Month: November 2012

Yesterday an NRA backed case that challenged San Francisco’s safe storage and ammunition restrictions lost in District Court. Reading the opinion here, I find myself stunned by this:

Plaintiffs’ showing as to the severity of the burdens imposed by section 4512, “The Safe Storage Law,” is only marginally better. As noted above, section 4512 gives San Francisco residents the very set of rights the Heller plaintiff sought and obtained. San Franciscans may lawfully possess handguns in their own homes, may carry them in their own homes at any time, and may use them for self-defense without running afoul of any aspect of the ordinance. Plaintiffs have offered only the possibility that in a very narrow range of circumstances, the delay inherent in rendering a handgun operable or in retrieving it from a locked container theoretically could impair a person’s ability to employ it successfully in self-defense. Even assuming this rises to the level of a “substantial” burden, however, thereby triggering some heightened degree of scrutiny, plaintiffs have not shown the regulation to be overreaching or improper in any way, or that it fails to serve a legitimate governmental interest. Indeed, as noted in Heller itself, nothing in its analysis “suggest[s] the invalidity of laws regulating the storage of firearms to prevent accidents.”

This is disingenuous, and the quote taken from the full context. The full quote from the Heller opinion, in full context, is this:

The other laws Justice BREYER cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 2849-2850. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

The majority is refuting justice Steven’s dissenting argument about 18th century laws that mandated storage of excess gunpowder on the top floor of the home, and speaking of safe storage in a context which does not burden the right of self-defense to any real degree. Any honest reading of Heller has to come to terms with the fact that the invalidity of  storage requirements that interfere with self-defense is unambiguously part of Heller‘s holding:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

It is difficult to see how the San Francisco ordinance is materially different from that of the District of Columbia’s. I can accept that on the matter of ammunition restrictions, a judge has some room to suggest that case law is not that well established, and perhaps a preliminary injunction is not appropriate, but regardless of what is stated in Nordyke, which cannot control Heller, any requirement that a firearm be bound by a lock or stored in a way that makes it unavailable for self-defense is pretty unambiguously unconstitutional. The judge here pulls dicta out of context, in an attempt to ignore the core holding in Heller. It is worth noting that the judge in this case is an Obama appointee. Elections have consequences.

Via Jacob, the decision can be found here. The decision will be appealed. In the decision they kind of dabble in the history and tradition argument, without really going into serious analysis, then you get this:

But Plaintiffs’ contention that the proper cause requirement grants licensing officials unbridled discretion is something of a red herring. Plaintiffs admit that there is an established standard for determining whether an applicant has demonstrated proper cause. The proper cause requirement has existed in New York since 1913 and is defined by binding judicial precedent as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Plaintiffs’ complaint is not that the proper cause requirement is standardless; rather, they simply do not like the standard—that licenses are limited to those with a special need for self-protection. This is not an argument that licensing officials have unbridled discretion in granting full-carry permits. In fact, the State Defendants’ determinations that Plaintiffs do not have a special need for self-protection are unchallenged. Rather, Plaintiffs question New York’s ability to limit handgun possession to those demonstrating a threat to their safety. This is precisely the type of argument that should be addressed by examining the purpose and impact of the law in light of the Plaintiffs’ Second Amendment right.

Plaintiffs’ attempts to equate this case with Heller or to draw analogies to First Amendment concerns come up short.

They go on to conclude the core right is a right in the home, and make analogies to privacy rights, and speak of the home as having high constitutional protections relative to public places, even going so far as to recall rulings that allow obscenity to be possessed in homes, but banned in public.

They then go the traditional route for the lower courts, which is to apply intermediate scrutiny, which of course means the statute in question survives. Can you think of any case where a gun control statute was tossed using intermediate scrutiny? I can think of Ezell, but that was heightened-almost-scrict scrutiny. It seems the courts in these cases believe that if they just rename rational basis to be intermediate scrutiny, using rational basis review somehow becomes OK, as long as you don’t call it that.

Either the lower courts are in for an epic smack down after all these carry cases play out in the lower courts, or taking this issue into the courts is going to turn out to be an epic mistake, and we’re going to end up with a Second Amendment right that is a mish-mash of the worst things the state courts have already done to it. I am sincerely hoping the former is the case.