United States Court of Appeals for the Ninth Circuit

Transcription

1 Case: , 07/21/2016, ID: , DktEntry: 79, Page 1 of 69 No IN THE United States Court of Appeals for the Ninth Circuit JOHN TEIXEIRA; STEVE NOBRIGA; GARY GAMAZA; CALGUNS FOUNDATION, INC., (CGF); SECOND AMENDMENT FOUNDATION, INC., (SAF); CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES, (CAL-FFL), Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; ALAMEDA COUNTY BOARD OF SUPERVISORS, as a policy making body; WILMA CHAN, in her official capacity; NATE MILEY, in his official capacity; KEITH CARSON, in his official capacity, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of California APPELLEES PETITION FOR REHEARING OR REHEARING EN BANC Donna R. Ziegler Scott J. Feudale OFFICE OF THE COUNTY COUNSEL, ALAMEDA COUNTY 1221 Oak Street, Suite 450 Oakland, CA Naomi J. Mower ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY Robert M. Loeb Thomas M. Bondy ORRICK, HERRINGTON & SUTCLIFFE LLP th Street NW Washington, DC (202) Brian P. Goldman ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA Counsel for Defendants-Appellees

2 Case: , 07/21/2016, ID: , DktEntry: 79, Page 2 of 69 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTRODUCTION AND RULE 35 STATEMENT... 1 STATEMENT... 3 REASONS FOR GRANTING THE PETITION... 6 I. The Panel Opinion Conflicts With Heller and McDonald II. The Panel Opinion Conflicts With Decisions Of This Court And The Fourth Circuit III. The Panel Opinion s Historical Analysis Was Defective IV. The Question Presented Is Exceptionally Important CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM A Panel Slip Opinion, dated May 16, 2016 ADDENDUM B California City and County Ordinances Regulating the Location of Firearms Sales in Relation to Residential Areas i

3 Case: , 07/21/2016, ID: , DktEntry: 79, Page 3 of 69 TABLE OF AUTHORITIES Cases Page(s) Bauer v. Harris, 94 F. Supp. 3d 1149 (E.D. Cal. 2015) Bonidy v. U.S. Postal Serv., 790 F.3d 1121 (10th Cir. 2015)... 7 Caetano v. Massachusetts, 136 S. Ct (2016) Cheatham v. Shearon, 31 Tenn. 213 (1851) District of Columbia v. Heller, 554 U.S. 570 (2008)... 1, 5, 6, 8, 9, 11, 18 Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) Illinois Ass n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014)... 9 Jackson v. City & Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014)... 5, 7, 9, 11, 12, 14 Mathis v. United States, 136 S. Ct (2016)... 8 McDonald v. City of Chicago, 561 U.S. 742 (2010)... 1, 6 Nat l Rifle Ass n of Am., Inc. v. ATF, 700 F.3d 185 (5th Cir. 2012) NLRB v. Noel Canning, 134 S. Ct (2014) ii

4 Case: , 07/21/2016, ID: , DktEntry: 79, Page 4 of 69 Nordyke v. King, 644 F.3d 776 (9th Cir. 2011)... 7 Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012)... 7, 13, 22 Pena v. Lindley, No. 2:09-CV KJM, 2015 WL (E.D. Cal. Feb. 26, 2015) Peruta v. County of San Diego, F.3d, Nos , , 2016 WL (9th Cir. June 9, 2016)... 14, 22 Petramala v. U.S. Dep t of Justice, 481 F. App x 395 (9th Cir. 2012) The Pocket Veto Case, 279 U.S. 655 (1929) Simpson v. Justice, 43 N.C. 115 (1851) Sundowner Ass n v. Wood Cty. Comm n, No. 2:14-CV-00193, 2014 WL (S.D. W. Va. Aug. 13, 2014) United States v. Barton, 633 F.3d 168 (3d Cir. 2011)... 9, 10 United States v. Castro, No , 2011 WL (9th Cir. Nov. 28, 2011) United States v. Chafin, 423 F. App x 342 (4th Cir. 2011)... 2, 15 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013)... 9, 14 United States v. Conrad, 923 F. Supp. 2d 843 (W.D. Va. 2013) iii

5 Case: , 07/21/2016, ID: , DktEntry: 79, Page 5 of 69 United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) Constitutional Provisions U.S. Const., amend. I U.S. Const., amend. II... passim U.S. Const., amend. XIV... 16, 20 Statutes Federal Firearms Act of 1938, Pub. L. No , 52 Stat (1938) Gun Control Act of 1968, Pub. L. No , 82 Stat (1968) Nonmailable Firearms Act of 1927, Pub. L. No , 44 Stat (1927) Violent Crime Control and Law Enforcement Act, Pub. L. No , 108 Stat (1994) Colo. Laws 408, ch Del. Laws 28, ch. 15 (1911) Ga. Laws Mo. Laws Or. Laws 497, ch S.C. Acts 748, No Tenn. Pub. Acts 135, ch. XCVI Regulations 26 C.F.R (1939) iv

6 Case: , 07/21/2016, ID: , DktEntry: 79, Page 6 of 69 Ordinances Alameda Cty., Cal., Code Alameda Cty., Cal., Code , 16, 20 Other Authorities Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487 (2004) GAO Letter Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers, GAO/GGD (Mar. 29, 1996), available at 19 Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J (2009) Robert H. Nelson, Zoning and Property Rights: An Analysis of the American System of Land Use Regulation (1977) Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007)... 7 v

