The Volokh Conspiracy
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Can a county prohibit all new gun stores within its jurisdiction? That question is currently before the U.S. Supreme Court, in a petition for certiorari. Today I filed an amicus brief arguing that the Court should grant cert.
The case began several years ago, when Alameda County forbade John Teixeira and his partners to open a gun store anywhere within the jurisdiction of the county. The plaintiffs are represented by Alan Gura (winning attorney in District of Columbia v. Heller, and many other important Second Amendment cases), and Don Kilmer (the leading pro-Second Amendment attorney in Northern California). They lost in the district court, and then won a 2-1 decision from a Ninth Circuit panel. (Here's my previous VC article analzying the panel decision). The County then petitioned for en banc review, which was granted. (Here's Eugene Volokh's article on one of the briefs arguing against an en banc grant.)
En banc, the majority held that there is no Second Amendment right to engage in firearms commerce. According to the majority, gun laws from the colonial and founding periods show that: 1. Some colonies sometimes banned gun sales to Indians. 2. Colonial governments fostered the arms business, such as by buying firearms to give to militiamen who could not afford their own. From this historical record, the majority concluded that government control of firearms commerce was so pervasive such commerce falls outside the Second Amendment.
In the majority's view, nobody even has standing to raise a Second Amendment challenge to a firearms commerce prohibition, unless that person can show that the prohibition has prevented her from being able to acquire a firearm.
The plaintiffs' cert. petition to the Supreme Court mainly points out the the Ninth Circuit applied the rational basis standard to a Second Amendment case. This is expressly contrary to the Supreme Court's rules articulated in District of Columbia v. Heller and McDonald v. Chicago, and also contrary to almost all post-Heller cases from the Circuit Courts.
My amicus brief addresses two related issues. First, the other Circuit Circuits (including the Ninth Circuit in previous cases) have held that when a government contends that an activity is outside the scope of Second Amendment rights, the government bears the burden of proof. The government must prove that the activity is beyond the historical and traditional understanding of the right to arms. In Teixeira, the government did not even attempt to do so. Instead, the Ninth Circuit majority did the County's work for it, and provided a shallow and erroneous historical rationale.
As the amicus brief explains, a key reason that a decade-long political dispute between Great Britain and American colonies turned into a war was the British government's attempt to suppress arms commerce. Royal governors illegally seized merchants' gunpowder and firearms. King George III embargoed the import of arms and ammunition into America. Americans vehemently objected, describing the prohibition of arms commerce as an effort to enslave the Americans, by leaving them no means of resistance to tyranny.
Americans did everything possible to defeat the British suppression of arms commerce. Benjamin Franklin masterminded arms and gunpowder imports from other countries. All forms of domestic production were strongly encouraged.
Then on April 18, 1775, King George renewed the embargo. On that same day, Royal governor Thomas Gage dispatched Redcoat soldiers to seize a large cache of gunpowder in Concord, Massachusetts. Paul Revere, William Dawes, and Samuel Prescott rode to raise the alarm. Forewarned, Americans were forearmed. At Concord Bridge, they fired the shot heard round the world. Swarms of armed Americans harried the Redcoats all the way back to Boston, nearly wiped them out, and besieged the city. The War of Independence had begun. Rather than let a government effectuate a prohibition on arms commerce, Americans started a war against the most powerful military in the world.
The above story is told concisely in the amicus brief, and in more detail in my article, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).
Amici on the brief are: Cato Institute, Jews for the Preservation of Firearms Ownership, Independence Institute (where I am Research Director), and the Millennial Policy Center. My main co-author on the brief was Joseph G.S. Greenlee. The Cato lawyers on the brief are Ilya Shapiro, Trevor Burrus (my former student at Denver University law school, and my intern in 2010), Clark Neily (part of the winning team in Heller), and Matthew Larosiere. Information about the case is available on the Scotusblog docket page, although the amicus brief has not yet been uploaded.