Agenda - Planning Commission - 08/04/2016

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Zoning Bulletin June 25, 2016 1 Volume 10 1 Issue 12 noted that although it would "typically subject a regulation interfering with a constitutionally protected right to some form of heightened scrutiny and require the Government to justify the burden it has placed on such right, the [United States Supreme Court had] made clear that certain regulations enjoy more deferential treatment," including "laws imposing conditions and qualifications on the commercial sale of arms." Still, the court said this did not mean that there was a categori- cal exception from Second Amendment scrutiny for the regulation of gun stores. Rather, the court said that exception from scrutiny applied only to the "type of longstanding `condition[ ]' or `qualification[ ] on the commercial sale of arms,' whose interference with the right to keep and to bear arms historically would have been tolerated." Here, the court found the County "failed to advance any argument that the zoning [O]rdnnance [was] a type of regulation that Americans at the time of the adoption of the Second Amendment or the Fourteenth Amendment (when the right was applied against the States) would have recognized as a permissible infringement of the traditional right." In other words, the court found that the County failed to demonstrate that any historical regulation restricted where firearm sales could occur. Thus, having concluded that the zoning Ordinance here did not fit within the Supreme Court's exception to Second Amendment scrutiny, the Ninth Circuit concluded that the Ordinance "must be subject to heightened scrutiny —something beyond mere rational basis review." The court said that if the Ordinance merely regulates where gun stores can be located then it merely burdens the "manner in which persons may exercise their Second Amendment rights" and is subject to inter- mediate scrutiny. The court explained thatin order for the Ordinance to pass intermediate scrutiny, it must: (1) serve a government objective that was "significant, substantial, or important"; and (2) there must be a reasonable fit between the Ordinance and the objective. Here, the County had identified the following objectives of the Ordinance: protecting public safety; and preserving the character of residential zones. Here, the court found that the County failed to justify how a gun store would increase crime in its vicinity, and thus failed to meet its burden of demonstrating that there was a "reasonable fit between the [Ordinance] and the asserted objective[s]." Teixeira had also alleged that the Ordinance's 500-foot rule, as ap- plied, amounted to a complete ban on gun stores. The court said that, if on remand, evidence confirmed that allegation, then " 'a more rigorous showing' than even intermediate scrutiny, `if not quite `strict scrutiny," would have been warranted." (In order for the Ordinance to pass strict scrutiny, the County would have to prove that: (1) there was a compel- ling state interest behind the 500-foot rule; and (2) the Ordinance was narrowly tailored to achieve its result.) The court concluded, acknowledging that the "County's Ordinance ©2016 Thomson Reuters 5