7 Case: , 07/21/2016, ID: , DktEntry: 79, Page 7 of 69 INTRODUCTION AND RULE 35 STATEMENT The Supreme Court has declared twice that its recognition of an individual right to bear arms did not cast doubt on regulations governing the sale of arms. McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). Rather, rules that set conditions and qualifications on the commercial sale of arms are presumptively lawful. District of Columbia v. Heller, 554 U.S. 570, & n.26 (2008). Nonetheless, in a 2-1 decision, a panel of this Court held that an Alameda County ordinance governing the location of the commercial sale of arms is presumptively unlawful. The majority believed, notwithstanding Heller and McDonald, that the right to sell firearms is part and parcel of the historically recognized right to keep and bear arms, and that the zoning ordinance must satisfy heightened Second Amendment scrutiny even without any allegation that it meaningfully impedes anyone from possessing a gun. Maj. Op No Court of Appeals had ever previously recognized a Second Amendment right to sell arms or subjected zoning rules to heightened Second Amendment scrutiny. The panel s holding contradicts Heller and McDonald, is inconsistent with this Court s recent opinions addressing the Second

8 Case: , 07/21/2016, ID: , DktEntry: 79, Page 8 of 69 Amendment, and creates a conflict with the Fourth Circuit, which recognized that the Second Amendment does not necessarily give rise to a corresponding right to sell a firearm. United States v. Chafin, 423 F. App x 342, 344 (4th Cir. 2011). As Judge Silverman explained in dissent, this case involves nothing more than a mundane zoning dispute dressed up as a Second Amendment challenge. Dissent 35. By subjecting even such mundane ordinances to heightened scrutiny, the majority opinion jeopardizes a range of other commonplace regulations designed to protect the public, including at least seventeen similar regulations in California alone. In the end, [t]he district court was right on target in dismissing the plaintiffs zoning case for failure to state a Second Amendment claim, because the ordinance restricting the location of a gun store is quite literally a law[] imposing conditions and qualifications on the commercial sale of arms. Dissent 36. Rehearing en banc is plainly warranted. 2

9 Case: , 07/21/2016, ID: , DktEntry: 79, Page 9 of 69 STATEMENT In 1998, Alameda County enacted a zoning ordinance requiring that any new gun store be located at least 500 feet from schools, day care centers, other gun stores, stores selling or serving liquor, and residentially zoned districts. Alameda Cty., Cal., Code As of 2011, ten gun stores operated within the County, four of which are in the unincorporated areas of the County governed by the ordinance. Excerpts of Record (ER) 121, 179. In 2010, Appellants Teixeira, Nobriga, and Gamaza formed Valley Guns and Ammo, a partnership seeking to open a new gun store in the County. ER 37. Valley Guns selected a property in unincorporated San Leandro and applied for a permit. ER 40. The zoning board found that the proposed property did not comply with the ordinance because it was within 500 feet of two residentially zoned neighborhoods. ER 45, 64, 68, 178. The zoning board nevertheless granted a variance and issued the permit. ER 48, A homeowners association appealed the matter to the Alameda County Board of Supervisors, which rejected the zoning board s decision and denied the permit. ER

10 Case: , 07/21/2016, ID: , DktEntry: 79, Page 10 of 69 Valley Guns did not challenge the County s zoning decision in California state court. Supplemental Excerpts of Record (SER) 2. Instead, the individual partners, along with several gun advocacy groups, filed this suit, alleging the zoning ordinance, both on its face and as-applied, violated an asserted Second Amendment right to sell guns. ER 50, They did not allege that area residents were unable to obtain or possess guns because of the ordinance. The district court dismissed with prejudice. ER It held the ordinance falls squarely within Heller s presumptively lawful category of laws imposing conditions and qualifications on the commercial sale of arms. ER 20. The court also noted that the plaintiffs do not allege that customers cannot buy guns in Alameda County. ER 23. Indeed, guns are readily available at a Big 5 Sporting Goods store 607 feet away from the proposed site. SER 9; ER 120. The court also found that, even if heightened scrutiny applied, Alameda County has an interest in protecting public safety and preventing harm in populated, well-traveled, and sensitive areas such as residentiallyzoned districts by protecting against the potential secondary effects of gun stores. ER 21 (internal quotation marks omitted). 4

11 Case: , 07/21/2016, ID: , DktEntry: 79, Page 11 of 69 A divided panel of this Court reversed. The majority held the ordinance is not presumptively lawful under Heller. In the majority s view, Heller s exemption for certain laws imposing conditions and qualifications on the commercial sale of arms applies only to those prohibitions that fall outside the historical scope of the Second Amendment, and the County has not demonstrated that any historical regulation restricted where firearm sales could occur. Maj. Op (quoting Heller, 554 U.S. at & n.26, and Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014), cert. denied, 135 S. Ct (2015)). Having set aside Heller s express exemption, the majority applied heightened scrutiny and held that Alameda County failed to justify the burden it has placed on lawabiding citizens to purchase guns. Maj. Op Dissenting, Judge Silverman emphasized that Alameda County s zoning ordinance does not impair any actual person s individual right to bear arms. Dissent 35. He stressed it is undisputed that individuals can lawfully buy guns in Alameda County, because there are at least ten gun stores already operating lawfully within it. Id. He 5

