John Teixeira v. County of Alameda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN TEIXEIRA; STEVE NOBRIGA; No. 13-17132

GARY GAMAZA; CALGUNS

FOUNDATION, INC., (CGF); SECOND D.C. No.

AMENDMENT FOUNDATION, INC., 3:12-cv-03288-

(SAF); CALIFORNIA ASSOCIATION OF WHO

FEDERAL FIREARMS LICENSEES,

(CAL-FFL),

Plaintiffs-Appellants, 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, District Judge, Presiding

Argued and Submitted En Banc March 22, 2017

San Francisco, California

Filed October 10, 2017

2 TEIXEIRA V. COUNTY OF ALAMEDA

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt, M. Margaret McKeown, Ronald M. Gould,

Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,

Jay S. Bybee, Carlos T. Bea, Paul J. Watford and

John B. Owens, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Owens;

Partial Concurrence and Partial Dissent by Judge Tallman;

Dissent by Judge Bea

TEIXEIRA V. COUNTY OF ALAMEDA 3

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s dismissal,

for failure to state a claim, of an action brought pursuant to

42 U.S.C. § 1983 alleging that the County of Alameda

violated the Second Amendment when it denied individual

plaintiffs conditional use permits to open a gun shop because

the proposed location of the shop fell within a prohibited

County zone.

The County of Alameda (1) requires firearm retailers to

obtain a conditional use permit before selling firearms in the

County and (2) prohibits firearm sales near residentially

zoned districts, schools and day-care centers, other firearm

retailers, and liquor stores. Plaintiffs challenged the County’s

zoning ordinance, alleging that by restricting their ability to

open a new, full-service gun store, the ordinance infringed on

their Second Amendment rights, as well as those of their

potential customers.

The en banc court held that plaintiffs had not plausibly

alleged that the County’s ordinance impeded any resident of

Alameda County who wished to purchase a firearm from

doing so. Accordingly, plaintiffs failed to state a claim for

relief based on infringement of the Second Amendment rights

of their potential customers. The en banc court further held

that plaintiffs could not state a Second Amendment claim

based solely on the ordinance’s restriction on their ability to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 TEIXEIRA V. COUNTY OF ALAMEDA

sell firearms. The panel held that a textual and historical

analysis of the Second Amendment demonstrated that the

Constitution does not confer a freestanding right on

commercial proprietors to sell firearms. Alameda County’s

zoning ordinance therefore survived constitutional scrutiny.

Concurring, Judge Owens joined all but Part II.D of the

majority opinion. In Judge Owens’ view, there was no need

to decide whether the Second Amendment guarantees the

right to sell firearms because the ordinance at issue here fell

within that category of presumptively lawful regulatory

measures, and plaintiffs therefore could not state a viable

Second Amendment claim.

Concurring in part and dissenting in part, Judge Tallman

concurred in the majority’s decision to affirm the dismissal of

the Second Amendment facial challenge. He dissented from

the dismissal of the constitutional challenge as applied to

plaintiffs, stating that the majority’s analysis of the Second

Amendment challenge to locating a full-service gun shop in

an unincorporated area of Alameda County substantially

interfered with the right of its customers to keep and bear

arms.

Dissenting, Judge Bea stated that neither the historical

evidence nor the language of District of Columbia v. Heller,

554 U.S. 570 (2008) supported the majority’s conclusion that

the Second Amendment offers no protection against

regulations on the sale of firearms.

TEIXEIRA V. COUNTY OF ALAMEDA 5

COUNSEL

Donald E. J. Kilmer, Jr. (argued), San Jose, California, for

Plaintiffs-Appellants.

Brian P. Goldman (argued), Orrick Herrington & Sutcliffe

LLP, San Francisco, California; Donna R. Ziegler, County

Counsel; Office of the County Counsel, County of Alameda,

Oakland, California; for Defendants-Appellees.

Alan Gura, Gura & Possessky PLLC, Alexandria, Virginia,

for Amicus Curiae Citizens Committee for the Right to Keep

and Bear Arms.

Imran A. Khaliq, Arent Fox LLP, San Francisco, California;

Laura J. Edelstein, Steptoe & Johnson LLP, Palo Alto,

California; for Amici Curiae Law Center to Prevent Gun

Violence, and Youth Alive!

T. Peter Pierce and Stephen D. Lee, Richards Watson &

Gershon APC, Los Angeles, California, for Amici Curiae

League of California Cities, and California State Association

of Counties.

Kathryn Marshall Ali, Anna M. Kelly, and Adam K. Levin,

Hogan Lovells US LLP, Washington, D.C.; Jasmeet K.

Ahuja, Hogan Lovells US LLP, Philadelphia, Pennsylvania;

Kelly Sampson, Avery Gardiner, Alla Lefkowitz, and

Jonathan Lowy, Brady Center to Prevent Gun Violence; for

Amicus Curiae Brady Center to Prevent Gun Violence.

Lisa Hill Fenning, Amanda Semaan, Eric D. Mason, and

Stephanie N. Kang, Arnold & Porter LLP, Los Angeles,

California; Anton A. Ware and David A. Caine, Arnold &

6 TEIXEIRA V. COUNTY OF ALAMEDA

Porter LLP, San Francisco, California; for Amicus Curiae

Dean Erwin Chemerinsky.

Peter H. Chang, Deputy Attorney General; Marc A.

LeForestier, Supervising Deputy Attorney General; Douglas

J. Woods, Senior Assistant Attorney General; Kathleen A.

Kenealy, Chief Assistant Attorney General; Edward C.

DuMont, Solicitor General; Office of the Attorney General,

San Francisco, California; for Amicus Curiae State of

California.

Eugene Volokh, Los Angeles, California, for Amici Curiae

Professors Randy Barnett, Robert J. Cottrol, Brannon

Denning, Michael O’Shea, and Glenn Harlan Reynolds, and

The Firearms Policy Foundation.

Bradley A. Benbrook and Stephen M. Duvernay, Benbrook

Law Group PC, Sacramento, California, for Amici Curiae

Firearms Policy Coalition, Golden State Second Amendment

Council, Madison Society Foundation, Commonwealth

Second Amendment Inc., Gun Owners of California, and San

Diego County Gun Owners Political Action Committee.

Craig A. Livingston and Crystal L. Van Der Putten,

Livingston Law Firm P.C., Walnut Creek, California;

Lawrence G. Keane, General Counsel, The National Shooting

Sports Foundation Inc., for Amicus Curiae The National

Shooting Sports Foundation Inc.

Paul D. Clement, Erin E. Murphy, and Christopher G.

Michel, Kirkland & Ellis LLP, Washington, D.C.; C.D.

Michel, Michel & Associates P.C., Long Beach, California;

for Amici Curiae National Rifle Association of America Inc.,

and California Rifle & Pistol Association.

TEIXEIRA V. COUNTY OF ALAMEDA 7

Joseph G.S. Greenlee, Jolein A. Harro P.C., Steamboat

Springs, Colorado; David B. Kopel, Independence Institute,

Denver, Colorado; for Amici Curiae Jews for the Preservation

of Firearms Ownership, and The Independence Institute.

OPINION

BERZON, Circuit Judge:

The County of Alameda seeks to preserve the health and

safety of its residents by (1) requiring firearm retailers to

obtain a conditional use permit before selling firearms in the

County and (2) prohibiting firearm sales near residentially

zoned districts, schools and day-care centers, other firearm

retailers, and liquor stores. The individual plaintiffs in this

case, John Teixeira, Steve Nobriga, and Gary Gamaza

(collectively, “Teixeira”), wished to open a gun shop but

were denied a conditional use permit because the proposed

location of their gun shop fell within a prohibited zone.

Teixeira challenges the County’s zoning ordinance, alleging

that by restricting his ability to open a new, full-service gun

store, the ordinance infringes on his Second Amendment

rights, as well as those of his potential customers.

Teixeira has not, however, plausibly alleged that the

County’s ordinance impedes any resident of Alameda County

who wishes to purchase a firearm from doing so.

Accordingly, he has failed to state a claim for relief based on

infringement of the Second Amendment rights of his potential

customers. And, we are convinced, Teixeira cannot state a

Second Amendment claim based solely on the ordinance’s

restriction on his ability to sell firearms. A textual and

historical analysis of the Second Amendment demonstrates

8 TEIXEIRA V. COUNTY OF ALAMEDA

that the Constitution does not confer a freestanding right on

commercial proprietors to sell firearms. Alameda County’s

zoning ordinance thus survives constitutional scrutiny.

I. Background

A.

In the fall of 2010, Teixeira, Nobriga, and Gamaza

formed a partnership, Valley Guns and Ammo, with the

intention of opening a gun store in Alameda County,

California. After conducting local market research among

gun enthusiasts, Teixeira concluded that there was a demand

for a full service gun store in an unincorporated area of

Alameda County called San Lorenzo, near the incorporated

city of San Leandro. In response to this demand, Teixeira

intended to open a specialty shop that would sell new and

used firearms and ammunition and would also provide gun

repairs, gun smithing, appraisals, and training and

certification in firearm safety.

Teixeira contacted the Alameda County Planning

Department for information as to any land use or other

permits necessary to open a gun store in unincorporated areas

of the County.1 The Planning Department informed Teixeira

1

Regulations enacted by California counties are effective only in

unincorporated areas, as city governments exercise regulatory authority

within city boundaries. See Cal. Const. art. XI, § 7 (“A county or city may

make and enforce within its limits all local, police, sanitary, and other

ordinances and regulations not in conflict with general laws.”); City of S.

San Francisco v. Berry, 120 Cal. App. 2d 252, 253 (Cal. Dist. Ct. App.

1953) (explaining that when unincorporated land is annexed by a city it

leaves “the territorial jurisdiction of the county” and thus “cease[s] to be

within [the county’s] limits”) (internal quotation marks omitted).

TEIXEIRA V. COUNTY OF ALAMEDA 9

that because he intended to sell firearms, he would need to

obtain a Conditional Use Permit pursuant to Alameda County

Ordinance Sections 17.54.130 et seq. Conditional Use

Permits are required for certain land uses and are granted

after a special review in which the County determines

whether or not the proposed business (1) is required by public

need; (2) is properly related to other land uses and

transportation and service facilities in the area; (3) if

permitted, will materially and adversely affect the health or

safety of persons residing or working in the vicinity; and

(4) will be contrary to the specific performance standards

established for the area. Alameda Cty., Cal., Code

§ 17.54.130.

The County informed Teixeira that to receive a

Conditional Use Permit for his proposed gun store, he also

had to comply with Alameda County Ordinance Section

17.54.131 (the “Zoning Ordinance”). That ordinance

requires, among other things, that businesses selling firearms

in unincorporated areas of the County be located at least five

hundred feet away from any of the following: schools, day

care centers, liquor stores or establishments serving liquor,

other gun stores, and residentially zoned districts.2

2

The ordinance provides in relevant part that “no conditional use

permit for firearms sales shall issue unless the following additional

findings are made by the board of zoning adjustments based on sufficient

evidence. . . (B) That the subject premises is not within five hundred (500)

feet of any of the following: Residentially 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 . . . .”

Alameda Cty., Cal., Code § 17.54.131.

The ordinance additionally requires that: (1) the proposed district is

appropriate for firearm sales activity, (2) the applicant possess all firearms

10 TEIXEIRA V. COUNTY OF ALAMEDA

Based on this guidance, Teixeira identified a suitable

rental property at 488 Lewelling Boulevard in unincorporated

Alameda County.3 Teixeira obtained a survey that showed,

based on door-to-door measurements,4 that the property was

more than 500 feet from any disqualifying property under the

Zoning Ordinance. Teixeira began arranging with the

landlord to lease the Lewelling Boulevard property and to

make the modifications necessary to transform the space into

a gun store compliant with all state and federal regulations.

