Lead Opinion
Concurrence by Judge Owens;
Pаrtial Concurrence and Partial Dissent by Judge Tallman; Dissent by Judge Bea
OPINION
The County of Alameda seeks to preserve the health and safety of its residents by (1) requiring firearm retailers to obtain a conditional use permit before selling firearms in the County and (2) prohibiting firearm sales near residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores. The individual plaintiffs in this case, John Teix-eira, Steve Nobriga, and Gary Gamaza (collectively, “Teixeira”), wished-to open a gun shop but were denied, a conditional use permit because the proposed location of their gun shop fell within a prohibited zone. Teixeira challenges the Countys zoning ordinance, alleging that by restricting his ability to open a new, full-service gun store, the ordinance infringes on his Second Amendment rights, as well as those of his potential customers.
Teixeira has not, however, plausibly alleged that the County’s ordinance impedes any resident of Alameda County who wishes'to purchase a firearm from doing so. Accordingly, he has failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. And, we are convinced, Teixeira cannot state a Second Amendment claim based solely on the ordinance’s restriction on his ability to sell firearms. A textual and historical analysis of the Second Amendment demonstrates that the Constitution does riot confer a freestanding right on commercial proprietors to sell firearms. Alameda County’s zoning ordinance thus survives constitutional scrutiny.
I. Background
A.'
In the fall of 2010, Teixeira, Nobriga, and Gamaza formed a partnership, Valley Guns and Ammo, with the intention of opening a gun store in Alameda County, California. After conducting local market research among gun enthusiasts, Teixeira concluded that there was a demand for a full service gun store in an unincоrporated area of Alameda County called San Lorenzo, near the incorporated city of San Lean-dro. In .response to this demand, Teixeira intended to open a specialty shop that would sell new and used firearms and ammunition and would also provide gun repairs, gun smithing, appraisals, and training and certification in firearm safety.
Teixeira 'contacted the Alameda County Planning Department for information as to any land use or other permits necessary to open a gun store in unincorporated areas of the County.
The County informed Teixeira that’to receive a Conditional Usé Permit for his proposed gun store, he also had to comply with Alameda County Ordinance Section 17.54.131 (the “Zoning Ordinance”). That ordinance requires, among other things, that businesses selling firearms in unincorporated areas of the County be located at least five hundred feet away from any of the following: schools, day care centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts.
Based on this guidance, Teixeira identified a suitable rental property at 488 Le-welling Boulevard in unincorporated Alameda County.
Teixeira then applied to the Alameda County Community Development Agency for a Conditional Use Permit for his planned store. Staff of the Alameda County Community Development Agency Planning Department (“Planning Department”) prepared a report for the West County Board of Zoning Adjustments (“Zoning Board”) on Teixeira’s application. The staff report made the following findings: there was a public need for a licensed firearms dealer; the proposed use was compatible with other land uses and transportation in the area; and a gun shop at the proposed site would not adversely affect the health or safety of persons living and working in the vicinity. The staff report also found, however, that the site of the proposed gun shop did not satisfy the Zoning Ordinance’s distance requirements, because it was approximately 446 feet from two residential properties in different directions. The staff report’s distance calculation was based on measurement from the closest exterior wall of the proposed gun shop to the property lines of the disqualifying properties. The staff report thus recommended denying Teixeira’s permit application.
‘ The Zoning Board held a public hearing on Teixeira’s Conditional Use Permit application. Teixeira appeared at the hearing and offered testimony in support of his applicatiоn; neighborhood residents also appeared, some testifying in support of the application and others in opposition.
After the hearing, the Planning Department issued a revised staff report. That report acknowledged the ambiguity in the Zoning Ordinance regarding how the 500 feet should be measured for the purpose of determining compliance. The report nevertheless concluded that the proposed gun store location was less than 500 feet from the property line of the closest residentially zoned district, whether measured from the exterior wall, front door, or property line of the proposed gun shop.
Notwithstanding this recommendation, the Zoning Board passed a resolution granting Teixeira a variance from the Zoning Ordinance and approving his application for a Conditional Use Permit. The Zoning Board concluded that a gun shop at the proposed location would not be detrimental to the public welfare and warranted a variance in light of the physical buffer created by a major highway between the proposed site and the nearest residential district. The Zoning Board also determined that there was a public need for a licensed firearms, retailer in the neighborhood.
Shortly after the County granted Teix-eira’s permit application, the San Lorenzo Village Homes Association filed an appeal challenging the Zoning Board’s resolution. Acting through three of its members, the Board of Supervisors voted to, sustain the appeal, overturning the Zoning Board’s decision and revoking the Conditional Use Permit.
After the permit was revoked, Teixeira alleges, he was unable to identify any property in unincorporated Alameda County that sаtisfied the ordinance’s 500-foot rule and was otherwise suitable—in terms of location, accessibility, building security, and parking—for a gun shop. Teix-eira later commissioned a study to analyze the practical implications of the Zoning Ordinance for opening a gun store in unincorporated areas of the County. The study found it “virtually impossible to open a gun store in unincorporated Alameda County” that would comply with the 500-foot rule “due to the density of disqualifying properties.”
B.
