FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

REED DAY; ALBERT JACOBS,                  No. 23-16148

           Plaintiffs - Appellants,          D.C. No.
                                          2:21-cv-01332-
 v.                                            GMS

BEN HENRY, in his official capacity
as Director of the Arizona Department
of Liquor Licenses and Control; et al.,

OPINION

           Defendants - Appellees,
 and

WINE AND SPIRITS
WHOLESALERS ASSOCIATION
OF ARIZONA,

           Intervenor - Defendant -
           Appellee.


       Appeal from the United States District Court
                for the District of Arizona
        G. Murray Snow, District Judge, Presiding

         Argued and Submitted October 22, 2024
                   Phoenix, Arizona
2                          DAY V. HENRY


                      Filed March 4, 2025

Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and
        DANIELLE J. FORREST, Circuit Judges.

              Opinion by Judge Milan D. Smith, Jr.;
    Partial Concurrence and Partial Dissent by Judge Danielle
                           J. Forrest.


                          SUMMARY *


                       Commerce Clause

    The panel affirmed the district court’s summary
judgment for state officials and an intervenor-defendant in a

 action brought by Arizona residents
alleging that Arizona’s statutory scheme preventing retailers
without in-state premises from shipping wine directly to
Arizona consumers violates the Commerce Clause.
    The panel first held that plaintiffs met the requirements
for Article III standing. The redressability requirement of
standing had been met because the district court was capable
of granting at least some relief, regardless of whether that
relief—or any other possible relief—might ultimately prove
appropriate on the merits.
    The panel held that plaintiffs failed to meet their burden
of showing that Arizona’s physical presence requirement


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        DAY V. HENRY                       3


was discriminatory. Arizona’s requirement that a retailer
establish a physical premise in Arizona that is managed by
an Arizona resident to obtain a retail license to ship wine
directly to consumers applies even-handedly to all wine
retailers, no matter whether that retailer is headquartered,
incorporated, or otherwise based in another state. Moreover,
Arizona’s physical premise requirement was not so
“onerous” as to be expressly discriminatory. Out-of-state
businesses can (and do) obtain retail licenses in
Arizona. The fact that out-of-state businesses possess
Arizona retail licenses and have obtained direct shipping
privileges supports the conclusion that Arizona’s laws do not
have a discriminatory effect in practice.
    Concurring in part and dissenting in part, Judge Forrest
agreed that plaintiffs have standing to challenge Arizona’s
restrictions. She dissented because she believes Arizona’s
law is discriminatory. At bottom, Arizona allows only those
retailers willing to set up shop in-state to ship wine to
Arizonans. That type of economic isolationism is facially
discriminatory, in part because it tends to discourage
domestic corporations from plying their trades in interstate
commerce. Judge Forrest would remand for the district
court to conduct the required evidentiary inquiry into
whether Arizona’s discriminatory regulations may be
justified on legitimate, non-protectionist grounds.
4                     DAY V. HENRY


                       COUNSEL

James A. Tanford (argued), Robert D. Epstein, and James E.
Porter II, Epstein Seif Porter & Beutel LLP, Indianapolis,
Indiana; Christopher J. Zachar, Zachar Law Firm PC,
Phoenix, Arizona; for Plaintiffs-Appellants.
Luci D. Davis (argued) and Nathan T. Arrowsmith,
Attorneys; Dena R. Benjamin and Linda Bergevin, Assistant
Attorneys General; Kristen K. Mayes, Arizona Attorney
General; Arizona Attorney General’s Office, Phoenix,
Arizona; for Defendants-Appellees.
Hannah H. Porter (argued) and Kevin E. O’Malley,
Gallagher & Kennedy PA, Phoenix, Arizona, for Intervenor-
Defendant-Appellee.
Frederick R. Yarger and William Sowers Jr., Wheeler Trigg
O’Donnell LLP, Denver, Colorado; Jacob Hegeman, Wine
& Spirits Wholesalers of America Inc., Washington, D.C.;
for Amici Curiae Wine & Spirits Wholesalers of America
Inc. and American Beverage Licensees.
John C. Neiman Jr. and Mollie G. Hughes, Maynard Nexsen
PC, Birmingham, Alabama, for Amicus Curiae National
Beer Wholesalers Association.
                        DAY V. HENRY                       5

OPINION

M. SMITH, Circuit Judge:

    Plaintiff-Appellants Reed Day and Albert Jacobs are
Arizona residents who desire to ship wine directly to
themselves from retailers who do not maintain in-state
premises in Arizona. Arizona’s statutory scheme, however,
prevents such shipments. As a result, Plaintiffs brought a
civil rights action against various Arizona state officials
pursuant to 

, challenging the statutory
scheme, which they claim violates the Commerce Clause.
Plaintiffs now appeal the district court’s order granting
summary judgment to the state officials and an intervenor-
defendant. For the reasons explained below, we affirm.
                     BACKGROUND
    Like many states, Arizona utilizes a “three-tier” system
to regulate the sale and distribution of alcohol. This system
allocates the sale and distribution of alcohol among
producers, wholesalers, and retailers. Licensed wholesalers
must buy from producers (sometimes called suppliers) and
then sell to licensed retailers, who then sell to consumers.
The three-tier framework arose because of “tied-house”
saloons in the pre-Prohibition era, in which alcohol
producers set up saloonkeepers who promised to sell only
their products and to meet minimum sales goals. Lebamoff
Enters. Inc. v. Whitmer, 

, 867 (6th Cir. 2020).
The tied-house system led to excessive alcohol
consumption, and after the Eighteenth Amendment was
repealed, states used the significant authority given to them
by § 2 of the Twenty-first Amendment to create strict
boundaries between producers and consumers of alcohol. Id.
at 867–68.
6                       DAY V. HENRY


    Arizona’s current statutory scheme subjects all three
tiers of alcohol sales and distribution to a series of
complex—and overlapping—statutes and regulations. For
example, all liquor shipped into Arizona must be invoiced to
the wholesaler by the supplier and must be held by the
wholesaler for at least twenty-four hours. 