Teixeira then applied to the Alameda County Community

Development Agency for a Conditional Use Permit for his

planned store. Staff of the Alameda County Community

Development Agency Planning Department (“Planning

Department”) prepared a report for the West County Board of

Zoning Adjustments (“Zoning Board”) on Teixeira’s

application. The staff report made the following findings:

there was a public need for a licensed firearms dealer; the

dealer licenses required by federal and state law, (3) the applicant obtain

a firearms dealer license from Alameda County before commencing sales,

(4) the premises fully comply with applicable building, fire, and other

technical codes, and (5) the applicant has provided sufficient detail

regarding intended compliance with California penal code requirements

for safe storage of firearms and ammunition at the premises. Id.

3

The parties and record variously locate 488 Lewelling Boulevard in

San Lorenzo (an unincorporated area of the County), Ashland (another

unincorporated area of the County), and San Leandro (an incorporated city

in the County). The parties are agreed, however, that the property is

located somewhere in unincorporated Alameda County.

4

Teixeira maintains that the County informed him that, for purposes

of compliance with the 500-foot rule, measurements should be taken from

the closest door of the intended store to the front door of any disqualifying

property.

TEIXEIRA V. COUNTY OF ALAMEDA 11

proposed use was compatible with other land uses and

transportation in the area; and a gun shop at the proposed site

would not adversely affect the health or safety of persons

living and working in the vicinity. The staff report also

found, however, that the site of the proposed gun shop did not

satisfy the Zoning Ordinance’s distance requirements,

because it was approximately 446 feet from two residential

properties in different directions. The staff report’s distance

calculation was based on measurement from the closest

exterior wall of the proposed gun shop to the property lines

of the disqualifying properties. The staff report thus

recommended denying Teixeira’s permit application.

The Zoning Board held a public hearing on Teixeira’s

Conditional Use Permit application. Teixeira appeared at the

hearing and offered testimony in support of his application;

neighborhood residents also appeared, some testifying in

support of the application and others in opposition.

After the hearing, the Planning Department issued a

revised staff report. That report acknowledged the ambiguity

in the Zoning Ordinance regarding how the 500 feet should

be measured for the purpose of determining compliance. The

report nevertheless concluded that the proposed gun store

location was less than 500 feet from the property line of the

closest residentially zoned district, whether measured from

the exterior wall, front door, or property line of the proposed

gun shop.5 The Planning Department staff therefore again

5

The County rejected Teixeira’s suggestion that the distance should

be measured from the proposed site to the closest door of a dwelling in the

residentially zoned district, rather than to the closest property line of a

residential district. The ordinance states that the property proposed for

firearm sales shall not be within five hundred feet of a “[r]esidentially

12 TEIXEIRA V. COUNTY OF ALAMEDA

recommended denying Teixeira a Conditional Use Permit and

variance.

Notwithstanding this recommendation, the Zoning Board

passed a resolution granting Teixeira a variance from the

Zoning Ordinance and approving his application for a

Conditional Use Permit. The Zoning Board concluded that a

gun shop at the proposed location would not be detrimental

to the public welfare and warranted a variance in light of the

physical buffer created by a major highway between the

proposed site and the nearest residential district. The Zoning

Board also determined that there was a public need for a

licensed firearms retailer in the neighborhood.

Shortly after the County granted Teixeira’s permit

application, the San Lorenzo Village Homes Association filed

an appeal challenging the Zoning Board’s resolution. Acting

through three of its members, the Board of Supervisors voted

to sustain the appeal, overturning the Zoning Board’s

decision and revoking the Conditional Use Permit.

After the permit was revoked, Teixeira alleges, he was

unable to identify any property in unincorporated Alameda

County that satisfied the ordinance’s 500-foot rule and was

otherwise suitable—in terms of location, accessibility,

building security, and parking—for a gun shop. Teixeira later

commissioned a study to analyze the practical implications of

the Zoning Ordinance for opening a gun store in

unincorporated areas of the County. The study found it

“virtually impossible to open a gun store in unincorporated

zoned district,” foreclosing Teixeira’s proposal that the measurement

should be taken from the door of an actual dwelling. See Alameda Cty.,

Cal., Code § 17.54.131.

TEIXEIRA V. COUNTY OF ALAMEDA 13

Alameda County” that would comply with the 500-foot rule

“due to the density of disqualifying properties.”6

B.

Joined by institutional plaintiffs The Calguns Foundation,

Inc., Second Amendment Foundation, and California

Association of Federal Firearms Licensees, Inc., Teixeira

filed a complaint in federal district court challenging the

Board of Supervisors’ decision to deny him a variance and

Conditional Use Permit. The challenge was premised on due

process, equal protection, and Second Amendment grounds,

and alleged violations of Teixeira’s own rights as well as

those of his prospective customers. Alameda County filed a

motion to dismiss the complaint for failure to state a claim,

which the district court granted, with leave to amend;

Teixeira also filed a motion for a preliminary injunction,

which the district court denied. The plaintiffs thereupon filed

an amended complaint, which the district court likewise

dismissed for failure to state a claim, this time without leave

to amend.

6

As of 2009, the total population of unincorporated areas of

Alameda County was 142,166, approximately 9% of the total

County population of 1,556,657. See Alameda County

Community Development Agency, 2009 Population and Housing

Estimates for Alameda County and its Cities, Pub. No. 09-10 (May 2009),

http://www.co.alameda.ca.us/about/documents/AlaCtyPopHsng2009.pdf.

We take judicial notice of these undisputed facts regarding the County’s

population. See Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d

668, 689 (9th Cir. 2001) (holding that a court may take judicial notice of

“matters of public record” that are not subject to reasonable dispute)

(internal quotation marks omitted). The unincorporated areas of Alameda

County are non-contiguous. Teixeira’s proposed gun store—at

488 Lewelling Boulevard—would lie in an unincorporated sliver of land

between the incorporated cities of Hayward and San Leandro.

14 TEIXEIRA V. COUNTY OF ALAMEDA

A three-judge panel of this court affirmed the district

court’s dismissal of Teixeira’s Equal Protection Clause

claims but reversed the district court’s dismissal of Teixeira’s

Second Amendment Claims, remanding for further

proceedings.7 See Teixeira v. County of Alameda, 822 F.3d

1047 (9th Cir. 2016). Judge Silverman dissented from the

Second Amendment holding. See id. at 1064 (Silverman, J.,

dissenting).

II.

A.

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. As interpreted in recent

years by the Supreme Court, the Second Amendment protects

“the right of law-abiding, responsible citizens to use arms in

defense of hearth and home.” District of Columbia v. Heller,

554 U.S. 570, 635 (2008); see also McDonald v. City of

Chicago, 561 U.S. 742, 780 (2010) (“[O]ur central holding in

Heller [was] that the Second Amendment protects a personal

right to keep and bear arms for lawful purposes, most notably

for self-defense within the home.”).

After Heller, this court and other federal courts of appeals

have held that the Second Amendment protects ancillary

rights necessary to the realization of the core right to possess

a firearm for self-defense. For example, we held in Jackson

7

Teixeira did not seek rehearing of the panel’s rejection of his Equal

Protection claims. We affirm the district court on that claim for the

reasons given in the panel opinion.

TEIXEIRA V. COUNTY OF ALAMEDA 15

v. City and County of San Francisco, 746 F.3d 953, 968 (9th

Cir. 2014), cert. denied, 135 S. Ct. 2799 (2015), that a

prohibition on the sale of certain types of ammunition

burdened the core Second Amendment right and so was

subject to heightened scrutiny. Jackson involved a challenge

by handgun owners to a San Francisco ordinance that

prohibited the sale of particularly lethal ammunition,

including hollow-point ammunition, within the City and

County of San Francisco. Id. at 958. We recognized in

Jackson that, although the Second Amendment “does not

explicitly protect ammunition . . . , without bullets, the right

to bear arms would be meaningless.” Id. at 967. Jackson thus

held that “‘the right to possess firearms for protection implies

a corresponding right’ to obtain the bullets necessary to use

them.” Id. (quoting Ezell v. City of Chicago, 651 F.3d 684,

704 (7th Cir. 2011)).8

8

Jackson went on to hold that the prohibition on the sale of hollow-

point ammunition “burden[ed] the core right of keeping firearms for self-

defense only indirectly” and insubstantially, because San Francisco

citizens were not precluded from using hollow-point ammunition in San

Francisco if obtained elsewhere, and because the ordinance applied only

to certain types of ammunition. 746 F.3d at 968. Applying intermediate

scrutiny, Jackson then held the ordinance did not violate the Second

Amendment, as the regulation of lethal ammunition was justified by the

legitimate and compelling government interest in reducing the fatality of

shootings. Id. at 970.

Jackson also involved a challenge to a San Francisco ordinance that

required that handguns be stored in locked containers or disabled with

trigger locks when not carried on the person. Jackson, 746 F.3d at 958.

Jackson upheld that ordinance, holding (1) that the ordinance regulated

conduct falling within the scope of the Second Amendment, (2) but did

not place a substantial burden on core Second Amendment conduct and

therefore triggered only intermediate scrutiny, and (3) applying

intermediate scrutiny, the ordinance passed constitutional muster. Id. at

963–66.

16 TEIXEIRA V. COUNTY OF ALAMEDA

Similarly, in Ezell v. City of Chicago (“Ezell I”), the

Seventh Circuit held that an ordinance banning firearm ranges

within the city of Chicago was not categorically unprotected

by the Second Amendment and so demanded constitutional

scrutiny. 651 F.3d at 704–06. Ezell I held that the Chicago

ordinance, coupled with a law requiring range training as a

prerequisite to obtaining a firearm permit, encroached on “the

right to maintain proficiency in firearms use, an important

corollary to the meaningful exercise of the core right to

possess firearms for self-defense.” Id. at 708. This core right

to possess firearms, Ezell I explained, “wouldn’t mean much

without the training and practice that make it effective.” Id.

at 704. Ezell I relied on Heller, which quoted an 1868 treatise

on constitutional law observing that “to bear arms implies

something more than the mere keeping; it implies the learning

to handle and use them.” Id. (quoting Heller, 554 U.S. at

617–18).

As with purchasing ammunition and maintaining

proficiency in firearms use, the core Second Amendment

right to keep and bear arms for self-defense “wouldn’t mean

much” without the ability to acquire arms. Id.; see Jackson,

746 F.3d at 967. The Tennessee Supreme Court cogently

observed in 1871, interpreting that state’s constitution, that

“[t]he right to keep arms, necessarily involves the right to

purchase them, to keep them in a state of efficiency for use,

and to purchase and provide ammunition suitable for such

arms, and to keep them in repair.” Andrews v. State, 50 Tenn.

(3 Heisk.) 165, 178 (1871); see also Ill. Ass’n of Firearms

Retailers v. City of Chicago, 961 F. Supp. 2d 928, 930 (N.D.

Ill. 2014) (emphasis in original) (“[T]he right to keep and

bear arms for self-defense under the Second Amendment . . .

must also include the right to acquire a firearm, although that

acquisition right is far from absolute . . . .”).

TEIXEIRA V. COUNTY OF ALAMEDA 17

We need not define the precise scope of any such

acquisition right under the Second Amendment to resolve this

case. Whatever the scope of that right, Teixeira has failed to

state a claim that the ordinance impedes Alameda County

residents from acquiring firearms.

B.

