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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.

From the ruling(pdf):

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.

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    • ACTUALLY the 9th is entirely Red – Chicom or Hammer/Sickle Red.

      The sickest lie of the mainstream media of recent years is labeling the modern demtard party as “blue”. Obviously marxist red would be appropriate and accurate.

      • From what I remember (and I could be wrong), it was a deliberate switch after the Reagan years (where you’ve got a sea of deep dark blue, less Minnesota). Blue had always symbolized states’ rights (as in the Bonnie Blue flag) whereas red, as you’ve noted, symbolized communism …

  1. Whatever happened with the ruling that Feds couldn’t restrict handgun sales with regards to out of state residents? I apologize, I can’t remember which circuit the case fell under.

  2. “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.”

    For the short term, this changes essentially nothing. Confirming Scalia’s replacement essentially leaves the court the way it was when Scalia died.

    As Ralph has noted in the past, Kennedy cannot be trusted with the 2A. It’s better SCOTUS punts on this one and future 2A decisions until the political reliability of the court can be verified.

    Translation: We need a Progressive justice to retire or expire. Considering who the next Prez will be, I’ll lay money none of the Progressive justices will willfully resign…

    • Picture a SCOTUS take on ‘Weekend at Bernie’s’, the ‘Notorious Ruth Bader Ginsberg’ edition…


  3. Once again, the Ninth Circus will hold onto the title of Most Overruled Circuit Court in the Federal Judiciary.

    • In general, judges hate being overruled. I did an internship for a federal judge who would only use precedent from the 9th Circuit if there was not any precedent on point from another circuit. He was a good judge, so his goal was to do his job and make a ruling that would not be overturned.

  4. So I’ve got a “silly” question. Why are there different levels of scrutiny in the first place? Why is not every single case tried under high scrutiny? What possible justification can there be for allowing our justices to become lazy?

    • Because most laws and regulations do not impact personal rights guaranteed under the Constitution. Zoning regulations are one area, an area often regulated on the local level. Do we need to subject the Uniform Building Code to the highest level of scrutiny? Or the Fire Code? No, Andrew, it has nothing to do with laziness, but is instead predicated on the idea that the government must have the authority to govern, and if everything were subject to years of litigation just to pass a local ordinance such a leash law or set back requirements, anarchy would reign.

      • “… government must have the authority to govern, and if everything were subject to years of litigation just to pass a local ordinance such a leash law or set back requirements, anarchy LIBERTY would reign.”

        There. Fixed that for you.

        • No, you fixed it for you. I am not a fan of anarchy, nor is the form of government established by the Constitution anarchic. Anarchy inevitably results in a perpetual state of war where the strongest rule the rest. Thus, although one theoretically may have “complete” freedom in a state of anarchy, the reality is more akin to slavery for most, autocracy for the minority. Pass.

        • Mark N.,

          You seem to be suggesting that:
          (1) Anarchy is inevitable unless a strong government is in place.
          (2) A strong government can stop anarchy.

          I am going to say that you are wrong on both counts. There are many locations and regions on Earth where there is no strong government and there is no anarchy at all. Likewise, there are many locations and regions on Earth where there is a strong government and anarchy is rampant.

          We do not need an overarching government that defines intrusive laws and codes for anything and everything. Rather, we need people who have a minimal sense of responsibility and common decency. And where people fail to have a minimal sense of responsibility and common decency and their actions harm others or cause damages to others, we have Common Law which enables the victims to recover damages. That is the government enforced mechanism that we should be using to full effect to stave off anarchy. Hundreds of thousands of pages of codes and laws are not the answer … and, quite frankly, impossible to know and follow anyway, much less enforce.

          As for your concern about a society where the strongest rule everyone else, that is exactly what we have right now: an overarching government that does everything in its power to portray legitimacy to and enforce the whims of the strongest onto everyone else … where the “strongest” refers to the ruling class of Big Money individuals and virtually all politicians who codify the interests of those Big Money individuals.

