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No. 13-17132
IN THE
United States Court of Appeals for the Ninth Circuit
JOHN TEIXEIRA; STEVE NOBRIGA; GARY GAMAZA; CALGUNS FOUNDATION, INC., (CGF); SECOND AMENDMENT
FOUNDATION, INC., (SAF); CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES, (CAL-FFL),
Plaintiffs-Appellants, v.
COUNTY OF ALAMEDA; ALAMEDA COUNTY BOARD OF SUPERVISORS, as a policy making body; WILMA CHAN, in
her official capacity; NATE MILEY, in his official capacity; KEITH CARSON, in his official capacity,
Defendants-Appellees.
On Appeal from the United States District Court for the Northern District of California
APPELLEES’ PETITION FOR REHEARING OR REHEARING EN BANC
Donna R. Ziegler Scott J. Feudale OFFICE OF THE COUNTY COUNSEL, ALAMEDA COUNTY 1221 Oak Street, Suite 450 Oakland, CA 94612
Naomi J. Mower ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019
Robert M. Loeb Thomas M. Bondy ORRICK, HERRINGTON & SUTCLIFFE LLP 1152 15th Street NW Washington, DC 20005 (202) 339-8400
Brian P. Goldman ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105
Counsel for Defendants-Appellees
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................................................... ii
INTRODUCTION AND RULE 35 STATEMENT .................................... 1
STATEMENT ............................................................................................. 3
REASONS FOR GRANTING THE PETITION ....................................... 6
I. The Panel Opinion Conflicts With Heller and McDonald. ............................................................................... 6
II. The Panel Opinion Conflicts With Decisions Of This Court And The Fourth Circuit. ............................................. 11
III. The Panel Opinion’s Historical Analysis Was Defective. .... 16
IV. The Question Presented Is Exceptionally Important. ......... 21
CONCLUSION ........................................................................................ 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM A
Panel Slip Opinion, dated May 16, 2016
ADDENDUM B
California City and County Ordinances Regulating the Location of Firearms Sales in Relation to Residential Areas
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TABLE OF AUTHORITIES
Page(s) Cases
Bauer v. Harris, 94 F. Supp. 3d 1149 (E.D. Cal. 2015) .................................................. 22
Bonidy v. U.S. Postal Serv., 790 F.3d 1121 (10th Cir. 2015) .............................................................. 7
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) .......................................................................... 18
Cheatham v. Shearon, 31 Tenn. 213 (1851) .............................................................................. 20
District of Columbia v. Heller, 554 U.S. 570 (2008) .................................................... 1, 5, 6, 8, 9, 11, 18
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ................................................................ 15
Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014) ...................................................... 9
Jackson v. City & Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014) ........................................ 5, 7, 9, 11, 12, 14
Mathis v. United States, 136 S. Ct. 2243 (2016) ............................................................................ 8
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................................................ 1, 6
Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185 (5th Cir. 2012) ................................................................ 17
NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) .......................................................................... 17
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Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) .................................................................. 7
Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) .................................................... 7, 13, 22
Pena v. Lindley, No. 2:09-CV-01185-KJM, 2015 WL 854684 (E.D. Cal. Feb. 26, 2015) ...................................................................... 22
Peruta v. County of San Diego, ___ F.3d ____, Nos. 10-56971, 11-16255, 2016 WL 3194315 (9th Cir. June 9, 2016) ................................................................... 14, 22
Petramala v. U.S. Dep’t of Justice, 481 F. App’x 395 (9th Cir. 2012) ......................................................... 13
The Pocket Veto Case, 279 U.S. 655 (1929) .............................................................................. 17
Simpson v. Justice, 43 N.C. 115 (1851) ................................................................................ 20
Sundowner Ass’n v. Wood Cty. Comm’n, No. 2:14-CV-00193, 2014 WL 3962495 (S.D. W. Va. Aug. 13, 2014) ................................................................. 15
United States v. Barton, 633 F.3d 168 (3d Cir. 2011) ............................................................. 9, 10
United States v. Castro, No. 10-50160, 2011 WL 6157466 (9th Cir. Nov. 28, 2011) ................. 13
United States v. Chafin, 423 F. App’x 342 (4th Cir. 2011) ..................................................... 2, 15
United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) .......................................................... 9, 14
United States v. Conrad, 923 F. Supp. 2d 843 (W.D. Va. 2013) .................................................. 15
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United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) .............................................................. 13
Constitutional Provisions
U.S. Const., amend. I ................................................................................ 11
U.S. Const., amend. II ...................................................................... passim
U.S. Const., amend. XIV .................................................................... 16, 20
Statutes
Federal Firearms Act of 1938, Pub. L. No. 75-785, 52 Stat. 1250 (1938) ............................................................................. 19
Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968) ............................................................................. 19
Nonmailable Firearms Act of 1927, Pub. L. No. 69-583, 44 Stat. 1059 (1927) ............................................................................. 18
Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994) ........................................ 19
1911 Colo. Laws 408, ch. 136 ................................................................... 18
26 Del. Laws 28, ch. 15 (1911) ................................................................. 18
1837 Ga. Laws 90 ..................................................................................... 18
1921 Mo. Laws 691 ................................................................................... 18
1913 Or. Laws 497, ch. 256 ...................................................................... 18
1901 S.C. Acts 748, No. 435 ..................................................................... 18
1879 Tenn. Pub. Acts 135, ch. XCVI ........................................................ 18
Regulations
26 C.F.R. § 315.7 (1939) ........................................................................... 19
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Ordinances
Alameda Cty., Cal., Code § 17.54.130 ...................................................... 20
Alameda Cty., Cal., Code § 17.54.131 ............................................ 3, 16, 20
Other Authorities
Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487 (2004) ..................................................................................... 21
GAO Letter Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers, GAO/GGD-96-78 (Mar. 29, 1996), available at https://goo.gl/JqETyh ........................................................................... 19
Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371 (2009) .................................................................... 17
Robert H. Nelson, Zoning and Property Rights: An Analysis of the American System of Land Use Regulation (1977) .................... 20
Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007) ........................................................................ 7
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INTRODUCTION AND RULE 35 STATEMENT
The Supreme Court has declared—twice—that its recognition of
an individual right to bear arms “did not cast doubt” on regulations
governing the sale of arms. McDonald v. City of Chicago, 561 U.S. 742,
786 (2010). Rather, rules that set “conditions and qualifications on the
commercial sale of arms” are “presumptively lawful.” District of
Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008).
Nonetheless, in a 2-1 decision, a panel of this Court held that an
Alameda County ordinance governing the location of “the commercial
sale of arms” is presumptively unlawful. The majority believed,
notwithstanding Heller and McDonald, that the right to “sell firearms is
part and parcel of the historically recognized right to keep and bear
arms,” and that the zoning ordinance must satisfy heightened Second
Amendment scrutiny even without any allegation that it meaningfully
impedes anyone from possessing a gun. Maj. Op. 18-23. No Court of
Appeals had ever previously recognized a Second Amendment right to
sell arms or subjected zoning rules to heightened Second Amendment
scrutiny. The panel’s holding contradicts Heller and McDonald, is
inconsistent with this Court’s recent opinions addressing the Second
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Amendment, and creates a conflict with the Fourth Circuit, which
recognized that the Second Amendment “does not necessarily give rise
to a corresponding right to sell a firearm.” United States v. Chafin, 423
F. App’x 342, 344 (4th Cir. 2011).
As Judge Silverman explained in dissent, this case involves
nothing more than “a mundane zoning dispute dressed up as a Second
Amendment challenge.” Dissent 35. By subjecting even such
“mundane” ordinances to heightened scrutiny, the majority opinion
jeopardizes a range of other commonplace regulations designed to
protect the public, including at least seventeen similar regulations in
California alone.
In the end, “[t]he district court was right on target in dismissing
the plaintiffs’ zoning case for failure to state a Second Amendment
claim, because … the ordinance restricting the location of a gun store is
‘quite literally a “law[] imposing conditions and qualifications on the
commercial sale of arms.”’” Dissent 36. Rehearing en banc is plainly
warranted.
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STATEMENT
In 1998, Alameda County enacted a zoning ordinance requiring
that any new gun store be located at least 500 feet from schools, day
care centers, other gun stores, stores selling or serving liquor, and
residentially zoned districts. Alameda Cty., Cal., Code § 17.54.131. As
of 2011, ten gun stores operated within the County, four of which are in
the unincorporated areas of the County governed by the ordinance.
Excerpts of Record (ER) 121, 179.
In 2010, Appellants Teixeira, Nobriga, and Gamaza formed
“Valley Guns and Ammo,” a partnership seeking to open a new gun
store in the County. ER 37. Valley Guns selected a property in
unincorporated San Leandro and applied for a permit. ER 40. The
zoning board found that the proposed property did not comply with the
ordinance because it was within 500 feet of two residentially zoned
neighborhoods. ER 45, 64, 68, 178. The zoning board nevertheless
granted a variance and issued the permit. ER 48, 179-83. A
homeowners’ association appealed the matter to the Alameda County
Board of Supervisors, which rejected the zoning board’s decision and
denied the permit. ER 48-49.
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Valley Guns did not challenge the County’s zoning decision in
California state court. Supplemental Excerpts of Record (SER) 2.
Instead, the individual partners, along with several gun advocacy
groups, filed this suit, alleging the zoning ordinance, both on its face
and as-applied, violated an asserted Second Amendment right to sell
guns. ER 50, 53-54. They did not allege that area residents were
unable to obtain or possess guns because of the ordinance.
The district court dismissed with prejudice. ER 10-28. It held the
ordinance “falls squarely” within Heller’s “presumptively lawful”
category of “laws imposing conditions and qualifications on the
commercial sale of arms.” ER 20. The court also noted that “the
plaintiffs do not allege that customers cannot buy guns in Alameda
County.” ER 23. Indeed, guns are readily available at a “Big 5 Sporting
Goods” store 607 feet away from the proposed site. SER 9; ER 120. The
court also found that, even if heightened scrutiny applied, “Alameda
County has an interest in protecting public safety and preventing harm
in populated, well-traveled, and sensitive areas such as residentially-
zoned districts” by “protecting against the potential secondary effects of
gun stores.” ER 21 (internal quotation marks omitted).
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A divided panel of this Court reversed. The majority held the
ordinance is not presumptively lawful under Heller. In the majority’s
view, Heller’s “exemption for certain ‘laws imposing conditions and
qualifications on the commercial sale of arms’” applies only to those
“‘prohibitions that fall outside the historical scope of the Second
Amendment,’” and “the County has not demonstrated that any
historical regulation restricted where firearm sales could occur.” Maj.
Op. 20-22 (quoting Heller, 554 U.S. at 626-27 & n.26, and Jackson v.
City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014), cert.
denied, 135 S. Ct. 2799 (2015)). Having set aside Heller’s express
exemption, the majority applied heightened scrutiny and held that
“Alameda County failed to justify the burden it has placed on law-
abiding citizens to purchase guns.” Maj. Op. 27-34.
Dissenting, Judge Silverman emphasized that Alameda County’s
zoning ordinance does not impair “any actual person’s individual right
to bear arms.” Dissent 35. He stressed it is “undisputed” that
individuals can “lawfully buy guns in Alameda County,” because “there
are at least ten gun stores already operating lawfully” within it. Id. He
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would have affirmed the dismissal of this “mundane zoning dispute
dressed up as a Second Amendment challenge.” Id.
REASONS FOR GRANTING THE PETITION
I. The Panel Opinion Conflicts With Heller and McDonald.
A. In 2008, the Supreme Court held for the first time that the
Second Amendment protects a law-abiding individual’s right to possess
a firearm unconnected with service in a militia, and to use that firearm
for traditionally lawful purposes, such as self-defense within the home.
In so holding, the Court set clear limits on its ruling. One is applicable
here: “[N]othing in our opinion should be taken to cast doubt on … laws
imposing conditions and qualifications on the commercial sale of arms.”
Heller, 554 U.S. at 626-27. Such restrictions are “presumptively lawful
regulatory measures.” Id. at 627 n.26.
When the Court extended Heller to the States two years later, it
“repeat[ed] those assurances.” McDonald, 561 U.S. at 786. The Court
thus “underscore[d] the importance of that [qualifying] language and …
remove[d] any doubt about the care that went into it and its importance
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in understanding the holding in Heller.” Bonidy v. U.S. Postal Serv.,
790 F.3d 1121, 1124 (10th Cir. 2015).
Heller’s carve-out for “laws imposing conditions and qualifications
on the commercial sale of arms” means that zoning regulations like
those here are presumed valid. Imposing heightened scrutiny on such
regulations is incompatible with Heller’s presumption of validity. As
Judge Gould has explained, “[g]iven the Supreme Court’s admonition
that certain arms restrictions are presumptively lawful, ‘a heightened
standard that presumes every regulation to be unconstitutional makes
no sense.’” See Nordyke v. King, 644 F.3d 776, 796 (9th Cir. 2011)
(Gould, J., concurring) (quoting Adam Winkler, Scrutinizing the Second
Amendment, 105 Mich. L. Rev. 683, 708 (2007)), vacated upon reh’g en
banc, 681 F.3d 1041 (9th Cir. 2012). Instead, the Second Amendment
“does not preclude” the enumerated “presumptively lawful regulatory
measures.” Jackson, 746 F.3d at 959.
The majority here erred in applying a presumption of invalidity to
the County’s zoning regulation. As Judge Silverman noted in dissent:
“[T]he district court correctly ruled that the ordinance restricting the
location of a gun store is ‘quite literally a “law[] imposing conditions and
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qualifications on the commercial sale of arms,”’” and thus not subject to
heightened scrutiny under Heller. Dissent 36 (quoting ER 18).
Appellants do not contend they could sustain a challenge without
heightened scrutiny.
B. The majority resisted Heller’s express carve-out for laws
“imposing conditions and qualifications on the commercial sale of arms.”
