Zoning ordinance is a permissible police power

This month we all watched with horror as news unfolded of yet another mass shooting, this time, taking the lives of 58 people and injuring countless others in Las Vegas, Nevada. Of course, as we have come to expect, neither the president nor members of Congress have spoken up firmly about this issue -- how many more domestic mass shootings are we going to tolerate as a nation before common sense gun laws are enforced or sensible restrictions are put in place that curb access to weapons of mass destruction?

Enshrined in our Constitution after the First Amendment right to free speech, public protest, and religion, the Second Amendment of our U.S. Constitution provides: "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." (Emphasis added.)

No matter which side of the coin you take when it comes to gun rights, it is fundamentally a constitutional issue. Americans will defend their right to bear arms as fervently as their rights to free speech. But the right to bear arms is not an unfettered right. As we have witnessed from the recent Las Vegas massacre, placing no restrictions on the sale or acquisition of firearms can allow individuals to stockpile automatic weapons to wreak deadly mayhem.

Courageously, and perhaps not coincidentally considering the timing of the Vegas massacre, the 9th U.S. Circuit Court Appeals has boldly stepped into the national spotlight on this issue, placing new constitutional restrictions on the sale of firearms. In the 9th Circuit en banc decision of Teixeira v. County of Alameda, 2017 DJDAR 9780, the court upheld a mundane zoning law restriction on where gun stores could operate in Alameda County; but more importantly, the court used this opportunity to hold, that as a matter of law, the right to "bear arms" is not coextensive with the right to sell arms.

The case has somewhat of a convoluted history going back to 2010. Briefly, the owners of a proposed gun store (Teixeira et al.), were ultimately denied a zoning permit for a gun store in the unincorporated portion of Alameda County, which represents approximately 9 percent of the county's residents. Alameda County also happens to be home of the city of Oakland, which has one of the highest homicide rates in the nation. Exercising its police powers to protect the health and safety of its residents, the county denied the gun store permit, citing a zoning law that prohibited gun stores from operating within 500 feet from a residential area, school or liquor store.

After exhausting administrative appeals, in 2013, Teixeira filed a district court action alleging Second Amendment Violations citing two primary arguments: (1) the county's zoning ordinance violated the plaintiff's Second Amendment rights to sell guns to citizens in unincorporated Alameda County; and (2) the ordinance was an unconstitutional restriction on a citizen's right to acquire arms for self-defense under the U.S. Supreme Court's 2008 District of Columbia v. Heller decision. The county lawyers quickly filed a motion to dismiss. The district court granted the county's motion to dismiss, citing the Supreme Court's Heller decision -- "nothing in our opinion should be taken to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of firearms." Heller explained that regulations presumably related to licensing and registration of firearms were "presumptively lawful regulatory measures."

Surprisingly, in 2016, the 9th Circuit reversed the district court's ruling, holding that the district court failed to undertake a constitutional analysis and fact finding of whether the zoning ordinance as applied in this specific case, impinged on ancillary Second Amendment Rights. Indeed, the Heller court and other federal appellate decisions have broadened the right to "bear arms" to include right to purchase certain types of bullets, the right operate gun ranges, and the right to maintain weapons in the home without burdensome restrictions. See, e.g., Jackson v. City and County of San Francisco, 746 F.3d 953, 968 (9th Cir. 2014); see also Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011). The rationale for these ancillary rights is based on the argument that the right to bear arms is rendered meaningless if the Second Amendment did not also protect the right to sell, purchase, practice, use guns, etc.

The 9th Circuit's en banc decision now takes a sword through these ancillary gun rights. First, the court rejected plaintiff's facial challenge to the zoning ordinance, finding that the plaintiff failed a state a claim that the ordinance was denying anyone the right to purchase arms in Alameda County, given the fact that there were approximately 10 guns stores in the county. In effect, the plaintiffs could not state a viable claim to show that residents of the county were unable to purchase guns at some other location. Second, the 9th Circuit panel over the objection of two dissenting opinions, held that as matter of law, measures restricting the sale of firearms did not themselves implicate Second Amendment Rights: "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." This later aspect of the decision is likely to be controversial and perhaps appealed to the Supreme Court.

Constitutionally, if a law is challenged under the Second Amendment, the court must conduct a two-step inquiry: (1) it must determine whether the challenged law burdens conduct protected by the Second Amendment; and (2) determine the appropriate level of scrutiny (heightened, intermediate or rational basis). The 9th Circuit sidestepped the second step, by holding that as a matter of law, county measures restricting the sale of guns do not by themselves implicate a fundamental Second Amendment right unless the restriction on sales amounts to an outright ban on the sale of weapons.

In sum, as I previously argued in an amicus brief submitted in support of the county, the zoning ordinance was merely that -- not an unconstitutional ban on the sale of guns, but a local police power zoning restriction that required gun stores to be a certain distance from sensitive public places such as schools and residential areas. However, since the court did not define the contours of what constitutes a permissible restriction on the "sale" of firearms the decision has wide ranging implications on the ability of local governments to restrict the commerce of gun control, at least in the 9th Circuit. Local governments may now have stronger legal grounds to enact other gun measures such as restrictions on the type of weapons that can be sold, the amount of weapons an owner can legally purchase, etc.

Because, let's face it, the ability to legally acquire 45 high-powered semi-automatic weapons and unload them onto a crowd of people is not something the Founding Fathers had in mind when passing the Second Amendment. The Las Vegas shooting massacre was a terrorist act, pure and simple. Yet, despite the increased frequency and destruction brought on by these senseless shootings, it would foolish to think that the Second Amendment is going to be repealed anytime soon.