“[V]endors and those in like positions have been

uniformly permitted to resist efforts at restricting their

operations by acting as advocates of the rights of third parties

who seek access to their market or function.” Craig v. Boren,

429 U.S. 190, 195 (1976). Teixeira, as the would-be operator

of a gun store, thus has derivative standing to assert the

subsidiary right to acquire arms on behalf of his potential

customers. See also Carey v. Population Servs., Int’l,

431 U.S. 678, 683 (1977); Ezell I, 651 F.3d at 693, 696

(supplier of firing-range facilities had standing to challenge

Chicago ordinance banning firing ranges on behalf of

potential customers).

But Teixeira did not adequately allege in his complaint

that Alameda County residents cannot purchase firearms

within the County as a whole, or within the unincorporated

areas of the County in particular. To survive a Rule 12(b)(6)

motion to dismiss, a plaintiff must allege in the complaint

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We

assume the factual allegations in Teixeira’s complaint to be

true. See id. But “[c]onclusory allegations and unreasonable

18 TEIXEIRA V. COUNTY OF ALAMEDA

inferences . . . are insufficient to defeat a motion to dismiss.”

Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).

The operative complaint does not meet this standard with

regard to whether residents can purchase guns in the

County—or in unincorporated areas of the County—if they

choose to do so.9 Teixeira alleges in general terms that the

gun store he plans to open is necessary to enable his potential

customers to exercise their Second Amendment rights. The

complaint also states that the zoning ordinance amounts to a

complete ban on new gun stores in unincorporated Alameda

County because, according to a study commissioned by

Teixeira, “there are no parcels in the unincorporated areas of

Alameda County which would be available for firearm retail

sales.”

Whatever the standard governing the Second Amendment

protection accorded the acquisition of firearms,10 these vague

9

We note that Jackson suggests that the proper inquiry regarding

accessibility may not be limited to a particular jurisdiction. Jackson held

that although San Francisco’s prohibition on the sale of hollow-point

ammunition burdens core Second Amendment rights, it does so only

indirectly, because a local resident “is not precluded from using the

hollow-point bullets in her home if she purchases such ammunition

outside of San Francisco’s jurisdiction.” 746 F.3d at 968.

10

“In Heller, the Supreme Court did not specify what level of scrutiny

courts must apply to a statute challenged under the Second Amendment,”

although the Court did “indicate that rational basis review is not

appropriate.” United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir.

2013), cert. denied, 135 S. Ct. 187 (2014) (citing Heller, 554 U.S. at 628

n.27). In this Circuit, we have likewise not identified a uniform standard

of scrutiny that applies to regulations that burden the Second Amendment,

either generally or as to particular categories of regulations. We have

instead held that “the level of scrutiny should depend on (1) ‘how close

TEIXEIRA V. COUNTY OF ALAMEDA 19

allegations cannot possibly state a claim for relief under the

Second Amendment. The exhibits attached to and

incorporated by reference into the complaint, which we may

consider, see United States v. Ritchie, 342 F.3d 903, 908 (9th

Cir. 2003), demonstrate that Alameda County residents may

freely purchase firearms within the County.11 As of

December 2011, there were ten gun stores in Alameda

County.12 Several of those stores are in the non-contiguous,

unincorporated portions of the County. In fact, Alameda

County residents can purchase guns approximately 600 feet

away from the proposed site of Teixeira’s planned store, at a

Big 5 Sporting Goods store.

Ezell v. City of Chicago (“Ezell II”), 846 F.3d 888 (7th

Cir. 2017), involved an entirely different situation with regard

to the availability of a gun-related service to county residents.

Chicago’s zoning regulations at issue in that case so “severely

limit[ed] where shooting ranges may locate” that “no publicly

accessible shooting range yet exist[ed] in Chicago.” Id. at

894. (emphasis added). As a result, the zoning regulations,

“though not on their face an outright prohibition of gun

ranges, nonetheless severely restrict the right of Chicagoans

the law comes to the core of the Second Amendment right’ and (2) ‘the

severity of the law’s burden on the right.’” Id. at 1138 (quoting Ezell I,

651 F.3d at 703); see also Jackson, 746 F.3d at 960–61.

11

Throughout this opinion, when we refer to the complaint, we

include the supporting attachments.

12

As discussed, supra note 6, the unincorporated areas of Alameda

County are noncontiguous, and the site Teixeira selected for his gun shop

lies in a small unincorporated area adjacent to incorporated population

centers. The site is relatively distant from the less urban, less populated

parts of the County.

20 TEIXEIRA V. COUNTY OF ALAMEDA

to train in firearm use at a range.” Id. No analogous

restriction on the ability of Alameda County residents to

purchase firearms can be inferred from the complaint in this

case.

The closest Teixeira comes to stating a claim that his

potential customers’ Second Amendment rights have been, or

will be, infringed is his allegation that the ordinance places “a

restriction on convenient access to a neighborhood gun store

and the corollary burden of having to travel to other, more

remote locations to exercise their rights to acquire firearms

and ammunition in compliance with the state and federal

laws.” But potential gun buyers in Alameda County

generally, and potential gun buyers in the unincorporated

areas around San Lorenzo in particular, do have access to a

local gun store just 600 feet from where Teixeira proposed to

locate his store. And if the Big 5 Sporting Goods store does

not meet their needs, they can visit any of the nine other gun

stores in the County as a whole, including the three other gun

stores in the unincorporated parts of the County.13

In any event, gun buyers have no right to have a gun store

in a particular location, at least as long as their access is not

13

The complaint also alleges that current firearms retailers in the area

do not “meet customer needs and demands” and do not provide “the level

of personal service” that Teixeira’s proposed store would provide. No

case supports Teixeira’s suggestion that the Second Amendment not only

encompasses a right to acquire firearms but guarantees a certain type of

retail experience.

In addition, counsel for Teixeira stated at oral argument that Big 5

Sporting Goods does not sell handguns. That allegation is not in the

complaint. Moreover, counsel for Teixeira did not contend that handguns

are not available for purchase at other stores in Alameda County.

TEIXEIRA V. COUNTY OF ALAMEDA 21

meaningfully constrained. See Second Amendment Arms v.

City of Chicago, 135 F. Supp. 3d 743, 754 (N.D. Ill. 2015)

(“[A] slight diversion off the beaten path is no affront to . . .

Second Amendment rights.”); cf. Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2313 (2016), as revised (June

27, 2016) (“[I]ncreased driving distances do not always

constitute an ‘undue burden.’”); Midrash Sephardi, Inc. v.

Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004)

(holding that a zoning ordinance that limited churches and

synagogues to residential districts did not violate the

Religious Land Use and Institutionalized Persons Act

(RLUIPA) because “walking a few extra blocks” is not a

substantial burden).

We recognized a similar principle in Jackson. After

recognizing that San Francisco’s ban on the sale of certain

particularly lethal ammunition did regulate conduct within the

scope of the Second Amendment, we held that the regulation

burdened the core right only indirectly, in part because

handgun owners in San Francisco could freely obtain the

banned ammunition in other jurisdictions and keep it for use

within city limits. Jackson, 746 F.3d at 968. As Jackson

illustrates, the Second Amendment does not elevate

convenience and preference over all other considerations.14

14

Judge Bea’s dissent argues, post at 52, that we misread Chovan by

declining to apply constitutional scrutiny to the Ordinance unless it

“meaningfully” burdens the Second Amendment rights of would-be gun

buyers. Not so. There is no meaningful difference—that is, one that

matters—between failing to plead that “the ordinance meaningfully

inhibits residents from acquiring firearms within their jurisdiction,” infra,

and failing to plead that the ordinance actually or really burdens these

residents’ Second Amendment rights.

22 TEIXEIRA V. COUNTY OF ALAMEDA

Moreover, Teixeira does not make any allegations about

how far his potential customers currently travel to purchase

firearms, or how much the proposed store would shorten

travel distances, if at all, or for whom. Nor does Teixeira

make any argument as to what distance necessarily impairs

Second Amendment rights.

In sum, based on the allegations in the complaint,

Teixeira fails to state a plausible claim on behalf of his

potential customers that the ordinance meaningfully inhibits

residents from acquiring firearms within their jurisdiction.15

As Judge Silverman observed in his dissent from the panel

opinion, “[c]onspicuously missing from this lawsuit is any

honest-to-God resident of Alameda County complaining that

he or she cannot lawfully buy a gun nearby.” Teixeira,

822 F.3d at 1064 (Silverman, J., dissenting). Similarly

missing is any allegation by Teixeira that any “honest-to-God

resident of Alameda County . . . cannot lawfully buy a gun

nearby.” Id.

In short, because the allegations in the complaint, read in

light of the attachments and judicially noticeable information

about the population and geography of Alameda County, do

not plausibly raise a claim of entitlement to relief, the district

court properly dismissed at the pleadings stage Teixeira’s

claim that the ordinance infringes the Second Amendment

15

Teixeira waived his right to amend the complaint. When the district

court asked whether he would like an opportunity to amend the pleadings,

counsel for Teixeira declined, noting “we have pled the sufficient facts.”

Moreover, the attachments to the complaint demonstrate that individuals

in unincorporated Alameda County can purchase guns from several retail

outlets, so any allegation that the ordinance poses a meaningful obstacle

to acquiring firearms would be implausible.

TEIXEIRA V. COUNTY OF ALAMEDA 23

rights of his potential customers. See Twombly, 550 U.S. at

556–58.

C.

Teixeira also fails to state a claim for relief insofar as he

alleges that the ordinance interferes with the provision of

ancillary training and certification services in Alameda

County. Teixeira maintains that existing firearm retail

establishments in Alameda County do not meet “customer

needs and demands” with respect to personalized training and

instruction in firearms safety and operation, services Teixeira

planned to provide.

The claim that the ordinance burdens his potential

customers’ Second Amendment rights to obtain necessary

firearms instruction and training is belied by the ordinance

itself. The Zoning Ordinance limits the location of premises

conducting “firearm sales.” Alameda Cty., Cal., Code

§ 17.54.131. It does not concern businesses providing

firearms instruction and training services. Accordingly, the

Zoning Ordinance would pose no obstacle if Teixeira wanted

to open a business at the proposed site on Lewelling

Boulevard to provide firearms instruction and training.

This case is therefore entirely unlike the Ezell cases. The

ordinance in Ezell I expressly banned publicly accessible

firing ranges in the entire city of Chicago. 651 F.3d at 691.

The zoning ordinance in Ezell II, although not an outright

ban, so severely limited the potential locations for operating

a range that less than three percent of the city’s total acreage

was even theoretically available to site a range, and no range

yet existed in the city. 846 F.3d at 894. The ordinances in

those cases thus directly, and meaningfully, interfered with

24 TEIXEIRA V. COUNTY OF ALAMEDA

the ability of city residents to maintain firearms proficiency,

a right the Seventh Circuit found to be an “important

corollary” to the core right to bear arms. Ezell I, 651 F.3d at

708.

No such interference can be shown in this case, as the

ordinance restricts the location of firearm sales, not training.

Teixeira thus fails to state a Second Amendment claim related

to the provision of ancillary firearms training and certification

services.

D.

