John Teixeira v. County of Alameda

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

OPINION

We must decide whether the right to keep and to bear arms, as recognized by the Second Amendment, necessarily includes the right of law-abiding Americans to purchase and to sell firearms. In other words, we must determine whether the Second Amendment places any limits on regulating the commercial sale of firearms.

I

A

In the fall of 2010, John Teixeira, Steve Nobriga, and Gary Gamaza decided to open a retail business that would offer firearm training, provide gun-smith ser*1050vices, and sell firearms, ammunition, and gun-related equipment. The three formed a partnership named “Valley Guns & Ammo” and set to work on making their plan a reality. The trio conducted an extensive survey of Alameda County, California residents and discovered that existing retail establishments failed to satisfy customer demand. The men believed that Alameda County residents were in need of a more personal experience, and were likely to embrace a business that could provide a broader range of services not offered by existing sporting goods retailers. The City of San Leandro appeared to be the ideal location for their gun store.

Teixeira had operated an Alameda County gun store previously and was thus well aware of the maze of federal, state, and local regulations that he and his partners would have to navigate before they could open shop. Teixeira and Nobriga qualified for federal firearm licenses; all three men were eligible for California licenses. All that remained was to ensure that Valley Guns & Ammo would be in compliance with the Alameda County code.

In unincorporated Alameda County, two species of retailers must obtain “Conditional Use Permits” before they are authorized to conduct business: “superstore[s]” and “firearms sales businesses].” Alameda Cty., Cal., Code §§ 17.54.130-132 (“the Ordinance”). The County reviews applications to determine whether there is a “public need” for a proposed business, whether the business will “affect adversely the health or safety of persons residing or working in the vicinity,” and whether the business would be detrimental to the public welfare or property. Id. § 17.54.130. The County will not issue a permit to a prospective gun retailer until the applicant proves, among other things, that it (1) possesses the requisite state and federal licenses, (2) will store firearms and ammunition lawfully, and (3) the proposed location of the business is not within five hundred feet of a “[rjesidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.” Id. §§ 17.54.130-131. Finally, firearms sellers must obtain a county firearms dealer license. Id. § 17.54.131.

The Alameda County Planning Department informed Teixeira, Nobriga, and Ga-maza (collectively “Teixeira”) that the 500-foot zoning requirement was to be measured from the closest door of the proposed business location to the front door of any disqualifying property. Relying on such guidance, Teixeira settled on a suitable property on Lewelling Boulevard in San Leandro. The building he chose had only one door, which faced Lewelling Boulevard. Teixeira obtained a survey showing that the closest residential property (from door to door) was located 532 feet away, across Interstate 880 in San Lorenzo Village. The next closest disqualifying properties, similarly measured, were a residence located 534 feet away and another property located 560 feet away (the latter also on the far side of the Interstate). Teixeira met with the landlord of the chosen premises, agreed to a lease, and began conducting preparations to ensure that the property would comply with myriad state and federal regulations.

The West County Board of Zoning Adjustment scheduled a hearing and the Planning Department issued a “Staff Report.” Aside from raising concerns regarding compliance with the “Eden Area General Plan,”1 the report found that *1051there was indeed a “public need” for Valley Guns & Ammo’s services, that the proposed business would not affect adversely the health or safety of local residents, that it had obtained all required licenses, and that Teixeira had sufficient knowledge to operate a gun store. The report nevertheless concluded that a zoning variance would be required because the proposed site, contrary to the survey Teixeira had commissioned, was in fact within 500 feet of a residential property and therefore failed to qualify for a permit. The report explained that the County had chosen to measure from the closest building exterior wall of the proposed site to the closest residential property line rather than from door to door. As a result; it determined that the nearest residential property was only 446 feet away — 54 feet too close under the 500-foot rule. The report recommended against approving a variance.