Joined by institutional plaintiffs The Calguns Foundation, Inc., Second Amendment Foundation, and California Association of Federal Firearms Licensees, Inc., Teixeira filed a complaint in federal district court challenging the Board of Supervisors’ decision to deny him a variance and Conditional Use Permit. The challenge was premised on due process, equal protection, and Second Amendment grounds, and alleged violations of Teixeira’s own rights as well as those of his prospective customers. Alameda County filed a motion to dismiss the complaint for failure to state a claim, which the district court granted, with leave to amend; Teixeira also filed a motion for a preliminary injunction, which the district court denied. The plaintiffs thereupon filed an amended complaint, which the district court likewise dismissed for failure to state a claim, this time without leave to amend.
A three-judge panel of this court affirmed the district court’s dismissal of Teixeira’s Equal Protection Clause claims but reversed the district court’s dismissal of Teixeira’s Second Amendment Claims, remanding for further proceedings.
II.
A.
The Second Amendment 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.” U.S. Const, amend. II. As interpreted in recеnt years by the Supreme Court, the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller,
After Heller, this court and other federal courts of appeals have held that the Second Amendment protects ancillary rights necessary to the realization of the core right to possess a firearm for self-defense. For example, we held in Jackson v. City and County of San Francisco,
Similarly, in Ezell v. City of Chicago (“Ezell I”), the Seventh Circuit held that an ordinance banning firearm ranges within the city of Chicago was not categorically unprotected by the Second Amendment and so demanded constitutional scrutiny.
As with purchasing ammunition and maintaining proficiency in firearms use, the core Second Amendment right to keep and bear arms for self-defense “wouldn’t mean much” without the ability to acquire arms. Id.] see Jackson,
We need not define the precise scope of any such acquisition right under the Second' Amendment to resolve this case. Whatever the scope of that right, Teixeira has failed to state a claim that the ordinance impedes Alameda County residents from acquiring firearms.
B.
“[V]endors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren,
But Teixeira did not adequately allege in his complaint that Alameda County residents cannot purchase firearms within the County as a whole, or within the unincorporated areas of the County in particular. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege in the complaint “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
The operative complaint does not meet this standard with regard to whether residents can purchase guns in the County— or in unincorporated areas of the County— if they choose to do so.
Whatever the standard governing the Second Amendment protection accorded the acquisition of firearms,
Ezell v. City of Chicago (“Ezell II”),
The closest Teixeira comes to stating a claim that his potential customers’ Second Amendment rights have been, or will be, infringed is his allegation that the ordinance places “a restriction on convenient access to a neighborhood gun store and the corollary burden of having to travel to other, more remote locations to exercise their rights to acquire firearms and ammunition in compliance with' the state and federal laws.” But potential gun buyers in Alameda County generally, and potential gun buyers in the unincorporated areas around San Lorenzo in particular,, do have access to a local gun'store just 600 fеet from where Teixeira proposed to locate his store. And if the Big 5 Sporting Goods store does not. meet their- needs, they can visit any of the nine other gun stores in the County as a whole, including the three other gun stores in the unincorporated parts of the County.
In any event, gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained. See Second Amendment Arms v. City of Chicago,
We recognized a similar principle in Jackson. After recognizing that San Francisco’s ban on the sale of certain particularly lethal ammunition did regulate conduct within the scope of the Second Amendment, we held that the regulation burdened the core right only indirectly, in part because handgun owners in San Francisco could freely obtain the banned ammunition in other jurisdictions and keep it for use within city limits. Jackson,
Moreover, Teixeira does not make any allegations about how far his potential customers currently travel to purchase firearms, or how much the proposed store would shorten travel distances, if at all, or for whom. Nor does Teixeira make any argument as to what distance necessarily impairs Second Amendment rights.'
In sum, based on the allegations in the complaint, Teixeira fails to state a plausible claim on behalf of his potential customers that the ordinance meaningfully inhibits residents from acquiring firearms within their jurisdiction.
In short, because the allegations in the complaint, read in light of the attachments and judicially noticeable information about the population and geography of Alameda County, do not plausibly raise a claim of entitlement to relief, the district court properly dismissed at the pleadings stage Teixeira’s claim that the ordinance infringes the Second Amendment rights of his potential customers. See Twombly,
C.
Teixeira also fails to state a claim for relief insofar as he alleges that the ordinance interferes with the provision of ancillary training and certification services in Alameda County. Teixeira maintains that existing firearm retail establishments in Alameda County do not meet “customer needs and demands” with respect to personalized training and instruction in firearms safety and operation, services Teix-eira planned to provide.
The claim that the ordinance burdens his potential customers’ Second Amendment rights to obtain necessary firearms instruction and training is belied by the ordinance itself. The Zoning Ordinance limits the location of premises conducting “firearm sales.” Alameda Cty., Cal., Code § 17.54.131. It does not concern businesses providing firearms instruction and training services. Accordingly, the Zoning Ordinance would pose no obstacle if Teixeira wanted to open a business at the proposed site on Lewelling Boulevard to proride firearms instruction and training.
This case is therefore entirely unlike the Ezell cases. The ordinance in Ezell I expressly banned publicly accessible firing ranges in the entire city of Chicago.
No such interference can be shown in this case, as the ordinance restricts the location of firearm sales,. not training. Teixeira thus fails to state a. Second Amendment claim related to' the provision of ancillary firearms training and certification services.
D...
Teixeira also suggests that, independent of the rights of his potential customers, the Second Amendment grants him a right to sell firearms. In other words, his contention is that even if there were a gun store on every square block in unincorporated Alameda County and therefore prospective gun ' purchasers could buy guns with exceeding ease, he would still have a right to establish his own gun store somewhere in the jurisdiction. He alleges that the Zoning Ordinance infringes on that right by making it virtually impossible to open a new gun store in unincorporated Alameda County.