Teixeira also suggests that, independent of the rights of

his potential customers, the Second Amendment grants him

a right to sell firearms. In other words, his contention is that

even if there were a gun store on every square block in

unincorporated Alameda County and therefore prospective

gun purchasers could buy guns with exceeding ease, he would

still have a right to establish his own gun store somewhere in

the jurisdiction. He alleges that the Zoning Ordinance

infringes on that right by making it virtually impossible to

open a new gun store in unincorporated Alameda County.16

16

The complaint does not address whether Teixeira could open a gun

store in an incorporated area in the vicinity of the proposed site, nor does

it allege that Teixeira has any particular reason for wishing to locate a

store in the unincorporated areas of the County (such as proximity to the

residence of the owners). Although a number of Alameda County

municipalities regulate the location of firearms sales, see, e.g., Oakland,

Cal., Mun. Code § 5.26.070(I), the complaint provides no information as

to whether there are viable locations in those municipalities or any others

in the County in which a new gun store could be located. Notably, 91% of

the County’s residents live in incorporated areas, see supra note 6. We

need not determine, however, whether the complaint plausibly alleges

TEIXEIRA V. COUNTY OF ALAMEDA 25

We apply a two-step inquiry to examine Teixeira’s claim.

See Chovan, 735 F.3d at 1136. We first ask “whether the

challenged law burdens conduct protected by the Second

Amendment,” and, if so, we then determine the “appropriate

level of scrutiny.” Id.

If we conclude that the ordinance imposes no “burden on

conduct falling within the scope of the Second Amendment’s

guarantee . . . our inquiry is complete,” United States v.

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), as a law that

“burdens conduct that falls outside the Second Amendment’s

scope, . . . passes constitutional muster.” Nat’l Rifle Ass’n of

Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 700 F.3d 185, 195 (5th Cir. 2012). See also

Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir.

2016) (en banc), cert. denied sub nom. Peruta v. California,

137 S. Ct. 1995 (2017) (“Because the Second Amendment

does not protect in any degree the right to carry concealed

firearms in public, any prohibition or restriction a state may

choose to impose on concealed carry . . . is necessarily

allowed by the Amendment.”).

At the first step of the inquiry, “determining the scope of

the Second Amendment’s protections requires a textual and

historical analysis of the amendment.” Chovan, 735 F.3d at

1133; see also Ezell I, 651 F.3d at 701. Based on such an

analysis, we conclude that the Second Amendment does not

confer a freestanding right, wholly detached from any

customer’s ability to acquire firearms, upon a proprietor of a

commercial establishment to sell firearms. Commerce in

meaningful interference with Teixeira’s sale of firearms, as we conclude

that the Second Amendment does not independently protect the ability to

engage in gun sales.

26 TEIXEIRA V. COUNTY OF ALAMEDA

firearms is a necessary prerequisite to keeping and possessing

arms for self-defense, but the right of gun users to acquire

firearms legally is not coextensive with the right of a

particular proprietor to sell them.

The Supreme Court in Heller was careful so to caution,

even while striking down a statute banning handgun

possession in the home: “[N]othing in our opinion should be

taken to cast doubt on . . . laws imposing conditions and

qualifications on the commercial sale of arms.” 554 U.S. at

626–27. These types of regulations, Heller explained, are

examples of “presumptively lawful regulatory measures.” Id.

at 627 n.26. Two years later, the Supreme Court repeated that

Heller “did not cast doubt on such longstanding regulatory

measures.” McDonald, 561 U.S. at 786. The Supreme

Court’s assurance in this regard guided our analysis in

Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir. 2012) (en

banc), in which we upheld an Alameda County ordinance that

regulated the manner of displaying firearms at gun shows on

County property.

Heller’s assurance that laws imposing conditions and

qualifications on the commercial sale of firearms are

presumptively lawful makes us skeptical of Teixeira’s claim

that retail establishments can assert an independent, free-

standing right to sell firearms under the Second Amendment.

The language in Heller regarding the regulation of “the

commercial sale of arms,” however, is sufficiently opaque

with regard to that issue that, rather than relying on it alone

to dispose of Teixeira’s claim, we conduct a full textual and

historical review.

TEIXEIRA V. COUNTY OF ALAMEDA 27

i. Text

We begin with text of the Second Amendment. See

Heller, 554 U.S. at 576. Nothing in the specific language of

the Amendment suggests that sellers fall within the scope of

its protection.

After its introductory language,17 the Second Amendment

commands that “the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II. That

language confers a right on the “people” who would keep and

use arms, not those desiring to sell them.

The operative language—“keep” and “bear”—confirms

that focus. As Heller observed, “the most natural reading of

‘keep Arms’ . . . is to ‘have weapons.’” Heller, 554 U.S. at

582. And “bear arms” is naturally read to mean “wear, bear,

or carry . . . upon the person or in the clothing or in a pocket,

for the purpose . . . of being armed and ready for offensive or

defensive action in case of conflict with another person.” Id.

at 584 (omissions in original) (quoting Muscarello v. United

States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)).

Nothing in the text of the Amendment, as interpreted

authoritatively in Heller, suggests the Second Amendment

confers an independent right to sell or trade weapons.

17

The introductory clause of the Second Amendment reads: ‘‘A well

regulated Militia, being necessary to the security of a free State . . . .”

U.S. Const. amend. II. Heller held that this clause “announces the purpose

for which the right was codified: to prevent elimination of the militia.”

554 U.S. at 599. That purpose reflected the widely held belief at the time

the Amendment was adopted that a “citizen militia . . . might be necessary

to oppose an oppressive military force if the constitutional order broke

down.” Id.

28 TEIXEIRA V. COUNTY OF ALAMEDA

Second Amendment analogues in state constitutions

adopted during the founding period likewise expressly refer

to the right of the people to bear arms, nowhere suggesting in

their text that the constitutional protection extends to those

who would engage in firearms commerce. See, e.g., Pa.

Declaration of Rights, § XIII (1776) (“That the people have

a right to bear arms for the defence of themselves and the

state . . . .”); Mass. Const., Pt. First, art. XVII (1780) (“The

people have a right to keep and to bear arms for the common

defence.”); Ky. Const., art. XII, § 23 (1792) (“That the right

of the citizens to bear arms in defence of themselves and the

State shall not be questioned.”); Ohio Const., art. VIII, § 20

(1802) (“That the people have a right to bear arms for the

defence of themselves and the State . . . .”).

ii. The Right to Bear Arms in Britain

and Colonial America

The historical record confirms that the right to sell

firearms was not within the “historical understanding of the

scope of the [Second Amendment] right.” Jackson, 746 F.3d

at 959 (alteration in original) (quoting Heller, 554 U.S. at

625). The Supreme Court held in Heller that the Second

Amendment “codified a pre-existing right,” 554 U.S. at 592

(emphasis omitted), a “right inherited from our English

ancestors,” id. at 599 (internal quotation marks omitted).

Heller and later cases scrutinizing firearms restrictions thus

examined the nature of the right to bear arms in England,

colonial America, and during the Founding. See id. at

584–610; McDonald, 561 U.S. at 768–78; Peruta, 824 F.3d

at 929–39. Heller, McDonald, Peruta, and other cases

provide thorough historical accounts, so we do not repeat that

full history of the Second Amendment here. Instead, we

highlight the historical evidence that demonstrates that the

TEIXEIRA V. COUNTY OF ALAMEDA 29

right codified in the Second Amendment did not encompass

a freestanding right to engage in firearms commerce divorced

from the citizenry’s ability to obtain and use guns.

We begin with a provision of the 1689 English Bill of

Rights “long . . . understood to be the predecessor to our

Second Amendment.” Heller, 554 U.S. at 593. With respect

to the right to bear arms, the English Bill of Rights provided

“[t]hat the subjects which are Protestants, may have Arms for

their Defence suitable to their Conditions, and as allowed by

Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441.

This right to “have arms for their [d]efence” was codified in

reaction to the Stuart kings’ systemic disarming of the

English people in the period leading up to the Glorious

Revolution. See Heller, 554 U.S. at 592–93. William

Blackstone, “whose works . . . constituted the preeminent

authority on English law for the founding generation,” Heller,

554 U.S. at 593–94 (internal quotation marks and citations

omitted), described the right announced in that declaration as

an “auxilliary right” designed to protect the primary rights of

“free enjoyment of personal security, of personal liberty, and

of private property.” 1 William Blackstone, Commentaries

on the Laws of England 139–40 (1765). Should these

primary rights be violated or attacked, Blackstone explained,

“the subjects of England are entitled, in the first place, to the

regular administration and free course of justice in the courts

of law; next to the right of petitioning the king and parliament

for redress of grievances; and lastly to the right of having and

using arms for self-preservation and defence.” Id. at 140.

St. George Tucker, in the “most important early American

edition of Blackstone’s Commentaries,” Heller, 554 U.S. at

594, similarly described the English right to bear arms as a

necessary means of protecting personal liberties. The English

30 TEIXEIRA V. COUNTY OF ALAMEDA

Bill of Rights, Tucker observed, granted Englishmen “the

right of repelling force by force; because that may be

absolutely necessary for self-preservation, and the

intervention of the society on his behalf, may be too late to

prevent an injury.” 1 William Blackstone & St. George

Tucker, Blackstone’s Commentaries: With Notes of

Reference, to the Constitution and Laws, of the Federal

Government of the United States, and of the Commonwealth

of Virginia 145 (St. George Tucker ed., 1803).

Blackstone’s and Tucker’s commentaries indicate that

both recognized the right to bear arms in England to have

been held by individual British subjects as a means to provide

for the preservation of personal liberties. Neither of these

authoritative historic accounts states or implies that the

English Bill of Rights encompassed an independent right to

engage in firearms commerce.

As many historians and courts have observed, the right to

bear arms remained important in colonial America. “By the

time of the founding, the right to have arms had become

fundamental for English subjects.” Heller, 554 U.S. at 593.

Arms were considered an important means of protecting

vulnerable colonial settlements, especially from Indian tribes

resisting colonial conquest, and from foreign forces. See Saul

Cornell, The Early American Origins of the Modern Gun

Control Debate: The Right to Bear Arms, Firearms

Regulation, and the Lessons of History, 17 Stan. L. & Pol’y

Rev. 571, 579 (2006); Joyce Lee Malcolm, To Keep and Bear

Arms 139 (1994) (“Like the English militia, the colonial

militia played a primarily defencive role . . . . The dangers all

the colonies faced . . . were so great that not only militia

members but all householders were ordered to be armed.”).

At the same time, colonial governments substantially

TEIXEIRA V. COUNTY OF ALAMEDA 31

controlled the firearms trade. The government provided and

stored guns, controlled the conditions of trade, and financially

supported private firearms manufacturers. See Solomon K.

Smith, Firearms Manufacturing, Gun Use, and the

Emergence of Gun Culture in Early North America, 49th

Parallel, Vol. 34, at 6–8, 18–19 (2014).

As scholars have noted, in light of the dangers the

colonies faced, “[t]he emphasis of the colonial governments

was on ensuring that the populace was well armed, not on

restricting individual stocks of weapons.” Malcolm, supra,

at 140. Historian Saul Cornell has observed that “[i]t would

be impossible to overstate the militia’s centrality to the lives

of American colonists. For Americans living on the edge of

the British Empire, in an age without police forces, the militia

was essential for the preservation of public order and also

protected Americans against external threats.” Saul Cornell,

A Well-Regulated Militia: The Founding Fathers and the

Origins of Gun Control in America 13 (2006). Governmental

involvement in the provision, storage, and sale of arms and

gunpowder is consistent with the purpose of maintaining an

armed militia capable of defending the colonies. That

purpose was later expressly recognized in the prefatory clause

to the Second Amendment.

