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A Ninth Circuit three-judge panel has remanded the case of Teixeira vs. Alameda County back to the lower court for reconsideration. What does that mean? As the ruling reads, “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms.” Translation: backdoor gun sales prohibitions that feature set-off zones from residential areas are unconstitutional . . .


BELLEVUE, Wash.May 16, 2016 /PRNewswire-USNewswire/ — A three-judge panel for the U.S. Ninth Circuit Court of Appeals has issued a 2-1 ruling that “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms” protected by the Second Amendment in a case brought by the Second Amendment Foundation.

SAF was joined in the case by the California Association of Federal Firearms Licensees, the Calguns Foundation, Inc., and three businessmen, John TeixeiraSteve Nobriga and Gary Gamaza. SAF was represented by noted California civil rights attorney Don Kilmer, and the case was supported by an important amicus brief filed by Virginia attorney Alan Gura for the Citizens Committee for the Right to Keep and Bear Arms. Gura won both the Heller and McDonald Second Amendment rulings before the U.S. Supreme Court.

“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 lawsuit was against an Alameda County ordinance that prohibits gun stores from being located within 500 feet of a residential zone. Writing for the majority, Judge Diarmuid F. O’Scannlain noted that, “the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutiny—something beyond mere rational basis review.”

“Both SAF and CCRKBA can be proud of this victory,” Gottlieb stated. “We agree with Judge O’Scannlain’s explanation that ‘the county had failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment,’ as the judge wrote, ‘requires something more rigorous than the unsubstantiated assertions offered to the district court.'”

Quoting the Supreme Court ruling in SAF’s 2010 landmark McDonald case, Judge O’Scannlain reiterated, “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.'”

The Second Amendment Foundation ( 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.

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    • Cali is definitely the big one but look at the map- Montana, Idaho, Nevada, Alaska and Arizona- I’m unfamiliar with the general attitude and policies towards 2A in Oregon and Washington …probably like NC- the more out of the metro areas you get, the more people are pro-2A.

      • California is the same kind of pox on the West in general that cities like Seattle, Portland, and Denver are to their respective states.

        Washington and Oregon have a generally individualistic/myob attitude, but Seattle and Portland are afflicted by progressivism to the point that they’re a cancerous wound on the body politic. You wouldn’t know it if recent lawmaking stupidity is all you had to judge by, but the statewide laws and culture are very gun-friendly in both places.

        In fact, the number of concealed carriers in Washington is among the highest per capita in the nation.

        • >> You wouldn’t know it if recent lawmaking stupidity is all you had to judge by,

          Given that WA has recently legalized suppressors and SBRs, why wouldn’t you?

        • People should remember that Washington passed the Bloomberg transfer law, making California look sane and reasonable (if you were to have a law about loaning guns, California’s is fairly reasonable, for example, you can loan a rifle for the duration of the hunting season +30 days).

    • The California supreme court has made some good pro-2nd amendment rulings. The problem is the attorney general simply ignores them or tries to delay their implementation.

      • Its not the CA Supreme Court, its 9th Circuit- but even then the good rulings have come from 3 judge panels, as I point out below– like Peruta, this can get appealed for an en banc hearing by the whole court. Which will delay things if not completely overturn the decision.

      • Ummm, no. The California Supreme Court has been historically anti-gun, perhaps because most of the justices come from large urban areas. And this is why cases are brought in the Federal District courts, most recently in the Eastern District (mostly the central valley) which is much more conservative than the Northern and Central District courts. it was the Supreme Court that concluded years ago that the Second Amendment did not apply to the states.

    • No, out of Bellevue, Washington. Which, by the way, is one of the heaviest CCW cities in Washington state.

  1. Diarmuid O’Scannlain is a name I’ve run across before. He’s pretty damned conservative or maybe just pro gun. He’s someone you want on firearms cases.

    • O’Scannlain wrote the majority opinion in Peruta v. County of San Diego, concluding that “good cause” for issuance of a CCW is a desire to do so. Needless to say, that opinion was vacated when the case was taken en banc. We are still awaiting the decision from the “full” court (it is actually an 11 judge panel). One of the judges on the panel is the Chief Judge Thomas, who dissented in the original decision. O’Scannlain is consistently pro-2A.

  2. Notice this is a three judge panel. Expect the same thing to happen as with Peruta case where the 3 judge panel directed CCW be issued based on self-defense being sufficient ‘good cause’.

