Explore The NRA Universe Of Websites

“Death by a Thousand Cuts” – Latest Ninth Circuit decision proclaims “selling firearms is not part or parcel of the right to keep and bear arms”

Friday, October 13, 2017

“Death by a Thousand Cuts” – Latest Ninth Circuit decision proclaims “selling firearms is not part or parcel of the right to keep and bear arms”

Since the U.S. Supreme Court handed down its landmark rulings in District of Columbia v. Heller and McDonald v. Chicago, lower courts across the country have expressed their disagreement with – or downright hostility to – the Second Amendment by distorting or disregarding these rulings to the detriment of gun owners. 

Joining this judicial obliteration of the fundamental right to keep and bear arms is a new decision by the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, regarding the extent to which the Second Amendment protects the right of law-abiding Americans to sell and buy firearms.

Reversing an earlier decision of the Ninth Circuit, the court concluded that the Second Amendment does not protect a right of “a proprietor of a commercial establishment to sell firearms. Commerce in firearms is a necessary prerequisite to keeping and possessing arms for self-defense, but the right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them.” 

The case dates back to 2010, when the plaintiffs, John Teixeira, Steve Nobriga, and Gary Gamaza, decided to open “Valley Guns & Ammo,” a retail business that would sell firearms, ammunition, and gun-related equipment as well as provide firearm training and gunsmith services. They chose a location in Alameda County, California, and began the complex process of obtaining the necessary licenses, permits, and zoning approvals.

A county ordinance prohibited locating a gun store business within 500 feet of a “[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.” The ordinance was ambiguous on how this was to be measured, although planning department staff indicated that the 500-foot zoning requirement would be determined by measuring from the closest door of the proposed business location to the front door of any such disqualifying property. Accordingly, the plaintiffs selected a location where the closest residential property, measured door to door, was 532 feet away and across Interstate 880. 

In fact, though, the County chose to measure the 500-foot distance from the closest exterior wall of the building to the closest residential property line rather than from door to door, meaning that the nearest residential property was only 446 feet away from the proposed site. Because of this, the business owners had to seek and obtain a zoning variance, which the appropriate zoning board granted after a public hearing, finding that Interstate 880, as well as other obstructions, prevented “direct traversable access at a distance less than 500 feet from the site to a residentially zoned district.” (This board also found there was a “public need” for the store, and that there was no detrimental public health or safety impact associated with the business.) 

Members of the San Lorenzo Village Homes Association objected and appealed the grant of the variance because they were opposed to “guns and their ready availability” and to a gun shop in their community. When their appeal was sustained and the variance revoked, the business owners brought a lawsuit challenging the ordinance as unconstitutional. In support of their claim that the zoning ordinance was impermissible under the Second Amendment, they commissioned a study showing that the application of the 500-foot rule meant “there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales.” The ordinance effectively “red-lined” all new gun stores out of the county.

In 2016, a three-judge panel of the Ninth Circuit, addressing a motion to dismiss the lawsuit, ruled the suit could proceed. It rejected entirely the County’s argument that the Second Amendment does not extend to the commercial sales of arms: “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. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well.” While a government enjoyed “substantial leeway under the Second Amendment to regulate the commercial sale of firearms” through zoning and licensing, there was “no question that an ordinance restricting the commercial sale of firearms” burdened Second Amendment rights, and the County failed to produce any evidence in support of its justification for the ordinance – that a gun store would increase crime in its vicinity. “Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.”

This ruling was vacated and the case was set for rehearing before a larger (en banc) panel of the Ninth Circuit. (The NRA participated by filing an amicus brief together with the California Rifle & Pistol Association.) 

In a 9-2 decision on October 10, Teixeira v. County of Alameda, that panel dismissed the lawsuit after concluding that the plaintiffs failed to raise a plausible Second Amendment claim.

While recognizing that “firearms commerce plays an essential role today in the realization of the individual right to possess firearms” recognized in District of Columbia v. Heller, the panel majority nonetheless used language in Heller on presumptively lawful “longstanding” prohibitions on the commercial sale of arms to justify treating sales of guns as distinct from the right of potential firearm buyers to acquire them. A “commercial actor’s ability to enter the firearms market” was completely independent of the ability of individuals to exercise their Second Amendment right to keep and bear arms and had no analogous Second Amendment protection. And, as long as residents could purchase firearms and ammunition anywhere in the county, the court held the ordinance had no adverse impact on the rights of individual buyers and consumers. 