(B). Meanwhile, retailers may only buy from
wholesalers, registered retail agents, or a handful of other
clearly defined sources. 

 § 4-243.01(A)(3). Retailers
must hold their license through an Arizona resident (or
qualifying corporation) and must have a physical premise
managed by an Arizona resident. Id. § 4-202(A), (C). Only
licensed retailers may take orders off-site (e.g., by phone or
internet) and ship directly to consumers within the state. Id.
§ 4-203(J). Knowingly shipping wine directly to a purchaser
in Arizona without the proper retail license is a class 2
misdemeanor. Id. § 4-203.04(H)(1).
    As a result of these—and other—provisions, retailers
who do not maintain premises in Arizona cannot ship
directly to consumers within the state, but licensed retailers
with in-state premises may do so. A limited exception exists
for out-of-state wineries, which may receive a license to ship
small quantities of their product directly to consumers. Id.
§ 4-203.04(F). The “physical premise” or “presence”
requirement, as this restriction is sometimes called, has been
the subject of increasing litigation in recent years, with
plaintiffs across a variety of states challenging similar
requirements as a violation of the dormant Commerce
Clause that cannot be otherwise justified by § 2 of the
Twenty-first Amendment.
                        DAY V. HENRY                         7


            PROCEDURAL BACKGROUND
    Plaintiffs are Arizona residents and self-described “avid
wine drinker[s]” who want to have wine shipped directly to
them from retailers who do not have in-state premises.
Following in the footsteps of petitioners in other states,
Plaintiffs sued Defendants—the Director of the Arizona
Department of Liquor Licenses and Control, the Chair of the
Arizona State Liquor Board, and the Attorney General of
Arizona—in their official capacities pursuant to 

. Plaintiffs sought a declaratory judgment that the ban
on direct shipping from retailers without in-state premises is
unconstitutional and an injunction barring Defendants from
enforcing the laws that prohibit retailers without in-state
premises from shipping wine to Arizona consumers. The
Wine and Spirits Wholesalers Association of Arizona later
joined as Intervenor-Defendant.
    On August 12, 2022, Plaintiffs and Defendants filed
cross-motions for summary judgment. Plaintiffs argued that
because no license exists that would give a retailer without
in-state premises shipping privileges, Arizona’s laws
discriminate against out-of-state interests in violation of the
Commerce Clause. Plaintiffs then argued that these
discriminatory laws could not be otherwise upheld as serving
the state’s legitimate interests in public health and safety
because Arizona did not prove that it could not serve those
interests through nondiscriminatory alternatives.            In
contrast, Defendants argued that the relevant laws are not
discriminatory because they treat in-state and out-of-state
prospective licensees the same and that, regardless, the
interests served by the regulatory scheme are “more than
sufficient” to sustain the laws. Intervenor-Defendant filed
its own motion for summary judgment on September 9,
2022, echoing Defendants’ arguments and explaining the
8                        DAY V. HENRY


importance of Arizona’s presence requirement to the
functioning of the state’s three-tier scheme.
     On August 9, 2023, the district court granted
Defendants’ and Intervenor-Defendant’s motions for
summary judgment and denied Plaintiffs’ motion. Day v.
Henry, 

 (D. Ariz. 2023). The district
court reasoned that it was unlikely that Plaintiffs had
standing and that, even if they did, their claims still failed on
the merits. 

. The district court agreed with
Defendants and Intervenor-Defendant that the physical
premise requirement is not discriminatory and that,
regardless, this requirement is essential to Arizona’s three-
tier system and is supported by legitimate nonprotectionist
state interests. Id at 897–98. On August 28, 2023, Plaintiffs
timely appealed.
     JURISDICTION AND STANDARD OF REVIEW
         We have jurisdiction pursuant to 

.
We review the standing issue de novo. Hall v. Norton, 

 (9th Cir. 2001). We also review de novo the
district court’s summary judgment order. 2-Bar Ranch Ltd.
P’ship v. United States Forest Serv., 

 (9th
Cir. 2021).
                         ANALYSIS
    I. Plaintiffs have met the requirements for Article III
       standing.
    As a threshold matter, Plaintiffs have met the
requirements for Article III standing. These requirements
are threefold: a plaintiff must have (1) suffered an injury-in-
fact that is (2) traceable to the defendant’s challenged
conduct, and (3) it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
                         DAY V. HENRY                         9


decision. See Lujan v. Defs. of Wildlife, 

, 560–
61 (1992). If “a favorable judicial decision would not
require the defendant to redress the plaintiff’s claimed
injury, the plaintiff cannot demonstrate redressability unless
she adduces facts to show that the defendant or a third party
are nonetheless likely to provide redress as a result of the
decision.” M.S. v. Brown, 

 (9th Cir.
2018) (citations omitted). Plaintiffs must also show that the
relief they seek is “within the district court’s power to
award.” Juliana v. United States, 

