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Gun Rights Activists Face A Major Setback With Supreme Court Decision

The Supreme Court on Monday declined to hear a civil rights lawsuit brought about by the Calguns Foundation and the Second Amendment Foundation, reason reported. The two pro-gun groups decided to challenge Alameda County, California's zoning laws that effectively ban gun stores, saying it violates county residents' Second Amendment rights.

The National Shooting Sports Foundation (NSSF) and the Cato Institute filed amici curiae briefs with the Supreme Court.

The NSSF argued that restricting a person's access to ammunition and firearms safety training is essentially infringing on that person's Second Amendment right to protect his or her self.

"It is well-established the Second Amendment protects the fundamental, individual right to keep and bear arms which extends to state and local governments. See Heller, 554 U.S. 570; see also McDonald v. City of Chicago, 561 U.S. 742 (2010). As the Ninth Circuit en banc panel recognized, this includes a right to purchase firearms and ammunition. Teixeira, 873 F.3d at 673–76. However, rather than accept what is implicit in Heller – that there is an ancillary right to sell firearms, ammunition and related services – the Ninth Circuit pivots and concludes, erroneously, the Second Amendment “does not confer a freestanding right to sell firearms. . . .” Id. at 687.

"Despite a number of opportunities to do so, there has been no guidance from this Court since 2010 on how lower courts should evaluate laws which infringe on Second Amendment rights; absent such guidance, more and more courts are emboldened, like the Ninth Circuit here, to treat Second Amendment rights as a “second-class right, subject to an entirely different body of rules than other Bill of Rights guarantees.” McDonald, 561 U.S. at 780.

"For those engaged in the lawful commerce in firearms, ammunition and related products and services, a disturbing trend has emerged in recent years, due in part to the promotion of “model laws” within cities and counties in California (and other states),3 to adopt more and more restrictive zoning regulations directed at firearms dealers.4 Such zoning laws can be extraordinarily effective tools to severely reduce the number of – or eliminate altogether – firearms and ammunition dealers from the local landscape. In firearm unfriendly areas in California, for example, of which there are many, all that is required are a handful of like-minded city council members or county supervisors to adopt arbitrary – or worse, carefully drawn – distance limitations or other zoning regulations which will have the desired effect. Thus, in the still of an otherwise dreary planning commission meeting, purveyors of firearms, ammunition and related services are zoned out of existence by restrictions and buffer-zones of varying sizes which have no relationship to governmental interests such as public health and safety."

The Cato Institute argued that the Ninth Circuit diverted from previous precedent when they decided on this case.

In 2017, the Ninth Circuit Court of Appeals sided with the county, saying that "no historical authority suggests that the Second Amendment protects an individual's right to sell a firearm."

The lawsuit was initially brought forth when John Teixeira, Steve Nobriga, and Gary Gamaza formed Valley Guns and Ammo and they began looking for a location throughout Alameda County. Their store would have been the only guns and ammo store in the area to also offer firearms training and certifications, gunsmithing and consignments.

Reason explains the difficulty the three partners had when looking for a location:

"Finding a location was difficult. An Alameda County zoning ordinance singles out gun stores by imposing extraordinarily strict rules. The location must be 500 feet away from any residentially zoned area, from any elementary, middle, or high school, from any preschool or day care center, from any other firearm retailer, and from any liquor stores, bars, or restaurants where liquor is served.

"Alameda's true motive, of course, was to outlaw gun stores. But the three men managed to find a location that complied—it was over 500 feet from the store to the front door of the nearest home—and Alameda's zoning board approved the application. After complaints from anti-gun activists, however, the county changed its policy to require a distance of 500 feet from the store to the nearest area that was zoned for residential use. That made the distance from the store to the nearest home 446 feet, which the county said was not far enough."

According to Justice Clarence Thomas, who submitted a dissenting opinion on Silvester v. Becerra, it's apparent that the Supreme Court refuses to hear anything related to gun rights.

"If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene," Thomas wrote. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court's constitutional orphan. Because I do not believe we should be in the business of choosing which constitutional rights are really worth insisting upon,' Heller, supra, at 634, I would have granted certiorari in this case."

This message has been edited. Last edited by: ChicagoSigMan,

Must be nice having a job where you don't actually have to do your job.

I wonder if it's because the other conservatives on the court are waiting for Kennedy to retire...since becoming a Justice, Kennedy has turned into the John McCain of the Supreme Court.

