Ninth Circuit Holds that Second Amendment Protects the Right to Acquire Firearms

On Monday, the United States Court of Appeals for the Ninth Circuit held that the right to keep and bear arms necessarily includes the right to acquire them.  The case, Teixeira v. County of Alameda, involves a challenge to an Alameda County zoning ordinance that prohibits gun stores from operating within 500 feet of a residentially zoned district.  

The plaintiffs in the case wished to open a gun store that was 446 feet away from the nearest residential property and was also separated from the residences by a major interstate highway.  Because of the intervening highway, the county zoning board initially awarded a variance to the 500-foot rule, but the variance was revoked after a successful appeal by a local homeowners’ association that included members who “are opposed to guns and their ready availability and therefore believe that gun shops should not be located within [their] community . . . “  

While basic logic seems to demand that the right to keep and bear arms would be hollow without the right to acquire them, the county nonetheless argued against the existence of a right to acquire arms by defending its ordinance. 

While basic logic seems to demand that the right to keep and bear arms would be hollow without the right to acquire them, the county nonetheless argued against the existence of a right to acquire arms by defending its ordinance.  In making this argument, the county relied on a single line from the Supreme Court’s decision in District of Columbia v. Heller.  That line provides that “nothing in [the] opinion should be taken to cast doubt on longstanding . . . laws imposing conditions and qualifications on the commercial sale of arms.”  Again, it shouldn’t take a law degree to understand that an ordinance that prohibits any new gun store from opening within a county is neither a “condition” nor a “qualification” on the commercial sale of arms because a “condition” or “qualification” would require that commercial sales were actually taking place.  Unfortunately, the lower court accepted this illogical argument with little explanation for how its decision complied with the Second Amendment.  

The Ninth Circuit overruled the lower court on Second Amendment grounds after conducting a thorough historical analysis and finding no evidence to support the county ordinance as the type of “longstanding” law mentioned in Heller.  The court even cautioned the lower court that if the ordinance truly has the effect of prohibiting new gun stores within the county, that the lower court must apply something akin to the highest level of judicial scrutiny, which the ordinance would almost certainly fail.  

While the case is far from over for the plaintiffs, as they must now go back to have their case heard in the lower court, the decision currently stands as one of the few opinions to expressly recognize the right to acquire firearms and the corresponding right to sell them.  This case also serves as just one more example of the seemingly endless lengths that anti-gun advocates will stretch the law to defend their overbroad and ineffective gun-control laws.