12 Case: , 07/21/2016, ID: , DktEntry: 79, Page 12 of 69 would have affirmed the dismissal of this mundane zoning dispute dressed up as a Second Amendment challenge. Id. REASONS FOR GRANTING THE PETITION I. The Panel Opinion Conflicts With Heller and McDonald. A. In 2008, the Supreme Court held for the first time that the Second Amendment protects a law-abiding individual s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. In so holding, the Court set clear limits on its ruling. One is applicable here: [N]othing in our opinion should be taken to cast doubt on laws imposing conditions and qualifications on the commercial sale of arms. Heller, 554 U.S. at Such restrictions are presumptively lawful regulatory measures. Id. at 627 n.26. When the Court extended Heller to the States two years later, it repeat[ed] those assurances. McDonald, 561 U.S. at 786. The Court thus underscore[d] the importance of that [qualifying] language and remove[d] any doubt about the care that went into it and its importance 6

13 Case: , 07/21/2016, ID: , DktEntry: 79, Page 13 of 69 in understanding the holding in Heller. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1124 (10th Cir. 2015). Heller s carve-out for laws imposing conditions and qualifications on the commercial sale of arms means that zoning regulations like those here are presumed valid. Imposing heightened scrutiny on such regulations is incompatible with Heller s presumption of validity. As Judge Gould has explained, [g]iven the Supreme Court s admonition that certain arms restrictions are presumptively lawful, a heightened standard that presumes every regulation to be unconstitutional makes no sense. See Nordyke v. King, 644 F.3d 776, 796 (9th Cir. 2011) (Gould, J., concurring) (quoting Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 708 (2007)), vacated upon reh g en banc, 681 F.3d 1041 (9th Cir. 2012). Instead, the Second Amendment does not preclude the enumerated presumptively lawful regulatory measures. Jackson, 746 F.3d at 959. The majority here erred in applying a presumption of invalidity to the County s zoning regulation. As Judge Silverman noted in dissent: [T]he district court correctly ruled that the ordinance restricting the location of a gun store is quite literally a law[] imposing conditions and 7

14 Case: , 07/21/2016, ID: , DktEntry: 79, Page 14 of 69 qualifications on the commercial sale of arms, and thus not subject to heightened scrutiny under Heller. Dissent 36 (quoting ER 18). Appellants do not contend they could sustain a challenge without heightened scrutiny. B. The majority resisted Heller s express carve-out for laws imposing conditions and qualifications on the commercial sale of arms. In its view, Heller does not mean that there is a categorical exception from Second Amendment scrutiny for the regulation of gun stores, because [i]f such were the case, the County could enact a total prohibition on the commercial sale of firearms. Maj. Op That was error. A good rule of thumb for reading [the Supreme Court s] decisions is that what they say and what they mean are one and the same. Mathis v. United States, 136 S. Ct. 2243, 2254 (2016). Moreover, the majority s slippery-slope rationale is flawed at two levels. First, exempting laws imposing conditions and qualifications on the commercial sale of arms, Heller, 554 U.S. at (emphasis added), is different from allowing a total prohibition on the commercial sale of firearms, Maj. Op. 21 (emphasis added). In Second Amendment law as in other areas, prohibitions are scrutinized more closely than 8

15 Case: , 07/21/2016, ID: , DktEntry: 79, Page 15 of 69 mere regulations. See, e.g., Jackson, 746 F.3d at A zoning restriction on where new gun stores may be located is wholly different from an outright ban on gun sales and transfers. Maj. Op. 17 (quoting Illinois Ass n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928, 938 (N.D. Ill. 2014)). Second, Heller establishes the presumptive validity of regulations on gun sales, not their conclusive validity. A condition on sales that works a de facto prohibition on, or even meaningfully impairs, County residents core Second Amendment right to use arms in defense of hearth and home may well be subject to challenge. United States v. Chovan, 735 F.3d 1127, 1133 (9th Cir. 2013) (quoting Heller, 554 U.S. at 635). But Heller places the burden on the challenger to rebut a restriction s presumptive validity by demonstrating the law has such a purpose or effect. See United States v. Barton, 633 F.3d 168, (3d Cir. 2011) ( [T]he presumption [that felon gun dispossession statutes are valid] may be rebutted by a felon if he present[s] sufficient evidence). And any such effort could be made only on an as-applied basis: [B]ecause Heller requires that [courts] presume, under most circumstances, that [the enumerated categories of laws] regulate 9

16 Case: , 07/21/2016, ID: , DktEntry: 79, Page 16 of 69 conduct which is unprotected by the Second Amendment, [any] facial challenge must fail. Id. at 172. Accordingly, the panel erred in reversing the district court s dismissal of Appellants facial challenge. Here, no plaintiff asserts that he cannot possess a gun the only right recognized by Heller because of the County s zoning rules. As Judge Silverman observed, there is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. Dissent 35; see also ER 23. To the contrary, [i]t is undisputed that they can. The record shows that there are at least ten gun stores already operating lawfully in Alameda County, Dissent 35, including one 607 feet from Appellants proposed location, ER 120. Accordingly, Appellants both lack standing to challenge the ordinance and have failed to state a claim. There is no Second Amendment right to open a gun store in the location of one s choice without adherence to local zoning regulations. Responding to Judge Silverman, the majority posited, We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than a mundane 10

