morning me please the court i'm donald kilmer i'm representing the appellants to syria and the gun store owners this to court order granting this motion to dismiss under rule twelve was wrong on the date it was filed but what makes it easy for this court to  dispose of this case is there were subsequent decisions show vonn and jackson in this circuit which mandate a reversal however as it was decided in september of two thousand and thirteen the district court gave a very cramped and narrow reading of the heller and mcdonald decision it came to the conclusion that the right is only a right that protects the right to keep bear arms in the home only the d c the district court iranis they concluded that the second amendment does not extend conflated conditions and qualifications on commercial sales the problem is make no mistake uses zoning or redlining as that is that what this case is about is prohibitory it is not regulatory what it would mean by that  well the five hundred foot rule your honor ends up being as was played in the complaint which the court must accept as true it ends up creating a situation where is impossible to open a gun store a new gun store in alameda county on the corporate areas ok but there are going stores in alameda county  currently existing gun stores in alameda county the problem is that as those stores either by attrition go out of business or they seek to expand themselves are not going to be able to stay in business and my clients also offer unique service although maybe it's not ripe yet but  understand it there are going stores in and nobody is claiming you can't buy a gun in alameda county they are the alternative the idea that michael that the rights are inviolate because there are alternative means of exercising the right is something that we don't well who's you talking about both my client's right to open a gun store and the rights that they are asserting under craig v boring for their customers and the people who may want to what is the this is what case says that the store has the right people have the right to open gun stores there isn't one that says people of the right to open gun stores were hoping to extend the analysis and other supreme court cases that a gun store owner can assert the rights of his customers and his patrons when their the first amendment protects freedom of the press freedom of press do you think that zoning regulations would apply to a newspaper certainly if the if the zoning is meant to regulate the newspaper as some sort of industry or some sort of well martial enterprise it we don't want a printing press within five hundred feet of a house because it makes noise well if there were facts to back that up your honor then we'd be in a different position this case is here on a rule twelve motion there are no facts that the county has produced or that have been there in this record that says gun stores that this five hundred foot rule somehow makes guns or authority either safer or  not that would be a rational review test right it might be but your honor that there has to be evidence that but no our position is that it will mean after is this it in a first amendment situation where there were  printing press would that with the right of the printing press to print pamphlets would that be subject to rational review or would it be subject to immediate review or strict scrutiny at least intermediate your honor if there were no facts to demonstrate that the printing press was causing a particular problem in this case there are no facts that gun stores are our particular source of any problem there's no primary analysis there's no secondary analysis in this case well then you don't need  o in the media scrutiny do you well our position is that the five hundred foot rule which is the only law that we're challenging here we're prepared to say to abide by all the other restrictions that alameda the state in the federal government  affects the public health and safety in any way yes your honor we would make the argument that doesn't have a rational basis review either well the standard here is at least intermediate if it's an ancillary right gun stores occupy the exact same position to the second amendment that bookstores do to the first amendment you know so here we have a twelve b six decision that's correct are there was no evidence taken obviously so it seems to me what you're asking for  can be put to the test of supporting the rational basis or at least the rational basis for the five hundred foot rule is that right well i've asked for i'd be asking for more than that your honor i'd ask for a remained with instructions that the test in the ninth circuit now under chauvin is a two part analysis first of all it is the second amendment impacted in this case we believe it is for the reasons i stated earlier for the same reason that bookstores would be impacted by a five hundred foot rule once we find that there is an impact we have to look as to whether or not what were the rules in place when the second amendment was ratified seven hundred ninety one or in eight hundred sixty four when the fourteenth amendment was ratified if the cover my can't produce anything to substantiate that yes the burden is on them under an intermediate scrutiny analysis to say you know these new rules are there something new or new fangled about gun stores that compel a finding that a five hundred foot rule will work here so i'd be asking for the court to remain and but also provide us with instructions on what kind of evidence what quality of evidence and what would be the evidentiary rules for the county to have to prove it's clearly their burden once a second amendment is there any reason why you can't open a gun store in the incorporated area the incorporated areas are governed by the city your honor and the the clients made a business decision to open in alameda the the particular location of this gun store or the proposed gun store used to be a paint store and there's a tire store across the street it's already in a commercial retail district the clients chose the site because its unique characteristic truth to help service their clients they're not a big five big box gun store they also provide one hundred safety courses they also provide gunsmithing services so they really do want to serve the local community and in fact the planning commission board in its initial finding granting us the variance initially said that these services are necessary and that there is apparent appears to be a demand for this and then they came to a conclusion that the only thing that this story violates is the five hundred foot rule well we still haven't got to a factual analysis because we're here on a twelve b six motion as to whether or not they even measure the five hundred