Why should they ? Guns don’t kill people after all.

quote:

Originally posted by lkdr1989:
I wonder if it's because the other conservatives on the court are waiting for Kennedy to retire...since becoming a Justice, Kennedy has turned into the John McCain of the Supreme Court.

That's been my theory....that Kennedy has signaled that he is not a solid vote for or against expanding 2nd Amendment rights, so both wings of the court are strategically avoiding granting cert to those cases to avoid a bad precedent.

Another possibility is that Kennedy (or possibly Roberts) agreed to be the 5th vote for Heller on the condition that the Court not wade further into 2A jurisprudence.

Or it could be something completely different. We will likely never know for sure unless it comes out in one of the Justices' post-tenure memoire.

Certainly is frustrating.

2A cases go as far as Kennedy and Roberts want them to go. Can't risk granting cert and having either of them get cold feet and serve up a loss.

quote:

Originally posted by ChicagoSigMan:
That's been my theory....that Kennedy has signaled that he is not a solid vote for or against expanding 2nd Amendment rights, so both wings of the court are strategically avoiding granting cert to those cases to avoid a bad precedent.

But in doing so, they leave the bad precedent in place -> the lower courts ruling.

Bunch of gutless cowards.
How about standing up for the Constitution since that is in fact your freaking job.

Government will continue to make laws and favor opposition of the 2A despite the obvious conflict of interest. There will come a day when we will have to exercise a shadow of the 2A in order to gain it back.

quote:

Originally posted by KMitch200:

But in doing so, they leave the bad precedent in place -> the lower courts ruling.

True - but it is not a SCOTUS precedent, which would be binding on the entire nation and much harder to overturn. Also, it just may have been the price for the 5th vote for Heller - "2A is an individual right, but we'll leave it up to the states to further define and regulate the right. The red states can have expansive gun rights and the blue states can have more restrictive laws." Not saying that's what happened, but it's a possibility.

quote:

Originally posted by ChicagoSigMan:


Another possibility is that Kennedy (or possibly Roberts) agreed to be the 5th vote for Heller on the condition that the Court not wade further into 2A jurisprudence.

Did you come up with this on your own or picked it up from some undercurrent? This is the first time I've heard this regarding the supreme court.

While very possible since we're dealing with humans, it raises my eyebrow since I'm under the impression they're not suppose to politicize or barter with issues. Shouldn't each case stand on it's own?

I also agree that if we wait for Kennedy to retire, or Ruth Ginsburg to kick the bucket, we will see the supreme court looking at Second Amendment cases more often. Better to wait and have things our way, or to rush and lose big.

Okay, I gotta say it. I don't that that's a great case to push for a 2nd Amendment decision. Since its a zoning issue, it's only tangentially 2nd Amendment based. It doesn't go directly to ownership or carry (ie "Keep and Bear".) I'd rather see something like an AWB based case hit the SCOTUS, where a state tries to ban ownership of a particular kind of weapon.

That's probably why the supremes didn't take it. It's pretty well established that local governments can use zoning to push out business types they don't like, even if the activities those businesses perform are considered protected for other reasons (think strip clubs and porn shops that have 1st Amendment protection.)

It is very hard to know what is going on at the Court. They don't say, and they don't have to.

It may be even simpler than pointed calculation about which justices would go which way, or "deals" made earlier. (I don't think much of speculation about deals. I can't see the justices being wheeler dealers with each other on big issues - it would cut against their view of themselves as principled jurists.)

It may be that the Court wants this to continue to percolate in the lower courts. Allowing that helps to sharpen the issues and to identify what the questions really are. It may also narrow the issues, reducing what the Supremes would be required to consider.

The Court generally prefers not to make rulings if the lower courts can resolve things, and to make rulings that are as narrow as possible. Describing why that is is a complicated subject, and worthy of a lot more study. But, if the Court makes broader rulings on sweeping topics, it often creates more questions than it answers. Narrow rulings on one question will not answer other questions, although they can suggest where the Court might go on those other questions. But the Court doesn't want to answer a question that turns out to be not all that important.

Further, no court in our system can make advisory rulings - it must make rulings on actual disputes that are actually before it. It won't make grand pronouncements on what is or isn't Constitutionally required in a general way. What it does is answer a specific question presented by a case: Can Washington DC's statute ban handgun possession by private citizens, and can it require lawfully owned guns to be kept locked up and unloaded? The question of whether a statute could prevent private citizens from owning a 20mm antitank rifle was not before the Court in Heller, for example.