 (9th
Cir. 2020).
    The district court found that it was “doubtful” that
Plaintiffs could show standing because of two distinct
problems with the element of redressability. Day, 686 F.
Supp. 3d at 892. First, because it was “unclear which
provisions Plaintiffs actually challenge,” it was likely
unchallenged provisions would still block their desired
relief. Id. A plaintiff cannot meet redressability if he or she
only challenges part of a regulatory scheme and other
uncontested laws would still prevent relief. See Nuclear
Info. & Res. Serv. v. Nuclear Regul. Comm’n, 

 (9th Cir. 2006). Second, the district court found that it
was not clear “that the [c]ourt could, or in any event, would
grant the relief that Plaintiffs request,” which included
enjoining unidentified statutes, rewriting the regulations, or
commanding the legislature to redo the licensing scheme.
Day, 686 F. Supp. 3d at 892, 894. The district court rejected
the idea of “leveling down,” in which it could cure the
constitutional issue by enjoining retailers with in-state
premises from shipping to Arizona consumers (as opposed
to “leveling up” by extending shipping rights to all retailers),
because doing so would “not . . . provide these Plaintiffs
with the relief that they request.” Id. at 893.
10                       DAY V. HENRY


    We disagree with the district court and find that Plaintiffs
have met the requirements for standing. Standing is a
threshold consideration that must be determined before
considering the merits. See Steel Co. v. Citizens for a Better
Env’t, 

, 94–95 (1998). Notably, a plaintiff
satisfies redressability “when he shows that a favorable
decision will relieve a discrete injury to himself,” not that “a
favorable decision will relieve his every injury.” Larson v.
Valente, 

, 243 n.15 (1982). Moreover, a district
court is not limited to a plaintiff’s proposal and instead “may
enter any injunction it deems appropriate, so long as the
injunction is ‘no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs.’”
Kirola v. City and Cnty. of San Francisco, 

 (9th Cir. 2017) (quoting United States v. AMC Ent.,
Inc., 

 (9th Cir. 2008)).
     As a preliminary matter, Plaintiffs did challenge the
relevant laws, routinely listing in their complaint and
briefing the specific statutes they were challenging.
Therefore, Plaintiffs’ claims do not possess the fatal flaw of
failing to identify independent provisions that would still
block relief should the court enjoin only the challenged
statutes. See Nuclear Info. & Res. Serv., 

.
Instead, what Plaintiffs inconsistently identified was their
requested relief: They routinely changed which particular
statutes they wanted enjoined and later agreed with the
district court that they wanted the court to direct the
legislature to “fix” the unconstitutional laws generally. But,
as noted above, the district court was not limited to
Plaintiffs’ suggestions and had the authority to create its own
remedy. See Sharp v. Weston, 

 (9th Cir.
2000) (“Once a constitutional violation has been found, a
district court has broad powers to fashion a remedy.”).
                            DAY V. HENRY                              11


Redressability is meant only to be “a constitutional
minimum, depending on the relief that federal courts are
capable of granting.” Kirola, 

.
    Here, the district court was capable of granting at least
some relief. For example, the district court could have
enjoined the enforcement of the statutory scheme as applied
to all liquor retailers and wholesalers inside and outside of
Arizona. This solution would negate the Commerce Clause
issue by eliminating enforcement of the allegedly
discriminatory laws altogether. 1         Although such an
injunction might be broad, it is not the kind of relief that is
outside the power of Article III courts under Juliana. See
Johnson v. City of Grants Pass, 

, 882 (9th Cir.
2023) (explaining that enjoining the enforcement of a few
municipal ordinances “cannot credibly be compared to an
injunction seeking to require the federal government to
‘phase out fossil fuel emissions and draw down excess
atmospheric CO2’”) (quoting Juliana, 947 F.3d at 1164–65),
rev’d on other grounds, City of Grants Pass, Oregon v.
Johnson, 

 (2024). Therefore, because the
district court was capable of granting at least some relief, and
regardless of whether that relief—or any other possible
relief—might ultimately prove appropriate on the merits, the
redressability requirement of standing has been met. See
Seattle Pac. Univ. v. Ferguson, 

 (9th Cir.


1
   Intervenor-Defendant protests that such a “leveling up” would
contravene the Arizona Legislature’s intent to “retain the current three-
tier” system. 

. Any such restraint would be
a merits determination about the appropriate remedy, not an Article III
constraint on the district court’s power. To hold otherwise would allow
states to litigation-proof any regulatory scheme by including “level-
down” provisions to defeat standing.
12                      DAY V. HENRY


2024) (stating that “redressability should not be conflated
with the merits”).
 II. Arizona’s physical presence requirement is not
     discriminatory.
     Plaintiffs’ suit focuses on the tension between two
constitutional provisions: § 2 of the Twenty-first
Amendment and the Commerce Clause. In 1920, the
Eighteenth Amendment became effective, ushering in
Prohibition by banning the manufacture, sale, or
transportation of liquor. U.S. Const. amend. XVIII § 1.
Thirteen years later, the country changed course and ratified
the Twenty-first Amendment, repealing the Eighteenth
Amendment. U.S. Const. amend. XXI § 1. But the Twenty-
first Amendment “did not return the Constitution to its pre-
1919 form.” Bridenbaugh v. Freeman-Wilson, 