          • uncommon_sense,

            Totally. I had a client charged with a criminal offense for her barking dogs. She was prosecuted by an arm of the state government. (The city attorney). Before the turn of the last century (1890’s – the early 1900’s) the complaining neighbors would have had to hire an attorney (or have a fool for a client as the saying goes) and sue in civil court. Now with all these codes, my client had to fight the government and what would have been the plaintiff didn’t have to shell out any money. When you don’t have to pay to bring a nuisance suit (and I mean that both ways), it hurts the defendant whether or not you win and you suffer no harm. This is wrong. I won the trial, but did my client win? My client still had to pay me.

            We need government for well ordered liberty, but that government needs to be extremely limited. We have way too much government, and it is often used as weapon in personal disputes (even on the civil side where many personal disputes should be). Do you know it only takes one person saying you committed a crime for you to be arrested and jailed? Many of my clients were shocked to learn this.

    • Intermediate and strict scrutiny are the standards of review a court uses when a constitutional right is concerned. The review starts with that the government has to have a good enough reason to violate the right(s) in question.

      The classic example is that you can’t shout fire in a crowded theater because by doing so you could kill people. Preventing people from being killed is a good enough reason. The 1st Amendment right of free speech is the right being limited. The law then has to fit the reason in a way that limits the impact on the right, so a law that says you can’t talk in a crowded theater would almost certainly be struct down, but a law that said you cannot shout anything that is likely to cause a stampede would be more likely to stand, and law that said you cannot shout fire in a crowded theater when there is in fact not a fire, is the most likely to be upheld.

      If you want more detailed answers, start with Wikipedia, go from there, get a firm understanding of the concepts and then engage in debate. Starting positions would be that the Constitution isn’t a suicide pact (the unanimous rubric of judges) vs. the Constitution means what it says, e.g., “the right to bear arms shall not be infringed” is an unqualified right to weapons of any kind that the government cannot “infringe” in any way (no laws infringing the right to any weapons that can be borne, so we would at least get suitcase nukes).

      Is an ICBM capable of being borne by a person? That would be a debatable question on the “the Constitution means what it says side.” I think under this rubric the debate would be about what the words “bear,” “arms,” and “infringe” mean. (Those questions still apply under the current rubric).

      Does the government have a sufficient reason to limit the 2A by infringing on the people’s right to nuclear arms? That would be a debatable question on the “the Constitution is not a suicide pact” side of the argument. (And the answer would be yes on the nuclear weapon question).

      • TXLawyer,

        “The Constitution is not a suicide pact.”

        Actually, I would argue that the U.S. Constitution is indeed a suicide pact. The U.S. Constitution defines the structure and limitations of government and that structure is absolute and inflexible beyond the amendment process.

        It is so absolute and inflexible, in fact, that only ONE phrase in all of the amendments allows for any flexibility — the infamous reasonable searches and seizures clause of the Fourth Amendment. There are no provisions to wave the Fourth or Fifth amendment during a terrorist attack for example.

        And why do we have a “suicide pact”? Because many would rather meet an early demise than live under a government that wants to violate the tenants of the U.S. Constitution.

        • Thanks Larry … I only got 5 hours of interrupted sleep last night and I am running well below 100% mentally.

          I just realized, however, that “tenants” is actually a pretty good pun!

        • uncommon_sense,

          My goal was to point Mr. Lewis in the right direction to answer his question and give him a general framework in which to understand what’s going on with the different levels of scrutiny.

          I probably should have stated that the different levels of scrutiny are reasonable basis review (“rationally related” to a “legitimate” government interest or the no rule against stupid laws rule), intermediate scrutiny (“important government interest” by means that are “substantially related” to that interest), and strict scrutiny (“compelling government interest” “narrowly tailored” using the “least restrictive means”). (I put the keywords in quotes).

          I also should have stated that we have them because all judges (that I have any knowledge of) subscribe to the “the Constitution is not a suicide pact” position. If the Constitution is not a suicide pact, then we have to have a way of determining when to break the rules. The different levels of scrutiny are for different situations. Going into all the different situations and why they would merit different treatment is beyond the scope of the TTAG comments section, or at least is for me, with the exception of some laws don’t violate any constitutional rights so they get rational basis review because there is no rule against stupid laws.

