Gun Rights

Appeals Court Says the Second Amendment Protects Firearm Sales

The 9th Circuit reinstates a challenge to a California ordinance that blocked a gun store.

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Heritage Foundation

Yesterday a federal appeals court ruled that local restrictions on gun sales can violate the Second Amendment. "The right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms," said a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, concluding that a federal judge should not have dismissed a constitutional challenge to a zoning ordinance that prevented a gun store from opening in Alameda County, California. "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."

The three men who brought the lawsuit, John Teixeira, Steve Nobriga, and Gary Gamaza, planned to open a gun store but were stymied by a county rule banning such businesses within 500 feet of a home, a school, a day care center, a liquor store, a bar, a restaurant with a liquor license, or another gun store. Because of that restriction, Teixeira and his partners said, "there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales."

Even if that's not true, the 9th Circuit said, the 500-foot rule burdens a constitutionally protected right and therefore should be subject to "heightened scrutiny," as opposed to the highly deferential "rational basis" test applied by the district court. The county claimed the location restrictions were motivated by concerns about the impact that gun stores might have on crime in their vicinity and on the aesthetics of the neighborhood. But it presented no evidence to substantiate either concern. 

Such bare assertions do not meet the requirements of "intermediate scrutiny," the appeals court said. Furthermore, "if Teixeira had been given a chance to demonstrate that the Ordinance was 'not merely regulatory,' but rather functioned as a total ban on all new gun retailers, 'a more rigorous showing' than even intermediate scrutiny, 'if not quite "strict scrutiny,"' would have been warranted."

Writing in dissent, Judge Barry Silverman said Alameda County's ordinance is an example of "laws imposing conditions and qualifications on the commercial sale of arms," which the Supreme Court has said are presumptively valid because of their long acceptance. Silverman noted that local residents already can purchase guns from various retailers, who apparently were exempted from the 500-foot rule. "When you clear away all the smoke," he said, "what we're dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge."

Judge Diarmuid O'Scannlain, writing for himself and Judge Carlos Bea, rejected that argument, saying "the County has failed to demonstrate that the Ordinance is the type of longstanding regulation that our predecessors considered an acceptable intrusion into the Second Amendment right." O'Scannlain suggested that Silverman's attitude would be quite different if the case had involved a First Amendment claim:

Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than "a mundane zoning dispute dressed up as a [First] Amendment challenge"?…Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law. Such an ordinance, of course, would give us great pause. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment.

Quoting the 2010 decision in which the Supreme Court overturned Chicago's handgun ban, O'Scannlain observed that "the right of law-abiding citizens to keep and to bear arms is not a 'second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.'" It's a principle that many federal judges have trouble taking seriously.

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  1. Judge Diarmuid O’Scannlain

    Never name your children when you’re drunk.

    1. Dermot O’Scanlon. Happy now?

      1. +1d8 bardic inspiration

    2. How would Irish children get named?

      1. They’d finally get normal people names.

        1. The joke, you’re not getting it.

          1. And you’re talking to a permanantly sober Irishman.

            1. What’s the fun in that?

              1. “50% of the Irish have a problem with alcohol….the other 50% live with them”

                “Whisky was invented to stop the Irish from conquering the world”

      2. I was pretty clearly advocating that those whisky-swilling potato-chomping papists just quit breeding altogether, but I was trying to be classy about it.

        1. I have a modest proposal about that…

    3. On the outer Barcoo where the churches are few,
      And men of religion are scanty,
      On a road never cross’d ‘cept by folk that are lost,
      One Michael Magee had a shanty.

      Now this Mike was the dad of a ten-year-old lad,
      Plump, healthy, and stoutly conditioned;
      He was strong as the best, but poor Mike had no rest
      For the youngster had never been christened,

      And his wife used to cry, “If the darlin’ should die
      Saint Peter would not recognise him.”
      But by luck he survived till a preacher arrived,
      Who agreed straightaway to baptise him….

