Malum Prohibitum· Super Moderator
As British subjects, colonial Americans believed that they shared equally in the enjoyment of this guarantee, and that the right necessarily extended to commerce in firearms. Colonial law reflected such an understanding.
As war raged in 1777, Colonial Undersecretary William Knox recommended that the Americans, once conquered, be subdued, in part, by prohibiting their means of producing arms: â€œthe Arms of all the People should be taken away . . . nor should any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without Licence.â€
In 1793, Thomas Jefferson noted that â€œ[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.â€
the county has failed to advance any argument that the zoning ordinance is a type of regulation that americans at the time of the adoption of the second amendment or the fourteenth amendment (when the right was applied against the states) would have recognized as a permissible infringement of the traditional right. While founding-era laws may have regulated where firearms could be discharged and where gunpowder could be stored, id. At 632, the county has not demonstrated that any historical regulation restricted where firearm sales could occur.
12345the problem is that the district court failed to explain how a gun store would increase crime in its vicinity. The court instead simply accepted the county's assertion without exacting it to any scrutiny, in a fashion that more closely resembled rational basis review.
According to the dissent, there is no constitutional infirmity so long as firearm sales are permitted somewhere in the County. We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than "a mundane zoning dispute dressed up as a [First] Amendment challenge"? See Dissent at 35. Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.
Such an ordinance, of course, would give us great pause. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment.
Great analogy!Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.