U.S. Appeals Court Shuts Down California Gun Store Ban

gun store

The Ninth Circuit U.S. Court of Appeals remanded a lower court ruling that upheld an Alameda County, Cali. law that effectively banned all new gun stores. The county implemented a zoning code that made it impossible to open a new gun store in the area.

While not an explicit or outright gun store ban, the law made it illegal to open any new gun stores within 500 feet of any residentially-zoned district and more. Gun stores were forbidden from opening up within 500 feet of any “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,” which along with the residential zoning restriction ruled out the bulk of the California county.

A would-be gun store owner thought he’d found a location that was more than 500 feet away from any of the sensitive locations by road or by foot and so the local zoning board green-lit the future location of Valley Guns and Ammo. Technically the store was just over 400 feet away from a residential location but because it was unreachable by land routes the zoning board granted John Teixeira a variance.

After discovering that a gun store was opening up nearby, the San Lorenzo Village Homes Association filed an appeal with the county. The county board of supervisors sustained the appeal and revoked the local zoning board variance, which forced Teixeira to take things to the courts.

In the lower court Teixeira didn’t fare well but in the Court of Appeals his case against Alameda County was largely justified, and the Ninth Circuit rejected the bulk of the lower court’s ruling. (The only part the appeals court agreed with is that the suit should not be judged on 14th Amendment grounds–it is purely a Second Amendment case.)

See Also: Seattle Gun Store Pulling up Stakes in Protest of New Gun, Ammo Tax

The appeals court justices, writing for the majority, were clear in their assertion. “Teixeira ultimately bases his Second Amendment challenge on a purported right to purchase firearms–that is, a right to acquire weapons for self-defense,” Judge Diarmuid O’Scannlain and Judge Carlos Bea explained.

“Though Heller did not recognize explicitly a right to purchase or to sell weapons, the Court’s opinion was not intended to serve as ‘an exhaustive historical analysis…of the full scope of the Second Amendment. Therefore it is incumbent upon us to take a fresh look at the historical record to determine whether the right to keep and to bear arms, as understood at the time it was enshrined in the Constitution.”

In the ruling, the judges included historical writing and law from when the Second Amendment was drafted and even earlier, making it very clear that the right to keep and bear arms must include the right to purchase arms and ammunition.

The Court of Appeals also held that the state was not convincing in their argument that gun stores are a public safety issue. Teixeira argued that gun store employees and customers all must pass background checks and are demonstrably safe people, and the appeals court agreed.

Finally, the Court of Appeals rejected the lower court’s ruling that said that existing gun stores were enough to satisfy the local need for guns and shooting supplies. The judges wrote that no one would see this as anything short of a Constitutional right if the same standards were applied to other enumerated rights.

“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?'” wrote the court. “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.”

Like bookstores, newspapers, or houses of worship, there is no such thing as “enough” gun stores.

{ 36 comments… add one }
  • Virgil Cooper December 19, 2016, 1:52 am

    Anyway the gov. Can block a citizen from protecting themselves will be done. People like Rosey odonald will have citizens starving to hire protection for protection for thier children Wich she can do with out any strain on her bank account. She was totally against guns but had an armed guard transport her child to and from school each day. She could afford it but we cannot. It’s fair to her and in her pig eyes but not to anyone else. Oh yes she hates guns accept when she needs one and can afford someone to carry one. What a one-way pig she is. Sorry about that pig’s. She is just like everyone of of these Hollywood who’s life and everyone else’s they care about’s life is more important than anyone elses when it comes to a threat to one of them. Just another target to be shot on sight to have the one they love be protected at all cost. Kill that bastard leave the family crying and in debt with no support for them, but make sure yours can have a boob job that could support that family for two years just so she can look like a big tited whore for a couple year’s . I still can’t understand that aspect of so called looking good. Hell I could get a couple of silicone bags shover under my chest and some fake nipples dose that make me look sexy? I doubt it. Many the Clinton foundation could help?

  • Boss May 22, 2016, 2:19 pm

    Thank you gentlemen, this is the most intelligent and succinct discussion I have seen by Second Amendment Supporters in any venue!
    You should be very proud, as I am at being a part of such a prestigious group.

    2/4 3rd Mar Div Fox co

  • Mark From Bristol May 21, 2016, 10:40 pm

    I’m most surprised that given it’s record as the most reversed court by the U.S. Supreme Court, that the Ninth Circus Of Appeals got one correct. This world REALLY IS upside down and this proves it. I’m grateful for their ruling, but it’s almost unbelievable.

