Court considers county's right to regulate guns U.S. Court of Appeals

A divided federal appeals court wrestled Thursday with potentially the most important gun case in its history, a dispute over a firearms ban at the Alameda County Fairgrounds that has expanded into a constitutional battle over state and local authority to regulate gun possession.

Some judges on an 11-member panel of the Ninth U.S. Circuit Court of Appeals appeared to agree with gun-rights advocates that the Second Amendment right to keep and bear arms, recently interpreted by the U.S. Supreme Court to protect an individual's right to own guns, is binding on states and can be used to challenge the county ordinance.

Others noted that the high court has never overturned its own 19th century rulings that said the Second Amendment applies only to the federal government. And one judge suggested the court should uphold the ordinance as a valid public safety measure without deciding the constitutional issue.

Even if state and local governments are constitutionally required to let residents own guns for self-defense, "it doesn't seem to affect" the Alameda County law, said Judge Susan Graber.

County supervisors outlawed firearms on all county property, including the fairgrounds in Pleasanton, in 1999, a year after 16 people were injured in a melee at the fair in which shots were fired.

The ordinance did not expressly prohibit gun shows at the fair, but none has been held since 1999. Two gun show promoters filed the suit now before the court, claming the ban violated free speech as well as the Second Amendment.

Last year, the Supreme Court overturned a handgun ban in the federal enclave of Washington, and ruled that the Second Amendment protects gun ownership. But the court did not say whether the amendment also applies to the states.

The justices also left room for firearms regulation, saying government could prohibit guns in "sensitive places" and forbid ownership by certain people, such as felons.

Ruling on the Alameda County ban in April, a three-judge Ninth Circuit panel became the only court in the nation to rule that Second Amendment rights are binding on state and local governments.

But the panel also said the county could reasonably conclude that its property was among the "sensitive places" where guns could be outlawed.

Both parts of the ruling were scrubbed from the books when the full court voted in July to order a new hearing before the 11-judge panel that convened Thursday.

The county's lawyer, Sayre Weaver, argued that the Supreme Court's 19th century precedents on the scope of the Second Amendment remain binding and can be overturned only by the high court, which is considering addressing the issue in an Illinois case.

But Chief Judge Alex Kozinski suggested that the Supreme Court had discarded its 19th century rulings when it started applying other Bill of Rights protections to the states in 1929.

Judge Richard Tallman said the county's position would allow California, one of a handful of states without a gun-rights clause in its own Constitution, to forbid gun possession in the home. Judge Diarmuid O'Scannlain, author of the panel ruling in April, noted that the county was at odds with Attorney General Jerry Brown, who has filed arguments in the Illinois case supporting Second Amendment rights in the states.

Donald Kilmer, lawyer for the gun show promoters, said the county law violates the right to possess weapons and is unnecessary for public safety. "Fairgrounds ... are just not sensitive places," he said.

But Kozinski said there must be other places, such as a stadium or a shopping center parking lot, that would be suitable for gun shows. "What's so special about a fairgrounds?" he asked.