Alameda County gun ban may be unconstitutional

SAN JOSE, Calif. – The right to display firearms at gun shows on county fairgrounds is protected by the First Amendment of the U.S. Constitution, according to a San Francisco federal judge in an order issued this week.

The Sept. 27 ruling was part of the Nordyke v. King, (Case. No.: CV-99-04389) suit brought by gun hobbyists and gun show advocates Russell and Sally Nordyke. The Nordykes and a collection of other plaintiffs including the Madison Society, are suing Alameda County and the Board of Supervisors claiming their 1999 ordinance prohibiting guns on county property effectively bans gun shows and other legal displays of firearms in violation of constitutionally protected freedom of speech rights.

“The county could not have banned gun shows outright, they shouldn’t be allowed to ban them under the pretext of ‘public safet’.” Don Kilmer, the San Jose-based attorney representing the Nordykes said. “Gun Shows are cultural events and are protected by the First Amendment and the California Constitution’s Freedom of Expression Clause.”

In denying Alameda County’s motion to dismiss the case, U.S. District Court Judge Martin J. Jenkins agreed with the Nordykes that having guns at gun shows can be constitutionally protected “expressive conduct” – a form of free speech.

Judge Jenkins also said that the Nordykes have a viable claim that Alameda’s ordinance does, in fact, infringe on expressive conduct. The judge listed seven forms of protected speech that Alameda County’s ordinance may me infringing upon with its ban:

1. Advocacy that the Constitution’s Second Amendment should be interpreted to protect the right for an individual to bear arms.
2. Conveying a message that possession of guns is patriotic.
3. Celebrating and expressing solidarity or membership in the gun culture.
4. Expressing friendliness to gun owners.
5. Expressing support for the National Rifle Association’s or similar groups’ interpretations of the Second Amendment.
6. Displaying guns for educational, patriotic, political or commercial purposes.
7. Demonstration of support for private ownership of firearms.

Additionally, the judge found that the ordinance not only bans gun shows, it may ban ROTC or military veteran ceremonies which require firearms. For example, an American Legion 21-gun salute for a war hero at a funeral ceremony also is banned if the services are on Alameda County property.

“The County has admitted all along that its target was gun shows and the activities that take place at them.” Kilmer said from his San Jose law office. “Now its policy must stand up to fundamental, well-established rights that every American has under the First Amendment.”

American politicians from both parties routinely carry guns for political reasons. In the most recent presidential primaries, Sen. John Kerry invited the press to go pheasant hunting with him in October 2003 in the early caucus state of Iowa, knowing that published photos of him toting a rifle would attract the vote of gun owners.

“John Kerry’s photo-op aimed at hunters during the last election was the archetypical example of conveying a symbolic message by holding something in your hands, and letting your conduct speak for you.” Kilmer said.

With Judge Jenkins’ denial of Alameda County’s motion to dismiss, the case is proceeding to the trial level where Alameda County will have to defend its ordinance. Alameda County is represented by the Los-Angeles based law firm of Richards, Watson & Gershon.