California City Takes Aim at Potential Gun Shops

Earlier this week we reported on a proposal in Monterey, California that would block any new gun shops from opening within the city limits until officials can come up with new regulations and restrictions on their location. Well, the city council has now voted, and to little surprise, council members unanimously approved the anti-2A measure.

The city currently has no specific regulations for gun and ammo stores, allowing them to operate in any retail or mixed-use zone.

“This matter is urgent because, without a moratorium, an unlimited number of firearms and ammunition sales business may locate almost anywhere in the city without local regulation,” City Attorney Christine Davi wrote in the city council agenda report.

City staff will come back to the council by April with policy recommendations.

Now keep in mind that, even though Monterey has had no specific zoning requirements for FFLs, it’s not like the town is awash in gun stores. As far as I can tell, there are only four FFLs in the coastal community, and the vast majority of them don’t have storefront locations. The moratorium came about because a third gun store is set to open its doors in the near future, in a setting that has some residents up in arms (so to speak).

The lack of an ordinance was brought to light after members of the Oak Grove neighborhood took to a city council meeting in early February to express disapproval of a new gun store set to open in a mixed-use building at 301 Ocean Avenue.

It’s located below several apartment units, in the middle of a primarily residential area, and near a preschool and a liquor store.

“I would feel very uneasy given the temperament of the country as far as shootings that are in the country right now,” Dona Betzold of the Oak Grove Neighborhood Association said.

L&B Firearms already has its business license and is set to open as early as March, according to the business owners Larry and Rebecca Sumners.

“I don’t fully understand it. I guess I get the neighborhood. But again, we can’t sell to criminals,” Larry Sumners said.

The NIMBYs aren’t concerned about Sumners selling to criminals. They’re bothered by the couple selling guns to their neighbors, co-workers, and family members. 

Thankfully, any restrictions that the Monterey City Council comes up with won’t impact L&B Firearms, though you can bet that city officials will be looking for any excuse and opportunity to shut them down in the future. And thanks to the Ninth Circuit Court of Appeals, the Monterey City Council can make it virtually impossible for any new stores to open going forward. In Teixeira v. County of Alameda, decided in 2017, the appellate court held that the Second Amendment doesn’t protect the right to sell a firearm, even if it protects the right to keep and bear them. 

The court reasoned that regulations directed at firearms sales likely fall into the category of firearm laws described in Heller as “presumptively lawful” regulations “imposing conditions and qualifications on the commercial sale of arms.” Still, the court viewed Heller’s language as “sufficiently opaque” to warrant a full textual and historical review of the Second Amendment’s applicability to the commercial sale of arms. This review led the court to the same conclusion: The Second Amendment, as written, “did not encompass a freestanding right to engage in firearms commerce divorced from the citizenry’s ability to obtain and use guns.”

But the right to acquire firearms, the Ninth Circuit clarified, is protected. The court reasoned that “the core Second Amendment right to keep and bear arms for self-defense wouldn’t mean much without the ability to acquire arms.” And though firearms dealers may assert that right on behalf of their potential customers, in this case, the court explained, the partners had not alleged that the inability to open a new firearms store interfered with the ability of Alameda County residents to acquire firearms. Notably, the court recounted that evidence established that, without the new gun store, “Alameda County residents may freely purchase firearms within the County,” given that the County was already home to 10 gun stores, including one that stood 600 feet away from the proposed site of the new store. Because the partners could not show that the zoning ordinance had burdened County residents’ right to acquire firearms, the court declined to determine the precise scope of the right to acquire firearms and the appropriate level of review to analyze claims of a deprivation of that right.

Under the Ninth Circuit’s reasoning, Monterery would be free to craft an ordinance that prevents any additional shops from selling firearms because residents have a handful of options if they want to purchase a gun. Any attempt to completely curtail the ability to open up a new gun store could still result in a lawsuit, especially since Teixeira was decided pre-Bruen, but any relief would likely have to come from SCOTUS and not the lower courts. 

We’ll be keeping an eye out for the city attorney’s recommendations when they’re released in April, but in the meantime Bay Area 2A supporters should check out L&B Firearms once they’re officially open and support the local business that’s drawn the ire of Monterey’s most hoplophobic residents.