Ninth Circuit Upholds Zoning Denial for Gun Store

Steven D. Schwinn, John Marshall Law School

The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).

The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.

Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.

The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:

Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.

The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.

As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."