Despite the report, at a public hearing on December 14, 2011, the West County Board of Zoning Adjustments voted to grant a variance and approved the issuance of a permit. Noting the violation of the 500-foot rule, the Board reasoned that the “situation [was] unique” and thus a variance was appropriate because Interstate 880, as well as other obstructions, prevented “direct traversable access at a distance less than 500 feet from the site to a residentially zoned district.” The Board determined that Teixeira’s proposal otherwise complied with the Conditional Use Permit requirements, and that it was not counter to the Eden Area General Plan. Teixeira was informed that the decision would be final unless an appeal were filed by December 26, 2011.

The San Lorenzo Village Homes Association, some of whose members “are opposed to guns and their ready availability and therefore believe that gun shops should not be located within [their] community,” challenged the Board’s decision. On February 28, 2012, the Alameda County Board of Supervisors voted to sustain the appeal, thus revoking Teixeira’s Conditional Use Permit and variance.

B

Teixeira challenged the County’s decision in the United States District Court for the Northern District of California, arguing that it violated his right to due process and denied him equal protection of the law, and that the Ordinance was impermissible under the Second Amendment both facially and as applied. In preparation for the suit, Teixeira commissioned a study, which determined that, as a result of the 500-foot rule, “there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales.” He argued that the zoning ordinance “is not reasonably related to any possible public safety concerns” and effectively “red-lin[es] ... gun stores out of existence.”

Alameda County moved to dismiss the claims and Teixeira moved for a preliminary injunction (Teixeira would later stipulate to the dismissal of his due process claim). The district court denied Teix-eira’s motion and dismissed the equal protection and Second Amendment claims .with leave to amend. Teixeira filed an amended complaint that asserted four claims: (1) in singling out gun stores, the Ordinance, as applied, violated the Fourteenth Amendment’s Equal Protection Clause; (2) the Ordinance was facially invalid under the Equal Protection Clause because it targeted guns stores but did not apply to other similarly situated businesses; (3) the Ordinance was facially invalid under the Second Amendment; and (4) the Ordinance, as applied, violated the Second Amendment. Teixeira sought declaratory and injunctive relief; damages including costs, expenses, and lost profits; and costs and attorney’s fees. In re*1052sponse, the County moved to dismiss, arguing that the equal protection challenges failed to state sufficient facts to support a claim and that under the Second Amendment, regulations governing the sale of firearms are presumptively valid.

The district court granted the County’s motion under Federal Rule of Civil Proce- . dure 12(b)(6) to dismiss for failure to state a claim upon which relief could be granted. Teixeira timely appealed.

II

Teixeira first renews his Equal Protection Clause claims. Because “most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons,” we will uphold a legislative classification so long as it “neither burdens a fundamental right nor targets a suspect class,” and “bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); see also Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

A

Because gun store owners have not been recognized as a “suspect class,” see Olympic Arms v. Buckles, 301 F.3d 384, 388-89 (6th Cir.2002), Teixeira instead asserts that he is “engaged in, or assisting others in exercising a core fundamental right” and that “the Government’s actions infringe on” that right. Merely infringing on a fundamental right, however, does not implicate the Equal Protection Clause; to succeed, Teixeira must allege that he is being denied a fundamental right while others are permitted to exercise such right, and that there is no valid justification for the distinction. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (“When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”); see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled, in part, on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Here, “other general retailers,” whom Teixeira identifies as similarly situated businesses, are also forbidden from engaging in the commercial sale of firearms absent compliance with Alameda County Land Use Code § 17.54.131. This is not a situation where one group is being denied a right while another similar group is not. And because the right to keep and to bear arms for self-defense is not only a fundamental right, McDonald v. City of Chicago, 561 U.S. 742, 766-78, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), but an enumerated one, it is more appropriately analyzed under the Second Amendment than the Equal Protection Clause. Cf. Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’ ” (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989))). Because Teixeira’s equal protection challenge is “no more than a [Second] Amendment claim dressed in equal protection clothing,” it is “subsumed by, and coextensive with” the former, Orin v. Barclay, 272 F.3d 1207, 1213 n. 3 (9th Cir. 2001), and therefore is not cognizable under the Equal Protection Clause.