 (7th Cir. 2000). Rather, while § 1 repealed the
Eighteenth Amendment, § 2 added new language clarifying
that “[t]he transportation or importation into any State,
Territory, or possession of the United States for delivery or
use therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited.” U.S. Const. amend. XXI § 2.
This addition was modeled on pre-Prohibition legislation
that was intended to “give each State a measure of regulatory
authority over the importation of alcohol.” Tenn. Wine &
Spirits Retailers Ass’n v. Thomas, 

(2019). The wording used in this legislation—and later in
§ 2—was framed “not as a measure conferring power on the
States but as one prohibiting conduct that violated state law.”
Id. at 526.
   Over time, the broad language of § 2 has come into
conflict with other parts of the Constitution, most notably the
Commerce Clause, which reserves for Congress the power
                        DAY V. HENRY                       13


“[t]o regulate Commerce . . . among the several States.”
U.S. Const. art. 1, § 8, cl. 3. The “negative” reading of this
clause—known as the “dormant Commerce Clause”—
prevents states from adopting protectionist measures that
unduly restrict interstate commerce. See Nat’l Pork
Producers Council v. Ross, 

, 368–69 (2023).
Although the Supreme Court initially treated § 2 as
functionally overriding other constitutional provisions,
including the Commerce Clause, it eventually walked back
that interpretation. Tenn. Wine, 588 U.S. at 529–30. Instead,
the Supreme Court now finds that state laws that violate
other parts of the Constitution are not necessarily saved by
the Twenty-first Amendment. See Granholm v. Heald, 

, 486–87 (2005). Regarding the Commerce Clause
in particular, the Court has found that § 2 does not abrogate
Congress’s Commerce Clause powers and that state
regulation of alcohol is limited by the Clause’s
nondiscrimination principle. Id. at 487.
    In Tennessee Wine, the Supreme Court set out a two-part
test to manage the ongoing tension between § 2 and the
Commerce Clause. See B-21 Wines, Inc. v. Bauer, 

 (4th Cir. 2022). First, when a plaintiff challenges
the constitutionality of state liquor regulations pursuant to
the Commerce Clause, the court must address whether the
challenged statutory scheme is discriminatory. Tenn. Wine,

. If the laws are not discriminatory, then the
scheme is constitutional, and the court need not proceed to
the second step. However, if the laws are discriminatory,
the court then asks “whether the challenged requirement can
be justified as a public health or safety measure or on some
other legitimate nonprotectionist ground.” 

 If so, the
scheme is constitutional despite its discriminatory nature.
14                        DAY V. HENRY


    There are three ways that a statutory scheme can
discriminate against out-of-state interests: facially,
purposefully, or in practical effect. See Nat’l Ass’n of
Optometrists & Opticians LensCrafters, Inc. v. Brown, 

 (9th Cir. 2009). The first step in analyzing
any law under the dormant Commerce Clause is “to
determine whether it ‘regulates evenhandedly with only
“incidental” effects on interstate commerce, or discriminates
against interstate commerce.’” Or. Waste Sys., Inc. v. Dep’t
of Env’t Quality of Or., 

 (1994) (quoting
Hughes v. Oklahoma, 

 (1979)).
Discrimination means “differential treatment of in-state and
out-of-state economic interests that benefits the former and
burdens the latter.” 

 This differential treatment must be
“as between persons or entities who are similarly situated.”
See Black Star Farms LLC v. Oliver, 

(9th Cir. 2010). The party challenging the scheme bears the
burden of showing discrimination. 

     Plaintiffs urge us to find at the first step of the Tennessee
Wine test that Arizona’s laws improperly discriminate
against interstate commerce. First, Plaintiffs argue that
Granholm and Tennessee Wine, in which the Supreme Court
found various state wine laws to be discriminatory,
necessarily compel a similar outcome here. Second,
Plaintiffs point to data, noting that e-commerce constitutes
twenty percent of all retail sales generally and arguing that
Arizona “gives its own wine retailers exclusive access” to
that market, which is the kind of “economic protectionism”
the Commerce Clause prohibits. Plaintiffs also cite data
showing that Arizona wine stores carry approximately
fifteen percent of the wines available nationally and that
foreign, old, and rare wines are readily available in other
states but not in Arizona, and use this data to argue that
                        DAY V. HENRY                        15


depriving a citizen of the right “to have access to the markets
of other States on equal terms” is also a violation of the
Commerce Clause under Granholm.
    In response, Defendants argue that Arizona’s laws are
not discriminatory because retailers from any state are free
to obtain licenses. They argue that although obtaining a
license requires an in-state storefront, an Arizona resident to
manage the store, and that the license be held through a
resident, the fact that the company need not be a resident,
owned by a resident, formed under Arizona law, or be
present a minimum amount of time—plus the fact that
Arizona companies and non-Arizona companies have the
same privileges once licensed—means the Commerce
Clause is not implicated. Defendants also note that Total
Wine, a company headquartered in Maryland, is an Arizona-
licensed retailer that maintains in-state stores and buys
products from Arizona-licensed wholesalers, and therefore
can directly ship to Arizona consumers. Defendants argue
that unlike a durational residency requirement, a physical
premise requirement is not a “per se burden” on out-of-state
companies because the storefront requirement relies on a
company’s resources and business model, not its citizenship
or residency.
    The district court agreed with Defendants, finding that
there was no discrimination because Arizona’s presence
requirement “applies evenhandedly to in-state and out-of-
state retailers.” Day, 686 F. Supp. 3d at 896. The district
court noted that the presence requirement does not outright
prevent an out-of-state retailer from obtaining a license,
pointing out that several large companies such as Walmart,
Sam’s Club, and Total Wine had acquired licenses and
opened retail premises in Arizona even though they are
headquartered elsewhere. Id. Unlike in Tennessee Wine, in
16                       DAY V. HENRY


