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").
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,
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 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 only firearms that they lawfully could sell under federal and state statutes.
In its initial and supplemental briefing before the three-judge 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.
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, 128 S.Ct. 2783 ("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, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (observing, in the context of an equal protection claim against a governmental employer, that
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.
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.
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.
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. Rykoff-Sexton, 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 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 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 1046, 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.