Gun Store Can’t Sue to Open in ‘Sensitive’ Area

     OAKLAND, Calif. (CN) – Three businessmen barred from opening a gun store near a residential area of California failed to present a constitutional case, a federal judge ruled.
     An Alameda County land-use ordinance prohibits gun stores within 500 feet of a residential area, schools and certain businesses.
     John Teixeira, Steve Nobriga and Gary Gamaz wanted to open a gun shop called Valley Guns and Ammo in San Lorenzo, a residential suburb of approximately 85,000 between Oakland and Hayward.
     They claimed that the chosen location is within the law. Though the West County Board of Zoning Adjustments said they were not in compliance, it issued them a conditional use permit anyway.
     The San Leandro Village Home Owners Association appealed, and the Alameda County Board of Supervisors overturned the Zoning Board’s decision in 2012.
     Backed by gun-lobbying groups, Teixeira, Nobriga and Gamaz filed suit in 2010, claiming that Alameda County changed its zoning laws to stymie them.
     They alleged violations of due process and equal protection rights and the Second Amendment, but U.S. District Judge Susan Illston dismissed the case earlier this year with leave to amend.
     The February ruling cited District of Columbia v. Heller, a 2008 ruling in which the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for “traditionally lawful” purposes, but has limitations when it comes to the sale of firearms near residential areas, schools or liquor stores.
     “The zoning ordinance places limited ‘qualifications on the commercial sale of arms’ by restricting their sale within 500 feet of ‘sensitive places such as schools and residences,” Illston wrote.
     “The ordinance is precisely the kind of presumptively valid restriction envisioned by Heller – it is a restriction on gun sales and purchases in or near sensitive places. The ordinance is not a total ban on gun sales or purchases in Alameda County and therefore does not implicate the core right to possess a gun in the home for self-defense articulated in Heller.”
     U.S. District Judge William Orrick agreed with Illston and dismissed the second amended complaint with prejudice last week.
     “When the Supreme Court decided in District of Columbia v. Heller, that the Second Amendment confers an individual right to possess handguns in the home for self-protection – a right which the Supreme Court later held, in McDonald v. City of Chicago, was incorporated against states and municipalities through the Fourteenth Amendment – it took pains to assure that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the 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,” he wrote.
     Specifically, the plaintiffs provided no basis to their claims that they were not given equal protection, according to the ruling.
     “The plaintiffs fail to adequately allege that the defendants treated the individual plaintiffs differently from any other similarly situated party, or that the defendants did so intentionally and without rational basis,” Orrick wrote.
     As to the Second Amendment claim, Orrick said he “is unaware of any authority stating or implying that the Second Amendment contemplates a right to ‘convenient access to a neighborhood gun store.'”
     “The Second Amendment’s core right of the individual to possess guns is not impinged by the [county] ordinance as applied to the plaintiffs since it merely regulates the distance that all gun stores must be from certain sensitive establishments,” he added.
     Orrick dismissed the plaintiffs’ claims with prejudice.

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