which a strict two-year durational residency requirement
“plainly favored in-state residents,” the district court found
that here, “no such prerequisite favoring in-state residents
exists.” Id. at 897. Instead, if an out-of-state company wants
to sell wine to consumers in Arizona, it needs to comply with
the same requirements as in-state companies; Arizona
companies are just as burdened by the physical premise
requirement as out-of-state companies. Id.
    We conclude that Plaintiffs have not met their burden of
showing that the liquor laws at issue here are discriminatory.
Arizona’s laws apply even-handedly to all wine retailers, no
matter whether that retailer is headquartered, incorporated,
or otherwise based in another state. While Plaintiffs claim
that Arizona “directly discriminates” against out-of-state
retailers because it “issues licenses to in-state retailers that
permit them to sell wine online and ship it to consumers” in
Arizona but “will not issue similar licenses or give similar
shipping privileges to out-of-state retailers,” this argument
distorts the issue. Arizona gives licensed retailers the
privilege of directly shipping to customers. The requirement
that a retailer establish a physical premise in Arizona that is
managed by an Arizona resident to obtain a license applies
to all retailers, not just those based in another state. There is
no clear-cut “in-state” and “out-of-state” divide in the
manner that Plaintiffs characterize the issue.
    Furthermore, neither Granholm nor Tennessee Wine
prohibit Arizona from implementing a physical premise
requirement as a matter of law. Plaintiffs rely heavily on
language from Granholm that an “in-state presence
requirement runs contrary to our admonition that States
cannot require an out-of-state firm to become a resident in
order to compete on equal terms.” Granholm, 

 (internal quotation marks and citation omitted). But
                        DAY V. HENRY                        17


Granholm made those comments in the context of reviewing
a New York statutory scheme that created a discriminatory
exception to the three-tier scheme. See 

 As the Second
Circuit explained in a substantially similar case to this one,
“Granholm validates evenhanded state policies regulating
the importation and distribution of alcoholic beverages
under the Twenty-first Amendment. It is only where states
create discriminatory exceptions to the three-tier system . . .
that their laws are subject to invalidation based on the
Commerce Clause.” Arnold’s Wines, Inc. v. Boyle, 

 (2d Cir. 2009). Like the Second Circuit, we decline
to construe the language of Granholm to reach the
circumstances of this case.
    Plaintiffs also rely on Tennessee Wine, but that case
similarly does not mandate a finding of discrimination here.
In Tennessee Wine, the Supreme Court struck down
Tennessee’s durational residency requirement, which was so
“onerous” as to be expressly discriminatory. 

. Under Tennessee law, individuals had to be Tennessee
residents for two years before they could obtain a liquor
retail license, and the “extraordinarily restrictive” rules for
corporations meant a corporation could not obtain a retail
license unless all its officers, directors, and capital stock
owners satisfied the individual residency requirement. 

Here, there is no durational residency requirement: Arizona
requires that a physical premise be managed, and the retail
license held, by an Arizona resident but there is no durational
aspect, and the residency requirement does not apply to the
owners or operators of the business. Moreover, Arizona’s
premise requirement is not so “onerous” as to be expressly
discriminatory. As the district court noted, out-of-state
businesses can (and do) obtain retail licenses in Arizona.
Day, 686 F. Supp. 3d at 896. For example, Total Wine,
18                      DAY V. HENRY


which is owned by residents of Maryland, was one of the
parties involved in Tennessee Wine because of difficulties it
had obtaining a retail license in Tennessee. 

.
In contrast, Total Wine already owns and operates stores in
Arizona. Day, 686 F. Supp. 3d at 896.
     Indeed, the fact that out-of-state businesses possess
Arizona retail licenses and have obtained direct shipping
privileges supports the conclusion that Arizona’s laws do not
have a discriminatory effect in practice. As Defendants
observe, setting up a physical storefront in Arizona is not a
“per se burden on out-of-state companies and per se benefit
to in-state companies” because a retailer’s ability to comply
with the physical premise requirement is based in large part
on a company’s resources and business model, not its
citizenship or residency. A major national retailer like Total
Wine undoubtedly devotes a much smaller portion of its
resources to setting up a physical storefront in Arizona than
a smaller business incorporated in Arizona with less access
to capital. And although Plaintiffs argue that the issue is not
“whether an out-of-state firm could move to Arizona and
open a liquor store” but whether “Arizona can require them”
to do so, they are mistaken. First, Plaintiffs again misstate
the statutory requirements: firms do not have to “move” to
Arizona to get licensed, they merely have to open a physical
store. Second, as the Supreme Court recently emphasized,
“[c]ompanies that choose to sell products in various States
must normally comply with the laws of those various
States.” Nat’l Pork Producers Council, 598 U.S. at 364.
    The burden is on the Plaintiffs to show that, even though
some businesses have obtained Arizona retail licenses,
Arizona’s laws are nonetheless still discriminatory in
practice. See Black Star Farms LLC, 

