## Facts

- Alameda County enacted a zoning ordinance regulating firearm dealers in unincorporated areas.
- The ordinance required firearm retailers to obtain a conditional use permit (CUP) and barred gun stores within 500 feet of specified “sensitive uses,” including residentially zoned districts, schools and day-care centers, other firearm retailers, and liquor stores.
- John Teixeira and business partners sought to open “Valley Guns & Ammo” in San Lorenzo and consulted county staff about how the 500-foot distance would be measured (door-to-door).
- Based on that guidance, plaintiffs selected a site they believed complied; a county zoning board initially approved the CUP.
- A nearby homeowners’ association objected, asserting the site was within 500 feet of a residentially zoned district; the County later agreed and revoked the CUP.
- Plaintiffs alleged the 500-foot buffer made it effectively impossible to locate a compliant site for a new gun store in the unincorporated area, burdening both the proposed sellers and law-abiding customers seeking to acquire firearms.
- Plaintiffs also asserted due process, equal protection, and takings claims arising from the ordinance and permit revocation.

## Issues

1. Whether the County’s 500-foot zoning restriction, as applied to prevent a new gun store from opening, plausibly burdened conduct protected by the Second Amendment by materially impairing residents’ ability to acquire firearms (and/or a proprietor’s ability to sell them).
2. Whether plaintiffs stated plausible claims under the Due Process Clause, Equal Protection Clause, or Takings Clause based on the ordinance and CUP denial/revocation.
3. Whether the would-be sellers could assert third-party standing to raise prospective customers’ Second Amendment interests.

## Decision

- The Ninth Circuit panel affirmed in part and reversed in part the dismissal under Rule 12(b)(6).
- It held the complaint plausibly alleged a Second Amendment burden because the right to keep and bear arms includes a right to acquire firearms, and plaintiffs alleged the ordinance effectively foreclosed a lawful retail outlet in the relevant area.
- It concluded the case required further factual development before selecting and applying the appropriate level of scrutiny at the second step of the Second Amendment framework.
- It held plaintiffs had third-party standing to assert prospective customers’ firearm-acquisition rights.
- It affirmed dismissal of the due process, equal protection, and takings claims for insufficient pleading.

## Legal Principles

- A Second Amendment challenge is analyzed under a two-step framework: (1) whether the law burdens conduct within the Amendment’s scope (informed by text, history, and precedent), and (2) if so, whether the law survives an appropriate level of heightened scrutiny based on the severity of the burden.
- The Second Amendment right to keep and bear arms may extend to acquisition of firearms; regulations that substantially impair realistic access to lawful firearm purchase can trigger Second Amendment scrutiny.
- “Conditions and qualifications on the commercial sale of arms” may be permissible, but a pleaded allegation that a regulation effectively eliminates lawful acquisition avenues can be sufficient to survive dismissal.
- At the pleading stage, courts accept well-pleaded factual allegations as true and generally do not resolve contested factual questions about market availability or alternative access channels.
- Third-party standing may exist where plaintiffs have a close relationship with the right-holders (prospective customers) and there is a sufficient obstacle to customers’ effective assertion of their own rights.
- There is no separate fundamental right to operate a gun store outside the Second Amendment analysis; absent a fundamental right or suspect classification, due process and equal protection claims are tested under rational basis review.
- A takings claim requires plausible allegations of a compensable taking; conclusory assertions tied to permit denial or zoning restrictions are insufficient.

## Conclusion

The Ninth Circuit panel revived the Second Amendment claim because plaintiffs plausibly alleged the County’s 500-foot zoning scheme effectively prevented a new gun store from opening and could substantially burden residents’ ability to acquire firearms, while it upheld dismissal of plaintiffs’ due process, equal protection, and takings theories.


Teixeira v. County of Alameda, 822 F.3d 1047 (9th Cir. 2016)