The right to keep and bear and buy arms

In Teixeira v. County of Alameda, the 9th U.S. Circuit Court of Appeals found that a zoning ordinance which regulates where guns can be sold in Alameda County should be subject to heightened scrutiny under Second Amendment challenges. In so finding, the 9th circuit rationalized that the right to bear arms is commensurate with the right to purchase arms. The decision is a puzzling one given the fact that Alameda County has 20 or more gun shops and is plagued by one of the highest rates of gun violence in the nation. Moreover, in a climate where shooting massacres and gun violence have become the norm, I would argue that a mere zoning ordinance which regulates that guns should not be sold within 500 feet of sensitive locations does not implicate Second Amendment rights, and even if it did, it is the least restrictive means of accomplishing the county's objective of reducing crime.

The Second Amendment states that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. However, the Heller court made clear that the right to bear arms was not an absolute right free from sensible regulation, holding that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

At issue in the Teixeira case was a gun shop's appeal from a county zoning ordinance which stipulated that firearm dealerships could not be located within 500 feet of a "[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served." Valley Guns and Ammo sought to challenge the county of Alameda's enforcement of this zoning ordinance in district court, alleging that the measure and its enforcement violated Second Amendment rights because it effectively prevented it or anyone else from opening up a gun store in unincorporated Alameda County, thereby depriving residents of their right to bear arms under the Second Amendment. The complaint alleged that the county facially violated Second Amendment Rights, and also their Equal Protection guarantees under the 14th Amendment because the law was allegedly applied without due process.

The district court granted the county's motion to dismiss the complaint, finding that the law on its face appeared to fall categorically into the Heller exception of "laws imposing conditions and qualifications on the commercial sale of arms" and was therefore presumptively lawful. The county presented evidence that there were numerous gun stores in Alameda County where access to firearms is ubiquitous and that the County of Alameda (which includes Oakland) had some of the highest rates of gun homicide and gun violence in the nation.

The 9th Circuit did two things to overturn the lower court's verdict. First, the court raised the level of scrutiny to heightened scrutiny, thereby placing an onerous burden on the city to prove that the ordinance somehow falls outside historically allowable regulations in furtherance of the Second Amendment. Second, it disregarded key facts and evidence, such as the fact the ordinance does not restrict sales of guns or possession of guns as evidenced by other stores already in the area, and a city's inherent right to regulate the health, safety and aesthetics of its community by determining where firearms could be sold in its county, a clear and historic exception to the Second Amendment.

The constitutionality of municipal zoning ordinances has long been upheld under a local government's inherent right to regulate the health and safety of its citizens. A local government's police power includes the power to regulate the sale of firearms. Sutter v. City of Lafayette, 57 Cal. App. 4th 1109 (1997), for example, rejected a challenge to an ordinance which limited firearm dealerships to certain areas and required the city to consider firearm store's "locational compatibility" to nearby schools, other firearms stores, bars, liquor stores or residential areas. Also, Great Western Shows v. County of Los Angeles, 27 Cal. 4th 853 (Cal. 2002) held that the need for firearm regulation may be greater in big cities, where people congregate, than in smaller communities where there is less opportunity and temptation to commit violent crimes. Furthermore, ordinances enacted pursuant to police powers are valid unless they conflict with federal or state law. Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893 (Cal. 1993).

Pursuant to this well-settled legal precedent, no less than 20 California cities and counties have enacted laws just like the one at issue here, regulating the location of firearms dealers.

Moreover, it appears that the 9th Circuit went out of its way to find that the Alameda County zoning ordinance placed a burden on the right to purchase firearms, when in fact the ordinance places a reasonable and modest restriction on the places where a gun dealer may operate ? specifically, requiring gun dealers to operate at least 500 feet away from any "[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served." This was surprising, when in fact that county had presented evidence that there are 20 gun stores in Alameda County, including four in the unincorporated area governed by the ordinance in question.

Despite this decision, it is important to note that the 9th Circuit has not struck down the county's 500-foot zoning ordinance. Rather, at this procedural stage in the case, the 9th Circuit has remanded the case back to the district court with the direction that the county bears the evidence to demonstrate that the zoning ordinance does not substantially burden Second Amendment Rights. If the county can meet this burden on summary judgment or otherwise, Valley Guns and Ammo may have to look elsewhere to open up a gun shop to compete with the 20 or so gun stores already operating in the county.

Imran Khaliq is a senior intellectual property litigation director at a leading technology company in Silicon Valley. Previously, he worked as a partner and associate at several major national and international law firms, representing clients in intellectual property litigation, licensing and technology transactions. He was amicus counsel for The Law Center to Prevent Gun Violence and Youth Alive in Teixeira.