          I’m not sure whether or not I agree with you, but I am definitely uneasy, to put it mildly, with a system in which we can lock up all of “those people” under strict scrutiny. (“Those people” were American citizens of Japanese origin and/or ancestry, but could be anyone in the future and is precedent for Trump to round up or register all Muslims).

          So, yeah … the suicide pact position is sounding more and more reasonable. Or less appealing if you want to round up all the Muslims.

          Also, the judges (and lawyers, say lawyers in Texas) could be lazy if the analysis was simply “does x violate a constitutional right, yes, then illegal, law struck down, case over.” Though, most ground level Constitutional law is criminal law and heavily focused on the reasonableness of searches, so maybe we couldn’t be that lazy after all.

          • “Also, the judges (and lawyers, say lawyers in Texas) could be lazy if the analysis was simply ‘does x violate a constitutional right, yes, then illegal, law struck down, case over.’ ”

            Yes, indeed. We need ability as a society to say that nothing is absolute. Every situation is different, and every case should be given the hope of a “just” decision, based on individuals and individual facts. Blind justice is just blind stupid. During WW2, Italians and Germans were not sentenced to concentration camps, only Japanese. What does that say? And this stupid idea of Trump that all Muslims should be prohibited from coming to America is unjust; pre-crime sentencing of the worst kind. Everyone escaping political or financial persecution has a right to protect their lives by leaving terrible circumstances and starting over. America is the best place in the world to “start over”. Doors, fences and borders should be open to anyone who arrives here.

            Just as there are legitimately three levels of scrutiny for constitutional matters, there should be reasonable levels of restriction of those constitutional rights. At the bottom, in line with the court’s “reasonable basis review”, are gun laws designed to either make, or make possible, safer conditions in a given community that wants to be rid of guns (or require all owners to be state licensed, etc.) For most people on this blog, even “strict scrutiny” should be abolished…If a law violates the constitution, illegal; end of story. Sorry, not the way life works, old stick.

        • 2asux. Pre crime sentencing? Like telling someone they can’t own certain firearms or firearms at all because they may, may, misuse them in future?

          • “2asux. Pre crime sentencing? Like telling someone they can’t own certain firearms or firearms at all because they may, may, misuse them in future?”

            Is one form of pre-crime sentencing acceptable, and another not?

        • No. They are not. They are equally wrong. Civil and human rights are being violated in both cases. It’s just as evil to tell me I can’t carry a gun as it is to tell someone they can’t stay here just based on their religion.

          • Actually, religious refugees are required to identify their religion as part of the review to determine if they are being persecuted in their home country. But no one should have to prove they are persecuted. Their personal statements should be taken at face value.

        • Nobody has the right to emigrate to America. I know of no law that prevents the Feds from limiting immigration from terrorist strongholds. Additionally, under the Korematsu decision, Trump can totally intern all the Muslims. Not saying that decision wouldn’t be overturned or that it was right in the first place. I am saying that what has been ruled constitutional under strict scrutiny is terrifying.

          And yes, I apparently use a different handle on my home computer than my office computer.

          • “Nobody has the right to emigrate to America.”

            If a person has a natural, civil and human right to self-defense (to borrow a phrase), that person has the right to live anywhere on the planet that provides the means for self-defense of whatever force (financial, societal, combat, or health conditions) the person is defending self from.

        • Just as my personal statement of a need to exercise my civil and human right to own and carry arms should be honored at face value.

          • “Just as my personal statement of a need to exercise my civil and human right to own and carry arms should be honored at face value.”

            Completely different.

            Fleeing to safety is not, on any level, equivalent to being armed with a deadly weapon with long range capability to harm bystanders.

        • “If a person has a natural, civil and human right to self-defense … that person has the right to live anywhere on the planet …”

          They certainly don’t have a constitutional right to do it here. And to take your argument to the extreme, I have the right to live in your house and eat your food because I can better defend myself from the elements and hunger there. (Well maybe not me, but definitely someone).

