Second Amendment

Second Amendment includes right to buy and sell arms, 9th Circuit says in zoning case

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The Second Amendment right to keep and bear arms includes a right to buy and sell guns, a federal appeals court ruled on Monday.

The 2-1 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals reinstated a lawsuit challenging a zoning law regulating the location of gun stores, report the Los Angeles Times, the Wall Street Journal (sub. req.) and the San Francisco Chronicle. How Appealing notes the decision (PDF).

The plaintiffs are three would-be gun store owners who were denied a zoning permit in Alameda County, California, under a zoning regulation that bars gun stores within 500 feet of residential property. They say the ordinance effectively redlines new gun stores out of existence because there are no available parcels in unincorporated Alameda County where they could be located.

The majority opinion by Judge Diarmuid O’Scannlain says the ordinance should be subjected to intermediate scrutiny if it merely regulates the location of gun stores and more rigorous scrutiny if it completely bans new gun stores. In any event, O’Scannlain said, on remand the county should have to provide at least some evidence to support its assertion that gun stores increase crime near their locations or harm the aesthetics of a neighborhood.

“Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion,” O’Scannlain wrote, “we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.”

A dissent by Judge Barry Silverman pointed out that there are already at least 10 gun stores in the county. “When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a 2nd Amendment challenge,” Silverman said. “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.”

The case is Teixeira v. County of Alameda.

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