The U.S. Ninth Circuit on Tuesday vacated a ruling against an Alameda County law barring gun stores within 500 feet of residential properties and ordered a rehearing.
The appeals court, the largest in the country and staffed primarily by appointments by Democrat Presidents, handed down its order citing that a majority of non-recused active judges from the Circuit voted to rehear the case. An 11-judge panel formed for an en banc review will rehear the case.
The court also instructed the circuit that the ruling in the case of Teixeira v. County of Alameda County should not be cited until after the review is complete.
The case was brought in 2012 by businessmen John Teixeira, Steve Nobriga and Gara Gamaza who found that the county’s zoning made it impossible to find commercial property available on which they could open a new gun store.
The men attempted during a two-year period to comply with the county to serve the San Leandro area and were initially granted a variance from the 500-foot rule to lease a location 446 feet away from a residential area. However, the Board of Supervisors reversed their decision after a local homeowners association who were “opposed to guns” objected, leading the entrepreneurs to seek redress with the courts.
While a District Court upheld the rule, a split three-judge panel of the Ninth Circuit in May found Alameda County’s regulations unconstitutional on Second Amendment grounds. The majority noted that county officials should provide evidence showing, for instance, that gun stores increase crime to justify such regulations.
“[T]he County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns,” wrote Circuit Judge Diarmuid O’Scannlain in the May decision. “The Second Amendment requires something more rigorous than the unsubstantiated assertions offered.”
Teixeira and his associates were backed in the suit by a host of gun rights organizations including the Calguns Foundation, the California Association of Federal Firearm Licensees and the Second Amendment Foundation. Brandon Combs, executive director of The Calguns Foundation, told Guns.com on Tuesday the latest en banc order may set the stage for a larger challenge.
“The Ninth Circuit’s decision to vacate yet another well-reasoned Second Amendment decision is disappointing, but we will continue to fight as long as it takes to restore freedom and prevail,” Combs said. “If the Second Amendment is going to survive and mean anything at all in oppressive states like California, New York, Maryland, Hawaii, and others, the Supreme Court is going to have to weigh in strongly, and soon.”
In 2015 the Ninth Circuit voted to vacate and rehear via an en banc panel a pair of gun rights victories, Peruta v. San Diego and Richards v. Yolo County, that stood to upset California’s strict “may-issue” guidelines for concealed carry. Both cases were overturned this summer 7-4.