Nordyke v. King

Opinion by Judge O’SCANNLAIN; Concurrence by Judge GOULD.

O’SCANNLAIN, Circuit Judge.

We must decide whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments.

I

Russell Nordyke and Sallie Nordyke (dba TS Trade Shows) (“Nordyke”) have been promoting gun shows at the Alameda County Fairgrounds (“Fairgrounds”) since 1991. The Fairgrounds are located on unincorporated county land in the City of Pleasanton. The exhibitors at the show include sellers of antique (pre-1898) firearms, modern firearms, ammunition, Old West memorabilia, and outdoor clothing. In addition, the show hosts educational workshops, issue groups, and political organizations.

In August 1999, Alameda County (“County”) passed an ordinance making illegal the possession of firearms on County property (“Ordinance”). In pertinent part, the Ordinance reads: “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.” Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows, such as Nordyke’s, held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.

Seeking to prevent the Ordinance’s enforcement, Nordyke brought suit against the County in the United States District Court for the Northern District of California. Nordyke applied for a temporary restraining order, claiming that the Ordinance was preempted by state gun regulations and that it violated the First Amendment’s free speech guarantee. The district court judge treated the application as one for a preliminary injunction and denied it. The judge noted that under either test for a preliminary injunction, a litigant must at least show a fair chance of success on the merits and ruled that Nordyke had failed to do so. Because he concluded that Nordyke had little chance of success on the merits, he did not reach the balance of the hardships determination. Nordyke then filed this timely interlocutory appeal.

We certified Nordyke’s preemption claim to the California Supreme Court asking the following question: “Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property”? Nordyke v. King (“Nordyke I”), 229 F.3d 1266, 1267 (9th Cir.2000).

The California Supreme Court granted certification and ultimately held, “whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to that extent, may ban possession of guns on its property.” Nordyke v. King (“Nordyke II ”), 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133, 138 (2002). Pursuant to Rule 29.5 of the California Rules of Court we follow the answer provided by the California Supreme Court to the certified question. We therefore conclude that the district court properly determined that Nordyke’s preemption claim was without merit.

Nevertheless, we must still decide Nor-dyke’s remaining constitutional claims. Nordyke urges, under the First Amendment, that the Ordinance impermissibly infringes upon constitutionally protected speech rights.

Nordyke also makes a Second Amendment challenge to the Ordinance. Pending the certification of Nordyke’s preemption claim to the California Supreme Court, there were several judicial developments relating to the Second Amendment. As a result, Nordyke filed a motion for supplemental briefing with this court which we granted. Because of our sister circuit’s holding in United States v. Emerson, 270 F.3d 203 (5th Cir.2001), and the change in the United States government’s position on the scope of the Second Amendment,¹ Nordyke now urges on appeal that the Ordinance unduly infringes the right of individuals under the Second Amendment to possess privately and to bear their own firearms.

II

We consider first Nordyke’s challenge to the Ordinance on the grounds that it infringes his First Amendment right to free speech. The district court squarely rejected Nordyke’s argument that gun possession is expressive conduct protected by the First Amendment and that the ban on the possession of firearms unconstitutionally interferes with commercial speech.²

A

As to Nordyke’s expressive conduct claim, the Supreme Court has “rejected the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citation and internal quotation marks omitted). However, the Court has “acknowledged that conduct 'may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Id. (citation and internal quotation marks omitted).

In the case at hand, Nordyke argues that possession of guns is, or more accurately, can be speech. In evaluating his claim, we must ask whether “[a]n intent to convey a particularized message [is] present, and [whether] the likelihood [is] great that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). If the possession of firearms is expressive conduct, the question becomes whether the County’s “regulation is related to the suppression of free expression.” Johnson, 491 U.S. at 403, 109 S.Ct. 2533. If so, strict scrutiny applies. If not, we must apply the less stringent standard announced in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The first step of this inquiry— whether the action is protected expressive conduct — is best suited to an as applied challenge to the Ordinance. However, in this case, Nordyke challenged the law before it went into effect. Accordingly, he mounts a facial challenge, relying on hypo-theticals and examples to illustrate his contention that gun possession can be speech.

In evaluating Nordyke’s claim, we conclude that a gun itself is not speech. The question in Johnson was whether flag burning was speech, not whether a flag was speech. 491 U.S. at 404-06, 109 S.Ct. 2533. Here too, the correct question is whether gun possession is speech, not whether a gun is speech. Someone has to do something with the symbol before it can be speech. Until the symbol is brought onto County property, the Ordinance is not implicated. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (analyzing whether the wearing of armbands is speech, not whether armbands themselves are speech); O’Brien, 391 U.S. at 376, 88 S.Ct. 1673 (analyzing whether burning of draft cards is speech).

In the context of a facial challenge, Nordyke’s contentions are unpersuasive. Gun possession can be speech where there is “an intent to convey a particularized message, and the likelihood [is] great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 410-11, 94 S.Ct. 2727. As the district court noted, a gun protestor burning a gun may be engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gun control rally. Flag waving and flag burning are both protected expressive conduct. See Johnson, 491 U.S. at 404-06, 109 S.Ct. 2533. Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it. The law itself applies broadly to ban the possession of all guns for whatever reason on County property. The law includes exceptions, primarily for those otherwise allowed to carry guns under state law, but these exceptions do not narrow the law so that it “has the inevitable effect of singling out those engaged in expressive activity.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986).

