Earlier this year, on May 16th, a three judge panel on the Ninth Circuit ruled that Alameda County could not impose a zoning ordinance on gun stores that was more strict than those for other businesses. In the case, Teixeira v. County of Alameda, the ordinance restricted gun stores from locating anywhere withing 500 feet of a residentially zoned district.
Reversing the dismissal of plaintiffs’ Second Amendment claims, the panel held that the County had offered nothing to undermine the panel’s 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. The panel held that the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutiny—something beyond mere rational basis review.
The panel held that under heightened scrutiny, the County bore the burden of justifying its action, and that the district court should have required the County to provide some evidentiary showing that gun stores increase crime around their locations or negatively impact the aesthetics of a neighborhood. The panel held that if on remand evidence did confirm that the Ordinance as applied, completely bans new guns stores (rather than merely regulating their location), something more exacting than intermediate scrutiny would be warranted.
It appeared to be a fairly non-controversial ruling. The Second Amendment can’t exist without a place to buy guns and ammunition. Therefore you have to show more than a mere “rational basis” to ban gun stores. (Rational basis is the least restrictive level of judicial scrutiny under which a judge examines a law to see if it violates constitutional rights. It is hardly any scrutiny at all).
The court ruled that under intermediate scrutiny, the middle step of the burden of proof ladder, the defendants had not shown any evidence that gun stores increased crime or negatively impacted the community or aesthetics of the neighborhood. Therefore they ruled against Alameda County.
Now the entire Ninth Circuit will re-hear the case, throwing out the three judge panel ruling, reminiscent of the Peruta case. Earlier this week, the Ninth Circuit posted this notice:
THOMAS, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
There appears to be a new tradition in the Ninth Circuit. Three judge panel decisions involving the Second Amendment (particularly those coming down on the side of more gun rights) will be heard en banc.
Second Amendment decisions that may be appealed to a Supreme Court with a new Trump appointee are accumulating. Watch this space.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.