DAILY JOURNAL - Forum Column
December 10, 2004

U.S. CONSTITUTION PROTECTS GUN SHOWS ON COUNTY LAND
By Donald E.J. Kilmer Jr.*

Dec. 15 is the anniversary of our Bill of Rights. Under 9th U.S. Circuit Court of Appeals law, individuals do not have standing to assert any rights under the second of those amendments to our Constitution.

I have never understood why private firearm ownership is controversial. For most of the people I talk to, either firearm ownership is a nonissue ("I don't personally own a gun but don't care if you do") or they feel passionately that every law-abiding citizen has a "right to keep and bear arms." My perception may be skewed, because of my work representing people in the gun culture and businesses associated with the firearm industry. I am also counsel for the plaintiffs in Nordyke v. King, 319 F.3d 1185 (2003), challenging a ban on gun shows at the Alameda County Fairgrounds.

Gun control as a nationwide political issue is obsolete. Presidential candidate John Kerry felt it necessary to brag about his gun collection, and he went out of his way to make sure his photo-op with bird hunters got on the nightly news. Why? Because even "anti-gun" politicians feel the need to appease voting gun owners, who number in the tens of millions.

Unfortunately for California gun owners, they live in a blue state with some of the strictest gun laws in the country. No surprise there. But one question that has never been answered satisfactorily is why people continue to accept the notion that gun owners are inchoate criminals just waiting to commit violent crimes.

Since I am familiar with the circumstances in Alameda County , where my clients are being denied the right to hold gun shows that have taken place at the public fairgrounds for three decades, consider these facts: In 1995, the number of homicides in Alameda County was 196. In 1999, the number of homicides was down to less than half that amount, at 85. Alameda passed its ordinance, which effectively ended gun shows at the fairgrounds, in September of 1999. Then, the number of homicides began to increase again.

Four years after Alameda County ran my clients out of town, the number of homicides in that county was up to 144.

This presents problems for gun control advocates like the Legal Community Against Violence. If homicides were decreasing with gun shows at the Alameda Fairgrounds and if homicides increased again without gun shows at the fairgrounds, then how did the local ordinance banning shows make the residents of Alameda County safer?

Most gun laws are directed at crime prevention. These laws do not address crimes committed with guns but try to regulate acquisition, possession and ownership of guns by otherwise law-abiding citizens for the alleged purpose of preventing (and detecting) crime.

Nobody makes the argument that use of a gun during a malum in se crime (murder, robbery, rape) constitutes any part of the "right to keep and bear arms." Even the National Rifle Association lobbies for "use a gun, go to jail" enhancements for dangerous criminals.

The Nordyke case is not only about gun control but also about preserving public forums for everyone's use, including members of the gun culture. The litigation so far has related solely to the plaintiffs' pretrial request for injunctive relief to stop enforcement of the ordinance. That relief has been denied. However, footnote 3 of the Nordyke opinion specifically left open the viability of a First Amendment "as applied" challenge to the Alameda ordinance.

Since the gun control advocates in Alameda County have conceded that the purpose of the ordinance (and its effect) was the elimination of gun shows at the fairgrounds, the plaintiffs in Nordyke are in pretty good shape for proceeding with that First Amendment "as applied" challenge.

Gun shows are a celebration of the gun culture. In its January 1999 report "Gun Shows: Brady Checks and Crime Gun Traces," the Bureau of Alcohol, Tobacco and Firearms states, "Shows that specialize in the sale and exchange of all types of firearms are frequent and popular events. According to the periodical 'Gun Show Calendar' (Krause Publications), 4,442 such shows are advertised for calendar year 1998. ... Most of the shows were promoted by approximately 175 organizations and individuals."

"Most promoters," the report continues, "are State and local firearm collector organizations with large memberships, including one group that has 28,000 members. The remainder of the gun shows were promoted by individual collectors and businesspeople. Ordinarily, gun shows are held in public arenas, civic centers, fairgrounds, and armories, and the vendor rents a table from the promoter for a fee ranging from $5 to $50. ... The majority of vendors who attend shows sell firearms and associated accessories and other paraphernalia. Examples of accessories and paraphernalia include holsters, tactical gear, knives, ammunition, clothing, food, military artifacts, books, and other literature. Some of the vendors offer accessories and paraphernalia only and do not sell firearms."

Mary King, the Alameda County supervisor who sponsored the gun show ban, admitted in a press release five years ago that the Nordykes had violated no federal or state laws while hosting gun shows at the fairgrounds. Indeed, the chief of police of Pleasanton (the city with jurisdiction over the fairgrounds) signed a declaration on behalf of the plaintiffs stating that gun shows, which were not held in conjunction with the annual county fair, were not a source of any crimes in his city.

Alameda County did have a problem with violence at their county fairs, but they "cured" it by the simple (and less restrictive) expedient of installing metal detectors at the entrance to the fairgrounds during the annual fair. So why are gun show promoters, patrons and vendors being denied access to public land to celebrate their culture, when the "evil to be addressed" has been remedied by these metal detectors?

The answer lies in the rest of King's statements about why she wants gun shows banned from the fairgrounds. Her press release asserted that (1) gun shows express and promote the gun culture and positive feelings about guns, (2) it was abhorrent for the county to provide a public forum for "the promotion of guns," and (3) the ordinance "is an effort to acknowledge, highlight and remove the county from any real or perceived participation in that scourge [gun violence]."

King denounced gun shows at the fairgrounds because she did not want "a facility owned by the residents of this county ... to provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism."

In an earlier statement, King urged, "Even if the courts strike us down, I think we have a moral obligation to pursue our philosophy in this instance."

When did philosophic differences with elected officials become a factor for regulating the use of public land?

Notwithstanding the 9th Circuit's shunning of the Second Amendment, gun shows are events where folks in the gun culture go to celebrate and advocate for that constitutional right according to their own interpretation. This fact makes gun shows a place where core political speech takes place on fundamental policy issues associated with our unique form of government.

The "right to keep and bear arms" is supposed to be a check on government power. 9th Circuit Judge Alex Kozinski wrote in his dissent in Silveira v. Lockyer, 328 F.3d 567 (9th Cir. 2002):

"All too many of the other great tragedies of history - Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few - were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late.

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

What the gun control advocates at Legal Community Against Violence never explain is how a free people is supposed to invoke this "doomsday provision" if the "right to keep and bear arms" has been rendered a vestigial organ of our Bill of Rights.