We apply a two-step inquiry to examine Teixeira’s claim. See Chovan,
If we conclude that the ordinance imposes no “burden on conduct falling within the scope of the Second Amendment’s guarantee ... our inquiry is complete,” United States v. Marzzarella,
At the first step of the inquiry, “determining the scope of the Second Amendment’s protections requires a textual and historical analysis of the amendment.” Chovan,
The Supreme Court in Heller was careful so to caution, even while striking down a statute banning handgun possession in the home: “[N]othing in our opinion should be taken to. cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms.”
Heller’s assurance that laws imposing conditions and qualifications on the commercial sale of firearms are presumptively lawful makes us ‘skeptical of Teixeira’s claim that retail establishments can assert an independent, freestanding right to sell firearms under the Second Amendment. The language in Heller regarding the reg-uMion of “the commercial sale of arms,” however, is sufficiently opaque with regard to that issue that, rather than relying on it alone to dispose of Teixeira’s claim, we conduct a full textual and historical review.
i. Text
We begin with text of the Second Amendment. See Heller,
After its introductory language,
The operative language—“keep” and “bear”—confirms that focus. As Heller observed, “the most natural reading of ‘keep Arms’ ... is to ‘have weapons.’ ” Heller,
Second- Amendment analogues in state constitutions adopted during the founding period likewise expressly refer to the right of. the people to .bear arms, nowhere suggesting in their text that the constitutional protection extends to those who would engage in firearms commerce. See, e.g., Pa. Declaration of Rights, § XIII (1776) (“That the people have a right to bear arms for the defence of themselves and the state .... ”); Mass. Const,, Pt. First, art. XVII (1780) (“The people have a right to keep and to bear arms for the common defence.”); Ky. Const., art. XII, § 23 (1792) (“That the right of the citizens to bear arms in defence of themselves and the State shall not. be questioned.”); Ohio Const., art. VIII, § 20 (1802) (“That the people have a .right to bear arms for the defence of themselves and the State ....”).
ii. The Right to Bear Arms in Britain and Colonial America
The historical record confirms that the right to sell firearms was not within the “historical-understanding "of the scope of the [Second Amendment] right.” Jackson,
We begin with a provision of the 1689 English Bill of Rights “long ... understood to be the predecessor to our Second Amendment.” Heller,
St. George Tucker, in the “most important early American edition of Blackstone’s Commentaries,” Heller,
Blackstone’s and Tucker’s commentaries indicate that both recognized the right to bear arms in England to have been held by individual British subjects as a means to provide for the preservation -of personal liberties. Neither of these authoritative historic accounts states or implies that the English Bill of Rights encompassed an independent right to еngage in firearms commerce.
As many historians and courts have observed, the right to bear arms remained important in colonial America. “By the time of the founding, the right to have arms had become fundamental for English subjects.” Heller,
As scholars have noted, in light of the dangers the colonies faced, “[t]he emphasis of the colonial governments was on ensuring that the populace was well armed, not on restricting individual stocks of weapons.” Malcolm, supra, at 140. Historian Saul Cornell has observed that “[i]t would be impossible to overstate the militia’s centrality to the lives of American colonists. For Americans living on the edge of the British Empire, in an age without police forces, the militia was essential for the preservation of public order and also protected Americans against external threats.” Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 13 (2006). Governmental involvemеnt in the provision, storage, and sale of arms and gunpowder is consistent with the purpose of maintaining an armed militia capable of defending the colonies. That purpose was later expressly recognized in the prefatory clause to the Second Amendment.
Notably, colonial government regulation included some restrictions on the commercial sale of firearms. In response to the threat posed by Indian tribes, the colonies of Massachusetts, Connecticut, Maryland, and Virginia all passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians. See Acts of Assembly, Mar. 1657-8, in 1 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 441 (1823); 1 J. Hammond Trumbull, The Public Records of the Colony of Connecticut, Prior to the Union with New Haven Colony, May, 1665, at 49,182 (1850); Assembly Proceedings, February-March 1638/9, in Proceedings and Acts of the General Assembly of Maryland, January 1637/8— September 166k, at 103 (William Hand Browne, ed., 1883); Records of the Governor and Company of the Massachusetts Bay in New England 196 (Nathaniel B. Shurtleff, ed., 1853). At least two colonies also controlled more generally where colonial settlers could transport or sell guns. Connecticut banned the sale of firearms by its residents outside the colony. 1 Trumbull, Public Records of the Colpny of Connecticut, 138-39, 145-46. And under Virginia law, any person found within an Indian town or more than three miles from an English plantation with arms or ammunition above and beyond what he would need for personal use would be guilty of the crime of selling arms to Indians, even if he was not actually bartering, selling, or otherwise engaging with the Indians. Acts of Assembly, Mar. 1675-76, 2 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 336-37 (1823).
As Heller observed, during the 1760s and 1770s, in the face of growing rebellion, thе British Crown sought to disarm the colonies.
The panel majority suggested ■ that the Founders adopted the Second Amendihent in part because of the experience of the British arms embargo. See Teixeira,
Like the British right to bear arms, the right declared in the Second Amendment of the U.S. Constitution was thus “meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.” Thomas M. Cooley, The General Princiрles of Constitutional Law ‘in the United States of America 298 (3d ed. 1898). Early American legislators and commentators understood the Second Amendment and its state predecessors as protecting Americans against tyranny and oppression. They recognized that the availability of arms was a necessary prerequisite to exercising the right to bear arms, as the British arms embargo had made clear. Yet no contemporary commentary suggests that the right codified in the Second Amendment independently created a commercial entitlement to sell guns if the right of the people to obtain and bear arms was not compromised.