In its view, Heller “does not mean that there is a categorical exception
from Second Amendment scrutiny for the regulation of gun stores,”
because “[i]f such were the case, the County could enact a total
prohibition on the commercial sale of firearms.” Maj. Op. 20-21. That
was error. A “good rule of thumb for reading [the Supreme Court’s]
decisions is that what they say and what they mean are one and the
same.” Mathis v. United States, 136 S. Ct. 2243, 2254 (2016).
Moreover, the majority’s slippery-slope rationale is flawed at two
levels. First, exempting “laws imposing conditions and qualifications
on the commercial sale of arms,” Heller, 554 U.S. at 626-27 (emphasis
added), is different from allowing “a total prohibition on the commercial
sale of firearms,” Maj. Op. 21 (emphasis added). In Second Amendment
law as in other areas, prohibitions are scrutinized more closely than
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mere regulations. See, e.g., Jackson, 746 F.3d at 964-65. A zoning
restriction on where new gun stores may be located is wholly different
from an outright “‘ban on gun sales and transfers.’” Maj. Op. 17
(quoting Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F.
Supp. 2d 928, 938 (N.D. Ill. 2014)).
Second, Heller establishes the presumptive validity of regulations
on gun sales, not their conclusive validity. A condition on sales that
works a de facto prohibition on, or even meaningfully impairs, County
residents’ “core … Second Amendment right … to use arms in defense of
hearth and home” may well be subject to challenge. United States v.
Chovan, 735 F.3d 1127, 1133 (9th Cir. 2013) (quoting Heller, 554 U.S. at
635). But Heller places the burden on the challenger to rebut a
restriction’s presumptive validity by demonstrating the law has such a
purpose or effect. See United States v. Barton, 633 F.3d 168, 173-74 (3d
Cir. 2011) (“[T]he presumption [that felon gun dispossession statutes
are valid] may be rebutted” by a felon if he “present[s]” sufficient
evidence). And any such effort could be made only on an as-applied
basis: “[B]ecause Heller requires that [courts] ‘presume,’ under most
circumstances, that [the enumerated categories of laws] regulate
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conduct which is unprotected by the Second Amendment, [any] facial
challenge must fail.” Id. at 172. Accordingly, the panel erred in
reversing the district court’s dismissal of Appellants’ facial challenge.
Here, no plaintiff asserts that he cannot possess a gun—the only
right recognized by Heller—because of the County’s zoning rules. As
Judge Silverman observed, “there is no claim that, due to the zoning
ordinance in question, individuals cannot lawfully buy guns in Alameda
County.” Dissent 35; see also ER 23. To the contrary, “[i]t is
undisputed that they can. The record shows that there are at least ten
gun stores already operating lawfully in Alameda County,” Dissent 35,
including one 607 feet from Appellants’ proposed location, ER 120.
Accordingly, Appellants both lack standing to challenge the ordinance
and have failed to state a claim. There is no Second Amendment right
to open a gun store in the location of one’s choice without adherence to
local zoning regulations.
Responding to Judge Silverman, the majority posited, “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
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zoning dispute dressed up as a [First] Amendment challenge’?” Maj.
Op. 33. No doubt, ordinances prohibiting “the possession of [books] by
felons and the mentally ill” or “the carrying of [books] in sensitive
places such as schools” would fail First Amendment scrutiny. Heller,
554 U.S. at 626. Yet Heller held, as an essential part of its ruling, that
such restrictions on gun possession, carrying, and sales are
presumptively valid. That is because Heller did not recognize a Second
Amendment right on all fours with the First Amendment. While the
structure of the constitutional inquiry under the Second Amendment
may “bear[] strong analogies to the Supreme Court’s free-speech
caselaw,” Jackson, 746 F.3d at 960, the scope and content of the Second
Amendment right is entirely distinct and defined by reference to the
particular dangers posed by guns and gun trafficking.
Because the panel opinion failed to respect Heller’s express carve-
out for laws regulating gun sales, rehearing en banc should be granted.
II. The Panel Opinion Conflicts With Decisions Of This Court And The Fourth Circuit.
The panel opinion is inconsistent with this Court’s and the Fourth
Circuit’s precedents reflecting Heller’s carve-outs, including the
requirement that commercial-sale regulations be treated as
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presumptively valid. By treating a regulation as presumptively lawful
only if it regulates the commercial sale of firearms and has a founding-
era pedigree, the panel opinion creates a conflict with those Court of
Appeals decisions.
A. Jackson identified two ways a regulation will be deemed
“presumptively valid,” such that heightened scrutiny does not apply:
“[W]e ask whether the regulation is one of the ‘presumptively lawful
regulatory measures’ identified in Heller, or whether the record
includes persuasive historical evidence establishing that the regulation
at issue imposes prohibitions that fall outside the historical scope of the
Second Amendment.” 746 F.3d at 960 (emphasis added, internal
citation omitted). In other words, under binding Ninth Circuit
precedent, either fitting within one of Heller’s enumerated safe harbors,
or historical evidence demonstrating that the type of regulation should
also fall outside the Second Amendment’s scope, suffices for a regulation
to avoid heightened Second Amendment scrutiny.
The majority contradicted Jackson—a conflict that itself warrants
en banc review—when it turned Jackson’s “or” into an “and,” requiring
that even a regulation in Heller’s “presumptively lawful” safe harbors
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be supported by “founding-era” evidence. Maj. Op. 20-23. That
approach also conflicts with several other decisions of this Court that
properly bypassed a historical analysis when considering provisions
within Heller’s enumerated exceptions.
In Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (en banc), for
example, this Court relied primarily on Heller’s commercial-sale
exception to deem an Alameda County regulation of gun shows
constitutionally permissible, without engaging in any historical
analysis. Id. at 1044. And a panel of this Court upheld a restriction on
dealing firearms without a license, without engaging in historical
analysis, simply because “[t]he Supreme Court has made it clear that
the government can continue to regulate commercial gun dealing.”
United States v. Castro, No. 10-50160, 2011 WL 6157466, at *1 (9th Cir.
Nov. 28, 2011); see also United States v. Vongxay, 594 F.3d 1111, 1118
(9th Cir. 2010) (upholding prohibition on possession of guns by felons
even though “the historical question has not been definitively
resolved”); Petramala v. U.S. Dep’t of Justice, 481 F. App’x 395, 396 (9th
Cir. 2012) (upholding prohibition on possession of guns by the mentally
ill, relying on Heller without historical analysis).
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In contrast, if a regulation is not enumerated among Heller’s
presumptively lawful regulatory measures, a separate historical
analysis may be appropriate. Jackson itself examined “founding-era
laws” only after concluding that a requirement that handguns be stored
in a locked container “resembles none” of the items on the “list of
‘presumptively lawful’ regulations provided by Heller.” 746 F.3d at 962.
Chovan turned to a historical analysis only after holding that Heller’s
categories do not address bans on gun possession by misdemeanants
rather than felons. 735 F.3d at 1137. Most recently, Peruta analyzed
the history of concealed carry regulations because, as the dissent
stressed, “while the Court enumerated four presumptively lawful
‘longstanding prohibitions,’ it did not list prohibitions of concealed
weapons as one of them.” Peruta v. County of San Diego, ___ F.3d ____,
Nos. 10-56971, 11-16255, 2016 WL 3194315, at *22 (9th Cir. June 9,
2016) (en banc) (Callahan, J., dissenting).
B. Similarly, the Fourth Circuit has recognized that “although
the Second Amendment protects an individual’s right to bear arms, it
does not necessarily give rise to a corresponding right to sell a firearm.”
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Chafin, 423 F. App’x at 344.1 The Fourth Circuit identified no authority
“that remotely suggests that, at the time of its ratification, the Second
Amendment was understood to protect an individual’s right to sell a
firearm,” so no regulation-specific analysis was required. Id. By
recognizing a freestanding right to sell guns—the first appellate
decision to do so—the panel’s opinion conflicts with Chafin.
C. The majority suggested it was following the Seventh Circuit’s
decision in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), which
scrutinized Chicago’s ban on firearm ranges because training in
firearms proficiency is “an important corollary to the meaningful
exercise of the core right to possess firearms for self-defense.” Id. at
708. “Just like the firearm range in Ezell,” the majority stated, Valley
Guns plans to offer courses in firearms proficiency, so “[t]he Ordinance’s
potential interference with such services was therefore a proper basis
for [Appellants’] Second Amendment challenge.” Maj. Op. 18-19.
1 Although Chafin is unpublished, district courts in the Fourth Circuit afford it precedential weight. See Sundowner Ass’n v. Wood Cty. Comm’n, No. 2:14-CV-00193, 2014 WL 3962495, at *9 (S.D. W. Va. Aug. 13, 2014); United States v. Conrad, 923 F. Supp. 2d 843, 852 (W.D. Va. 2013).
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But Valley Guns’ training services and Ezell have nothing to do
with Appellants’ challenge to the ordinance, which regulates only the
location of “Firearms sales.” § 17.54.131 (emphasis added). If Valley
Guns offered all the services Appellants intend to provide but did not
trade in firearms, the firearms ordinance challenged here would have
posed no obstacle.
III. The Panel Opinion’s Historical Analysis Was Defective.
Even if a detailed historical analysis were required for a condition
or qualification on the commercial sale of firearms, the majority still
erred in its analysis.
A. The majority faulted the County for not demonstrating “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.”
Maj. Op. 22; id. at 22-23 (“[T]he Nation’s first comprehensive zoning
law did not come into existence until 1916.”). But the majority set too
early a cutoff date.
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“Heller demonstrates that a regulation can be deemed
‘longstanding’ even if it cannot boast a precise founding-era analogue.”
Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185, 196 (5th Cir. 2012).
For example, “Heller considered firearm possession bans on felons and
the mentally ill to be longstanding, yet the current versions of these
bans are of mid-20th century vintage.” Id. at 196-97. So too with
conditions and qualifications on gun sales. Such regulations mostly
arose in the 20th century. Carlton F.W. Larson, Four Exceptions in
Search of A Theory: District of Columbia v. Heller and Judicial Ipse
Dixit, 60 Hastings L.J. 1371, 1376-80 (2009). Requiring an 18th-
century precedent for every modern condition or qualification on the
commercial sale of firearms would render the “presumptive validity”
Heller bestows almost meaningless.
Looking to longstanding post-ratification regulations, in contrast,
comports with the principle that “postfounding practice is entitled to
‘great weight’” in constitutional interpretation. NLRB v. Noel Canning,
134 S. Ct. 2550, 2560 (2014) (quoting The Pocket Veto Case, 279 U.S.
655, 689-90 (1929)). The Supreme Court has already recognized that
the Second Amendment is not frozen in time: Stun guns, for example,
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18
are protected because “the Second Amendment ‘extends ... to ... arms ...
that were not in existence at the time of the founding.’” Caetano v.
Massachusetts, 136 S. Ct. 1027, 1028 (2016) (per curiam) (quoting
Heller, 554 U.S. at 582).
Here, the relevant history is substantial. Firearms dealers have
been closely regulated for over a century. In 1837, for example, Georgia
regulated pistol sales by limiting those that could be lawfully sold to
“horseman’s pistols.” 1837 Ga. Laws 90, § I. Tennessee and South
Carolina also regulated pistol sales. See 1879 Tenn. Pub. Acts 135, ch.
XCVI, § 1 (limiting sale to “army or navy pistols”); 1901 S.C. Acts 748,
No. 435, § 1 (barring sale of smaller pistols). Delaware began licensing
gun stores in 1911. 26 Del. Laws 28, ch. 15, § 2 (1911). And shortly
after, Colorado, Oregon, and Missouri imposed recording and reporting
requirements on dealers and manufacturers. See 1911 Colo. Laws 408,
ch. 136, § 3; 1913 Or. Laws 497, ch. 256, §§ 1, 3; 1921 Mo. Laws 691, ch.
2, § 1.
In 1927, Congress enacted the first federal regulation of gun
sellers. Nonmailable Firearms Act of 1927, Pub. L. No. 69-583, § 1, 44
Stat. 1059 (1927). Then, in 1938, Congress created a licensing scheme
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19
applicable to gun sellers. Federal Firearms Act of 1938, Pub. L. No. 75-
785, § 2(a), 52 Stat. 1250 (1938). The law preserved state and local
regulation of gun sales. See 26 C.F.R. § 315.7 (1939) (federal licenses
confer “no right … to conduct business contrary to State or other law”).
Congress then expanded the federal licensing scheme for firearms
dealers in 1968. Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.
1213 (1968). The Act aimed to aid state and local law enforcement in
reducing violent crime by prohibiting anyone without a license from
selling firearms or ammunition. Id. §§ 101, 922(a)(1).
Later, in 1994, Congress enacted the Violent Crime Control and
Law Enforcement Act, which gave the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) the authority to condition the issuance
of federal licenses on an applicant’s certification that it complied with
state and local law. Pub. L. No. 103-322, § 110302, 108 Stat. 1796
(1994) (codified at 18 U.S.C. § 923(d)(1)(F)). Under this law, ATF issued
guidance instructing its field offices to disapprove license applications
when local zoning law so required.2
2 GAO Letter Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers, GAO/GGD-96-78 (Mar. 29, 1996), available at https://goo.gl/JqETyh.
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20
Alameda County’s ordinance grew from this long line of federal,
state, and local regulation of gun dealers. The ordinance requires that
gun stores be kept away from sensitive areas. Alameda Cty., Cal., Code
§§ 17.54.130-131. Sensibly so: The law shields these areas from the
greater risk of crime and violence linked to gun dealing, without
preventing residents from acquiring firearms and using them for self-
defense. Indeed, in commenting on Valley Guns’ application for a
variance here, the Alameda County Sheriff expressed concern that the
proposed location for the gun store “would significantly increase the
likelihood of calls for service including thefts, burglaries, and
robberies.” ER 167.
B. In any event, the ordinance is akin to early regulations.
Although codified zoning ordinances may be a 20th-century
phenomenon, they were “introduced in the United States as a reform of
the nuisance law.” See Robert H. Nelson, Zoning and Property Rights:
An Analysis of the American System of Land Use Regulation 7 (1977).
