Affirming the U.S. District Court’s dismissal for failure to state a claim, the Ninth Circuit Court of Appeals, on October 10, 2017, ruled that Alameda County’s denial of a permit to open a gun store for failure to comply with a local zoning ordinance restricting the location of such stores did not violate the Second Amendment rights of local residents to purchase guns or the gun shop owner’s right to sell them. The Court of Appeals held that a county’s denial did not meaningfully constrain public access to guns and that the Second Amendment does not protect the right of commercial proprietors to sell firearms. Accordingly, the permit denial and the county’s zoning ordinance survived constitutional scrutiny. [Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017).]

Factual and Procedural Background

In 2010, Teixeira and two other individuals formed a partnership, Valley Guns and Ammo, with the intention of opening a gun store in Alameda County. Shortly thereafter, the county Planning Department informed Teixeira that because he intended to sell firearms, he would need to obtain a Conditional Use Permit. The county also informed Teixeira that to receive a Conditional Use Permit for his proposed gun store, he also had to comply with Alameda County Ordinance § 17.54.131 (zoning ordinance). That ordinance requires, among other things, that businesses selling firearms in unincorporated areas of the county be located at least five hundred feet away from any of the following:  schools, day care centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts.

After identifying what he believed to be a suitable rental property for his gun store, Teixeira applied for a Conditional Use Permit from the county. Although staff identified a public need for a licensed firearms dealer and determined that the proposed use was compatible with other land uses in the area and would not adversely affect the health or safety of persons living or working in the vicinity, it also found that the site of the proposed gun shop did not satisfy the zoning ordinance’s distance requirement because it was approximately 446 feet from two residential properties in different directions. Based on this finding, staff recommended that the permit application be denied.

Notwithstanding this recommendation, the county zoning board granted Teixeira a variance from the zoning ordinance and approved his application for a Conditional Use Permit. A neighborhood association appealed that decision to the board of supervisors. The Board voted to sustain the appeal, overturning the zoning board’s decision and revoking the Conditional Use Permit.

Teixeira filed a complaint in the U.S. District Court challenging the board of supervisors’ decision to deny him a variance and Conditional Use Permit. Brought on behalf of Teixeira and potential customers, the complaint alleged that the county’s actions violated the Second Amendment by preventing would-be customers from buying a gun, and by prohibiting Teixeira from selling firearms.

The District Court dismissed the Second Amendment claim, but a panel of judges for the Ninth Circuit revived it by a 2–1 vote. The Ninth Circuit then elected to rehear it en banc.

The Court of Appeals’ Decision

Second Amendment Does Not Confer Right to Have Gun Store at a Particular Location

Teixeira first argued that the county’s zoning ordinance unconstitutionally infringed upon the rights of prospective gun buyers. The Ninth Circuit easily rejected this argument. Explaining that gun buyers have “no right to have a gun store in a particular location as long as their access is not meaningfully constrained,” the court found that the county’s actions did not meaningfully constrain access to guns. The court noted that there were at least ten gun shops already operating in Alameda County, including a Big 5 Sporting Goods store located just 600 feet from Teixeira’s planned retail establishment. Because county residents could freely purchase firearms within the county, the court concluded that Teixeira had not plausibly alleged that the county’s ordinance impedes any resident of Alameda County who wishes to purchase a firearm from doing so. The court noted that it did not need to define the precise scope of any such acquisition right under the Second Amendment to resolve this case because, whatever the scope of that right, Teixeira failed to state a claim that the ordinance impedes Alameda County residents from acquiring firearms.

Second Amendment Does Not Confer an Individual Right to Sell Firearms

The court then turned to Teixeira’s more substantial argument: that the county’s zoning ordinance infringed on his Second Amendment right to sell firearms. He argued that even if there were a gun store on every square block in unincorporated Alameda County and therefore prospective gun purchasers could buy guns with exceeding ease, he would still have a right to establish his own gun store somewhere in the jurisdiction. He alleged that the zoning ordinance infringes on that right by making it virtually impossible to open a new gun store in unincorporated Alameda County. The court rejected this claim as well finding that the Second Amendment does not confer an independent right to sell firearms.

The court began its analysis by quoting D.C. v. Heller, the U.S. Supreme Court decision establishing an individual right to bear arms, which stated:

• . . .nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms. . . .[which are]. . .presumptively lawful regulatory measures. Heller’s assurance that laws imposing conditions and qualifications on the commercial sale of firearms are presumptively lawful made the court skeptical of Teixeira’s claim that retail establishments can assert an independent, freestanding right to sell firearms under the Second Amendment.

The court then went on to conduct “a full textual and historical review” of the Second Amendment. Starting with its text, the court concluded that nothing in the specific language of the Second Amendment suggests that sellers fall within the scope of its protection. Then, after marching through a lengthy historical analysis, the court concluded that, at the time of its ratification, the Second Amendment was not understood to create a commercial entitlement to sell guns if the right of the people to obtain and bear arms was not compromised. The court rejected an analogy to the First Amendment for booksellers because:

• . . .bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.

The court was therefore convinced that Teixeira could not state a Second Amendment claim based solely on the ordinance’s restriction on his ability to sell firearms.

Conclusion and Implications

In this decision, the Ninth Circuit affirmed the government’s constitutional authority to strictly regulate gun shops. The zoning ordinance at issue was not unconstitutional because it did not meaningfully constrain access to guns. This case has landmark status since the court rejected the notion that the Second Amendment protects the right of individuals to sell guns. Given that and the continuing debate over the scope of the Second Amendment, it is certainly conceivable that the Supreme Court may take interest in this case.

The decision is available here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/13-17132.pdf

(Chris Stiles)