The decision is notable for two strongly worded dissenting opinions by Judge Carlos T. Bea and Judge Richard C. Tallman.

Both found fault with the majority’s analysis of the Second Amendment. The reliance on Heller’s language on “longstanding” prohibitions of commercial sales was misplaced – it either didn’t apply to local government restrictions, or required some evidence that the ordinance was itself “longstanding” or in a class of longstanding and similar prohibitions. Pointing out the obvious, both judges found that the Second Amendment right to keep and bear arms necessarily included the indispensable and attendant rights to “buy, service, test, and properly license” firearms. Moreover, Judge Tallman observed the impact of the ordinance could not be “viewed in a vacuum without considering gun restrictions in California as a whole,” where the ordinance added to the already “burdensome” California laws on firearm acquisition, ownership, carrying, and possession.

This ruling is not just a problem for California gun owners. The majority’s decision “inflicts yet another wound on our precious constitutional right,” one that “perpetuates our continuing infringement on the fundamental right of gun owners enshrined in the Second Amendment.” These cases, as Judge Tallman warned, “continue to slowly carve away the fundamental right to keep and bear arms. Today’s decision further lacerates the Second Amendment, deepens the wound, and resembles the Death by a Thousand Cuts.”

TRENDING NOW
King County Unveils “Common Sense” Action Plan: Ban “Semi-automatic, High Velocity Weapons”

News  

Friday, August 10, 2018

King County Unveils “Common Sense” Action Plan: Ban “Semi-automatic, High Velocity Weapons”

In a July 23rd op-ed, Joe McDermott, the Council Chair of King County, Washington, introduced a multi-prong “King County Gun Safety Action Plan” aimed at reducing gun violence.

Divided Appeals Panel Upholds California Ban on Post-2013 Pistols

News  

Friday, August 10, 2018

Divided Appeals Panel Upholds California Ban on Post-2013 Pistols

Imagine if California, to combat what the legislature considered the serious problem of manmade global warming, required all new vehicles sold by car dealers in the state to run on grass clippings, rather than fossil ...

NoFundMe: NRA Protest March Nets $70 in National Fundraising Effort

News  

Friday, August 10, 2018

NoFundMe: NRA Protest March Nets $70 in National Fundraising Effort

Crowd funding is a relatively recent innovation that allows a person or cause to leverage the vast reach of the Internet to raise money for virtually every imaginable purpose. Even small donations of a few ...

Outrage of the Week: Shopify Targets America's Guns

News  

Wednesday, August 15, 2018

Outrage of the Week: Shopify Targets America's Guns

Hundreds of firearms retailers may have to close soon because a powerful Canadian tech company, Shopify, recently decided it was anti-gun and issued an ultimatum: Do business our way or not at all.

Canada: Toronto Mayor Calls for Gun Bans, Ontario Premier Targets Criminals

News  

Friday, August 10, 2018

Canada: Toronto Mayor Calls for Gun Bans, Ontario Premier Targets Criminals

Canadian anti-gun politicians’ campaign to disarm law-abiding citizens continued this week. On Monday, the Canadian press reported on an August 3 letter from Toronto Mayor John Tory to Prime Minister Justin Trudeau. In the missive, Tory appeared to back ...

Adventures in Correlation

News  

Friday, August 10, 2018

Adventures in Correlation

Senator Chris Murphy of Connecticut recently linked to a news article about a CDC report on homicides, claiming that “allowing more guns in more places isn’t making us safer. It’s doing the opposite.”

College Lacrosse Coach Discriminates Against Pro-2A Player

News  

Wednesday, August 8, 2018

College Lacrosse Coach Discriminates Against Pro-2A Player

A college lacrosse player at Palm Beach Atlantic (PBA) University in Florida was told by his coach in June that he had to choose between the team or posting his hunting and firearm pictures online. “You ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

NRA Endorses Hyde-Smith for U.S. Senate

News  

Monday, August 13, 2018

NRA Endorses Hyde-Smith for U.S. Senate

FAIRFAX, Va. – The National Rifle Association Political Victory Fund (NRA-PVF) announced on Monday its endorsement of Cindy Hyde-Smith to represent Mississippi in the U.S. Senate. 

NRA Statement on 3-D Printers and Plastic Firearms

News  

Tuesday, July 31, 2018

NRA Statement on 3-D Printers and Plastic Firearms

FAIRFAX, Va.— Chris W. Cox, executive director, National Rifle Association Institute for Legislative Action, released the following statement on Tuesday:  

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.