Full Ninth Circuit to Hear Gun Store Zoning Fight

SAN FRANCISCO (CN) – The full Ninth Circuit agreed to rehear a challenge of Alameda County’s effort to enforce a zoning restriction that prohibits gun stores within 500 feet of residential areas.

“Whether regulations of gun dealers are subject to heightened Second Amendment scrutiny is an important and recurring question that merits en banc consideration,” the county wrote in its petition for rehearing, filed in July 2016.

The circuit issued the en banc order on Tuesday, after its panel ruled in May that a federal judge erroneously dismissed the Second Amendment claims of three prospective gun store owners, John Teixeira, Steve Nobriga and Gary Gamaz, who sought to open a gun store in the Bay Area city of San Lorenzo. Oral argument will take place the week of March 20, 2017, in San Francisco, with the exact date and time still to be determined.

In order to qualify for a permit to operate a gun store, the Alameda County ordinance requires that “the subject premises is not within 500 feet of any of the following: residentially zoned district; elementary, middle or high school; preschool or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.”

Even though the West County Board of Zoning Adjustments granted the businessmen a variance, the Alameda County Board of Supervisors voted in February 2012 to sustain an appeal from the San Lorenzo Village Homes Association and revoked the conditional permit. In response, the businessmen argued that the ordinance violates their Second Amendment and equal protection rights, claims the federal judge dismissed.

“Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms,” Circuit Judge Diarmuid O’Scannlain wrote in the reversal. “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.”

The county took issue with this thinking in its petition.

“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,” the county wrote. “The majority believed, notwithstanding District of Columbia v. Heller and McDonald v. City of Chicago, that the zoning ordinance must satisfy heightened Second Amendment scrutiny even without any allegation that it meaningfully impedes anyone from possessing a gun.” [Emphasis in the original.]

The county also agreed with Circuit Judge Barry Silverman’s dissent, which called the case “a mundane zoning dispute dressed up as a Second Amendment challenge.”

It argued that subjecting gun store regulations to Second Amendment scrutiny could have far-reaching consequences.

“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,” it wrote. “Litigation over such regulations will rarely survive motions to dismiss and will thus proceed into discovery, creating expensive barriers for localities that seek to ensure the safety of commerce in guns consistent with local needs.”

Donald Kilmer represented the businessmen before the circuit panel. He said he felt it was unusual to order an en banc rehearing given the panel’s decision remanded for fact-gathering.

“Evidently, someone thinks they don’t need litigated facts to resolve [the] case,” he said. “I find that a little puzzling.”

County representatives could did not respond to requests for comment Wednesday.