SF appeals court says constitution doesn't include a right to sell guns

SAN FRANCISCO (BCN) A federal appeals court in San Francisco today upheld an Alameda
County law restricting the location of gun stores, saying that the constitutional right to bear arms does not include a separate right to sell guns. 

A panel of the 9th U.S. Circuit Court of Appeals by a 9-2 vote upheld a lower court judge's dismissal of a lawsuit in which three would-be gun shop operators challenged the ordinance.

"A textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms," Circuit Judge Marsha Berzon wrote
for the majority.

The 1998 ordinance prohibits locating gun stores within 500 feet of residential areas, schools, liquor stores and other gun shops in unincorporated areas of the county.

Seventeen other cities and counties in California have similar regulations, according to court filings.

The three men who sued the county wanted to open a gun store and firearms training facility in an unincorporated area near San Leandro, but county administrators determined the site was less than 500 feet from a residential area and denied a permit.

The applicants, joined by three gun rights' groups, then sued in 2012, claiming the measure violated their potential customers' constitutional Second Amendment right to keep and bear arms as well their own right to sell guns.

The appeals court majority rejected both those arguments.

The panel said the plaintiffs hadn't proved the law impaired county residents' right to possess guns, since as of 2011, there were 10 other gun stores in the county, including one 600 feet from the proposed new
shop.

It also said the wording of the Second Amendment - "the right of the people to keep and bear arms shall not be infringed" - and court rulings interpreting it do not show a separate right to sell guns.

"That language confers a right on the 'people' who would keep and use arms, not those desiring to sell them," Berzon wrote.

County Counsel Donna Ziegler and Donald Kilmer, the plaintiffs' attorney, were not immediately available for comment today.

The three groups that joined the lawsuit were the Calguns Foundation, Second Amendment Foundation and California Association of Federal Firearms Licensees.

In earlier proceedings, U.S. District Judge William Orrick dismissed the lawsuit in 2013.

But last year, a three-judge 9th Circuit panel said by a 2-1 vote that the ability to buy guns is "close to the core of the Second Amendment." It said the trial judge should reconsider whether the county had a substantial reason for enacting the law.

The county then successfully appealed to the 9th Circuit for a rare rehearing before an 11-judge panel, which today overruled the smaller panel and upheld the dismissal of the lawsuit.

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