Gun Shop Ban in Calif. to Get Second Look

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By Jeffrey D. Koelemay

The Ninth Circuit will reconsider the constitutionality of a ban on gun dealers within 500 feet of certain buildings, such as schools and liquor stores ( Teixeira v. Cty. of Alameda , 2016 BL 430964, 9th Cir. en banc, No. 13-17132, rehearing granted 12/27/16 ).

The Alameda County, Calif., ordinance is being challenged by three entrepreneurs who want to open a gun shop.

In May, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said the law “very well may be permissible,” but that the county “has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns.”

The right to purchase and to sell firearms “is part and parcel of the historically recognized right to keep and to bear arms,” and an ordinance restricting the commercial sale of firearms “comes close to the core of the Second Amendment right,” the original three-judge panel said.

The court said that “heightened scrutiny” should apply to the law, but that in this case it didn’t even pass “intermediate scrutiny,” meaning it furthers an important government interest by means that are substantially related to that interest. “Heightened scrutiny” is still a lower standard than “strict scrutiny,” which requires a compelling government interest and that the law be narrowly tailored to achieve that interest.

The county failed the heightened scrutiny test here because it didn’t justify its “assertion that gun stores act as magnets for crime,” the original three-judge panel said.

The original court remanded the case to the district court for reconsideration. The gun store has not opened yet.

Eleven judges will sit on the en banc panel that will rehear the case. Oral argument will be the week of March 20.

Donald E.J. Kilmer Jr., San Jose, Calif., originally argued for the would-be shop owners. Scott J. Feudale, Alameda County Counsel, originally argued for the county.

To contact the reporter on this story: Jeffrey D. Koelemay in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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