    • Mark N. May 22, 2016, 1:43 am

      The Ninth is the “most reversed” for two reasons: 1. It is by far the busiest circuit, and thus just on odds it will be reversed more often, and 2. Being the biggest and busiest means it gets many cutting edge cases, and those, again by the odds, are more likely to be reversed. Yes, there is a definite liberal bias on among the 26 judges, but that is not typically the reason for the reversals.

  • loupgarous May 20, 2016, 6:31 pm

    The most encouraging thing about this ruling by one of the most activist, left-leaning Circuit Courts in the Federal system is the majority opinion writer’s setting all enumerated Constitutional rights on the same footing – that setting what Obama calls “common sense” restrictions on the exercise of ANY enumerated right is equally wrong, First Amendment, Second Amendment, Third, Fourth, Fifth, and on down the Bill of Rights.

    This is new territory for the Ninth Circuit, aggressively defending Second Amendment rights, but their point’s obvious to anyone who can read and has read the historical documents surrounding the passage and ratification of the Bill of Rights – they were not written to be constrained or infringed on, but as hard guarantees of individual rights and to rigidly circumscribe the rights of future lawmakers to withhold those rights from future generations of Americans.

    • Mark N. May 22, 2016, 1:52 am

      ACtually it is not. The majority opinion was prepared by Judge O’Scannlain, who also drafted the original majority opinion if Peruta v. Gore (San Diego Sheriff), which concluded that an applicant for a CCW (open carry in urban areas of California having been banned) need not show “good cause” to support issuance. In the California system, the “good cause” requirement is subject to interpretation by each separate County Sheriff, and in San Diego, as well as almost all coastal areas, “good cause” is defined to mean a special reason (specific threats or specific business related reasons) different from that of the average citizen that cannot be met by the police. In English, that means no issue or virtual no issue in most urban areas. O’Scannlain concluded that the only “good cause” needed to carry a gun in public was the desire to do so, and that the narrow construction imposed by Gore (and others) amounted to denying the average citizen the right to bear arms. (Unfortunately, that decision was taken up en banc, argued last June, and we are still waiting for a decision from a panel heavily weighted with liberals who are appalled by the thought of ordinary citizens carrying guns in public.) This opinion is a continuation of his stalwart defense of the 2A.

      • loupgarous June 2, 2016, 4:21 pm

        Thanks for correcting me. May your tribe and Judge O’Scannlain’s increase.

      • DIYinSTL June 3, 2016, 10:45 am

        O’Scannlain would be my nominee for the supreme court. In addition to his decisions being in support of “the right[s] of the people” they are impeccably written with and with flawless logic.

  • Tom May 20, 2016, 3:16 pm

    An argument I do not see explored is the following. POTUS (not singling him as only anti – gun person, but just an example) has frequently stated he wishes more effective gun controls to protect our children. Now, I do not wish to continue seeing innocent people dying by firearm, knife, explosives, etc. If firearm controls are to protect the young and/or innocent, what about controls on: Tobacco products which cause an estimated 50,000 deaths per year. How many children have their health put at risk by living with second hand smoke? Alcohol, a factor in nearly 10,000 auto accident deaths per year! Hospital medical errors cause more deaths annually than cancer and heart attacks COMBINED! I do not hear anyone extending the protect our children argument to Tobacco and Alcohol! Of course, we all know that argument would get nowhere against the tobacco/alcohol lobby groups. Finally, illegal drug use is a fine example of laws deterring certain activities. We all know restrictive gun laws would NOT prevent criminal firearm acquisition!

  • Larry May 20, 2016, 12:34 pm

    For the Ninth Circuit to side with the US Constitution & especially the Second Amendment is a rare thing indeed. It’s almost a direct sign of the apocalypse being right around the corner & heading this way.

    • Methadras May 20, 2016, 6:22 pm

      That may be a rare thing indeed. However, getting compliance from any of these counties is going to be impossible. They will not comply, they will fight tooth and nail to stop any exercise of 2A rights. Period.

  • Ymmot May 20, 2016, 12:25 pm

    ALL GUN LAWS ARE UNCONSTITUTIONAL THE RESTRICT LAW ABIDING CITIZENS, PERIOD!

