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Judges may allow gun shows at Alameda County Fairgrounds

Guns would have to be tethered, unloaded

Gun shows could be headed back to the Alameda County Fairgrounds, with unloaded guns on tethers.

At a hearing this week on the long-running battle over gun shows at the fairgrounds in Pleasanton, a federal appeals court appeared headed toward a narrow ruling rejecting two gun show promoters' constitutional challenge to county restrictions on firearms at the facility.

The promoters, Russell and Sally Nordyke, have been trying to overturn a 1998 Alameda County law banning guns from the fairgrounds.

The Nordykes filed their lawsuit challenging the law in federal court in San Francisco in 1999, following the passing of the law, which came in response to a 1998 shooting at the fair in which eight people were injured.

The idea of allowing guns on tethers surfaced near the end of the hearing before the 9th U.S. Circuit Court of Appeals in San Francisco after a lawyer for promoters Russell and Sally Nordyke conceded "it would be possible to have a gun show" in a revised format proposed by the county.

In the modified format, unloaded guns displayed to prospective buyers would be tethered by cables several feet long to a secure base. If the appeals court concludes there is no legal barrier to holding gun shows at the fairgrounds, it could dismiss the Nordykes' appeal without have to rule on complex broader issues of Second Amendment rights raised by the case.

The Nordykes, who live in Glenn County, claim 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.

At a hearing before the Court of Appeals on Monday, 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, where the Nordykes brought their appeal of a ruling last year.

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 panel will issue a written ruling at a later date.

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.

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.

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