. They
have not met this burden. Rather, Plaintiffs make the
                            DAY V. HENRY                            19


conclusory allegation that “[i]t would be economically
prohibitive for a retailer to set up separate operations in
multiple states . . . and impossible for it to comply with
multiple state laws, each requiring it to buy its wine only
from wholesalers in that state.” However, in neither the
briefs nor the record do they address that out-of-state
businesses have successfully obtained Arizona retail
licenses. The record merely indicates that, at best, some
other out-of-state retailers (such as K&L Wine Merchants)
have chosen not to obtain Arizona retail licenses. That some
retailers have chosen not to establish physical premises in
Arizona, however, is insufficient to demonstrate that the
scheme as a whole has a discriminatory effect.
    Otherwise, the record includes some evidence
demonstrating that there might be an issue of fact as to
(1) whether Arizona’s laws are necessary to protect public
health and safety, and (2) the effect of the physical premise
requirement on consumer choice. But the issue of public
health and safety is not relevant to whether Arizona’s laws
are discriminatory, i.e., the first part of the Tennessee Wine
test. 2 And the fact that Arizona’s laws limit the availability

2
  Circuits have come to conflicting conclusions as to whether, at the
second part of the Tennessee Wine test, a presence requirement must be
supported by evidence that it advances the goals of the Twenty-first
Amendment or, instead, is justified as a necessary part of the
“unquestionably legitimate” three-tier system. Compare Sarasota Wine
Mkt., LLC v. Schmitt, 

, 1183–84 (8th Cir. 2021) (stating
that “we should be no more invasive of the ‘unquestionably legitimate’
three-tiered scheme than the Supreme Court has mandated”); B-21
Wines, Inc., 

 (holding that North Carolina’s physical
premise requirement was “justified on the legitimate nonprotectionist
ground of preserving North Carolina’s three-tier system”); and Arnold’s
Wines, Inc., 

 (stating that the challenge to New York’s
physical premise requirement was “a frontal attack on the
20                          DAY V. HENRY


of certain wines within the state because those wines are
currently only offered elsewhere is not sufficient on its own,
absent any specific prohibitions on the importation of certain
wines, to establish a dormant Commerce Clause violation.
See Nat’l Ass’n of Optometrists & Opticians v. Harris, 

 (9th Cir. 2012) (holding, in a dormant
Commerce Clause challenge to California laws preventing
opticians from offering prescription eyewear at the same
location in which examinations are conducted, that there was
no significant burden on interstate commerce in part because
the plaintiffs had “not produced evidence that the challenged
laws interfere with the flow of eyewear into California; any
optician, optometrist, or ophthalmologist remains free to
import eyewear originating anywhere into California and
sell it there”).
    Plaintiffs want to obtain wine, over the phone or via the
internet, from a retailer in any state and have it delivered
directly to their home. That is an understandable desire. But
“the dormant Commerce Clause does not . . . guarantee
Plaintiffs their preferred method of operation.” 

.
Instead, at summary judgment, the question we must
examine is “whether the record adduced by [Plaintiffs] was
sufficient to support a verdict in [their] favor to the effect

constitutionality of the three-tier system itself” in contravention of
Granholm); with Anvar v. Dwyer, 

 (1st Cir. 2023) (holding
that Rhode Island’s physical premise requirement “must be supported by
‘concrete evidence’ demonstrating that its predominant effect advances
the goals of the Twenty-first Amendment”); and Block v. Canepa, 

 (6th Cir. 2023) (holding that the district court “should
have considered” how the plaintiffs’ evidence that Ohio’s physical
premise requirement promotes protectionism compares to the
defendants’ evidence that the restriction promotes public health).
Because we find that Arizona’s laws are not discriminatory, we need not
address the issue. See Tenn. Wine, 

.
                         DAY V. HENRY                        21


that this facially neutral and even-handed scheme does have
such a prohibited discriminatory effect.” Black Star Farms
LLC, 

. Plaintiffs have not met their burden
of either demonstrating that Arizona’s laws are not neutral
or that they substantially burden interstate commerce in
practice.     Therefore, Plaintiffs have not sufficiently
demonstrated that Arizona’s alcohol laws violate the
dormant Commerce Clause.
     Finally, as several other courts have observed, if the kind
of laws at issue here were found to be discriminatory, then
all laws relying on the authority of § 2 would likely be
discriminatory. See, e.g., Bridenbaugh, 

(stating that “[e]very use of § 2 could be called
‘discriminatory’ in the sense that plaintiffs use that term,
because every statute limiting importation leaves intrastate
commerce unaffected”); Sarasota Wine Mkt., LLC v.
Schmitt, 

 (8th Cir. 2021) (noting that
Missouri imposed the same physical premise requirements
on in-state and out-of-state retailers and so “[v]iewed from
this perspective, laws establishing a three-tiered distribution
system may be economically and socially anachronistic, but
they do not discriminate against out-of-state retailers and
wholesalers”). The effect of the presence requirement is
simply to “mandate[] that both in-state and out-of-state
liquor pass through the same three-tier system before
ultimate delivery to the consumer.” Arnold’s Wines, Inc.,

. To find this kind of basic importation
restriction discriminatory would therefore render § 2 “a dead
letter.” Bridenbaugh, 

. The Supreme Court
has not yet struck such a blow to § 2, and neither do we.
22                       DAY V. HENRY


                       CONCLUSION
   For the foregoing reasons, the judgment of the district
court is AFFIRMED.


FORREST, Circuit Judge, concurring in part and dissenting
in part.

