9th Circuit Rules There's No Constitutional Right to Sell Firearms. Will the Supreme Court Care?
OCT. 11 2017 2:58 PM
By Mark Joseph Stern
Does the Second Amendment protect an individual right to sell firearms to the public? No, the 9th 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 9th 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.”
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http://www.slate.com/blogs/the_slatest/2017/10/11/ninth_circuit_rules_there_s_no_second_amendment_right_to_sell_firearms.html
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Thanks a lot Mitch!
