Constitution Protects Gun Sales

The Second Amendment right to keep firearms has been expanded to protect the right to commercial weapons sales over the attempts by local municipalities to limit gun sales on their turf, a sweeping 9th U.S. Circuit Court of Appeals ruling held Monday.

“The Second Amendment right must also include the right to acquire a firearm,” the appeals court reasoned, in a 2-1 decision.

The court reinstated the constitutional claim by three men, including John Teixeira, who sought to open a gun store in Alameda County, but were blocked by a zoning rule requiring gun stores be 500 feet from private homes.

Early American judges simply assumed the right to keep arms necessarily included the right to purchase them, said Judge Diarmuid O’Scannlain.

“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,” he wrote.

“One cannot truly enjoy a constitutionally protected right when the state is permitted to snuff out the means by which he exercises it; one cannot keep arms when the state prevents him from purchasing them,” he said.

Teixeira researched the San Leandro, Calif. location of his store to determine it meant the distance requirement as well as other county limitations. The store would have been 530-feet, door-to-door, from the nearest home. But the county changed its measurement system to reduce the space to 460-feet, then it denied him the permit to operate.

Following the denial, Teixeira conducted a study and found that there was no land in Alameda County was 500-feet or more from homes, schools, day care centers or liquor stores as required by law.

He was supported by a number of pro-gun organizations, including Calguns Foundation, the Second Amendment Foundation and California Association of Federal Firearms Licensees.

“The Alameda County ordinance burdens conduct protected by the Second Amendment,” O’Scannlain said. He was joined by Judge Carlos Bea.

“We are satisfied that the historical right that the Second Amendment enshrined embraces the purchase and sale of firearms,” O’Scannlain wrote.

In dissent, Judge Barry Silverman said the case is no more than a zoning dispute dressed up as a constitutional Second Amendment claim.

“They are entrepreneurs (and their supporters) who want to operate a gun shop in an area of Alameda County that is not zoned for that use,” he said.

“When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge,” he wrote.

“I like good customer service as much as the next guy, but it is not a constitutional right,” he said.

The case goes back to Judge William Orrick in San Francisco.


Case: Teixeira v. County of Alameda, No. 13-17132



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