Posted by: Patricia Salkin | February 6, 2018

Ninth Circuit Court of Appeals Affirms that the Second Amendment Protects Gun Retailers, But Dismisses Challenge to Gun Dealer Zoning Restrictions

This post was authored by Amy Lavine, Esq.

In its 2016 decision in Teixeira v. County of Alameda, the Ninth Circuit found that the Second Amendment, as understood in its historical context, includes not just a right to bear arms but also a right to purchase them. Some type of heightened scrutiny was therefore required for zoning restrictions on firearms sellers – intermediate scrutiny if the county’s zoning law merely restricted the location of gun stores or strict scrutiny if the restrictions amounted to a de facto ban and substantially prevented citizens from exercising their Second Amendment right to purchase firearms. Whether the restriction against gun shops within 500 feet of residential districts went beyond a mere regulation and created a complete ban required the review of issues of fact and was inappropriate for decision on a motion to dismiss, requiring the court to remand the case for a more complete review of the evidence.

Following its remand of the motion to dismiss, the Ninth Circuit issued an en banc opinion in the Teixeira case in 2017 and affirmed the district court’s dismissal for failure to state a claim. While the court agreed that gun retailers had derivative standing to assert Second Amendment claims on behalf of their potential customers, Teixeira failed to adequately allege that its potential customers could not purchase firearms elsewhere in Alameda County, or even within the unincorporated areas of the county in particular. As the court noted, there were ten gun stores in Alameda County, including one that was located just 600 feet away from the proposed site of Teixeira’s store. The court also rejected Teixeira’s contention that he could assert a Second Amendment claim independent of the rights of his potential customers. Based on textual and historical analysis of the Second Amendment, the court concluded that:
the Second Amendment does not confer a freestanding right, wholly detached from any customer’s ability to acquire firearms, upon a proprietor of a commercial establishment to sell firearms. Commerce in firearms is a necessary prerequisite to keeping and possessing arms for self-defense, but the right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them.

Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017).

The Teixeira case is currently being considered for certiorari to the United States Supreme Court.

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