win in texeria

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. .........

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The dissent does not share our concern over Alameda County’s attempt to restrict the ability of law-abiding Americans to participate in activity protected by the Second Amendment. According to the dissent, there is no constitutional infirmity so long as firearm sales are permitted somewhere in the County. We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than “a mundane zoning dispute dressed up as a [First] Amendment challenge”? Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.

Such an ordinance, of course, would give us great pause. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment. The right of law-abiding citizens to keep and to bear arms is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald v. City of Chicago. Indeed, it is one “that the Framers and ratifiers of the Fourteenth Amendment counted … among those fundamental rights necessary to our system of ordered liberty.” Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.

We reiterate Heller and McDonald’s assurances that government enjoys substantial leeway under the Second Amendment to regulate the commercial sale of firearms. Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.

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gprimr1 said:

This O'Scanlon guy needs to be on SCOTUS.

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gprimr1 said:

This O'Scanlon guy needs to be on SCOTUS.

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The U.S. Court of Appeals for the 9th Circuit decision Monday in Teixiera v. County of Alameda vindicates the Second Amendment rights of gun stores and provides a good model of the Second Amendment doctrines that have been developed by the federal Circuit Courts of Appeals. Eugene Volokh’s post has summarized the decision, so I will delve into the doctrinal details......

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wjackcooper said:

Great win, but press 1280 may well be correct in pointing out "time for another en banc."

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esqappellate said:

Naa, en banc is not very likely at this posture of the case. Remember this was just a Rule 12(b)(6) dismissal by the district court and the decision just remanded the case for an adjudication on the merits of the allegations.

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