    I agree that Plaintiffs have standing to challenge
Arizona’s restrictions that allow only in-state retailers to ship
wine to Arizona consumers, and therefore I join Section I of
the majority’s analysis. But because Arizona’s law is
discriminatory, I respectfully dissent from the majority’s
merits analysis under Tennessee Wine & Spirits Retailers
Association v. Thomas, 

 (2019), in Section II. I
would remand for the district court to conduct the required
evidentiary inquiry into whether Arizona’s discriminatory
regulations may be justified on legitimate, non-protectionist
grounds.
                  Tennessee Wine Analysis
    As the majority explains, the Supreme Court has
developed a two-step framework to reconcile the apparent
tension between § 2 of the Twenty-first Amendment and the
dormant Commerce Clause. See Maj. Op. 12–13. We apply
normal Commerce Clause principles at the first step, finding
suspect any state regulation that discriminates against
interstate commerce. See Tennessee Wine, 

. A finding of discrimination is typically fatal. 

.
But the Twenty-first Amendment gives states some leeway
when regulating alcohol. 

 If the state provides concrete
evidence that its discriminatory regime advances public
health, safety, or another legitimate non-protectionist
                         DAY V. HENRY                        23


interest that could not be served by nondiscriminatory
measures, it may continue to enforce its discriminatory
regulations. 

 at 539–40.
               I. Step One: Discrimination
    The majority holds that Plaintiffs’ challenge fails at
Tennessee Wine’s first step because Arizona’s shipping
restriction does not discriminate against interstate
commerce. The thinking is that the restriction distinguishes
only between licensed and unlicensed retailers, not between
residents and nonresidents. There is no guarantee that an in-
state retailer will have a brick-and-mortar presence and an
Arizona manager, and thus be eligible for a license. And out-
of-state retailers can obtain the proper license. All they have
to do is open a storefront in Arizona and hire an Arizonan to
manage the store and hold the license. With respect, that
view of interstate commercial discrimination defies both
precedent and common sense.
    If I said I would only hire clerks who had studied in my
alma mater’s law library, I could not maintain that I have no
hiring preference for University of Idaho students. Sure, a
Harvard student could fly to Spokane, drive to Moscow, read
a few cases in the library, and then apply. Likewise, there is
no guarantee that any given University of Idaho student has
studied in the law library. But that is not the point. I have
plainly adopted a preference for University of Idaho students
and discriminated against all others.
    The Supreme Court has never allowed such easy
workarounds to the Commerce Clause’s antidiscrimination
command. Take Dean Milk Co. v. City of Madison, 

 (1951). Madison allowed the sale of pasteurized milk
only if it was bottled within five miles of city limits, and all
other milk only if it was sourced from within twenty-five
24                      DAY V. HENRY


miles. 

 at 350–51. An Illinois distributor had no difficulty
convincing the Court that the ordinance “plainly
discriminate[d] against interstate commerce.” 

.
And that is because the state had “erect[ed] an economic
barrier” foreclosing “competition from without the State.”

 There is no indication that the Court would have reached
a different decision had it considered that the Illinois
corporation could have purchased a Madison dairy and hired
some industrious Madisonian milkers to gain access to that
market.
    More to the point, the Supreme Court has rejected
precisely the argument that the majority accepts here. In
Granholm v. Heald, the Court reviewed a licensing scheme
that allowed out-of-state wineries to ship wine directly to
consumers only if they opened an in-state branch office and
warehouse. 

, 474–75 (2005). The Court
concluded that the “in-state presence requirement runs
contrary to our admonition that States cannot require an out-
of-state firm ‘to become a resident in order to compete on
equal terms.’” 

 at 475 (quoting Halliburton Oil Well
Cementing Co. v. Reily, 

 (1963)).
    The majority draws too fine a line by looking only to a
retailer’s state of incorporation. Granholm did not define
residency based on legal formalities. Rather, it found that
New York would require an out-of-state firm to “become a
resident” if the firm were forced to establish an in-state
presence to obtain equal access to the New York market. 

At bottom, Arizona allows only those retailers willing to set
up shop in-state to ship wine to Arizonans. That type of
“economic isolationism” is “facially discriminatory, in part
because it tend[s] ‘to discourage domestic corporations from
plying their trades in interstate commerce.’” Camps
Newfound/Owatonna Inc. v. Town of Harrison, 520 U.S.
                         DAY V. HENRY                         25


564, 579 (1997) (quoting Fulton Corp. v. Faulkner, 

, 333 (1996)). The majority’s definition of neutral
regulations—looking only to where a retailer “is
headquartered, incorporated, or otherwise based,” Maj. Op.
16—would allow precisely the “economic Balkanization”
that the dormant Commerce Clause seeks to avoid. See
Granholm, 

 (quoting Hughes v. Oklahoma,

 (1979)).
    The majority’s attempt to distinguish Granholm is
unavailing, at least at this stage in the analysis. It holds that
Granholm applies only to exceptions to a state’s three-tier
scheme, and by implication, that Plaintiffs’ challenge is to
an integral part of Arizona’s three-tier scheme. See Maj. Op.
16–17. A law’s relationship to the three-tier system, though,
is at most relevant at the second step of the Tennessee Wine
analysis. See 

. It has no bearing on whether a
law is discriminatory. See id.; Granholm, 

;
see also B-21 Wines, Inc. v. Bauer, 

, 222–23,
227–28 (4th Cir. 2022) (considering the law’s centrality to
the three-tier system at step two after finding it
discriminatory at step one).
    As to the majority’s discussion of Tennessee Wine, it is
true that Tennessee implemented a more egregious two-year
waiting period before new state residents could obtain a
retail license, 

. But nowhere did the Supreme
Court purport to establish that scheme as the floor of
unconstitutionality. A regulatory regime like Arizona’s may
be slightly less problematic but discriminatory all the same.
26                       DAY V. HENRY


