Thursday, December 29, 2016

Teixeira v. Alameda to be Heard at Ninth Circuit, En Banc (gun store zoning) case

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 panel’s 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 scrutiny—something beyond mere rational basis review.

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. 
 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 court ruled that under intermediate scrutiny, the middle step of the scrutiny ladder, the defendants had not shown any evidence that gun stores increased crime or negatively impacted the aesthetics of the neighborhood. Therefore they ruled against Alameda County.

Now the entire Ninth Circuit will re-hear the case, throwing out the three judge panel ruling, reminiscent of what happened in the Peruta case.  On 27 December of 2016, the Ninth Circuit posted this notice:
THOMAS, Chief Judge:

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.
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.

There must be an exception to this new tradition.

No doubt an informed reader will supply one.

Second Amendment cases that may be appealed to a Supreme Court with a Trump appointee are accumulating.

 ©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch


Anonymous said...

Would double jeopardy apply? seems to me the case would be forced to the US supreme court rather than having the same court rehear the case. One court has ruled it should have to be appealed to a higher court.

Anonymous said...

These are the kinds of cases that I am waiting to see just how much of a constitutionalist President Trump is. Not too many are as hard core as I am. It took some years of study to be the constitutionalist I am. I had a lot of history to study to understand original intent, the frame of mind as the framers had. If George Washington said shoot he would not have tolerated forming a committee to decide to comply. when the framers wrote Shall not be infringed that is exactly what they meant. You will not find the words in the second amendment referring to only licensed permit holders or anything that lets the states determine how the right is to be exercised.

Anonymous said...

I think with all of the unconstitutional gun law cases accumulating this SB 199 is begging for a challenge. No individual or no board of regents is elected to have the authority to deny anyone federally guaranteed rights. Opinions are not worth a grain of gun powder. Driving a car is supposed to be considered a privilege. I disagree. the bill of rights only listed a few of the rights we have but under the tenth amendment is makes it clear that those rights listed are not a complete list. Remember the clause (or left to the people). Most state constitutions were written before cars were invented. so any laws passed concerning cars would be the same as laws they are void because they are not addressed in the constitution . if they are not specifically addressed then they are specifically left to the people as un enumerated rights. Even car insurance is not addressed in any constitution I have read. any kind of insurance is not addressed as a constitutional issue. acts and laws do not change the constitution, until an amendment is added to the constitution delegating the authority to the government there is no delegated authority to address the issue. Or left to the people means any issue not addressed in the constitution state or federal has no delegated authority to exist. If it is not in the contract/ constitution. It can not be added without the consent of the people. the consent of the people requires a ratified amendment. constitutional law is very technical. If you ever understand what the constitution is only then will you understand why and how we now have some 63 million laws on the books and probably 98% of them are unconstitutional. find the word insurance in any constitution and call me wrong. Remember the US supreme court has already ruled if it is not written it does not exist and can not be enforce. same argument for the second amendment the 26 words do not include permit or license. to use the word the US supreme court has used any law repugnant to the constitution is void. any issue not specifically addressed in proper wording is repugnant. If it is repugnant it is void having no force or effect. that means it is unconstitutional.