17 Case: , 07/21/2016, ID: , DktEntry: 79, Page 17 of 69 zoning dispute dressed up as a [First] Amendment challenge? Maj. Op. 33. No doubt, ordinances prohibiting the possession of [books] by felons and the mentally ill or the carrying of [books] in sensitive places such as schools would fail First Amendment scrutiny. Heller, 554 U.S. at 626. Yet Heller held, as an essential part of its ruling, that such restrictions on gun possession, carrying, and sales are presumptively valid. That is because Heller did not recognize a Second Amendment right on all fours with the First Amendment. While the structure of the constitutional inquiry under the Second Amendment may bear[] strong analogies to the Supreme Court s free-speech caselaw, Jackson, 746 F.3d at 960, the scope and content of the Second Amendment right is entirely distinct and defined by reference to the particular dangers posed by guns and gun trafficking. Because the panel opinion failed to respect Heller s express carveout for laws regulating gun sales, rehearing en banc should be granted. II. The Panel Opinion Conflicts With Decisions Of This Court And The Fourth Circuit. The panel opinion is inconsistent with this Court s and the Fourth Circuit s precedents reflecting Heller s carve-outs, including the requirement that commercial-sale regulations be treated as 11

18 Case: , 07/21/2016, ID: , DktEntry: 79, Page 18 of 69 presumptively valid. By treating a regulation as presumptively lawful only if it regulates the commercial sale of firearms and has a foundingera pedigree, the panel opinion creates a conflict with those Court of Appeals decisions. A. Jackson identified two ways a regulation will be deemed presumptively valid, such that heightened scrutiny does not apply: [W]e ask whether the regulation is one of the presumptively lawful regulatory measures identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment. 746 F.3d at 960 (emphasis added, internal citation omitted). In other words, under binding Ninth Circuit precedent, either fitting within one of Heller s enumerated safe harbors, or historical evidence demonstrating that the type of regulation should also fall outside the Second Amendment s scope, suffices for a regulation to avoid heightened Second Amendment scrutiny. The majority contradicted Jackson a conflict that itself warrants en banc review when it turned Jackson s or into an and, requiring that even a regulation in Heller s presumptively lawful safe harbors 12

19 Case: , 07/21/2016, ID: , DktEntry: 79, Page 19 of 69 be supported by founding-era evidence. Maj. Op That approach also conflicts with several other decisions of this Court that properly bypassed a historical analysis when considering provisions within Heller s enumerated exceptions. In Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012) (en banc), for example, this Court relied primarily on Heller s commercial-sale exception to deem an Alameda County regulation of gun shows constitutionally permissible, without engaging in any historical analysis. Id. at And a panel of this Court upheld a restriction on dealing firearms without a license, without engaging in historical analysis, simply because [t]he Supreme Court has made it clear that the government can continue to regulate commercial gun dealing. United States v. Castro, No , 2011 WL , at *1 (9th Cir. Nov. 28, 2011); see also United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (upholding prohibition on possession of guns by felons even though the historical question has not been definitively resolved ); Petramala v. U.S. Dep t of Justice, 481 F. App x 395, 396 (9th Cir. 2012) (upholding prohibition on possession of guns by the mentally ill, relying on Heller without historical analysis). 13

20 Case: , 07/21/2016, ID: , DktEntry: 79, Page 20 of 69 In contrast, if a regulation is not enumerated among Heller s presumptively lawful regulatory measures, a separate historical analysis may be appropriate. Jackson itself examined founding-era laws only after concluding that a requirement that handguns be stored in a locked container resembles none of the items on the list of presumptively lawful regulations provided by Heller. 746 F.3d at 962. Chovan turned to a historical analysis only after holding that Heller s categories do not address bans on gun possession by misdemeanants rather than felons. 735 F.3d at Most recently, Peruta analyzed the history of concealed carry regulations because, as the dissent stressed, while the Court enumerated four presumptively lawful longstanding prohibitions, it did not list prohibitions of concealed weapons as one of them. Peruta v. County of San Diego, F.3d, Nos , , 2016 WL , at *22 (9th Cir. June 9, 2016) (en banc) (Callahan, J., dissenting). B. Similarly, the Fourth Circuit has recognized that although the Second Amendment protects an individual s right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm. 14

21 Case: , 07/21/2016, ID: , DktEntry: 79, Page 21 of 69 Chafin, 423 F. App x at The Fourth Circuit identified no authority that remotely suggests that, at the time of its ratification, the Second Amendment was understood to protect an individual s right to sell a firearm, so no regulation-specific analysis was required. Id. By recognizing a freestanding right to sell guns the first appellate decision to do so the panel s opinion conflicts with Chafin. C. The majority suggested it was following the Seventh Circuit s decision in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), which scrutinized Chicago s ban on firearm ranges because training in firearms proficiency is an important corollary to the meaningful exercise of the core right to possess firearms for self-defense. Id. at 708. Just like the firearm range in Ezell, the majority stated, Valley Guns plans to offer courses in firearms proficiency, so [t]he Ordinance s potential interference with such services was therefore a proper basis for [Appellants ] Second Amendment challenge. Maj. Op Although Chafin is unpublished, district courts in the Fourth Circuit afford it precedential weight. See Sundowner Ass n v. Wood Cty. Comm n, No. 2:14-CV-00193, 2014 WL , at *9 (S.D. W. Va. Aug. 13, 2014); United States v. Conrad, 923 F. Supp. 2d 843, 852 (W.D. Va. 2013). 15

