9th Circuit Will Rehear Case on the 'Right to Buy Arms'

The Second Amendment, a Ninth Circuit panel ruled in a 2-1 decision last May, protects not just the right to bear arms for self-defense, but the "right to acquire weapons for self-defense." The ruling came after a challenge to an Alameda County zoning law that allegedly barred all new gun stores in unincorporated areas. It meant that gun store regulations could be subjected to Second Amendment scrutiny, requiring the government to provide a strong public-safety justification for such restrictions.

Now, the circuit has agreed to rehear that case, Teixeira v. County of Alameda, en banc. Yesterday, a majority of Ninth Circuit judges voted to vacate the panel decision and rehear the case before an 11-judge panel.

A Right to Buy Arms?

Alameda County, which includes much of San Francisco's East Bay, including the cities of Oakland and Berkeley as well as the distant reaches of the Tri-Valley, has a "500-foot rule" for gun shops in unincorporated areas of the county. (Gun store zoning rules in incorporated areas are determined by the cities themselves.) Under that rule, no new gun store may be opened within 500 feet of residential zones, schools, day cares, liquor stores, bars, or other firearm sales businesses.

The rule, according to gun shop owner John Teixeira, made it impossible to open any new firearms businesses. It was, he argued in his suit against the county, a de facto ban on gun stores and thus on an individual's ability to bear arms.

He found a receptive ear in the Ninth Circuit. In an opinion by Judge Diarmuid F. O'Scannlain, the panel found that the right to purchase and sell arms was "part and parcel of the historically recognized right to keep and bear arms" and that laws impinging on that right were thus subject to Second Amendment scrutiny.

"Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms," Judge O'Scannlain wrote.

Rehearing Teixeira

The decision threatened to seriously weaken local laws restricting firearm retail locations -- and to offer new legal ammunition to Second Amendment advocates looking to overturn such restrictions. That is, until yesterday.

On Tuesday, the Ninth Circuit announced that it would rehear the case and vacated the earlier decision.

Oral arguments are scheduled for March with a decision expected in late spring or early summer. That decision could be in line with the earlier panel's opinion, but as Eugene Volokh writes on his blog, "given the vote to hear the case en banc, the odds aren't great."

Related Resources:

• Second Amendment Protects Right to Buy and Sell Guns, Court Rules (The Wall Street Journal)
• California's 'Cool Down' Period for All Gun Purchases Upheld by 9th Cir. (FindLaw's U.S. Ninth Circuit Blog)
• 2nd Amend. Doesn't Grant Right to Carry in Public, 9th Cir. Says (FindLaw's U.S. Ninth Circuit Blog)
• Rage Against the Machine (Gun) (FindLaw's U.S. Ninth Circuit Blog)