Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Teixeira v. County of Alameda, a Ninth Circuit decision interpreting the Second Amendment’s effect on county zoning ordinances.

The County of Alameda placed two conditions on opening a gun store in the county – 1) firearm retailers were required to obtain a conditional use permit before selling, and 2) prohibiting firearm sales near residentially zoned districts, schools and day care centers, other firearm retailers, and liquor stores.

The plaintiffs here wished to open a gun shop but were denied a conditional use permit because the proposed location of their gun shop fell within a prohibited zone.  They challenge the ordinance facially and as applied to them, alleging that by restricting their ability to open a new, full service gun store, the ordinance infringes on his Second Amendment rights as well as those of his potential customers.

Conditional Use Permits review whether or not the proposed business (1) is required by public need; (2) is properly related to other land uses and transportation and service facilities in the area; (3) if permitted, will materially and adversely affect the health or safety of persons residing or working in the vicinity; and (4) will be contrary to the specific performance standards established for the area.

After applying for a conditional use permit, the County staff issued a report which found that there was a need for a licensed firearms dealer, the proposed use was compatible with other land uses and transportation in the area; and a gun shop at the proposed site would not adversely affect the health or safety of persons living and working in the vicinity.  But it also found that the site of the gun shop was 446 feet from two residential properties in different directions.  This it recommended against issuing a Conditional Use Permit.

However, the Zoning Board passed a resolution granting Teixeira a variance from the Zoning Ordinance and approving his application for a permit.  Since there was a major highway between the proposed site and the nearest residential district, the shop would not be detrimental to the public welfare.

A local homeowners association filed an appeal challenging the variance and the Board of Supervisors voted to sustain the appeal and revoking the permit.  Teixeira commissioned a study showing that the ordinance made it nearly impossible to open a gun store in unincorporated Alameda County.

As a result, Teixeira and others filed suit, challenging the ordinance on a variety of grounds, but primarily that it violated the Second Amendment rights of both himself and his potential customers.  The District Court dismissed the complaint for failure to state a claim.  A three judge panel of the Ninth Circuit reversed the District Court’s ruling on the Second Amendment 2-1.  The entire Ninth Circuit then agreed to rehear the case.

The Court began by noting that the Second Amendment has been interpreted to protect both the right of law-abiding, responsible citizens to use arms in defense of hearth and home as well as ancillary rights necessary to the realization of the core right to possess a firearm for self-defense.  Among these ancillary rights is the right to acquire arms.  However, the Court determined that it need not define the precise scope of any such right to acquire firearms because regardless of the scope of that right, Teixeira had failed to state a claim that the ordinance impedes the rights of Alameda County residents to acquire firearms.

While it is true that Teixeira has the derivative standing to assert the rights of his potential customers to acquire arms, he did not adequately allege in his complaint that Alameda County residents cannot purchase firearms within the county as a whole, or within the unincorporated areas of the county in particular.

In fact, evidence attached to the complaint demonstrates that citizens of the county can freely purchase firearms, even in the unincorporated portions of the county.  As of 2011, there were ten gun stores in the county, including a Big 5 Sporting Goods store which sells firearms approximately 600 feet from the location chosen by Teixeira to open his store.

The majority notes that the closest he comes to asserting a claim on behalf of his potential customers is the argument that the ordinance places a restriction on convenient access to a neighborhood gun store and the corollary of having to travel to other, more remote locations to exercise their rights to acquire firearms and ammunition.  But again, those potential buyers have access to firearms a mere 600 feet away.  The Court held that the Second Amendment does not guarantee a purchaser a right to have a gun store in a particular location so long as their access to firearms is not meaningfully constrained.

The Court then quotes from Judge Silverman’s dissent in the panel decision, noting that what is missing from the case is “any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby.”  But even further, the Court notes, there is not even an ALLEGATION that any such resident cannot buy a gun nearby.

It then turns to Teixeira’s next argument, that the ordinance interferes with the provision of ancillary training and certification services in Alameda County that he intends to offer as part of his store.  But, the Court points out, this argument fails on its face because the ordinance does not apply to such services.  It only limits the location of firearm sales.  Teixeira is more than welcome to open a store offering firearm instruction and training, and customers are more than welcome to purchase a gun at Big Five, travel the 600 feet and avail themselves of those services.

