Forums / Political & Legal / Citizens can challenge state, local gun laws - 9th Circus Court of Appeals gets it Right!

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Bob Egelko, Chronicle Staff Writer

Tuesday, April 21, 2009

(04-20) 19:10 PDT San Francisco -- A federal appeals court ruled Monday that private citizens can challenge state and local gun laws by invoking the constitutional right to bear arms - the first such ruling in the nation - but upheld a ban on firearms at gun shows at the Alameda County Fairgrounds in Pleasanton.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco followed last year's landmark Supreme Court decision that the Constitution's Second Amendment protects an individual's right to possess guns for self-defense.

The high court struck down a handgun prohibition in Washington, D.C., a federal enclave, and did not say whether the Second Amendment also applied to state and local laws. Nor did the court spell out the extent of the government's authority to regulate firearms, although it said guns could be excluded from "sensitive places such as schools and government buildings."

National Rifle Association lawsuits in the aftermath of the ruling prompted some local governments and agencies to abandon restrictive gun laws, including a ban on possession of guns and ammunition in public housing that the San Francisco Housing Authority dropped in January. But no court had ruled on the scope of the Second Amendment until Monday.

The case was a challenge by gun show promoters to a 1999 ordinance that banned firearms on all Alameda County property, including the fairgrounds, where 16 people had been injured in a melee that included gunfire the previous year. The court could have decided the case with its conclusion that the ban was a reasonable safety measure, without addressing the Second Amendment, but opted for a broader ruling.

While a few sections of the Bill of Rights apply only to the federal government, amendments that protect fundamental rights - including the Second Amendment - can be enforced against the states, said Judge Diarmuid O'Scannlain in the 3-0 decision.

"The right to bear arms is deeply rooted in the history and tradition of the republic," O'Scannlain said, citing selected passages from speeches and writings during the colonial and post-Revolutionary War period and the years leading up to the Civil War. "It is a means to protect the public from tyranny" as well as "to protect the individual from threats to life or limb."

Judge Ronald Gould, in a separate opinion, pictured a gun-wielding citizenry defending 21st century America against invaders or terrorists.

"That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived," he said.

The judges concluded, however, that the Supreme Court's reference to exclusion of guns from "sensitive places" allows a county to ban firearms from its property. The ordinance "does not meaningfully impede the ability of individuals to defend themselves in their homes," O'Scannlain said, and county officials are entitled to conclude that guns sold at shows on the fairgrounds could be dangerous.

Donald Kilmer, lawyer for the gun show promoters, said they have not yet decided whether to appeal. He said other Bay Area counties - including San Mateo, Marin, Santa Cruz and Sonoma - have emulated the Alameda County ban, despite what he described as a lack of evidence linking the gun shows to any crimes or violence.

"The county was never able to point to any problems," Kilmer said. "Isn't it a good idea for gun shows, if they're going to take place, to be on public property" patrolled by law enforcement?

The county's lawyer was unavailable for comment. Sam Hoover, an attorney with Legal Community Against Violence, which supports gun regulation, said the court had needlessly opened the door to challenges of other state and local laws.

"We already have a patchwork, piecemeal system of gun regulation in the United States," he said. "This is going to make it that much harder to stem the tide of gun deaths and injuries."

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