Well That Didn’t Take Long

As I reported yesterday, the Supreme Court refused to grant certiorari and accept Jackson et al v. San Francisco for review. The case involved a San Francisco requirement that a handgun either be in a safe or have a trigger lock on it if it wasn’t being carried on the person in a home. Seemingly this was at odds with the Court’s ruling in DC v. Heller where they ruled that the District of Columbia could not require a firearm to be either locked up or disabled. As Justice Clarence Thomas noted, the ruling of the 9th Circuit allowing the San Francisco law was “in serious tension with Heller.”

Unfortunately, Justice Thomas and Justice Antonin Scalia were the only two voting to hear the appeal. As Dave Workman wrote earlier this morning, the decision will open the door to other cities imposing a similar law.

So they have.

Albany (NY) Common Council’s Public Safety Committee is proposing such an ordinance for the city that would apply to all firearms. The bill is on the full council’s agenda for June 15th.

City gun owners may soon be required to keep their firearms under lock and key at home.

A proposed law vetted Monday by city lawmakers would force gun owners to store their weapons in a “secure container” or disable them with a trigger lock whenever they are “out of his or her immediate possession or control” at home.

The Times-Union reports that the cities of Buffalo and Rochester already have so-called safe storage laws on the books and that the New York State Assembly is considering a similar law called “Nicholas’ Law”. That bill is expected to be voted on by the entire New York State Assembly as early as the end of this week. The state law would make it a felony if someone is injured by an unsecured firearm. Fortunately, passage of the bill through the New York State Senate is doubtful.

Jackson v. San Francisco – Cert Denied

The Supreme Court denied a writ of certiorari for Jackson et al v. City and County of San Francisco. This case was an appeal from the 9th Circuit Court of Appeals which upheld a San Francisco law requiring handguns to be stored in a locked container or with a trigger lock if not on one’s person. This, on the face of it, was in conflict with the Supreme Court’s ruling in DC v. Heller.

Justice Thomas issued a dissent on the denial of certiorari with which Justice Scalia joined. His six page dissent examines why the lower courts’ ruling with regard to this case are in conflict, in his opinion, with Heller. He notes that “because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.”

Justice Thomas says the ruling of the Court of Appeals is “in serious tension with Heller.”  He concludes that the San Francisco law burdens the core right of self defense and it does so at a time when people are most vulnerable – at night and asleep – which is a “significant burden.” The 9th Circuit reasoned that this was not a “severe burden” justifying strict scrutiny because “a modern gun safe may be opened quickly.” Thomas disagrees.

But nothing in our
decision in Heller suggested that a law must rise to the
level of the absolute prohibition at issue in that case to
constitute a “substantial burden” on the core of the Second
Amendment right. And when a law burdens a constitutionally
protected right, we have generally required a
higher showing than the Court of Appeals demanded here

 Justice Thomas goes on to say:

The Court should have granted a writ of certiorari to
review this questionable decision and to reiterate that
courts may not engage in this sort of judicial assessment
as to the severity of a burden imposed on core Second
Amendment rights.

Finally, Justice Thomas takes issue with the Supreme Court’s refusal to review this decision in light of their “repeated willingness” to review splitless decisions involving alleged violations of other constitutional rights.

I realize that the Supreme Court gets many more appeals than it can reasonably hear. Nonetheless, I am in agreement with Justice Thomas that this is one in which certiorari should have been granted. That they didn’t even though a majority of the state attorneys general urged them to do so is inexplicable.

Another Amicus Brief Urging SCOTUS To Take Up Jackson v. San Francisco

More weight was added today to the effort to get the US Supreme Court to take up the case of Jackson v. San Francisco with an amicus brief from the Firearms Policy Coalition and 12 other civil rights organizations. This brief comes on the heels of another amicus brief filed by 26 state attorneys general also requesting the Court take up the issue

The case involves a challenge to San Francisco’s gun control ordinance requiring either a trigger lock or a storage safe for firearms. The case was brought in 2009 by six San Francisco residents, the NRA, and the San Francisco Veteran Police Officers Association. Both the District Court and the Ninth Circuit Court of Appeals found for San Francisco using an interest-balancing approach. The plaintiffs appealed the case on December 12, 2014 by filing a Writ of Certiorari with the Supreme Court.

The facts in this case are very similar to the original Heller case where the Supreme Court overturned the District of Columbia’s requirement to keep firearms inoperable.

From the release by the Firearms Policy Coalition:

ROSEVILLE, CA / January 15, 2015 – The Firearms Policy Coalition and 12 other state and national civil rights organizations filed a brief in the United States Supreme Court today for a lawsuit challenging a San Francisco gun control ordinance.

According to the plaintiffs’ petition for review, the city’s law “requires all residents who keep handguns in their homes for self-defense to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons.”

In the amicus (“friend of the court”) brief filed by attorneys Bradley Benbrook and Stephen Duvernay, the gun-rights groups argue that summary reversal of the Ninth Circuit Court of Appeals’ decision “is warranted because [it] is plainly contrary to Heller,” a landmark 2008 ruling that held the Second Amendment protects an individual–rather than a collective–right to keep and bear arms. But the groups also argue that the Supreme Court should hear the case in order to “clarify the standard governing Second Amendment challenges, and to confirm that courts must be guided by text and history rather than judicial interest balancing.”

While some Second Amendment lawsuits have been decided based on the “text, history, and tradition” standard used in Heller and McDonald v. Chicago, a 2010 Supreme Court decision that applied the Second Amendment to states and local governments, many lower courts have since applied weaker standards that lets most gun control laws stand.

