Jackson v. City & County of San Francisco

T

Tom Servo

Staff
This is a decision out of the 9th Circuit, and it's somewhat troublesome. The opinion is here [pdf].

They made two findings. The first is that San Francisco's safe-storage requirement does not unduly burden the 2nd Amendment:

The panel held that the first regulation, San Francisco Police Code section 4512(a), (c)(1), which requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person, burdened the rights protected by the Second Amendment because such storage regulations were not part of a long historical tradition of proscription. Nevertheless, the panel determined that section 4512 was not a substantial burden on the Second Amendment right itself because it did not prevent an individual from possessing a firearm in the home. Applying intermediate scrutiny, the panel held that San Francisco had shown that section 4512’s requirement that persons store handguns in a locked storage container or with a trigger lock when not carried on the person was substantially related to the important government interest of reducing firearm-related deaths and injuries.
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Emphasis mine. Exactly what material difference is there between this and the storage requirements found unconstitutional in Heller?

But because it burdens only the “manner in which persons may exercise their Second Amendment rights,”Chovan 735 F.3d at 1138, the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe maybe opened quickly. Thus, even when a handgun is secured, it maybe readily accessed in case of an emergency. [p. 18]
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The intellectual contortion required here is remarkable in a morbid sort of way.

The second issue is the ban on the sale of hollow point ammunition in San Francisco. The court found that a ban on sale passed muster because a resident could still own and use such ammunition under the law. They just can't buy it.

There is no evidence in the record indicating that ordinary bullets are ineffective for self-defense. Moreover, section 613.10(g) prohibits only the sale of hollow-point ammunition within San Francisco, not the use or possession of such bullets.Such a sales prohibition burdens the core right of keeping firearms for self-defense only indirectly, because Jackson is not precluded from using the hollow-point bullets in her home if she purchases such ammunition outside of San Francisco’s jurisdiction. [p. 26]
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The ruling closes with this:

Because San Francisco’s regulations do not destroy the Second Amendment right, and survive intermediate scrutiny, the district court did not abuse its discretion in concluding that Jackson would not succeed on the merits of her claims.
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So, does the 2nd Amendment have to be destroyed before intermediate scrutiny applies? If so, we're in real trouble going forward.
 
Wow. So much fail in one ruling.

The second issue is the ban on the sale of hollow point ammunition in San Francisco. The court found that a ban on sale passed muster because a resident could still own and use such ammunition under the law. They just can't buy it.
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That logic cannot prevail. In the Chicago shooting range and FFL bans, the 7th got it right when it said that the fact that residents could utilize ranges or FFLs outside the city did not make the bans constitutional. (forgive my very rough summary) Of course Ezell, (and whatever the FFL case was called) are not binding in the 9th circuit, but neither, apparently is Heller or McDonald in the weak, intellectually dishonest minds of this panel.

Imagine banning a church in SF on the basis that another one exists immediately outside the city limits.

Also, the application of intermediate scrutiny to the locked storage requirement in the home is fallacy. If Heller taught anything, it is that possession of guns in the home needs no application of any form of scrutiny to be decided, let alone anything short of strict scrutiny.

To simply announce that there is no evidence that standard ammunition is less effective than hollow point ammunition fails to acknowledge a mountain of evidence to the contrary, evidence which drives every police agency in the country to use nothing but hollow point ammunition. The safety reason for this (over penetration of ball ammo in an urban area) also gets no consideration.
 
Unbelievable mental gymnastics in holding that the gun lock requirement was different than the one in Heller.
 
This would be one en banc petition that has much merit. The error committed by this panel on the locked gun issue is beyond the pale.
 
This would be one en banc petition that has much merit. The error committed by this panel on the locked gun issue is beyond the pale.
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Truly. It occurs to me that this decision stands out even more for its faulty reasoning than its result. Bad reasoning opens the door to all kinds of mischief.
 
I'll also add that I disagree with the reasoning and "facts" regarding the ban on hollow point ammo. However, it has a better chance of surviving an en banc rehearing if one is granted.
 
So the sale of hollow points is illegal, but you can still buy/posses them...

So would you be allowed to purchase them online?

The entire decision makes no sense to me. How can the court entirely ignore what the supreme court ruled?
 
When most of the Jurists are in rebellion (against the Heller/McDonald decisions), it's actually pretty easy. I've been reporting this for far too many years, now.
 
Revisiting Jackson and SFPC 613.10(g), that section does not make the sale illegal as I understand the criminal sense of the term. That section makes the sale grounds for revocation of a license. It does not make possession of hollow points illegal and Jackson specifically notes you can buy them outside of the city and county and bring them into it.

The possession and sale of certain very specific loads, not all hollow point loads, is provided for in SFPC 618, which was not in issue in Jackson.
 
I didn't realize that intermediate scrutiny meant "if the right isn't destroyed by the law, then the law is OK!" Given how scrupulously the courts have applied the "substantially related to an important government interest" test, it might be a better description of the practical application of intermediate scrutiny by many courts.
 
Truly. It occurs to me that this decision stands out even more for its faulty reasoning than its result. Bad reasoning opens the door to all kinds of mischief.
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I think in many of these cases, the result is decided in advance, and the reason is later created in order to explain the pre-ordained result.
 
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