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Mon May 16, 2016, 02:35 PM

 

Second Amendment may invalidate ban on opening new gun stores in a California county

This is a piece from the Volokh Conspiracy at the WaPo on the 9th Circuit's decision in Texeira v. County of Alameda.

May a county in effect bar all new gun stores in its unincorporated areas? (The incorporated areas would be governed by city zoning rules.) This morning’s U.S. Court of Appeals for the 9th Circuit decision in Teixeira v. County of Alameda [Calif.] suggests that the answer is probably “no.” Here’s a rough summary of the reasoning of the majority (written by Judge Diarmuid O’Scannlain and joined by Judge Carlos Bea):

1. The Second Amendment, in protecting a right to have guns for self-defense, also protects the “right to acquire weapons for self-defense.” Both history and logic supports this:

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. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well. The Supreme Court recognized this principle in very different contexts [citing cases involving the right to use contraceptives and the First Amendment].

Though D.C. v. Heller stated that “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms,” there is no “categorical exception from Second Amendment scrutiny for the regulation of gun stores. If such were the case, the County could enact a total prohibition on the commercial sale of firearms. There is no question that ‘[s]uch a result would be untenable under Heller.’” “Conditions and qualifications” do not include broad prohibitions.


The rest can be found here: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/16/second-amendment-may-invalidate-ban-on-opening-new-gun-stores-in-a-california-county/.

Certainly worth a read.

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Arrow 29 replies Author Time Post
Reply Second Amendment may invalidate ban on opening new gun stores in a California county (Original post)
TeddyR May 2016 OP
FBaggins May 2016 #1
gejohnston May 2016 #2
FBaggins May 2016 #24
Giggity May 2016 #3
scscholar May 2016 #4
TeddyR May 2016 #5
beevul May 2016 #6
Big_Mike May 2016 #7
Giggity May 2016 #9
scscholar May 2016 #10
beevul May 2016 #11
Giggity May 2016 #12
scscholar May 2016 #14
TeddyR May 2016 #15
sarisataka May 2016 #17
TeddyR May 2016 #19
pablo_marmol May 2016 #27
Duckhunter935 May 2016 #26
beevul May 2016 #18
Giggity May 2016 #22
pablo_marmol May 2016 #29
gejohnston May 2016 #16
LineLineLineReply *
sarisataka May 2016 #13
pablo_marmol May 2016 #28
ileus May 2016 #21
Kang Colby May 2016 #23
Duckhunter935 May 2016 #25
theatre goon May 2016 #8
CompanyFirstSergeant May 2016 #20

Response to TeddyR (Original post)

Mon May 16, 2016, 02:45 PM

1. I think the answer is likely facts-specific

If there are half a dozen gun stores in the county and the zoning board feels that the market is saturated and that no more stores are needed... then a prospective gun store owner probably doesn't have a 2A right to force them to change their zoning.

If, OTOH, there are no gun stores in the county (or perhaps within a reasonable distance if it's a small county), and the local government merely wants to leverage zoning powers to block the sale of guns... then 2A probably does protect the prospective gun store owner.

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Response to TeddyR (Original post)

Mon May 16, 2016, 03:07 PM

2. It did

http://www.thetruthaboutguns.com/2016/05/daniel-zimmerman/breaking-9th-circuit-rules-second-amendment-includes-right-acquire-firearms/

Back to TVC. Best comment, it seems to be comparing it to a Texas abortion clinic regulation that has nothing to do with health and safety.
glaucomatose
3:07 PM EDT
The revised ordinance will, I'd imagine, require that any gun store have hallways that are at least eleven feet wide, require no less than six designated parking places for disabled customers, and ensure that each sales clerk have admitting privileges at a local hospital.

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Response to gejohnston (Reply #2)

Mon May 16, 2016, 09:36 PM

24. The abortion clinic example is probably a pretty good one.

Any county can use zoning laws to implement a "we don't want any medical facilities in the western part of the county" policy - which would include any abortion providers that wanted to set up shop. What they can't do is set up a zoning rule that blocks all abortion clinics in the county.

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Response to TeddyR (Original post)

Mon May 16, 2016, 03:24 PM

3. What is even the purpose of banning gun stores?

 

Gun stores are universally required to do background checks.

Isn't Universal background checks something gun controllers support?

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Response to Giggity (Reply #3)

Mon May 16, 2016, 03:45 PM

4. But so many don't do the background checks

 

That's how so many of the guns on the streets get there.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 03:57 PM

5. Any evidence for that claim?

 

Gun store owners run a significant risk by not performing background checks and I'd be surprised if they ever failed to do so.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 04:30 PM

6. "So many"? How many is that?

 

But so many don't do the background checks


Asserting that is one thing. Substantiating it is quite another.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 04:30 PM

7. Not in CA.

Each and every transfer requires a state DOJ background check. Then you have a 10 day waiting period. Street guns are found and bought on the street by and from criminals.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 04:47 PM

9. Gun stores require a Federal Firearms License (FFL)

 

FFLs are required to do background checks on all firearms sales.

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Response to Giggity (Reply #9)

Mon May 16, 2016, 04:48 PM

10. And if they really did the background checks...

 

we wouldn't have to many problems. Where do you think those things come from?

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Response to scscholar (Reply #10)

Mon May 16, 2016, 04:54 PM

11. Have you ever heard of an ATF audit?

 

FFLs go through them, and inventory inspections are performed, and checked against form 4473, to make sure.

As it stands, FFLs really don't have the ability to do what you're claiming they do without getting caught, because of those audits.

The facts do not support your assertion.