These historical materials demonstrate that the,right to.bear arms, under both earlier English law and American law-at the time the Second Amendment was adopted, was understood to confer a right upon individuals to have and use weapons for the purpose of self-protection, at least in the home.
In short, no historical authority suggests that the Second Amendment protects an individual’s right to sell a firearm unconnected to the rights of citizens' to “keep and bear” arms.
We emphasize that in many circumstances, there will be no need to disentangle an asserted right of -retailers to sell firearms from the rights of potential firearm buyers and owners to acquire them, as the Second Amendment rights of potential customers and the interests of retailers seeking to sell to them will be aligned. As we have noted,. firearms commerce plays an essential role today in the realization of the individual right to possess firearms recognized in Heller. But restrictions on a commercial actor’s ability to enter the firearms market may also, as here, have little or no impact on the ability of individuals to exercise their Second Amendment right to keep and bear arms. Teixeira alleges that Alameda County’s zoning ordinance effectively bars him from opening a new gun store in an unincorporated area of the County. But he does not—and, given the number of gun stores in the County as a whole and in the unincorporated areas, as well as the geography of the County and the distribution of people within it, likely cannot
Our conclusion that the Second Amendment does not confer a freestanding right to sell firearms is fully, consistent with Heller, which closely examined the historical record and concluded that, at its core, the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Similarly, in a suit brought by firearms dealers and residents challenging a Chicago ordinance that banned “virtually all sales and transfers of firearms inside the City’s limits,” the District Court for the Northern District of Illinois examined the burden imposed by the sales prohibition on “law-abiding residents who want to exercise their Second Amendment right,” not on firearms dealers. Ill. Ass’n of Firearms Retailers,
Our holding does not conflict with United States v. Marzzarella. Marzzarella cautioned that if there were a categorical exception from Second Amendment scrutiny for all laws imposing conditions on the commercial sale of firearms, “it would follow that there would be no constitutional defect in prohibiting the commercial sale of firearms.”
Finally, Teixeira invokes an analogy to First Amendment jurisprudence for his contention that the Second Amendment independently protects commercial sellers of firearms, suggesting that gun stores are in the same position as bookstores, print shops, and newspapers. The analogy fails. If Teixeira were a bookseller aiming to open up shop in Alameda County, the fact that there were already ten other booksellers indeed would not matter. But he is a gun seller, and for reasons explained below, that changes the constitutional calculus.
First, the language of the Second Amendment is specific as to whose rights are protected and what those rights are, while the First Amendment is not. Compared to the Second Amendment’s declaration, after an announcement of its purpose in the introductory clause, that a right of “the people” to “keep and bear Arms, shall not be infringed,” the First Amendment’s command that “Congress shall make no law ... abridging the freedom of speech, or of the press” is far more abstract. And, whereas the Second Amendment identifies “the people” as the holder of the right that it guarantees, the First Amendment does not state who enjoys the “freedom of speech,” nor does it otherwise specify or narrow the right.
Second, the Supreme Court has long recognized that speech necessarily entails communication with other people—with listeners. See Talley v. California,
Selling, publishing, and distributing books and other written materials is therefore itself expressive activity. Sellers, publishers, and distributors of such materials consequently have freestanding rights under the First Amendment to communicate with others through such protected activity. The Supreme Court so observed in Smith v. California,
The circulation and distribution of expression, in turn, often necessitates retail transactions by booksellers and other merchants, as free speech often isn’t free in the monetary sense. As, the Supreme Court has noted, .“virtually every means оf communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs.” Buckley v. Valeo,
In short, bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment. They . are communicating ideas, thoughts, and other forms of expression to those willing to hear or read them. Unlike gun sellers, they are “not in the position of mere proxies arguing another’s constitutional rights.” Bantam Books, Inc. v. Sullivan,
So, for example,. if Teixeira wanted to sell books and magazines rather than ammunition and magazines, the existence of ten other bookshops in Alameda County— or on a single street in Alameda County— that could sell his potential customers the same material would be irrelevant to his claimed right to distribute and sell books. The First Amendment • grants him the right to speak and disseminate ideas, not merely his customers the right to hear them.
Here, the gun sellers are instead in an analogous position to medical providers in the Fourteenth Amendment context. When medical providers have challenged laws restricting the distribution of contraceptives and provision of -abortions, courts consistently examine whether the challenged laws burden their-patients’’ right to access reproductive health servicеs, not whether the laws burden any putative right of the provider. See Whole Woman’s Health,
As we have demonstrated, the Second Amendment does not independently protect a proprietor’s right to sell firearms,
AFFIRMED.
Notes
. Regulations enacted by California counties are effective only in unincorporated areas,.as city governments exercise regulatory authority within city boundaries. See Cal. Const, art. XI, § 7- ("A county or city-may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”); City of S. San Francisco v. Berry,
. The ordinance provides in relevant part that "no conditional use permit for firearms sales shall issue unless the following additional findings are made by the board of zoning adjustments based on sufficient evidence... (B) That the subject premises is not within five hundred (500) feet of any of the following;- Residentially 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 ;... ” Alameda Cty., Cal., Co.de § 17.54.131.
