(CN) – A San Francisco Bay Area county did not violate the Second Amendment by prohibiting three businessmen from opening a gun store near a residential area because there is no protected right to sell guns, an en banc Ninth Circuit ruled Tuesday.
In 2010, John Teixeira and his business partners Steve Nobriga and Gary Gamaz challenged the Alameda County Board of Supervisors’ decision to revoke a permit to open a shop called Valley Guns and Ammo in an unincorporated part of the county.
The board said the proposed location near San Leandro violated a county ordinance prohibiting gun stores within 500 feet of a residential area. The proposed location was 446 feet from a house.
According to the businessmen’s federal lawsuit, the board changed zoning laws to block the business.
A federal judge dismissed the case in 2013, but the Ninth Circuit revived it last year. Writing for the panel, Circuit Judge Diarmuid O’Scannlain said the businessmen could not prove that their equal protection rights had been violated but made a plausible argument that their Second Amendment rights had been violated.
“Alameda County has offered nothing to undermine our conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms,” O’Scannlain, a Ronald Reagan appointee, wrote.
Dissenting, Circuit Judge Barry Silverman called the lawsuit “a mundane zoning dispute dressed up as a Second Amendment challenge.”
This past March, an 11-judge en banc panel heard arguments in the case. The plaintiffs’ attorney Donald Kilmer argued the Second Amendment also protects the right to sell arms.
Alameda County argued in its briefs the ordinance does not prevent the sale of guns in the county. In an opinion issued Tuesday, the en banc circuit panel agreed.
“Teixeira has not plausibly alleged that the county’s ordinance impedes any resident of Alameda County who wishes to purchase a firearm from doing so,” Circuit Judge Marsha Berzon, a Bill Clinton appointee, wrote for the panel.
“Accordingly, he has failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers.”
The court found there was a Big 5 Sporting Goods store just 600 feet from the proposed location for the gun store, and nine other gun stores in the county.
“Gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained,” Berzon wrote.
The court also concluded the Second Amendment does not protect a person’s right to sell guns, rejecting an analogy Teixeira made to a bookstore’s protections under the First Amendment.
“If Teixeira wanted to sell books and magazines rather than ammunition and magazines, the existence of 10 other bookshops in Alameda County – or on a single street in Alameda County – that could sell his potential customers the same material would be irrelevant to his claimed right to distribute and sell books,” Berzon wrote.
“The First Amendment grants him the right to speak and disseminate ideas, not merely his customers the right to hear them. But Teixeira sells guns instead of books, and the act of selling firearms is not part or parcel of the right to ‘keep and bear arms.’”
The plaintiffs’ attorney Donald Kilmer said he was “disappointed that the Ninth Circuit continues to treat the Second Amendment as a second-class right.”
He said his clients are considering petitioning the U.S. Supreme Court.
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