Gun Rights Activists Face A Major Setback With Supreme Court Decision

By Beth Baumann   |   Townhall

The Supreme Court on Monday declined to hear a civil rights lawsuit brought about by the Calguns Foundation and the Second Amendment Foundation, reason reported. The two pro-gun groups decided to challenge Alameda County, California’s zoning laws that effectively ban gun stores, saying it violates county residents’ Second Amendment rights.

About The Supreme Court Lawsuit

The National Shooting Sports Foundation (NSSF) and the Cato Institute filed amici curiae briefs with the Supreme Court.

The NSSF argued that restricting a person’s access to ammunition and firearms safety training is essentially infringing on that person’s Second Amendment right to protect his or her self.

It is well-established the Second Amendment protects the fundamental, individual right to keep and bear arms which extends to state and local governments. See Heller, 554 U.S. 570; see also McDonald v. City of Chicago, 561 U.S. 742 (2010). As the Ninth Circuit en banc panel recognized, this includes a right to purchase firearms and ammunition. Teixeira, 873 F.3d at 673–76. However, rather than accept what is implicit in Heller – that there is an ancillary right to sell firearms, ammunition and related services – the Ninth Circuit pivots and concludes, erroneously, the Second Amendment “does not confer a freestanding right to sell firearms. . . .” Id. at 687.

Despite a number of opportunities to do so, there has been no guidance from this Court since 2010 on how lower courts should evaluate laws which infringe on Second Amendment rights; absent such guidance, more and more courts are emboldened, like the Ninth Circuit here, to treat Second Amendment rights as a “second-class right, subject to an entirely different body of rules than other Bill of Rights guarantees.” McDonald, 561 U.S. at 780.

For those engaged in the lawful commerce in firearms, ammunition and related products and services, a disturbing trend has emerged in recent years, due in part to the promotion of “model laws” within cities and counties in California (and other states),3 to adopt more and more restrictive zoning regulations directed at firearms dealers.4 Such zoning laws can be extraordinarily effective tools to severely reduce the number of – or eliminate altogether – firearms and ammunition dealers from the local landscape. In firearm unfriendly areas in California, for example, of which there are many, all that is required are a handful of like-minded city council members or county supervisors to adopt arbitrary – or worse, carefully drawn – distance limitations or other zoning regulations which will have the desired effect. Thus, in the still of an otherwise dreary planning commission meeting, purveyors of firearms, ammunition and related services are zoned out of existence by restrictions and buffer-zones of varying sizes which have no relationship to governmental interests such as public health and safety.

The Cato Institute argued that the Ninth Circuit diverted from previous precedent when they decided on this case.

The Backstory

In 2017, the Ninth Circuit Court of Appeals sided with the county, saying that “no historical authority suggests that the Second Amendment protects an individual’s right to sell a firearm.”

The lawsuit was initially brought forth when John Teixeira, Steve Nobriga, and Gary Gamaza formed Valley Guns and Ammo and they began looking for a location throughout Alameda County. Their store would have been the only guns and ammo store in the area to also offer firearms training and certifications, gunsmithing and consignments.

Reason explains the difficulty the three partners had when looking for a location:

Finding a location was difficult. An Alameda County zoning ordinance singles out gun stores by imposing extraordinarily strict rules. The location must be 500 feet away from any residentially zoned area, from any elementary, middle, or high school, from any preschool or day care center, from any other firearm retailer, and from any liquor stores, bars, or restaurants where liquor is served.

Alameda’s true motive, of course, was to outlaw gun stores. But the three men managed to find a location that complied—it was over 500 feet from the store to the front door of the nearest home—and Alameda’s zoning board approved the application. After complaints from anti-gun activists, however, the county changed its policy to require a distance of 500 feet from the store to the nearest area that was zoned for residential use. That made the distance from the store to the nearest home 446 feet, which the county said was not far enough.

A Justice’s Opinion On The Second Amendment

According to Justice Clarence Thomas, who submitted a dissenting opinion on Silvester v. Becerra, it’s apparent that the Supreme Court refuses to hear anything related to gun rights.

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene,” Thomas wrote. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court’s constitutional orphan. Because I do not believe we should be in the business of choosing which constitutional rights are  r’eally worth insisting upon,’ Heller, supra, at 634, I would have granted certiorari in this case.”

The same principle applies here.

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