John Teixeira v. County of Alameda
2017 U.S. App. LEXIS 19795
9th Cir.2017Background
- Plaintiffs (Teixeira and partners; plus institutional plaintiffs) sought to open a full-service gun store in unincorporated Alameda County and applied for a Conditional Use Permit (CUP).
- Alameda County CUP ordinance requires firearm retailers to be at least 500 feet from residences, schools/day-care, liquor establishments, and other gun stores; CUP also requires public-need and safety findings.
- County planning staff concluded the proposed site failed the 500-foot rule; the Zoning Board granted a variance but the Board of Supervisors sustained an appeal and revoked the CUP.
- Plaintiffs sued alleging violations of the Second Amendment (both on behalf of customers and as a commercial seller), due process, and equal protection; lower courts dismissed; panel had reversed on Second Amendment standing grounds, leading to this en banc review.
- The Ninth Circuit majority held plaintiffs failed to plausibly allege that Alameda residents are meaningfully impeded from acquiring firearms and held the Second Amendment does not independently confer a freestanding right for proprietors to sell firearms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alameda’s zoning ordinance meaningfully burdens residents’ Second Amendment right to acquire firearms | Teixeira: the 500-ft rule effectively bans new gun stores in unincorporated county areas, burdening residents’ access to purchase, training, and services | County: residents can still acquire firearms in-county (multiple existing retailers, Big 5 ~600 ft away); ordinance regulates location, not an acquisition ban | Held: Plaintiffs failed to plausibly allege a meaningful/inhibiting burden on residents’ ability to acquire firearms; dismissal affirmed |
| Whether the Second Amendment protects a proprietor’s freestanding right to sell firearms | Teixeira: even if customers can buy elsewhere, proprietors have a right to open gun stores that the ordinance frustrates | County: Heller preserved laws imposing conditions on commercial sales; Second Amendment protects private ownership/use, not an independent commercial-seller right | Held: Textual and historical analysis shows no freestanding Second Amendment right to sell firearms; commercial-sale restrictions fall outside the Amendment’s core |
| Whether restrictions on firearm-related training/services are covered by Second Amendment protection | Teixeira: his business would offer training, gunsmithing, licensing help—ancillary to the right to keep and bear arms | County: ordinance regulates "firearm sales" only and does not bar training or ranges; alternatives exist | Held: Ordinance does not target training; plaintiffs fail to state a claim that training access was meaningfully impeded |
| Pleading/standing requirements for a commercial actor asserting third-party Second Amendment rights | Teixeira: as a prospective seller he has derivative standing to assert customers’ acquisition rights | County: plaintiffs did not plead facts showing county-wide or unincorporated-area deprivation; mere allegation of inconvenience insufficient | Held: Derivative standing exists but complaint lacked factual allegations showing meaningful impairment to customers; Twombly/Iqbal dismissal appropriate |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual right to possess firearms for self-defense in the home; preserved certain longstanding commercial regulations)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation of Second Amendment against the states; reaffirmed Heller caveats)
- Jackson v. City & Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014) (ammunition-sale restriction implicated core Second Amendment rights by affecting acquisition; intermediate scrutiny applied)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (range bans burden the right to maintain firearms proficiency; ancillary rights may be protected)
- United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (if a law burdens conduct outside the Second Amendment scope inquiry ends)
- Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (Second Amendment does not protect right to carry concealed firearms in public; scope analysis informs scrutiny)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (two-step Second Amendment framework: historical scope then level of scrutiny)
- Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (upholding regulation of firearms display at gun shows; Heller’s preservation of commercial-sale regulation noted)
- Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014) (analysis focused on burden to residents’ acquisition rights when sales were effectively banned)