*1053B

Nor did Teixeira adequately plead a “class-of-one” Equal Protection Clause claim. A class-of-one claim is cognizable when a “plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). But Teixeira himself acknowledges that gun stores are materially different from other retail businesses when he notes that “[b]usinesses offering gun smithing services and retail firearm sales are strictly licensed and regulated by state and federal law.” In neglecting to identify a similarly situated business, Teixeira failed to plead a cognizable class-of-one claim. Teixeira’s Equal Protection Clause claims accordingly fail.

Ill

Next Teixeira argues that he has sufficiently pled a claim that Alameda County’s zoning ordinance violates the Second Amendment. Because the district court disposed of the case on the pleadings, we must assume the veracity of the, factual allegations contained in Teixeira’s complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574-626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Court subsequently applied the right against the States via the Fourteenth Amendment in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). See also Caetano v. Massachusetts, — U.S.-, 136 S.Ct. 1027, 1027, 194 L.Ed.2d 99 (2016) (per curiam).2 Though the Supreme Court has yet to “clarify the entire field” of Second Amendment jurisprudence, Heller, 554 U.S. at 635, 128 S.Ct. 2783, it has established a broad framework for addressing challenges such as the one at hand. See Jackson v. City & County of San Francisco, 746 F.3d 953, 959 (9th Cir.2014).3 In reviewing Alameda County’s ordinance, we employ a two-step inquiry, which begins by asking whether a challenged law burdens conduct protected by the Second Amendment; if the answer is in the affirmative, we apply the appropriate level of scrutiny. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013) (citing United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)); see also Jackson, 746 F.3d at 959-60.

A

Turning to the inquiry’s first step, we must determine whether the commercial sale of firearms implicates the Second *1054Amendment right to keep and to bear arms by reviewing the “historical understanding of the scope of the right.” Heller, 554 U.S. at 625, 128 S.Ct. 2783.

1

Teixeira ultimately bases his Second Amendment challenge on a purported right to purchase firearms — that is, a right to acquire weapons for self-defense. Though Heller did not recognize explicitly a right to purchase or to sell weapons, the Court’s opinion was not intended to serve as “an exhaustive historical analysis ... of the full scope of the Second Amendment.” Heller, 554 U.S. at 626, 128 S.Ct. 2783. Therefore it is incumbent upon us to take a fresh look at the historical record to determine whether the right to keep and to bear arms, as understood at the time it was enshrined in the Constitution, embraced a right to acquire firearms. See id. at 634-35, 128 S.Ct. 2783.

Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms. See generally David B. Kopel, Does the Second Amendment Protect Firearms Commerce?, 127 Harv. L. Rev. F. 230 (2014). The English Bill of Rights of 1689 had guaranteed “[t]hat the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. The right of citizens to possess firearms was a proposition that necessarily extended from the fundamental tenet of natural law that a man had a right to defend himself. As William Blackstone noted:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

1 William Blackstone, Commentaries 139 (1765).

As British subjects, colonial Americans believed that they shared equally in the enjoyment of this guarantee, and that the right necessarily extended to commerce in firearms. Colonial law reflected such an understanding. For instance, in Virginia, all persons had “liberty to sell armes and ammunition to any of his majesties loyall subjects inhabiting this colony.” Laws of Va., Feb., 1676-77, Va. Stat. at Large, 2 Hening 403. It came as a shock, therefore, when the Crown sought to embargo all imports of firearms and ammunition into the colonies. 5 Acts Privy Council 401, re-printed in Connecticut Courant, Dec. 19, 1774, at 3. The General Committee of South Carolina declared in response that “by the late prohibition of exporting arms and ammunition from England, it too clearly appears a design of disarming the people of America, in order the more speedily to dragoon and enslave them.” 1 John Drayton, Memoirs of the American Revolution As Relating to the State of South-Carolina 166 (1821) (internal quotation marks omitted). Such suspicions were not unwarranted. As war raged in 1777, Colonial Undersecretary William Knox recommended that the Americans, once conquered, be subdued, in part, by prohibiting their means of producing arms: “the Arms of all the People should be taken away ... nor should any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without Licence.” Leland J. Bellot ed., William Knox Asks What is Fit to Be Done with America?, in 1 Sources of American Independence 140, 176 (Howard H. Peckham ed., 1978).

