[Eugene Volokh] Amicus brief in Second Amendment gun store zoning case

I blogged in May about Teixeira v. County of Alameda, an interesting Ninth Circuit decision on the Second Amendment, gun stores, and zoning. I’m pleased to say that Friday I filed an amicus brief on behalf of Profs. Randy Barnett, Bob Cottrol, Brannon Denning, Michael O’Shea, and Glenn Harlan Reynolds, as well as the Firearms Policy Foundation, urging the Ninth Circuit to oppose en banc review of the case. You can see the brief in PDF here, but I thought I’d also quote the text below, for those who are interested:

Summary of Argument

The panel decision correctly applies standard, familiar, and uncontroversial constitutional rights principles to a slightly different context: the Second Amendment. There is no need for the en banc court to revisit this application.

1. The panel decision recognizes that, as with other rights, the Second Amendment must protect conduct that people need to engage in to exercise their rights. The First Amendment protects not just the right to speak, but also the right to spend money to buy advertising space. Once the Supreme Court has recognized the rights to use contraceptives and get abortions, a state may not unduly interfere with people buying contraceptives, or obtaining abortions from a doctor. Likewise, the Second Amendment right to possess guns to defend oneself and one’s family protects the right to buy such guns.

2. The panel decision recognizes that the power to regulate such behavior — behavior necessary for people to exercise their rights — does not include the power to ban the behavior. The First Amendment allows the government to impose certain content-neutral restrictions on, for instance, signs in residential areas, but not to totally ban such signs. Reproductive rights recognized by the Supreme Court allow the government to regulate abortion clinics, but not to ban them. Likewise, the government’s power to “impos[e] conditions and qualifications on the commercial sale of arms,” D.C. v. Heller, 554 U.S. 570, 626-27 (2008), does not include the power to forbid gun stores altogether.

3. The panel recognizes that a government may not completely ban providing a constitutionally protected product or service within its jurisdiction. California law allows county governments to impose zoning conditions only on unincorporated areas within the county. Zoning in incorporated areas is within the jurisdiction of city governments, not the county government. Plaintiffs’ complaint thus alleges that Alameda County’s zoning rules categorically ban gun stores everywhere that Alameda County has the power to ban them. This would make those zoning rules just like the ban on live entertainment that the Supreme Court struck down under the First Amendment in Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981), and the ban on firing ranges that the Seventh Circuit struck down in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

Nor does it matter whether the constitutionally protected product or service could be obtained in a neighboring jurisdiction (such as an incorporated area that is governed by city rules). What one jurisdiction can do, others can do, too. If Alameda County can ban gun stores within its jurisdiction, cities in Alameda County can ban gun stores within theirs, and neighboring counties can do the same.

Indeed, since gun restrictions, like other laws, are often the product of broader social movements, jurisdictions may well be inclined to follow their neighbors’ lead. Thus, even when live entertainment or gun training or gun stores are available nearby at one time, they may no longer be available a few years later. Rather than letting the constitutionality of an ordinance ebb and flow depending on what neighboring jurisdictions do, the panel decision rightly concluded that the alleged complete ban was presumptively unconstitutional.

4. Finally, the panel decision recognizes that, as with other rights, restrictions on Second Amendment rights must be founded on evidence, not mere hypothetical speculation. Regulations (but not total prohibitions) of the location of bookstores might, for instance, be permissible when the government has real evidence that the presence of the bookstores can cause harmful “secondary effects,” such as by attracting people who will commit crimes at or near the bookstore.

Likewise, regulations of the location of gun stores might be permissible if the government has real evidence that the people who buy guns at those stores will commit crimes at or near the stores. Amici doubt that such evidence can be found: The overwhelming majority of people who buy guns at gun stores are law-abiding, and indeed must by law lack any serious criminal