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May 17, 2016, 09:48 AM | #1 | |
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Ninth Circuit reinstates suit over zoning law restricting gun stores
A panel of the Ninth Circuit has voted 2 to 1 to reinstate a lawsuit in Teixeira v. County of Alameda (No. 13-17132) where the plaintiffs alleged the county had improperly adopted zoning laws which prevented new gun stores from opening. I haven't read the full opinion yet but the court rejected an equal protection claim and ruled on the 2nd Amendment claim. The following is from the opinion's summary (not officially part of the opinion):
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The dissent evidently believes this is just a routine zoning dispute and notes there are ten other gun stores in the county so that 2A rights are not being deprived. I'm guessing the county will file for a rehearing en banc. I would be surprised if this was accepted for review by the Supreme Court because it has shown a lack of enthusiasm for 2A issues recently and this isn't something that seems to cry out for the need for higher review, IMO. |
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May 17, 2016, 10:33 AM | #2 |
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Interesting dissent. If there are gun stores in other locations the County is free to craft an Ordinance that effectively bans them without showing any public good. Maybe bakeries and day care centers, too.
So even the court cannot check the power of the government, they can do whatever they like. |
May 17, 2016, 11:19 AM | #3 | |||
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As Judge Silverman notes (Teixeira v. County of Alameda (Ninth Circuit, No. 13-17132, 2016), slip op. at 35): Absolutely nothing in Judge Sullivan's very short dissent could by any stretch of the imagination support the conclusion that: Such preposterous comments do nothing to further either our understanding of the legal process or the RKBA Of course Judge O’Scannlain's opinion addressed Judge Silverman's point.
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May 17, 2016, 12:56 PM | #4 |
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I'm not in California, but my town did much the same thing. About two years ago (maybe three), two retired police officers opened a gun shop in a strip mall in the commercially-zoned area of town. The zoning commission and just about every other public agency in town did everything they could to prevent it from opening but, in the end, there was nothing in the regulations to prevent it. But once it opened, the zoning commission quickly adopted a zoning amendment that effectively means there can never EVER be another gun shop in town.
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May 17, 2016, 01:37 PM | #5 |
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Despite Mr. Ettins' hyperbole, Judge Silverman's dissent was exactly what I was mentioning, his refusal to consider the rights of the citizenry as opposed to whatever Ordinances the locals feel like passing is cowardice on his part, and acquiescence to a overreach of government. With a judicial bench of that nature, there are no checks and balances on government power.
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May 17, 2016, 03:36 PM | #6 |
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I get what the dissent is saying, but keep in mind that the majority judges were appointed by Regan and Bush II. The minority judge was appointed by Clinton. The legislation was designed to make it difficult for people living in a particular area to have access to purchasing firearms.
This is not simply a mundane zoning dispute. This is a case of exclusionary zoning applied to people who want to buy and sell guns - a protected 2nd Amendment right. If you can zone out gun stores, then you can zone out low income housing, public housing, churches, etc. No, this is clearly a 2nd Amendment case - not a mundane zoning dispute. |
May 17, 2016, 05:02 PM | #7 | |
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May 17, 2016, 06:27 PM | #8 | |||
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So no, nothing I wrote was hyperbole. Quote:
See for example Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir., 2003) and Grace United Methodist Church v. Cheyenne, 427 F.3d 775 (Fed. 10th Cir., 2005) in which the courts upheld the use of zoning/land use laws to prohibit certain religious or church related uses of properties. See also Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276 (11th Cir., 2006) in which the court of appeals sustained a county's use of its zoning laws to block a low income housing project in a particular location. On the other hand, there are case in which federal courts have found the use of zoning laws to be improper to restrict protected activities. So whether a zoning law may be properly used to block a protected activity requires a case-by-case analysis and will turn on a number of factors. One factor, the one that Judge Silverman conveniently ignored, is the scope of the constitutional projection afforded the activity. So whether Alamada's zoning rules can be applied to block a gun store would, based on the church and low income housing cases, implicate Second Amendment protections.
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May 17, 2016, 06:37 PM | #9 |
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I doubt the U.S.Supreme Court will take this as long as they are one judge short.
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May 17, 2016, 11:34 PM | #10 |
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Given the procedural posture of this case--an appeal of a pre-trial dismissal for failure to state a claim--this case is not ripe for further review. All of the factual arguments can be explored, litigated, and then the whole kit and kaboodle appealed again.
This case may have an important impact on a dispute pending in Daly City. A business owner lost his lease in one city, and sought to open a new store in the adjacent city (and in a location very close to his old one). He did everything demanded of him by the Planning Commission, received approval, and spent money on improvements. Anti-gun citizens appealed the approval to the City Council, and in a very partisan vote, the permit was denied. He is suing. Some people think that gun stores "draw the wrong crowd" and pose a threat to the community and any nearby schools. |
February 13, 2018, 11:14 PM | #11 |
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A bit of an update on this case. After a second en banc decision denying plaintiffs (the ones wearing the white hats) relief, the plaintiffs have filed their petition for writ of certiorari in the Supreme Court with the support of two amici curiae briefs. A response is due April 10, 2018. The Supreme Court docket listing, and links to the briefs, are here: https://www.supremecourt.gov/search....ic/17-982.html.
