Supreme Court

How Long Before The Second Amendment Is Perverted To Include The Right To 'Sell' Arms?

You can't count on the Supreme Court to be originalist when it comes to the Second Amendment.

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(Photo by Jeff Schear/Getty Images for Brady Campaign to Prevent Gun Violence)

Over on Slate, Mark Joseph Stern looks at a fantastic issue: Does the Second Amendment protect the right to sell arms?

Don’t be too quick to answer. Any woman living in Texas harboring the crazy notion that she has a right to control her own body can tell you that a right to have something can be severely restricted if nobody is around to give you the thing you’re entitled to. On the other side, conservatives who believe in a strict, textual understanding of our Constitution can find no language in the Second Amendment that speaks to the right to sell firearms, and we know how conservatives treasure their intellectual consistency.

It’s a thorny issue, but the Ninth Circuit just came down with fairly compelling reasoning that restrictions on gun stores are legal. The case is called Teixeira v. County of Alameda. Stern explains Judge Marsha Berzon’s majority opinion:

Writing for the majority, Judge Marsha Berzon easily dismissed the plaintiffs’ first argument—that Alameda County had infringed upon the rights of prospective gun buyers by refusing to grant the plaintiffs a permit. Alameda County, she explained, already contains at least 10 gun shops, including a Big 5 Sporting Goods store that’s just 600 feet from the plaintiffs’ planned retail establishment. “Gun buyers have no right to have a gun store in a particular location,” Berzon wrote, as long as “their access is not meaningfully constrained.”

Berzon then turned to the plaintiffs’ more substantial argument: whether the Second Amendment confers a right to sell firearms. She began by quoting D.C. v. Heller, the 2008 decision establishing an individual right to bear arms, which stated: “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms,” which are “presumptively lawful regulatory measures.” That passage alone, Berzon writes, strongly suggests that retailers cannot “assert an independent, freestanding right to sell firearms under the Second Amendment.”

I love it when people use Heller’s own logic to uphold gun regulations. Using the force of your enemy against him is cool.

The regulations at issue in Teixeira involve denying permits to gun stores that want to open near: residential areas, schools, day care centers, other gun shops, or liquor stores. That doesn’t sound to me like a fusillade attack on the Second Amendment, it sounds like the most basic of zoning regulations. And if you are going to get all up in arms (zing) over zoning regulations, you need to go sit with Rand Paul at the “I’m sure the market has made this meal safe” table.

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For the rest of us, the ones who still want to live IN A SOCIETY, putting the gun store out of walking range from the goddam LIQUOR STORE seems like a good idea, and a de minimus impact on lawful gun ownership.

But… a sound, originalist interpretation of the Second Amendment might mean nothing to the current Supreme Court. Remember, Congressional Republicans didn’t go through all the trouble of stealing a Supreme Court seat for nothing. Neil Gorsuch has suggested that he’s even more intolerant of gun regulation than Antonin Scalia. If the challengers in Teixeira can scrounge up four votes to get the Court to grant cert in the case, there’s a good chance they’ll get five votes to overturn the zoning restrictions on gun stores.

Because the same people who think a women should have to drive 500 miles to find an abortion clinic think that her boyfriend should be able to buy the gun he’s going to shoot her with on his way home from buying the whiskey that’s going to set him into a rage. Hypocrisy is pretty much the only thing American can produce anymore.

9th Circuit Rules There’s No Constitutional Right to Sell Firearms. Will the Supreme Court Care? [Slate]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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