22 Case: , 07/21/2016, ID: , DktEntry: 79, Page 22 of 69 But Valley Guns training services and Ezell have nothing to do with Appellants challenge to the ordinance, which regulates only the location of Firearms sales (emphasis added). If Valley Guns offered all the services Appellants intend to provide but did not trade in firearms, the firearms ordinance challenged here would have posed no obstacle. III. The Panel Opinion s Historical Analysis Was Defective. Even if a detailed historical analysis were required for a condition or qualification on the commercial sale of firearms, the majority still erred in its analysis. A. The majority faulted the County for not demonstrating that the zoning ordinance is a type of regulation that Americans at the time of the adoption of the Second Amendment or the Fourteenth Amendment (when the right was applied against the States) would have recognized as a permissible infringement of the traditional right. Maj. Op. 22; id. at ( [T]he Nation s first comprehensive zoning law did not come into existence until ). But the majority set too early a cutoff date. 16

23 Case: , 07/21/2016, ID: , DktEntry: 79, Page 23 of 69 Heller demonstrates that a regulation can be deemed longstanding even if it cannot boast a precise founding-era analogue. Nat l Rifle Ass n of Am., Inc. v. ATF, 700 F.3d 185, 196 (5th Cir. 2012). For example, Heller considered firearm possession bans on felons and the mentally ill to be longstanding, yet the current versions of these bans are of mid-20th century vintage. Id. at So too with conditions and qualifications on gun sales. Such regulations mostly arose in the 20th century. Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, (2009). Requiring an 18thcentury precedent for every modern condition or qualification on the commercial sale of firearms would render the presumptive validity Heller bestows almost meaningless. Looking to longstanding post-ratification regulations, in contrast, comports with the principle that postfounding practice is entitled to great weight in constitutional interpretation. NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (quoting The Pocket Veto Case, 279 U.S. 655, (1929)). The Supreme Court has already recognized that the Second Amendment is not frozen in time: Stun guns, for example, 17

24 Case: , 07/21/2016, ID: , DktEntry: 79, Page 24 of 69 are protected because the Second Amendment extends... to... arms... that were not in existence at the time of the founding. Caetano v. Massachusetts, 136 S. Ct. 1027, 1028 (2016) (per curiam) (quoting Heller, 554 U.S. at 582). Here, the relevant history is substantial. Firearms dealers have been closely regulated for over a century. In 1837, for example, Georgia regulated pistol sales by limiting those that could be lawfully sold to horseman s pistols Ga. Laws 90, I. Tennessee and South Carolina also regulated pistol sales. See 1879 Tenn. Pub. Acts 135, ch. XCVI, 1 (limiting sale to army or navy pistols ); 1901 S.C. Acts 748, No. 435, 1 (barring sale of smaller pistols). Delaware began licensing gun stores in Del. Laws 28, ch. 15, 2 (1911). And shortly after, Colorado, Oregon, and Missouri imposed recording and reporting requirements on dealers and manufacturers. See 1911 Colo. Laws 408, ch. 136, 3; 1913 Or. Laws 497, ch. 256, 1, 3; 1921 Mo. Laws 691, ch. 2, 1. In 1927, Congress enacted the first federal regulation of gun sellers. Nonmailable Firearms Act of 1927, Pub. L. No , 1, 44 Stat (1927). Then, in 1938, Congress created a licensing scheme 18

25 Case: , 07/21/2016, ID: , DktEntry: 79, Page 25 of 69 applicable to gun sellers. Federal Firearms Act of 1938, Pub. L. No , 2(a), 52 Stat (1938). The law preserved state and local regulation of gun sales. See 26 C.F.R (1939) (federal licenses confer no right to conduct business contrary to State or other law ). Congress then expanded the federal licensing scheme for firearms dealers in Gun Control Act of 1968, Pub. L. No , 82 Stat (1968). The Act aimed to aid state and local law enforcement in reducing violent crime by prohibiting anyone without a license from selling firearms or ammunition. Id. 101, 922(a)(1). Later, in 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, which gave the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the authority to condition the issuance of federal licenses on an applicant s certification that it complied with state and local law. Pub. L. No , , 108 Stat (1994) (codified at 18 U.S.C. 923(d)(1)(F)). Under this law, ATF issued guidance instructing its field offices to disapprove license applications when local zoning law so required. 2 2 GAO Letter Report, Federal Firearms Licensees: Various Factors Have Contributed to the Decline in the Number of Dealers, GAO/GGD (Mar. 29, 1996), available at 19