The Cato Institute filed an amicus brief explaining that it was the British attempts to stifle firearms commerce and the attempted seizure of firearms that most immediately sparked the Revolutionary War. There's a short article over at the Volokh Conspiracy, links to the brief, and links to a law review article. I'm not terribly optimistic, but who knows --- maybe they'll grant the petition. |
February 14, 2018, 08:30 AM | #12 |
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I haven’t read the decisions; but just taking a stab in the dark, the second en banc decision decided the issue wasn’t a “core Second Amendment right” and then applied a diluted form of intermediate scrutiny indistinguishable from rational basis and found the regulation satisfied scrutiny?
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February 14, 2018, 12:58 PM | #13 | |
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I did not have the chance to look at the opinion before I posted about the cert petition. I've quickly glanced at it now.
The 9th Circuit noted there were ten gun stores in the county and recognized there was a right (perhaps limited) to purchase firearms but not a right of a particular merchant to sell firearms: Quote:
To me, this seems to recognize some sort of right to sell firearms IF the public could not otherwise acquire firearms. I'm not sure I disagree with this express holding. The problem, as often the case, is in its application. |
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February 14, 2018, 01:10 PM | #14 | |
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There was no "second" en banc hearing.
When the plaintiffs 1st amended complaint was dismissed with prejudice by the district court, they appealed. The original 3 judge panel found for the plaintiffs and reversed and remanded. The county petitioned for an en banc hearing and it was granted. The en banc panel not only upheld the district court, but point blank said that while there is (perhaps) an ancillary right to acquire firearms, there was no right to sell. Using there own so-called historical search, they found that government could and did arm citizens (for militia purposes). Because of that, no right to sell was attached. Alameda county was not required to (and never) defended their ordinance as to why gun stores were singled out in zoning ordinances. The en banc panel did that for them. Using nothing more than rational basis (there was never even the hint of using any higher scrutiny, once the en banc panel found there was no right to sell), the en banc panel held for the defendants. On Jan 8, 2018 the plaintiffs petitioned for certiorari, asking the SCOTUS to answer the following: Quote:
On Feb 9 the CATO Institute filed an amicus brief, as did the NSSF. This is actually an important case on three fronts. First and foremost, If I have a right to possess firearms for self defense and a right to acquire firearms for self defense, is there not an implied right to sell firearms for self defense? The 9th Circuit says, no. Secondly, the 9th Circuit opinion will let stand the idea that a private residence is a sensitive place, such as schools and government buildings, and may therefore be regulated (from guns). Without the government showing more, a first amendment case involving a bookstore would not withstand any scrutiny. Finally, this panel's opinion fails to follow its own precedence in second amendment cases. In my opinion (worth what you have paid), the easiest method to dispose of the controversy would be for SCOTUS to issue a per curiam ruling, much as the Court did with the MA Supreme Court. |
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February 14, 2018, 05:05 PM | #15 |
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From a practical standpoint, how does the argument that there are other gun stores in the county work? Today there are ten options. Next week they all decide to retire and close down, and the zoning regulations prohibit any new stores from opening. That's exactly what happened in my (not California) town. After one gun shop opened, the town changed the zoning regulations with a carefully crafted set of requirements that make it impossible for anyone to ever open another gun store in town. The one that was open was burglarized, his business never recovered from the aftermath, and a year later he closed.
"Two is one, and one is none." |
February 14, 2018, 08:05 PM | #16 | |
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February 15, 2018, 08:13 AM | #17 | |
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February 15, 2018, 09:03 AM | #18 | |
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http://www.npboards.com/index.php Last edited by zukiphile; February 15, 2018 at 11:04 AM. |
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February 15, 2018, 11:46 AM | #19 | |
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Or am I failing to understand your question? |
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February 15, 2018, 12:11 PM | #20 |
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The question is rhetorical, but intended to point to a tension.
On the one hand, the Heart of Atlanta Motel was found to have imposed upon the fundamental right to travel by discriminating against travelers racially. It wasn't the only motel, but the idea that a race of people couldn't use hotels as they travelled (and the reality that people of color often had to make different arrangements) was an imposition on that fundamental right. Here, an administrative subunit of a state seeks to burden a fundamental right by effectively prohibiting the means to buy the item involved in the right. The means by which the right is burdened is different, but an analysis that strikes down acts that would burden a fundamental right, even where that right is burdened by private acts, should also strike down the act of a locality for imposing that burden by law. At least one of the McDonald interim decisions struck Chicago's ridiculous range and permit regulations with reasoning that allowing exercise of a right while erecting barriers to exercise of the right didn't fool that court. This case also is distinguishable from McDonald in that the kind of regulation differs. It does appear to be calculated to have some of the same effects.
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