The Volokh Conspiracy
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The case of Texiera v. Alameda County, currently before the U.S. Court of Appeals for the 9th Circuit en banc, raises the question of whether a jurisdiction may outlaw firearms commerce. This week, I filed an amicus brief that looks at the Founding Era, and concludes that governments may regulate but not prohibit such commerce.
The plaintiff wishes to open a gun store in Alameda County, Calif., south of San Francisco. County zoning regulations have the effect of prohibiting any new firearms store anywhere within the county's jurisdiction. Last year, a 2-to-1 decision in the 9th Circuit held: 1. The case should be remanded for fact-finding in the district court, to see if plaintiff is correct about the effect of the zoning regulations. 2. If the plaintiff is correct, the county must provide very strong evidence to justify such a ban. In dissent, Judge Barry G. Silverman argued that issue is trivial, since residents of Alameda County can purchase firearms at locations other than the proposed new store.
I wrote about that decision here. The 9th Circuit voted to take up the panel opinion for en banc review. One of the amicus briefs en banc comes from a group of law professors including Eugene Volokh and Randy Barnett. The NRA's amicus comes from Paul Clement. The docket and many of the filings are available here, although the site has not yet been updated to include the most recent briefing.
My brief, co-authored with Joseph Greenlee, is on behalf of Jews for the Preservation of Firearms Ownership, and the Independence Institute. The brief concentrates on the history of the Founding Era. Here is the Summary of Argument:
Can a government prohibit all new firearms commerce within its jurisdiction? The issue in this case is the same issue that precipitated the American Revolution.
To regain dominance over the increasingly defiant American people, the British prohibited arms commerce. In the summer of 1774, American merchants were prevented from withdrawing their supplies of gunpowder that were stored in powder houses (secure brick buildings). Soon after, British Redcoats marched out to confiscate the Americans' firearms and gunpowder from the Charlestown powder house.
The prohibition escalated in October 1774, when King George and his ministers embargoed all import of firearms or gunpowder into the thirteen colonies. Edmund Burke, a leading member of Parliament, suggested that the embargo was illegal, and Americans heartily agreed. The Virginia Charter in 1606 and the New England Charter in 1620 had expressly guaranteed the rights of firearms commerce.
Americans defied the British ban on arms commerce by importing firearms and gunpowder from other nations, and by domestic manufacturing. When the British army attempted to confiscate arms at Lexington and Concord on April 19, 1775, the Revolutionary War began. The British embargo on commerce—and American defiance of that embargo—continued throughout the war.
When the London government thought that victory was near in 1777, it wrote a plan to keep defeated America in perpetual submission. The plan included permanent prohibition of all American arms commerce.
The United States Constitution comprehensively protects the American people from the types of abuses that necessitated the Revolution. Necessarily, the Second Amendment still prohibits the particular abuse that triggered war with Britain hundreds of years ago: prohibition of firearms commerce.
As with any case that rises to the en banc level, the possibility of subsequent review by the Supreme Court is not trivial.