*1055Knox never had the opportunity to put his plan into action. Having freed themselves from the rule of King George III, Americans turned their attention to fashioning a constitutional order that would preserve the rights they had shed blood defending at Lexington and Concord, Trenton, and Yorktown.

In ratifying the Second Amendment, the States sought to codify the English right to keep and to bear arms. See Heller, 554 U.S. at 599, 128 S.Ct. 2783. The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” Thomas Jefferson, 3 Writings 558 (H.A. Washington ed., 1853). Indeed, as one commentator of the early Republic pondered, “What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece ... ?” Heller, 554 U.S. at 583 n. 7, 128 S.Ct. 2783 (quoting Some Considerations on the Game Laws 54 (1796)). At the time the Fourteenth Amendment was ratified, which McDonald held applied the Second Amendment against the States, at least some American jurists simply assumed that the “right to keep arms, necessarily involve[d] the right to purchase them.” Andrews v. State, 50 Tenn. 165, 178 (1871).

As our predecessors recognized, logic compels such an inference. If “the right of the people to keep and bear arms” is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear. Indeed, where a right depends on subsidiary activity, it would make little sense if the right did not extend, at least partly, to such activity as well. The Supreme Court recognized this principle in very different contexts when it held that “[ljimiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives,” Carey v. Population Servs., Int’l, 431 U.S. 678, 689, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and when it held that a tax on paper and ink products used by newspapers violated the First Amendment because it impermissibly burdened freedom of the press, see Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). “[F]un-damental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined” because such “un-articulated rights are implicit in enumerated guarantees.” Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). One cannot truly enjoy a constitutionally protected right when the State is permitted to snuff out the means by which he exercises it; one cannot keep arms when the State prevents him from purchasing them. Cf. Jackson, 746 F.3d at 967 (“[WJithout bullets, the right to bear arms would be meaningless.”); Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.2011) (“The right to possess firearms for protection implies a corresponding right to ... maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”). Thus, the Second Amendment “right must also include the right to acquire a firearm.” Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F.Supp.2d 928, 930 (N.D.Ill.2014).4 As the District Court *1056for the Northern District of Illinois noted in striking down a Chicago ordinance that abridged such right, a “ban on gun sales and transfers prevents [citizens] from fulfilling ... the most fundamental prerequisite of legal gun ownership — that of simple acquisition.” Id. at 938; see also Mance v. Holder, 74 F.Supp.3d 795, 807 n. 8 (N.D.Tex.2015) (“[Operating a business that provides Second Amendment services is generally protected by the Second Amendment, and prohibitions on firearms sales are subject to similar scrutiny.”); Radich v. Guerrero, No. 1:14-CV-00020, '2016 WL 1212437, at *7 (D.N.Mar.I. Mar. 28, 2016) (“If the Second Amendment individual right to keep and bear a handgun for self-defense is to have any meaning, it must protect an eligible individual’s right to purchase a handgun, as well as the complimentary right to sell handguns.”).

Alameda County has offered nothing to undermine our conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.

2

In addition to selling firearms, Teixeira alleges in his First Amended Complaint that his proposed gun store would offer various services including “state-mandated Hunter Safety Classes, Handgun Safety Certificates” and “classes in gun safety, including safe storage of firearms in accordance with state law.” Because the Second Amendment protects a “right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms,” Heller, 554 U.S. at 617, 128 S.Ct. 2783, it naturally follows that

to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

Id. at 617-18, 128 S.Ct. 2783 (quoting Thomas Cooley, The General Principles of Constitutional Law in the United States of America 271 (1868)).

Such logic led the Seventh Circuit to conclude that a regulation prohibiting most firearm ranges within the city limits of Chicago constituted a “serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.” Ezell, 651 F.3d at 708. Just like the firearm range in Ezell, the services Teixeira hopes to offer implicate the right to keep and to bear arms. The Ordinance’s potential interference with such services was therefore a proper basis for Teixeira’s Second Amendment challenge. See Mance, 74 F.Supp.3d at 807 n. 8.

