Facts: Alameda County, Calif., is located on the eastern side of San Francisco Bay. The county’s 821 square miles include Oakland and Berkeley. The county presently has up to 10 gun stores. (The exact number is factually disputed.) In 2010, several entrepreneurs attempted to open a new store, “Valley Guns & Ammo,” in the town of San Leandro, south of Oakland. They believed that there was an unmet need for a store which provides personalized service; this includes gun smithing, hunter safety training and the firearms safety training which is a prerequisite for gun purchases in the state. The owners complied with the many federal and California regulations pertaining to firearms stores. The West County Board of Zoning Adjustment found that there was a “public need” for the store, that the store complied with the general zoning plan for the area and that the store would have no adverse impact on residents.

However, Alameda County has a general rule against the location of any gun stores within 500 feet of a residentially zoned area, a K-12 school, a pre-school or day care center, another firearms sales business, or any establishment where alcohol is sold or served.

AD

AD

The store was 446 feet from a residential area, as the crow flies. (By foot, bicycle, or automobile, the travel distance was more than 500 feet, partly because the store’s location and the residential area are separated by an interstate highway.) The Zoning Board voted to grant a variance. Then, the San Lorenzo Village Homes Association filed an appeal to the Alameda County Board of Supervisors, because some of the association’s members “are opposed to guns and their ready availability and therefore believe that gun shops should not be located” in the community. The supervisors, perhaps sharing the association’s naked prejudice against the exercise of constitutional rights, sustained the appeal.

Litigation ensued. The district court granted a motion to dismiss. The 9th Circuit reversed, in Teixeira v. County of Alameda. For purposes of ruling on the motion to dismiss, the 9th Circuit assumed that all facts alleged in the complaint could be proven at trial. The crucial fact alleged by plaintiffs was that the 500 foot rule had the effect of prohibiting any new gun stores in the unincorporated land of the county. (Population density in Alameda County is more than 2,000 persons per square mile, according to the 2010 census. Population density in the U.S. as a whole is 85 persons per square mile. Alameda County’s population density is greater than Taiwan (1,655) but less than Bangladesh (2,477).)

Equal Protection: The plaintiffs had brought claims under 14th Amendment due process, 14th Amendment equal protection and the Second Amendment. By the time the case got to the 9th Circuit, the due process claim had been dropped. The 9th Circuit affirmed the dismissal of the equal protection claim. The panel explained that when there is an enumerated textual right (here, the Second Amendment) constitutional challenges are best resolved under the specific doctrines for that right, rather than under the general principles of equal protection.

AD

AD

While equal protection usually involves a “suspect classification” (e.g., a classification by race or sex), plaintiffs can also bring a “class of one” claim. Such a claim alleges that the plaintiff has been treated differently from other persons who are in all relevant respects identical to the plaintiff. Valley Gun could not make this showing; there was no evidence that Alameda County had given permits to other gun stores which needed a variance from the 500-foot rule. (The other gun stores in the county were apparently opened before the 500-foot rule was created.)

Third-party rights: The panel followed Supreme Court precedent by ruling that gun stores may assert the third-party constitutional rights of their customers. The Teixeira court cited the foundational modern case for this rule, Craig v. Boren (U.S. 1976) (liquor stores may assert equal protection rights of their customers, against state law which set different legal ages for alcohol purchases, based on the sex of the customer). The doctrine dates back at least to Pierce v. Society of Sisters (U.S. 1925) (operators of religious schools may assert the 14th Amendment rights of their customers to guide their children’s education; ban on all non-government K-12 schools held invalid).

Two-step Test: Like most other circuits, the 9th Circuit analyzes Second Amendment cases under “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.” So the first question is to consider “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.'”

AD

AD

History: Like other circuits, the 9th Circuit looked first at the periods of the ratification of the Second Amendment (1791) and the 14th Amendment (1868) (making Second Amendment enforceable against state and local governments). The historical analysis showed that commerce in firearms was universally understood to be part of the right to arms. The American Revolution had been caused in part by the British government’s embargo on the shipment of firearms and gunpowder to the American colonies. Had the British suppressed the revolution, their plan was to prohibit the manufacture or import of arms without a special license. But, wrote the 9th Circuit, the British “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.” Among the sources cited by the 9th Circuit was my Harvard Law Review Forum article “Does the Second Amendment Protect Firearms Commerce?”