The Court may be waiting for a case that frames up the question it actually wants to answer in a good clean way, so that it can be properly answered. Litigants often try to tee these cases up so that they are Supreme Court-friendly, but that right case may not have come along yet. They aren't going to take every dispute about every bit of regulation that is on the books.

quote:

Originally posted by jhe888:
It is very hard to know what is going on at the Court. They don't say, and they don't have to.

It may be even simpler than pointed calculation about which justices would go which way, or "deals" made earlier. (I don't think much of speculation about deals. I can't see the justices being wheeler dealers with each other on big issues - it would cut against their view of themselves as principled jurists.)

It may be that the Court wants this to continue to percolate in the lower courts. Allowing that helps to sharpen the issues and to identify what the questions really are. It may also narrow the issues, reducing what the Supremes would be required to consider.

The Court generally prefers not to make rulings and to make rulings that are as narrow as possible. Describing why that is is a complicated subject, and worthy of a lot more study. But, if the Court makes broader rulings on sweeping topics, it often creates more questions than it answers. Narrow rulings on one question will not answer other questions, although they can suggest where the Court might go on those other questions.

Further, no court in our system can make advisory rulings - it must make rulings on actual disputes that are actually before it. The Court may be waiting for a case that frames up the questions in a good clean way, so that they can be properly answered. Litigants often try to tee these cases up so that they are Supreme Court-friendly, but that case may not have come along yet.

I agree. Who can tell what cases, in what posture, will be along when? Why tie their hands in advance? There is no need to (sorry!) prejudge cases. Not only that but the guy you are bargaining with may not be there by then. These people are pretty old, often.

It’s like agreeing in advance how you will bet at the Friday night poker game next month, before the cards are dealt, or you even know who will be at the table.

Sorry JAllen, I edited while you were posting, but I don't think I made a substantive change.

As to waiting for the composition of the Court to change, it is possible. But consider this: Thomas often advocates that the Court take these Second Amendment cases up. He knows as well as anyone that the Notorious RBG, or Kennedy might go (neither are young) and that Trump would probably appoint someone more in sync with his views. But is he waiting for one of them to be replaced? He is not. I just don't think that is a very big factor for the justices.

quote:

Originally posted by jhe888:
As to waiting for the composition of the Court to change, it is possible. But consider this: Thomas often advocates that the Court take these Second Amendment cases up. He knows as well as anyone that the Notorious RBG, or Kennedy might go (neither are young) and that Trump would probably appoint someone more in sync with his views. But is he waiting for one of them to be replaced? He is not. I just don't think that is a very big factor for the justices.

Well who really knows? I suspect he might just be fanboying, encouraging us to “keep those cards and letters coming in, one of these days we’ll get to it.”

quote:

Originally posted by Rey HRH:

quote:

Originally posted by ChicagoSigMan:


Another possibility is that Kennedy (or possibly Roberts) agreed to be the 5th vote for Heller on the condition that the Court not wade further into 2A jurisprudence.

Did you come up with this on your own or picked it up from some undercurrent? This is the first time I've heard this regarding the supreme court.

While very possible since we're dealing with humans, it raises my eyebrow since I'm under the impression they're not suppose to politicize or barter with issues. Shouldn't each case stand on it's own?

My theory is just speculation, although the idea that the Court is not politicized or does not negotiate on issues is a myth. As JAllen points out, there are a variety of factors that go into the Court's decision to grant cert in a particular case. While I generally agree that we have no way of knowing why they are so far refusing to hear 2A cases, enough time has passed since the Heller and McDonald decisions and the Court has consistently denied cert to all 2A cases since those decisions, that it makes me think it is a deliberate effort to avoid furthering the 2A jurisprudence rather than something related to each individual case that comes up.

We can't know if what we're seeing now is a result of horsetrading for a 5th vote in Heller, the desire to wait for a solid conservative bloc or something else. But with the consistency with which they are turning away 2A cases, it makes me think something is up - Not anything corrupt or nefarious...just something behind the scenes that has them deliberately avoiding 2A issues.

I think this has more to do with commerce rather than 2A

cities can restrict certain types of commerce within the boundaries....lots of places don't allow strip clubs, New Orleans restricts gun stores and sale of ammo, Atlanta restricts the sale of ammo