  • WiscoGunner May 20, 2016, 11:10 am

    The fact that a “lower court” would rule that there were already enough gun stores to satisfy some imaginary quota of “gun need” is bizarre and very unsettling. This is a perfect example of the courts legislating rather than respecting and upholding the law and our Constitutional rights. I know this is becoming a tired expression, but: What part of the 2nd Amendment’s declaration that the right to keep and bear arms SHALL NOT BE INFRINGED do these radical judges not understand? When a judge makes a ruling that is outright and obviously in direct conflict with the Constitution the judge has taken a sworn oath to defend and uphold, that judge should be immediately removed from his or her position and banned from ever holding a judgeship again. Period. We are becoming a federation of banana republics with mini dictators running the lower courts and getting away with far too much. It has to stop!

    • Steven May 20, 2016, 1:30 pm

      Your on the right track but eliminating certain judges, is the 2nd & moot step if the issue is nipped in the bud with the legislators, state law makers or 1st,.. where this started w/counsel members city/county, who take an oath also. But forced this to go not to just 1 court but several. Those elected & some appointed officials started the whole thing & instead of conceding when called on it,.. they used tax payers $ to fight it. They should be required to repay all costs , including their salary during the time they enacted said ordinance. Then of course be fired for cause charged with violation of duty, even treason, & some other shit.

    • Tom May 20, 2016, 2:56 pm

      POTUS also swears an oath to “protect and defend the Constitution from all enemies, foreign and domestic.” That has sometimes been ignored by the Executive Branch whose Constitutional function is to enforce all laws!

  • Ralph May 20, 2016, 10:32 am

    This is a ‘heart warming’ report of a valiant effort on the part of too few people. I can only imagine the ‘cost’ in time, effort and money to win this battle? The State of CA as well as Alameda County has unlimited funds when it comes to liberal issues like this. We just don’t have a ‘level playing field’ when it comes to law suits. Those with the means usually win!

    I urge others to consider the one possible solution that no in the in government nor the media has mentioned nor proposed. The proposal is quite simple, actually. Simply put, when a civil law suite is implemented and settled in any Court, the loser pays all costs and legal fees. This way, there would be a considerable reduction in “frivolous law suites because most attorneys would advise their client not to pursue this course of action if their odds were not in favor of them winning. Secondly, Plaintiffs would not ‘jump into a lawsuit’ every time they pricked their finger when facing not only their own costs but the Defendant’s cost as well. Thirdly, the defendant could and would retain a top notch defense if their costs were born by the loser in the suit. Lastly but not least, guilty defendants would be more anxious to settle “out of court” if faced with the larger ‘pay out’!

    • Mark N. May 22, 2016, 1:55 am

      Um, maybe you didn’t notice, but the defendant in this case was the County of Alameda, the plaintiff was a gun store owner, and the plaintiff lost in the trial court. Leaving that aside, in civil rights litigation, the rule is, at least on paper, that loser pays, but in practice, only a losing (public entity) defendant pays.

  • Terry Stephens May 20, 2016, 10:22 am

    I visited my local gun store yesterday, and it has been in busines for but two years. They are finally making a decent living, and now, 10 more restrictive proposals passed the senate floor here in California. $50 purchasers license for purchase of ammunition. Shop owners, another license to purchase, frequency restrictions on purchase of ammo, on and on. Long gun restricyions outlawing “push button release mechanisms” , confication of magazines over 10 rounds, etc.Do the rest of you out there see what is going on here ? Outright confiscation of all firearms is the intent, and NOW is the time to change politicians, change our thinking to accept that our rights are being stripped from us, and we are being criminalized. As always, the lawyers will be the big winners. Think before you vote, and don’t for a minute assume that one of the candidates is intent on subjugating all of us who own guns.

    • Mark N. May 22, 2016, 2:06 am

      The $50 fee (with background check) is not a law passed in the Senate, but a ballot proposition (promoted by Lt. Governor Newsome) on the ballot for the November election. There are no frequency restrictions in either Newsome’s ballot proposition, nor in the law passed in the Senate earlier this week. However, both proposals require a instant background check at the time of purchase (a NICS check under the Newsome proposal, a check against the State’s prohibited persons list), and Newsome’s does require reporting of ammo purchases to the DOJ. Both criminalize importation of out of state ammo, unless the sale is processed by a licensed ammo vendor. Which means your on line purchases have to be shipped to a gun store, where the licensee will charge you $10 to do the required paperwork. Or more. Governor Brown vetoed a similar bill in 2013 (but can’t veto Newsome’s proposal). There are three different “assault weapons” bans, two are the same (one Senate and the other in the Assembly), and a third would ban ALL semiauto centerfire rifles not curios and relics or antiques. Brown has vetoed similar legislation in the past. There is also a bill to require that serializing of all 80% lowers prior to a build (and including a background check), which law would be retroactive to force the serializing and registration of all existing lowers as “assault weapons.” “Assault weapons” may not be sold or transferred, nor advertised for sale, in the state, including transfers on death, and must be removed from the state or turned in to the police. Death by attrition.

