Gun Store Regulations Require Heightened Scrutiny

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By Nicholas Datlowe and Bernie Pazanowski

May 16 — Regulations on the sale of firearms are subjected to heightened scrutiny under the Second Amendment, the U.S. Court of Appeals for the Ninth Circuit said May 16.

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 court said in an opinion by Judge Diarmuid F. O'Scannlain.

Developing 2nd Amendment Doctrine

The case has the potential to be a big deal in the realm of Second Amendment litigation, but the facts tend to limit its application, Mike McLively, a staff attorney with the Law Center to Prevent Gun Violence, San Francisco, which filed an amicus brief in the case, told Bloomberg BNA May 17 .

Even so, McLively said that the opinion's importance lies in the doctrine it's helping to develop.

What the opinion does, McLively said, is broaden the reach of the Second Amendment and narrow the conditions and qualifications for the applicable scrutiny.

While rational basis review is off the table for gun control laws, strict scrutiny is still in play where there is an “extreme deprivation” of the core Second Amendment right, McLively said. Even so, he said that most courts today apply heightened scrutiny in Second Amendment cases.

McLively pointed out that a conservative panel of the Ninth Circuit heard this case. He added, however, that there are currently other Second Amendment cases in the Ninth Circuit pipeline that concern gun regulations the district courts held were outside the historical scope of the Second Amendment.

Once those opinions are handed down, there may be a better picture of where the Ninth Circuit stands on gun regulations, he said.

Two cases noted by McLively were Bauer v. Harris, 9th Cir., No. 15-15428, filed 3/9/15, and Pena v. Lindley, 9th Cir., No. 15-15449, filed 3/9/15.

McLively also suggested that Teixeira may be a prime candidate for en banc review.

Teixeira certainly doesn't answer all the questions concerning the regulation of gun stores under the Second Amendment, McLively said.

For example, he said the question still remains how much regulation on the sale of guns can you have before heightened scrutiny kicks in?

Attorneys who supported the petitioners didn't respond to Bloomberg BNA's request for comments.

Good Reason Requirement for Permit Is Burden

In other Second Amendment developments, the U.S. District Court for the District of Columbia ruled May 17 that D.C.'s requirement that applicants for concealed-carry permits show “good reason to fear injury to his or her person or property” or “any other proper reason to carry a pistol” is likely a violation of the Second Amendment (Grace v. Dist. of Columbia, 2016 BL 156172, D.D.C., No. 15-2234 (RJL), 5/17/16).

Judge Richard J. Leon preliminarily enjoined enforcement of the regulation and said the right to bear arms “includes the right to carry firearms for self-defense both in and outside the home,” and the “‘good reason' requirement likely places an unconstitutional burden on this right.”

Leon said that while D.C.'s desire to restrict the right to carry firearms for self defense to the smallest number of law-abiding citizens is “understandable,” it is also “overzealous,” and “is exactly the type of policy choice” the Supreme Court took off the table in Dist. of Columbia v. Heller, 554 U.S. 570 (2008).

D.C. Attorney General Karl A. Racine said in a May 17 statement that his office will request a stay of the decision while they appeal.

A Magnet for Crime?

The three petitioners wanted to open a gun shop in Alameda County. Even though they met other criteria to do so, their request was turned down because the location they chose didn't comply with local zoning regulations.

They sued, claiming that because no gun shop could comply with the zoning regulations, they violated the Second Amendment. The district court dismissed for failure to state a claim.

The appeals court, however, said that the county failed to show that a regulation barring gun dealers within 500 feet of certain buildings—including schools and liquor stores—passed intermediate scrutiny, because it didn't show that such stores act “as a magnet for crime.”

Intermediate scrutiny looks at whether a law is reasonably related to a significant government interest.

The ordinance “very well may be permissible,” the court acknowledged, but thus far the county “has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns.”

The case was sent back to the district court to apply the proper level of scrutiny in the first instance.

Judge Carlos T. Bea joined the opinion.

Judge Barry G. Silverman dissented, calling the case “a mundane zoning dispute dressed up as a Second Amendment challenge.”

Donald E.J. Kilmer, San Jose, Calif., argued for the petitioners. Scott J. Feudale, Alameda County Counsel, argued for the county.

To contact the reporters on this story: Nicholas Datlowe in Washington at and Bernie Pazanowski in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

For More Information

Full text of the 9th Circuit's opinion at:

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