      … “Here he comes, and for shame! ye’ve forgotten the name-
      Is it Patsy or Michael or Dinnis?”
      Here the youngster ran out, and the priest gave a shout-
      “Take your chance, anyhow, wid ‘Maginnis’!”

      As the howling young cub ran away to the scrub
      Where he knew that pursuit would be risky,
      The priest, as he fled, flung a flask at his head
      That was labelled “Maginnis’s Whisky!”

      And Maginnis Magee has been made a J.P.,
      And the one thing he hates more than sin is
      To be asked by the folk who have heard of the joke,
      How he came to be christened “Maginnis”!

      Banjo Patterson, “A Bush Christening,” 1893

      Whole poem here: http://bytesdaily.blogspot.com…..ening.html

  2. Amazing that this happened. What’s next? David Sirota admitting that he’s a moron?

  3. Why did they apply “intermediate” scrutiny? I thought that was really only reserved for sex/gender cases. If it involves a fundamental right (i.e., deeply rooted in our nation’s tradition and history), the test should be strict scrutiny, no?

    1. Because the 9th has to get something wrong. It’s in their blood.

      1. I’m frankly amazed the 9th got as much of this correct as they did.

        1. Agreed. My first thought on reading this was to re-read to make sure that this was the Ninth. Yes it was. Wow. Maybe the lower courts are starting to incorporate Heller and also McDonald into their calculations?

    2. This. 2nd amendment = strict scrutiny

    3. Unfortunately, SCOTUS hasn’t said that the 2A warrants strict scrutiny.

      Naturally, distinctions between what level of scrutiny are applied to various provisions of the BOR are complete, made-up, horseshit.

      The fact that the 9A went for intermediate scrutiny is actually very good news, all in all.

      I eagerly await courts applying principles from abortion and gay marriage cases to the 2A.

      1. The fact that the 9A went for intermediate scrutiny is actually very good news, all in all.

        You meant Ninth Circuit, right?

        1. Thanks. My bad.

          Everyone knows there’s no such thing as a Ninth Amendment.

  4. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment.

    But…but…the Second Amendment isn’t a real right! /progderp

    1. Millicia Claws /more realistic progderp

  5. Concerned about the effects of a gun store on crime in the area? Because everyone knows that criminals prefer to do their business where they’re MOST likely to get shot right?

    1. i’d like to see how they correlate gun stores with crime, where are the statistics for that.

      1. There are none. As the court noted.

    2. Suicide by [gun shop].

  6. “Yesterday a federal appeals court ruled that local restrictions on gun sales can violate the Second Amendment.”

    I wonder if they’d extend that kind of thinking to First Amendment issues, too. Maybe they shouldn’t be able to have local restrictions on religion or free speech? Does that seem weird to progressives?

    I know that sounds crazy to a lot of people. Americans just walking around, saying what they want to say, believing what they want to believe, owning guns. I guess I’m an extremist.

    1. I wonder if they’d extend that kind of thinking to First Amendment issues, too. Maybe they shouldn’t be able to have local restrictions on religion or free speech? Does that seem weird to progressives?

      It would if they were honest and principled, but you know that they will fall back to the cover of the militia clause and claim that 2A rights are different than 1A rights.

    2. Wonder no longer. Progressives have been attacking free speech for decades by creating the concept of “hate speech” and then expanding the definition to include whatever they want.

      1. Don’t forget the Orwellian abomination known as “Free Speech Zones”, which should only refer to the United States as a whole.

  7. That’s a nice burn from O’Scannlain to Silverman. Of course, it is obvious that the latter doesn’t consider the 2nd to be a “real” amendment. Silverman should probably shut up about things he doesn’t understand, like logic.

  8. Yesterday a federal appeals court ruled that local restrictions on gun sales can violate the Second Amendment.

    Poor wording produces ambiguity, Jacob. Even with “may”.