Notably, colonial government regulation included some

restrictions on the commercial sale of firearms. In response

to the threat posed by Indian tribes, the colonies of

Massachusetts, Connecticut, Maryland, and Virginia all

passed laws in the first half of the seventeenth century

making it a crime to sell, give, or otherwise deliver firearms

or ammunition to Indians. See Acts of Assembly, Mar. 1657-

8, in 1 William Waller Hening, The Statutes at Large: Being

a Collection of All the Laws of Virginia, from the First

32 TEIXEIRA V. COUNTY OF ALAMEDA

Session of the Legislature, in the Year 1619, at 441 (1823);

1 J. Hammond Trumbull, The Public Records of the Colony

of Connecticut, Prior to the Union with New Haven Colony,

May, 1665, at 49, 182 (1850); Assembly Proceedings,

February-March 1638/9, in Proceedings and Acts of the

General Assembly of Maryland, January 1637/8 - September

1664, at 103 (William Hand Browne, ed., 1883); Records of

the Governor and Company of the Massachusetts Bay in New

England 196 (Nathaniel B. Shurtleff, ed., 1853). At least two

colonies also controlled more generally where colonial

settlers could transport or sell guns. Connecticut banned the

sale of firearms by its residents outside the colony.

1 Trumbull, Public Records of the Colony of Connecticut,

138–39, 145–46. And under Virginia law, any person found

within an Indian town or more than three miles from an

English plantation with arms or ammunition above and

beyond what he would need for personal use would be guilty

of the crime of selling arms to Indians, even if he was not

actually bartering, selling, or otherwise engaging with the

Indians. Acts of Assembly, Mar. 1675–76, 2 William Waller

Hening, The Statutes at Large: Being a Collection of All the

Laws of Virginia, from the First Session of the Legislature, in

the Year 1619, at 336–37 (1823).18

As Heller observed, during the 1760s and 1770s, in the

face of growing rebellion, the British Crown sought to disarm

the colonies. 554 US at 594; see 5 Acts of the Privy Council

18

Virginia law also provided that all persons were at “liberty to sell

armes and ammunition to any of his majesties loyall subjects inhabiting

this colony.” Laws of Va., Feb., 1676–77, Va. Stat. at Large, 2 Hening,

supra at 403. The liberty to sell arms to Virginians did not, however,

extend to sales to others, and so did not encompass a freestanding right to

sell arms, independent of citizens’ right to acquire them.

TEIXEIRA V. COUNTY OF ALAMEDA 33

of England § 305, at 401 (1774) (James Munro ed., 1912).

Colonial Americans reacted to the embargo by gathering arms

for their defense. The General Committee of South Carolina,

for example, adopted a resolution in 1774 recommending that

all persons immediately supply themselves with powder and

bullets, observing that “by the late prohibition of exporting

arms and ammunition from England, it too clearly appears a

design of disarming the people of America, in order the more

speedily to dragoon and enslave them.” 1 John Drayton,

Memoirs of the American Revolution from its Commencement

to the Year 1776, Inclusive; as Relating to the State of South-

Carolina: and Occasionally Referring to the States of North-

Carolina and Georgia 166 (1821) (internal quotation marks

omitted).

The panel majority suggested that the Founders adopted

the Second Amendment in part because of the experience of

the British arms embargo. See Teixeira, 822 F.3d at 1054–55.

We agree that “[o]ur forefathers recognized that the

prohibition of commerce in firearms worked to undermine the

right to keep and to bear arms.” Id. at 1054. But the panel’s

conclusion that the Second Amendment therefore

independently protects the sale of firearms does not follow.

The British embargo and the colonists’ reaction to it suggest

only that the Founders were aware of the need to preserve

citizen access to firearms in light of the risk that a strong

government would use its power to disarm the people.

Like the British right to bear arms, the right declared in

the Second Amendment of the U.S. Constitution was thus

“meant to be a strong moral check against the usurpation and

arbitrary power of rulers, and as a necessary and efficient

means of regaining rights when temporarily overturned by

usurpation.” Thomas M. Cooley, The General Principles of

34 TEIXEIRA V. COUNTY OF ALAMEDA

Constitutional Law in the United States of America 298 (3d

ed. 1898). Early American legislators and commentators

understood the Second Amendment and its state predecessors

as protecting Americans against tyranny and oppression.

They recognized that the availability of arms was a necessary

prerequisite to exercising the right to bear arms, as the British

arms embargo had made clear. Yet no contemporary

commentary suggests that the right codified in the Second

Amendment independently created a commercial entitlement

to sell guns if the right of the people to obtain and bear arms

was not compromised.

These historical materials demonstrate that the right to

bear arms, under both earlier English law and American law

at the time the Second Amendment was adopted, was

understood to confer a right upon individuals to have and use

weapons for the purpose of self-protection, at least in the

home.19 The colonies regulated the sale of weapons to some

degree.

In short, no historical authority suggests that the Second

Amendment protects an individual’s right to sell a firearm

unconnected to the rights of citizens to “keep and bear”

arms.20

19

We have not decided the degree to which the Second Amendment

protects the right to bear arms outside the home. See Peruta, 824 F.3d at

939 (“There may or may not be a Second Amendment right for a member

of the general public to carry a firearm openly in public. The Supreme

Court has not answered that question, and we do not answer it here.”).

20

The panel majority relied on a 1793 statement by Thomas Jefferson

for its conclusion that the Second Amendment included the freedom to

both purchase and sell arms: “[o]ur citizens have always been free to

make, vend, and export arms. It is the constant occupation and livelihood

TEIXEIRA V. COUNTY OF ALAMEDA 35

We emphasize that in many circumstances, there will be

no need to disentangle an asserted right of retailers to sell

firearms from the rights of potential firearm buyers and

owners to acquire them, as the Second Amendment rights of

potential customers and the interests of retailers seeking to

sell to them will be aligned. As we have noted, firearms

commerce plays an essential role today in the realization of

the individual right to possess firearms recognized in Heller.

But restrictions on a commercial actor’s ability to enter the

firearms market may also, as here, have little or no impact on

the ability of individuals to exercise their Second Amendment

right to keep and bear arms. Teixeira alleges that Alameda

County’s zoning ordinance effectively bars him from opening

a new gun store in an unincorporated area of the County. But

he does not—and, given the number of gun stores in the

County as a whole and in the unincorporated areas, as well as

the geography of the County and the distribution of people

within it, likely cannot21—allege that residents are

meaningfully restricted in their ability to acquire firearms.

Our conclusion that the Second Amendment does not

confer a freestanding right to sell firearms is fully consistent

with Heller, which closely examined the historical record and

concluded that, at its core, the Second Amendment protects

“the right of law-abiding, responsible citizens to use arms in

of some of them.” Teixeira, 822 F.3d at 1055 (alteration in original)

(quoting Thomas Jefferson, 3 Writings 558 (H.A. Washington ed., 1853)).

But that was a factual statement—albeit an imprecise one, as we have

shown—not a prescriptive one. Jefferson’s observation does not support

the conclusion that the Founders understood the right to sell arms was to

be independently protected by the Second Amendment.

21

Again, Teixeira has waived any right to amend his complaint in this

litigation, see supra note 15.

36 TEIXEIRA V. COUNTY OF ALAMEDA

defense of hearth and home.” 554 U.S. at 635. Later cases

have also examined firearms restrictions with respect to the

burden on a potential gun owner or user, even when the

challenge is brought by a commercial actor engaged in

supplying arms or related services. In Ezell II, for example,

the Seventh Circuit held that Chicago’s restrictions on

shooting range locations caused a Second Amendment injury

because it “severely limit[ed] Chicagoans’ Second

Amendment right to maintain proficiency in firearm use via

target practice at a range,” not because a range operator has

any protected interest in operating a shooting range in the

city. 846 F.3d at 890.

Similarly, in a suit brought by firearms dealers and

residents challenging a Chicago ordinance that banned

“virtually all sales and transfers of firearms inside the City’s

limits,” the District Court for the Northern District of Illinois

examined the burden imposed by the sales prohibition on

“law-abiding residents who want to exercise their Second

Amendment right,” not on firearms dealers. Ill. Ass’n of

Firearms Retailers, 961 F. Supp. 2d at 940, 942; see also

Nat’l Rifle Ass’n, 700 F.3d at 199–204 (examining whether a

ban on firearms sales to minors burdened conduct protected

by the Second Amendment by examining the burden on

minors’ rights to acquire firearms, not the burden on sellers).

Our holding does not conflict with United States v.

Marzzarella. Marzzarella cautioned that if there were a

categorical exception from Second Amendment scrutiny for

all laws imposing conditions on the commercial sale of

firearms, “it would follow that there would be no

constitutional defect in prohibiting the commercial sale of

firearms.” 614 F.3d at 92 n.8. Marzzarella rightly observed

that in contemporary society, permitting an overall ban on

TEIXEIRA V. COUNTY OF ALAMEDA 37

gun sales “would be untenable under Heller,” id., because a

total prohibition would severely limit the ability of citizens to

acquire firearms. Marzzarella did not consider a situation in

which the right of citizens to acquire and keep arms was not

significantly impaired, yet commercial retailers were

claiming an independent right to engage in sales.

Finally, Teixeira invokes an analogy to First Amendment

jurisprudence for his contention that the Second Amendment

independently protects commercial sellers of firearms,

suggesting that gun stores are in the same position as

bookstores, print shops, and newspapers. The analogy fails.

If Teixeira were a bookseller aiming to open up shop in

Alameda County, the fact that there were already ten other

booksellers indeed would not matter. But he is a gun seller,

and for reasons explained below, that changes the

constitutional calculus.

First, the language of the Second Amendment is specific

as to whose rights are protected and what those rights are,

while the First Amendment is not. Compared to the Second

Amendment’s declaration, after an announcement of its

purpose in the introductory clause, that a right of “the people”

to “keep and bear Arms, shall not be infringed,” the First

Amendment’s command that “Congress shall make no law

. . . abridging the freedom of speech, or of the press” is far

more abstract. And, whereas the Second Amendment

identifies “the people” as the holder of the right that it

guarantees, the First Amendment does not state who enjoys

the “freedom of speech,” nor does it otherwise specify or

narrow the right.

Second, the Supreme Court has long recognized that

speech necessarily entails communication with other

38 TEIXEIRA V. COUNTY OF ALAMEDA

people—with listeners. See Talley v. California, 362 U.S. 60,

64 (1960) (“[S]uch [a] . . . requirement would tend to restrict

freedom to distribute information and thereby freedom of

expression.”); Hill v. Colorado, 530 U.S. 703, 716 (2000)

(“The right to free speech, of course, includes the right to

attempt to persuade others to change their views . . . .”).

Merely protecting one’s right to speak without more—to

lecture in vacant auditoriums or in remote forests, or to write

pamphlets without being permitted to hand them out—would

assuredly not satisfy the First Amendment.

Selling, publishing, and distributing books and other

written materials is therefore itself expressive activity.

Sellers, publishers, and distributors of such materials

consequently have freestanding rights under the First

Amendment to communicate with others through such

protected activity. The Supreme Court so observed in Smith

v. California, 361 U.S. 147, 150 (1959), stating that “the free

publication and dissemination of books and other forms of the

printed word furnish very familiar applications of the[]

constitutionally protected freedoms [of speech and of the

press].” The right to express one’s views, orally and in

writing, that is protected by the First Amendment thus

necessarily entails reaching an audience, including through

the distribution of written material. See id. “Liberty of

circulating is as essential to th[e] freedom [of the press] as

liberty of publishing . . . .” Lovell v. City of Griffin, 303 U.S.

444, 452 (1938) (quoting Ex parte Jackson, 96 U.S. 727, 733

(1877)).