And prior to the Fourteenth Amendment, common-law courts regulated
the location of gunpowder storage through nuisance law. See, e.g.,
Simpson v. Justice, 43 N.C. 115, 117 (1851); Cheatham v. Shearon, 31
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21
Tenn. 213, 214-15 (1851); see also Saul Cornell & Nathan DeDino, A
Well Regulated Right: The Early American Origins of Gun Control, 73
Fordham L. Rev. 487, 511 (2004).
State regulation of firearms dealers predates the Reconstruction
as well; as noted above (at 18), Georgia regulated sales as early as 1837.
Against this backdrop, the ordinance fits comfortably within the
longstanding tradition of regulating the sale of firearms, including with
respect to location.
IV. The Question Presented Is Exceptionally Important.
Whether regulations of gun dealers are subject to heightened
Second Amendment scrutiny is an important and recurring question
that merits en banc consideration.
The panel’s holding will affect a wide swath of local firearms
regulations. In California alone, at least seventeen cities and counties
have zoning laws that prohibit gun stores from opening in residential
areas. See Addendum B. More broadly, the panel opinion will subject
all modern regulations on the commercial sale of firearms to heightened
scrutiny. Litigation over such regulations will rarely survive motions to
dismiss and will thus proceed into discovery, creating expensive
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22
barriers for localities that seek to ensure the safety of commerce in guns
consistent with local needs.
Second Amendment challenges to the regulation of gun sales recur
frequently in this Court. In addition to Nordyke, Castro, and this case,
appeals over California restrictions on firearms dealers are pending and
will be affected by the panel opinion here. See Bauer v. Harris, 94 F.
Supp. 3d 1149, 1155 (E.D. Cal. 2015) (holding a fee imposed on dealers
for gun sales falls outside the Second Amendment’s scope), appeal filed,
No. 15-15428; Pena v. Lindley, No. 2:09-CV-01185-KJM, 2015 WL
854684, at *13 (E.D. Cal. Feb. 26, 2015) (statute prohibiting sale of
certain handguns was “one of the presumptively lawful regulatory
measures identified in Heller and, as such, falls outside the historical
scope of the Second Amendment”) (internal quotation marks omitted),
appeal filed, No. 15-15449.
This Court has previously granted rehearing en banc where
divided panel opinions in this new area of constitutional law posed
serious threats to the reasonable regulation of deadly weapons. See
Nordyke, 681 F.3d 1041; Peruta, 2016 WL 3194315. En banc review is
similarly warranted here.
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23
CONCLUSION
For the foregoing reasons, this Court should grant the County’s
petition for rehearing en banc.
Respectfully submitted, /s/Robert M. Loeb
Donna R. Ziegler Scott J. Feudale OFFICE OF THE COUNTY COUNSEL, ALAMEDA COUNTY 1221 Oak Street, Suite 450 Oakland, CA 94612 Naomi J. Mower ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019
Robert M. Loeb Thomas M. Bondy ORRICK, HERRINGTON & SUTCLIFFE LLP 1152 15th Street NW Washington, DC 20005 (202) 339-8400 Brian P. Goldman ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105
Counsel for Defendants-Appellees
July 21, 2016
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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Circuit Rules 35-4 and 40-1, the
foregoing Appellees’ Petition for Rehearing or Rehearing En Banc is
proportionately spaced, has a typeface of 14 points or more and contains
4192 words.
ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Robert M. Loeb Robert M. Loeb Counsel for Defendants-Appellees
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system on July 21, 2016.
I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Robert M. Loeb Robert M. Loeb Counsel for Defendants-Appellees
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ADDENDUM A
Panel Slip Opinion, Teixeira v. County of Alameda, No. 13-17132 (9th Cir. May 16, 2016)
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN TEIXEIRA; STEVE
NOBRIGA; GARY GAMAZA;
CALGUNS FOUNDATION, INC.,
(CGF); SECOND AMENDMENT
FOUNDATION, INC., (SAF);
CALIFORNIA ASSOCIATION OF
FEDERAL FIREARMS LICENSEES,
(CAL-FFL),
Plaintiffs-Appellants,
v.
COUNTY OF ALAMEDA;
ALAMEDA COUNTY BOARD OF
SUPERVISORS, as a policy
making body; WILMA CHAN, in
her official capacity; NATE
MILEY, in his official capacity;
KEITH CARSON, in his official
capacity,
Defendants-Appellees.
No. 13-17132
D.C. No.
3:12-cv-03288-WHO
OPINION
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Argued and Submitted December 8, 2015
San Francisco, California
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TEIXEIRA V. COUNTY OF ALAMEDA2
Filed May 16, 2016
Before: Diarmuid F. O’Scannlain, Barry G. Silverman,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by
Judge Silverman
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s dismissal for failure to state a claim, and remanded in
an action brought by three individuals wishing to operate a
gun shop in Alameda County, California, who challenged a
County ordinance, which among other things, does not permit
prospective gun stores to be located within 500 feet of a
residentially zoned district.
Affirming the dismissal of the Equal Protection claims,
the panel determined that this was not a situation where one
group was being denied a right while another similar group
was not. The panel held that because the right to keep and to
bear arms for self-defense is not only a fundamental right, but
an enumerated one, it was more appropriately analyzed under
the Second Amendment than the Equal Protection Clause.
The panel further held that plaintiffs failed to plead a
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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TEIXEIRA V. COUNTY OF ALAMEDA 3
cognizable class-of-one claim because they had neglected to
identify a similarly situated business.
Reversing the dismissal of plaintiffs’ Second Amendment
claims, the panel held that the County had offered nothing to
undermine the panel’s conclusion that the right to purchase
and to sell firearms is part and parcel of the historically
recognized right to keep and to bear arms. The panel held
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.
The panel held that under heightened scrutiny, the County
bore the burden of justifying its action, and that the district
court should have required the County to provide some
evidentiary showing that gun stores increase crime around
their locations or negatively impact the aesthetics of a
neighborhood. The panel held that if on remand evidence did
confirm that the Ordinance as applied, completely bans new
guns stores (rather than merely regulating their location),
something more exacting than intermediate scrutiny would
be warranted.
Concurring in part and dissenting in part, Judge
Silverman agreed that the equal protection claims were
correctly dismissed, but dissented from the majority’s opinion
regarding the Second Amendment. In Judge Silverman’s
view this case was a mundane zoning dispute dressed up as a
Second Amendment challenge and the district court correctly
ruled that the ordinance restricting the location of a gun
store is “quite literally a ‘law[] imposing conditions and
qualifications on the commercial sale of arms.’”
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TEIXEIRA V. COUNTY OF ALAMEDA4
COUNSEL
Donald E. J. Kilmer, Jr., San Jose, California, argued the
cause and filed the briefs for the plaintiffs-appellants. With
him on the opening brief was Charles W. Hokanson, Long
Beach, California.
Scott J. Feudale, County Counsel, Alameda County,
California, argued the cause for the defendants-appellees.
Donna R. Ziegler, County Counsel, and Mary Ellyn Gormley,
Assistant County Counsel, filed the brief.
Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia,
filed a brief on behalf of amicus curiae Citizens Committee
for the Right to Keep and Bear Arms in support of the
plaintiffs-appellants. Imran A. Khaliq, Arent Fox LLP, filed
a brief on behalf of amici curiae Law Center to Prevent Gun
Violence and Youth Alive! in support of the defendants-
appellees.
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TEIXEIRA V. COUNTY OF ALAMEDA 5
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the right to keep and to bear
arms, as recognized by the Second Amendment, necessarily
includes the right of law-abiding Americans to purchase and
to sell firearms. In other words, we must determine whether
the Second Amendment places any limits on regulating the
commercial sale of firearms.
I
A
In the fall of 2010, 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” and set
to work on making their plan a reality. The trio conducted an
extensive survey of Alameda County, California residents and
discovered that existing retail establishments failed to satisfy
customer demand. The men believed that Alameda County
residents were in need of a more personal experience, and
were likely to embrace a business that could provide a
broader range of services not offered by existing sporting
goods retailers. The City of San Leandro appeared to be the
ideal location for their gun store.
Teixeira had operated an Alameda County gun store
previously and was thus well aware of the maze of federal,
state, and local regulations that he and his partners would
have to navigate before they could open shop. Teixeira and
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TEIXEIRA V. COUNTY OF ALAMEDA6
Nobriga qualified for federal firearm licenses; all three men
were eligible for California licenses. All that remained was to
ensure that Valley Guns & Ammo would be in compliance
with the Alameda County code.
In unincorporated Alameda County, two species of
retailers must obtain “Conditional Use Permits” before they
are authorized to conduct business: “superstore[s]” and
“firearms sales business[es].” Alameda Cty., Cal., Code
§§ 17.54.130–132 (“the Ordinance”). The County reviews
applications to determine whether there is a “public need” for
a proposed business, whether the business will “affect
adversely the health or safety of persons residing or working
in the vicinity,” and whether the business would be
detrimental to the public welfare or property. Id. § 17.54.130.
The County will not issue a permit to a prospective gun
retailer until the applicant proves, among other things, that it
(1) possesses the requisite state and federal licenses, (2) will
store firearms and ammunition lawfully, and (3) the proposed
location of the business is not within five hundred feet of a
“[r]esidentially zoned district; elementary, middle or high
school; pre-school or day care center; other firearms sales
business; or liquor stores or establishments in which liquor is
served.” Id. §§ 17.54.130–131. Finally, firearms sellers must
obtain a county firearms dealer license. Id. § 17.54.131.
The Alameda County Planning Department informed
Teixeira, Nobriga, and Gamaza (collectively “Teixeira”) that
the 500-foot zoning requirement was to be measured from the
closest door of the proposed business location to the front
door of any disqualifying property. Relying on such guidance,
Teixeira settled on a suitable property on Lewelling
Boulevard in San Leandro. The building he chose had only
one door, which faced Lewelling Boulevard. Teixeira
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TEIXEIRA V. COUNTY OF ALAMEDA 7
obtained a survey showing that the closest residential
property (from door to door) was located 532 feet away,
across Interstate 880 in San Lorenzo Village. The next closest
disqualifying properties, similarly measured, were a residence
located 534 feet away and another property located 560 feet
away (the latter also on the far side of the Interstate). Teixeira
met with the landlord of the chosen premises, agreed to a
lease, and began conducting preparations to ensure that the
property would comply with myriad state and federal
regulations.
The West County Board of Zoning Adjustment scheduled
a hearing and the Planning Department issued a “Staff
Report.” Aside from raising concerns regarding compliance
with the “Eden Area General Plan,”1 the report found that
there was indeed a “public need” for Valley Guns & Ammo’s
services, that the proposed business would not affect
adversely the health or safety of local residents, that it had
obtained all required licenses, and that Teixeira had sufficient
knowledge to operate a gun store. The report nevertheless
concluded that a zoning variance would be required because
the proposed site, contrary to the survey Teixeira had
commissioned, was in fact within 500 feet of a residential
property and therefore failed to qualify for a permit. The
report explained that the County had chosen to measure from
the closest building exterior wall of the proposed site to the
closest residential property line rather than from door to door.
As a result, it determined that the nearest residential property
was only 446 feet away—54 feet too close under the 500-foot
rule. The report recommended against approving a variance.
1 The Eden Area General Plan deals largely with aesthetics and has a
stated goal of “[e]stablish[ing] a clearly defined urban form and structure
to the Eden Area in order to enhance the area’s identity and livability.”
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TEIXEIRA V. COUNTY OF ALAMEDA8
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.
Noting the violation of the 500-foot rule, the Board reasoned
that the “situation [was] unique” and thus a variance was
appropriate because Interstate 880, as well as other
obstructions, prevented “direct traversable access at a
distance less than 500 feet from the site to a residentially
zoned district.” The Board determined that Teixeira’s
proposal otherwise complied with the Conditional Use Permit
requirements, and that it was not counter to the Eden Area
General Plan. Teixeira was informed that the decision would
be final unless an appeal were filed by December 26, 2011.
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.
B
Teixeira challenged the County’s decision in the United
States District Court for the Northern District of California,
arguing that it violated his right to due process and denied
him equal protection of the law, and that the Ordinance was
impermissible under the Second Amendment both facially
and as applied. In preparation for the suit, Teixeira
commissioned a study, which determined that, as a result of
the 500-foot rule, “there are no parcels in the unincorporated
areas of Alameda County which would be available for
firearm retail sales.” He argued that the zoning ordinance “is
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TEIXEIRA V. COUNTY OF ALAMEDA 9
not reasonably related to any possible public safety concerns”
and effectively “red-lin[es] . . . gun stores out of existence.”
Alameda County moved to dismiss the claims and
Teixeira moved for a preliminary injunction (Teixeira would
later stipulate to the dismissal of his due process claim). The
district court denied Teixeira’s motion and dismissed the
equal protection and Second Amendment claims with leave
to amend. Teixeira filed an amended complaint that asserted
four claims: (1) in singling out gun stores, the Ordinance, as
applied, violated the Fourteenth Amendment’s Equal
Protection Clause; (2) the Ordinance was facially invalid
under the Equal Protection Clause because it targeted guns
stores but did not apply to other similarly situated businesses;
(3) the Ordinance was facially invalid under the Second
Amendment; and (4) the Ordinance, as applied, violated the
Second Amendment. Teixeira sought declaratory and
injunctive relief; damages including costs, expenses, and lost
profits; and costs and attorney’s fees. In response, the County
moved to dismiss, arguing that the equal protection
challenges failed to state sufficient facts to support a claim
and that under the Second Amendment, regulations governing
the sale of firearms are presumptively valid.
The district court granted the County’s motion under
Federal Rule of Civil Procedure 12(b)(6) to dismiss for
failure to state a claim upon which relief could be granted.
Teixeira timely appealed.
II
Teixeira first renews his Equal Protection Clause claims.
