Another Victory in CA

[Subdeacon Joe]

 

(San Francisco) – Three Second Amendment civil rights groups are hailing a new Second Amendment decision issued by the Ninth Circuit Court of Appeals today. The opinion, issued this morning in the case of Teixeira, et al. v. County of Alameda, held that the Second Amendment right of gun purchasers extends to protect gun retailers from being shut out of an area.

Under the challenged Alameda County ordinance, a new gun store must be located at least 500 feet away from any residentially zoned district, elementary, middle or high school, pre-school or day care center, another firearms sales business, or places where liquor is sold or served.

But, according to a scientific study conducted by the plaintiffs that included a Geographic Information Systems (GIS) study of the entirety of Alameda County, there are no parcels within the county that meet the ordinance’s requirements.

That, plaintiffs argued, effectively constitutes a ban on the opening of gun stores and an infringement of Second Amendment rights.

“We’re very happy to see the Court take a very principled and reasoned approach to protecting the fundamental, individual right to keep and bear arms,” said Brandon Combs, executive director of The Calguns Foundation.

“Given California’s legal requirements to use licensed dealers for firearm transfers and background checks, it’s important that retailers are able to open their doors—and keep them open.”

Today’s decision was clear that the Second Amendment doesn’t protect second-class rights.

Writing for the majority, Judge O’Scannlain held that the “right of law-abiding citizens to keep and to bear arms is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees…”

“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….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.”

In response to the decision, CAL-FFL President Michael Baryla noted that “the Second Amendment can only be exercised if law-abiding people are allowed access to firearms and ammunition. This win is one more reminder that access to firearms is, in fact, an integral part of the core right.”

Concluded Combs, “Today, the Court appropriately reminded the County that civil rights can’t be outlawed through piles of regulation. We look forward to securing Second Amendment rights through this case and many others to come.”

Plaintiffs on the case include three individuals who seek to open a new gun store in Alameda County. They were joined by gun rights groups The Calguns Foundation, California Association of Federal Firearms Licensees, and the Second Amendment Foundation.

California Association of Federal Firearms Licensees (www.calffl.org) (CAL-FFL) is a 501©6 nonprofit organization serving its members and the public through direct and grassroots issue advocacy, regulatory input, legal efforts, and education. CAL-FFL’s membership includes firearm dealers, training professionals, shooting ranges, licensed collectors, others who participate in the firearms ecosystem.

The decision HERE

 

 

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 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 correctlydismissed, 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.’”

 

 

 

 

 

The decision HERE