Posted by: Patricia Salkin | October 3, 2016

9th Circuit Court of Appeals Remands Denial of Proposed Gun Shop on Second Amendment Claims

John Teixeira, Steve Nobriga, and Gary Gamaza decided to open a retail business that would offer firearm training, provide gun-smith services, and sell firearms, ammunition, and gun-related equipment. The three formed a partnership named “Valley Guns & Ammo,” qualified for federal firearm licenses, and all three men were eligible for California licenses. The West County Board of Zoning Adjustment determined that the nearest residential property was only 446 feet away: 54 feet too close under the existing 500–foot rule. The report recommended against approving a variance; however, despite the report, at a public hearing on December 14, 2011, the West County Board of Zoning Adjustments voted to grant a variance and approved the issuance of a permit. The San Lorenzo Village Homes Association, some of whose members “are opposed to guns and their ready availability and therefore believe that gun shops should not be located within their community,” challenged the Board’s decision. On February 28, 2012, the Alameda County Board of Supervisors voted to sustain the appeal, thus revoking Teixeira’s conditional use permit and variance.

Teixeira brought an action alleging that county ordinance prohibiting a gun store from being located within 500 feet of any residential district, school, other gun store, or establishment that sold liquor violated equal protection and the Second Amendment right to keep and bear arms. The United States District Court for the Northern District of California dismissed for failure to state a claim. On appeal, the court first noted that Because Teixeira’s equal protection challenge was “no more than a Second Amendment claim dressed in equal protection clothing,” it is “subsumed by, and coextensive with” the former, it was not cognizable under the Equal Protection Clause.

The court next addressed whether the commercial sale of firearms implicated the Second Amendment right to keep and to bear arms by reviewing the “historical understanding of the scope of the right.” The court found that the right to purchase and to sell firearms was of the historically recognized right to keep and to bear arms. Additionally, Teixeira alleged that his proposed gun store would offer various services including “state-mandated Hunter Safety Classes, Handgun Safety Certificates” and “classes in gun safety, including safe storage of firearms in accordance with state law.” The court found these services Teixeira hoped to offer also implicated the right to keep and to bear arms. The Ordinance’s potential interference with such services was therefore a proper basis for Teixeira’s Second Amendment challenge.

The court next noted that since neither Heller nor McDonald dictates a specific standard of scrutiny for Second Amendment challenges, the court would consider: how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. Here, there was no question that an ordinance restricting the commercial sale of firearms would burden “the right of a law-abiding, responsible citizen to possess and carry a weapon. Additionally, the court found that if Teixeira had been given a chance to demonstrate that the Ordinance was “not merely regulatory,” but rather functioned as a total ban on all new gun retailers, “a more rigorous showing” than even intermediate scrutiny, “if not quite ‘strict scrutiny,’ ” would have been warranted.

The court found that the record lacked any explanation as to how a gun store might negatively impact the aesthetics of a neighborhood, or that the 500–foot rule was reasonably tailored. Accordingly, the court remanded the case, noting that if on remand evidence confirmed that the Ordinance, as applied, completely banned new gun stores (rather than merely regulating their locations), something more exacting than intermediate scrutiny would be warranted.

Teixeira v. County of Alameda, 822 F.3d 1047, 1064 (9th Cir. 2016)

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