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Even the Liberal 9th Circuit Court of Appeals Recognizes the Right to Sell and Purchase Guns

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In a surprise ruling by what is arguably the most liberal appeals court in the US, the 9th Circuit Court of Appeals ruled in favor of the rights of Americans to not only sell guns, but to buy them as well.

 Teixeira v. County of Alameda  was the case before the court.

KRON reported on the background to the case.

The panel issued the ruling in a challenge by three business partners to an Alameda County law that requires gun stores in unincorporated areas to be at least 500 feet from a residential area.

The three men wanted to open a gun and firearms training store in an unincorporated part of San Leandro, but county zoning administrators found that the site was within 500 feet of a residential area.

A federal trial judge dismissed the lawsuit, saying that the county had a rational basis for enacting the law to protect public safety and preserve the character of residential zones.

The Washington Post reported the facts of the case:

Alameda County, Calif., is located on the eastern side of San Francisco Bay. The county’s 821 square miles include Oakland and Berkeley. The county presently has up to 10 gun stores. (The exact number is factually disputed.) In 2010, several entrepreneurs attempted to open a new store, “Valley Guns & Ammo,” in the town of San Leandro, south of Oakland. They believed that there was an unmet need for a store which provides personalized service; this includes gun smithing, hunter safety training and the firearms safety training which is a prerequisite for gun purchases in the state. The owners complied with the many federal and California regulations pertaining to firearms stores. The West County Board of Zoning Adjustment found that there was a “public need” for the store, that the store complied with the general zoning plan for the area and that the store would have no adverse impact on residents.

However, Alameda County has a general rule against the location of any gun stores within 500 feet of a residentially zoned area, a K-12 school, a pre-school or day care center, another firearms sales business, or any establishment where alcohol is sold or served.

The store was 446 feet from a residential area, as the crow flies. (By foot, bicycle, or automobile, the travel distance was more than 500 feet, partly because the store’s location and the residential area are separated by an interstate highway.) The Zoning Board voted to grant a variance. Then, the San Lorenzo Village Homes Association filed an appeal to the Alameda County Board of Supervisors, because some of the association’s members “are opposed to guns  and their ready availability and therefore believe that gun shops should not be located” in the community. The supervisors, perhaps sharing the association’s naked prejudice against the exercise of constitutional rights, sustained the appeal.

Litigation ensued. The district court granted a motion to dismiss. The 9th Circuit reversed, in Teixeira v. County of Alameda. For purposes of ruling on the motion to dismiss, the 9th Circuit assumed that all facts alleged in the complaint could be proven at trial. The crucial fact alleged by plaintiffs was that the 500 foot rule had the effect of prohibiting any new gun stores in the unincorporated land of the county. (Population density in Alameda County is more than 2,000 persons per square mile, according to the 2010 census. Population density in the U.S. as a whole is 85 persons per square mile. Alameda County’s population density is greater than Taiwan (1,655) but less than Bangladesh (2,477).)

“If the Second Amendment individual right to keep and bear a handgun for self-defense is to have any meaning, it must protect an eligible individual’s right to purchase a handgun, as well as the complimentary right to sell handguns,” Judge Diarmuid F. O’Scannlain wrote. “The right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.”

“The right of law-abiding citizens to keep and bear arms is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees…,'” O’Scannlain added.  “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.”

The Wall Street Journal reports that counsel for Alameda County Donna Ziegler has said they will repetition the 9th Circuit Court to rehear the case.

“Our intent is to continue to defend our ordinance,” said Ziegler.

While a question may be raised over the issue of an ordinance, the reality is that when it come to the purchase and sale of firearms, that is a right to be protected by the government, not infringed upon.


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