Posted on 01/03/2017 8:02:23 AM PST by marktwain
Earlier this year, on May 16th, a three judge panel on the Ninth Circuit ruled that Alameda County in California could not impose a zoning ordinance on gun stores that was more strict than for other businesses. In the case, Teixeira v. County of Alameda, the ordinance restricted gun stores from locating anywhere withing 500 feet of a residentially zoned district. From the ruling(pdf):
Reversing the dismissal of plaintiffs Second Amendment claims, the panel held that the County had offered nothing to undermine the panels conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms. The panel held that the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutinysomething beyond mere rational basis review.It appeared to be a fairly uncontroversial ruling. If you wish to ban gun stores, the Second Amendment cannot exist without a place to buy guns and ammunition. Therefore you have to show more than a mere "rational basis" to ban gun stores. (Rational basis is the least restrictive level of judicial scrutiny under which a judge examines a law to see if it violates constitutional rights. It is hardly any scrutiny at all).
The panel held that under heightened scrutiny, the County bore the burden of justifying its action, and that the district court should have required the County to provide some evidentiary showing that gun stores increase crime around their locations or negatively impact the aesthetics of a neighborhood. The panel held that if on remand evidence did confirm that the Ordinance as applied, completely bans new guns stores (rather than merely regulating their location), something more exacting than intermediate scrutiny would be warranted.
THOMAS, Chief Judge:There appears to be a new tradition that has established itself in the Ninth Circuit. Three judge panel decisions, which are the vast majority of decisions, that involve the Second Amendment, will be heard en banc.
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
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