Because “most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or
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TEIXEIRA V. COUNTY OF ALAMEDA10
persons,” we will uphold a legislative classification so long
as it “neither burdens a fundamental right nor targets a
suspect class,” and “bears a rational relation to some
legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996);
see also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
A
Because gun store owners have not been recognized as a
“suspect class,” see Olympic Arms v. Buckles, 301 F.3d 384,
388–89 (6th Cir. 2002), Teixeira instead asserts that he is
“engaged in, or assisting others in exercising a core
fundamental right” and that “the Government’s actions
infringe on” that right. Merely infringing on a fundamental
right, however, does not implicate the Equal Protection
Clause; to succeed, Teixeira must allege that he is being
denied a fundamental right while others are permitted to
exercise such right, and that there is no valid justification for
the distinction. See Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 541 (1942) (“When the law lays an unequal
hand on those who have committed intrinsically the same
quality of offense and sterilizes one and not the other, it has
made as an invidious a discrimination as if it had selected a
particular race or nationality for oppressive treatment.”); see
also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621
(1969); Shapiro v. Thompson, 394 U.S. 618 (1969),
overruled, in part, on other grounds by Edelman v. Jordan,
415 U.S. 651 (1974). Here, “other general retailers,” whom
Teixeira identifies as similarly situated businesses, are also
forbidden from engaging in the commercial sale of firearms
absent compliance with Alameda County Land Use Code
§ 17.54.131. This is not a situation where one group is being
denied a right while another similar group is not. And
because the right to keep and to bear arms for self-defense is
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TEIXEIRA V. COUNTY OF ALAMEDA 11
not only a fundamental right, McDonald v. City of Chicago,
561 U.S. 742, 766–78 (2010), but an enumerated one, it is
more appropriately analyzed under the Second Amendment
than the Equal Protection Clause. Cf. Albright v. Oliver,
510 U.S. 266, 273 (1994) (“Where a particular Amendment
‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior,
‘that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing
these claims.’” (quoting Graham v. Connor, 490 U.S. 386,
395 (1989))). Because Teixeira’s equal protection challenge
is “no more than a [Second] Amendment claim dressed in
equal protection clothing,” it is “subsumed by, and co-
extensive with” the former, Orin v. Barclay, 272 F.3d 1207,
1213 n.3 (9th Cir. 2001), and therefore is not cognizable
under the Equal Protection Clause.
B
Nor did Teixeira adequately plead a “class-of-one” Equal
Protection Clause claim. A class-of-one claim is cognizable
when a “plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.”
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
But Teixeira himself acknowledges that gun stores are
materially different from other retail businesses when he
notes that “[b]usinesses offering gun smithing services and
retail firearm sales are strictly licensed and regulated by state
and federal law.” In neglecting to identify a similarly situated
business, Teixeira failed to plead a cognizable class-of-one
claim. Teixeira’s Equal Protection Clause claims accordingly
fail.
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TEIXEIRA V. COUNTY OF ALAMEDA12
III
Next Teixeira argues that he has sufficiently pled a claim
that Alameda County’s zoning ordinance violates the Second
Amendment. Because the district court disposed of the case
on the pleadings, we must assume the veracity of the factual
allegations contained in Teixeira’s complaint. See Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
The Second Amendment states that “[a] well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear arms, shall not be
infringed.” In District of Columbia v. Heller, the Supreme
Court held that the Amendment guarantees an individual right
to possess firearms for traditionally lawful purposes, such as
self-defense. See 554 U.S. 570, 574–626 (2008). The Court
subsequently applied the right against the States via the
Fourteenth Amendment in McDonald v. City of Chicago,
561 U.S. 742 (2010). See also Caetano v. Massachusetts,
136 S. Ct. 1027, 1027 (2016) (per curiam).2 Though the
Supreme Court has yet to “clarify the entire field” of Second
Amendment jurisprudence, Heller, 554 U.S. at 635, it has
established a broad framework for addressing challenges such
as the one at hand. See Jackson v. City & County of San
2 Teixeira brings his Second Amendment claims, in part, on behalf of his
“actual and prospective customers.” As vendors “have been uniformly
permitted to resist efforts at restricting their operations by acting as
advocates of the rights of third parties who seek access to their market or
function,” Craig v. Boren, 429 U.S. 190, 195 (1976), Teixeira has
standing to challenge the Ordinance.
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TEIXEIRA V. COUNTY OF ALAMEDA 13
Francisco, 746 F.3d 953, 959 (9th Cir. 2014).3 In reviewing
Alameda County’s ordinance, we employ a two-step inquiry,
which begins by asking whether a challenged law burdens
conduct protected by the Second Amendment; if the answer
is in the affirmative, we apply the appropriate level of
scrutiny. United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013) (citing United States v. Chester, 628 F.3d 673, 680
(4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89
(3d Cir. 2010)); see also Jackson, 746 F.3d at 959–60.
A
Turning to the inquiry’s first step, we must determine
whether the commercial sale of firearms implicates the
Second Amendment right to keep and to bear arms by
reviewing the “historical understanding of the scope of the
right.” Heller, 554 U.S. at 625.
1
Teixeira ultimately bases his Second Amendment
challenge on a purported right to purchase firearms—that is,
a right to acquire weapons for self-defense. Though Heller
did not recognize explicitly a right to purchase or to sell
weapons, the Court’s opinion was not intended to serve as
“an exhaustive historical analysis . . . of the full scope of the
Second Amendment.” Heller, 554 U.S. at 626. Therefore it is
incumbent upon us to take a fresh look at the historical record
to determine whether the right to keep and to bear arms, as
3 Although the Supreme Court denied certiorari, at least two justices
expressed concern with our analysis in Jackson. See Jackson v. City &
Cty. of San Francisco, 135 S. Ct. 2799 (2015) (Thomas, J., dissenting
from denial of certiorari).
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TEIXEIRA V. COUNTY OF ALAMEDA14
understood at the time it was enshrined in the Constitution,
embraced a right to acquire firearms. See id. at 634–35.
Our forefathers recognized that the prohibition of
commerce in firearms worked to undermine the right to keep
and to bear arms. See generally David B. Kopel, Does the
Second Amendment Protect Firearms Commerce?, 127 Harv.
L. Rev. F. 230 (2014). The English Bill of Rights of 1689 had
guaranteed “[t]hat the Subjects which are Protestants may
have Arms for their Defence suitable to their Conditions and
as allowed by law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at
Large 441. The right of citizens to possess firearms was a
proposition that necessarily extended from the fundamental
tenet of natural law that a man had a right to defend himself.
As William Blackstone noted:
The fifth and last auxiliary right of the
subject, that I shall at present mention, is that
of having arms for their defence, suitable to
their condition and degree, and such as are
allowed by law. Which is also declared by the
same statute I W. & M. st. 2. c. 2. and is
indeed a public allowance, under due
restrictions, of the natural right of resistance
and self-preservation, when the sanctions of
society and laws are found insufficient to
restrain the violence of oppression.
1 William Blackstone, Commentaries 139 (1765).
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. For instance, in
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TEIXEIRA V. COUNTY OF ALAMEDA 15
Virginia, all persons had “liberty to sell armes and
ammunition to any of his majesties loyall subjects inhabiting
this colony.” Laws of Va., Feb., 1676–77, Va. Stat. at Large,
2 Hening 403. It came as a shock, therefore, when the Crown
sought to embargo all imports of firearms and ammunition
into the colonies. 5 Acts Privy Council 401, reprinted in
Connecticut Courant, Dec. 19, 1774, at 3. The General
Committee of South Carolina declared in response that “by
the late prohibition of exporting arms and ammunition from
England, it too clearly appears a design of disarming the
people of America, in order the more speedily to dragoon and
enslave them.” 1 John Drayton, Memoirs of the American
Revolution As Relating to the State of South-Carolina 166
(1821) (internal quotation marks omitted). Such suspicions
were not unwarranted. 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: “the 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.”
Leland J. Bellot ed., William Knox Asks What is Fit to Be
Done with America?, in 1 Sources of American Independence
140, 176 (Howard H. Peckham ed., 1978).
Knox never had the opportunity to put his plan into
action. Having freed themselves from the rule of King George
III, Americans turned their attention to fashioning a
constitutional order that would preserve the rights they had
shed blood defending at Lexington and Concord, Trenton,
and Yorktown.
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TEIXEIRA V. COUNTY OF ALAMEDA16
In ratifying the Second Amendment, the States sought to
codify the English right to keep and to bear arms. See Heller,
554 U.S. at 599. The historical record indicates that
Americans continued to believe that such right included the
freedom to purchase and to sell weapons. In 1793, Thomas
Jefferson noted that “[o]ur citizens have always been free to
make, vend, and export arms. It is the constant occupation
and livelihood of some of them.” Thomas Jefferson, 3
Writings 558 (H.A. Washington ed., 1853). Indeed, as one
commentator of the early Republic pondered, “What law
forbids the veriest pauper, if he can raise a sum sufficient for
the purchase of it, from mounting his Gun on his Chimney
Piece . . . ?” Heller, 554 U.S. at 583 n.7 (quoting Some
Considerations on the Game Laws 54 (1796)). At the time the
Fourteenth Amendment was ratified, which McDonald held
applied the Second Amendment against the States, at least
some American jurists simply assumed that the “right to keep
arms, necessarily involve[d] the right to purchase them.”
Andrews v. State, 50 Tenn. 165, 178 (1871).
As our predecessors recognized, logic compels such an
inference. If “the right of the people to keep and bear arms”
is to have any force, the people must have a right to acquire
the very firearms they are entitled to keep and to bear. Indeed,
where a right depends on subsidiary activity, it would make
little sense if the right did not extend, at least partly, to such
activity as well. The Supreme Court recognized this principle
in very different contexts when it held that “[l]imiting the
distribution of nonprescription contraceptives to licensed
pharmacists clearly imposes a significant burden on the right
of the individuals to use contraceptives,” Carey v.
Population Servs., Int’l, 431 U.S. 678, 689 (1977), and when
it held that a tax on paper and ink products used by
newspapers violated the First Amendment because it
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TEIXEIRA V. COUNTY OF ALAMEDA 17
impermissibly burdened freedom of the press, see
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 585 (1983). “[F]undamental rights,
even though not expressly guaranteed, have been recognized
by the Court as indispensable to the enjoyment of rights
explicitly defined” because such “unarticulated rights are
implicit in enumerated guarantees.” Richmond Newspapers
v. Virginia, 448 U.S. 555, 579–80 (1980). One cannot truly
enjoy a constitutionally protected right when the State is
permitted to snuff out the means by which he exercises it; one
cannot keep arms when the State prevents him from
purchasing them. Cf. Jackson, 746 F.3d at 967 (“[W]ithout
bullets, the right to bear arms would be meaningless.”); Ezell
v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“The
right to possess firearms for protection implies a
corresponding right to . . . maintain proficiency in their use;
the core right wouldn’t mean much without the training and
practice that make it effective.”). Thus, the Second
Amendment “right must also include the right to acquire a
firearm.” Illinois Ass’n of Firearms Retailers v. City of
Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill. 2014).4 As the
District Court for the Northern District of Illinois noted in
striking down a Chicago ordinance that abridged such right,
a “ban on gun sales and transfers prevents [citizens] from
fulfilling . . . the most fundamental prerequisite of legal gun
ownership—that of simple acquisition.” Id. at 938; see also
Mance v. Holder, 74 F. Supp. 3d 795, 807 n.8 (N.D. Tex.
2015) (“[O]perating a business that provides Second
4 History and logic aside, our Second Amendment jurisprudence
compels such a conclusion. In Jackson we held that the Second
Amendment protects the sale of ammunition. See Jackson, 746 F.3d at
968. It would be truly bizarre if the Second Amendment did not extend
similarly to the sale of firearms.
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TEIXEIRA V. COUNTY OF ALAMEDA18
Amendment services is generally protected by the Second
Amendment, and prohibitions on firearms sales are subject to
similar scrutiny.”); Radich v. Guerrero, No. 1:14-CV-00020,
2016 WL 1212437, at *7 (D. N. Mar. I. Mar. 28, 2016) (“If
the Second Amendment individual right to keep and bear a
handgun for self-defense is to have any meaning, it must
protect an eligible individual’s right to purchase a handgun,
as well as the complimentary right to sell handguns.”).
Alameda County has offered nothing to undermine our
conclusion that the right to purchase and to sell firearms is
part and parcel of the historically recognized right to keep and
to bear arms.
2
In addition to selling firearms, Teixeira alleges in his First
Amended Complaint 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.” Because the Second Amendment protects a “right
not as connected to militia service, but as securing the militia
by ensuring a populace familiar with arms,” Heller, 554 U.S.
at 617, it naturally follows that
to bear arms implies something more than the
mere keeping; it implies the learning to handle
and use them in a way that makes those who
keep them ready for their efficient use; in
other words, it implies the right to meet for
voluntary discipline in arms, observing in
doing so the laws of public order.
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TEIXEIRA V. COUNTY OF ALAMEDA 19
Id. at 617–18 (quoting Thomas Cooley, The General
Principles of Constitutional Law in the United States of
America 271 (1868)).
Such logic led the Seventh Circuit to conclude that a
regulation prohibiting most firearm ranges within the city
limits of Chicago constituted a “serious encroachment on the
right to maintain proficiency in firearm use, an important
corollary to the meaningful exercise of the core right to
possess firearms for self-defense.” Ezell, 651 F.3d at 708. Just
like the firearm range in Ezell, the services Teixeira hopes to
offer implicate 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. See Mance, 74 F. Supp. 3d at 807 n.8.
B
Having determined that, contrary to the district court’s
ruling, the Alameda County ordinance burdens conduct
protected by the Second Amendment, the next step in the
inquiry is to identify the proper standard of review. Jackson,
746 F.3d at 960–61; Chovan, 735 F.3d at 1136.
1
Though we typically subject a regulation interfering with
a constitutionally protected right to some form of heightened
scrutiny and require the Government to justify the burden it
has placed on such right, the Heller court made clear that
certain regulations enjoy more deferential treatment:
[N]othing in our opinion should be taken to
cast doubt on longstanding prohibitions on the
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TEIXEIRA V. COUNTY OF ALAMEDA20
possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools
and government buildings, or laws imposing
conditions and qualifications on the
commercial sale of arms.
