Gun show promoters Russell and Sally Nordyke of Glenn County are challenging a 1999 Alameda County law that prohibits bringing guns to or possessing them on county property.
The law makes an exception for firearms handled by an "authorized participant" in an event, so long as the gun is "secured to prevent unauthorized use" when not in the participant's possession.
The Nordykes claim in a federal constitutional lawsuit that the measure effectively prevents them from operating gun shows at the county fairgrounds in Pleasanton, in violation of the Second Amendment right to bear arms and First Amendment right of free speech.
But at a hearing before the 9th U.S. Circuit Court of Appeals today, Peter Pierce, a lawyer for the county, said gun shows could comply with the law if the unloaded firearms inspected by prospective buyers were secured to a solid base with cables several feet long.
The session was before a rarely convened 11-judge panel of the court, to which the Nordykes appealed a decision in which a three-judge panel said last year the law appeared to be constitutional.
Chief Circuit Judge Alex Kozinski picked up on Pierce's suggestion at the hearing, telling Donald Kilmer, a lawyer for the Nordykes, "They said you could do it.
"You won. Why don't you go home?" Kozinski said.
Kilmer initially demurred, saying, "No, we cannot conduct a gun show with guns tethered to a base."
But after Kozinski and fellow Judge Susan Graber persisted in questioning, Kilmer conceded, "I can imagine it would be possible to have a gun show that way."
"OK, case over. I would think you would be doing cartwheels," Kozinksi commented.
The Nordykes filed their lawsuit challenging the law in federal court in San Francisco in 1999.
Alameda County supervisors passed the law earlier that year in response to a 1998 shooting at the annual county fair in which eight people were injured.
The case has already been through the federal trial and appeals courts several times, most recently against the backdrop of landmark U.S. Supreme Court rulings in 2008 and 2010 holding that the right to bear arms applies to individuals and not just to state militias.
Kilmer told the court that today's hearing was the first time the county had offered the tethering solution, but Pierce argued the county had made similar statements in recent briefs and court proceedings.
The case also includes broader issues, such as whether gun show restrictions impair citizens' right to keep a gun at home for self-defense, and what legal standard should be used to evaluate that question.
The hearing also touched on historical understandings of citizens' rights to buy guns at the time of medieval English common law, in 1791 when the Second Amendment was ratified, and in 1868 when the 14th Amendment was approved. The 14th Amendment's due process guarantee was the basis for a 2010 Supreme Court decision that the Second Amendment applies to actions by state and local governments as well as by the federal government.
Pierce urged the panel to avoid ruling on the broader issues by following the judicial tradition of deciding cases narrowly when possible.
In addition to the county's proposal that guns in shows at the fairgrounds could be tethered, state law requires that weapons displayed at gun shows must be unloaded and made nonfunctional with plastic or nylon straps.
