The U.S. Supreme Court on Monday sent a clear message to millions of gun owners in California: You're living in a Second Amendment-free zone.
In an order on Monday, without explanation or comment, the Court rejected a civil rights lawsuit brought by the Calguns Foundation and the Second Amendment Foundation. Those groups had hoped the justices would rule that the Second Amendment continues to apply even in the progressive enclaves of the left coast—and that law-abiding California residents possess the right to buy and sell firearms.
Instead, the Supreme Court declined to hear the case, a decision that underscores its willingness to let California legislators and judges evade the Second Amendment within the borders of the state.
"There are no significant Second Amendment obstacles to local and state gun control at this point," said Don Kilmer, an attorney in San Jose, California, who is representing the gun rights groups. Also representing them is Alan Gura, who has taken two Second Amendment cases to the Supreme Court before.
Their lawsuit challenges a decision by Alameda, a California county that includes Oakland and other east bay cities, to enact a zoning law so onerous it effectively bans gun stores. The U.S. Court of Appeals for the 9th Circuit sided with Alameda in 2017, saying that "no historical authority suggests that the Second Amendment protects an individual's right to sell a firearm."
At least Monday's decision serves one useful purpose: It exposes the federal judiciary's willingness to elevate some constitutional rights over others.
If a city enacted zoning laws that effectively outlawed abortion clinics, and a federal appeals court had permitted it, the Supreme Court would have stepped in a heartbeat later. Under precedents going back to Maher v. Roe (1977), any law representing "direct state interference" with abortion is evaluated using strict scrutiny, the most exacting standard of legal review. Few such laws survive. (The 9th Circuit did not apply strict scrutiny to Alameda's law.)
In today's California, even adult movie theaters enjoy greater legal protections than gun stores. In a 1986 decision, the Supreme Court said the First Amendment allows municipalities to restrict such theaters (apparently they were a thing before the Internet) only if zoning laws provide a "reasonable opportunity to open and operate an adult theater within the city."
The current lawsuit arose when three entrepreneurs, John Teixeira, Steve Nobriga, and Gary Gamaza, formed a partnership called Valley Guns and Ammo and started to look for potential locations in Alameda County. They planned to open a specialty shop that, in addition to selling firearms and ammunition, would have been the only store in the area to offer firearm safety training and certification, gunsmithing and repairs, and consignment and appraisal services.
Finding a location was difficult. An Alameda County zoning ordinance singles out gun stores by imposing extraordinarily strict rules. The location must be 500 feet away from any residentially zoned area, from any elementary, middle, or high school, from any preschool or day care center, from any other firearm retailer, and from any liquor stores, bars, or restaurants where liquor is served.
Alameda's true motive, of course, was to outlaw gun stores. But the three men managed to find a location that complied—it was over 500 feet from the store to the front door of the nearest home—and Alameda's zoning board approved the application. After complaints from anti-gun activists, however, the county changed its policy to require a distance of 500 feet from the store to the nearest area that was zoned for residential use. That made the distance from the store to the nearest home 446 feet, which the county said was not far enough.
The Calguns Foundation, the Second Amendment Foundation, and the California Association of Federal Firearms Licensees sued on behalf of the three entrepreneurs, but the outcome before the 9th Circuit was predetermined. This is one circuit that has never seen a Second Amendment violation and, unless President Donald Trump fills the current vacancies with reasonable picks, likely never will.
In theory, after the Supreme Court's Heller decision in 2008, the Second Amendment right to self-defense joined the pantheon of constitutional rights including the right to worship, the right to be free from unreasonable searches, and the right to speak freely. After the court's followup McDonald decision in 2010, it was supposed to be another fundamental right for all Americans to enjoy.
Alas, the Bill of Rights is not self-enforcing; our judiciary is entrusted with upholding and defending it. But the unfortunate reality today is that many federal judges, including a majority of the 9th Circuit, have creatively defined away Americans' right to self defense. And a majority of the justices on the Supreme Court have shown themselves, repeatedly, to be unwilling to do anything about it.
"If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene," Justice Clarence Thomas wrote in a dissent from his colleagues' decision not to intervene after the 9th Circuit upheld another California anti-gun measure in February. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court's constitutional orphan." (Justice Neil Gorsuch joined Thomas in a separate dissent last year that made a similar point.)
Kilmer, the San Jose attorney representing the gun rights groups against Alameda, says: "The problem with the 9th Circuit's activism, and the refusal of the Supreme Court to cabin in their abuses, is that the California legislature and local municipalities will feel free to do whatever they want."
Exactly so: the Second Amendment has been effectively repealed inside California. I suspect that California's millions of gun owners, who are subject to intrusive new registration requirements starting in July, are beginning to wonder: If federal judges routinely ignore the law, why can't I?
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