                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        NOV 8 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JAMES ROTHERY; ANDREA                            No. 09-16852
HOFFMAN,
                                                 D.C. No. 2:08-cv-02064-JAM-KJM
                Plaintiffs-Appellants,

and                                              MEMORANDUM*

DEANNA SYKES; et al.,

                Plaintiffs,

 v.

COUNTY OF SACRAMENTO; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                              Submitted October 23, 2017**

Before:      McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges

      James Rothery and Andrea Hoffman appeal from the district court’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment dismissing their 42 U.S.C. § 1983 action alleging violations of their

constitutional rights arising from the denial of a license to carry concealed firearms

in public. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Peruta v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) (en banc)

(constitutional issues); Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988

(9th Cir. 2017) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.

      The district court properly dismissed plaintiffs’ Second Amendment claim

because “the Second Amendment does not protect, in any degree, the carrying of

concealed firearms by members of the general public.” Peruta, 824 F.3d at 942.

The district court properly dismissed plaintiffs’ derivative claim under the

Privileges and Immunities Clause. See Peruta, 824 F.3d at 942 (holding that a

derivative privilege and immunities claim was “necessarily resolve[d]” by the

court’s Second Amendment holding).

      The district court properly dismissed plaintiffs’ equal protection claim

because plaintiffs failed to allege facts sufficient to state a plausible claim for

relief. See Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law neither burdens a

fundamental right nor targets a suspect class, [the Supreme Court] will uphold the

legislative classification so long as it bears a rational relation to some legitimate

end.”); Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th Cir. 2002) (“[F]or a state

action to trigger equal protection review at all, that action must treat similarly


                                            2                                     09-16852
situated persons disparately.”), abrogated on other grounds by District of

Columbia v. Heller, 554 U.S. 570 (2008); see also Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (“To survive a motion to dismiss, a plaintiff must aver in the complaint

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” (citation omitted)).

       The district court properly dismissed plaintiffs’ claim alleging a Ninth

Amendment violation because “the Ninth Amendment does not encompass an

unenumerated, fundamental, individual right to bear firearms.” San Diego Cty.

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996).

       The district court did not abuse its discretion by dismissing plaintiffs’ action

without leave to amend because leave to amend would have been futile. See

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A district

court acts within its discretion to deny leave to amend when amendment would be

futile[.]”).

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

       AFFIRMED.




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