Appeals court reinstates gun store lawsuit over restrictions

SAN FRANCISCO – A federal appeals court said Monday in a California lawsuit that the Second Amendment right to bear arms extends to gun stores and requires governments to justify restrictions on them.

The ruling by the 9th U.S. Circuit Court of Appeals came in a lawsuit against Alameda County by three men who wanted to open a gun store. They said a county ordinance that prohibits gun stores within 500 feet of a residential area violated the Second Amendment.

The 9th Circuit did not rule on the constitutionality of the 500-foot restriction, but it said the ordinance did involve the Second Amendment because the right to purchase and sell arms is "part and parcel of the historically recognized right to keep and to bear arms."

The county, therefore, has to present evidence to justify the restriction and can't simply assert that gun stores increase crime, 9th Circuit Judge Diarmuid O'Scannlain said in the 2-1 decision.

"Alameda County's ordinance may very well be permissible. Thus far, however, the county has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns," O'Scannlain said.

The ruling is unique in its determination that there is a right to open new gun shops regardless of whether such stores already exist, said Eugene Volokh, a professor who has taught classes on gun regulation at the University of California, Los Angeles School of Law.

He said the ruling also establishes that governments must show proof if they argue that gun shops are magnets for criminals.

"This is helpful precedent for future challengers," he said.
The 9th Circuit panel reversed a district court ruling dismissing the lawsuit and sent the case back to the lower court for further proceedings.

The county was reviewing the opinion and determining its next step, County Counsel Donna Ziegler said.

"One thing that is certain is we'll continue to defend the ordinance whether we do that at the trial court or at the appellate level," she said.

In a dissenting opinion, 9th Circuit Judge Barry Silverman said there are numerous other gun shops in Alameda County, so the 500-foot ordinance does not prevent people from buying guns.