The ordinance additionally requires that: (1) the proposed district is appropriate for firearm sales activity, (2) the applicant possess all firearms dealer licenses required by federal and state law, (3) the applicant obtain a firearms dealer license from Alameda County before commencing sales, (4) the premises fully comply with applicable building, fire, and other technical codes, and (5) the applicant has provided sufficient detail regarding intended compliance with California penal code requirements for safe storage of firearms , and ammunition at the premises. Id.
. The parties and record variously locate 488 Lewelling Boulevard in San Lorenzo (an unincorporated area of the County), Ashland (another unincorporated area of the County), and San Leandro (an incorporated city in the County). The parties are agreed, however, that the .property; is located somewhere in unincorporated Alameda County.
. Teixeira maintains that thé County informed him that, for purposes of compliance with the 500-foot rule, measurements should be taken from the closest door of the intended store to the front door of any disqualifying property.
. The County rejected Teixeira's suggestion that .the distance should be measured from the. proposed site to the closest door of a dwelling in the residentially zoned district, rather than to the closest property line of a residential district. The ordinance states thаt the property proposed for firearm sales shall not be within five hundred feet of a "[r]esi-dentially zoned district,” 'foreclosing Teix-eira’s proposal that the measurement should be taken from the door of an actual dwelling. See Alameda Cty., Cal., Code § 17.54.131.
. As of 2009, the total population of unincorporated areas of Alameda County was 142,-166, approximately 9% of the total County population of 1,556,657. See Alameda County Community Development Agency, 2009 Population and Housing Estimates for Alameda County and its Cities, Pub. No. 09-10 (May 2009), http://www.co.alameda.ca.us/about/ documents/AlaCtyPopHsng2009.pdf. We take judicial notice of these undisputed facts regarding the County’s population. See Fed. R, Evid. 201(b); Lee v. City of Los Angeles,
. Teixeira did not seek rehearing of the panel’s rejection of his Equal Protection claims. We affirm the district court on that claim for the reasons given in the panel opinion.
. Jackson went on to hold that the prohibition on the sale of hollow-point ammunition "burdened] the core right of keeping firearms for self-defense only indirectly” and insubstantially, because San Francisco citizens were not precluded from using hollow-point ammunition in San Francisco if obtained elsewhere, and because the ordinance applied only to certain types of ammunition.
Jackson also involved a challenge to a San Francisco ordinance that required that handguns be stored in locked containers or disabled with trigger locks when not carried on the person. Jackson,
. .We note that Jackson suggests that the proper inquiry regarding accessibility may not be limited to ,a particular jurisdiction. Jackson held that although San Francisco’s prohibition on the sale of hollow-point ammunition burdens core Second Amendment rights, it does so only indirectly, because a local resident' "is not precluded from using the hollow-point' bullets in her home if she purchases such ammunition outside of San Francisco’s jurisdiction.”
.“In Heller, the Supreme Court did not specify what level of scrutiny courts must apply to a statute challenged under the Second Amendment,” although the Court did “indicate that rational basis review is hot appropriate.” United States v. Chovan,
. Throughout this opinion, when we refer to the complaint, we include the supporting attachments.
, As discussed, supra note 6, the uninсorporated areas of Alameda County are nonconti-guous, and the site Teixeira selected.for his gun shop lies in a small unincorporated area adjacent to incorporated population centers. The site is relatively distant from the less urban, less populated parts ■ of the County.
. The complaint also alleges that current firearms retailers in the area do not “meet customer needs and demands” and do not provide "the level of personal service” that Teixeira’s proposed store would provide. No case supports Teixeira's suggestion that the Second Amendment not only encompasses a right to acquire firearms but guarantees a certain type of retail experience.
In addition, counsel for Teixeira stated at oral argument that Big 5 Sporting Goods does not sell handguns. That allegation is not in the complaint. Moreover, counsel for Teix-eira did not contend that handguns are not available for purchase at other stores in Alameda County.
. Judge Bea’s dissent argues, post at 52, that we misread Chovan by declining to apply constitutional scrutiny to the Ordinance unless it "meaningfully” burdens the Second Amendment rights of would-be gun buyers. Not so. There is no meaningful difference—that is, one that matters—between failing to plead that "the ordinance meaningfully inhibits residents from acquiring firearms within their jurisdiction,” infra, and failing to plead that the ordinance actually or really burdens these residents' Second Amendment rights.
.Teixeira waived his right to amend the complaint. When the district court asked whether he would like an opportunity to amend the pleadings, counsel for Teixeira declined, noting "we have pled the sufficient facts.” Moreover, the attachments to the complaint demonstrate that individuals in unincorporated Alameda County can purchase guns from several retаil outlets, so any allegation that the ordinance poses a meaningful obstacle to acquiring firearms would be implausible.
. The complaint does not address whether Teixeira could open a gun store in an incorporated area, in the vicinity .of the proposed site, nor does it allege that Teixeira has any particular reason for wishing to locate a store in the unincorporated areas of the County (such as proximity to the residence of the .owners). Although a number of Alameda County municipalities regulate the location of firearms sales,' see, e.g., Oakland, Cal.,' Mun, Code § 5.26.070(1), the complaint provides no information as to whether there are viable locations in those municipalities or any others in the County in which a new gun store could be located. Notably, 91% of the County's residents live in incorporated areas, see supra note 6, We need not determine, however, whether the complaint plausibly alleges meaningful interference with Teixeira’s sale of firearms, as we conclude that the Second Amendment does not independently protect the ability to engage in gun sales.
. The introductory clause of the Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State ....” U.S. Const, amend. II. Heller held that this clause “announces the purpose for which the right was codified: to prevent elimination of the militia.”