          • “And to take your argument to the extreme”

            “argumentum ad absurdum” is not relevant. seeking safety in a nation is entirely different from invading an individual home. I know of no one who supports open doors for refugees who also would argue it is socially imperative or just that everyone’s abode is subject to what would essentially be a violation of the third amendment.

            • So you you are saying that they are soldiers of the Caliphate? Cuz the 3rd is about quartering soldiers in homes. And besides, your open borders argument is absurd, so I don’t have to take it anywhere to take it to the absurd. Also, reductio ad adsurdum is perfectly relevant.

              Let the Muslim nations take the Muslim refugees. I’d happily take Christians, Druze, Jews or whatevers who aren’t members of a religion that demands violent extremists. And if the Christians are anything like Christians from the 1600’s, I wouldn’t want them either.

              • Very courageous, sir ! Few of your brethren are willing to admit the truth about gun owners: crass, selfish, insensitive, uncaring, xenophobic, cold, ruthless, obsessed with a single “inalienable right” – guns.

                I seem to have you on record that “the Creator” endowed only the United States (and select others) with the rights to life, liberty and pursuit of happiness. The rest can go next door. The rest of the world has no such rights, and no hope of escaping in desperation to nation which proudly displays a statue proclaiming, “Give me your poor…” (Note: that promise does not mention the qualifier that those poor must pass whatever sort of test the people of the United States choose to unpredictably impose).

                Gun owners; poor of character, devoid of empathy for the less fortunate, consumed by desires to put all their neighbors at risk of NGU, lacking in the most basic of decent consideration of people fleeing for their lives, unless those people happen (maybe) to be Christians. Gun owners. The gift that keeps on giving political treasure.

        • “At the bottom, in line with the court’s “reasonable basis review”, are gun laws designed to either make, or make possible, safer conditions in a given community that wants to be rid of guns (or require all owners to be state licensed, etc.)”

          *Bzzzzt!* Wrong.

          The community has no right to be ‘rid of guns’. Full stop. (Pointing at the Constitution).

          State licensing is necessary if they would ever have a chance to confiscate those evil guns for ‘safety’. so no ‘licensing’.

          Just as a community that desires ‘safety’ doesn’t have the right to not allow certain types of *cough*, ‘undesirable’, *cough*, people to live there, even if the community has verifiable, accurate data of what will happen to the crime rate when a population of residents subsisting primarily on ‘public assistance’ resides there.

          Since you bring up the subject of ‘community safety’, it would be a good idea to monitor every citizen’s internet usage for signs of illegal or terrorist activity. Also, it would be a good idea for the police to drop in unannounced at the home to poke around a bit a few times a year. That can nip potential problems in the metaphorical bud, so to speak.

          After all, if they’re not doing anything illegal or potentially terrorist-ic, they have nothing to worry about, no?

          The safety of the community and especially it’s young children should take precedence over a little minor intrusion of privacy, *right*? 🙂

          • Yes, yes. Your observations are the same old “absolute rights” argument, which as a lawyer you should already know is a sham. No rights are absolute, else there would be no amendment process (established by the founders because they knew life was already too complicated to tolerate “absolutes” in human behavior (and law).

            However, if the “inalienable” rights are absolute, and “among these are Life, Liberty, and the Pursuit of Happiness”, then anyone has the inalienable right to live where they are not persecuted. Then anyone (community) has the absolute right to regulate public safety (guns, in this case) in order to have “life”, “liberty (from unwarranted dangers), and the “pursuit of happiness” (to live without constant fear of the untrained, the incompetent, the careless who wander the streets with guns).

            If rights are not truly “inalienable”, if “reasonable restrictions” (Scalia – Heller) are permissible regarding any of the “absolute rights”, then the nature of the restrictions is purely a matter of who is in political power at any given time. The ability to place any restrictions whatsoever on those precious “absolute rights” is determined by voters, and one restriction is just as valid as the next.

        • 2asux. In other words, double standards. Thank you. Without guys like you hillary may have taken the whitehouse.