B

Having determined that, contrary to the district court’s ruling, the Alameda County ordinance burdens conduct protected by the Second Amendment, the next step in the inquiry is to identify the proper standard of review. Jackson, 746 F.3d at 960-61; Chovan, 735 F.3d at 1136.

1

Though we 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 Heller court made clear that certain regulations knjoy more deferential treatment:

[N]othing in our opinion should be taken to cast doubt on longstanding prohi*1057bitions on the possession of firearms by-felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller, 554 U.S. at 626-27, 128 S.Ct. 2788. The Court went on to explain in a footnote that this list of “presumptively lawful regulatory measures” was not intended to bq exhaustive. Id. at 627 n. 26, 128 S.Ct. 2783. McDonald v. City of Chicago, which incorporated the Second Amendment against the States, made similar assurances regarding such “longstanding regulatory measures.” 561 U.S. at 786, 130 S.Ct. 3020.

Teixeira argues that the passage in Heller is merely a prediction by the Court that such regulations would likely survive if subjected to some form of heightened scrutiny — it did not exempt listed activities from the analysis altogether.- A dismissal of the language as dicta, however, is something we have considered previously and rejected. See United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir.2010). We instead treat Heller’s “presumptively lawful regulatory measures” as examples of prohibitions that simply “fall outside the historical scope of the Second Amendment.” Jackson, 746 F.3d at 959-60. Given their longstanding acceptance, such measures are not subjected to the more exacting scrutiny normally applied when reviewing a regulation that burdens a fundamental right.

But an exemption for certain “laws imposing conditions and qualifications on the commercial sale of arms,” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783, does not mean that there is a categorical exception from Second Amendment scrutiny for the regulation of gun stores. If such were the case, the County could enact a total prohibition on the commercial sale of firearms. There is no question that “[sjuch a result would be untenable under Heller.” Marzzarella, 614 F.3d at 92 n. 8. Indeed, if all regulations relating to the commercial sale of firearms were exempt from heightened scrutiny, there would have been no need to specify that certain “conditions and qualifications on the commercial sale of arms” were “presumptively lawful.” Heller, 554 U.S. at 626-27 & n. 26, 128 S.Ct. 2783; see Kopel, supra, at 236 (“[T]he exception proves the rule. There is a right to the commercial sale of arms, but it is a right that may be regulated by ‘conditions and qualifications.’ ”). As discussed, supra, we are satisfied that the historical right that the Second Amendment enshrined embraces the purchase and sale of firearms. The proper question, therefore, is whether Alameda County’s ordinance is the type of longstanding “condition[ ]” or “qualification[] on the commercial sale of arms,” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783, whose interference with the right to keep and to bear arms historically would have been tolerated.

In United States v. Choran, we held that a federal statute prohibiting domestic violence misdemeanants from possessing firearms for life was not presumptively lawful under Heller. See 735 F.3d at 1137. First, we determined that the statute did not represent a “longstanding” prohibition, noting that the “first federal firearm restrictions regarding violent offenders were not passed until 1938.” Id. Second, we concluded that the Government failed to prove “that domestic violence misdemean-ants in particular have historically been restricted from bearing arms.” Id. (emphasis omitted). Thus, a regulation that merely resembles something listed by the Court in Heller will not avoid heightened constitutional scrutiny. Instead, the type of law in question must be both longstanding and closely match a listed prohibition, see id., or, alternatively, there must be *1058“persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment,” Jackson, 746 F.3d at 960. The burden is on the Government to demonstrate that a prohibition has historically fallen outside the Second Amendment’s scope before it can claim a presumption of validity. See Chovan, 735 F.3d at 1137.

Here, the County failed to demonstrate that the Ordinance “falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected.” Jackson, 746 F.3d at 960 (internal quotation marks omitted). Although, as the district court observed, the Ordinance is a “law[ ] imposing conditions and qualifications on the commercial