Column: An appeals court upholds a gun store ban, despite the 2nd Amendment


The U.S. 9th Circuit Court of Appeals has taken a swipe at 2nd Amendment absolutists by ruling that, however one interprets the Constitution’s guarantee of a right to “keep and bear arms,” it doesn’t mean that gun shops have an absolute right to locate themselves anywhere they wish.

The 9-2 ruling in Teixeira v. County of Alameda, handed down Tuesday by the San Francisco-based court, upheld an Alameda County ordinance that banned new gun shops within 500 feet of schools, day care centers, liquor stores or bars, other gun stores, and residential districts.

Teixeira amounts to an important narrowing of the rights ostensibly conferred by the 2nd Amendment. Judge Marsha S. Berzon, writing for the majority, made a clear distinction between the “people’s” right to keep and bear arms and the rights of gun sellers, which she found to be conditional.


The act of selling firearms is not part or parcel of the right to ‘keep and bear arms.’

— U.S. Appeals Court Judge Marsha S. Berzon

The ruling may be heartening for “gun safety advocates who feared judicial aggrandizement of the right to bear arms could invalidate myriad laws governing firearm commerce,” as Mark Joseph Stern observes in Slate. The ruling seems almost predestined for review by the Supreme Court, where the addition of Justice Neil Gorsuch to the bench may have intensified a majority’s hostility to gun laws of almost any kind. That said, the court has been reluctant to step back into the gun-rights fray since roiling the waters with a 2008 ruling.

The Alameda County case was brought by John Teixeira, who planned to open a gun shop in the unincorporated neighborhood of San Lorenzo in 2010. The Alameda County Board of Supervisors denied him a permit after finding that his chosen location fell within 500 feet of a residential zone. Backed by a coalition of gun rights groups, Teixeira sued to overturn the ordinance, arguing that the law was so restrictive that there were no locations left within Alameda’s unincorporated areas that would allow a gun store. A federal district court threw out his case but was overruled last year by a three-judge panel of the 9th Circuit, which sent the case back down for further proceedings; the full circuit court then took up the case, and on Tuesday upheld the original district court’s original dismissal.

The case turned on the question of whether the 2nd Amendment allows regulation of commerce in firearms. Courts have disagreed on the issue, in part because the leading 2nd Amendment case, the Heller decision handed down by the Supreme Court in 2008, left the question murky. “Nothing in our opinion,” Justice Antonin Scalia wrote for the majority, “should be taken to cast doubt on longstanding. . . laws imposing conditions and qualifications on the commercial sale of arms.” To lawyers, those words still left room to challenge ordinances aimed at sellers of guns and ammo.

In her analysis, Judge Berzon observed that the 2nd Amendment applies chiefly to the right of people to keep and bear arms, not the rights of sellers. She made short work of Teixeira’s claim that banning his store seriously compromised the right of county residents to acquire guns.

She quoted from the dissent in the earlier appellate ruling: “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.” Rather, she observed, “As of December 2011, there were ten gun stores in Alameda County….In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira’s planned store, at a Big 5 Sporting Goods store.”


Berzon also rejected Teixeira’s assertion that his establishment deserved the same legal protections and immunity from regulations as bookshops, newspapers and abortion providers. The 1st Amendment, she noted, entails a general ban on laws abridging freedom of speech or the press; the 2nd Amendment is more narrowly directed at a personalized right to keep and bear arms. Booksellers and other media purveyors, she wrote “are themselves engaged in conduct directly protected by the First Amendment.” By contrast, “the act of selling firearms is not part or parcel of the right to ‘keep and bear arms.’”

Berzon likened Teixeira’s claim to that of contraceptive and abortion providers. When they have challenged laws restricting their activities, she wrote, the question for the courts always has been “whether the challenged laws burden their patients’ right to access reproductive health services, not whether the laws burden any putative right of the provider.” No one has ever suggested, she wrote, that if there were no burden on a woman’s right to an abortion, “medical providers could nonetheless assert an independent right to provide the service for pay.”

The Teixeira ruling joins a growing docket of gun-rights cases that may be headed for the Supreme Court. That’s because the appeals courts are all over the map, juridically speaking. The 9th Circuit last year upheld California’s regulations limiting the right of concealed carry outside the home. In February, the Richmond, Va.-based 4th Circuit upheld Maryland’s ban on assault weapons and large-capacity magazines. The Chicago-based 7th Circuit struck down a Chicago law banning gun ranges from almost anywhere in the city via zoning rules, and the District of Columbia Circuit struck down a D.C. law placing strict limits on who could qualify for a concealed-carry permit.

In recent sessions, however, the Supreme Court has shown itself to be gun-shy. In June, the court turned away an appeal from the 9th Circuit ruling on California’s concealed carry law. It also refused to hear a 7th Circuit ruling upholding a Chicago suburb’s assault weapons ban. In 2015, the justices refused to review a 9th Circuit ruling upholding a San Francisco ordinance requiring trigger locks and placing other restrictions on guns in the home.

All those opportunities to clarify the landscape on gun regulations came up after the Heller decision, which overturned decades of constitutional law finding that the 2nd Amendment guaranteed the individual right to bear arms. The carnage from gun violence has only increased since then, along with controversy over gun rights. At some point, the Supreme Court will feel it incumbent to step in. Given the makeup of the court, gun control advocates have reason to be nervous.

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11:10 a.m.: This column has been updated to clarify the lower court proceedings.