9th Circuit Rules There’s No Constitutional Right to Sell Firearms. Will the Supreme Court Care?

Does the Second Amendment protect an individual right to sell firearms to the public? No, the 9^th U.S. Circuit Court of Appeals ruled on Tuesday in Teixeira v. County of Alameda, a landmark decision affirming the government’s constitutional authority to strictly regulate gun shops. The 9–2 ruling is a victory for gun safety advocates who feared judicial aggrandizement of the right to bear arms could invalidate myriad laws governing firearm commerce. The decision may be imperiled, however, if the plaintiffs appeal to the Supreme Court, where conservative justices are increasingly eager to expand the scope of the Second Amendment.

Teixeira began as a challenge to a policy passed by Alameda County that imposed certain restrictions on gun sellers. Under the policy, all firearm retailers must obtain a permit, and none may operate near residential areas, schools, day care centers, other gun shops, or liquor stores. The three plaintiffs in the case wanted to open a gun shop but could not get a permit under county policy. They sued on behalf of themselves and their potential customers, alleging that the policy violated the Second Amendment in two ways—by preventing would-be customers from buying a gun, and by prohibiting them from selling firearms. A federal district court dismissed the claim, but a panel of judges for the 9^th Circuit revived it by a 2–1 vote. The court then elected to rehear it en banc, ultimately deciding that the county policy passed constitutional muster.

Writing for the majority, Judge Marsha Berzon easily dismissed the plaintiffs’ first argument—that Alameda County had infringed upon the rights of prospective gun buyers by refusing to grant the plaintiffs a permit. Alameda County, she explained, already contains at least 10 gun shops, including a Big 5 Sporting Goods store that’s just 600 feet from the plaintiffs’ planned retail establishment. “Gun buyers have no right to have a gun store in a particular location,” Berzon wrote, as long as “their access is not meaningfully constrained.”

Berzon then turned to the plaintiffs’ more substantial argument: whether the Second Amendment confers a right to sell firearms. She began by quoting D.C. v. Heller, the 2008 decision establishing an individual right to bear arms, which stated: “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms,” which are “presumptively lawful regulatory measures.” That passage alone, Berzon writes, strongly suggests that retailers cannot “assert an independent, freestanding right to sell firearms under the Second Amendment.”

But to err on the safe side, Berzon conducted “a full textual and historical review.” To start, she analyzed the 1689 English Bill of Rights, the precursor to our Second Amendment, as well as William Blackstone’s influential commentaries on English law. These documents all frame the right to bear arms as one held by individuals, with no attendant right to engage in gun commerce. So did colonial laws in America—which, like the Second Amendment itself, were designed to preserve state militias, not to safeguard a freewheeling arms trade. Moreover, colonial governments routinely regulated the commercial sale of firearms. This history leads to the conclusion that, at the time of its ratification, the Second Amendment was not understood to create “a commercial entitlement to sell guns if the right of the people to obtain and bear arms was not compromised.”

To counter the weaknesses in their historical argument, the plaintiffs draw an analogy to the First Amendment. The freedom of speech, they note, protects the rights of bookshops; shouldn’t the right to bear arms similarly protect the rights of gun sellers? Not at all, Berzon wrote, for two reasons. First, the First Amendment is abstract, declaring that the government “shall make no law … abridging the freedom of speech.” The Second Amendment, in contrast, specifically protects “the right of the people to keep and bear arms.” (Emphasis mine.) A law that restricts the commercial sale of a particular book plainly abridges “the freedom of speech”; a law that limits the number of gun shops in a county does not infringe upon the people’s right to bear arms.

Second, the analogy fails because booksellers hold an independent free speech right to sell whatever expression they prefer, separate from the rights of their customers. “Selling, publishing, and distributing books and other written materials,” Berzon writes, is “itself expressive activity.” Booksellers “consequently have freestanding rights under the First Amendment to communicate with others through such protected activity.” Selling a gun, by comparison, “is not part or parcel of” the right of the people to “keep and bear arms.”

Here, Berzon makes a compelling analogy to abortion clinics that sue to block anti-abortion laws. These clinics can file suit because such laws burden their patients’ rights, not their own. “Never has it been suggested,” Berzon wrote, “that if there were no burden on a woman’s right to obtain an abortion, medical providers could nonetheless assert an independent right to provide the service for pay.”

Since the Supreme Court issued Heller, lower courts have splintered on the nature and the extent of the individual right to bear arms that it established. The 9^th Circuit has emerged as a bastion of common sense, upholding limitations on concealed carry and, now, gun sellers. (Given that Tuesday’s decision brought together arch-conservative Judge Jay Bybee and liberal lion Stephen Reinhardt, it appears a Second Amendment consensus may be emerging within this fractious circuit.) The 4^th U.S. Circuit Court of Appeals has followed a similar course, upholding a ban on assault weapons in February. But other circuits have interpreted Heller and its progenymore expansively. The 7^th U.S. Circuit Court of Appeals, for example, struck down a zoning ordinance limiting the location of firing ranges while the D.C. Circuit Court of Appeals invalidated Washington’s strict concealed carry regime.

Eventually, the Supreme Court will have to wade back into this debate and clarify which approach is correct. Justice Neil Gorsuch has already signaled his hostility to gun safety laws; the city of Washington was so pessimistic about its chances at the Supreme Court that it chose not to appeal the D.C. Circuit’s decision striking down concealed carry restrictions. History counsels that the Constitution tolerates substantial regulation on the sale and possession of firearms. But that doesn’t much matter if five Supreme Court justices decide that gun safety laws are presumptively unconstitutional.