The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
May a county in effect bar all new gun stores in its unincorporated areas? (The incorporated areas would be governed by city zoning rules.) This morning's U.S. Court of Appeals for the 9th Circuit decision in Teixeira v. County of Alameda [Calif.] suggests that the answer is probably "no." Here's a rough summary of the reasoning of the majority (written by Judge Diarmuid O'Scannlain and joined by Judge Carlos Bea):
1. The Second Amendment, in protecting a right to have guns for self-defense, also protects the "right to acquire weapons for self-defense." Both history and logic supports this:
If "the right of the people to keep and bear arms" is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well. The Supreme Court recognized this principle in very different contexts [citing cases involving the right to use contraceptives and the First Amendment].
Though D.C. v. Heller stated that "nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms," there is no "categorical exception from Second Amendment scrutiny for the regulation of gun stores. If such were the case, the County could enact a total prohibition on the commercial sale of firearms. There is no question that '[s]uch a result would be untenable under Heller.'" "Conditions and qualifications" do not include broad prohibitions.
2. Teixeira is alleging (and at this point in the case, the court must assume his allegations are factually accurate) that the County rule—that any gun store must be no more than 500 feet from residential areas (or some other locations)—"amounts to a complete ban on [new] gun stores." If this allegation proves to be correct, then the ban would be unconstitutional unless it passed quite demanding scrutiny (maybe between "intermediate scrutiny" and "strict scrutiny," whatever exactly that might mean).
3. The government can't satisfy this scrutiny simply on the assertion that "gun stores act as magnets for crime." "Indeed, Teixeira took pains to remind the court that 'all employees working at a gun store, and all clients/customers are required to be law-abiding citizens.'" Therefore, the case must be remanded to the district court. And on remand, the district court must require "at least some evidentiary showing that gun stores increase crime around their locations" and must require some "explanation as to how a gun store might negatively impact the aesthetics of a neighborhood" (if the government continues to rely on a community aesthetics rationale for its zoning rule).
4. It doesn't matter that some existing gun stores may satisfy the needs of local gun buyers.
The dissent does not share our concern over Alameda County's attempt to restrict the ability of law-abiding Americans to participate in activity protected by the Second Amendment. According to the dissent, there is no constitutional infirmity so long as firearm sales are permitted somewhere in the County. We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than "a mundane zoning dispute dressed up as a [First] Amendment challenge"? Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.
Such an ordinance, of course, would give us great pause. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment. The right of law-abiding citizens to keep and to bear arms is not a "second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." McDonald v. City of Chicago. Indeed, it is one "that the Framers and ratifiers of the Fourteenth Amendment counted … among those fundamental rights necessary to our system of ordered liberty." Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.
We reiterate Heller and McDonald's assurances that government enjoys substantial leeway under the SecondAmendment to regulate the commercial sale of firearms. Alameda County's Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.
The dissent, by Judge Barry Silverman, reasoned that the presence of the existing gun stores in Alameda County is sufficient to satisfy the Second Amendment:
[T]here is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. It is undisputed that they can. The record shows that there are at least ten gun stores already operating lawfully in Alameda County.
Even assuming for the sake of discussion that merchants who want to sell guns commercially have standing to assert the personal, individual rights of wholly hypothetical would-be buyers—a dubious assumption, in my opinion—the first amended complaint does not explain how Alameda County's zoning ordinance, on its face or as applied, impairs any actual person's individual right to bear arms, no matter what level of scrutiny is applied. Instead, the first amended complaint alleges that would-be buyers are entitled to the enhanced customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy, but it is not a constitutional right.