Wednesday, May 18, 2016

Ninth Circuit Finds Second Amendment includes a Right to Acquire Arms

In a ruling released yesterday, the 16th of May, 2016, a three judge panel of the Ninth Circuit Court of Appeals ruled that the Second Amendment includes the right to be able to legally buy firearms from commercial sources.

This is a significant decision in support of Second Amendment right.  It clearly holds that to be able to exercise Second Amendment rights, a person has to have legal access to firearms. The following is part of the summary of the decision, with the full decision available on the pdf file. From Teixeira v. Alameda County(pdf):
Affirming the dismissal of the Equal Protection claims,
the panel determined that this was not a situation where one
group was being denied a right while another similar group
was not. The panel held that because the right to keep and to
bear arms for self-defense is not only a fundamental right, but
an enumerated one, it was more appropriately analyzed under
the Second Amendment than the Equal Protection Clause.
The panel further held that plaintiffs failed to plead a 
cognizable class-of-one claim because they had neglected to
identify a similarly situated business.

Reversing the dismissal of plaintiffs’ Second Amendment
claims, the panel held that the County had offered nothing to
undermine the panel’s conclusion that the right to purchase
and to sell firearms is part and parcel of the historically
recognized right to keep and to bear arms. The panel held
that the Ordinance burdened conduct protected by the
Second Amendment and that it therefore must be subjected
to heightened scrutiny—something beyond mere rational
basis review.

The panel held that under heightened scrutiny, the County
bore the burden of justifying its action, and that the district
court should have required the County to provide some
evidentiary showing that gun stores increase crime around
their locations or negatively impact the aesthetics of a
neighborhood. The panel held that if on remand evidence did
confirm that the Ordinance as applied, completely bans new
guns stores (rather than merely regulating their location),
something more exacting than intermediate scrutiny would
be warranted.
This decision helps put to bed the disarmist contention that they do not have to ban guns; they can just ban ammunition, or gun stores, or require that all guns be locked up, or similar nonsense.  At least this three judge panel is shows some rationality that if a polity does not allow the sale of guns, it makes it quite difficult to exercise Second Amendment rights.

The dissent is particularily chilling.  Judge  Silverman wrote:
Concurring in part and dissenting in part, Judge
Silverman agreed that the equal protection claims were
correctly dismissed, but dissented from the majority’s opinion
regarding the Second Amendment. In Judge Silverman’s
view this case was a mundane zoning dispute dressed up as a
Second Amendment challenge and the district court correctly
ruled that the ordinance restricting the location of a gun
store is “quite literally a ‘law[] imposing conditions and
qualifications on the commercial sale of arms.’”
If you can place conditions and qualifications on the commercial sale of arms without any limits, you can obviously ban the commercial sale of arms.  Two of the three judges on this panel saw the obvious.

The question now is whether Alameda County will ask for an en banc ruling by the entire Ninth Circuit. It is also likely that a single judge in the Ninth Circuit will as for an en banc ruling.  That is what has happened with the Peruta decision, and with the Nordyke v. King decision.  Given the history, I will not be surprised if an en banc review is requested and the court votes to accept it.

The Ninth Circuit heard oral arguments on the Peruta case almost a year ago, on June 16, 2015.  No decision has been issued.  It is not unusual for an en banc review to take more than a year. The final Nodyke decision, also in Alameda County, took over a decade.

Definition of  disarmist

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch

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