“Selling Firearms Is Not Part Or Parcel Of The Right To Keep And Bear Arms”

“Death by a Thousand Cuts” – Latest Ninth Circuit decision proclaims “selling firearms is not part or parcel of the right to keep and bear arms”

Gun Control Death by 1000 Cuts
“Selling Firearms Is Not Part Or Parcel Of The Right To Keep And Bear Arms”
National Rifle Association Institute For Legislative Action (NRA-ILA)
National Rifle Association Institute For Legislative Action (NRA-ILA)

Fairfax, VA – -(Ammoland.com)-  Since the U.S. Supreme Court handed down its landmark rulings in District of Columbia v. Heller and McDonald v. Chicago, lower courts across the country have expressed their disagreement with – or downright hostility to – the Second Amendment by distorting or disregarding these rulings to the detriment of gun owners. 

Joining this judicial obliteration of the fundamental right to keep and bear arms is a new decision by the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, regarding the extent to which the Second Amendment protects the right of law-abiding Americans to sell and buy firearms.

Reversing an earlier decision of the Ninth Circuit, the court concluded that the Second Amendment does not protect a right of “a proprietor of a commercial establishment to sell firearms. Commerce in firearms is a necessary prerequisite to keeping and possessing arms for self-defense, but the right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them.” 

The case dates back to 2010, when the plaintiffs, John Teixeira, Steve Nobriga, and Gary Gamaza, decided to open “Valley Guns & Ammo,” a retail business that would sell firearms, ammunition, and gun-related equipment as well as provide firearm training and gunsmith services. They chose a location in Alameda County, California, and began the complex process of obtaining the necessary licenses, permits, and zoning approvals.

A county ordinance prohibited locating a gun store business within 500 feet of a “[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.” The ordinance was ambiguous on how this was to be measured, although planning department staff indicated that the 500-foot zoning requirement would be determined by measuring from the closest door of the proposed business location to the front door of any such disqualifying property. Accordingly, the plaintiffs selected a location where the closest residential property, measured door to door, was 532 feet away and across Interstate 880. 

In fact, though, the County chose to measure the 500-foot distance from the closest exterior wall of the building to the closest residential property line rather than from door to door, meaning that the nearest residential property was only 446 feet away from the proposed site. Because of this, the business owners had to seek and obtain a zoning variance, which the appropriate zoning board granted after a public hearing, finding that Interstate 880, as well as other obstructions, prevented “direct traversable access at a distance less than 500 feet from the site to a residentially zoned district.” (This board also found there was a “public need” for the store, and that there was no detrimental public health or safety impact associated with the business.) 

Members of the San Lorenzo Village Homes Association objected and appealed the grant of the variance because they were opposed to “guns and their ready availability” and to a gun shop in their community. When their appeal was sustained and the variance revoked, the business owners brought a lawsuit challenging the ordinance as unconstitutional. In support of their claim that the zoning ordinance was impermissible under the Second Amendment, they commissioned a study showing that the application of the 500-foot rule meant “there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales.” The ordinance effectively “red-lined” all new gun stores out of the county.

In 2016, a three-judge panel of the Ninth Circuit, addressing a motion to dismiss the lawsuit, ruled the suit could proceed. It rejected entirely the County’s argument that the Second Amendment does not extend to the commercial sales of arms: “If ‘the right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well.” While a government enjoyed “substantial leeway under the Second Amendment to regulate the commercial sale of firearms” through zoning and licensing, there was “no question that an ordinance restricting the commercial sale of firearms” burdened Second Amendment rights, and the County failed to produce any evidence in support of its justification for the ordinance – that a gun store would increase crime in its vicinity. “Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.”

This ruling was vacated and the case was set for rehearing before a larger (en banc) panel of the Ninth Circuit. (The NRA participated by filing an amicus brief together with the California Rifle & Pistol Association.) 

In a 9-2 decision on October 10, Teixeira v. County of Alameda, that panel dismissed the lawsuit after concluding that the plaintiffs failed to raise a plausible Second Amendment claim.

While recognizing that “firearms commerce plays an essential role today in the realization of the individual right to possess firearms” recognized in District of Columbia v. Heller, the panel majority nonetheless used language in Heller on presumptively lawful “longstanding” prohibitions on the commercial sale of arms to justify treating sales of guns as distinct from the right of potential firearm buyers to acquire them. A “commercial actor’s ability to enter the firearms market” was completely independent of the ability of individuals to exercise their Second Amendment right to keep and bear arms and had no analogous Second Amendment protection. And, as long as residents could purchase firearms and ammunition anywhere in the county, the court held the ordinance had no adverse impact on the rights of individual buyers and consumers. 