    In that case the state, which hadn’t been a party to the case, petitioned after the ruling to be made part of it and appealed the ruling to the entire court ‘en banc’. The court eventually agreed to an en banc hearing and finally heard the orals last June. Just about a year ago. And they still haven’t released a ruling ….

    Justice delayed is justice denied.

    • En banc is not as common as one might think. Sure with 2A rights cases it’s more likely but it’s not always gonna happen. I check on Peruta weekly, very frustrated that it’s stagnant progress….I wonder if there is some political reason for them to wait. Maybe the pro 2A Judges are putting it off because they are waiting for another circuit or another District Court to rule on another case that supports the original judgement? Idk

      • I don’t know either, but like you I’m frustrated with the delay but don’t know if this is typical for how long it takes to render/publish decisions heard en banc. A year after orals are heard seems like an awfully long time…

      • Seems pretty common for gun issues, and not just in the 9th. Common enough I think these should be heard full bench, seeing as the State always manages to claim ‘compelling interests’ as a primary justification that suggests a higher level of importance. You know, being compelling, and all.

  3. This isn’t even a matter of the case going to ‘en banc’ next. The ruling appears to only be that the lower court can’t use ‘rational basis’ as the standard. ‘Rational basis’ is the lowest standard, but ammophobe courts have managed to make sure that ‘intermediate scrutiny’ isn’t that much higher. Ammophobe courts simply say that they ‘defer to the judgement of the legislature’ and that’s good enough for the ‘heightened scrutiny’ that they call ‘intermediate’ in far too many cases.

    • In this decision, however, O’Scannlain warned that if the ordinance resulted in a complete ban of all new gun stores, as alleged in the complaint (this case was dismissed prior to trial), then the ordinance would be subject to review on a heightened intermediate scrutiny test, not the watered down intermediate scrutiny test that has been applied in some cases in the Ninth (e.g. Jackson) that is nothing more than rational basis dressed up in the language of intermediate scrutiny, i.e., a contention by the public entity that the regulation is necessary in the interest of “public safety,” with no showing other than that proclamation.

  4. This should be in the category of ‘duh’ legal determinations, but with the 9th you can never be sure…

    • exactly! Every time a higher court had to hand a lower court back its consideration because they cannot read, thats a paddlin!

      heck, I say we even let them choose their own switchin stick! They can not get paid for the time and money they wasted of the higher courts, in equal sum or do some community services, also equal sum. Both should include a written apology for their inability to read the laws as written, local news coverage and they gotta take a GED or high school exit exam and pass. Fail, no more public office for you!

  5. Is this an April fools joke? The ninth circus never rules this way. Mark this day in your calendar people.

  6. Gotta love Judge O’Scannlain. He was one of the founders of the Young Americans for Freedom in 1960 (I joined in college a couple of years later), a Reagan appointee, and has promoted a lot of his law clerks to clerking positions on SCOTUS.

    Unfortunately, he’s 79 years old and cannot be expected to continue keeping the Ninth Circus from going completely commie.

    • One more reason we cannot allow Hillary to win. The next POTUS will appoint these judges too.

  7. A decision like this out of the 9th Circuit is a HUGE surprise. Pendulum is swinging in the right direction here.

    • lest you forget, this is still the 9th circuit. Terrifying in and of its self.

  8. Would this ruling or could this ruling also be used against cal DOJ (Kamala Harris) re: micro stamping and drop testing as discrimination , California citizens can’t buy same guns citizens in other states are allowed to purchase. If 2nd amendments also apply as the court has ruled, buying and selling part and parcel of rights guaranteed US citizens.

  9. This ruling is just a speed bump for the gun-grabbers out West. First, the lower court will hear the case and simply make sure that they use the words “intermediate scrutiny” to justifying their gun-grab, even though they will not actually be applying intermediate scrutiny. Second, even if the three-judge panel of the 9th Circuit Court takes exception to the “intermediate scrutiny” wording of the lower court, somehow the 9th Circuit Court will vacate that ruling from the three-judge panel and require an en-banc proceeding. Of course the lower court ruling will stand during the years of delays for the en-banc proceeding to work its way through … after which the 9th Circuit Court en-banc will uphold the lower court ruling.

    Our courts no longer operate according to the rule of law. They operate according to political party platforms.

    • If it was truly that easy, the case wouldn’t have been heard in the first place. They used routine scrutiny because it is unlikely to pass intermediate scrutiny. The type of scrutiny is not just words in paper, but a legal standard. They have to address the requirements and make sure it meets the standard. If not, it would likely be struck down by the 9th when it comes back if lower court fails to appropriately apply the standard.

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