foot properly but beyond that the five hundred foot rule itself is irrational because what's disqualifying this particular site is a residence and what's in congruity in the district court decision is this finding that residential areas are somehow sensitive places the problem is is that earlier in the district court decision there's a finding that the only place you can have a gun is in your home so if the district court decision doesn't make sense on its on its face and it should be should be remanded with instructions from this court about how to proceed with th rule essentially was within the category that was a den a fight in hell or rational rules for sensitive places what's your comment on that well except that residential areas can't be sensitive places by definition because the city has no or the county has no interest in regulating the possession of guns and houses that's the one place where there's a absolutely a core right and where that worst are actually strict scrutiny would apply it would make sure and clear your throat lions are not claiming the right to bear arms your clients are claiming a constitutional right to sell arms they're claiming the constitutional right to act like the second amendment analog of a bookstore owner provide looks very tough there's not a case in the united states that supports the right of gun sellers to assert that right is there maybe this case will be the and in the chicago in the seventh circuit there dealing with opening ranges i mansell very issue there is whether the ranges also sell guns now is that is the range case there was a total ban on ranges really that's correct drug we don't have a total ban in alameda county short has really plaintiffs perspective gun owners contend the ordinance impinges on their customers and their own second fourteenth amendment rights but in reality only interest affected here is plants desire to open a gun store in a particular location and because that interest is holy and protected by the constitution the district court's decision should be a farm and this is so for two reasons first the ordinance does not bring conduct protected by the second amendment and even if it does it easily passes intermediate scrutiny second plaintiffs have alleged have not alleged any facts showing that gun stores are similarly situated to other commercial businesses and even if they are that the alleged disparate treatment was intentional and that the county lacked a rational basis for doing so did the district court do an analysis of the rational basis yes sure that is record actually how did he do it on the basis of a twelve b six well they did the district court did an intermediate scrutiny analysis not to do this district court take any evidence from the county or from the other side to examine whether the ordinance meets the rational bas or not take any evidence that's correct your honor but i summited need not to and i asked the courts to look at the hall versus your see a case which was a district court in the case in the northern district which was decided on a motion for judgment on the pleadings it's a gun case out of san safety of minors was enough in its fight it cited a supreme court case new york versus ferber and that case on he was new york organs prohibiting the sale of pornography child pornography and the supreme court held that the state didn't need to have to come up with evidence showing child pornography is harmful to minors and to the public that the state stated basis was enough to pass scrutiny and i think the same holds true here self evident that you know a gun store near a residential zone creates public safety concerns and i think that this is a very minimally stringent ordinance it's just a five hundred foot ban around residents other sensitive places such as i'm having trouble following you counsel let me ask you what is possible problems right i think that those problems can be conceived i think that and what how can you conceive a danger to people because of a gun store well i mean if you look at there and there's also the issue of a set of cart was that based on evidence that convicted felons were buying guns at gun stores i don't believe that there was any evidence in that case of that of that occurs or any case in which there is evidence to support th there well there is there is discussion of that and i don't know if i recall that i was asking about evidence in that discussion i believe that there is that the in the there's an illinois on association case a district court case that there was a discussion where the city of chicago actually put forth some evidence showing that there was some harmful harmful effects related to the locations of gun stores and also there was there was talk in that case about straw purchasers where individuals who are you know lawfully allowed to possess a gun go and buy it for a convicted felon or some someone of that nature there is some evidence that chicago put forth about that in that case so that the secondary evidence that we can see of others a rational basis upon which to limit the sale of guns is the idea that convicted felons many attempt to buy guns at gun stores or that proxies will buy guns for convicted felons  nine sixty one f stop second nine twenty eight in that case there are some some discussion where chicago puts forth the reasons for a gun this is a district court case it's a district court case and that's it that's all you are the best of your research has shown well we also have of course you know in this court recognize public safety be an interesting government porton government interest in the jackson case that's a gun or a case of san francisco where there is a requirement to have all your would support the notion that to test the rationality of the regulation there must be some examination some some tender of evidence to support it no well i think your honor there would be no way could go through the process have an evidentiary hearing and reach a reason with conclusion that the regulation does have a valid purpose and therefore the gun store would not be permitted in that particular location mean bothers me is that this is all this entire case is on conjecture i think we don't even need to get there your honor and the reason being in in jackson you have a case where you weren't dealing with a presumptively lawful regulation you're dealing with one that had had not been noted by the supreme court in heller so they went to the secondary analysis which was the intermediate scrutiny here you're dealing with one that heller specifically identify saying you know that there is no question that the laws imposing conditions on the qualifications decision there at least the conclusion judge oric made but troubles me is that it seems to conclude that