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
Shipping Companies Prohibit the Lawful Shipping of Firearms

News  

Monday, September 19, 2022

Shipping Companies Prohibit the Lawful Shipping of Firearms

Wondering what federal law says regarding individuals who do not have a Federal Firearms License (FFL) that need to ship firearms? Well, if you go to the website for the Bureau of Alcohol, Tobacco, Firearms and ...

Brace Yourself: Biden Administration Reinterprets “Firearm,” Prepares Crackdown

News  

Monday, August 29, 2022

Brace Yourself: Biden Administration Reinterprets “Firearm,” Prepares Crackdown

When we say “brace yourself,” we’re not kidding. The pistol brace rule is coming as well. But first, a different sort of crackdown was unleashed on the nation this week, as an ATF rule published ...

Financial Surveillance Used to Build Gun Owner Registry

News  

Monday, September 19, 2022

Financial Surveillance Used to Build Gun Owner Registry

On September 9, the International Organization for Standardization (ISO) approved a Merchant Category Code (MCC) for firearm retailers. The ISO is a Geneva-based non-governmental organization that consists of a network of “standards bodies” from around the globe ...

New Credit Card Rule Creates Gun Registry

News  

Tuesday, September 13, 2022

New Credit Card Rule Creates Gun Registry

On September 9, the International Organization for Standardization (“ISO“) announced that it would create a new Merchant Category Code (“MCC”) specific to firearm and ammunition retailers. MCCs are the codes that payment processing networks (like ...

OREGON: Vote NO on Ballot Measure 114!

News  

Thursday, September 15, 2022

OREGON: Vote NO on Ballot Measure 114!

Ballot Measure 114 is the nation’s most extreme gun control Initiative and will be voted on this November! The NRA has launched a website to inform voters why they must VOTE NO on Ballot Measure 114.  It ...

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

News  

Friday, April 1, 2022

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

Half the country will now enjoy the freedom to carry a handgun for self-defense without a permit from the state thanks to the tireless efforts of men and women of the National Rifle Association. 

Woke Gotham: Putting Politics Before Public Safety

News  

Monday, September 19, 2022

Woke Gotham: Putting Politics Before Public Safety

For years now, leftist politicians across America have promoted a pro-criminal agenda that included gun control initiatives marketed as “public safety” measures, no-bail and other criminal law reforms, and “depolicing” communities.

South Carolina: The City of Columbia Passes More Unconstitutional Gun Control

Friday, September 23, 2022

South Carolina: The City of Columbia Passes More Unconstitutional Gun Control

Last week, the Columbia City Council passed Ordinance No.: 2022-080 to require its residents to report their lost or stolen firearms to the police within 24 hours or face up to a $500 fine. This is ...

Brace Yourself: ATF Reconsiders Obama-Era Policy on Stabilizing Braces

News  

Gun Laws  

Tuesday, April 25, 2017

Brace Yourself: ATF Reconsiders Obama-Era Policy on Stabilizing Braces

News broke this week that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has reconsidered and “clarified” its Jan. 6, 2015 Open Letter on the use of stabilizing braces as shoulder stocks.

ATF Mass Denial of Suppressor Form 1 Applications

News  

Monday, March 7, 2022

ATF Mass Denial of Suppressor Form 1 Applications

On February 28, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) denied approximately 850 Form 1 applications for prospective makers of suppressors. These denials were apparently made due to a change in ATF policy ...

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.