26 Case: , 07/21/2016, ID: , DktEntry: 79, Page 26 of 69 Alameda County s ordinance grew from this long line of federal, state, and local regulation of gun dealers. The ordinance requires that gun stores be kept away from sensitive areas. Alameda Cty., Cal., Code Sensibly so: The law shields these areas from the greater risk of crime and violence linked to gun dealing, without preventing residents from acquiring firearms and using them for selfdefense. Indeed, in commenting on Valley Guns application for a variance here, the Alameda County Sheriff expressed concern that the proposed location for the gun store would significantly increase the likelihood of calls for service including thefts, burglaries, and robberies. ER 167. B. In any event, the ordinance is akin to early regulations. Although codified zoning ordinances may be a 20th-century phenomenon, they were introduced in the United States as a reform of the nuisance law. See Robert H. Nelson, Zoning and Property Rights: An Analysis of the American System of Land Use Regulation 7 (1977). And prior to the Fourteenth Amendment, common-law courts regulated the location of gunpowder storage through nuisance law. See, e.g., Simpson v. Justice, 43 N.C. 115, 117 (1851); Cheatham v. Shearon, 31 20

27 Case: , 07/21/2016, ID: , DktEntry: 79, Page 27 of 69 Tenn. 213, (1851); see also Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 511 (2004). State regulation of firearms dealers predates the Reconstruction as well; as noted above (at 18), Georgia regulated sales as early as Against this backdrop, the ordinance fits comfortably within the longstanding tradition of regulating the sale of firearms, including with respect to location. IV. The Question Presented Is Exceptionally Important. Whether regulations of gun dealers are subject to heightened Second Amendment scrutiny is an important and recurring question that merits en banc consideration. The panel s holding will affect a wide swath of local firearms regulations. In California alone, at least seventeen cities and counties have zoning laws that prohibit gun stores from opening in residential areas. See Addendum B. More broadly, the panel opinion will subject all modern regulations on the commercial sale of firearms to heightened scrutiny. Litigation over such regulations will rarely survive motions to dismiss and will thus proceed into discovery, creating expensive 21

28 Case: , 07/21/2016, ID: , DktEntry: 79, Page 28 of 69 barriers for localities that seek to ensure the safety of commerce in guns consistent with local needs. Second Amendment challenges to the regulation of gun sales recur frequently in this Court. In addition to Nordyke, Castro, and this case, appeals over California restrictions on firearms dealers are pending and will be affected by the panel opinion here. See Bauer v. Harris, 94 F. Supp. 3d 1149, 1155 (E.D. Cal. 2015) (holding a fee imposed on dealers for gun sales falls outside the Second Amendment s scope), appeal filed, No ; Pena v. Lindley, No. 2:09-CV KJM, 2015 WL , at *13 (E.D. Cal. Feb. 26, 2015) (statute prohibiting sale of certain handguns was one of the presumptively lawful regulatory measures identified in Heller and, as such, falls outside the historical scope of the Second Amendment ) (internal quotation marks omitted), appeal filed, No This Court has previously granted rehearing en banc where divided panel opinions in this new area of constitutional law posed serious threats to the reasonable regulation of deadly weapons. See Nordyke, 681 F.3d 1041; Peruta, 2016 WL En banc review is similarly warranted here. 22

29 Case: , 07/21/2016, ID: , DktEntry: 79, Page 29 of 69 CONCLUSION For the foregoing reasons, this Court should grant the County s petition for rehearing en banc. Respectfully submitted, Donna R. Ziegler Scott J. Feudale OFFICE OF THE COUNTY COUNSEL, ALAMEDA COUNTY 1221 Oak Street, Suite 450 Oakland, CA Naomi J. Mower ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY /s/robert M. Loeb Robert M. Loeb Thomas M. Bondy ORRICK, HERRINGTON & SUTCLIFFE LLP th Street NW Washington, DC (202) Brian P. Goldman ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA Counsel for Defendants-Appellees July 21,

30 Case: , 07/21/2016, ID: , DktEntry: 79, Page 30 of 69 CERTIFICATE OF COMPLIANCE I certify that pursuant to Circuit Rules 35-4 and 40-1, the foregoing Appellees Petition for Rehearing or Rehearing En Banc is proportionately spaced, has a typeface of 14 points or more and contains 4192 words. ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Robert M. Loeb Robert M. Loeb Counsel for Defendants-Appellees

31 Case: , 07/21/2016, ID: , DktEntry: 79, Page 31 of 69 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on July 21, I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Robert M. Loeb Robert M. Loeb Counsel for Defendants-Appellees

32 Case: , 07/21/2016, ID: , DktEntry: 79, Page 32 of 69 ADDENDUM A Panel Slip Opinion, Teixeira v. County of Alameda, No (9th Cir. May 16, 2016)

33 Case: , 07/21/2016, ID: , DktEntry: 79, Page 33 of 69 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN TEIXEIRA; STEVE NOBRIGA; GARY GAMAZA; CALGUNS FOUNDATION, INC., (CGF); SECOND AMENDMENT FOUNDATION, INC., (SAF); CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES, (CAL-FFL), Plaintiffs-Appellants, No D.C. No. 3:12-cv WHO OPINION v. COUNTY OF ALAMEDA; ALAMEDA COUNTY BOARD OF SUPERVISORS, as a policy making body; WILMA CHAN, in her official capacity; NATE MILEY, in his official capacity; KEITH CARSON, in his official capacity, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California William Horsley Orrick III, District Judge, Presiding Argued and Submitted December 8, 2015 San Francisco, California