. Virginia law also provided that all persons were at "liberty to sell armes and ammunition to any of his majesties loyall subjects inhabiting this colony.” Laws of Va., Feb., 1676-77, Va. Stat. at Large, 2 Hening, supra at 403. The liberty to sell arms to-Virginians did not, however, extend to sales to others, and so did hot encompass a freestanding right to sell arms, independent of citizens' right to'acqiiire them.
. We have not decided the degree to which the Second Amendment protects the right to bear arms outside the home. See Peruta,
. The panel majority relied on a 1793 statement by Thomas Jefferson for its conclusion that the. Second Amendment included the freedom to both purchase and sell arms: "[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” Teixeira,
. Again, Teixeira has waived any right to amend his complaint in this litigation, see supra note 15,
. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
. The same principle applies in the Sixth Amendment context. The Sixth Amendment provides a criminal defendant the right to an attorney in criminal proceedings, but does not confer upon any attorney a corresponding right to represent a defendant (much less to do so for a fee).
See Faretta v. California,
. Our conclusion is consistent with the Fourth Circuit’s determination in its unpublished decision in United States v. Chafin,
Concurrence Opinion
concurring:
I join all but Part II,D of the majority opinion. In my view, we need not decide whether the Second Amendment guarantees the right to sell'firearms. It is enough that Heller left intact “laws imposing conditions and qualifications on the commercial sale of arms.” District of Columbia v. Heller,
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority’s decision to affirm the district court’s dismissal of the Second Amendment facial challenge. Majority Op. II. A-C. However, I respectfully dissent from the dismissal of the constitutional- challenge as applied to Teixeira. Majority Op. II. D. The majority’s analysis of the Second Amendment challenge to locating a full-service gun shop in an unincorporated area of Alameda County, which I will call San Lorenzo, - substantially interferes with the right of its customers to keep and bear arms. The impact of this county ordinance on the fundamental rights enshrined in the Second Amendment cannot be viewed in a vacuum without- considering gun restrictions in California as a whole. I fear today’s decision inflicts yet another wound on our precious constitutidnal right.
Teixeira’s facial Second Amendment challenge fails because appellants cannot •demonstrate that the zoning ordinance is unconstitutional in all of its applications. United States v. Salerno,
Teixeira, however, has the better argument on the as-applied challenge. Teixeira alleges that the restrictive zoning rules in the ordinance make it virtually impossible to open a new, full-service gun store in unincorporated Alameda County, and that makes it very difficult for individuals who wish to exercise their Second Amendment rights to obtain, maintain, and comply with the burdensome California state and federal laws which govern acquisition, ownership, carrying, and possession of firearms protected by the Second Amendment. Teixeira should be permitted to engage in further fact-finding to test whether the ordinance meets at least intermediate scrutiny in establishing its challenge.
We have adopted a two-step inquiry: (1) “whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, .. ’ to apply an appropriate level.of scrutiny.” United States v. Chovan,
Under Step Two the appropriate level of scrutiny is determined by examining how closely the law comes to the core of the burdened Sécond Amendment right and the severity of that burden. Choran,
As I read the footnote, “longstanding regulatory measures” refers to congressional measures that regulate the sale of firearms, such as the validity of the Federal Firearms Act, its implementing regulations, and the Bureau of Alcohol, Tobacco, Firearms and Explosives’ historical enforcement of sales, exchanges, and prohibitions on dealing in certain types of firearms and with potential customers. McDonald v. City of Chicago,
Nevertheless, even if we found that the ordinance fell within the Heller categories and was “presumptively lawful,” that presumption is subject to rebuttal. Teixeira should have been permitted to return to the district court to conduct discovery and “rebut, this presumption by showing the regulation does have more than a de min-imis effect upon his [claimed Second Amendment] right.” Heller, v. District of Columbia,
Second, if a law does .not fit within the language of Heller, the court determines if a challenged regulation prohibits conduct that was traditionally protected by the Amendment. Jackson,
But we need not find a freestanding right to sell firearms. Rather, the ability of lawful gun owners to find a reasonably available source to buy, service, test, and properly license firearms is an attendant right to the fundamental right to bear arms.
We found in Jackson that a regulation which “eliminate[ed] a person’s ability to obtain or use ammunition” was subject to heightened scrutiny because it had the potential to make “it impossible to use firearms for their core purpose.”
The ability to acquire guns and ammunition, and to keep them in operable condition, is “indispensable to the enjoyment” of the fundamental right to bear arms as much as access to a shooting range. Ezell v. City of Chicago,
All would agree that a complete ban on the sale of firearms and ammunition would be unconstitutional. History supports the view that the Second Amendment must contemplate the right to sell firearms if citizens are to enjoy the core, fundamental right to own and possess them in their homes. Choran,
In light of the British embargo on the sale of arms in 1774 to prevent the Colonists from resisting the tyranny of King George III, it is understandable that the Framers would want to protect not only the right to bear arms, but correspondingly, the right to sell and acquire them. See David B. Kоpel, How the British Gun Control Program Precipitated the American Revolution, 6 Charleston L. Rev. 286 (2012). Throughout history and to this day the sale of arras is ancillary to the right to bear, arms.
Based upon the Second Amendment’s text and history, the Alameda County ordinance imposes prohibitions that may indeed fall within the scope of Second Amendment protection. Therefore, we must reach Step Two and ask whether the ordinance unduly interferes with the right to acquire and possess firearms for self-defense. So long as the ordinance does not unduly impede that right, it will ultimately pass constitutional muster. But plaintiffs are entitled to try to establish evidence through discovery to support their' plausible claim. Teixeira has stated sufficient grounds, which, if supported by such discovery, may well undermine the nexus between the means chosen and the ends sought when examined under the lens of at least intermediate scrutiny.