   Ultimately, we are faced with much the same licensing
scheme and arguments that the Fourth Circuit confronted in
B21 Wines. That court acknowledged

       that out-of-state wine retailers can obtain a
       permit to ship their product to North Carolina
       residents, provided, inter alia, that those
       retailers are managed or owned by a North
       Carolina resident, have in-state premises, and
       buy their product from an in-state wholesaler.
       But that prospect does not eliminate the
       statutorily mandated differential treatment.

 at 223 n. 5 (citing Granholm, 544 U.S. at 474–75).
Whatever complexities and disagreements there may have
been at step two of the Tennessee Wine framework, compare

 at 227–29, with 

 at 232–38 (Wilkinson, J., dissenting),
the Fourth Circuit had no difficulty finding North Carolina’s
scheme discriminatory at step one. Neither should we.
       II. Step Two: Legitimate Regulatory Basis
     Because Arizona’s licensing scheme is discriminatory, it
would be invalid if applied to any product other than alcohol.
See Granholm, 

; Tennessee Wine, 

. But § 2 of the Twenty-first Amendment may yet
come to Arizona’s rescue. Beyond repealing Prohibition,
that Amendment preserved states’ authority to regulate
alcohol by prohibiting “[t]he transportation or importation
into any State . . . for delivery or use therein of intoxicating
liquors, in violation of the laws thereof.” U.S. Const. amend.
XXI § 2. Thus, notwithstanding the dormant Commerce
Clause, a discriminatory regulation on alcohol is permissible
if it is “justified as a public health or safety measure or on
some other legitimate nonprotectionist ground.” Tennessee
                         DAY V. HENRY                        27


Wine, 

. However, “[w]here the predominant
effect of a law is protectionism, not the protection of public
health or safety, it is not shielded by § 2.” Id. at 539–40. Not
only must the ends be legitimate, but a State cannot employ
discriminatory        means       unless    “nondiscriminatory
alternatives would be insufficient to further [its] interests.”
Id. at 540. Arizona must bring “concrete evidence” to the
means-ends inquiry at Tennessee Wine’s second step; “mere
speculation” and “unsupported assertions” will not do. Id. at
539–40 (quoting Granholm, 

).
    Some circuits hold that regulations essential to a state’s
three-tier system, including physical presence requirements,
are per se legitimate. See B-21 Wines, 36 F.4th at 227–29;
Sarasota Wine Mkt., LLC v. Schmitt, 

, 1180–
84 (8th Cir. 2021); see also Maj. Op. 19–20 n.2 (collecting
cases in the circuit split). Arizona would have us join them.
I would not.
    Courts that have adopted the per se validity rule for
essential components of three-tier systems have grabbed at
language in Granholm and Tennessee Wine calling that
system “unquestionably legitimate.” See, e.g., B-21, 

 (quoting Granholm, 

) (citing
Tennessee Wine, 

). But if Tennessee Wine
meant to create a carveout to its usual rule that states must
produce concrete evidence that discriminatory regulations
serve legitimate interests, it picked an exceedingly odd way
to do so.
    Tennessee Wine chastised the plaintiffs for “read[ing] far
too much into Granholm’s discussion of the three-tiered
model,” particularly in a case that did not concern “an
essential feature of a three-tiered scheme.” 

.
Fresh off the Court’s warning against overreading its
28                      DAY V. HENRY


discussions of the three-tier model, other circuits have read
Tennessee Wine’s discussion of this model to covertly create
a new step two in the analysis by negative inference. See B-
21 Wines, 

 (Wilkinson, J., dissenting). First,
we decide if the law is discriminatory. Then we would
decide if it is essential to the three-tier system. Only if we
answer “yes” to the former and “no” to the latter would we
reach the second (now third) part of the Tennessee Wine
inquiry and examine whether concrete evidence shows that
the regulation advances legitimate health or safety interests.
See, e.g., Sarasota Wine, 987 F.3d at 1183–84 (skipping
“evidentiary weighing” for physical premise requirements
that are essential to the three-tier system).
    Rather than read that middle question into the Supreme
Court’s test, I would conduct the typical step-two analysis.
Given the Supreme Court’s flattering descriptions of the
three-tier scheme, e.g. Tennessee Wine, 588 U.S. at 534–35,
a regulation’s central place in such a scheme may be
powerful evidence of its legitimacy. But the three-tier
system is ultimately a means to promote the public welfare,
not an end in itself. The inquiry remains whether, based on
“concrete evidence” rather than “speculation,” a regulation
promotes public health, safety, or another non-protectionist
goal in a way that a nondiscriminatory regulation could not.

 at 539–40; accord Anvar v. Dwyer, 

, 9–11 (1st
Cir. 2023); Block v. Canepa, 

, 412–14 (6th Cir.
2023).
    Here, the district court bypassed the requisite evidentiary
weighing and relied on the regulations’ perceived centrality
to Arizona’s three-tier system. Accordingly, I would remand
for the district court to determine whether concrete evidence
supports Arizona’s contentions that limiting direct shipment
privileges to retailers with in-state storefronts and Arizona
                        DAY V. HENRY                      29


managers advances the state’s legitimate health and safety
goals, and that nondiscriminatory regulations would be an
inadequate substitute. See Anvar, 

 (remanding
for the district court to conduct the appropriate evidentiary
analysis); Block, 

 (same).
    For these reasons, I respectfully dissent from Section II
of the majority’s analysis.