In a shocking ruling, a 3 judge panel held 2-1 that “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms.”
The ruling strikes down an ordinance in Alameda County, California, which prohibited guns stores from being located within 500 feet of a residential zone.
The Second Amendment Foundation, which brought the lawsuit along with the California Association of Federal Firearms Licensees, the Calguns Foundation, Inc., and three businessmen, wrote in a press release:
“This is an important decision,” said SAF founder and CCRKBA Chairman Alan Gottlieb. “It remands the case back to the lower court for further proceedings consistent with the ruling as it pertains to the Second Amendment.”
The district court must now review the case under heightened, or intermediate, scrutiny, which requires that a given law advance a substantial state interest; this level is the middle of three levels of judicial scrutiny.
Previously, cases such as this one often received merely rational basis review, that the regulation has to be “rationally related” to a legitimate state interest (the asserted interest obviously being public safety).
The problem here is that the right to bear arms is a fundamental right, and it deserves far more than just rational basis review. Heck, racial discrimination cases receive strict judicial scrutiny, and government infringement of the right to bear arms is just as unconstitutional as state-sponsored racism.
If racial discrimination cases receive the highest level of judicial scrutiny, then so must the right to bear arms. Both rights are just as enshrined in the Constitution, and both are entitled to the same level of review.
My prediction for this case is that the district court will affirm the constitutionality of the county ordinance, because it’s California and this is a gun-rights case. The lower court will use an emasculated version of intermediate scrutiny and will wiggle their way into affirming the ordinance, despite the ruling of the higher appellate court.
This was exactly what happened, in essence, in the case of New York State Rifle and Pistol Association vs. Cuomo (the SAFE Act case). The district court used the same level of review and upheld most of the law, minus the provision barring gun owners from loading more than 7 rounds into a magazine (how asinine in the first place).
On appeal to the Second Circuit, the appeals court applied intermediate scrutiny as well and affirmed
the ruling of the lower court. This provides precedent for the California district court to use, to justify affirming the ordinance’s constitutionality.
But at this point, who really knows. The Ninth Circuit’s decision instructed the lower court to reevaluate the case in a manner that is consistent with the opinion issued by the higher appellate court.
Either the district court will comply, and find the ordinance unconstitutional, or it will violate the spirit of the ruling, and follow the precedent of the Second Circuit.
Either way, this likely won’t be the end of this case.