9th Circuit Overturns California Gun Rights Victory

By Kevin Daley

Eleven judges of the 9th U.S. Circuit Court of Appeals will rehear a challenge to a local law which strictly limits where new gun retailers may be opened.

A three-judge panel heard the case in May and sided with pro-Second Amendment activists, ruling their challenge to the law could proceed. The full 9th Circuit elected to review that decision this week, dealing a blow to the gun rights activists. The decision is the latest in a string of defeats gun rights groups have suffered in the 9th Circuit. Earlier this month the court upheld a California state law imposing a 10-day waiting period on all firearms challenges.

The case was occasioned when a group of businessmen hoping to open new firearms retailers challenged an Alameda County ordinance that prohibits new gun stores in unincorporated areas within 500 feet of residential neighborhoods, liquor stores, schools, or other gun shops. The lower court ruled in May the county had failed to justify its infringement on a constitutionally-protected activity and that a challenge to the law could proceed in federal court.

“[T]he County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns,” wrote Judge Diarmuid O’Scannlain in the May decision. “The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.”

O’Scannlain, a Reagan appointee, will assume senior status at the end of the year. (RELATED: California Concealed Carry Battle On Track For Supreme Court)

That decision will now be reviewed by an 11-judge panel led by Chief Judge Sidney Thomas, a Clinton appointee. A group of prominent conservative and libertarian legal scholars — including Eugene Volokh, Randy Barnett, and Glenn Harlan Reynolds — wrote an amicus (or “friend of the court”) brief for the Firearms Policy Foundation urging the full 9th Circuit not to review the decision.

“The outcome here could affect whether dozens of other city, county, and state laws are going to be subjected to grueling litigation challenges,” said Brian Goldman of Orrick, Herrington & Sutcliffe, who is representing Alameda County. “We’re glad the court’s going to take a closer look at this,” Goldman continued.

Goldman says 17 other cities and towns in California have similar laws, and a decision favoring the gun-rights advocates would subject all of those ordinances to litigation.

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