Heller, 554 U.S. at 626–27. The Court went on to explain in
a footnote that this list of “presumptively lawful regulatory
measures” was not intended to be exhaustive. Id. at 627 n.26.
McDonald v. City of Chicago, which incorporated the Second
Amendment against the States, made similar assurances
regarding such “longstanding regulatory measures.” 561 U.S.
at 786.
Teixeira argues that the passage in Heller is merely a
prediction by the Court that such regulations would likely
survive if subjected to some form of heightened scrutiny—it
did not exempt listed activities from the analysis altogether.
A dismissal of the language as dicta, however, is something
we have considered previously and rejected. See United
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010). We
instead treat Heller’s “presumptively lawful regulatory
measures” as examples of prohibitions that simply “fall
outside the historical scope of the Second Amendment.”
Jackson, 746 F.3d at 959–60. Given their longstanding
acceptance, such measures are not subjected to the more
exacting scrutiny normally applied when reviewing a
regulation that burdens a fundamental right.
But an exemption for certain “laws imposing conditions
and qualifications on the commercial sale of arms,” Heller,
554 U.S. at 626–27, does not mean that there is a categorical
exception from Second Amendment scrutiny for the
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TEIXEIRA V. COUNTY OF ALAMEDA 21
regulation of gun stores. If such were the case, the County
could enact a total prohibition on the commercial sale of
firearms. There is no question that “[s]uch a result would be
untenable under Heller.” Marzzarella, 614 F.3d at 92 n.8.
Indeed, if all regulations relating to the commercial sale of
firearms were exempt from heightened scrutiny, there would
have been no need to specify that certain “conditions and
qualifications on the commercial sale of arms” were
“presumptively lawful.” Heller, 554 U.S. at 626–27 & n.26;
see Kopel, supra, at 236 (“[T]he exception proves the rule.
There is a right to the commercial sale of arms, but it is a
right that may be regulated by ‘conditions and
qualifications.’”). As discussed, supra, we are satisfied that
the historical right that the Second Amendment enshrined
embraces the purchase and sale of firearms. The proper
question, therefore, is whether Alameda County’s ordinance
is the type of longstanding “condition[]” or “qualification[]
on the commercial sale of arms,” Heller, 554 U.S. at 626–27,
whose interference with the right to keep and to bear arms
historically would have been tolerated.
In United States v. Chovan, we held that a federal statute
prohibiting domestic violence misdemeanants from
possessing firearms for life was not presumptively lawful
under Heller. See 735 F.3d at 1137. First, we determined that
the statute did not represent a “longstanding” prohibition,
noting that the “first federal firearm restrictions regarding
violent offenders were not passed until 1938.” Id. Second, we
concluded that the Government failed to prove “that domestic
violence midemeanants in particular have historically been
restricted from bearing arms.” Id. (emphasis omitted). Thus,
a regulation that merely resembles something listed by the
Court in Heller will not avoid heightened constitutional
scrutiny. Instead, the type of law in question must be both
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TEIXEIRA V. COUNTY OF ALAMEDA22
longstanding and closely match a listed prohibition, see id.,
or, alternatively, there must be “persuasive historical
evidence establishing that the regulation at issue imposes
prohibitions that fall outside the historical scope of the
Second Amendment,” Jackson, 746 F.3d at 960. The burden
is on the Government to demonstrate that a prohibition has
historically fallen outside the Second Amendment’s scope
before it can claim a presumption of validity. See Chovan,
735 F.3d at 1137.
Here, the County failed to demonstrate that the Ordinance
“falls within a well-defined and narrowly limited category of
prohibitions that have been historically unprotected.”
Jackson, 746 F.3d at 960 (internal quotation marks omitted).
Although, as the district court observed, the Ordinance is a
“law[] imposing conditions and qualifications on the
commercial sale of arms,” (quoting Heller, 554 U.S. at
626–27), there has been no showing that it is “longstanding.”
See Chovan, 735 F.3d at 1137. Of course, that is not to say
that the Ordinance itself had to have been on the books at the
time the Second Amendment “codified a right ‘inherited from
our English ancestors,’” Heller, 554 U.S. at 599 (quoting
Robertson v. Baldwin, 165 U.S. 275, 281 (1897)), in order to
be presumed lawful. But 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. That the
Nation’s first comprehensive zoning law did not come into
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TEIXEIRA V. COUNTY OF ALAMEDA 23
existence until 1916, see Sonia A. Hirt, Zoned in the USA:
The Origins and Implications of American Land-Use
Regulation 35 (2014), while not dispositive, provides at least
some evidence that Alameda County’s Conditional Use
Permit requirement is not heir to a longstanding class of
historical prohibitions or regulations. See also Village of
Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387 (1926)
(“Building zone laws are of modern origin. They began in
this country about 25 years ago.”).5 In any event, the County
has failed to demonstrate that the Ordinance is the type of
longstanding regulation that our predecessors considered an
acceptable intrusion into the Second Amendment right. See
Jackson, 746 F.3d at 960. Such burden was the County’s to
carry. See Chovan, 735 F.3d at 1137.
But such reasoning does not signify that the Ordinance
violates the Second Amendment. It does mean, however, that
the Ordinance must be subjected to heightened
scrutiny—something beyond mere rational basis review, for,
as the Heller Court noted, “If all that was required to
overcome the right to keep and bear arms was a rational basis,
the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have
no effect.” Heller, 554 U.S. at 628–29 & n.27.
5 Of course, even if a zoning ordinance does not represent a longstanding
prohibition or regulation, it may ultimately survive Second Amendment
scrutiny as “sensible zoning and other appropriately tailored regulations”
for gun-related activities are most certainly permissible. See Ezell,
651 F.3d at 709.
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TEIXEIRA V. COUNTY OF ALAMEDA24
2
Though neither Heller nor McDonald dictates a specific
standard of scrutiny for Second Amendment challenges, see
Heller, 554 U.S. at 628–29, “[b]oth Heller and McDonald
suggest that First Amendment analogues are more
appropriate,” Ezell, 651 F.3d at 706, as does our own
jurisprudence, see Jackson, 746 F.3d at 960–61. “When
ascertaining the appropriate level of scrutiny, ‘just as in the
First Amendment context,’ we consider: ‘(1) how close the
law comes to the core of the Second Amendment right and
(2) the severity of the law’s burden on the right.’” Id.
(quoting Chovan, 735 F.3d at 1138); see also Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-
Defense, 56 UCLA L. Rev. 1443, 1461–73 (2009).
a
“[T]he Second Amendment has ‘the core lawful purpose
of self-defense,’” Jackson, 746 F.3d at 961 (quoting Heller,
554 U.S. at 630)—“‘the right of a law-abiding, responsible
citizen to possess and carry a weapon,’” Chovan, 735 F.3d at
1138 (quoting Chester, 628 F.3d at 682–83) (emphasis
omitted). The first step in selecting an appropriate level of
scrutiny is to determine how close the Alameda County
ordinance comes to burdening such right.
In Chovan, we determined that a federal statute
forbidding domestic violence midemeanants from possessing
firearms did not implicate the core Second Amendment right
because, by definition, misdemeanants were not “‘law-
abiding, responsible citizens.’” Id. at 1138 (quoting Heller,
554 U.S. at 635). In contrast, in Jackson we determined that
a city ordinance requiring gun owners to store firearms in
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TEIXEIRA V. COUNTY OF ALAMEDA 25
locked containers in their homes did strike close to the core
of the Second Amendment right because it made accessing
weapons for self-defense more difficult. See Jackson,
746 F.3d at 963–64. Finally, in Ezell, the Seventh Circuit held
that a regulation prohibiting most firearm ranges within the
city limits of Chicago constituted a “serious encroachment on
the right to maintain proficiency in firearm use, an important
corollary to the meaningful exercise of the core right to
possess firearms for self-defense.” Ezell, 651 F.3d at 708.
Here, there is 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,”
Chovan, 735 F.3d at 1138 (internal quotation marks omitted)
(emphasis omitted), because it would inhibit his ability to
acquire weapons.6 We are therefore satisfied that such a
regulation comes close to the core of the Second Amendment
right.
b
Having determined that a law such as Alameda County’s
ordinance burdens protected conduct, we must next determine
the severity of such burden. See Jackson, 746 F.3d at 960–61.
The County argues that the Ordinance “simply restricts
the location of gun stores.” If such is the case, the Ordinance
6 As Teixeira observes, his future customers necessarily would be “law-
abiding” because state and federal laws require that gun retailers perform
background checks to confirm that customers are not criminals.
Furthermore, as Teixeira argued in his First Amended Complaint, current
law requires that gun owners receive training and certifications, which his
business would provide.
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TEIXEIRA V. COUNTY OF ALAMEDA26
“does not impose the sort of severe burden imposed by the
handgun ban at issue in Heller that rendered it
unconstitutional” because the Ordinance “does not
substantially prevent law-abiding citizens from using firearms
to defend themselves in the home.” Jackson, 746 F.3d at 964.
If the district court’s assumption is indeed correct—that the
Ordinance merely regulates where gun stores can be located
rather than banning them—it burdens only the “manner in
which persons may exercise their Second Amendment
rights.” Chovan, 735 F.3d at 1138. It is thus analogous to “a
content-neutral speech restriction that regulates only the time,
place, or manner of speech.” Jackson, 746 F.3d at 964. To put
it another way, the Ordinance would be a regulation rather
than a prohibition. Though the Ordinance might implicate
“the core of the Second Amendment right, [if] it does not
impose a substantial burden on conduct protected by the
Second Amendment,” intermediate scrutiny would be
appropriate. Id. at 965. But see Mance, 74 F. Supp. 3d 795,
807 (“Restricting the distribution channels of [firearms] to a
small fraction of the total number of possible retail outlets
requires a compelling interest that is narrowly tailored.”).
Teixeira’s First Amended Complaint, however, alleges
that Alameda County has enacted something beyond a mere
regulation—Teixeira alleges that the Conditional Use
Permit’s 500-foot rule, as applied, amounts to a complete ban
on gun stores: “according to the plaintiffs’ research, which is
based primarily on government agency data, there are no
parcels in the unincorporated areas of Alameda County which
would be available for firearm retail sales.” The district court
disregarded such assertion, observing that other retail
establishments selling guns exist in Alameda County and
“plaintiffs [fail to] allege that the ‘existing retail
establishments’ that sell guns are unable to comply with the
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TEIXEIRA V. COUNTY OF ALAMEDA 27
Ordinance.” Perhaps anticipating the district court’s
skepticism, Teixeira’s complaint alleged that other Federal
Firearm Licensees located within the County were either not
in fact retailers, or for whatever reason were not required to
comply with the restrictions mandated by the Ordinance.
Though such an assertion may yet prove false, there is no way
to tell that from the face of the complaint. See New Mexico
State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089,
1094 (9th Cir. 2011). And 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. Ezell, 651 F.3d at 708.
C
Having determined that the Second Amendment compels
us to apply some form of heightened scrutiny to a regulation
that would significantly burden the commercial sale of
firearms, we must finally examine the district court’s
disposition of Teixeira’s claims.
1
Because Teixeira alleges here that the Ordinance’s 500-
foot requirement is unconstitutional on its face, we assume
that the Ordinance merely regulates the location of gun stores
and thus intermediate scrutiny applies. “Although courts have
used various terminology to describe the intermediate
scrutiny standard, all forms of the standard require (1) the
government’s stated objective to be significant, substantial,
or important; and (2) a reasonable fit between the challenged
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TEIXEIRA V. COUNTY OF ALAMEDA28
regulation and the asserted objective.” Chovan, 735 F.3d at
1139.
The district court erroneously believed that the Ordinance
fell outside the scope of the Second Amendment and thus
warranted no more than rational basis review. The court
nevertheless went through the motions of applying
heightened scrutiny, contending that “the Ordinance would
pass any applicable level of scrutiny.” In analyzing step one,
the court listed the “important governmental objectives”
identified by the County: (1) “an ‘interest in protecting public
safety and preventing harm in populated, well-traveled, and
sensitive areas such as residentially-zoned districts,’”
(2) “‘protecting against the potential secondary effects of gun
stores’” and (3) “‘preserving the character of residential
zones.’”
The district court’s characterization of “residentially-
zoned districts” as “sensitive areas” is incongruous with
Heller, which assumed that firearms could be restricted in
sensitive places “such as schools and government buildings,”
specifically in contrast to residences, where firearms could
not be prohibited. See Heller, 554 U.S. at 626–28. Of course,
reducing violent crime is without question a substantial
interest, see Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir.
2015), assuming that the “secondary effects” to which the
district court referred have something to do with crime.7
7 Before the district court, the County argued that it was “reasonable to
keep gun stores away from residentially-zoned districts simply because
gun stores are heavily regulated, their patrons are heavily regulated, their
owners are heavily regulated, and exactly the type of person should not be
in a gun store can be can be attracted to that area so there is secondary
effect. And it is public safety to keep them away from the (inaudible) but
it is a part of the burden of (inaudible).” It is difficult to understand why
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TEIXEIRA V. COUNTY OF ALAMEDA 29
Preserving the appearance of a neighborhood may also be
characterized fairly as a substantial interest; on a previous
occasion we held that Honolulu had “a substantial interest in
protecting the aesthetic appearance of [its] communities by
avoiding visual clutter” caused by “unsightly vendor stands.”
One World One Family Now v. City & County of Honolulu,
76 F.3d 1009, 1013 (9th Cir. 1996) (internal quotation marks
omitted). The district court thus properly identified at least
some interests that were “significant, substantial, or
important.” Chovan, 735 F.3d at 1139.
