By Dave Workman
Senior Editor
The Second Amendment Foundation is cheering what many in the gun rights community consider a surprising ruling by a three-judge panel in the Ninth U.S. Court of Appeals that said “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms” protected by the Second Amendment.
The 2-1 ruling, written by Diarmuid F. O’Scannlain noted 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.”
SAF founder and Executive Vice President Alan M. Gottlieb applauded the ruling, which remands the case back to the District Court for further proceedings, consistent with the appellate ruling as it pertains to the Second Amendment.
He also noted that the case was supported by a strong amicus brief written by Virginia attorney Alan Gura on behalf of the Citizens Committee for the Right to Keep and Bear Arms.
“This is an important ruling,” Gottlieb said. “Both SAF and CCRKBA are proud of this victory.”
Representing SAF and its co-plaintiffs—the California Association of Federal Firearms Licensees, the Calguns Foundation, Inc., and three businessmen, John Teixeira, Steve Nobriga and Gary Gamaza—was veteran California civil rights attorney Don Kilmer.
[pullquote align=”full” cite=”” link=”” color=”” class=”” size=””]If ‘the right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear.—Judge Diarmuid F. O’Scannlain[/pullquote]
The case challenged an Alameda County ordinance that prohibits gun stores from being located within 500 feet of a residential zone.
“We’re very happy to see the Court take a very principled and reasoned approach to protecting the fundamental, individual right to keep and bear arms,” said Brandon Combs, executive director of The Calguns Foundation, in a statement to the press.
“Given California’s legal requirements to use licensed dealers for firearm transfers and background checks, it’s important that retailers are able to open their doors—and keep them open.”
In his 34-page ruling, Judge O’Scannlain noted, “At the time the Fourteenth Amendment was ratified, which McDonald held applied the Second Amendment against the States, at least some American jurists simply assumed that the ‘right to keep arms, necessarily involve[d] the right to purchase them.’
“As our predecessors recognized,” he continued, “logic compels such an inference. If ‘the right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well.”
The county’s ordinance must stand up under a heightened level of scrutiny. But as Judge O’Scannlain observed, “the county had failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.”
Gottlieb told TGM that this is an important ruling. He pointed to another passage in the judge’s decision that referred to language in the 2010 McDonald ruling, which said, “The right of law-abiding citizens to keep and to bear arms is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.”
The judge’s ruling also referred to several First Amendment cases, along with another SAF case, Ezell v. City of Chicago.
And he also explained that, “the County has failed to advance any argument that the zoning ordinance is a type of regulation that Americans at the time of the adoption of the Second Amendment or the Fourteenth Amendment (when the right was applied against the States) would have recognized as a permissible infringement of the traditional right.”
There was a partial dissent and partial concurrence by Judge Barry G. Silverman that covers about 1½ pages.