SAN FRANCISCO, CA (via wsj.com) May 16, 2016 -- The Second Amendment protects the right to buy and sell firearms, as well as the right to keep and bear them, a federal appeals court ruled on Monday.
In doing so, the San Francisco-based Ninth U.S. Circuit Court of Appeals revived a lawsuit filed by three business partners who had planned to open a gun store in Alameda County, Calif., but were denied a zoning permit.
“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,” wrote Judge Diarmuid F. O’Scannlain for the 2-1 majority, quoting the Second Amendment. “One cannot truly enjoy a constitutionally protected right when the state is permitted to snuff out the means by which he exercises it.”
The ruling by the Ninth Circuit builds on previous decisions by federal appeals judges recognizing the right to buy ammunition and to train at firing ranges as protected by the Second Amendment.
Judge O’Scannlain, who was appointed by President Ronald Reagan, was joined in his decision by Judge Carlos T. Bea, an appointee of President George W. Bush.
Judge Barry G. Silverman, named to the bench by President Bill Clinton, wrote in dissent, describing the case as “a mundane zoning dispute dressed up as a Second Amendment challenge.”
“Conspicuously missing from this lawsuit is any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby,” Judge Silverman wrote.
The Alameda County Board of Supervisors rejected a permit for the proposed gun store under a zoning rule prohibiting gun stores within 500 feet of residential property. Planning staff determined the site of the proposed gun store was 446 feet away from the nearest residence.
While the county zoning board initially approved the permit in 2011, the Board of Supervisors revoked it the following year, after a homeowner’s association challenged the decision.
The three business partners—John Teixeira, Steve Nobriga and Gary Gamaza—sued the county in 2012, alleging the ordinance violated the Second Amendment. They commissioned a study of the county to see where a gun store could be located under the ordinance and found no parcels that would qualify, according to the lawsuit.
The ordinance “was basically just a way of redlining gun stores out of existence,” said Donald Kilmer Jr., a lawyer for the business partners.
Donna Ziegler, Alameda County counsel, said officials were reviewing the ruling and considering options, including asking the Ninth Circuit to rehear the case. “Our intent is to continue to defend our ordinance,” she said.
County officials pointed to a number of existing gun stores in the county and defended the ordinance in the interest of preventing gun-related violence and crimes. But the Ninth Circuit majority said they failed to explain how a gun store would increase lawlessness in its vicinity.
A federal trial judge in San Francisco dismissed the lawsuit in 2013, ruling that the right to have a gun provided no guarantee of the right to sell one.
The Ninth Circuit returned the case to the trial court to conduct a new analysis of the county ordinance.