In the early republic, the liberty of firearms commerce was recognized. As Thomas Jefferson wrote in 1793, “Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” Likewise, at the time of the 14th Amendment, it was understood that the “right to keep arms, necessarily involves the right to purchase them.” Andrews v. State, 50 Tenn. 165, 178 (1871). (Andrews, which struck down a ban on handgun carrying, was cited in Heller and McDonald. It has always been among the most influential Second Amendment cases. For more on Andrews, see my article “The First Century of Right to Arms Litigation,” forthcoming in the Georgetown Journal of Law & Public Policy.)

Logic: The 9th Circuit agreed that “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.” This is true for the use of contraceptives. Carey v. Population Servs., Int’l (U.S. 1977) (“Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives”). And for newspaper ink. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue (U.S. 1983) (special tax on newspaper ink violates First Amendment). The principle applies just as much to the Second Amendment. Ezell v. City of Chicago (7th Cir. 2011) (right to arms would be meaningless without right to “maintain proficiency” by “training and practice” at a shooting range); Illinois Ass’n of Firearms Retailers v. City of Chicago (N.D. Ill. 2014) (right to arms includes “the right to acquire a firearm” so city ban on all gun stores is void); Mance v. Holder (N.D. Tex. 2015) (“operating a business that provides Second Amendment services is generally protected by the Second Amendment); Radich v. Guerrero (D. Northern Mariana Islands, Mar. 28, 2016) (Second Amendment protects “an eligible individual’s right to purchase a handgun, as well as the complementary right to sell handguns.”). Of the three cited district court decisions, two were not appealed. Mance is currently pending before the 5th Circuit.

AD

AD

Even if history and logic were inconclusive, the 9th Circuit had already held that the Second Amendment protects the sale of ammunition. Jackson v. City & County of San Francisco (9th Cir. 2014). So it would be contrary to circuit precedent to assert that the Second Amendment does not protect the sale of firearms.

For the same reasons that firearms sales are part of the Second Amendment, so is the safety training which Valley Guns wishes to provide.

In the 9th Circuit, as in other circuits, the government has the burden of proving that a firearms law is outside the scope of the Second Amendment as traditionally understood. The government did not carry this burden.

AD

Heller: The Hillary Clinton campaign has stated that she believes that “Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe.” This is plainly incorrect. Heller and McDonald expressly stated that some gun controls are permissible. Relevant to Teixeira was Heller‘s language that “nothing in our opinion should be taken to cast doubt on … longstanding laws imposing conditions and qualifications on the commercial sale of arms.” Heller called such controls “presumptively lawful regulatory measures.”

AD

The Circuit Courts are split on whether the language is dicta, with the 9th Circuit being on the non-dicta side. U.S. v. Vongxay (9th Cir. 2010). But the split hardly matters, since all circuits consider recent Supreme Court dicta to be nearly as binding as a Supreme Court holding.

Does the Heller language mean that any law restricting commercial sales is constitutional? That would be absurd, wrote the 9th Circuit. “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.'” (Quoting the most-influential post-Heller Circuit Court case, the 3rd Circuit’s U.S. v. Marzzarella (3d Cir. 2010)). The 9th Circuit continued: “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.'” (The court also quoted my Harvard article, which makes a similar point.)

AD

So not every law against firearms commerce is automatically presumed valid. The question to ask is whether Alameda County’s zoning law is of a type that is “longstanding.” Being several decades old is not old enough. (The D.C. handgun ban in Heller was 33 years old by the time it got to the Supreme Court.) Like all Circuit Courts, the 9th Circuit recognized that the government bears the burden of proof on “longstanding.” The county failed to meet its burden of proof. There was no historical evidence of restrictions on the location of gun sales in 1791 or 1868. Indeed, general zoning laws did not appear until the early 20th century. In a previous case, the 9th Circuit had held that the federal ban on gun possession by domestic violence misdemeanants was not longstanding. The “first federal firearm restrictions regarding violent offenders were not passed until 1938.” U.S. v. Chovan (9th Cir. 2013).

AD

To qualify as “presumptively lawful” under Heller, a prohibition must be “longstanding and closely match a listed prohibition” or “there must be ‘persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.'” (Quoting the 9th Circuit’s Jackson.)