As Nordyke’s “facial freedom of speech attack” does not involve a statute “directed narrowly and specifically at expression or conduct commonly associated with expression,” his challenge fails. See Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir.1996) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). In Roulette, we turned back a facial First Amendment challenge to a city ordinance prohibiting sitting or lying on the sidewalk. The plaintiffs argued that the law infringed their free speech rights because sitting and lying can sometimes communicate a message. See id. at 303. We “rejected] plaintiffs’ facial attack on the ordinance” because this conduct is not “integral to, or commonly associated with, expression.” Id. at 305. Likewise, Nordyke’s challenge fails because possession of a gun is not “commonly associated with expression.”

Nordyke points out that several of the rifles for sale are decorated with political messages, most prominently the National Rifle Association Tribute Rifle, which depicts the NRA banner, a militia member and an inscription quoting the Second Amendment: “The Right of the People to Keep and Bear Arms.” Where the symbols on the gun (not the gun itself) convey a political message, the gun likely represents a form of political speech itself. See Gaudiya Vaishnava Soc’y v. City and County of San Francisco, 952 F.2d 1059, 1063 (9th Cir.1991) (holding that merchandise displaying political messages are entitled to First Amendment protection). Here, Nordyke is mounting a facial challenge. In this context, the presence of a handful of NRA Tribute Rifles at a show at which the vast majority of the prohibited guns bear no message whatsoever does not impugn the facial constitutionality of the Ordinance. See Roulette, 97 F.3d at 305; cf. Gaudiya, 952 F.2d at 1064-65 (upholding First Amendment challenge where case involved only merchandise bearing political messages). Thus, we agree with the district court’s conclusion that the Ordinance does not unconstitutionally infringe expressive conduct.³

B

Next, Nordyke contends that the Ordinance’s prohibition of gun possession on County property unconstitutionally burdens his right to commercial speech. We have previously held that the act of exchanging money for a gun is not “speech” for the purposes of the First Amendment. See Nordyke v. Santa Clara County (“Nordyke III”), 110 F.3d 707, 710 (9th Cir.1997). In Nordyke III, the very same Nordykes that are before us in this case successfully challenged an addendum to a lease between the county and the fairgrounds operator that barred gun shows from the fairgrounds. The lease addendum held to be an unconstitutional infringement of commercial free speech rights in Nordyke III prohibited offers to sell guns. In contrast, the Ordinance here bars neither sales nor offers to sell, only possession. See Alameda County, Cal., Ordinance § 9.12.120(b). Nevertheless, Nordyke argues that the prohibition on possession makes the sale more difficult and sometimes impossible, stifling commercial speech.

Pursuant to Nordyke III, the sale itself is not commercial speech. It is difficult to argue then that making the sale (non speech) more difficult by barring possession (non-speech) infringes speech. Nor-dyke cites no authority for this proposition. Nor is this the case of making a sale more difficult by barring speech. In cases such as Nordyke III, what renders the law unconstitutional is the interference with speech itself, not the hindering of actions (e.g., sales) that are not speech. As possession itself is not commercial speech and a ban on possession at most interferes with sales that are not commercial speech, we agree with the district court’s conclusion that the County’s prohibition on possession does not infringe Nordyke’s right to free commercial speech.

Ill

Finally, we turn to Nordyke’s challenge to the Ordinance on Second Amendment grounds. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const, amend. II. The meaning of this amendment and the extent of the constitutional right it confers have been the subject of much scholarly and legal debate.

The “individual rights” view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L.Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit’s recent holding in United States v. Emerson, 270 F.3d 203 (5th Cir.2001), that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.” Id. at 260.

We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson. However, we have squarely held that the Second Amendment guarantees a collective right for the states to maintain an armed militia and offers no protection for the individual’s right to bear arms. In Hickman v. Block, 81 F.3d 98, 102 (9th Cir.1996), we held that “it is clear that the Second Amendment guarantees a collective rather than an individual right. Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in' the position to show legal injury when this right is infringed.” (citations and internal quotation marks omitted).

As a result, our holding in Hickman forecloses Nordyke’s Second Amendment argument. We specifically held there that individuals lack standing to raise a Second Amendment challenge to a law regulating firearms. Id. at 103. Because “Article III standing is a jurisdictional prerequisite,” id. at 101, we have no jurisdiction to hear Nordyke’s Second Amendment challenge to the Ordinance. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).⁴

IV

For the foregoing reasons, the district court’s denial of Nordyke’s application for a preliminary injunction must be

AFFIRMED.

1 . See Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780, at 19 n. 3, available at http://www.usdoj.gov /osg/briefs/2001/0responses/2001-8780.-resp.pdf.

2 . In addition, the district court considered whether the Ordinance was a constitutional time, place, and manner regulation. Nordyke does not press this argument on appeal, however.

3 . However, we note that our holding does not foreclose a future as applied challenge to the Ordinance.

4 . We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court’s holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: ''[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right.” Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit’s holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir.2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court’s holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the "individual rights” theory as well as the Fifth Circuit’s holding in Emerson, the Silveira panel's decision to reexamine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court,” Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir.1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel’s unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.