Ninth Circuit Rules That Counties May Restrict Locations of Gun Stores

Any time the Court of Appeals for the Ninth Circuit makes a ruling regarding firearms, we all hold our breath and get ready for another court-approved assault on our fundamental rights. One of the most recent cases, regarding Alameda County’s restrictions on locations of gun stores, is not a full-on attack on our rights necessarily, but the Court may have just set the stage for another kind of indirect infringement.

The State of California, and many political subdivisions, have done as much as possible to make legal gun ownership a near impossibility. With laws like cosmetic restrictions, approved handgun roster, waiting periods, etc., exercising the right to bear arms in California is becoming more difficult with each passing legislative session.

Alameda County is no exception, where the county legislature enacted an ordinance restricting the location of gun shops from certain zones. Those restricted locations include areas near residential zones, day care centers, schools, other gun stores, and liquor stores.

This lawsuit was brought by individuals who wanted to establish a new gun store in an unincorporated part of the county. The only issue was that there happened to be another gun store just 600 ft. away from their proposed location.
The county subsequently rejected their request for approval to establish the store.

They brought suit claiming that the ordinance violated their Second Amendment rights. The district court dismissed their claim, and then the individuals appealed their case. An en banc court affirmed the lower court’s dismissal, the Los Angeles Times is reporting.

An 11-judge panel of the U.S. 9th Circuit Court of Appeals upheld the dismissal of a lawsuit challenging an Alameda County zoning ordinance that barred firearm sales near residential neighborhoods, schools, day-care centers, other firearm retailers and liquor stores.

The 9-2 decision overturned an earlier ruling by a three-judge 9th Circuit panel, which said the county had to justify the restriction. If the zoning amounted to a ban on new gun stores, it was likely to violate the Constitution’s guarantee of the right to bear arms, that panel decided 2 to 1 last year.

In Tuesday’s ruling, the court said the 2nd Amendment does not create a commercial right to sell guns, as long as law-abiding people are not deprived of keeping arms in their homes.

It is true that this particular ordinance does not act upon residents’ ability to purchase directly, but the Court’s ruling could set the table for a different kind of infringement on our rights: preventing gun stores from opening and doing business by zoning everything in just such a way as to, by default, deny the people the ability to purchase firearms.

Now, the Court did state that the County cannot effectively prohibit gun stores from being established. That would be unconstitutional. Nonetheless, this is government we’re talking about; whatever little loophole or ambiguity they can use to their advantage, they will.

“Gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained,” Circuit Judge Marsha S. Berzon, a Clinton appointee, wrote in the opinion.

There are currently 12 gun stores in the county. The Court’s effective conclusion is that the Second Amendment offers no protection for the right to sell firearms, only the right to possess.

In the dissent, Judge Bea asserted that the majority improperly applied precedents from the Supreme Court and from itself. By stating that there is no right to also establish places of business for firearms, it bypasses all the Constitutional protections.

But that ability by default must exist if the right is to mean anything. If one can legally possess firearms, but cannot actually go and buy them, the legal protection is moot.

Not to mention the fact that the county said that there really was no legitimate safety interest that the ordinance advanced. It was purely a political move to persecute a minority population in the county, as Judge Bea explained in the dissent.

No sociological study is needed to assert that gun buyers and gun sellers constitute a “politically unpopular group” in Alameda County within the meaning of Moreno. That the vote to deny Appellants’ variance was purely political, and not based on an independent finding of danger to citizens, is confirmed by the record’s utter lack of even the most minimal explanation for the Supervisors’ vote.

The county should have had to justify the ordinance under the strict scrutiny standard that a fundamental right requires, but the Court did what it does best by playing word games and improperly applying its own rules.

Surely this county, and others in California, will use the ruling as justification to further restrict commercial activity regarding firearms. I’d put some money down on that.