Wednesday, March 29, 2023 | Back issues
Courthouse News Service Courthouse News Service

Ninth Circuit Revives|Gun Store’s Zoning Fight

SAN FRANCISCO (CN) — Holding that the Second Amendment applies to the right to buy arms as well as keep and bear them, the Ninth Circuit ruled Monday that three businessmen prohibited from opening a gun store near a residential area may pursue certain constitutional claims.

"My clients and I are gratified by the win and look forward to resolving the matter favorably in the trial court so that they can open their establishment and service their customers and clients in Alameda County," Donald Kilmer, who represented the plaintiffs, said in an email.

In 2010, John Teixeira, Steve Nobriga and Gary Gamaz filed a federal challenge to the Alameda County Board of Supervisors' decision revoking their permit to open a shop called Valley Guns and Ammo in the Bay Area city of San Leandro.

The board held that the store's proposed location violated a county ordinance prohibiting gun stores within 500 feet of a residential area.

The entrepreneurs claim the board changed its zoning laws to block their enterprise, in violation of their equal protection and Second Amendment rights.

U.S. District Judge William Orrick dismissed the plaintiffs' second amended complaint with prejudice in September 2013, but the Circuit's three-judge panel partially reversed that decision and found that the plaintiffs had standing to pursue their Second Amendment claims.

Writing for the panel, Circuit Judge Diarmuid O'Scannlain said in the 36-page opinion that although the plaintiffs did not offer evidence showing that their equal protection rights had been violated, they made a plausible Second Amendment case.

"Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms," O'Scannlain said.

"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."

He added that "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."

But Circuit Judge Barry Silverman dissented from the majority's opinion, writing that the plaintiffs' lawsuit was "a mundane zoning dispute dressed up as a Second Amendment challenge."

"Even assuming for the sake of discussion that merchants who want to sell guns commercially have standing to assert the personal, individual rights of wholly hypothetical would-be buyers," the plaintiffs did not assert how the zoning ordinance "impairs any actual person's individual right to bear arms," Silverman said.

"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," Silverman said, pointing out that the county contains "at least 10" lawful gun stores.

The majority's opinion contended that "we doubt the dissent would afford challenges invoking other fundamental rights such cursory review."

O'Scannlain said that a similar hypothetical zoning ordinance applying not to gun stores but to bookstores, "would give us great pause" even if Alameda County residents "could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law."

He added, "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."

An Alameda County representative said in an email that the county will continue to defend the zoning ordinance, either in the trial or appellate court.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.