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Response to scscholar (Reply #10)

Mon May 16, 2016, 05:05 PM

12. Do you think banning pharmacies would cure the problems we have with drugs?

 

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Response to Giggity (Reply #12)

Mon May 16, 2016, 05:12 PM

14. If pharmacies were flooding the streets with illegal drugs, then yes.

 

But instead, they require prescriptions. Gun dealers should be even more careful because of the extreme danger of the products they sell, but the NRA won't allow reasonable requirements for them.

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Response to scscholar (Reply #14)

Mon May 16, 2016, 05:18 PM

15. I ask again

 

Do you have any support for the bald assertion that gun stores don't perform the required background checks?

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Response to TeddyR (Reply #15)

Mon May 16, 2016, 06:04 PM

17. What if...

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Response to sarisataka (Reply #17)

Mon May 16, 2016, 07:23 PM

19. Sucks

 

When you make up facts and someone calls you on it.

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Response to TeddyR (Reply #19)

Mon May 16, 2016, 11:08 PM

27. Yup.


Quite the "scholar", this one!



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Response to TeddyR (Reply #15)

Mon May 16, 2016, 10:08 PM

26. I think they ran away, lol

 

Typical

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Response to scscholar (Reply #14)

Mon May 16, 2016, 06:20 PM

18. "...but the NRA won't allow reasonable requirements for them."

 

...but the NRA won't allow reasonable requirements for them.


How did these slip by then? Behold:

ATF Federal firearms Licensee Quick Referrence and Best Practices Guide

https://www.atf.gov/file/58676/download

ATF Federal Firearms Regulations Reference Guide

https://www.atf.gov/file/11241/download

Or do you think ATF tends to collude and cahoot with the nra?

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Response to scscholar (Reply #14)

Mon May 16, 2016, 08:05 PM

22. 1) Gun stores aren't flooding the market with illegal guns.

 

2) 52 million people (20 percent of those aged 12 and older) have used prescription drugs for nonmedical reasons at least once in their lifetimes

"The NRA won't allow reasonable requirements for them."
Background checks are required for gun stores.
Are you saying that background checks are unreasonable?

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Response to scscholar (Reply #14)

Mon May 16, 2016, 11:13 PM

29. ".......but the NRA won't allow reasonable requirements for them."


When you can't back up a bald-faced prevarication, pounce on the NRA!



Classic move from The Controller playbook.

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Response to scscholar (Reply #10)

Mon May 16, 2016, 05:25 PM

16. Criminals don't go to gun stores

or gun shows, that was well known among criminologists before the NICS requirement came into being.
http://www.davekopel.org/2A/EncyGunsInAmerSociety/James-D-Wright.htm

Even the prohibition lobby's John Lott says this.
As documented below, survey evidence provides strong evidence
that the gun market is sharply differentiated by the characteristics of
the individual who is seeking a gun. Adults who are entitled to
possess a gun are more likely than not to buy from an FFL. On the
other hand, those who are disqualified by age or criminal history
are most likely to obtain their guns in off-the-books transactions,
often from social connections such as family and acquaintances, or
from “street” sources such as illicit brokers or drug dealers. While
some of these illicit transactions are purchases, they also take a
variety of other forms.

https://d3uwh8jpzww49g.cloudfront.net/sharedmedia/1508093/ccjstudy.pdf

BTW, any violation of the Gun Control Act, including selling without background checks, is up to ten years per gun.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 05:09 PM

13. *



Quick, call the ATF! I'm sure they will be interested in this insight and want to use your information to put these dealers in prison.

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Response to sarisataka (Reply #13)

Mon May 16, 2016, 11:10 PM

28. "Quick, call the ATF!"

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Response to scscholar (Reply #4)

Mon May 16, 2016, 07:50 PM

21. Not if they're an FFL....don't buy into anti hyperbole.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 08:21 PM

23. That is a nonsense statement.

Please cite your sources. There are FFLs who were convicted for clerical errors, I can't imagine you'd find very many willing to violate provisions of the Brady Act.

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Response to scscholar (Reply #4)

Mon May 16, 2016, 10:05 PM

25. What proof do you have

 

Have you notified the ATF of this felony being conducted?

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Response to Giggity (Reply #3)

Mon May 16, 2016, 04:43 PM

8. I think you're expecting consistency...

 

...from a group (anti-gun activists) that often can't even offer coherency in their stated goals, much less simple consistency.

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Response to TeddyR (Original post)

Mon May 16, 2016, 07:40 PM

20. How can anyone suggest that gun stores are a regular source of illegal guns???

 

Last edited Tue May 17, 2016, 06:58 AM - Edit history (1)

"But so many don't do the background checks That's how so many of the guns on the streets get there."

That statement alone is proof that the antis just seem to pull their arguments out of all kinds of unmentionable orifices.

For a gun store, the penalty for not complying with ATF regulations is a complete loss of the business.

There was a very wonderful gun store in my area which was closed by the ATF - and the entire contents of the store auctioned off, for....

Running background checks, but by an unauthorized person doing the checks.

Apparently the owner's husband was running the counter while the owner took breaks to go upstairs (the store was on the main floor of a multi-story house) and that resulted in complete closure of the business.

According to an agreement with the ATF in 2007, Hadley Fitzpatrick wasn’t allowed to buy or sell firearms at Lyn’s Leisure Tyme, Sharpe said. The couple complied for a time, he said, but authorities later received information that Hadley Fitzpatrick again was buying and selling guns.


Gun stores can and do make mistakes, and can and do violate laws. But the penalty is complete loss of the business.

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