Metropolitan News-Enterprise


Tuesday, May 17, 2016


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Ninth Circuit Revives Challenge to Zoning Law Aimed at Alameda County Gun Stores


From Staff and Wire Service Reports


The Second Amendment may require heightened scrutiny of laws that restrict the ability to buy guns, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reinstated a suit by three businessmen who claimed their equal protection rights and the right to bear arms were abridged by Alameda County’s enforcement of an ordinance barring gun stores from locating within 500 feet of a residential zone.

“My clients and I are gratified by the win and look forward to resolving the matter favorably in the trial court so that they can open their establishment and service their customers and clients in Alameda County,” Donald Kilmer, who represented the plaintiffs, told Courthouse News Service in an email.

In 2010, John Teixeira, Steve Nobriga and Gary Gamaz filed a federal challenge to the Alameda County Board of Supervisors’ decision revoking their permit to open a shop called Valley Guns and Ammo in the Bay Area city of San Leandro.

The entrepreneurs claim the board changed its zoning laws to block their enterprise.

U.S. District Judge William Orrick of the Northern District of California dismissed the plaintiffs’ second amended complaint with prejudice in September 2013, but the appellate panel partially reversed that decision and found that the plaintiffs had standing to pursue their Second Amendment claims. It said the equal protection claim was properly dismissed because the plaintiffs did not show that a similarly situated business had been given more favorable treatment.

Judge Diarmuid O’Scannlain wrote:

“Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms. 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.”

He added that “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.”

Orrick, he said, 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. He also said that if the ordinance, as applied, completely bans new guns stores, rather than merely regulating their location, something more exacting than intermediate scrutiny would be warranted.

Judge Carlos Bea concurred in the opinion, while Judge Barry Silverman dissented. The district judge was correct in rejecting “a mundane zoning dispute dressed up as a Second Amendment challenge,” Silverman argued.

“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,” the plaintiffs did not assert how the zoning ordinance “impairs any actual person’s individual right to bear arms, the dissenting jurist wrote.

“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,” Silverman added, pointing out that the county contains “at least 10” lawful gun stores.

O’Scannlain contended that “we doubt the dissent would afford challenges invoking other fundamental rights such cursory review.” He said that a similar hypothetical zoning ordinance applying not to gun stores but to bookstores, “would give us great pause” even if Alameda County residents “could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.”

He added:

“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.”

An Alameda County representative said in an email that the county will continue to defend the zoning ordinance, either in the trial or appellate court. 

The case is Teixeira v. County of Alameda, 13-17132.


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