Today’s decision perpetuates our continuing infringement on the fundamental right of gun owners enshrined in the Second Amendment. We cannot analyze constitutional rights in a vacuum; instead, we must analyze the totality of the impact of gun control regulations like these—local, state, and federal—in determining how severely the fundamental liberty protected by the Second Amendment is being burdened. In states like California, that burden is becoming substantial in light of continuing anti-gun legislation
Our cases continue to slowly carve away the fundamental right to keep and bear arms. Today’s decision further lacerates the Second Amendment, deepens the wound, and resembles 'the Death by. a Thousand Cuts.
. The complaint concedes and its attachments state that there is at least one such store that has complied with the Alameda County ordinance and sells firearms to county residents, Manzarek v. St. Paul Fire & Marine Ins. Co.,
. I disagree with the majority’s assumption that the existing federally licensed gun stores elsewhere in the county offer the full range of services Teixeira proposed to offer in San Lorenzo. The West County Board of Zoning Adjustments approved a variance for Teix-eira's location and stated that "Unincorporated Alameda County currently has four (4) licensed firearms sales business [sic],” Merely possessing such a license tells us nothing about whether the licensee sells only long guns, handguns, or ammunition. Nor can we tell whether gunsmithing services, training/education classes, a target range, or anything else attends mere possession of the license at each location.
. And it is no answer, as my colleagues suggested in Jackson, that while San Francisco could ban the sale of hollow point ammunition (carried by many law enforcement officers), putative purchasers could simply buy their ammunition elsewhere and bring it back to San • Francisco since it was not illegal to possess hollow point rounds.
. "Our citizens have alwаys been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” Teixeira v. County of Alameda,
. Peruta v. Cty. of San Diego outlines part of California’s “multifaceted statutory scheme regulating firearms.”
Dissenting Opinion
dissenting;
The Second Amendment right to “keep and bear arms” would not mean much unless one could lawfully purchase and use arms. Section 17.54.131 of the Alameda County Ordinance Code (the “Ordinance”) targets firearm stores; it prohibits them within 500 feet of residences.
When a government regulation affects one’s right to purchase and use a firearm, it may be challenged as impeding the exercise of the Second Amendment right. To determine the validity of such a regulation, we turn to Supreme Court and Ninth Circuit precedents for guidance.
Those precedents require we first determine whether the regulation—here, the Alameda ordinance—burdens the right granted by the Second Amendment. If it does, we next examine whether there is a specific governmental interest to be served to justify the burden. If there is, we then measure how severely the right is burdened, to see how much judicial scrutiny into the workings of the regulation is ¡required.
The majority opinion short-circuits this process by making two errors. First, it holds that the Alameda ordinance does not “meaningfully” burden the right to purchase and use firearms because other gun stores are nearby Appellants’ proposed location. Second, it holds that Appellants have no Second Amendment rights to sell firearms. I’ll deal with these two errors in turn.
I.
In rejecting the panel opinion’s conclusion that the Ordinance burdens the right to buy guns, today’s majority does not deny that such a right exists. Rather, it concludes only that Appellants fail sufficiently to allege a violation of that right because there are other gun sellers near the location of their proposed gun store, including á Big 5 Sporting Goods store just 600 feet away.'
For the majority, &■. challenge to the Alameda Ordinance requires that the Ordinance be not just a burden to the exercise of Second Amendment rights, but a “meaningful ],” Majority Op. 680, or “substantial,” Majority Op. 680-81, burden before any type of judicial scrutiny, beyond the very permissive “rational review” standard, be applied. This requirement misreads our precedent in United States v. Chovan,
Here, when read in the light most favorable to Appellants,
In rejecting this burden, the majority concludеs that the Second Amendment does not guarantee a particular “retail experience” to a gun buyer. See Majority Op. 680 n.13. This characterization of the services to be offered by Appellants pooh-poohs the alleged needs and demands of the firearm buyers to meet those several needs and demands at a single gun store. The majority assumes there is no advantage gained, nor burden lessened, to firearm customers in the exercise of their Second Amendment rights in being able to receive training, establish licensure to possess firearms, obtain smithy and maintenance services, and deposit firearms all in one place. But combining the sales of products with services necessary for their use is not merely a “retail experience”; it is an essential form to meet the “needs and demands” of customers. See Venkatesh Shankar, Leonard L. Berry, and Thomas Dotzel, A Practical Guide to Combining Products and Services, Harvard Business Review (November 2009) (“These days, many firms are trying to mix products with services in an effort to boost revenue and balance cash flows. ... Such offerings are commonplace—think Apple (the iPod product combined with the iTunes service) and Xerox (copiers and printers bundled with maintenance or customer support services).”). Would it be a burden for a burglary victim to be required to make an actionable crime report separately at City Hall, the Hall of justice and the local police station, rather than call “911?” Or would the majority simply tell the burgled homeowner that he wasn’t burdened by having to visit three municipal offices because he wasn’t entitled to a particular “citizen’s experience?”
The burden exists and was sufficiently alleged. The proper analysis under Chovan is as to the severity of the burden. But of course, if one were to admit that a “burden” existed as to the custоmers’ Second Amendment rights, one would have to consider the severity of such burden under an intermediate or strict scrutiny test, rather than the permissive “rational review” standard invoked by the majority opinion. And that judicial scrutiny the majority opinion avoids altogether by erroneously, in my view, finding that the customers’ Second Amendment rights were not “meaningfully” burdened.
