The Lawletter Vol 39 No 3
John Stone, Senior Attorney, National Legal Research Group
When handgun owners and gun rights advocacy organizations brought an action against the City of San Francisco challenging the validity of city ordinances regulating handgun storage and
ammunition sales as impermissible violations of the right to bear arms under the Second Amendment, they were denied a preliminary injunction by a trial court. On appeal, the Ninth Circuit Court of Appeals affirmed that ruling. Jackson v. City of San Francisco, No. 12-17803, 2014 WL 1193434 (9th Cir. filed Mar. 25, 2014).
The city ordinance required handguns in a residence to be stored in a locked container or disabled with a trigger lock when not carried on a person. Such storage regulations, the court concluded, did burden conduct protected by the Second Amendment since handgun storage regulations have not been part of a long historical tradition of proscription. However, that restriction did not place a substantial burden on Second Amendment rights, and, thus, intermediate scrutiny applied to the gun owners' challenge to the ordinance. Although the ordinance implicated the core of the Second Amendment right in that it applied to law‑abiding citizens and imposed restrictions on the use of handguns within the home, it did not constitute a complete ban, either on its face or in practice, on the exercise of a law‑abiding individual's right to self-defense.
The handgun ordinance withstood constitutional scrutiny because it served a significant government interest by reducing the number of gun‑related injuries and deaths from having an unlocked handgun in the home. The ordinance was appropriately tailored to fit the City's interest of reducing the risk of firearm injury and death in the home, although the gun owners argued that the ordinance was over‑inclusive because it applied even when the risk of unauthorized access by children or others was low, such as when the handgun owner lived alone. The Ninth Circuit agreed with the City that the City had asserted important interests that were broader than preventing children or unauthorized users from using firearms, including an interest in preventing firearms from being stolen and in reducing the number of handgun‑related suicides and deadly domestic violence incidents.
As for the ammunition ordinance, which prohibited the sale of hollow-point bullets, it also regulated conduct within the scope of the Second Amendment, since restrictions on ammunition may burden the core Second Amendment right of self‑defense and there was no persuasive historical evidence suggesting otherwise. The Second Amendment right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them. That said, again only intermediate scrutiny of the ordinance was warranted, as the sales prohibition burdened the right of keeping firearms for self‑defense only indirectly, because gun owners were not precluded from using hollow‑point bullets in their homes if they purchased such ammunition outside of the City's jurisdiction, and the ban on the sale of certain types of ammunition did not prevent the use of handguns or other weapons in self‑defense.
The ban on hollow-point bullets was a reasonable fit to achieve what the court regarded as the City's important interest of reducing the lethality of ammunition. Thus, like the provision on the storage or disabling of handguns in a residence, the ammunition provision survived the Second Amendment challenge under intermediate scrutiny. The City had found that hollow‑point bullets were designed to tear larger wounds in the body by flattening and increasing in diameter on impact, and that these design features increased the likelihood that the bullet would hit a major artery or organ. From this the City reasonably concluded that hollow‑point bullets were more likely to cause severe injury and death than was conventional ammunition that did not flatten or fragment upon impact. Achievement of this public purpose was sufficient to justify what were only modest burdens on gun owners' Second Amendment right arising from the prohibition of hollow-point bullets.
The Ninth Circuit in Jackson drew heavily for its analysis upon District of Columbia v. Heller, 554 U.S. 570 (2008), although reaching a different result because the ordinances in Jackson were much less restrictive. In Heller, the Supreme Court considered whether the District of Columbia's regulations violated the plaintiff's Second Amendment rights. Those regulations barred the possession of handguns both inside and outside the home and required other firearms to be kept "unloaded and disassembled or bound by a trigger lock or similar device." Id. at 575. After undertaking a lengthy analysis of the original public meaning of the Second Amendment, the Court concluded that it confers "an individual right to keep and bear arms." Id. at 595. The Court emphasized that "the inherent right of self‑defense has been central to the Second Amendment right." Id. at 628. Therefore, prohibiting the possession of handguns was unconstitutional. Similarly, the District of Columbia's requirement that "firearms in the home be rendered and kept inoperable at all times" made "it impossible for citizens to use [firearms] for the core lawful purpose of self‑defense and [was] hence unconstitutional." Id. at 630.