey, 540 U.S. 712, 720 n. 3, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 54, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The equal protection claim fails because Alameda County could reasonably conclude that gun shows are more dangerous than military reenactments. This is enough to satisfy rational basis scrutiny. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ("Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think.”).

Concurrence

O’SCANNLAIN, Circuit Judge, joined by TALLMAN, CALLAHAN, and IKUTA, Circuit Judges,

concurring in the judgment:

Twelve years into this appeal, the County of Alameda now represents that its ordinance presents no barrier to conducting gun shows on its property. Contrary to its previous assertions, the County now concedes that such an event can be held with firearms present and available for meaningful physical inspection by potential buyers.[1]

The County’s sweeping concessions— made at oral argument before the en banc court — change the game and make this a far different case from the one argued before the three-judge panel. Plaintiffs’ Second Amendment challenge was based solely on their inability to conduct a successful gun show on county property. See Nordyke v. King, 644 F.3d 776, 781 n. 4, 786-87 & n. 10 (9th Cir.2011). As gun shows may now be held on county property with only the restrictions described in the majority opinion, see majority op. at 1044-45, I agree with the majority that Plaintiffs’ Second Amendment claim cannot succeed.

But I cannot agree with the majority’s approach, which fails to explain the standard of scrutiny under which it evaluates the ordinance.[2] Rather than leave the level of scrutiny in doubt, I would expressly adopt the measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation’s burden on Second Amendment rights. See Nordyke, 644 F.3d at 782-88 (explaining that the level of scrutiny applied to gun control regulations depends on the regulation’s[*1046] burden on the Second Amendment right to keep and to bear arms); cf. Heller v. District of Columbia, 670 F.3d 1244 (D.C.Cir.2011) (developing framework for reviewing gun control regulations with reference to the extent of the regulation’s burden on Second Amendment rights); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011) (same); United States v. Masciandaro, 638 F.3d 458 (4th Cir.2011) (same); United States v. Chester, 628 F.3d 673 (4th Cir.2010) (same); United States v. Reese, 627 F.3d 792 (10th Cir.2010) (same); United States v. Marzzarella, 614 F.3d 85 (3d Cir.2010) (same).

In light of the breadth of the County’s concessions at oral argument, I am satisfied that the ordinance, as applied to Plaintiffs’ gun shows and as now interpreted by the County, survives this standard. See Nordyke, 644 F.3d at 783-88. I therefore agree that the district court’s denial of leave to amend should be affirmed. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998); Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir.1986).

I concur in the judgment.

1

Having made these concessions, the County is bound to them. Should the County at any time fail to apply the ordinance as it represented it at oral argument, Plaintiffs may of course bring suit. Kreisner v. City of San Diego, 1 F.3d 775, 787 n. 8, 789 n. 10 (9th Cir.1993). And, of course, if we have misinterpreted the County’s representations, either party may file a petition for rehearing. See Fed. R.App. P. 35.

2

All that is clear from the majority's approach is that the majority cannot be evaluating the ordinance under strict scrutiny. Strict scrutiny requires the government to show that it has taken the least restrictive means to serve a compelling government interest. It is an exceptionally difficult standard to satisfy. See Bernal v. Fainter, 467 U.S. 216, 219 & n. 6, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984). Here, the parties have not even had an opportunity to build a factual record regarding the County’s new interpretation of its ordinance, so it is impossible to say at this stage that the County could establish that its ordinance would satisfy a least-restrictive-means analysis.

Concurrence

IKUTA, Circuit Judge, with whom CALLAHAN, Circuit Judge,

joins, concurring in the judgment:

Given the procedural posture of this case, the majority cannot affirm the district court’s ruling unless it would be futile to allow Plaintiffs to amend their complaint because Plaintiffs cannot state a claim for a Second Amendment violation as a matter of law. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988). Rather than applying a constitutional standard of review to Plaintiffs’ Second Amendment challenge, see maj. op. at 1044 — 45, the majority applies the ever popular “rule of thumb” standard, concluding that an amendment of Plaintiffs’ complaint is futile because the majority has the strong impression that County’s newly interpreted ordinance is not sufficiently burdensome to violate the Second Amendment. The majority reaches this conclusion notwithstanding the lack of any basis in the record to ascertain how the requirement that firearms be tethered to a table, maj. op. at 1044-45, actually burdens gun shows, or the nature of the fit between this burden and the government’s alleged purpose to “promote the public health and safety by contributing to the reduction of gunshot fatalities and injuries in the County.” Alameda County Mun.Code § 9.12.120(a).

Rather than take this rough-justice approach, we should decide this case by identifying the correct legal standard and only then determining whether Plaintiffs could amend their complaint to state a Second Amendment claim. I agree with Judge O’Scannlain that the County’s “regulation, as applied to Plaintiffs’ gun shows and as now interpreted by the County, survives the relevant standard,” J. O’Scannlain concurrence at 1046, which is the intermediate scrutiny standard adopted in Heller v. District of Columbia, 670 F.3d 1244, 1252-53 (D.C.Cir.2011), United States v. Chester, 628 F.3d 673, 683 (4th Cir.2010), United States v. Reese, 627 F.3d 792, 800-02 (10th Cir.2010), and United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir.2010), and the substantial burden standard adopted by the original three-judge panel. See Nordyke v. King, 644 F.3d 776, 782-88 (9th Cir.2011). Therefore, I join Judge O’Scannlain’s concurrence.