Okay, okay, hyperbolic headlines out of the way, there’s been a lot of that going around. Exhibit A: BREAKING: Supreme Court Rules in Favor of Hollow Point Ammo Ban!1
So, what actually happened? Six years ago, in May 2009, suit was brought against the City of San Francisco, objecting to two provisions of their municipal code: one to ban sales of hollow point ammo within the city, and the other to require guns be locked up within the home. It’s worth noting this suit came 11 months after the Supreme Court decided Heller. Also of note was the exception to the “Safe Storage Law” that allowed a handgun to be unlocked with the home if it was carried “on the person” of someone older than 18. So you could have the gun on you or locked in a safe.
A preliminary injunction requested by the plaintiffs to quickly resolve the case in their favor was denied. The ban on sales of hollow points within San Francisco was deemed constitutional because it didn’t ban possession of hollow points, and didn’t substantially burden someone who wanted to get them. In other words, just get them somewhere else.
The safe storage law (SFPC Section 4512) was upheld because it wasn’t that much of a burden. Quote from the ruling:
If an intruder burst in during dinner time, and the homeowner’s gun were in another room, whatever additional time it might take to disable a trigger lock might be inconsequential, if the gun could not be reached in the first instance. Conversely, even a sleeping homeowner awakened by a noise downstairs could have plenty of time to render a gun operable before going to investigate. It is at least conceivable, however, that there could be some situations in which a homeowner, previously asleep or already awake, suddenly becomes aware of an imminent peril when he or she is not armed, but has a gun close at hand. In such instances, a small delay in being able to fire the weapon might sometimes be consequential. That potentiality, however, is insufficient to compel a conclusion as a matter of law that Section 4512 is unconstitutional under Heller…
I’m a pretty pro-2A guy. I think laws like this are stupid, unenforceable, and draconian. But, I can see the judge’s side. If you want to have you gun, either carry it on you or buy a decent quick-access safe. I think those are good ideas, but not that the law should compel you to do them. Again, understand but disagree.
So the denial of the injunction was appealed to the Ninth Circuit. This is where the crazy-pants stuff starts happening. They basically upheld the ruling, but for reasons that should be the headline and should be alarming (“BREAKING: COURT CASE FROM THREE YEARS AGO EXPANDS JUSTIFICATION FOR GUN CONTROL” was a draft title of this article). The City of San Francisco justified their regulation on this topic saying that it was signficiantly in their interest to reduce gun deaths. The Ninth Circuit accepted that, while also allow the legislation on grounds that preventing suicides and murders:
Jackson contends that section 4512 is over-inclusive because it applies even when the risk of unauthorized access by children or others is low, such as when a handgun owner lives alone. We reject this argument, because San Francisco has asserted important interests that are broader than preventing children or unauthorized users from using the firearms, including an interest in preventing firearms from being stolen and in reducing the number of handgun-related suicides and deadly domestic violence incidents. See id. § 4511(2)(d), (4). Intermediate scrutiny does not require that section 4512 be the least restrictive means of reducing handgun-related deaths. [That would be strict scrutiny. -ed] Ward, 491 U.S. at 798. Moreover, the burden imposed by the legislation is not substantial.
Now, I’m not a legal scholar, just a guy who enjoys reading single-spaced PDFs from the internet, but this is a little scary. If there’s one thing to be afraid of in this case, it’s the legal precedent being set that the government has a significant interest in stopping negligent gun discharges. This is the legal underpinning of everything from safe storage laws to European-style “keep the gun at the club” laws. Do I think we’re going to get there any time soon? No. Is this the road that would be taken to get there? Yeah.
So, the government can be so interested in reducing crime that it can restrict the conduct of otherwise law-abiding citizens in their own homes, but they can’t be held responsible when they fail to protect you from criminal threats? You can’t protect yourself and hey, we can’t either? Give me a break.
The Ninth Circuit continued their analysis by looking at the hollow point ammunition ban. Interestingly, they upheld the idea that ammo is protected by the the Second Amendment (“Nevertheless, without bullets, the right to bear arms would be meaningless.”). But they go on to puzzlingly say on the one hand that hollow point bullets aren’t more effective for self defense (“There is no evidence in the record indicating that ordinary bullets are ineffective for self-defense.”) but then buying San Francisco’s claims that hollow points are more deadly and therefore a damage to the public interest of reducing deaths.
All of this is gravy, of course, because at root the restriction of sales within city limits, but not possession, is not a substantial burden, the court found. Affirmed.
The “news,” or what happened this week, is that the Supreme Court denied cert to the appeal of the Ninth Circuit’s ruling. What’s interesting is that only four justices needed to vote in favor of reviewing the case. We know at least two did, because Thomas wrote (and Scalia joined) a dissent that noted scathingly that waiting for two circuits to disagree (or “split”) on the issue wasn’t a valid reason to wait to review the case:
The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights. See, e.g., Glossip v. Gross, 574 U. S. (2015) (cert. granted) (Eighth Amendment); Ontario v. Quon, 560 U. S. 746 (2010) (Fourth Amendment); Hill v. Colorado, 530 U. S. 703 (2000) (First Amendment). Indeed, the Court has been willing to review splitless decisions involving alleged violations of rights it has never previously enforced. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) (right to limit on punitive damages awards). And it has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008) (right of aliens held outside U. S. territory to the privilege of habeas corpus); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in adult, consensual same-sex intimate behavior). (Emphasis added.)
In other words, the majority’s stated reason for denying cert is BS.
So where does this leave us? Well, as the President of California Right to Carry notes, this whole appeals process was over a preliminary injunction seeking an immediate end to the case. Now that appeals are exhausted on that, the case itself can proceed. Cert being denied on a preliminary injunction is a little bit like saying a movie trailer looks bad. Maybe the movie itself will be good, but you’ll have to wait to find out.
Ultimately, I think I have to give the City of San Francisco a little bit of credit. They may be statist gun-grabbers, but what they aren’t is stupid. They wrote a set of laws that were not obviously as unconstitutional as Heller. The Supreme Court in Heller held that “the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.” So San Francisco added the exception of being able to carry it on your person. They tiptoed up to the line of what had been previous ruled unconstitutional and then took a baby step back.
They are a formidable opponent, not to be discounted. But in the end, the wind is blowing our way.
- Of course, calling SCOTUS denying cert in a PDF “breaking” is like calling a report about someone dying peacefully in their bed surrounded by family last Tuesday “developing.”