The circulation and distribution of expression, in turn,

often necessitates retail transactions by booksellers and other

merchants, as free speech often isn’t free in the monetary

sense. As the Supreme Court has noted, “virtually every

TEIXEIRA V. COUNTY OF ALAMEDA 39

means of communicating ideas in today’s mass society

requires the expenditure of money. The distribution of the

humblest handbill or leaflet entails printing, paper, and

circulation costs.” Buckley v. Valeo, 424 U.S. 1, 19 (1976).

In light of this commercial reality, the fact that “the

dissemination [of books and other forms of the printed word]

takes place under commercial auspices” does not remove

those forms of communication from First Amendment

protection. Smith, 361 U.S. at 150.

In short, bookstores and similar retailers who sell and

distribute various media, unlike gun sellers, are themselves

engaged in conduct directly protected by the First

Amendment. They are communicating ideas, thoughts, and

other forms of expression to those willing to hear or read

them. Unlike gun sellers, they are “not in the position of

mere proxies arguing another’s constitutional rights.”

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6 (1963).

So, for example, if Teixeira wanted to sell books and

magazines rather than ammunition and magazines, the

existence of ten other bookshops in Alameda County—or on

a single street in Alameda County—that could sell his

potential customers the same material would be irrelevant to

his claimed right to distribute and sell books. The First

Amendment grants him the right to speak and disseminate

ideas, not merely his customers the right to hear them.22 But

22

See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,

Inc., 425 U.S. 748, 757 n.15 (1976) (“We are aware of no general

principle that freedom of speech may be abridged when the speaker’s

listeners could come by his message by some other means . . . .”). Though

Virginia State Board dealt with the right of listeners to hear particular

speech, the Court identified it as “reciprocal” to the right of the speaker.

40 TEIXEIRA V. COUNTY OF ALAMEDA

Teixeira sells guns instead of books, and the act of selling

firearms is not part or parcel of the right to “keep and bear

arms.” Yet Teixeira is asserting the right to sell guns no

matter how many other gun stores there are in the

jurisdiction.

Here, the gun sellers are instead in an analogous position

to medical providers in the Fourteenth Amendment context.

When medical providers have challenged laws restricting the

distribution of contraceptives and provision of abortions,

courts consistently examine whether the challenged laws

burden their patients’ right to access reproductive health

services, not whether the laws burden any putative right of

the provider. See Whole Woman’s Health, 136 S. Ct. at

2312–13, 2316 (in suit brought by abortion providers,

examining whether admitting privileges and surgical center

requirements imposed on health providers burdened a

woman’s choice to obtain a pre-viability abortion); Carey,

431 U.S. at 684–89 (striking down a statute forbidding the

distribution of certain contraceptives because the statute

constrained a woman’s choice of whether to have a child);

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846,

886–87 (1992) (examining regulations on abortions with

regard to the burden imposed on women seeking abortions).23

Id. at 757. It follows that the speaker’s right is undiminished by the

availability of other people merchandising the same ideas and messages.

23

The same principle applies in the Sixth Amendment context. The

Sixth Amendment provides a criminal defendant the right to an attorney

in criminal proceedings, but does not confer upon any attorney a

corresponding right to represent a defendant (much less to do so for a fee).

See Faretta v. California, 422 U.S. 806, 819–20 (1975) (“The Sixth

Amendment does not provide merely that a defense shall be made for the

accused; it grants to the accused personally the right to make his defense.

TEIXEIRA V. COUNTY OF ALAMEDA 41

Never has it been suggested, for example, that if there were

no burden on a woman’s right to obtain an abortion, medical

providers could nonetheless assert an independent right to

provide the service for pay.

As we have demonstrated, the Second Amendment does

not independently protect a proprietor’s right to sell

firearms.24 Alameda County’s Zoning Ordinance, to the

extent it simply limits a proprietor’s ability to open a new gun

store, therefore does not burden conduct falling within the

Amendment’s scope and is “necessarily allowed by the

It is the accused, not counsel, who must be ‘informed of the nature and

cause of the accusation,’ who must be ‘confronted with the witnesses

against him,’ and who must be accorded ‘compulsory process for

obtaining witnesses in his favor.’ . . . The counsel provision supplements

this design. It speaks of the ‘assistance’ of counsel, and an assistant,

however expert, is still an assistant. The language and spirit of the Sixth

Amendment contemplate that counsel, like the other defense tools

guaranteed by the Amendment, shall be an aid to a willing defendant

. . . .”). Counsel do have their own right not to have their speech restricted

when making legal arguments and giving clients advice, but that right

derives from the First, not the Sixth, Amendment. See, e.g., Legal Servs.

Corp. v. Velazquez, 531 U.S. 533, 548 (2001).

24

Our conclusion is consistent with the Fourth Circuit’s determination

in its unpublished decision in United States v. Chafin, 423 F. App’x 342,

344 (4th Cir. 2011), that no historical authority “suggests that, at the time

of its ratification, the Second Amendment was understood to protect an

individual’s right to sell a firearm” (emphasis in original). See also Mont.

Shooting Sports Ass’n v. Holder, No. CV-09-147-DWM-JCL, 2010 WL

3926029, at *21 (D. Mont. Aug. 31, 2010) (“Heller said nothing about

extending Second Amendment protection to firearm manufacturers or

dealers. If anything, Heller recognized that firearms manufacturers and

dealers are properly subject to regulation by the federal government under

existing federal firearms laws.”).

42 TEIXEIRA V. COUNTY OF ALAMEDA

Amendment.” Peruta, 824 F.3d at 939; see also Marzzarella,

614 F.3d at 89.

AFFIRMED.

OWENS, Circuit Judge, concurring:

I join all but Part II.D of the majority opinion. In my

view, we need not decide whether the Second Amendment

guarantees the right to sell firearms. It is enough that Heller

left intact “laws imposing conditions and qualifications on the

commercial sale of arms.” District of Columbia v. Heller,

554 U.S. 570, 626–27 (2008); see also McDonald v. City of

Chicago, 561 U.S. 742, 786 (2010) (“We made it clear in

Heller that our holding did not cast doubt on such

longstanding regulatory measures[.]”). The ordinance at issue

here falls within that category of “presumptively lawful

regulatory measures,” Heller, 554 U.S. at 627 n.26, and

plaintiffs therefore “cannot state a viable Second Amendment

claim.” Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir. 2012)

(en banc). As the dissent to the original panel decision put it,

all “we’re dealing with here is a mundane zoning dispute

dressed up as a Second Amendment challenge.” Teixeira v.

County of Alameda, 822 F.3d 1047, 1064 (9th Cir. 2016)

(Silverman, J., dissenting).

TEIXEIRA V. COUNTY OF ALAMEDA 43

TALLMAN, Circuit Judge, concurring in part and dissenting

in part:

I concur in the majority’s decision to affirm the district

court’s dismissal of the Second Amendment facial challenge.

Majority Op. II. A–C. However, I respectfully dissent from

the dismissal of the constitutional challenge as applied to

Teixeira. Majority Op. II. D. The majority’s analysis of the

Second Amendment challenge to locating a full-service gun

shop in an unincorporated area of Alameda County, which I

will call San Lorenzo, substantially interferes with the right

of its customers to keep and bear arms. The impact of this

county ordinance on the fundamental rights enshrined in the

Second Amendment cannot be viewed in a vacuum without

considering gun restrictions in California as a whole. I fear

today’s decision inflicts yet another wound on our precious

constitutional right.

Teixeira’s facial Second Amendment challenge fails

because appellants cannot demonstrate that the zoning

ordinance is unconstitutional in all of its applications. United

States v. Salerno, 481 U.S. 739, 745 (1987). Notably,

Teixeira did not allege that none of the existing gun stores in

the county can comply with the ordinance.1 The district court

properly dismissed the facial challenge to Alameda County’s

zoning ordinance.

1

The complaint concedes and its attachments state that there is at

least one such store that has complied with the Alameda County ordinance

and sells firearms to county residents. Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (“We need not

accept as true conclusory allegations that are contradicted by documents

referred to in the complaint.”).

44 TEIXEIRA V. COUNTY OF ALAMEDA

Teixeira, however, has the better argument on the as-

applied challenge. Teixeira alleges that the restrictive zoning

rules in the ordinance make it virtually impossible to open a

new, full-service gun store in unincorporated Alameda

County, and that makes it very difficult for individuals who

wish to exercise their Second Amendment rights to obtain,

maintain, and comply with the burdensome California state

and federal laws which govern acquisition, ownership,

carrying, and possession of firearms protected by the Second

Amendment. Teixeira should be permitted to engage in

further fact-finding to test whether the ordinance meets at

least intermediate scrutiny in establishing its challenge.

We have adopted a two-step inquiry: (1) “whether the

challenged law burdens conduct protected by the Second

Amendment and (2) if so, . . . to apply an appropriate level of

scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136–37

(9th Cir. 2013). Step One asks whether the conduct falls

outside the historical scope of the Second Amendment. If so,

the claim fails. To make this determination we ask:

(1) whether the regulation is one of the “presumptively lawful

regulatory measures” identified in District of Columbia v.

Heller, 554 U.S. 570, 627 n.26 (2008), or (2) “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.”

Jackson v. City and Cty. of San Francisco, 726 F.3d 953, 960

(9th Cir. 2014). If neither of these are met, then the law falls

within the historical scope of the Second Amendment and the

analysis proceeds to Step Two.

Under Step Two the appropriate level of scrutiny is

determined by examining how closely the law comes to the

core of the burdened Second Amendment right and the

TEIXEIRA V. COUNTY OF ALAMEDA 45

severity of that burden. Chovan, 735 F.3d at 1138. First, we

must determine if Alameda County’s ordinance is a

“presumptively lawful regulatory measure” as identified in

Heller. 554 U.S. at 627 n. 26. The majority properly notes

that the Supreme Court’s language is “opaque,” but declines

to clarify this precedent for our circuit. Majority Op. at 26.

In Heller, the Court declared “nothing in our opinion should

be taken to cast doubt on longstanding . . . laws imposing

conditions and qualifications on the commercial sale of

arms.” 554 U.S. at 626–27. These are “presumptively lawful

regulatory measures.” Id. at 627 n.26.

As I read the footnote, “longstanding regulatory

measures” refers to congressional measures that regulate the

sale of firearms, such as the validity of the Federal Firearms

Act, its implementing regulations, and the Bureau of Alcohol,

Tobacco, Firearms and Explosives’ historical enforcement of

sales, exchanges, and prohibitions on dealing in certain types

of firearms and with potential customers. McDonald v. City

of Chicago, 561 U.S. 742, 777 (2010). Justice Scalia’s

footnote in Heller could not have been addressing county

ordinances meant to restrict firearm acquisition and

possession as much as a local government can get away with.

The record here establishes beyond cavil the animus of the

Alameda County Board of Supervisors to Second

Amendment rights. I agree with Judge Bea that the Alameda

County ordinance does not fall within the Heller categories

and does not earn its presumption of lawfulness. See Bea

dissent at pp. 58–61.

Nevertheless, even if we found that the ordinance fell

within the Heller categories and was “presumptively lawful,”

that presumption is subject to rebuttal. Teixeira should have

been permitted to return to the district court to conduct

46 TEIXEIRA V. COUNTY OF ALAMEDA

discovery and “rebut this presumption by showing the

regulation does have more than a de minimis effect upon his

[claimed Second Amendment] right.” Heller v. District of

Columbia, 670 F.3d 1244, 1273 (D.C. Cir. 2011) (Heller II).