34 Case: , 07/21/2016, ID: , DktEntry: 79, Page 34 of 69 2 TEIXEIRA V. COUNTY OF ALAMEDA Filed May 16, 2016 Before: Diarmuid F. O Scannlain, Barry G. Silverman, and Carlos T. Bea, Circuit Judges. Opinion by Judge O Scannlain; Partial Concurrence and Partial Dissent by Judge Silverman SUMMARY * Civil Rights The panel affirmed in part and reversed in part the district court s dismissal for failure to state a claim, and remanded in an action brought by three individuals wishing to operate a gun shop in Alameda County, California, who challenged a County ordinance, which among other things, does not permit prospective gun stores to be located within 500 feet of a residentially zoned district. Affirming the dismissal of the Equal Protection claims, the panel determined that this was not a situation where one group was being denied a right while another similar group was not. The panel held that because the right to keep and to bear arms for self-defense is not only a fundamental right, but an enumerated one, it was more appropriately analyzed under the Second Amendment than the Equal Protection Clause. The panel further held that plaintiffs failed to plead a * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

35 Case: , 07/21/2016, ID: , DktEntry: 79, Page 35 of 69 TEIXEIRA V. COUNTY OF ALAMEDA 3 cognizable class-of-one claim because they had neglected to identify a similarly situated business. 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. Concurring in part and dissenting in part, Judge Silverman agreed that the equal protection claims were correctly dismissed, but dissented from the majority s opinion regarding the Second Amendment. In Judge Silverman s view this case was a mundane zoning dispute dressed up as a Second Amendment challenge and the district court correctly ruled that the ordinance restricting the location of a gun store is quite literally a law[] imposing conditions and qualifications on the commercial sale of arms.

36 Case: , 07/21/2016, ID: , DktEntry: 79, Page 36 of 69 4 TEIXEIRA V. COUNTY OF ALAMEDA COUNSEL Donald E. J. Kilmer, Jr., San Jose, California, argued the cause and filed the briefs for the plaintiffs-appellants. With him on the opening brief was Charles W. Hokanson, Long Beach, California. Scott J. Feudale, County Counsel, Alameda County, California, argued the cause for the defendants-appellees. Donna R. Ziegler, County Counsel, and Mary Ellyn Gormley, Assistant County Counsel, filed the brief. Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia, filed a brief on behalf of amicus curiae Citizens Committee for the Right to Keep and Bear Arms in support of the plaintiffs-appellants. Imran A. Khaliq, Arent Fox LLP, filed a brief on behalf of amici curiae Law Center to Prevent Gun Violence and Youth Alive! in support of the defendantsappellees.

37 Case: , 07/21/2016, ID: , DktEntry: 79, Page 37 of 69 TEIXEIRA V. COUNTY OF ALAMEDA 5 OPINION O SCANNLAIN, Circuit Judge: We must decide whether the right to keep and to bear arms, as recognized by the Second Amendment, necessarily includes the right of law-abiding Americans to purchase and to sell firearms. In other words, we must determine whether the Second Amendment places any limits on regulating the commercial sale of firearms. I A In the fall of 2010, John Teixeira, Steve Nobriga, and Gary Gamaza decided to open a retail business that would offer firearm training, provide gun-smith services, and sell firearms, ammunition, and gun-related equipment. The three formed a partnership named Valley Guns & Ammo and set to work on making their plan a reality. The trio conducted an extensive survey of Alameda County, California residents and discovered that existing retail establishments failed to satisfy customer demand. The men believed that Alameda County residents were in need of a more personal experience, and were likely to embrace a business that could provide a broader range of services not offered by existing sporting goods retailers. The City of San Leandro appeared to be the ideal location for their gun store. Teixeira had operated an Alameda County gun store previously and was thus well aware of the maze of federal, state, and local regulations that he and his partners would have to navigate before they could open shop. Teixeira and

38 Case: , 07/21/2016, ID: , DktEntry: 79, Page 38 of 69 6 TEIXEIRA V. COUNTY OF ALAMEDA Nobriga qualified for federal firearm licenses; all three men were eligible for California licenses. All that remained was to ensure that Valley Guns & Ammo would be in compliance with the Alameda County code. In unincorporated Alameda County, two species of retailers must obtain Conditional Use Permits before they are authorized to conduct business: superstore[s] and firearms sales business[es]. Alameda Cty., Cal., Code ( the Ordinance ). The County reviews applications to determine whether there is a public need for a proposed business, whether the business will affect adversely the health or safety of persons residing or working in the vicinity, and whether the business would be detrimental to the public welfare or property. Id The County will not issue a permit to a prospective gun retailer until the applicant proves, among other things, that it (1) possesses the requisite state and federal licenses, (2) will store firearms and ammunition lawfully, and (3) the proposed location of the business is not within five hundred feet of a [r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served. Id Finally, firearms sellers must obtain a county firearms dealer license. Id The Alameda County Planning Department informed Teixeira, Nobriga, and Gamaza (collectively Teixeira ) that the 500-foot zoning requirement was to be measured from the closest door of the proposed business location to the front door of any disqualifying property. Relying on such guidance, Teixeira settled on a suitable property on Lewelling Boulevard in San Leandro. The building he chose had only one door, which faced Lewelling Boulevard. Teixeira

