The Volokh Conspiracy

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Ninth Circuit will reconsider pro-Second-Amendment opinion related to gun store zoning


In May, a Ninth Circuit panel held (by a 2-1 vote) that the Second Amendment may bar zoning decisions that essentially block any new gun stores in a jurisdiction. Alameda County (in California) allegedly banned all new gun stores in unincorporated areas of the county, which are the only areas over which the county has zoning jurisdictions; the panel held that this could be unconstitutional, unless the government could adequately demonstrate some serious public safety justification. David Kopel argued that this decision was quite sound, and so did an amicus brief that I was commissioned to write, on behalf of Randy Barnett, Bob Cottrol, Brannon Denning, Michael O'Shea and Glenn Harlan Reynolds, as well as the Firearms Policy Foundation.

Alas, the majority of judges on the Ninth Circuit voted yesterday to vacate the panel decision, and to rehear the case en banc, which is to say using a panel of 11 judges (the chief judge, Sidney Thomas, plus 10 randomly selected ones). The argument will be in March, and the decision will likely come down a few months after then; there's still hope the decision will be a good one, though given the vote to hear the case en banc, the odds aren't great.