Nordyke

Opinion by Judge GRABER; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge IKUTA.

OPINION

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”) (“summarizing] 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.

Recently, the Supreme Court recognized an individual right under the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570 , 128 S.Ct. 2783 , 171 L.Ed.2d 637 (2008). Even more recently, *1044 the Court held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment. McDonald v. City of Chicago, — U.S. -, 130 S.Ct. 3020 , 177 L.Ed.2d 894 (2010).

Plaintiffs Russell and Sallie Nordyke, along with other co-plaintiffs, seek to conduct gun shows at the Alameda County fairgrounds. In 1999, Alameda County enacted an ordinance that provides in relevant part:

Alameda County, Cal., Ordinance Code § 9.12.120.

Plaintiffs challenged…

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.

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 three-judge 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 1044-45, 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…

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 1044 — 45, 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 1044-45, actually burdens gun shows, or the nature of the fit between this burden and the government’s alleged purpose to “promote the public health and safety by contributing to the reduction of gunshot fatalities and injuries in the County.” Alameda…