2nd Amendment is not a second-class right

In Teixeira v. Alameda County, 2017 DJDAR 9780, an en banc panel of the 9th U.S. Circuit Court of Appeals vacated a three-judge panel's opinion that would have allowed a licensed gun dealer to proceed with a trial court challenge to an Alameda zoning ordinance that kept him from opening a gun store in that county.

The original three-judge panel filed a rather uncontroversial opinion. Essentially: Before a government entity can use zoning regulations to redline (outlaw) gun stores, those regulations should be subject to the same evidentiary burdens and the same level of judicial scrutiny as a zoning regulation that would outlaw a book store. Teixeira v. County of Alameda, 822 F.3d 1047 (2016).

With this en banc decision, a recalcitrant 9th Circuit continues its defiant trend of treating the Second Amendment like a second-class right.

America's petition for divorce from Great Britain, aka the Declaration of Independence, serves us today primarily as an aspirational document. Whether America's Constitution is merely an aspirational homily or a legally binding charter was answered long ago. Marbury v. Madison, 5 U.S 137 (1803).

The central thesis of the Declaration, that "all men are created equal" went unfulfilled in our Constitution. It remained constitutionally dormant through the blood-letting of the Civil War. Even after ratification of Amendments 13, 14 and 15, many southern states (and some northern ones) remained defiant in the face of these new constitutional commandments about the meaning of citizenship.

That defiance took the form of pretextual laws, seeking to "merely regulate" the right to vote, hold public office, sit on jury, speak publicly, publish, and petition the government. Not surprisingly, red-herring justifications for laws to limit the right to keep and bear arms also emerged. State and federal court systems sanctioned laws upholding literacy tests, poll taxes, arbitrary voter registration requirements, zoning rules, property covenants, and racial segregation in public accommodation and public education. And yes, the Black Codes included everything from picayune rules to outright bans against owning, acquiring and keeping firearms.

The foul stench of Dred Scott v. Sandford, 60 U.S. 393 (1857), could -- at least, and in part -- be attributed to its antebellum pedigree. But even after ratification of the post-Civil War Amendments, cases like United States v. Cruikshank, 92 U.S. 542 (1875); Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896); and Williams v. Mississippi, 170 U.S. 213 (1898), maintained the inertia of vicious policies. An additional 100+ years of public interest litigation was necessary to demote these cases from binding precedent to embarrassment.

The recent litigation history of the "right to keep and bear arms" standing alone may not have the full range and gravitas of the litigation to defeat Jim Crow (even though many states failed to protect Second Amendment rights as part of that legacy). But there is similar evidence, even if only in a microcosm, of judicial resistance to unpopular rights. In California, Hawaii, New York, New Jersey, Massachusetts, San Francisco, Chicago and Washington, D.C., that unpopular right is the Second Amendment.

The full rights of American citizenship lay dormant from 1776 to (at least) 1964 -- 188 years. That's a long time between a promise and its fulfillment, even if you use the Civil Rights Act of 1964 as an optimistic cut-off date. The Second Amendment, first ratified in 1791, lay dormant against the federal government's infringement until 2008 in District of Columbia v. Heller, 554 U.S. 570. It only became an enforceable right against state governments in 2010 in McDonald v. City of Chicago, 561 U.S. 742.

It is this period of dormancy and renaissance of a fundamental right, against the entrenchment of a judicial philosophy antithetical to the right, that invites certain comparisons. Why did courts refuse to apply a liberal reading of the post-Civil War amendments? Was it only the elitism of a race-based theory of the social contract? Or was it the broader elitism that judges should perpetuate certain policies they deem wise, rather than apply the plain text and original public meaning of the Constitution and its amendments?

Why do courts today insist on a stingy, cramped reading of our newest fundamental right? In a recent dissent from an order denying a petition for certiorari in Peruta v. California, 582 U.S. ___ (2017), Supreme Court Justices Clarence Thomas and Neil Gorsuch wrote:

"The Court's decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6) ('The Court's refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court's willingness to summarily reverse courts that disregard our other constitutional decisions'); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) ('Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document'). The court has not heard argument in a Second Amendment case in over seven years -- since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments."

In Teixeira, there isn't even a rational, fact-based reason for denying Teixeira and his business partners permission to open their store. There were no facts presented by the government that a gun store, at the location proposed, posed any public safety problem. The original three-judge panel merely sent the case back to the trial court with instructions to put the government to its proof that a gun store, at that location, posed a particularized risk.

Unless the U.S. Supreme Court takes corrective action, state and local governments will be free to make up rules with no basis in fact or settled science, to diminish, if not outright ban the right to engage in commerce of any goods and services that judges deem too dangerous for common folks to exercise.

In 2003, then-Chief Judge Alex Kozinski, writing in a dissent to another Second Amendment case wrote: "The majority falls prey to the delusion -- popular in some circles -- that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll." Silveira v. Lockyer, 328 F.3d 567, 569.

In 2017, not much has changed. In a post-Heller/McDonald 9th Circuit, Judge Richard Tallman's dissent in Teixeira is compelled to point out: "Our cases continue to slowly carve away the fundamental right to keep and bear arms. Today's decision further lacerates the Second Amendment, deepens the wound, and resembles the Death by a Thousand Cuts."