After identifying the County’s purported interests, the
district court then declared that there was a “reasonable fit
between the Ordinance and its objectives.” Here, the district
court’s analysis erred. It reasoned that “[w]hile keeping a gun
store 500 feet away from a residential area does not guarantee
that gun-related violence or crimes will not occur, the law
does not require a perfect match between the Ordinance’s
means and objectives, nor does the law require the Ordinance
to be foolproof.” The 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.
the County relies on the “secondary effects” doctrine. In the First
Amendment context, the Supreme Court explained that “a city may not
regulate the secondary effects of speech by suppressing the speech itself,”
even if reducing speech would eliminate its undesired effects. City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425, 445 (2002). Following
Heller and McDonald, it is doubtful that an ordinance whose true
“purpose and effect,” id., was to eliminate access to firearms for law-
abiding citizens could survive scrutiny.
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TEIXEIRA V. COUNTY OF ALAMEDA30
Under heightened scrutiny, the County “bears the burden
of justifying its action.” Ezell, 651 F.3d at 706. The County
failed to satisfy its burden because it never justified the
assertion that gun stores act as magnets for crime. Indeed,
Teixeira took pains to remind the court that “all employees
working at a gun store, and all clients/customers are required
to be law-abiding citizens.”
In upholding other gun regulations, we have not simply
accepted government assertions at face value. In Chovan, we
reviewed evidence presented by the Government in support
of a statute forbidding domestic violence misdemeanants
from owning firearms—specifically, a series of studies relied
upon previously by the Seventh Circuit supporting the
Government’s assertion that “a high rate of domestic violence
recidivism exists.” See id. at 1140–41 (citing United States v.
Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010)). Likewise in
Jackson, we required that San Francisco provide evidence to
demonstrate that requiring handguns to be stored in locked
containers was reasonably related to the objective of reducing
handgun-related deaths:
The record contains ample evidence that
storing handguns in a locked container
reduces the risk of both accidental and
intentional handgun-related deaths, including
suicide. Based on the evidence that locking
firearms increases safety in a number of
different respects, San Francisco has drawn a
reasonable inference that mandating that guns
be kept locked when not being carried will
increase public safety and reduce firearm
casualties. This evidence supports San
Francisco’s position that section 4512 is
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TEIXEIRA V. COUNTY OF ALAMEDA 31
substantially related to its objective to reduce
the risk of firearm injury and death in the
home.
746 F.3d at 966; cf. City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425, 437 (2002) (“[T]he city certainly bears the
burden of providing evidence that supports a link between
concentrations of adult operations and asserted secondary
effects.”). And in Fyock, we affirmed a denial of a
preliminary injunction against a city’s ban on large-capacity
magazines because we were satisfied with the district court’s
determination that “pages of credible evidence, from study
data to expert testimony to the opinions of Sunnyvale public
officials, indicat[ed] that the Sunnyvale ordinance is
substantially related to the compelling government interest in
public safety.” 779 F.3d at 1000.
The district court should have followed our approach in
Jackson, Chovan, and Fyock and required at least some
evidentiary showing that gun stores increase crime around
their locations. Likewise, the record lacks any explanation as
to how a gun store might negatively impact the aesthetics of
a neighborhood. The district court simply did not bother to
address how the Ordinance was related to such an interest.
Although under intermediate scrutiny the district court was
not required to “impose ‘an unnecessarily rigid burden of
proof,’” the court should have at least required the County to
demonstrate that it “reasonably believed [the evidence upon
which it relied was] relevant to the problem that the
[Ordinance] addresses.’” Jackson, 746 F.3d at 965 (quoting
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50–52
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TEIXEIRA V. COUNTY OF ALAMEDA32
(1986)).8 The burden was on the County to demonstrate that
there was “a reasonable fit between the challenged regulation
and the asserted objective.” Chovan, 735 F.3d at 1139. The
County failed to carry such burden.
2
Teixeira also claims that the Ordinance, as applied, effects
a complete ban on gun stores in unincorporated Alameda
County.
In an attempt to further its conclusion that the 500-foot
rule was reasonably tailored, the district court explained that
the Ordinance “merely regulates the places where gun stores
may be located . . . but it does not ban them” and “reasonable
locations to operate a gun store in Alameda County exist, as
evidenced by the many stores that sell guns there.” As
discussed, supra, Teixeira’s First Amendment Complaint
8 Certain facts alleged in the First Amended Complaint cast doubt on the
County’s contention that enforcement of the Ordinance was designed to
satisfy the objectives it articulated in court. According to the complaint,
the West County Board of Zoning Adjustments initially granted the
Conditional Use Permit and variance after a staff report reached, among
other findings, the conclusion that Valley Guns & Ammo would not
“materially affect adversely the health or safety of persons residing or
working in the vicinity.” The variance and permit were denied instead
because the San Lorenzo Village Homes Association, objecting to the
proposed business, filed an appeal challenging the County’s approval. In
the First Amendment context, we condemned a “sensitive use veto” in
Young v. City of Simi Valley, 216 F.3d 807, 814 & n.8 (9th Cir. 2000),
because of the potential for third parties to invoke it arbitrarily. Of course,
the residents who appealed the Zoning Board’s approval may have done
so for valid reasons other than “hostil[ity] to the civil rights of the
plaintiffs as guaranteed by the Second and Fourteenth Amendments,” as
Teixeira alleges.
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TEIXEIRA V. COUNTY OF ALAMEDA 33
contends otherwise: “there are no parcels in the
unincorporated areas of Alameda County which would be
available for firearm retail sales.” Though such an assertion
may yet prove false, the district court could not simply
assume so on a motion to dismiss. See Iqbal, 556 U.S. at 679
(“When there are well-pleaded factual allegations, a court
should assume their veracity.”). If on remand evidence does
confirm that the Ordinance, as applied, completely bans new
gun stores (rather than merely regulates their locations),
something more exacting than intermediate scrutiny will be
warranted. See Ezell, 651 F.3d at 708.
IV
The dissent does not share our concern over Alameda
County’s attempt to restrict the ability of law-abiding
Americans to participate in activity protected by the Second
Amendment. 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. See Ezell, 651
F.3d at 697. The right of law-abiding citizens to keep and to
bear arms is not a “second-class right, subject to an entirely
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TEIXEIRA V. COUNTY OF ALAMEDA34
different body of rules than the other Bill of Rights
guarantees that we have held to be incorporated into the Due
Process Clause.” McDonald, 561 U.S. at 780. Indeed, it is one
“that the Framers and ratifiers of the Fourteenth Amendment
counted . . . among those fundamental rights necessary to our
system of ordered liberty.” Id. at 778. 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.
We reiterate Heller and McDonald’s assurances that
government enjoys substantial leeway under the Second
Amendment to regulate the commercial sale of firearms. See
id. at 786; Heller, 554 U.S. at 626–27. Alameda County’s
Ordinance may very well be permissible. Thus far, however,
the County has failed to justify the burden it has placed on the
right of law-abiding citizens to purchase guns. The Second
Amendment requires something more rigorous than the
unsubstantiated assertions offered to the district court.
Consequently, we reverse the dismissal of Teixeira’s well-
pled Second Amendment claims and remand for the district
court to subject Alameda County’s 500-foot rule to the proper
level of scrutiny.
V
For the forgoing reasons, the dismissal of the Equal
Protection Clause claims is AFFIRMED and the dismissal of
the Second Amendment claims is REVERSED. The case is
REMANDED for further proceedings consistent with this
opinion. Each party shall bear its own costs on appeal.
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TEIXEIRA V. COUNTY OF ALAMEDA 35
SILVERMAN, Circuit Judge, concurring in part and
dissenting in part:
The first thing you need to know about this case is who
the plaintiffs are. They are not individuals who claim the right
to keep and bear arms for self-defense or for other lawful
purposes. Rather, they are entrepreneurs (and their
supporters) who want to operate a gun shop in an area of
Alameda County that is not zoned for that use.
The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.
When you clear away all the smoke, what we’re dealing
with here is a mundane zoning dispute dressed up as a Second
Amendment challenge.
The Supreme Court has held that the Second Amendment
confers an individual right to keep and bear arms. District of
Columbia v. Heller, 554 U.S. 570, 595 (2008). Even
assuming for the sake of discussion that merchants who want
to sell guns commercially have standing to assert the
personal, individual rights of wholly hypothetical would-be
buyers – a dubious assumption, in my opinion – the first
amended complaint does not explain how Alameda County’s
zoning ordinance, on its face or as applied, impairs any actual
person’s individual right to bear arms, no matter what level
of scrutiny is applied. Instead, the first amended complaint
alleges that would-be buyers are entitled to the enhanced
customer service experience that plaintiffs could provide.
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TEIXEIRA V. COUNTY OF ALAMEDA36
Now, I like good customer service as much as the next guy,
but it is not a constitutional right. What’s more, the Supreme
Court specifically held in Heller that “nothing in our opinion
should be taken to cast doubt on . . . laws imposing conditions
and qualifications on the commercial sale of arms.” Id. at
626–27.
Conspicuously missing from this lawsuit is any honest-to-
God resident of Alameda County complaining that he or she
cannot lawfully buy a gun nearby. The district court was
right on target in dismissing the plaintiffs’ zoning case for
failure to state a Second Amendment claim, because the
district court correctly ruled that the ordinance restricting the
location of a gun store is “quite literally a ‘law[] imposing
conditions and qualifications on the commercial sale of arms
. . . .’” Therefore, I respectfully dissent from that portion of
the majority’s opinion.1
1 I agree with my colleagues that the district court correctly dismissed
the equal protection claim, and I concur in the opinion to that extent.
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ADDENDUM B California City and County Ordinances Regulating the Location
of Firearms Sales in Relation to Residential Areas Albany City Municipal Code § 8-19.6(i)(2)
Cathedral City Municipal Code § 5.32.040(A)
Contra Costa County Code § 82-36.604(1)
El Cerrito City Municipal Code § 6.70.100(A)
Hercules City Municipal Code § 4-14.06(i)(2)
Los Angeles City Municipal Code § 103.314(e)(3)
Los Angeles County Code of Ordinances § 7.46.060(E)
Oakland City Code of Ordinances § 5.26.070(I)(2)
Oakley City Municipal Code § 5.11.022(a)
Palo Alto City Municipal Code § 4.57.050(a)(9)(B)
Pinole City Municipal Code § 17.63.140(A)
Salinas City Municipal Code § 12A-6(i)(2)
San Bruno City Municipal Code § 6.08.070(H)(2)
San Pablo City Municipal Code § 9.10.140(A)
San Francisco Police Code § 613.3(i)(1)
Santa Cruz County Code § 5.62.080(C)
Santa Cruz City Municipal Code § 9.26.080(a)
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No. 13-17132
(Decision: May 16, 2016 | Panel: O’Scannlain, Bea, Silverman)
IN THE UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
JOHN TEIXEIRA; et al.,Plaintiffs - Appellants,
vs.
COUNTY OF ALAMEDA; et al.,Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA[Dist Ct. No.: 3:12-CV-03288-WHO]
APPELLANTS’ RESPONSE:OPPOSING APPELLEES’
PETITION FOR REHEARING OR REHEARING EN BANC
Donald E. J. Kilmer, Jr.CA State Bar No.: 179986
1645 Willow Street, Suite 150San Jose, California 95125
Voice: 408/264-8489Fax: 408/264-8487
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CORPORATE DISCLOSURE STATEMENT
THE CALGUNS FOUNDATION, INC., (CGF) is a non-profit
organization incorporated under the laws of California with its
principal place of business in Roseville, California. CGF supports the
California firearms community by promoting education for all
stakeholders about California and federal firearms laws, rights and
privileges, and by defending and protecting the civil rights of California
gun owners. CGF is not a publicly traded corporation.
SECOND AMENDMENT FOUNDATION, INC., (SAF) is a
non-profit membership organization incorporated under the laws of
Washington with its principal place of business in Bellevue,
Washington. SAF has over 650,000 members and supporters
nationwide, including California. The purposes of SAF include
education, research, publishing and legal action focusing on the
Constitutional right to privately owned and possess firearms, and the
consequences of gun control. SAF is not a publicly traded corporation.
CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS
LICENSEES, INC., (Cal-FFL) is a non-profit industry association of,
by, and for firearms manufacturers, dealers, collectors, training
professionals, shooting ranges, and others, advancing the interests of
iiTeixeira v. Alameda Cnty. Appellants’ Opposition
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its members and the general public through strategic litigation,
legislative efforts, and education. Cal-FFL is not a publicly traded
corporation.
These institutional plaintiffs have provided funding for this suit.