any restriction on the sale is presumptively lawful where does that come from that's not in heller it's not in heller but there are a number of cases that recognize heller as the heller list as disqualifications or exclusions from the second amendment such as this court in jackson which use the word outside the conclusions already reached by the board of supervisors or the planning committee whatever it was that the store did qualify what did what additional evidence would you be marshalling to support the validity of the five hundred foot rule well i think there's there's evidence in the record already which kind of shows why the variance was denied here if you look and the experts record there's a bunch of concerns from community  groups you know about the proximity of the gun store to the like for example hell's angels headquarters concerns about preserving the neighborhood protecting residents the planning department expressed concerns about a residential neighborhood being easily accessible so there is that stores and concerns about the residential character of the neighborhood let me ask you this i was asking your mr kilmer about who the plaintiff is here we don't have any plaintiffs who says i want to bear arms but we have o to sell arms so i asked mr kilmer how do you get from being a seller to assert the second amendment right to bear arms and he says they stand in the same position is porn shops what's your what's your answer to that well i don't i don't necessarily agree with my colleague in that one i think that you know the the craig v boring case was of the case they're kind of relying on dealt with a situation where you know the business could still represent his interest i don't think we really have that here we've never had a plaintiff come forward who actually tried to you know how it had an inconvenience or an inability to purchase a gun in alameda county so i don't think that that's necessarily analogous here  and there's certainly a lot of cases which hold that there is no second amendment right to sell arms to which cases say the well for example us of us versus shea finn is a fourth circuit case which found found no authority for the second amendment that has been the second amendment protection to firearms dealers and what cases that's the montana shooting sports association versus holder and that's two ten and westlaw three ninety two six zero two nine so there something yes it's and if it wasn't mention our brief it definitely was mentioned by the district court in its opinion i know that for certain both those cases owners who you mentioned in your brief and i'm trying to find it help me find out what page or i'm looking at roman three which is part of the listing and under him i don't see anything that says montana i'm just rebutting their argument that they have standing and that's why i bring up that case because the plaintiffs counsel mentioned that in his oral argument here one thing i would like to hit on i mean i am running out of time is that  there the equal protection argument clearly doesn't stand here you know plaintiff has to show that defendants intentionally treat him differently than other similar situated businesses without a rational basis you know there's no intentional distrait men and we've noted in in our brief and they have and there's that there's you know you can can superstore for example has to get a can a conditional use permit there's no difference in treatment from similarly situated businesses they're not similarly situated  commercial retailers as shown by how heavily regulated they are by both federal and state authorities and of course there is a rational basis here their gun stores do present dangers which as the court held in the whole case that there are some secondary effects and public safety concerns surrounding guns so unless of course any further questions also no further questions thank you counsel mister hilmer you have some reserved time to do your own thank you would you please address the point this regulation is presumptively valid under helmer heller dicta your honor talks about longstanding presumptively valid time if i'm remembering presumptively valid regulations were part of the commercial sale of firearms the commercial sale of firearms and the private sale of firearms in california i would note are all heavily regulated under state law it's possible to to buy and sell firearms on the streets in oakland on the streets in in unincorporated alameda county as long as you comply with california law which is both people have to pass a background check they have to use a licensed dealer to do the transfer the gun has to be held for ten days for the buyer to take possession so the idea that this county is somehow regulating the sale of firearms is just it's a smokescreen the five hundred foot rule doesn't do anything to regulate the sale of firearms the problem is the five hundred one i heard the county argue here is they were arguing for a complete ban on guns in alameda county they were they were proposing reasons like oh the crime rate or the danger to schools or school gun free school zones or what have you or the transportation of firearms one of the big differences between guns and books is you do not need a background check to buy a book you do not have to have your book held for ten days by the vendor you can read a book in public without a license so the point is that guns are already regulated by the state of california both in their in their carrying in their disposition in fact there be right practically rendered preemption here we're arguing that commercial sales are already regulated and therefore that the county must prove with it with its rules that it is doing something to address some articulable danger that's not already addressed by another law association should persist chicago case i believe is actually favorable to our position and that the problem is with the evidence and the record such as it is is that the only people who objected to this gun store was a housing association across eight lanes to twelve lanes of the eighty freeway on the other side of the freeway and behind a retaining wall that i was i believe it was twelve feet high it is it amounts to a heckler's veto the if you read the objections to the this homeowner's association is we don't like guns we don't like people who like guns we don't want them in our neighborhood that's redlining that is a particular that's using a particular animists against people who want to exercise their second amendment rights as a reason to deny them what's normally available to other commercially lawfully available products in the us the court has any further questions i have nothing further if you provide thank you counsel the case just you arguably submitted