When the panel issued its original opinion, I thought that Judge Silverman's dissent was spot on. In a concise, targeted way that was infinitely better than anything I could ever write myself. The entirety of that panel dissent reads as follows:
"The first thing you need to know about this case is who
the plaintiffs are. They are not individuals who claim the right
to keep and bear arms for self-defense or for other lawful
purposes. Rather, they are entrepreneurs (and their
supporters) who want to operate a gun shop in an area of
Alameda County that is not zoned for that use.
The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.
When you clear away all the smoke, what we’re dealing
with here is a mundane zoning dispute dressed up as a Second
Amendment challenge.
The Supreme Court has held that the Second Amendment
confers an individual right to keep and bear arms. District of
Columbia v. Heller, 554 U.S. 570, 595 (2008). Even
assuming for the sake of discussion that merchants who want
to sell guns commercially have standing to assert the
personal, individual rights of wholly hypothetical would-be
buyers – a dubious assumption, in my opinion – the first
amended complaint does not explain how Alameda County’s
zoning ordinance, on its face or as applied, impairs any actual
person’s individual right to bear arms, no matter what level
of scrutiny is applied. Instead, the first amended complaint
alleges that would-be buyers are entitled to the enhanced
customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy,
but it is not a constitutional right. What’s more, the Supreme
Court specifically held in Heller that “nothing in our opinion
should be taken to cast doubt on . . . laws imposing conditions
and qualifications on the commercial sale of arms.” Id. at
626–27.
Conspicuously missing from this lawsuit is any honest-to-God
resident of Alameda County complaining that he or she
cannot lawfully buy a gun nearby. The district court was
right on target in dismissing the plaintiffs’ zoning case for
failure to state a Second Amendment claim, because the
district court correctly ruled that the ordinance restricting the
location of a gun store is “quite literally a ‘law[] imposing
conditions and qualifications on the commercial sale of arms
. . . .’” Therefore, I respectfully dissent from that portion of
the majority’s opinion."
Pretty persuasive, right?
Not to the majority. But the problem with having Judge O'Scannlain, joined by Judge Bea, author the majority opinion in a Second Amendment case is that these judges are not representative. Not of the judiciary as a whole nor, particularly, the judges on the Ninth Circuit.
So when the case get taken en banc, as it predictably does, the vote's not even close. 9-1-1. With only Judge Bea himself agreeing with the panel opinion, with Judge Tallman concurring in part and saying that at least an as-applied challenge should prevail.
But that's, at best, 2 out of 11. Because, in truth, on the merits, this one's not especially difficult.