Dated: September 20, 2016
/s/ Donald Kilmer
Donald KilmerAttorney for Appellants
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TABLE OF CONTENTS
I. NEITHER PANEL REHEARING NOR EN BANC REHEARING IS WARRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Panel Rehearing Should be Denied . . . . . . . . . . . . . . . . . . . . . 1B. En Banc Rehearing Should be Denied . . . . . . . . . . . . . . . . . . . 2C. The County Cannot Meet Its Burden. . . . . . . . . . . . . . . . . . . . 2
II. THE PANEL PROPERLY APPLIED CONTROLLING PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Panel Properly Applied Supreme Court Precedent . . . . . 4B. The Panel Properly Applied Ninth Circuit Precedent
and Harmonized Sister Circuit Precedent. . . . . . . . . . . . . . . 5
III. THE PANEL PROPERLY REMANDED THE CASE TO THE DISTRICT COURT FORDEVELOPMENT OF AN ADEQUATE RECORD. . . . . . . . . . . . 10
A. Strict Scrutiny Applies if the 500-Foot Rule is a De Facto Ban on Future Gun Stores. . . . . . . . . . . . . . . 10
B. If Intermediate Scrutiny Applies, A “Secondary Effects” Analysis Requires An Evidentiary Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111. The 500-Foot Rule Burdens
the Second Amendment. . . . . . . . . . . . . . . . . . . . . . . . 122. The 500-Foot Rule Fails the Second Part
of the Chovan Test. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14C. An Analysis Under theSecond Amendment Should
Conform to the Same Evidentiary Requirements as Other Fundamental Rights. . . . . . . . . . . 17
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Notice of Related Action / Certificate of Compliance . . . . . . . . . . . . . . 21
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Table of Authorities
Cases
Agostini v. Felton, 521 U.S. 203 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Andrews v. State, 50 Tenn. 165, 178, 8 Am. Rep. 8, 13 (1871) . . . . . . . . . . . . . . . . . . 5
Annex Books v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . 16
Armster v United States District Court, 806 F.2d 1347 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) . . . . . . . . . . . . . . . . 15
Binderup v. Attorney General of the United States, 2016 U.S. App. LEXIS 16407 (Sept. 7, 2016)(en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 11
City of L.A. v. Alameda Books, 535 U.S. 425 (2002) . . . . . . . . . . . . . . . 15
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) . . . . . . . 15
Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . 5, 6, 8, 10, 14
Drake v. Filko, 724 F.3d 426 (3rd Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . 7
Ezell v. Chicago, 651 F. 3d 684 (7th Cir. 2011) . . . . . . . . . . . . 6, 8, 10, 13
Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996, 1004 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . 14
Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) . . . . . . . . . . . . 6
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GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318 (11th Cir. 2015) . . . . . . . . . . . . . 6, 8
Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Hill v. Colorado, 530 U.S. 703 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
In re Rainbow Magazine, Inc., 77 F.3d 278 (9th Cir. 1996) . . . . . . . . . 13
Isacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) . . . . . . . . . . . . . . . 17, 19
Jackson v. City and County of San Francisco, 746 F. 3d 953 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Kirkbride v. Continental Cas. Co., 933 F.2d 729, 732 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 13
Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016) . . . . . . . . . . . . . . . . . . . 6, 7
McDonald v. Chicago, 561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8, 10
NRA of Am. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 700 F.3d 185 (5th Cir. 2012) . . . . 6, 7, 13
Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19
Planned Parenthood Southwest, Inc. v. Strange, 33 F. Supp. 3d 1330 (Ala. M. Dist. Ct. 2013) . . . . . . . . 20
Reed v. Town of Gilbert, 707 F.3d 1057, 1074 n.16 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . 14
Schad v. Mt. Ephraim, 452 U.S. 61 (1981) . . . . . . . . . . . . . . . . . . . . . . 15
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Tyler v. Hillsdale Cnty. Sheriff’s Dept., 2016 U.S. App. Lexis 16880 (6th Cir. Sept. 15, 2016)(en banc) . . . . . . . . . . . . . . . . . . 6, 7, 10, 11
U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . 2, 6, 8, 10, 13
United States v. Carter, 669 F.3d 411 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Chafin, 423 F. App’x 342 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Chester, 628 F.3d 673 (4th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13
United States v. Marzzarella, 614 F.3d 85 (3th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 10, 14
United States v. One (1) Palmetto State Armory PA-15 Machinegun Reciever/Frame, 822 F.3d 136 (3rd Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Reese, 627 F.3d 792 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Whole Woman’s Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292 (June 27, 2016) . . . . . . . . . . . . 17-20
Wollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) . . . . . . . . . 15
Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Statutes
18 U.S.C. § 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
California Penal Code § 23635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 23690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 26700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 26815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
California Penal Code § 26850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 26915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 27540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
California Penal Code § 31610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 31670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Penal Code § 32000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rules
Fed. R. App. P. 35(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 35(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed. R. App. P. 40(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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I. NEITHER PANEL REHEARING NOR EN BANC REHEARING IS WARRANTED.
A. Panel Rehearing Should be Denied.
Panel rehearing is unwarranted. A petition must “state with
particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended and must argue in support of
the petition.” Fed. R. App. P. 40(a)(2).
“[P]etitions for rehearing serve the limited purpose of enabling a
panel to correct an error in its decision.” Armster v United States
District Court, 806 F.2d 1347, 1355 n.9. (9th Cir. 1986).
Given the procedural posture of the case (dismissal under Fed. R.
Civ. P. 12) the only facts are those alleged in the First Amended
Complaint (FAC). [ER: 30-183] The panel did not misread the FAC.
As shown below, the panel followed circuit precedent and established
precedent from other circuits.
This panel’s May 16, 2016 decision should not be reconsidered.
B. En Banc Rehearing Should be Denied.
Nor is en banc consideration justified. “An en banc hearing or
rehearing is not favored and ordinarily will not be ordered unless: (1)
en banc consideration is necessary to secure or maintain uniformity
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of the court’s decisions; or (2) the proceeding involves a question of
exceptional importance.” Fed. R. App. P. 35(a) (emphasis added).
First, the District Court itself did not have the benefit of recent
precedent on emerging Second Amendment analysis within this Circuit.
U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013) was published after the
Motion to Dismiss was granted. Second, the County has not answered
the suit or proffered any of the kind of evidence necessary to adjudicate
a case where a state actor seeks to regulate fundamental rights.
If a Ninth Circuit en banc panel is going to uniformly address
whether local governments can treat Second Amendment rights
different from First Amendment rights (or access to reproductive
services), it should do so only after a fully developed factual record.
C. The County Cannot Meet Its Burden.
The flaw in Appellee’s theory for requesting en banc review, is that
the case cannot be both “exceptionally important” and also unworthy of
a fully developed factual record. Stated another way, the “exceptional
importance” mandate of Fed. R. App. P. 35(a)(2) should, as a matter of
law, rest on the best evidentiary record that can be produced by
adversarial litigants in a District Court. Requesting en banc
consideration of this case, at this stage, is premature.
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If this were a serious petition, the Appellees would have addressed
the adverse opinions of the multitude of cases from the other Circuits
that address how the right to acquire arms and ammunition is part of
the Second Amendment. Instead they appear to rely principally on an
unpublished opinion out of the Fourth Circuit for the outlier theory
that, while people have the right to acquire firearms, there is no
corresponding right to buy or sell them. United States v. Chafin, 423 F.
App’x 342 (4th Cir. 2011). This argument is a little too cute.
Firearms sold by dealers (i.e., most commercial firearm sales) are
governed by federal law1. 18 U.S.C. § 923 et seq. Furthermore, nearly
all firearm transfers (commercial sales of new and used guns, private
party sales, gun show sales, loans, gifts, etc.) require the use of licensed
dealers under California law.2 It is sophistry to concede the existence
of a right, and then argue that acquiring the means to exercise that
right can be regulated out of existence. A woman’s right to an abortion
is not limited to the coat hangers she keeps in her closet.
1 The BATFE publishes a 237 page guide, available athttps://www.atf.gov/file/11241/download.
2 California’s voluminous laws are given a lay-man’sinterpretation by the Attorney General’s Office and are collected here:https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/cfl2016.pdf?.
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Addressing the Fourteenth Amendment’s Privileges or Immunities
Clause, the concurrence in McDonald v. City of Chicago, 561 U.S. 742,
780 (2010) states a constitutional truism for all fundamental rights3:
“The mere fact that the Clause does not expressly list the rights it
protects does not render it incapable of principled judicial application.”
Id. at 854.
Principled application means drawing conclusions based on the
mode of analysis of the leading cases, not citation to an unpublished
opinion in a different circuit.
II. THE PANEL PROPERLY APPLIED CONTROLLING PRECEDENT.
A. The Panel Properly Applied Supreme Court Precedent.
The Supreme Court specifically rejected the notion that the rights
“recognized in Heller [are] 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.” McDonald v.
Chicago, 561 U.S. 742, 780 (2010).
Commercial acquisition of firearms and ammunition is a Second
Amendment right. In Andrews v. State, 50 Tenn. 165, 178, 8 Am. Rep.
3 Also embodied in the Ninth and Tenth Amendments.
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8, 13 (1871) – cited favorably in District of Columbia v. Heller, 554 U.S.
570, 617-618 (2008) – the Tennessee Supreme Court equated that
State’s “right to keep and bear arms” with the Second Amendment
when it held “The right to keep and bear arms, necessarily involves the
right to purchase them, to keep them in a state of efficiency for use, and
purchase and provide ammunition suitable for such arms, and keep
them in repair. [...]” This exactly describes Appellants’ business model.
“There comes a point . . . at which the regulation of action intimately
and unavoidably connected with [a right] is a regulation of [the right]
itself.” Hill v. Colorado, 530 U.S. 703, 745 (2000)(Scalia, J., dissenting).
B. The Panel Properly Applied Ninth Circuit Precedentand Harmonized Sister Circuit Precedent.
In equating “arms,” “weapons,” and “firearms” to ammunition,
this Court found that “A regulation eliminating a person's ability to
obtain or use ammunition could thereby make it impossible to use
firearms for their core purpose.” Jackson v. City and County of San
Francisco, 746 F. 3d 953, 967 (9th Cir. 2014). Jackson was followed by
Fyock v. City of Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015).
The Seventh Circuit found the Second Amendment right to keep and
bear arms, included the right “to acquire and maintain proficiency in
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their use,” Ezell v. Chicago, 651 F. 3d 684, 704 (2011). Ezell has been
followed by the Fourth Circuit in Kolbe v. Hogan, 813 F.3d 160 (2016);
the Fifth Circuit in NRA of Am. v. Bureau of Alcohol, Tobacco, Firearms
and Explosives, 700 F.3d 185 (2012); the Sixth Circuit in Tyler v.
Hillsdale Cnty. Sheriff’s Dept., 2016 U.S. App. Lexis 16880 (Sept. 15,
2016)(en banc); the Seventh Circuit (abortion clinic case) in Planned
Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (2015); the Ninth
Circuit in United States v. Chovan, 735 F.3d 1127 (2013); the Eleventh
Circuit in GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788
F.3d 1318 (2015); and district court cases too numerous to cite.
The County’s petition utterly fails to address (let alone cite) a
leading case out of the Third Circuit relied upon by the panel. United
States v. Marzzarella, 614 F.3d 85 (2010). Marzzarella addressed the
contours of the Second Amendment as set out in District of Columbia v.
Heller, 554 U.S. 570 (2008) and in footnote 8 noted that:
Commercial regulations on the sale of firearms donot fall outside the scope of the Second Amendmentunder this reading. Heller endorsed "laws imposingconditions and qualifications on the commercialsale of firearms." 128 S. Ct. at 2817. In order touphold the constitutionality of a law imposing acondition on the commercial sale of firearms, acourt necessarily must examine the nature andextent of the imposed condition. If there were
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somehow a categorical exception for theserestrictions, it would follow that there would be noconstitutional defect in prohibiting the commercialsale of firearms. Such a result would be untenableunder Heller.
Marzzarella is favorably cited in the Second Circuit: Kachalsky v.
County of Westchester, 701 F.3d 81 (2012); the Third Circuit: Binderup
v. Attorney General of the United States, 2016 U.S. App. LEXIS 16407
(Sept. 7, 2016)(en banc), again in: United States v. One (1) Palmetto
State Armory PA-15 Machinegun Reciever/Frame, 822 F.3d 136 (2016),
again in Drake v. Filko, 724 F.3d 426 (2013); by the Fourth Circuit in
Kolbe v. Hogan, 813 F.3d 160 (2016), Wollard v. Gallagher, 712 F.3d
865 (2013), United States v. Carter, 669 F.3d 411 (2012), United States
v. Chester, 628 F.3d 673 (2010); the Fifth Circuit in NRA of Am. v.
Bureau of Alcohol, Tobacco, Firearms and Explosives, 700 F.3d 185
(2012); the Sixth Circuit in Tyler v. Hillsdale Cnty. Sheriff’s Dept., 2016
U.S. App. Lexis 16880 (Sept. 15, 2016)(en banc); the Seventh Circuit in
Ezell v. Chicago, 651 F. 3d 684 (2011); the Ninth Circuit in United
States v. Chovan, 735 F.3d 1127 (2013); the Tenth Circuit in United
States v. Reese, 627 F.3d 792 (2010); the Eleventh Circuit in
GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318
(2015); the D.C. Circuit Court of Appeals in Heller v. District of
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Columbia, 670 F.3d 1244 (2011); and again far too many district court
opinions to list here.
Neither Heller or McDonald suggested that the Second Amendment
should evolve into a vain and idle parchment. This Circuit’s binding
precedent compels adjudication of Second Amendment claims in pari
materia with First Amendment claims. U.S. v. Chovan, 735 F.3d 1127
(9th Cir. 2013); Jackson v. City and County of San Francisco, 746 F.3d
953 (9th Cir. 2014). The Second Amendment clearly protects the
transactions necessary for acquiring arms. Thus gun stores are exactly
like book stores, print shops, newspaper offices, churches, reproductive
health clinics, and other constitutionally significant places of business
necessary to secure constitutionally significant services and artifacts.
Alameda’s specious contention that the assurances in Heller
regarding “laws imposing conditions on the commercial sale of arms”
[Id., 626-27] somehow lowers the bar for local governments to red-line
gun stores is contradicted by the holding of Heller, McDonald and the
established precedents in the Circuit Courts.
It is also contra-indicated by the facts of this case4 and both federal
and state law regulating commercial gun sales. California has its own
4 The only County regulation challenged was the 500 foot rule.
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highly complex scheme of statutory rules and regulations addressing
the commercial sales of firearms. The State mandates all firearm
transactions (with very limited exceptions) go through licensed dealers.
See California Penal Code5 §§ 26700 to 26915, inclusive. The State
maintains a roster of firearms it deems suitable for commercial sale.
P.C. §§ 32000 et seq. The State requires firearm safety courses and
tests (administered by licensed gun stores) as a prerequisite to a
commercial sale. P.C. §§ 31610 to 31670. The State requires proof of
safe storage devices before a firearm sale can be completed. P.C. §§
23635 to 23690. The State limits handgun sales to one per month. P.C.
§ 27540. Gun dealers must verify safe handling procedures of firearms
before delivery of guns that are sold. P.C. § 26850. This is cumulative
to background checks and waiting periods. P.C. §§ 26815, 27540.
The 500-foot rule does not regulate commerce at all. It should not be
exempt from judicial scrutiny.