Finally, Teixeira argues that regardless of the rights of his potential customers, he has a Second Amendment right to sell firearms.  The Court applied a two-step inquiry to address this claim.  First, it asked whether the challenged law burdens conduct protected by the Second Amendment, and if so, it then determines the appropriate level of scrutiny.  If, however, the Court determines that the ordinance imposes no burden on conduct within the scope of the Second Amendment, its inquiry is at an end as a law that burdens conduct outside that scope passes constitutional muster.

The Court begins with a textual and historical analysis of the Second Amendment, to determine if the sale of firearms falls within the scope of the Second Amendment’s protections.  It concludes that there is no freestanding right, wholly detached from a customer’s ability to acquire firearms, to open a commercial establishment to sell firearms.

The majority begins with the Supreme Court’s observation in the Heller decision that nothing in the opinion should be taken to cast doubt on laws imposing conditions and qualifications on the commercial sale of firearms.  Such regulations, according to Heller, are examples of presumptively lawful regulatory measures.  Despite this language in Heller, the majority still engaged in a textual and historical analysis.

Beginning with the text, the Court notes that nothing in the specific language suggests that sellers fall within the scope of its protections.  Rather, it protects the rights of people who would keep and bear arms, not those who would sell them.  This is confirmed by state analogues to the Second Amendment, passed contemporaneously, none of which protect the rights of sellers of arms.

The majority then turns to the history of the right to bear arms.  It concluded that the historical evidence confirms that the right to sell arms was not within the scope of the Second Amendment.  Specifically, neither of the prominent commentaries of the time indicate that sales were protected, and more importantly, the colonial governments substantially controlled the firearms trade, as well as providing stored guns, controlling the conditions of trade and financially supporting private firearms manufacturers.  Furthermore, several colonies specifically prohibited the sale of firearms to specific groups, such as Indians, or limited the sale of firearms to the residents of the colony itself, and not to residents of other colonies. Thus, the court concluded, there is no historical support for the idea that there is a right to sell firearms unconnected to the rights of the people to keep and bear arms.

Since, as noted earlier, there was no burden on the ability of residents of Alameda County to purchase firearms, nor even an allegation that such was the case, restrictions on a commercial actor’s ability to enter the firearms market will have little to no impact on the ability of citizens to exercise their Second Amendment rights to keep and bear arms.

Moreover, the Court noted, other cases which have examined similar claims brought by commercial firearms sellers have all examined the restrictions within the context of a burden on a potential gun owner.  The Court found unpersuasive Teixeira’s analogy to the First Amendment, which protects the right of sellers of books and magazines.  Unlike the First Amendment, which prohibits Congress from making laws restricting speech, the Second Amendment specifically identifies the people as the holder of the right.  Second, the Supreme Court has long held that speech, by necessity, entails communication with others – listeners – and therefore the commercial purveyors of speech have an independent right to engage in expressive activity.  Such commercial sellers of speech are themselves engaged in speech, in a way that commercial purveyors of firearms are not themselves engaged in the keeping and bearing or arms.

The Court found the better analogy to be medical providers of abortions under the Fourteenth Amendment.  Restrictions on abortion are always examined in the context of the ability of the individual seeking an abortion, rather than the ability of a doctor to provide the service.  Absent a burden on a woman’s right to obtain the procedure, a doctor would have no grounds to assert the right to provide the service.

Judge Owens concurred, joining the majority’s opinion in all respects, except for the discussion of the independent right of commercial actors to sell firearms.  He did not believe it was necessary to reach that question.  For him, it was enough that Heller left intact “laws imposing conditions and qualifications on the commercial sale of arms.”  He agreed with the panel dissent by Judge Silverman that this is a mundane zoning dispute dressed up as a Second Amendment challenge.

Judge Tallman concurred in part and dissented in part.  He agreed with the majority’s rejection of Teixeira’s facial challenge, but he believes that Teixeira stated a claim that the ordinance was inappropriately applied to him.  He believes that it is inappropriate to examine the ordinance without also examining gun restrictions in California as a whole.

He also does not agree that the county ordinance falls within the sort of “longstanding regulatory measures” that Heller allowed.  He believes the record shows that the County Board of Supervisors expressed animus toward the Second Amendment and thus Teixeira should have been allowed to go forward with his claims.

