Ninth Circuit Gun Case Could Have Major Impact

SAN FRANCISCO (CN) — The Ninth Circuit on Wednesday gave no indication how it would rule on whether an Alameda County zoning ordinance that bars gun stores from within 500 feet of schools, liquor stores and homes violates the Second Amendment.

The hearing before a full 11-judge panel came after Alameda County appealed the Ninth Circuit’s May 2016 ruling that the ordinance is unconstitutional.

If the Ninth Circuit prohibits the plaintiffs from pursuing their Second Amendment claims in Federal Court, it could affect gun rights nationwide.

“This court exists to protect unpopular rights,” plaintiffs’ attorney Donald Kilmer told the panel on Wednesday. “Gun rights are unpopular in San Francisco and Oakland, but this court exists to protect that right.”

Lead plaintiff John Teixeira and his business partners in 2010 accused Alameda County of violating their Second Amendment and equal protection rights after its Board of Supervisors revoked their permit to open a gun shop called Valley Guns and Ammo in San Leandro.

The county said the store’s proposed location, 446 feet from a house, violated a county zoning ordinance.

Teixeria claimed the ordinance functions as a ban on new gun stores in unincorporated Alameda County, though there are four gun stores in the county’s unincorporated areas and 10 in the county altogether.

U.S. District Judge William Orrick dismissed with prejudice in 2013, finding the ordinance did not impinge on their Second Amendment rights because it merely regulates the distance that gun stores must be from certain types of buildings.

On Wednesday, Kilmer told the panel that the Second Amendment’s right to keep and bear arms includes the right to sell arms, an argument his clients first made in a March 2014 brief to the court.

At least three judges signaled support of the plaintiffs’ Second Amendment argument, but indicated they would stop short of declaring that the Constitution gives them the right to sell guns.

Instead, the judges focused on whether the zoning ordinance prevents gun owners from obtaining ancillary services such as gun safety training, which is required under state law in some circumstances. If it does, the judges suggested, they could uphold the decision to allow the plaintiffs to pursue their Second Amendment claims to operate a gun shop at their proposed location, without addressing whether those rights include selling guns.

“Let’s suppose we don’t agree with your premise and the question is, can we decide that in order to preserve the Second Amendment right to keep and bear arms, that the law must afford or make accommodation for ancillary services, including gunsmithing, gun safety training, in order to comply not only with state law but also to make sure that the firearms are operable, which the Supreme Court has declared may be kept for defense of hearth and home?” Ninth Circuit Judge Richard Tallman asked.

Three other judges expressed dissatisfaction with the ancillary services approach. Ninth Circuit Judge John Owens essentially cut gun shops out of the equation for ancillary services, noting that gun safety training is also offered in private homes, not just gun shops.

“If you can train people how to use guns at a residence in Alameda County, and this ordinance doesn’t prevent gun training in residences, then if I’m a third person in Alameda County and I want to receive gun training, I don’t need to go to a gun store to do it,” he said.

Brian Goldman, an attorney with Orrick, Herrington & Sutcliffe in San Francisco, confirmed that the ordinance does not cover ancillary services.

“This ordinance is no obstacle, and they could tomorrow open a store providing the types of services that you’re describing,” he said.

Echoing the county’s own Ninth Circuit brief, Goldman said the ordinance would violate the Second Amendment only if people were unable to buy guns in Alameda County because of it, which he said was unlikely given the number of gun stores in the county.

The panel consisted of Chief Judge Sidney Thomas and Circuit Judges Carlos Bea, Marsha Berzon, Jay Bybee, Ronald Gould, M. Margaret McKeown, John Owens, Richard Paez, Stephen Reinhardt, Richard Tallman and Paul Watford.

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