The Ninth Circuit on Gun Shops | county of alameda gun shops

James_R_Browning_CourthouseThe 9th Circuit is known for being the most liberal of the federal circuits as well as being the most overturned. You can practically expect that every case heard here will come out on the liberal side of things. However, today the court made a ruling that showed it still has some independent thought. A Sacramento criminal lawyer suggested that this case will have a noticeable effect on how other California counties deal with the issue.

A 2nd Amendment based case dealing with Alameda county’s gun shops came before the court. Specifically, Alameda county had an ordinance which prohibited gun shops from existing within 500 feet of  a residential area. The plaintiffs originally brought the suit because the ordinance made it practically impossible for a gun shop to exist in Alameda county due to the geographic set up of the area.

The plaintiffs decided to file their claim under both an Equal Protection challenge and as a 2nd Amendment issue. The court dismissed the E.P. component of the action claiming that the issue did not involve two groups being treated distinctly. Instead, the court found that the Second Amendment issue was more applicable to the circumstances.

The Central Issue of Teixera v. County of Alameda

CourtOfAppeals-9thCircuit-Seal.svgThe main issue, as stated by the court, is whether the right to bear arms also encompasses the right to buy and sell firearms. The court couched the issue as whether the 2nd Amendment had any effect on regulating firearms sold in the commercial context. The court decided that the issue at hand should be subject to heightened scrutiny due to the 2nd Amendment issue.

Deconstructing the Opinion

The court first considered the issue as to whether the commercial sale of arms is limited or authorized by the 2nd Amendment. The court took a look at the Heller case for some guidance. The Heller court did a historical analysis of the right to bear arms and its implications on the right to sell or buy arms. However, the 9th Circuit took the historical analysis a little further and delved into the intricacies of the Second Amendment.

The court recognized that historically the country’s founders understood that the right to bear arms didn’t exist alone. Prohibiting the sale and purchase of arms inextricably affects one’s right to bear arms. The right to bear arms itself was created from the recognition of the need to defend one’s self. The court used the following William Blackstone quote to illustrate this:

 [T]he natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
The new Americans held on to this belief which was originally fostered by British subjects. The first state to have a right to bear arms is arguably Virginia, where the right existed while England still ruled the colonies. Other states followed along and resistance wasn’t met until William Knox attempted to prohibit the production of firearms in 1777. Fortunately, Knox could never implement his plan because the Americans won their freedom before he could garner enough support.


Once the colonies joined after the revolution, the Second Amendment was ratified. Around this time Americans wholeheartedly believed that the right to bear arms also included the right to purchase and sell such weapons. Thomas Jefferson echoed this sentiment when he stated that “[o]ur citizens have always been free to make, vend, and export arms.”


In finishing its historical analysis, the court felt that logic supports that one can not exist without the other. The court also noted that the County (defendant) had no evidence which proved to the contrary. As such, the circuit court found that the district court’s earlier ruling was unfounded. The 9th Circuit went on to fashion a heightened review for the ordinance with the mandate that the lower court review the case under such standard.