  • Hockeyboy May 20, 2016, 9:55 am

    What part of “Shall not be infringed” is so very difficult for anyone to understand. Surprised these, so called “educated” folk, have so much trouble with four (4) English words.

    Molon Labe!

  • Marcelino May 20, 2016, 8:25 am

    Maybe they’re feeling the drift of what’s coming in November.

  • Blasted Cap May 20, 2016, 7:15 am

    Might have gone over their heads as well to SCOTUS. Then the 9th circuit would have got their fannie’s smacked like Massachusetts did a few weeks ago.

  • Altoids May 20, 2016, 7:00 am

    Hard to believe this came from the ninth circuit, the most left leaning of all appeals courts. Never expected honest from them. There has to be a catch.

    • Ralph May 20, 2016, 10:08 am

      They must be getting ready for re-election! Oh, forgot judges are there for what ever it is (too long)!

      • Mark N. May 22, 2016, 2:07 am

        Federal judges are appointed for life.

  • Alpine Rodeo May 20, 2016, 3:28 am

    Just tickled to see a report of justice finally being recognised in the “Golden State”. A true reward for perciverance. That they stayed in the fight must have been very costly. I cheer the store keepers, legal folks. Praise to you for not folding and hope for your service and economic success. A black eye to the liberal asses. Yippee!!!

  • Elizabeth Hanson May 19, 2016, 7:09 pm

    As a CA resident I am not at all surprised that this happened. The state is probably the worst violator of the 2nd amendment. I am glad that our rights were defended.

    • William May 20, 2016, 9:30 am

      As someone who lives in the Deep South, I just can’t understand why California is the way it is politically. It has been a long time in the making; what caused it?

      • Ralph May 20, 2016, 10:09 am

        People like Gov. Jerry Brown!

        • Besu May 20, 2016, 10:52 am

          Wrong. Brown is merely 1 of the symptoms of the problem with CA. It’s the people living in the very populous liberal areas who drive CA politics.

        • Elizabeth Hanson May 24, 2016, 2:26 pm

          None of my friends like Gov Jerry Brown!

      • rt66paul May 20, 2016, 11:19 am

        What caused this is too many dummies with money(movie stars) who are in their own little world and the people that listened to them, as well as all the computer money. There are too many people here that have blinders on. It got bad here before the Clintons wanted to set policy. The public places to shoot looked like ahe end of the world. People towing cars out to blow up, you could hear automatic weapon fire every day and it was very unsafe. Any sane gun owner would be amazed at the actions of a few. The crack epidemic allowed the gangs unlimited money to fight with one another, in the hood, you could hear automatic weapon fire at night, it just got too crazy. The people there got fed up and just voted for anything that might stop it.
        I think that if gun groups would reach out to the good people in the hood and show tham how gun laws are prejudgicial against them, that they can protect themselves from thugs and get the police on board to be part of the community, it might change. The militarization of the police is not doing anything to help.

        • Mark N. May 22, 2016, 2:19 am

          You mean movie stars like Ronald Reagan? (After all, it was he who signed the law banning the open carry of loaded firearms in 1968.) Or what about Schwarzenegger? (He signed the ban on .50 BMGs, because terrorists might use them to shoot down airliners.)

          • DIYinSTL June 3, 2016, 10:55 am

            Ronnie also signed the Firearms Owners Protection Act of 1986 that, with the Hughes Amendment, banned all new automatic weapons from civilian ownership.

  • DRAINO May 19, 2016, 10:36 am

    ” Like bookstores, newspapers, or houses of worship, there is no such thing as “enough” gun stores. ”
    All I can say is….AMEN, Brother!!!

    • mtman2 May 20, 2016, 8:58 am

      Yeah- what happened to “CHOICE” ?
      Seems that only applies to murdering the innocent ~!

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