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Federal appeals court: no Second Amendment right to sell firearms

[JURIST] The US Court of Appeals for the Ninth Circuit [official website], sitting en banc, ruled [opinion, PDF] Tuesday that "a textual and historical analysis of the Second Amendment [GPO backgrounder, PDF] demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms."

The plaintiffs in the case were three individuals, John Teixeira, Steve Nobriga and Gary Gamaz, who were joined by Calguns Foundation Inc. (CGF), California Association of Federal Firearms Licensees (CALFFL) and the Second Amendment Foundation, Inc. [advocacy websites], as interested parties. The individual plaintiffs alleged that a county zoning ordinance in Alameda, California, violated their Second Amendment rights by denying them conditional use permits to open a gun shop near a residential area.

The zoning ordinance in question requires "businesses selling firearms in unincorporated areas of the County be located at least five hundred feet away from any of the following: schools, day care centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts."

The lower court dismissed the claim for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) [text, PDF], but a three-judge panel of the Ninth Circuit initially reserved [JURIST report] the Second Amendment ruling. When the case came back to the full bench, the en banc court affirmed the district court's ruling. The court stated:

no contemporary commentary suggests that the right codified in the Second Amendment independently created a commercial entitlement to sell guns if the right of the people to obtain and bear arms was not compromised. .... In short, no historical authority suggests that the Second Amendment protects an individual's right to sell a firearm unconnected to the rights of citizens to "keep and bear" arms.

Concurring Judge John Owens stated that this issue could have been decided without delving into the question of whether there is a constitutionally protect right to "sell" firearms, because the county ordinance in question here falls within that category of "presumptively lawful regulatory measures" described in District of Columbia v. Heller [opinion, PDF]; and therefore, the plaintiffs do not have a viable Second Amendment claim.

Judge Richard Tallman concurred in the judgement insofar as dismissing the claim but disagreed with the majority's analysis of the Second Amendment challenge to locating a full-service gun shop in the contested area stating that the analysis interfered with the right of its customers to keep and bear arms. Judge Carlos Bea dissented stating: "neither the historical evidence nor the language of District of Columbia v. Heller, supported the majority's conclusion that the Second Amendment offers no protection against regulations on the sale of firearms."

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