Heightened scrutiny: That a gun control is not “presumptively lawful” under the two-step test does not mean that it is automatically invalid. Circuit Courts which have evaluated the domestic violence misdemeanants have typically held that the ban is not longstanding, have then applied intermediate scrutiny and have ruled that the ban passes intermediate scrutiny. So what level of scrutiny to apply for the gun store ban?

AD

The verbal formulations employed by the circuits vary, but they all make the same basic point that the closer a law comes to the Second Amendment core, the higher the government’s burden of proof. For example, since domestic violence convicts are not “law-abiding citizens,” the government had to make a “strong showing,” whereas a law which affected law-abiding citizens would require “a stronger showing.” U.S. v. Skoien (7th Cir. 2010) (en banc). In the 9th Circuit, “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.” (internal quotations omitted) (citing Jackson and Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense,” 56 UCLA L. Rev. 1443 (2009)).

AD

“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,’ because it would inhibit his ability to acquire weapons. We are therefore satisfied that such a regulation comes close to the core of the Second Amendment right.” (internal cites omitted). Because “state and federal laws require that gun retailers perform background checks to confirm that customers are not criminals,” the county’s gun store ban implicates the rights of law-abiding citizens.

Intermediate scrutiny would probably be appropriate for a normal zoning law, which allowed gun stores in only typical retail locations. But a zoning law which “functioned as a total ban on all new gun retailers” would require a stronger showing. The 9th Circuit adopted 7th Circuit’s Ezell test, which had been created for Chicago’s ban on all gun ranges: “not quite ‘strict scrutiny.'” That is the standard for the district court to apply on remand, assuming that the plaintiffs can prove that the 500-foot rule does amount to a prohibition.

AD

The district court had wrongly held that the gun store ban did not implicate the Second Amendment. In the alternative, the district court “went through the motions” of applying heightened scrutiny. As the panel had pointed out during oral argument, that was improper, because there had not yet been any evidence presented. The government cannot carry its burden under heightened scrutiny merely by asserting what it might be able to prove later.

AD

Moreover, the district court had misapplied Supreme Court precedent. One of the “presumptively lawful” gun controls mentioned in Heller is “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The district court had said that all residential areas are “sensitive places.” This contradicts Heller, which held that D.C.’s ban on handguns in the home, and its ban on any operable long gun in the home, violated the Second Amendment.

Of course the prevention of crime is an important government interest. But “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.”

As a fallback, the county had drawn an analogy to the First Amendment’s “secondary effects” doctrine. In City of Los Angeles v. Alameda Books (2002), the Supreme Court held that a city may impose especially restrictive zoning laws on adult bookstores because of their secondary effects– namely that such stores tend to attract prostitution and other harmful activity. As long as the city was not aiming to suppress the bookstore’s speech, then zoning laws could regulate the stores’ locations, to reduce the harms of the secondary effects. But the district court failed to require “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.” In fact, the record seemed to indicate that the county was motivated by hostility towards lawful gun ownership, which under Heller and McDonald is an impermissible purpose.

The majority opinion was written by Judge Diarmuid F. O’Scannlain and joined by Judge Carlos T. Bea. A short dissent by Judge Barry G. Silverman argued that the prohibition of all new gun stores was not a Second Amendment problem. “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.” Although Valley Gun promised to offer services which other stores do not, “good customer service . . . is not a constitutional right.”

The majority answered that such a brusque dismissal would not be accepted for an “ordinance that targeted bookstores.” (Indeed, given that virtually every book which is commercially available can be obtained online, a complete ban on bookstores in a county might have hardly any effect on the ability of customers to obtain books. That alternative book or firearms vendors are available does not justify prohibitions on new retail stores.)

I would also add that the firearms safety training services to be offered by Valley Guns are constitutional rights (per Ezell), and especially so because California mandates such training for exercising the right to acquire a firearm or the right to hunt. Training aside, good customer service does have constitutional dimension for the Second Amendment. A good store can help a customer select a firearm that is appropriate for the user’s current knowledge (e.g., revolvers are simpler to use and maintain than are semi-automatic handguns) and abilities (e.g., some firearms and calibers are better choices for persons with small stature who would have greater difficulty with high-recoil firearms).

The 9th Circuit majority quoted McDonald: the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Thus, wrote the Teixeira majority, “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.” While the “government enjoys substantial leeway under the Second Amendment to regulate the commercial sale of firearms … [t]he Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.”