FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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 No. 07-15763

FOURNIER; VIRGIL MCVICKER, D.C. No.

Plaintiffs-Appellants,  CV-99-04389-MJJ

v. OPINION

MARY V. KING; GAIL STEELE;

WILMA CHAN; KEITH CARSON;

SCOTT HAGGERTY; COUNTY OF

ALAMEDA; COUNTY OF ALAMEDA

BOARD OF SUPERVISORS,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued En Banc March 19, 2012

Submitted May 24, 2012

San Francisco, California

Filed June 1, 2012

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Diarmuid F. O’Scannlain,

Michael Daly Hawkins, Susan P. Graber, Ronald M. Gould,

Richard C. Tallman, Consuelo M. Callahan,

Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.

6163
Opinion by Judge Graber;

Concurrence by Judge O’Scannlain;

Concurrence by Judge Ikuta

6164 NORDYKE v. KING
COUNSEL

Donald Kilmer, Law Offices of Donald Kilmer, San Jose,

California, and Don B. Kates, Battleground, Washington, for

the plaintiffs-appellants.

T. Peter Pierce and Sayre Weaver, Richards, Watson & Gershon, Los Angeles, California, for the defendants-appellees.

John M. Grenfell, Pillsbury Winthrop Shaw Pittman LLP, San

Francisco, California; Jordan Eth, Morrison & Foerster LLP,

San Francisco, California; Jason Andrew Davis, Davis &

Associates, Mission Viejo, California; C.D. Michel, Michel &

Associates, P.C., Long Beach, California, and S.P. Halbrook,

Fairfax, Virginia; Herbert W. Titus, William J. Olson, P.C.,

Vienna, Virginia; Jeffrey S. Bucholtz, King & Spalding LLP,

Washington, D.C.; and Alan Gura, Gura & Possessky, PLLC,

Alexandria, Virginia, for the amici curiae.

NORDYKE v. KING 6165
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”) (“summariz[ing]

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 (2008). Even more recently, the Court held that

this right is fundamental and is incorporated against states and

municipalities under the Fourteenth Amendment. McDonald

v. City of Chicago, 130 S. Ct. 3020 (2010).

Plaintiffs Russell and Sallie Nordyke, along with other co1

See also Nordyke v. King, 229 F.3d 1266 (9th Cir. 2000) (“Nordyke I”);

Nordyke v. King, 44 P.3d 133 (Cal. 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). 

2We 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 (2004); Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 54 (1983); Johnson v. Robison, 415 U.S. 361, 375

n.14 (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 (1955) (“Evils

in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think.”). 

6166 NORDYKE v. KING
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

NORDYKE v. KING 6167
only firearms that they lawfully could sell under federal and

state statutes.

In its initial and supplemental briefing before the threejudge 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.

[1] 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 (“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 (2008) (observing, in

the context of an equal protection claim against a governmental employer, that “there is a crucial difference, with respect

to constitutional analysis, between the government exercising

the power to regulate or license, as lawmaker, and the govern6168 NORDYKE v. KING
ment acting as proprietor, to manage its internal operation”

(internal quotation marks and brackets omitted)); United

States v. Kokinda, 497 U.S. 720, 725 (1990) (recognizing a

distinction, for First Amendment purposes, between governmental exercise of the “power to regulate or license, as lawmaker” and governmental actions taken in its role “as

proprietor, to manage its internal operations” (internal quotation marks and brackets omitted)). 

[2] 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.

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

1Having 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. 

NORDYKE v. KING 6169
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 threejudge 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 6168, 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 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

2All 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. 214, 219 &

n.6 (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. 

6170 NORDYKE v. KING
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. RykoffSexton, 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.

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 6168, 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

6168, actually burdens gun shows, or the nature of the fit

between this burden and the government’s alleged purpose to

NORDYKE v. KING 6171
“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 6172, 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. 

6172 NORDYKE v. KING