“The Ninth Circuit’s lamentable decision in Jackson shows why it is the most overturned circuit court in the nation,” said Firearms Policy Coalition President Brandon Combs. “The Supreme Court should take up this case not only to correct a clear wrong, but to stem the tide of judicial resistance in recognizing the right to keep and bear arms as fundamental Constitutional rights.”

“The Second Amendment doesn’t protect second-class rights, and it’s time for courts to take the enumerated right to keep and bear arms at least as seriously as they do unenumerated rights like abortion.”

Parties to the amicus brief (in order of appearance) are:

  • Firearms Policy Coalition
  • Second Amendment Foundation
  • The Calguns Foundation
  • Firearms Policy Foundation
  • California Association of Federal Firearms Licensees
  • The Madison Society
  • Florida Carry
  • Hawaii Defense Foundation
  • Illinois Carry
  • Maryland Shall Issue
  • Commonwealth Second Amendment
  • Virginia Citizens Defense League
  • West Virginia Citizens Defense League

The brief can be viewed at https://www.firearmspolicy.org/wp-content/uploads/2015/01/14-704-Jackson-v-SF-amicus-2015-1-15.pdf.

Espanola Jackson, et al. v. City and County of San Francisco, et al., was filed in 2009 by lawyers for 6 San Francisco residents, the National Rifle Association, and the San Francisco Veteran Police Officers Association.

9th Circuit Agrees With San Francisco

The Ninth Circuit agreed with the city of San Francisco yesterday saying local ordinances requiring firearms in the home must be either on the person or locked up. They also allowed San Francisco’s ban on the purchase but not possession of hollow point bullets to stand.

This panel of judges was decidedly not as friendly to the Second Amendment as the panel that decided Peruta, Richards, and Baker. The unanimous decision was written by Judge Sandra Ikuta who is a George W. Bush appointee.

Professor Eugene Volokh has his analysis of Jackson et al v. City and County of San Francisco here. He is rather skeptical of their decision and concludes:

As I’ve argued before (and in detail in pp. 1454-61 of Implementing the Right to Keep and Bear Arms for Self-Defense), I think the right to keep and bear arms has long been understood throughout American history as allowing various kinds of regulations that don’t substantially interfere with self-defense. That is also compatible with how many other rights are treated (setting aside equality rights, such as the Equal Protection Clause ban on race discrimination, or the First Amendment bans on religious discrimination or discrimination based on the content of speech). So the hollow-point ban may well be properly seen as constitutional, though I think it’s a bad idea. But I’m skeptical of the court’s conclusion that the locked-storage-when-not-carrying requirement is constitutional.

Movement In CRPA-NRA Lawsuit Against San Francisco

Jackson v. City and County of San Francisco was filed back in May of 2009. The suit challenges three San Francisco ordinances on Second Amendment grounds. Yesterday, Judge Richard Seeborg of the U.S. District Court for the Northern District of California issued a ruling on San Francisco’s Motion to Dismiss for Lack of Jurisdiction. He denied their motion and said the case can move forward.

More on this from attorney Chuck Michel:

On September 27, 2011, Judge Richard Seeborg of the United States District Court, Northern District of California, issued his long awaited ruling on San Francisco’s Motion to Dismiss for Lack of Jurisdiction. Holding that the plaintiffs had “adequately alleged an intent and desire to engage in conduct that is prohibited by the ordinances but which they contend is constitutionally protected,” the court denied the City’s motion. The case, entirely funded by the NRA and CRPA Foundation, can now move forward toward a determination of its merits. The full text of the court’s Order Denying Motion Dismiss for Lack of Standing can be viewed here at www.calgunlaws.com.

The order was issued in Jackson v. City & County of San Francisco, No. 09-2143 (N.D. Cal.). The Jackson lawsuit, filed on May 15, 2009, challenges three San Francisco ordinances on Second Amendment grounds. Specifically, the lawsuit alleges that the City’s enactment and enforcement of three city ordinances requiring firearms be disabled by a trigger lock or stored in a locked container, banning the sale of ammunition that “serves no sporting purpose,” and prohibiting firearm discharges with no self-defense exception unduly burdens the right to self-defense. The Jackson case has already been successful in forcing the City to amend its discharge ban, a law that has been in place for some 73 years, to allow for discharges in self-defense, defense of others, and all other circumstances allowed for under state and federal law.

On February 10, 2011, the City responded to Plaintiffs’ Complaint with a motion to dismiss the case based on its claim that the City does not enforce the challenged ordinances. As such, the City argued, Plaintiffs have no legitimate fear of prosecution and otherwise suffer no injury by complying with the law. The technical claim was that Plaintiffs lack “standing” to bring their claims, based on the dearth of prosecutions to date. In short, the City exposed itself as unconcerned that its ordinances in fact coerce law-abiding citizens to surrender their constitutional right to self-defense.

Plaintiffs responded on March 23, 2011, arguing the City’s motion should be denied. Plaintiffs regarded as unpersuasive the City’s claims that its ordinances are not and have not been enforced and that Plaintiffs suffer no injury by obeying these laws. Ultimately, Plaintiffs asked the court to recognize the very real harm they each suffer by complying with the unconstitutional laws.

The court’s ruling did just that. Plaintiffs laud the decision, upholding reason over rhetoric and recognizing the “immediacy and concreteness of the injury [Plaintiffs] have alleged” and the unreasonableness of requiring a self-defense emergency, or a criminal prosecution, to arise before judicial review of these laws is available. The ruling paves the way for future Second Amendment litigants in the Ninth Circuit.