III. THE PANEL PROPERLY REMANDED THE CASE TO THE DISTRICT COURT FOR
DEVELOPMENT OF AN ADEQUATE RECORD.
If a Ninth Circuit en banc panel eventually green-lights the red-
lining of gun stores, it should have a full factual record.
5 Hereafter citations will be in the format P.C. § 12345.
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A. Strict Scrutiny Applies if the 500-Foot Rule is a De Facto Ban on Future Gun Stores.
As the panel noted, bans – even de facto bans – compel a strict
scrutiny analysis. This is consistent with precedent established by the
Supreme Court in Heller and McDonald, by this circuit in U.S. v.
Chovan, 735 F.3d 1127 (9th Cir. 2013), and in the other circuits that
have taken up the issue. Marzzarella, 614 F.3d 85 (3rd Cir. 2010); Ezell
v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), and most recently
Binderup v. Attorney General of the United States, 2016 U.S. App.
LEXIS 16407 (3rd Cir. Sept. 7, 2016)(en banc) and Tyler v. Hillsdale
Cnty. Sheriff’s Dept., 2016 U.S. App. Lexis 16880 (6th Cir. Sept. 15,
2016)(en banc).
The FAC states that the Plaintiff/Appellants undertook an informal
study of how the 500-Foot Rule disqualified gun stores within
unincorporated Alameda County. The result of that informal study
confirmed their hypothesis that the rule makes it difficult, if not
impossible, to find a brick and mortar location for a gun store in that
jurisdiction. The hypothesis was confirmed when the Defendants
endorsed and ratified the homeowner association’s NIMBY6 objections.
6 Not In My Back Yard.
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If, after an adversarial discovery process, the 500-Foot Rule still (4
years later) imposes a de facto ban on gun stores, then the record will
be clear and the issue can be adjudicated under strict scrutiny.
B. If Intermediate Scrutiny Applies, A “Secondary Effects” Analysis Requires An Evidentiary Record.
If the 500-Foot Rule were subject to the lesser, intermediate,
scrutiny via the Chovan-Jackson-Marzzarella-Ezell line of cases
[recently followed by en banc in: Binderup, 2016 U.S. App. LEXIS
16407 (3rd Cir. Sept. 7, 2016)(en banc) and Tyler, 2016 U.S. App. Lexis
16880 (6th Cir. Sept. 15, 2016)(en banc)], then the trial court will still
need to analyze a factual record and conduct a primary and secondary
effects analysis that parallels First Amendment jurisprudence.
The Appellees’ original Answering Brief [DktEntry 39] and their
amici [DktEntry 45] failed to address the issues presented by this case.
Namely: (1) Can zoning laws and other land use regulations impact
fundamental rights? And (2) If they do, what is the appropriate form of
judicial scrutiny when they are challenged? And (3) What is the quality
and quantity of evidence necessary to resolve the claims and defenses?
Alameda’s petition for rehearing and/or rehearing en banc (and their
amici) repeat the mistake.
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The FAC alleges that the 500-Foot Rule either acts as de facto ban
on all new gun stores in unincorporated Alameda County or that it
burdens the Second Amendment without justification. [ER 50, ¶ 60, 61
of the FAC]. This claim, if supported by evidence, is fatal to the
County's ordinance because it is an impermissible burden on access to
products and services protected by the Second Amendment.
The County's bare assertion that fundamental rights are not
impacted because current non-conforming gun stores are exempt from
the ordinance (postulating, not proving, that current market conditions
are meeting demand) is a weak enough argument. In the context of
evaluating claims involving fundamental rights (like reproductive
rights) it must be supported by evidence in the District Court.
1. The 500-Foot Rule Burdens the Second Amendment.
Under the two-step Second Amendment framework: (1) the trial
court asks whether the challenged law burdens conduct protected by
the amendment, and (2) if so, the court determines whether the law
meets the appropriate level of scrutiny. See Chovan, 735 F.3d at
1136-38; see also National Rifle Ass'n of Am. v. Bureau of Alochol,
Tobacco, Firearms and Explosives, 700 F.3d 185, 194-95 (5th Cir. 2012)
("N.R.A."); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010).
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The first step is a historical inquiry into the scope of the right to keep
and bear arms at the time of ratification. See: Chovan, 735 F.3d at
1137 Chester, 628 F.3d at 680; N.R.A., 700 F.3d at 194; and Ezell v. City
of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011). If a law burdens
conduct outside of the amendment's scope, the analysis ends, there is
no violation. See N.R.A., 700 F.3d at 195; Ezell, 651 F.3d at 703.
The District Court may have committed excusable error because
Chovan was not the law of the Circuit when the FAC was dismissed.
But the intervening change in the law absolutely compels a completely
different analysis, and in all likelihood, a different result. See generally:
Agostini v. Felton, 521 U.S. 203 (1997); Kirkbride v. Continental Cas.
Co., 933 F.2d 729, 732 (9th Cir. 1991); and In re Rainbow Magazine,
Inc., 77 F.3d 278, 281-282 (9th Cir. 1996).
2. The 500-Foot Rule Fails the Second Partof the Chovan Test.
As to the second step, rational basis review is forbidden. Heller, 554
U.S. at 628 n.27; Chovan, 735 F.3d at 1137. If a law burdens a right
within the scope of the Second Amendment, either intermediate or
strict scrutiny will be applied. See Chovan, 735 F.3d at 1138; N.R.A.,
700 F.3d at 195; Chester, 628 F.3d at 682. If "intermediate scrutiny"
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applies that means: (1) the government's stated objective must be
significant, substantial, or important, and (2) there is a reasonable fit
between the challenged regulation and the government's asserted
objective. Chovan, 735 F.3d at 1139-41; N.R.A., 700 F.3d at 195;
Chester, 628 F.3d at 683.
"Reasonable fit" means the regulation must not be substantially
broader than necessary to achieve the government's interest. See Reed
v. Town of Gilbert, 707 F.3d 1057, 1074 n16 (9th Cir. 2013); Fantasyland
Video, Inc. v. County of San Diego, 505 F.3d 996, 1004 (9th Cir. 2007);
United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010).
The County has a split personality when it comes to analyzing this
case. Its West County Board of Zoning Adjustment cleared the opening
of Plaintiffs’ gun store in its findings. [ER 178-183]. It did so after an
exhaustive investigation by County staff, and the relevant departments
and agencies regulating land use. That Board’s reasoned approach took
into account the fact that the only parcels disqualifying the proposed
site of the gun store were residential properties just barely (mere feet)
within the “500-Foot Rule.”
Contrast this with the Board of Supervisor’s summary reversal of
those findings, with no new facts, except the appeals that were lodged
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by the San Lorenzo Village Homes Assoc. [ER 48-49, FAC ¶¶ 50-56].
The appeals lodged by the homeowners’ association cited no studies, no
evidence, no facts to suggest that Appellants’ proposed gun store posed
a public safety risk. The association’s objection was to people engaging
in commerce relating to firearms and ammunition at a local business.
This land-use version of a heckler’s veto is not sanctioned in this
Circuit. See Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000)
Furthermore, Young is part of the line of cases holding that challenges
to zoning restrictions impacting fundamental rights are fact specific
and therefore driven by evidence when assessing primary or secondary
effects of particular land uses. Id., at 818. See also: Young v. American
Mini Theatres, Inc., 427 U.S. 50 (1976); Schad v. Mt. Ephraim, 452 U.S.
61 (1981); and City of L.A. v. Alameda Books, 535 U.S. 425 (2002); City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Barnes v. Glen
Theatre, Inc., 501 U.S. 560 (1991).
Interpreting City of Los Angeles v. Alameda Books, Inc., (2002) 535
U.S. 425, the Seventh Circuit held
[...] [B]ecause books (even of the "adult" variety)have a constitutional status different from granolaand wine, and laws requiring the closure ofbookstores at night and on Sunday are likely tocurtail sales, the public benefits of the restrictions
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must be established by evidence, and not justasserted. [...] [T]here must be evidence;lawyers' talk is insufficient. (Emphasis added.)
Annex Books v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009)
This is the crux of the panel’s order remanding the case to the
District Court. It is simply not rational for the County to rely on the
residential qualities of a structure to prohibit a gun store from opening
within 500 feet. At a minimum, the core Second Amendment right
protected, is possession of firearms in a residence. Given the number of
firearms already owned in this country, if the mere presence of a
firearm in a residence was per se dangerous, then houses closer to each
other than 500 feet should be war zones. They are not.
The County’s “500-Foot Rule” has no basis in fact or common sense.
Firearms shoot further than 500 feet, even assuming the ordinance was
crafted to mitigate negligent discharges. The Fire Department signed
off on storage of combustible (gun powder) material and other fire
hazards. [ER 153, 162, 164]. The Sheriff mandated security measures.
[ER 167]. Even parking availability was addressed. [ER 125].
So why was an otherwise lawful business barred from opening in
Alameda County? That allegation is in the Complaint. [ER 32, FAC ¶¶
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7]. The Defendants find the products and services offered by that
business repugnant. But this proposed business is not selling payroll
advances, adult literature, massages, lottery tickets, liquor or
cigarettes. They seek to engage in commerce essential for the exercise
of a fundamental right. They seek to provide the arms that their
customers want to “keep and bear” to exercise their own constitutional
right of self-defense. See generally Craig v. Boren, 429 U.S. 190 (1976).
Cf., Isacson v. Horne, 716 F.3d 1213, 1221 (9th Cir. 2013) for similar
rationale as applied to reproductive rights.
C. An Analysis Under theSecond Amendment Should Conform to the Same Evidentiary
Requirements as Other Fundamental Rights.
There is even fresh (non-Second Amendment) Supreme Court
precedent to guide the District Court on remand. Whole Woman’s
Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292 (June 27, 2016). This
case looked at similar issues presented by Alameda’s 500-Foot land use
rule, albeit in the context of a facility regulatory scheme that imposes
an undue burden on a different fundamental right. The procedural
history of Whole Woman’s Health even mirrors this case. Multiple
proceedings in the District Court were necessary to fully develop the
factual record. Id., at 2300 et seq.
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The factual record developed in Whole Woman’s Health included at
least fifteen (15) distinct data points as diverse as:
1. The number of persons exercising the right within a givengeographical area.
2. The frequency and rate of the right being exercised.
3. Fluctuations in the number of licensed facilities.
4. Whether the challenged regulation diminished or reducedthe number of licensed facilities.
5. Whether the facilities were clustered around populationcenters.
6. Whether diminution in the number of facilities would impactthe quality of services.
7. Whether the number of providers in a given area can meetdemand for services.
8. The distances people must drive to secure services toexercise their rights.
9. Whether the regulations erect a particularly high barrier forthe poor, rural or disadvantaged.
10. Whether providers are already addressing public safety.
11. Whether service providers are more or less safe than otherproviders or businesses providing similar services.
12. Whether the regulation in question will actually result inlower risks.
13. Whether the regulation will improve outcomes whenexercising the fundamental right in question.
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14. Whether “grand-fathered” facilities provide greater risks orbenefits than a facility required to comply.
15. The cost of compliance with the regulation.
Id., 2301 – 2304. This kind, type and quality of data (evidence) was
necessary to analyze the burden Texas was imposing on reproductive
rights. That same analysis of regulations imposed on medical facilities
and professionals is equally applicable to any licensed gun dealer
assisting customers exercise their Second Amendment rights. Cf.,
Isacson v. Horne, 716 F.3d 1213, 1221 (9th Cir. 2013).
While the First Amendment is the established framework for
adjudication of the Second Amendment, some courts find parallel lines
of reasoning with the “undue burden” test as applied to reproductive
rights. Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 9187
(7th Cir. 2015). A road map for how the District Court should conduct a
factual inquiry on remand can be cribbed from an abortion case out of
the Middle District of Alabama. Planned Parenthood Southwest, Inc. v.
Strange, 33 F. Supp. 3d 1330 (Ala. M. Dist. Ct. 2013) [cited favorably in
Whole Woman’s Heath, 136 S. Ct. at 2312].
7 Citing Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) forthe proposition that regulations forcing someone to travel to exercise afundamental right is a burden on the right.
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The FAC fairly alleges that the Alameda County “500 Foot Rule” is
designed and intended, and will have the eventual effect through
attrition of existing stores, of banning gun stores in Alameda County.
Therefore, the same judicial skepticism toward regulations that burden
reproductive rights should apply to Alameda’s 500-Foot Rule.
Appellants should enjoy at least the same judicial scrutiny for
opening a gun store in Alameda County that they would receive if they
were seeking to open/maintain an abortion clinic in Alabama.
IV. CONCLUSION
The matter was correctly decided by the 3-judge panel. Reversal and
remand is both prudent and justified by Supreme Court and Circuit
precedent. The petition for rehearing and/or rehearing en banc should
be denied.
Respectfully Submitted on September 20, 2016.
/s/ Donald Kilmer
Donald E. J. Kilmer, Jr.CA State Bar No.: 1799861645 Willow Street, Suite 150San Jose, California 95125Voice: 408/264-8489Fax: 408/[email protected]
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NOTICE OF RELATED CASES
Plaintiff/Appellants are not aware of any pending cases in
Northern District of California or the Ninth Circuit that could be
related to this action.
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of this Circuit
because it consists of 4175 words and because this brief has been
prepared in proportionally spaced typeface using WordPerfect Version
X8 in Century Schoolbook 14 point font. Dated: September 20, 2016.
/s/ Donald Kilmer
Donald Kilmer, Attorney for Appellants
CERTIFICATE OF SERVICE
On September 20, 2016, I served the foregoing APPELLANTS'
RESPONSE OPPOSING REHEARING AND/OR HEARING EN BANC
by electronically filing it with the Court's ECF/CM system, which
generated a Notice of Filing and effects service upon counsel for all
parties in the case. I declare under penalty of perjury that the foregoing
is true and correct. Executed September 20, 2016.
/s/ Donald Kilmer
Attorney for Appellants
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