- The Washington Times - Monday, May 16, 2016

Constitutional protections afforded by the Second Amendment include the right to buy and sell firearms, a federal appeals court ruled this week in a decision that reinstates a lawsuit over zoning laws that limit where gun stores can be located.

In a 2-1 ruling, the 9th U.S. Circuit Court of Appeals revived Second Amendment challenges brought by three California businessmen who had sought to open a firearms store in Alameda County, but filed suit after they were denied a zoning permit based on laws that they claimed prevented them from opening a store anywhere in the county.

Monday’s ruling did not strike down the local zoning ordinance, but it does declare that the right to buy and sell firearms “is part and parcel of the historically recognized right to keep and to bear arms.”

The majority opinion, authored by Judge Diarmuid O’Scannlain, indicates a higher level of scrutiny should have been used to assess the constitutionality of the law and that the county government should have been required to present evidence justifying its restrictions.

“If ‘the right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear,” Judge O’Scannlain wrote in the 34-page opinion for the majority.

“One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the State prevents him from purchasing them,” he wrote.

The ruling remands the case back to the lower U.S. District Court for the Northern District of California.

The lawsuit stems from the travails of John Teixeira, Steve Nobriga and Gary Gamaza, who sought to open a gun store in Alameda County in 2010. County zoning regulations prevent new gun stores from locating within 500 feet of residential neighborhoods, schools, bars or stores selling liquor or other gun stores. The men sought out a surveyor to assess one prospective site they believed to be suitable.

Measuring door to door, their survey showed their proposed store was 532 feet away from the closest disqualifying property, a residential home.

But when a county survey was conducted, it measured the distance between the closest exterior walls of the buildings and determined them to be only 446 feet from one another — and therefore 54 feet too close to meet the 500-foot rule limitations. The men filed suit against the county in 2012, charging that officials were using the zoning laws “to redline or ban retail gun stores” from the county.

“This case shows the breadth of different kinds of Second Amendment issues that need to be resolved,” said Adam Winkler, a professor at the UCLA School of Law. “The Supreme Court has left open a lot of questions.”

Three gun rights groups — the California Association of Federal Firearms Licensees, the Calguns Foundation and the Second Amendment Foundation — joined the lawsuit to support the prospective businessmen.

“Today, the court appropriately reminded the county that civil rights can’t be outlawed through piles of regulation,” said Brandon Combs, executive director of the Calguns Foundation. “We’re very happy to see the court take a very principled and reasoned approach to protecting the fundamental, individual right to keep and bear arms.”

The Alameda County Counsel could not be reached for comment on Monday’s ruling.

The lone judge dissenting from the decision to uphold the Second Amendment claims made in the lawsuit pointed out that the legal challenge was brought by gun rights supporters and businessmen — not by a county resident who was unable to purchase a firearm as a result of the zoning law.

“Conspicuously missing from this lawsuit is any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby,” wrote Judge Barry G. Silverman.

Just because these particular businessmen were unable to open a gun store in Alameda County did not mean that residents looking to purchase firearms were bereft of options, he said.

“There is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. It is undisputed that they can,” Judge Silverman wrote. “The record shows that there are at least ten gun stores already operating lawfully in Alameda County.”

Even though Judge O’Scannlain wrote that the Second Amendment gun rights include the right to engage in firearms commerce, he cautioned that at the end of the day, the county’s ordinance “may very well be permissible.”

But in examining the claims put forth by the county to defend the law — including claims that gun stores increase crime around their locations or hurt the aesthetics of a neighborhood — he wrote that the lower court should have required the county to provide evidence to support such statements.

He said thus far that the county had failed to “justify the burden it has placed on the right of law-abiding citizens to purchase guns.”

“Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures,” Judge O’Scannlain wrote.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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