Second, if a law does not fit within the language of

Heller, the court determines if a challenged regulation

prohibits conduct that was traditionally protected by the

Amendment. Jackson, 746 F.3d at 960. The majority

concludes “the Second Amendment does not confer a free

standing right, wholly detached from any customer’s ability

to acquire firearms, upon a proprietor of a commercial

establishment to sell firearms.” Majority Op. at 25. Maybe

so.

But we need not find a freestanding right to sell firearms.

Rather, the ability of lawful gun owners to find a reasonably

available source to buy, service, test, and properly license

firearms is an attendant right to the fundamental right to bear

arms.2 The majority properly notes that the “Second

Amendment protects ancillary rights necessary to the

realization of the core right to possess firearms for self-

defense,” but fails to apply that protection here to ensure the

ordinance imposes no unreasonable restrictions on the right

2

I disagree with the majority’s assumption that the existing federally

licensed gun stores elsewhere in the county offer the full range of services

Teixeira proposed to offer in San Lorenzo. The West County Board of

Zoning Adjustments approved a variance for Teixeira’s location and stated

that “Unincorporated Alameda County currently has four (4) licensed

firearms sales business [sic].” Merely possessing such a license tells us

nothing about whether the licensee sells only long guns, handguns, or

ammunition. Nor can we tell whether gunsmithing services,

training/education classes, a target range, or anything else attends mere

possession of the license at each location.

TEIXEIRA V. COUNTY OF ALAMEDA 47

to lawfully acquire and maintain firearms for the defense of

hearth and home. Majority Op. at 14.

We found in Jackson that a regulation which

“eliminate[ed] a person’s ability to obtain or use

ammunition” was subject to heightened scrutiny because it

had the potential to make “it impossible to use firearms for

their core purpose.” 746 F.3d at 967. We face an analogous

situation. The Alameda County zoning ordinance precludes

Teixeira from opening a new gun store in San Lorenzo. The

lawful sale of arms to qualified people who wish to acquire

and keep them for employment (e.g., police officers and

security guards), self-defense, hunting, target shooting,

protection of commercial occupations—such as carrying

valuables like diamonds, protection of business premises, or

other such legal purposes—need freedom to purchase and

maintain the very arms they have the right to bear. Without

the ability to establish reasonable locations that sell and

service these arms, the ordinance “make[s] it impossible to

use firearms for their core purpose” of self-defense. Id. As

applied here, the ordinance potentially renders the right to

bear arms meaningless. When considered in combination

with similar burdensome regulations by other San Francisco

Bay Area cities and counties, local officials do not need to

explicitly ban firearms to block gun owners from reasonable

access to gun stores.3 Cf. Ill. Ass’n of Firearms Retailers v.

City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014)

3

And it is no answer, as my colleagues suggested in Jackson, that

while San Francisco could ban the sale of hollow point ammunition

(carried by many law enforcement officers), putative purchasers could

simply buy their ammunition elsewhere and bring it back to San Francisco

since it was not illegal to possess hollow point rounds. 746 F.3d at 968.

48 TEIXEIRA V. COUNTY OF ALAMEDA

(striking down an ordinance seeking to prohibit all firearms

sales).

The ability to acquire guns and ammunition, and to keep

them in operable condition, is “indispensable to the

enjoyment” of the fundamental right to bear arms as much as

access to a shooting range. Ezell v. City of Chicago, 651 F.3d

684, 704 (7th Cir. 2011); Richmond Newspapers v. Virginia,

448 U.S. 555, 579 (1980). Judge O’Scannlain’s scholarly

opinion for our panel in this case explains why this is true.

See 822 F.3d 1047, 1053–56 (9th Cir. 2016).

All would agree that a complete ban on the sale of

firearms and ammunition would be unconstitutional. History

supports the view that the Second Amendment must

contemplate the right to sell firearms if citizens are to enjoy

the core, fundamental right to own and possess them in their

homes. Chovan, 735 F.3d at 1133. The majority recounts

that states historically imposed criminal sanctions for giving

or selling arms to the Indians. Majority Op. at 31. They urge

this is evidence that the right to sell arms was not implicated

by the Second Amendment. However, this merely reiterates

the longstanding prohibition on the sale of firearms to certain

forbidden persons acknowledged in Heller. At the time such

discriminatory laws were adopted, the fledgling Nation was

treating our ancestral inhabitants as if they were convicted

felons or illegal aliens, who today are still banned by law

from possessing or acquiring firearms. 18 U.S.C. § 924;

27 C.F.R. § 478.32.

In light of the British embargo on the sale of arms in 1774

to prevent the Colonists from resisting the tyranny of King

George III, it is understandable that the Framers would want

to protect not only the right to bear arms, but

TEIXEIRA V. COUNTY OF ALAMEDA 49

correspondingly, the right to sell and acquire them. See

David B. Kopel, How the British Gun Control Program

Precipitated the American Revolution, 6 CHARLESTON L.

REV. 286 (2012). Throughout history and to this day the sale

of arms is ancillary to the right to bear arms.4

Based upon the Second Amendment’s text and history,

the Alameda County ordinance imposes prohibitions that may

indeed fall within the scope of Second Amendment

protection. Therefore, we must reach Step Two and ask

whether the ordinance unduly interferes with the right to

acquire and possess firearms for self-defense. So long as the

ordinance does not unduly impede that right, it will ultimately

pass constitutional muster. But plaintiffs are entitled to try to

establish evidence through discovery to support their

plausible claim. Teixeira has stated sufficient grounds,

which, if supported by such discovery, may well undermine

the nexus between the means chosen and the ends sought

when examined under the lens of at least intermediate

scrutiny.

Today’s decision perpetuates our continuing infringement

on the fundamental right of gun owners enshrined in the

Second Amendment. We cannot analyze constitutional rights

in a vacuum; instead, we must analyze the totality of the

impact of gun control regulations like these—local, state, and

federal—in determining how severely the fundamental liberty

protected by the Second Amendment is being burdened. In

states like California, that burden is becoming substantial in

4

“Our citizens have always been free to make, vend, and export arms.

It is the constant occupation and livelihood of some of them.” Teixeira v.

County of Alameda, 822 F.3d 1047, 1055 (9th Cir. 2016) (quoting Thomas

Jefferson, 3 Writings 558 (H.A. Washington ed., 1853)).

50 TEIXEIRA V. COUNTY OF ALAMEDA

light of continuing anti-gun legislation5 and our decisions

upholding such laws. See Chovan, 735 F.3d 1127 (9th Cir.

2013); Jackson, 746 F.3d 953 (9th Cir. 2014) (upholding an

ordinance requiring handguns inside the home to be stored in

locked containers or disabled with a trigger lock when not

being carried on the person); Peruta v. Cty. of San Diego,

824 F.3d 919 (9th Cir. 2016) (en banc), cert. denied, 137 S.

Ct. 1995 (2017) (holding the Second Amendment does not

protect the right to carry a concealed weapon in public where

the sheriff’s policy required “good cause” to obtain permits

to do so, and refused applicants who could offer no

justification beyond claiming the need for self-defense);

Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (upholding

a 10-day waiting period for purchasers who already had a

concealed-carry permit and already cleared a background

check); Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012)

(upholding an Alameda County ordinance that regulates the

sale of firearms at gun shows).

Our cases continue to slowly carve away the fundamental

right to keep and bear arms. Today’s decision further

lacerates the Second Amendment, deepens the wound, and

resembles the Death by a Thousand Cuts.

5

Peruta v. Cty. of San Diego outlines part of California’s

“multifaceted statutory scheme regulating firearms.” 824 F.3d 925–26; see

also Cal. Penal Code Pt. 6, T. 4 (regulating firearms generally); see also

Cal. Penal Code Pt. 6, T. 4, D. 5 (regulating the carrying of firearms in

California).

TEIXEIRA V. COUNTY OF ALAMEDA 51

BEA, Circuit Judge, dissenting:

The Second Amendment right to “keep and bear arms”

would not mean much unless one could lawfully purchase

and use arms. Section 17.54.131 of the Alameda County

Ordinance Code (the “Ordinance”) targets firearm stores; it

prohibits them within 500 feet of residences.

When a government regulation affects one’s right to

purchase and use a firearm, it may be challenged as impeding

the exercise of the Second Amendment right. To determine

the validity of such a regulation, we turn to Supreme Court

and Ninth Circuit precedents for guidance.

Those precedents require we first determine whether the

regulation—here, the Alameda ordinance—burdens the right

granted by the Second Amendment. If it does, we next

examine whether there is a specific governmental interest to

be served to justify the burden. If there is, we then measure

how severely the right is burdened, to see how much judicial

scrutiny into the workings of the regulation is required.

The majority opinion short-circuits this process by

making two errors. First, it holds that the Alameda ordinance

does not “meaningfully” burden the right to purchase and use

firearms because other gun stores are nearby Appellants’

proposed location. Second, it holds that Appellants have no

Second Amendment rights to sell firearms. I’ll deal with

these two errors in turn.

I.

In rejecting the panel opinion’s conclusion that the

Ordinance burdens the right to buy guns, today’s majority

52 TEIXEIRA V. COUNTY OF ALAMEDA

does not deny that such a right exists. Rather, it concludes

only that Appellants fail sufficiently to allege a violation of

that right because there are other gun sellers near the location

of their proposed gun store, including a Big 5 Sporting Goods

store just 600 feet away.

For the majority, a challenge to the Alameda Ordinance

requires that the Ordinance be not just a burden to the

exercise of Second Amendment rights, but a “meaningful[],”

Majority Op. 21, or “substantial,” Majority Op. 22, burden

before any type of judicial scrutiny, beyond the very

permissive “rational review” standard, be applied. This

requirement misreads our precedent in United States v.

Chovan, 735 F.3d 1127 (9th Cir. 2013) in two ways. First,

Chovan did not require the burden to be “meaningful” or

“substantial” to proceed to the second step in the analysis, the

“severity” of the burden. It required only that the right be

burdened. Second, Chovan explicitly required the “severity”

of the burden to be examined at its second step, as necessary

to choose the level of judicial scrutiny to be applied. Id. at

1138.

Here, when read in the light most favorable to

Appellants,1 the first amended complaint does allege a burden

on their prospective customers’ Second Amendment rights:2

1

See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109

(1979) (on a motion to dismiss, “[w]e . . . construe the complaint in favor

of the complaining party” (internal quotation marks and ellipses omitted)).

2

The complaint alleges that “a full service gun store located in San

Lorenzo,” of the kind contemplated by Appellants, “would be a success,

in part, because existing retail establishments . . . do not meet customer

needs and demands.” Specifically, the existing “general sporting good

TEIXEIRA V. COUNTY OF ALAMEDA 53

It alleges a burden on the ability of those prospective

customers to obtain training, repairs, and other gun-related

services at the same location at which they buy their firearms.

Teixeira v. County of Alameda, 822 F.3d 1047, 1056 (9th Cir.

2016); see also Ezell v. City of Chicago, 651 F.3d 684,

696–97 (7th Cir. 2011) (rejecting Chicago’s argument that its

ban on firearms ranges passed constitutional muster because

residents could travel outside the city to satisfy their needs

elsewhere, explaining that “[t]he pertinent question is whether

the Second Amendment prevents the City Council from

banning firing ranges everywhere in the city; that ranges are

present in neighboring jurisdictions has no bearing on this

question”). Just as Chicago could not outlaw target ranges in

Chicago, Alameda County could not outlaw combined

firearm sales, training, licensure, smithy and storage services

in the unincorporated areas of Alameda County.

