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No Second Amendment Right to Sell Guns, 9th Circuit Rules

By William Vogeler, Esq. on October 12, 2017 | Last updated on March 21, 2019

It may be the worst of times for gun sellers in America, or at least in the U.S. Ninth Circuit Court of Appeals.

Valley Guns and Ammo wanted to open a store in Alameda County, California, but the county limited gun sales to areas at least five hundred feet from residential zones, liquor stores, schools, and day care centers.

The business owners sued on Second Amendment grounds, but a trial judge dismissed the case and the appeals court affirmed. In the shadow of the Las Vegas shooting, it's a battle gun sellers are not winning.

Second Amendment

The case, Teixeira v. County of Alameda, drew attention from scores of municipalities and gun organizations as amici. The Second Amendment Foundation, the Calguns Foundation and the California Association of Federal Firearms Licensees joined as plaintiffs.

They argued that the Second Amendment guarantees the right to sell guns. The Ninth Circuit en banc panel disagreed in 9-2 vote.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," Judge Marsha Berzon quoted in the majority decision.

The appeals panel said the amendment includes the right to purchase arms, but that's not the same as the right to sell them.

"A textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms," the appeals court said.

Health and Safety

Through its zoning ordinance, the county sought to preserve the health and safety of its residents. The judges said the ordinance did not impede anyone's right to buy firearms in the county.

There is a gun store 600 feet away from the plaintiff's proposed store, the court observed. As of 2011, there were 12 gun stores already doing business in the county.

The decision ended a twisted trail in the Ninth Circuit, which ruled against the county in 2016. The circuit vacated that decision and agreed to rehear the case in December.

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