          It will not be long now and we’ll have constitutional carry nation wide.

        • 2Asux, you are a moron. No one has invoked divine authority since Mr. Lewis asked his original question. Also, please explain how it is xenophobic to accept any religious group who is willing to coexist peacefully with other religious groups and exclude a religious group of whom a third support terrorism?

          On second thought, don’t explain it because to quote Billy Madison: “what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.”

          • The statement was made that Muslim refugees should go to Muslim countries, but Christians from Muslim lands were OK to seek refuge in America. That sounds xenophobic.

            The American Declaration of Independence invoked the term “Creator”, which, even in American English means God, deity. If inalienable rights do not originate in a Supreme Being, then those rights originate in the minds of humans, only. Thus, rights are, indeed, alienable by humans. So it follows that no rights are absolute, and are subject to whomever can control the power to grant, enforce and destroy those rights. That means any and all sorts of limits, restrictions or regulations can be applied to “rights” in order to please the current society.

            That is so difficult to contemplate.

            Yes, I did note the devolution to name-calling by those who quickly exhaust their ability to maintain a serious and civil discourse about differing world views.

  5. I really did want to spend a quiet week between holidays, but TTAG posted just too many sweet articles. Spent yesterday contemplating a comment on training of, or for, gun carriers and owners. This morning, when just about ready to let go, came the post about the 9th Circuit. How sweet it is. Then came the post about guns being a state’s rights issue. Gets better all the time. However, the Ninth Circuit matter beats them all. And encapsulates the state’s rights matter.

    The move to en banc hearings on Teixeira v. County of Alameda smells like the announcement of another win for common sense gun laws. Although…the state’s right angle here is also satisfying (using the fav of southern Luddites against them is just too rich).

    The Ninth will rule that Alameda is following the second amendment and Heller, and McDonald by providing for the safety of the community. After all, in a just society no member or neighborhood should be forced to allow something so offensive to the people. Liquor stores, porno shops, gentleman’s club (that’s what you call them, right?), and several unsavory businesses can be restricted in location and even existence in order to preserve the safety and character of the neighborhood. Why not restrict something proven to result in dangerous actions by patrons (injury and death, whether in the store, on the sidewalk immediate, or even the roadways, shops, malls, theaters of other neighborhoods)?

    The Ninth ruling may, that is may, reach the Supreme Court. The court may, that is may, overturn the Ninth. But there will be years of “peace in the valley” until that day. Even with a Trump president, there is not guarantee the SC will vote to hear any other gun cases. After all, the court already ruled that people have the constitutional right to have guns to defend themselves in the home. The problem of sourcing those guns is not a legal matter for the court. Perhaps if it were proven that guns cannot legally be purchased anywhere in the world, then the second amendment might be burned by zoning restrictions of gun stores and manufacturers.

    Until then, the Ninth ruling will be the law in the Ninth circuit (and effective), along with being a wonderful precedent for other courts to copy.

  6. “Even with a Trump president, there is not guarantee the SC will vote to hear any other gun cases”

    Trump’s replacement of Justice Scalia effectively puts SCOTUS back to where the court was before his death.

    5-4 Conservative, but only 4 of those votes can be considered politically reliable.

    What will be required is for a Progressive justice to retire or expire. The Left’s utter hatred of Trump means the only way they will ever leave the court is horizontal feet (or head) first.

    It’s a roll of the dice for the next 4 years, a good thing many (if not all) of the Progressive faction are very elderly.

    That ups the odds in our favor considerably.

    We can do little more at this point than wait to see if God answers our prayers… 🙂


    • “SCOTUS, here we come”

      If I remember correctly, a conflict must exist between circuits in order for SC to take a case. Also, the SC can refuse to take such a case.

      “Time is on my side. Yes, it is.”

  7. I don’t ever hold my breath when it comes to the 9th. Possibly the worst circuit court in the nation. Hopefully RBG will die soon so Trump can put a 6th constitutionalist judge on SCOTUS and we can start rolling back some of these BS gun laws.

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