Ninth Circuit -- Right to Bear Arms Includes Right to Acquire Arms

From Breitbart California:

The U.S. Court of Appeals for the Ninth Circuit ruled Monday that the right to bear arms has historically included the right to acquire them, and remanded the case of Teixeira v. County of Alameda to the lower court.

Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'”

After being denied the requisite county permits to open “Valley Guns and Ammo” — due to complaints of persons within 500 feet of the proposed business — Plaintiff John Teixeira contended that the “500-foot rule” was tantamount to a backdoor ban on gun stores. And while there was some question over the exact distance between the proposed store and some of those who complained, the issue for Teixeira turned on the right of due process and other rights protected by the Second Amendment.

In summarizing the latest ruling, the court pointed to the Ninth Circuit’s position that Alameda County “had offered nothing to undermine the panel’s conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.”

Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.”

Wow!

Magazines holding more than 10 rounds have been common in America for over 150 years.

From Dave Kopel of the Volokh Conspiracy via Instapundit:

Currently before the Ninth Circuit is an appeal in the case of Fyock v. Sunnyvale, a case which challenges a California’s city’s ban on magazines which hold more than 10 rounds. While the State of California outlaws the sale, import, or transfer of such magazines, the Sunnyvale ban goes further, by prohibiting possession of these magazines, with no provision for grandfathering. The District Court upheld the ban; part of the Court’s analysis stated that magazines did not exist at the time the Second Amendment was ratified. Last Friday, amicus briefs in support of appellant were filed, including a brief which I co-authored on the history of magazines and of magazine prohibition.
..................

The longest section of brief provides the history of magazines, with a particular focus on magazines holding more than 10 rounds. The first such magazine was invented in the late 16th century. Over the next two centuries, many inventors created guns with magazines holding more than 10 rounds. The consumer demand for such magazines is easy to understand: when a gun is out of ammunition, the user is in effect disarmed, and does not possess an operable firearm until the gun is reloaded. As Heller teaches, the Second Amendment protects the right to an operable firearm.

Whoops, that is going to put a whole in the District Court's thinking.

Hawaii's Gun Restrictions Deemed Unconstitutional

From Breitbart's Big Government:

On the heels of two Ninth Circuit Court decisions striking down restrictions on concealed carry permits in California, the same court just put Hawaii on notice that some of its gun restrictions need to be changed as well.

Early in February, the Ninth Circuit Court of Appeals held that San Diego County's rule requiring residents to show "good cause" before being allowed to obtain a concealed carry permit violates the Second Amendment.

"The court ruled that the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense. Moreover, it is a sufficient cause both inside and outside of one's domicile," Breitbart reported on February 13.

Forcing citizens to prove to the government why they should be allowed to gain a carry permit is a process called "may issue." With a may issue rule, government puts the onus on citizens to prove that they should be allowed to observe their Second Amendment rights. The Ninth Circuit essentially informed the California county that it must institute a "shall issue" rule, one that assumes the citizen is eligible for a permit unless government can prove otherwise.

This same rule has now been struck down for Hawaii and by the same Circuit Court.

Wow, two similar pro-gun ruling from the 9th Circus? Several liberals heads must be exploding.

Not safe to display American flag in American high school

From Eugene Volokh of the Volokh Conspiracy at the Washington Post:

Today’s Dariano v. Morgan Hill Unified School Dist. (9th Cir. Feb. 27, 2014) upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.) The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before .....................

This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

This Court decision basically ratifies bad behavior and rewards it. It only encourages more bad behavior. Would the Ninth Circuit uphold a heckler’s veto if students wearing rainbow tee-shirts were being threatened? How about if students wearing Mexican flags were being threatened by Caucasians?

I have a suggestion, ban the Mexican Flag on Cinco De Mayo, as well. If you can't wear American Flags, you shouldn't be able to wear Mexican ones either.

What's on Second? The Ninth Circus -- Gun rights advance in California.

From James Taranto of Opinion Journal:

The lead plaintiff in the case, Edwin Peruta, unsuccessfully sought a permit to carry a concealed firearm. In California, obtaining such a permit is, as Judge O'Scannlain notes in his opinion, "the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense." Applicants for concealed-carry permits "must demonstrate 'good moral character,' complete a specified training course, and establish 'good cause.' " The interpretation of those provisions is left to local authorities.

San Diego County adopted a policy that interpreted the "good cause" requirement as follows: "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way." "Important here," according to the judge (quoting the policy), is that "concern for 'one's personal safety alone is not considered good cause.

Before concluding that the "good cause" policy impermissibly burdened Peruta's Second Amendment right, the judges undertook an extensive historical inquiry to determine that the Second Amendment does indeed protect the right to carry guns outside the home. Other appeals courts, notably the Seventh Circuit, have reached the same conclusion, but the Supreme Court hasn't yet decided the question. Its two recent Second Amendment landmarks, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), both dealt with the right to keep arms in one's own home. It's likely that a case involving the right to bear arms will eventually reach the high court.

Peruta would make a good test case, because it would allow the justices to establish that right without getting into the weeds of what restrictions on it would be reasonable. The plaintiffs do not challenge the requirements of a training course and "good moral character." The former is unobjectionable and is required by many states with permissive "shall issue" carry policies. The latter could be applied in questionable ways--would California deny a carry permit to Bill Clinton?--but it doesn't seem unreasonable on its face.

By contrast, the requirement for "good cause," at least as interpreted by San Diego County, is flagrantly unreasonable. By stipulating that an applicant must "distinguish" himself "from the mainstream"--that ordinary people need not apply--the county transmutes a right into a privilege or dispensation.

The argument on the other side of the question is in fact that Second Amendment rights are not rights at all, or are "collective" rights that belong to state militias, not individuals. (That claim rests uneasily with left-wing insistence that all constitutional rights, particularly freedom of speech, belong only to individuals--though that insistence is an incoherent position and thus also rests uneasily alone.)

The decision was shocking for most Californians, who just assume they will lose in court because of the 9th Circus, lead by buffoons like Stephen Reinhardt.

Ninth Circuit -- The Second Amendment guarantees the right to carry a gun in public

From David Kopel at the Volokh Conspiracy:

The Ninth Circuit’s decision in Peruta v. San Diego, released minutes ago, affirms the right of law-abiding citizens to carry handguns for lawful protection in public.

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.

The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms. .........................

As Heller had observed, there are many 19th century cases which say that a state may ban concealed carry so long as open carry is still allowed. California might have been able to do the same. But it is unconstitutional to prohibit carrying in every mode: “the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”

This is earth shattering, especially coming from the 9th Circuit, which is often referred to as the 9th Circus.


Update: Eugene Volokh offers more thoughts on this decision.

California law essentially leaves most law-abiding adults without the ability to carry guns in public for effective self-defense, period. People are barred from carrying guns either openly or concealed. It is this broad policy that the majority holds unconstitutional.

Thus, if California law had banned concealed carry but allowed open carry (which some states have historically done), that wouldn’t have violated the Second Amendment. And if California law had banned open carry but allowed concealed carry (perhaps requiring a license that pretty much all law-abiding adults could get), that too might well have been constitutional, on the theory that it still left people free to carry guns, but just regulated the “manner” of carrying.

To those who are Gun Control Proponents, Boom!!!!


More thoughts from Allahpundit at Hot Air:

You can ban open carry or you can ban concealed carry but you can’t ban carry entirely without completely depriving people of their right to “bear.”

Yep, you can't have it both ways.