In rejecting this burden, the majority concludes that the

Second Amendment does not guarantee a particular “retail

experience” to a gun buyer. See Majority Op. 20 n.13. This

characterization of the services to be offered by Appellants

pooh-poohs the alleged needs and demands of the firearm

buyers to meet those several needs and demands at a single

gun store. The majority assumes there is no advantage gained,

nor burden lessened, to firearm customers in the exercise of

their Second Amendment rights in being able to receive

training, establish licensure to possess firearms, obtain smithy

and maintenance services, and deposit firearms all in one

place. But combining the sales of products with services

necessary for their use is not merely a “retail experience”; it

is an essential form to meet the “needs and demands” of

stores” do not provide “personalized training and instruction in firearm

safety and operation” as well as “arms and ammunition.”

54 TEIXEIRA V. COUNTY OF ALAMEDA

customers. See Venkatesh Shankar, Leonard L. Berry, and

Thomas Dotzel, A Practical Guide to Combining Products

and Services, Harvard Business Review (November 2009)

(“These days, many firms are trying to mix products with

services in an effort to boost revenue and balance cash

flows. . . . Such offerings are commonplace—think Apple

(the iPod product combined with the iTunes service) and

Xerox (copiers and printers bundled with maintenance or

customer support services).”). Would it be a burden for a

burglary victim to be required to make an actionable crime

report separately at City Hall, the Hall of Justice and the local

police station, rather than call “911?” Or would the majority

simply tell the burgled homeowner that he wasn’t burdened

by having to visit three municipal offices because he wasn’t

entitled to a particular “citizen’s experience?”

The burden exists and was sufficiently alleged. The

proper analysis under Chovan is as to the severity of the

burden. But of course, if one were to admit that a “burden”

existed as to the customers’ Second Amendment rights, one

would have to consider the severity of such burden under an

intermediate or strict scrutiny test, rather than the permissive

“rational review” standard invoked by the majority opinion.

And that judicial scrutiny the majority opinion avoids

altogether by erroneously, in my view, finding that the

customers’ Second Amendment rights were not

“meaningfully” burdened.

Were one to find that yes, the customers’ Second

Amendment rights were at least lightly burdened, under

Chovan intermediate scrutiny would have to be employed to

analyze the validity of Alameda County’s actions. The first

TEIXEIRA V. COUNTY OF ALAMEDA 55

question would be whether the County has a “substantial”3

governmental interest in prohibiting gun stores to be located

within 500 feet of residences. What could that substantial

interest be?

The majority (albeit perhaps inadvertently) supplies the

answer in its first sentence: “to preserve the health and safety

of its residents.” Majority Op. 7; see also Teixeira, 822 F.3d

at 1060–61 (recognizing that one of the Ordinance’s asserted

purposes was “protecting public safety and preventing harm

in populated, well-traveled, and sensitive areas”). There are

two problems with invoking this “health and safety” claim as

a “substantial governmental interest” to justify the red-lining

of Appellants’ gun store.

First, Appellants’ complaint clearly alleges that even the

County doesn’t believe such purported justification; thus it is

pretextual. See Romer v. Evans, 517 U.S. 620, 632 (1996)

(holding that a regulation “lack[ed] a rational relationship to

legitimate state interests” because “its sheer breadth is so

discontinuous with the reasons offered for it that the

amendment seems inexplicable by anything but animus

toward the class it affects”); U.S. Dep’t of Agriculture v.

Moreno, 413 U.S. 528, 534 (1973) (“[A] bare . . . desire to

harm a politically unpopular group cannot constitute a

legitimate governmental interest.”). The complaint recounts

the “adoptive admissions and/or undisputed facts regarding

the [Alameda County Community Development Agency]

3

See Jackson, 746 F.3d at 965 (identifying “the first prong of

intermediate scrutiny review” as an inquiry into “whether the

government’s stated objective is significant, substantial, or important”

(emphasis added)).

56 TEIXEIRA V. COUNTY OF ALAMEDA

Planning Department’s findings.” Among those admissions

and undisputed facts, we find:

“Will the use [the proposed gun store], if

permitted, under all circumstances and

conditions of this particular case, materially

affect adversely the health or safety of persons

residing or working in the vicinity, or be

materially detrimental to the public welfare or

injurious to property or improvements in the

neighborhood?”

The County answers: “No.” As is said in Spain, “Mas claro,

ni el agua” (Not even water could be clearer). This admission

by the County calls into question whether the Ordinance

would pass even the “rational review” test, redolent as it is in

deference to government regulation. It is much less likely that

the health and safety of Alameda residents can be stated with

a straight face as a “substantial” or “compelling” justification

for the regulation as is required under the intermediate

scrutiny test. No sociological study is needed to assert that

gun buyers and gun sellers constitute a “politically unpopular

group” in Alameda County within the meaning of Moreno.

That the vote to deny Appellants’ variance was purely

political, and not based on an independent finding of danger

to citizens, is confirmed by the record’s utter lack of even the

most minimal explanation for the Supervisors’ vote.

Second, there is nothing in the record which intimates that

locating a gun store within 500 feet of a residence creates any

risk to the residents. The employees of a gun store are all

background checked. The purchasers must prove proper

backgrounds to buy. Our “intermediate scrutiny”

jurisprudence requires some type of proof of risk of the harm

TEIXEIRA V. COUNTY OF ALAMEDA 57

the government seeks to prevent to justify its prohibitive

regulation. Thus, in Chovan statistical studies of recidivism

in domestic violence offenders provided the proof of a

substantial governmental health and safety interest in

prohibiting domestic violence misdemeanants from

possessing firearms. Chovan, 735 F.3d at 1140–41. Likewise,

in Jackson, a legislative finding that “hollow-point bullets are

designed to tear larger wounds in the body by flattening and

increasing in diameter on impact” was sufficient to establish

that a ban on the sale of such ammunition furthered San

Francisco’s asserted interest of “reducing the fatality of

shootings.” Jackson, 746 F.3d at 969 (internal quotation

marks omitted); see also Ezell, 651 F.3d at 709 (rejecting

Chicago’s argument that “firing ranges create the risk of

accidental death or injury and attract thieves wanting to steal

firearms” because the city had “produced no empirical

evidence whatsoever and rested its entire defense of [its]

range ban on speculation about accidents and theft”).

Here, as in Ezell, the majority merely speculates that the

proximity of guns, in a gun store, threatens the County

residents’ health and safety. The County doesn’t even

speculate. Not only do the Planning Department of the

County’s Community Development Agency and the West

County Board of Zoning Adjustments categorically deny that

the threat exists, but ironically, it is just the other way around:

As noted in the panel’s now-vacated decision, it is precisely

in residences where the core Second Amendment right to

keep and bear arms is most pronounced and protected. See

Teixeira, 822 F.3d at 1061. The closer the store to residences,

the easier for residents to buy guns and the safer the

residences.

58 TEIXEIRA V. COUNTY OF ALAMEDA

In sum, this case does not present merely a “zoning

dispute” dressed up in Second Amendment garb. Id. at 1064

(Silverman, J., dissenting). If there were a zoning measure of

general application to bar retail stores of any kind within 500

feet of residences to lower traffic or noise, we wouldn’t be

here. But when law-abiding citizens are burdened in the

exercise of their Second Amendment rights to purchase

firearms and train, license, and maintain them for their self-

defense, the Government must justify its actions by proving

the existence of a substantial governmental interest and that

its regulation is reasonably tailored to achieve such

interest—the intermediate scrutiny test. See Jackson, 746

F.3d at 965. That, it has not done.

II.

The panel opinion persuasively lays out the historical

evidence demonstrating that the right to sell firearms is “part

and parcel of the historically recognized right to keep and to

bear arms.” See Teixeira, 822 F.3d at 1054–56 (citing, inter

alia, a law in colonial Virginia providing for the “liberty to

sell armes and ammunition to any of his majesties loyall

subjects inhabiting this colony”; Thomas Jefferson’s

observation in 1793 that “our citizens have always been free

to make, vend, and export arms”; and an 1871 Tennessee

Supreme Court decision which recognized that “the right to

keep arms, necessarily involves the right to purchase them”

(internal quotation marks, brackets, and citations omitted)).

I will not rehash that historical evidence here.

Instead, I will address the majority’s assertion that the

language of District of Columbia v. Heller, 554 U.S. 570

(2008), is “opaque” regarding the Second Amendment’s

application to “conditions and qualifications on the

TEIXEIRA V. COUNTY OF ALAMEDA 59

commercial sale of firearms.” Majority Op. 26. In my view,

Heller’s language is perfectly clear: such regulations are

“presumptively lawful” only if they are “longstanding.”

Heller, 554 U.S. at 626–27; see also Teixeira, 822 F.3d at

1056–58.

In Heller, the Supreme Court recognized for the first time

that the Second Amendment protects “an individual right to

keep and bear arms.” Heller, 554 U.S. at 595. The Court then

said the following about the scope of that right:

Although we do not undertake an exhaustive

historical analysis today of the full scope of

the Second Amendment, nothing in our

opinion should be taken to cast doubt on

longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or

laws forbidding the carrying of firearms in

sensitive places such as schools and

government buildings, or laws imposing

conditions and qualifications on the

commercial sale of arms.

Id. at 626–27 (emphasis added). Then, in a footnote, the

Court added: “We identify these presumptively lawful

regulatory measures only as examples; our list does not

purport to be exhaustive.” Id. at 627 n.26 (emphasis added).

In my view, the County cannot avail itself of the italicized

limitations for “longstanding . . . laws imposing conditions

and qualifications on the commercial sale of arms,” because

it has failed to carry its burden of establishing that the

Ordinance is “longstanding” or is in a class of longstanding

prohibitions as to the location of firearms sales and services

60 TEIXEIRA V. COUNTY OF ALAMEDA

in particular. Indeed, the County has offered no evidence

demonstrating that the Ordinance is the kind of regulation

which Americans would have seen as permissible at the time

of the adoption of the Second Amendment. See Teixeira,

822 F.3d at 1058. Though the majority has unearthed its own

historical narrative to that effect, see Majority Op. 28–34,

none of those materials were presented by the County to the

district court or in the County’s brief on appeal.

There can be no doubt that evidence the regulations are

“longstanding” is required to claim Heller’s carve-out for

“presumptively lawful” “conditions and qualifications on the

commercial sale of arms.” In the above-quoted passage from

Heller, the object of the preposition “on” in the phrase “cast

doubt on” is a disjunctive parallel construction: “longstanding

prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the

commercial sale of arms.” Thus, under the series-qualifier

canon, the adjective “longstanding” applies to each phrase

within the parallelism—including “laws imposing conditions

and qualifications on the commercial sale of arms.” See

Antonin Scalia and Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 147–151 (West 2012).

True, if the adjective “longstanding” describes “laws

imposing conditions and qualifications on the commercial

sale of arms,” rather than qualifying that phrase, then

historical evidence would not be necessary to claim the carve-

out. But this reading is untenable, because then any law

“imposing conditions and qualifications on the commercial

sale of arms” would be “longstanding”—even if it were

invented and enacted yesterday. “Longstanding” therefore

TEIXEIRA V. COUNTY OF ALAMEDA 61

tells us which “laws imposing conditions and qualifications

on the commercial sale of arms” are “presumptively lawful,”

and the County has failed to demonstrate that the Ordinance

falls within this category. See also Teixeira, 822 F.3d at 1058

(“That the Nation’s first comprehensive zoning law did not

come into existence until 1916, while not dispositive,

provides at least some evidence that Alameda County’s

Conditional Use Permit requirement is not heir to a

longstanding class of historical prohibitions or regulations.”).

Thus, neither the historical evidence nor the language of

Heller supports the majority’s conclusion that the Second

Amendment offers no protection against regulations on the

sale of firearms.

I respectfully dissent.