The decision is notable for two strongly worded dissenting opinions by Judge Carlos T. Bea and Judge Richard C. Tallman.

Both found fault with the majority’s analysis of the Second Amendment. The reliance on Heller’s language on “longstanding” prohibitions of commercial sales was misplaced – it either didn’t apply to local government restrictions, or required some evidence that the ordinance was itself “longstanding” or in a class of longstanding and similar prohibitions. Pointing out the obvious, both judges found that the Second Amendment right to keep and bear arms necessarily included the indispensable and attendant rights to “buy, service, test, and properly license” firearms. Moreover, Judge Tallman observed the impact of the ordinance could not be “viewed in a vacuum without considering gun restrictions in California as a whole,” where the ordinance added to the already “burdensome” California laws on firearm acquisition, ownership, carrying, and possession.

This ruling is not just a problem for California gun owners. The majority’s decision “inflicts yet another wound on our precious constitutional right,” one that “perpetuates our continuing infringement on the fundamental right of gun owners enshrined in the Second Amendment.” These cases, as Judge Tallman warned, “continue to slowly carve away the fundamental right to keep and bear arms. Today’s decision further lacerates the Second Amendment, deepens the wound, and resembles the Death by a Thousand Cuts.”

About:
Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org

16 Comments
Most Voted
Newest Oldest
Inline Feedbacks
View all comments
Alan

I wonder, at the risk of posing a dumb question, as to who or what it is that winds the 9th Circuit Court.

Alan

Putting it bluntly, the findings of pronouncements of the 9th Circuit Court are so far beyond the pale as to be totally
ridiculous. Re their findings, it would appear that a majority of the court is totally unaware of existing federal law, as it impacts on the purchase of firearms, a situation that strikes me as more than passing strange.

Mike

On the basis the Ninth District found “as long as residents could purchase firearms and ammunition anywhere in the county, the court held the ordinance had no adverse impact on the rights of individual buyers and consumers” this should also apply to bakers who morally object to gay wedding cakes, since there are other bakers there in “no adverse impact on the rights of individual buyers and consumers”

Alan

One wonders as to exactly what it is that bit the 9th Circuit Court, causing the infection that so distorts their thinking.

Macofjack

What we need is a way to take activist judges off the bench. If they want to make laws get off the bench and get into the congress!

joe martin

The Ninth Circuit Court is an embarrassment and disgrace. A court in California or anywhere else outside of Washington D.C., should not have the authority to override any part of the Constitution, or even rule on it at all. The idea of a bunch of California peter-puffing political hacks deciding anything for anyone outside of Kalifornia is ludicrous and needs to be stopped.

James Higginbotham

they can’t override the Constitution.
the Constitution is the SUPREME LAW OF OUR LAND.
but they can make rulings until the HIGHER COURTS OVER RIDE THEIR STUPID LEGISLATION FROM THE BENCH AND UNCONSTITUTIONAL RULINGS.

Tog

actually SCOTUS has consistently ruled otherwise. That’s why chicago has to allow gun sales

Wild Bill

“Reversing an earlier decision of the Ninth Circuit [themselves, ed.], the court concluded that the Second Amendment does not protect a right of “a proprietor of a commercial establishment to sell firearms.” So first it was a Constitutional Right, now it is not a Constitutional Rignt. Maybe the Ninth Circuit Justices don’t know what Rights are. Maybe they are not qualified to hold their esteemed offices.

Clark Kent

‘Maybe’?

Green Mtn. Boy

The ill esteemed Ninth Circus should try enrolling in remedial US civics,Constitutional classes and by all means they should put down the glasses of Kool Aid.

Wild Bill

@GMB, those life time appointees are the ones that mix, pour, and serve the Kool Aid to the rest of us. Those elitist power cravers are so afraid that we are going to harm them, that they are creating a self fulfilling prophecy.

Ken

In California only thugs, muggers, drive-by shooters, gang-bangers, robbers, crooks, home invaders, and thieves can carry guns (Oh yeah And cops too)

Ve Veteran - Old Man's Club

The Ninth Circus Court strikes again.