39 Case: , 07/21/2016, ID: , DktEntry: 79, Page 39 of 69 TEIXEIRA V. COUNTY OF ALAMEDA 7 obtained a survey showing that the closest residential property (from door to door) was located 532 feet away, across Interstate 880 in San Lorenzo Village. The next closest disqualifying properties, similarly measured, were a residence located 534 feet away and another property located 560 feet away (the latter also on the far side of the Interstate). Teixeira met with the landlord of the chosen premises, agreed to a lease, and began conducting preparations to ensure that the property would comply with myriad state and federal regulations. The West County Board of Zoning Adjustment scheduled a hearing and the Planning Department issued a Staff Report. Aside from raising concerns regarding compliance with the Eden Area General Plan, 1 the report found that there was indeed a public need for Valley Guns & Ammo s services, that the proposed business would not affect adversely the health or safety of local residents, that it had obtained all required licenses, and that Teixeira had sufficient knowledge to operate a gun store. The report nevertheless concluded that a zoning variance would be required because the proposed site, contrary to the survey Teixeira had commissioned, was in fact within 500 feet of a residential property and therefore failed to qualify for a permit. The report explained that the County had chosen to measure from the closest building exterior wall of the proposed site to the closest residential property line rather than from door to door. As a result, it determined that the nearest residential property was only 446 feet away 54 feet too close under the 500-foot rule. The report recommended against approving a variance. 1 The Eden Area General Plan deals largely with aesthetics and has a stated goal of [e]stablish[ing] a clearly defined urban form and structure to the Eden Area in order to enhance the area s identity and livability.

40 Case: , 07/21/2016, ID: , DktEntry: 79, Page 40 of 69 8 TEIXEIRA V. COUNTY OF ALAMEDA Despite the report, at a public hearing on December 14, 2011, the West County Board of Zoning Adjustments voted to grant a variance and approved the issuance of a permit. Noting the violation of the 500-foot rule, the Board reasoned that the situation [was] unique and thus a variance was appropriate because Interstate 880, as well as other obstructions, prevented direct traversable access at a distance less than 500 feet from the site to a residentially zoned district. The Board determined that Teixeira s proposal otherwise complied with the Conditional Use Permit requirements, and that it was not counter to the Eden Area General Plan. Teixeira was informed that the decision would be final unless an appeal were filed by December 26, The San Lorenzo Village Homes Association, some of whose members are opposed to guns and their ready availability and therefore believe that gun shops should not be located within [their] community, challenged the Board s decision. On February 28, 2012, the Alameda County Board of Supervisors voted to sustain the appeal, thus revoking Teixeira s Conditional Use Permit and variance. B Teixeira challenged the County s decision in the United States District Court for the Northern District of California, arguing that it violated his right to due process and denied him equal protection of the law, and that the Ordinance was impermissible under the Second Amendment both facially and as applied. In preparation for the suit, Teixeira commissioned a study, which determined that, as a result of the 500-foot rule, there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales. He argued that the zoning ordinance is

41 Case: , 07/21/2016, ID: , DktEntry: 79, Page 41 of 69 TEIXEIRA V. COUNTY OF ALAMEDA 9 not reasonably related to any possible public safety concerns and effectively red-lin[es]... gun stores out of existence. Alameda County moved to dismiss the claims and Teixeira moved for a preliminary injunction (Teixeira would later stipulate to the dismissal of his due process claim). The district court denied Teixeira s motion and dismissed the equal protection and Second Amendment claims with leave to amend. Teixeira filed an amended complaint that asserted four claims: (1) in singling out gun stores, the Ordinance, as applied, violated the Fourteenth Amendment s Equal Protection Clause; (2) the Ordinance was facially invalid under the Equal Protection Clause because it targeted guns stores but did not apply to other similarly situated businesses; (3) the Ordinance was facially invalid under the Second Amendment; and (4) the Ordinance, as applied, violated the Second Amendment. Teixeira sought declaratory and injunctive relief; damages including costs, expenses, and lost profits; and costs and attorney s fees. In response, the County moved to dismiss, arguing that the equal protection challenges failed to state sufficient facts to support a claim and that under the Second Amendment, regulations governing the sale of firearms are presumptively valid. The district court granted the County s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss for failure to state a claim upon which relief could be granted. Teixeira timely appealed. II Teixeira first renews his Equal Protection Clause claims. Because most legislation classifies for one purpose or another, with resulting disadvantage to various groups or

42 Case: , 07/21/2016, ID: , DktEntry: 79, Page 42 of TEIXEIRA V. COUNTY OF ALAMEDA persons, we will uphold a legislative classification so long as it neither burdens a fundamental right nor targets a suspect class, and bears a rational relation to some legitimate end. Romer v. Evans, 517 U.S. 620, 631 (1996); see also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). A Because gun store owners have not been recognized as a suspect class, see Olympic Arms v. Buckles, 301 F.3d 384, (6th Cir. 2002), Teixeira instead asserts that he is engaged in, or assisting others in exercising a core fundamental right and that the Government s actions infringe on that right. Merely infringing on a fundamental right, however, does not implicate the Equal Protection Clause; to succeed, Teixeira must allege that he is being denied a fundamental right while others are permitted to exercise such right, and that there is no valid justification for the distinction. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) ( When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. ); see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969), overruled, in part, on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974). Here, other general retailers, whom Teixeira identifies as similarly situated businesses, are also forbidden from engaging in the commercial sale of firearms absent compliance with Alameda County Land Use Code This is not a situation where one group is being denied a right while another similar group is not. And because the right to keep and to bear arms for self-defense is