On Monday, the U.S. Court of Appeals for the 9th Circuit ruled that the right to bear arms has historically also included the right to acquire firearms.
The case, Teixeira v. County of Alameda, is based on Alameda County, Calif., zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.’”
Plaintiff John Teixeira had contended that the “500-foot rule” was tantamount to a backdoor ban on gun stores.
Writing in the majority opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” “One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it."
— Judge Diarmuid O’Scannlain, U.S. Court of Appeals for the 9th Circuit
To that end, O’Scannlain wrote: “The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that ‘[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.’”
O’Scannlain further wrote that 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.
“One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the State prevents him from purchasing them,” he wrote.
The 9th Circuit majority also quoted the McDonald ruling: The Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Thus, wrote the Teixeira majority, “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, 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.”
Not all the judges agreed with the ruling, however. Judge Barry G. Silverman, a President Bill Clinton nominee, wrote in dissent, describing the case as simply “a mundane zoning dispute dressed up as a Second Amendment challenge.”
Which, we suppose would, in Silverman’s eyes, make Rosa Parks’ act of defiance in not giving up her bus seat to a white person just “a mundane mass-transit dispute.”