Were one to find that yes, the customers’ Second Amendment rights were at least lightly burdened, under Chovan intermediate scrutiny would have to be employed to analyze the validity of Alameda County’s actions. The first question would be whether the County has a “substantial”
The majority (albeit perhaps inadvertently) supplies the answer in its first sentence: “to preserve the health and safety of its residents.” Majority Op. 673; see also Teixeira,
First, Appellants’ complaint clearly alleges that even the County doesn’t believe such purported justification; thus it is pre-textual. See Romer v. Evans,
“Will the use [the proposed gun store], if permitted, under all circumstances and conditions of this particular case, materially affect adversely the health or safety of persons residing or working in the vicinity, or be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood?”
The County answers: “No.” As is said in Spain, “Mas claro, ni el agua” (Not even water could be clearer). This admission by the County calls into question whether the Ordinance would pass even the “rational review” test, redolent as it is in deference to government regulation. It is much less likely that the health and safety of Alame-da residents can be stated with a straight face as a “substantial” or “compelling” justification for the regulation as-is required under the intermediate scrutiny test. No sociological study is needed to assert that gun buyers and gun sellers constitute a “politically unpopular group” in Alameda County within the meaning of Moreno. That the vote to deny Appellants’ variance was purely political, and not based on an independent finding of danger to citizens, is confirmed by the record’s utter lack of even the most minimal explanation for the Supervisors’ vote.
Second, there is nothing in the record which intimates that locating a gun store within 500 feet of a residence creates any risk to the residents. The employees of a gun store are all background checked. The purchasers must prove proper backgrounds to buy. Our “intermediate scrutiny” jurisprudence requires some type of proof of risk of the harm the government seeks to prevent to justify its prohibitive regulation. Thus, in Chovan statistical studies of recidivism in domestic violence offenders provided the proof of a substantial governmental health and safety interest in prohibiting domestic violence mis-demeanants from possessing firearms. Chovan,
Here, as in Ezell, the majority merely speculates that the proximity of guns, in a gun store, threatens the County residents’ health and safety. The County doesn’t even speculate. Not only do the Planning Department of the County’s Community Development Agency and the West County Board of Zoning Adjustments categorically deny that the threat exists, but ironically, it is just the other way around: As noted in the panel’s now-vacated decision, it is precisely in residences where the core Second Amendment right to keep and bear arms is most pronounced and protected. See Teixeira,
In sum, this case does not present merely a “zoning dispute” dressed up in Second Amendment garb. Id. at 1064, (Silverman, J., dissenting). If there were a zoning measure of general application to bar retail stores of any kind within 600 feet of residences to lower traffic or noise, we wouldn’t be here. But when law-abiding citizens are burdened in the exercise of their Second Amendment rights' to purchase firearms and train, license, and maintain them for their self-defense, thé Government must justify its' aсtions by proving the existence of a substantial governmental interest and that its regulation is reasonably tailored to achieve such interest—the intermediate scrutiny test. See Jackson,
H.
The panel opinion persuasively lays out the historical evidence demonstrating that the right to sell firearms is “part and parcel of the historically recognized right to keep and to bear arms.” See Teixeira,
Instead, I will address. the majority’s assertion that the language of District of Columbia v. Heller,
In Heller, the Supreme Court recognized for the first time that the Second Amendment protects “an individual right to keep and bear arms.” Heller,
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 сommercial sale of arms.
Id. at 626-27,
In my view, the County cannot avail itself of the italicized limitations for “longstanding ... laws imposing, conditions and qualifications on the commercial sale of arms,” because it has failed to carry its burden of establishing that the- Ordinance is “longstanding” or is in a class of longstanding prohibitions as to the location of firearms sales and services in, particular. Indeed, the County has offered no evidence demonstrating that the Ordinance is the kind of regulation which Americans would have seen as permissible at the time of the adoption of the Second Amendment. See Teixeira,
There can be no doubt that evidence the regulations are “longstanding” is required to claim Heller’s carve-out for “presumptively lawful” “conditions and qualifications on the commercial sale of arms.” In the above-quoted passage from Heller, the object of the preposition “on” in the phrase “cast doubt on” is a disjunctive parallel construction: “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.” Thus, under the series-qualifier canon, the adjective “longstanding” applies to each phrase within the parallelism—including “laws imposing conditions and qualifications on the commercial sale of'arms.” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147-151 (West 2012).
True, if the adjective “longstanding” describes “laws imposing conditions and qualifications on the commercial sale of arms,” rather than qualifying that phrase, then historical evidence would not be necessary to claim the carve-out. But this reading is untenable, because then any law “imposing conditions and qualifications on the commercial sale of arms” would be “longstanding”—even if it were invented and enacted yesterday. “Longstanding” therefore tells us which “laws imposing conditions and qualifications on the commercial sale of arms” are “presumptively lawful,” and the County has failed to demonstrate that the Ordinance falls within this category. See also Teixeira,
I respectfully dissent.
. See Gladstone Realtors v. Village of Bellwood,
. The complaint alleges that "a full service gun store located in San Lorenzo,” of the kind contemplated by Appellants, "would be a success, in part, because existing retail establishments ... do not meet customer needs and demands.” Specifically, the existing "general sporting good stores” do not provide "personalized training and instruction in firearm safety and operation” as well, as "arms and ammunition.”
. See Jackson,