Continued Judicial Resistance to the Second Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” According to the U.S. Court of Appeals for the Ninth Circuit, however, acquiring arms has nothing to do with keeping and bearing them. This was the court’s logic when it ruled in John Teixeira’s case that buying and selling guns was beyond the scope of the Second Amendment.

Teixeira sought to open “Valley Guns and Ammo” in Alameda County, California (the East Bay, with Oakland as its seat). The one problem with his plan was a county zoning ordinance that forbids a firearms business from being “within five hundred 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.’” That left virtually no place in the county where a gun store could practicably be located.

After being denied the requisite permits due to complaints of people who may or may not have been within 500 feet of his business’s proposed location, it became apparent to Teixeira that the zoning rule was, in effect, a ban on gun stores. He sued the county and promptly lost in federal district court. A three-judge panel of the Ninth Circuit vacated the lower court’s perfunctory ruling and remanded the case with instructions to consider the ordinance’s Second Amendment implications and have the county justify its rule.

Unfortunately, the county, supported by the state of California, petitioned the Ninth Circuit for a rehearing en banc—normally all the court’s judges, but in the sprawling Ninth, the chief judge and 10 other randomly selected judges. The en banc court reversed the panel, so now the case up on petition for review to the Supreme Court. Cato, along with Jews for the Preservation of Firearms, the Independence Institute, and the Millennial Policy Center, filed an amicus brief supporting that petition.

Our brief tracks the historical scope of the Second Amendment to establish that buying and selling is indeed part of the overall right to keep and bear arms. That right is not only fundamental, but enumerated—and therefore more straightforward for the judiciary to protect. When the government seeks to take an action that impairs such a right, it’s not supposed to be allowed to easily. The lower courts should have required the county to provide substantial evidence that gun stores increase crime around their locations or, in and of themselves, negatively impact the aesthetics of an area. Instead, the Ninth Circuit went up to bat for the county, manufacturing their own justifications and failing to have the county carry its evidentiary burden.

The Supreme Court needs to step in and curb the errant Ninth Circuit’s increasingly boisterous departures from fundamental-rights jurisprudence in the Second Amendment context. We’ll know whether it will take up Teixeira v. Alameda County later this winter or spring.