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, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574–626 (2008). The Supreme Court has not yet clarified the entire field of Second Amendment jurisprudence, however, and given that there is an individual right to bear arms for self-defense, there is a growing split in the nation’s lower courts about whether gun sellers have Second Amendment rights.

What, if anything, does this divide have to do with land use?

On May 16, 2016, in Teixeira v. County of Alameda (No. 13-17132), a three judge panel of the of the Ninth Circuit addressed whether the right to bear arms applies to a municipality’s exercise of its police power to regulate gun stores near residentially zoned land. The County zoning ordinance requires a conditional use permit for any firearms sales businesses. A firearms sales CUP requires that six findings be made, including that the premises of any firearms seller is not within 500 feet of residentially zoned land.

The County’s zoning board approved a CUP for a retail business led by John Teixeira that would provide firearm training, gun-smith services, and sell guns, ammunition, and gun-related equipment. A homeowners’ group challenged the issuance of the CUP and the County Board of Supervisors sustained the appeal, thus revoking the CUP.

Teixeira filed suit in the Northern District of California alleging that the County’s action violated the Equal Protection Clause of the Fourteenth Amendment and the Second Amendment. The District Court approved the County’s motion to dismiss for failure to state a case upon which relief can be granted.

The Ninth Circuit held that Teixeira’s equal protection claim was not viable under the Equal Protection Clause because when there is a challenge based on an enumerated right, such as the Second Amendment, constitutional issues are best resolved under the specific doctrines for that right rather than under the general doctrines for issues such as equal protection. The court also held that Teixeira failed to plead a “class-of-one” Equal Protection Clause claim because he did not identify a similarly situated business to show that he had intentionally been treated differently and that there was no rational basis for the different treatment.

The Ninth Circuit then engaged in a detailed analysis of Teixeira’s Second Amendment claim, which turned on a two-part inquiry that first considered whether the County’s ordinance burdens conduct the Second Amendment protects. Second, if the conduct is protected, the court applies the appropriate level of scrutiny.

The Ninth Circuit began by reasoning that history and logic both support the right to acquire weapons for self-defense. Addressing history, the court wrote that our forefathers recognized that a prohibition of firearms in commerce undermined the right to keep and bear arms. Moreover, in ratifying the Second Amendment, the states wanted to codify the English right to keep and bear arms. And the historical record indicates that Americans believed that such a right included the freedom to buy and sell weapons.

In addition, the Ninth Circuit reasoned that logic compels the inference that the right to keep arms necessarily includes the right to purchase them:

If “the right of the people to keep and bear arms” is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well. The Supreme Court recognized this principle in [various] contexts . . . One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it . . . .”

Although regulations that interfere with constitutionally protected rights are usually subjected to some form of heightened scrutiny and require the government to justify the burden it has placed on such a right, Heller recognized that certain regulations—such as prohibitions on possession of forearms by felons, laws prohibiting carrying of firearms in sensitive places such as schools, or imposing conditions and qualifications on the commercial sale of firearms—enjoy more deferential treatment. Because such regulations have longstanding acceptance, they are not subjected to heightened scrutiny.

To avoid heightened scrutiny, Alameda thus had the burden to show that its ordinance is the type of regulation that Americans, at the time of the adoption of the Second Amendment, would have recognized as a permissible infringement of a traditional right. The County did not meet that burden. Moreover, the Ninth Circuit reasoned that because the nation’s first comprehensive zoning law was enacted in 1916, that fact is at least some evidence that the County’s CUP requirement is not within a longstanding class of historical prohibitions or regulations.

That reasoning does not mean, however, that the County’s ordinance violates the second amendment. Rather, it means the ordinance must be subject to some form of heightened scrutiny. The Ninth Circuit noted that the U.S. Supreme Court has not yet determined the appropriate level of scrutiny for Second Amendment challenges. The District Court determined that Alameda’s CUP ordinance was not within the scope of the Second Amendment and warranted only rational basis review. Under that low-level review, the District Court simply accepted the County’s assertion that gun stores increase crime in their vicinity.

Drawing on First Amendment principles, however, the Ninth Circuit thus determined that intermediate scrutiny applies, which requires first that the government’s stated objective to be significant, substantial, or important, and second that there be a reasonable fit between the challenged regulation and the stated objective. Applying intermediate scrutiny to the County’s CUP ordinance, a two judge split of the Ninth Circuit panel reversed the District Court’s dismissal and remanded for the lower court to subject the County’s 500-foot rule to the proper level of scrutiny.

In remanding the case to the District Court, the Ninth Circuit made clear that the County’s CUP ordinance may very well be permissible. The Ninth Circuit put the County on notice, however, that it must justify the burden it has placed on the right of law-abiding citizens to purchase guns.

The dissenting judge concurred with the panel’s dismissal of Teixeira’s equal protection claim but agreed with the District’s Court’s dismissal of the Second Amendment claim on that basis that the County’s CUP requirement is merely a law imposing conditions and qualifications on the sale of firearms.

According to the dissent:

“When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge.

. . .

[T]he first amended complaint does not explain how Alameda County’s zoning ordinance, on its face or as applied, impairs any actual person’s individual right to bear arms, no matter what level of scrutiny is applied. Instead, the first amended complaint alleges that would-be buyers are entitled to the enhanced customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy, but it is not a constitutional right. What’s more, the Supreme Court specifically held in Heller that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.

Conspicuously missing from this lawsuit is any honest-to God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby. The district court was right on target in dismissing the plaintiffs’ zoning case for failure to state a Second Amendment claim, because the district court correctly ruled that the ordinance restricting the location of a gun store is “quite literally a ‘law[] imposing conditions and qualifications on the commercial sale of arms.”

The majority rejected that approach:

“The dissent does not share our concern over Alameda County’s attempt to restrict the ability of law-abiding Americans to participate in activity protected by the Second Amendment. According to the dissent, there is no constitutional infirmity so long as firearm sales are permitted somewhere in the County. We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. 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?’

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 . . . Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.”

While the ultimate outcome in Teixeira v. Alameda will be decided on remand or on subsequent appeal of another District Court decision, the principles the Ninth Circuit established are noteworthy and important. Municipalities that apply discretionary permitting requirements to firearms sellers would be wise to carefully examine their regulations and consider the evidence they have to justify the burdens such regulations may place on Second Amendment rights.