    /grammar nazi

  9. BEHOLD! the dumbest thing written yesterday on 2A…

    http://www.dailycal.org/2016/05/16/357201/

    Approximately 270 million people in the United States own firearms. The United States also has the highest gun ownership rate per 100 residents on the planet, with an estimated 466 crimes per 100,000 people. This raises questions regarding whether or not the ability for American citizens to obtain guns should be allowed because of safety, as well as various interpretations of the Second Amendment of the Constitution. Gun control laws in the United States need to either become more strictly enforced regarding backgrounds checks and the ability to obtain a gun, or guns should be banned altogether from citizens and police forces.

    right out the gate with that 270M Americans own guns statistic. and downhill from there.

    1. That is a lot of toddlers and bed ridden senior citizens with guns…

      1. Followed immediately by the mother of all category errors:

        the highest gun ownership rate per 100 residents on the planet, with an estimated 466 crimes per 100,000 people

        Apple, meet orange. Orange, apple.

        1. If, as they say, ~85% of the population owns guns, but only 0.5% of them commit crimes, then that kinda gives away that the gun is not the most relevant factor, no?

    2. “Some Americans own guns. Some Americans commit crimes with guns. Therefore, we should ban guns.”

      LOGIC.

      At least they didn’t misuse “begs the question”.

    3. “A person could not have a background of mental illnesses and still go through a fit of anger and shoot their gun to release the emotions pent up inside of them.”

      Which is why I practice strict wife control about every 28 days. We can’t be to safe.

    4. Wow, that’s pretty dumb. Although I’m intrigued by the bit about banning police from carrying. I might be willing to sign on to a firearms ban if it also applied to any and all government agents. Mind you, I’d like them to go first.

      1. I might be willing to sign on to a firearms ban if it also applied to any and all government agents.

        Ain’t gonna happen. For one thing, how would they take your guns away if they had none of their own? And for another, other governments and certain non-governmental organizations aren’t going to jump on the hippie-dippie “no guns” bandwagon.

    5. The United States also has the highest gun ownership rate per 100 residents on the planet, with an estimated 466 crimes per 100,000 people.

      And the first statistic is related to the second one… how, exactly? If these statist shitheads want to take the guns away, they’re gonna hafta show their work.

    6. at least they’re banning them from police forces too

  10. OT: I was browsing an online ammo store and found the following disclaimer on some less-than-lethal rubber-ball shotgun shells:

    “Please check your local state and federal laws as we believe in most states only trained Law Enforcement has the right to shoot less than lethal rounds for self defense.”

    Really?? If I want to buy some ammunition that’s less harmful than the standard, I have to be a cop? Granted, I’m not shooting at anything I don’t want to kill anyway, but still. I shouldn’t have to be one of the King’s Men to shoot whatever the hell I want out of my own damn guns.

    1. It makes the same amount of sense as going after the companies that sell drugs used in executions. Who cares if a few schlubs have to suffer; they’re the eggs that have to be broken to make the omelet.

    2. “only trained Law Enforcement has the right to”

      It’s time that we start mandating basic language vocabulary skills, as well as civics.

      Individuals have rights, organizations have power and / or authority.

  11. Personally, I think the decision was incorrect by the court; I don’t really see what 2A has to do with it as that doesn’t cover the right to sell arms.

    I think you’ve either got to say all zoning laws are outside of legal government authority (mind you, I prefer this) or that you’ve got to defer to the zoning laws on matters of what you can sell on your property.

    That said, zoning laws aren’t going anywhere so this is a step in the right direction even if I don’t find it logical to tie this to Second Amendment rights.

    1. The zoning was a deliberate effort to prevent the sale of arms and thus stealth ban the guns. It was so brazen as to be unambiguous as to the actual purpose of the law.

    2. I don’t really see what 2A has to do with it as that doesn’t cover the right to sell arms.

      I’m curious, Glide.

      Do you think that the 1A covers the right to sell newspapers?

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