Furthermore, he argues that even if the ordinance fell within Heller’s presumption of lawfulness, that presumption is rebuttable and Teixeira should have been allowed to attempt to rebut it.  He does not believe it is necessary to find a free-standing right to sell arms under the Second Amendment to find that this regulation potentially burdens the rights of gun owners in Alameda County to access the full range of services offered by the plaintiffs, and which are ancillary to the rights protected by the Second Amendment.

Judge Tallman argues that the history of the British embargo on the sale of arms in 1774, which was designed to prevent the colonists from acquiring firearms with which to oppose the King, it only makes sense that the Founders would want to protect the ability to sell and acquire arms as necessary to the right to keep and bear them.  Thus, he would reach Step Two of the analysis and determine what heightened level of scrutiny to apply to the ordinance.  He fully recognizes that, regardless of which level is chosen, the ordinance may still be constitutional.  But he believes the plaintiffs are entitled to make their case that it is not.

Finally, Judge Bea dissented.  He argued that the Second Amendment right to keep and bear arms would be meaningless without the ability to lawfully purchase and use said arms.  He believes the majority misreads prior precedent by holding that an ordinance must “meaningfully” burden the Second Amendment right before asking what level of scrutiny applies.  Rather, he argues, the question is whether the right is burdened at all, and the severity of that burden is examined to determine what level of scrutiny to apply.

He believes that the complaint alleges a burden on customers to obtain firearms and related services at the same location.  While there may be a disagreement over how much of a burden this is, that is not the question – the plaintiffs plausibly alleged a burden on the rights of gun owners and that is enough to remove this from rational basis review and apply intermediate scrutiny.  And under that level of scrutiny, the ordinance cannot survive.

There is no evidence in the record which shows that locating a store within 500 feet of a residential area creates any risk to the residents.  Furthermore, the County’s own staff recommended a variance to the regulation, which the Zoning Board approved.  Thus, the County itself had determined there was no harm from the proposed gun store and the Board of County Supervisors did nothing to justify their vote.

He also argues that Heller’s language does not support the ordinance here.  According to Judge Bea, Heller only protects as presumptively lawful those regulations which are longstanding.  He does not believe the County has shown that the Ordinance itself is longstanding or that it falls within a class of longstanding prohibitions as to the location or firearms sales and services in particular.  Therefore, he believes the ordinance must fail.

This is a very difficult case.  Particularly in light of the recent events in Las Vegas, it is hard to remain objective when considering measures designed to provide forms of gun control.  However, I believe that on the facial challenge, the majority has the better argument.  There are ten gun stores in Alameda County, including one only 600 feet from the plaintiff’s proposed storefront.  There is no evidence, nor allegation, that residents of Alameda County cannot purchase guns whenever they want.  This, coupled with the lack of a plaintiff alleging hardship in legally purchasing a gun, convinces me that Teixeira’s facial challenge must fall.

I also agree with the majority that there is no free-standing right to sell firearms protected by the Second Amendment independent of the right of county residents to keep and bear arms.  If Teixeira is to be successful, he needs to show some burden on the rights of gun buyers, rather than on himself as a seller.

To that point, I am not convinced that there is some hardship in having to purchase a gun at one location and receive training, certification, and gun-smithing services at another.  The ordinance allows Teixeira to offer every service he wishes to save one – he may not sell guns on the premises.  He is not prevented in any way from offering any other firearms-related services at his chosen location.

However, while the ordinance is, in my opinion, presumptively constitutional, the County did initially approve his permit and the staff recommended a variance, which the Zoning Board granted.  Two of the factors it had to consider were the public’s need and the presence of other firearms retailers in the area.  Having determined that the public had a need and that there was not another retailer within the prohibited distance, the County has severely undercut its rationale for denying Teixeira his permit.  As such, I agree with Judge Tallman that Teixeira should have the right to try and rebut the presumption that the ordinance is constitutional as applied to him.  This does not mean I think Teixeira should win.  I am not sure what the proper outcome is.  I merely believe that he has plausibly stated a claim that the County’s ordinance may be unconstitutional as applied to him and he has the right to gather evidence to support that claim.

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