Second Amendment Gun Rights ‘On Life Support’ in the Ninth Circuit After Latest Court Ruling

SAN FRANCISCO (October 16, 2017)­­­­­­ – In the wake of a recent ruling by an en banc (full court) panel of the federal 9th Circuit Court of Appeals, some civil rights advocates are declaring that the Second Amendment right to keep and bear arms is “on life support” in the West. The 9th Circuit has 9 western states and 2 Pacific territories in its jurisdiction.

Last Tuesday, the court released a new decision in the case of Teixeira, et al. v. County of Alameda which held that “the Second Amendment does not independently protect a proprietor’s right to sell firearms.”

“It appears that the 9th Circuit may have finally achieved its goal of making the Second Amendment a right in-name-only,” said Brandon Combs, executive director of The Calguns Foundation. “The Supreme Court declared that the Second Amendment was not a second-class right, but lower courts are ignoring that and holding otherwise—and getting away with it.”

“If this case were about bookstores or abortion clinics, this wouldn’t even be a close call,” Combs explained. “We are cautiously optimistic that the high court will step back in and correct the direction of Second Amendment jurisprudence in the 9^th Circuit very soon.”

“It’s hard to imagine the court getting this decision about gun stores more wrong,” said Donald Kilmer of San Jose, the plaintiffs’ attorney. “If there is no Second Amendment right to sell guns through a licensed firearms dealership, then the state government could effectively and simply end all access to firearms by extending the County’s ban statewide.”

“We are evaluating all options, but a petition to the Supreme Court to ask for their review [certiorari] in this case seems very likely,” Kilmer concluded.

“[This] decision perpetuates our continuing infringement on the fundamental right of gun owners enshrined in the Second Amendment….Our cases continue to slowly carve away the fundamental right to keep and bear arms,” said Circuit Judge Richard Tallman in a dissenting opinion. Tallman was appointed to the court by former president Bill Clinton in 1999.

But Judge Tallman was not alone in criticizing the majority’s holding.

Circuit Judge Clarlos Bea said in his dissent that “neither the historical evidence nor the language of Heller supports the majority’s conclusion that the Second Amendment offers no protection against regulations on the sale of firearms.”

The original 3-judge panel decision, now vacated, was authored by now-senior Circuit Judge Diarmuid O’Scannlain.

Notably, Judge O’Scannlain also penned two other significant Second Amendment panel decisions that were historically and textually-grounded, but similarly overturned by the 9^th Circuit sitting en banc: Peruta v. California, a case challenging local “may-issue” concealed carry permit rules, and Nordyke v. King, a case challenging Alameda County’s ban on gun shows.

Teixeira is backed by institutional plaintiffs The Calguns Foundation, Second Amendment Foundation, and California Association of Federal Firearms Licensees.

Kilmer is also an attorney of record in the case of Silvester, et al. v. Calif. Att’y Gen’l Xavier Becerra, currently on petition for a writ of certiorari to the United States Supreme Court. That petition is requesting review of another 9th Circuit decision that flaunted the Supreme Court’s landmark Heller and McDonald rulings. In that case, the 9th Circuit reversed a trial court’s Findings of Fact and Conclusions of Law about the State’s 10-Day Waiting Period Laws after full discovery and a bench trial.

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

California Association of Federal Firearms Licensees (www.calffl.org) is a nonprofit organization serving a diverse membership that includes firearm dealers, training professionals, shooting ranges, licensed collectors, others who participate in the firearms ecosystem, and the public through issue advocacy, regulatory input, legal efforts, and education.