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Teixeira v. County of Alameda

United States Court of Appeals for the Ninth Circuit · 2017 · Constitutional Law

Constitutional LawSecond AmendmentFirearms regulationZoningSecond Amendmentgun storeszoning ordinanceconditional use permit

Facts

Teixeira and his partners sought to open a full-service gun store in unincorporated Alameda County. County ordinances required a conditional use permit and barred firearm sales businesses within 500 feet of residentially zoned districts, schools, day-care centers, liquor establishments, and other gun stores. Although the zoning board initially granted a variance and permit, the county board of supervisors reversed and revoked the permit because the site fell within the prohibited zone. Teixeira alleged that the ordinance made it virtually impossible to open a new gun store in unincorporated Alameda County and thereby violated his own Second Amendment rights and those of potential customers.

Issue

Does Alameda County's zoning ordinance violate the Second Amendment by restricting Teixeira from opening a new gun store, either because it burdens potential customers' ability to acquire firearms or because the Second Amendment independently protects a proprietor's right to sell firearms? Does the ordinance also burden a Second Amendment right to obtain firearms training through Teixeira's proposed business?

Rule

A plaintiff asserting a Second Amendment claim based on restrictions affecting firearms commerce must plausibly allege that the regulation meaningfully burdens residents' ability to acquire firearms. The Second Amendment does not confer a freestanding, independent right on a proprietor to sell firearms apart from any effect on citizens' ability to keep and bear arms, and a zoning rule directed only at firearm sales does not burden a training-related claim where it does not restrict firearms instruction itself.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Parker Holt applied to open a firearms shop in unincorporated Clark County, Nevada. A county ordinance bars new firearms-sales businesses within 700 feet of schools, day-care centers, liquor-serving establishments, residentially zoned districts, and existing gun stores; Holt alleges the rule makes new stores "nearly impossible" to site, but his complaint also shows that county residents can buy firearms at eight existing stores, including one less than a mile from his proposed location.

If Holt sues under the Second Amendment on behalf of prospective customers, what is the strongest basis for dismissing the claim at the pleading stage?

Explanation. A would-be seller may assert a derivative claim on behalf of potential customers, but the complaint must plausibly allege that the regulation meaningfully inhibits residents from acquiring firearms. Mere assertions that a new store would be desirable, or that siting new stores is difficult, do not suffice when the pleadings show multiple existing retailers and only inconvenience or preference for a particular location. Under the majority opinion, if the law does not plausibly burden protected conduct at step one, the inquiry ends.