RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION April 24, 2014

A. Introduction and Overview

The Law Center to Prevent Gun Violence is tracking litigation involving Second Amendment challenges to federal, state, and local gun laws asserted in the aftermath of the United States Supreme Court’s controversial landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In that 5-4 decision, the Court held for the first time that the Second Amendment protects an individual right of law-abiding, responsible citizens to keep a handgun in the home for self-defense. This update summarizes the most significant recent Second Amendment lawsuits and decisions. Our more comprehensive analysis and overview of all the Second Amendment decisions since Heller can be found in the Post-Heller Litigation Summary available at http://smartgunlaws.org/post-heller-litigation-summary/.

B. New Decisions Peruta v. County of San Diego (9th Cir): Ninth Circuit Strikes Down San Diego County’s Application of California’s Concealed Carry Law Under California law, applicants for a permit to carry a concealed handgun must, among other criteria, establish that they have “good cause” for the issuance of such a permit. The chief law enforcement officer of each city and county is responsible for making this determination. Some cities and counties interpret this requirement narrowly, to only apply when an applicant can demonstrate a special need to carry a handgun above and beyond a general desire for self-defense (for example, specific threats against the applicant or if the applicant handles large amounts of cash). San Diego is one county that takes that approach. In Peruta, the plaintiffs challenged that policy, arguing that it violates the Second Amendment. In a 2-1 decision, the Ninth Circuit agreed, finding that Second Amendment rights extend outside the home and that the County’s policy was so restrictive that it constituted a “destruction” of Second Amendment rights in public. Because of that, the court found that no level of scrutiny analysis was necessary and struck the policy down, thus requiring the County to issue concealed carry permits to anyone who meets the other criteria for such a permit and has a general desire to carry a loaded gun in public for self-defense. This case is contrary to the three other federal courts of appeal that have considered this issue and the California Attorney General has filed a motion to intervene in the case in order to seek en banc review.

Jackson v. City & County of San Francisco (9th Cir): Ninth Circuit Upholds San Francisco Ordinances Requiring Safe Storage of Firearms and Banning the Sale of Hollow Point Ammunition At issue in this case are two San Francisco ordinances. One requires gun owners to lock up their guns (either with a trigger lock or in a gun safe) when they are not in use, while the other bans the sale of hollow point ammunition (ammunition which explodes or expands on impact). A unanimous Ninth Circuit panel found that while both of these laws did burden Second Amendment rights, both burdens were minor and therefore only intermediate scrutiny was warranted. Applying this standard, the court upheld both laws, reasoning that the safe storage law was reasonably related to preventing accidents and theft and that the hollow point ammunition law was reasonably related to preserving public safety. San Francisco Veteran Police Officers Association v. City and County of San Francisco (N.D.

Cal.): District Court Denies Preliminary Injunction To Block Large Capacity Ammunition

Magazine Ban

In this case, the plaintiffs challenged a San Francisco ordinance that prohibits the possession of large capacity ammunition magazines. California law already prohibits the sale and purchase of such magazines. The court denied the plaintiffs’ request for a preliminary injunction to block the law. The court found that the law was only a “burden” on Second Amendment protected conduct, and not a complete ban or “destruction of the right” (distinguishing this case from Peruta). The court even expressed some skepticism that large capacity magazines are protected by the Second Amendment at all, noting that the plaintiffs had failed to provide evidence of how commonly owned such magazines are. The court was also persuaded that the burden on the Second Amendment was minimal because the evidence suggested that the average self-defensive gun use only involved firing about two shots. The court went on to apply intermediate scrutiny and find the ordinance a valid measure to promote public safety which left plenty of other avenues open for self defense (including carrying more than one standard magazine). The court found that even if strict scrutiny applied, the ordinance would be valid because the ordinance narrowly targets magazines that have been used repeatedly in mass shootings. Shortly following the denial of the preliminary injunction, the plaintiffs filed a stipulation agreeing to dismiss this case.

Fyock v. City of Sunnyvale (N.D. Cal.): District Court Denies Preliminary Injunction To Block

Large Capacity Ammunition Magazine Ban

This case concerns a Sunnyvale ordinance that is similar to the San Francisco ordinance upheld in the case discussed above. The court here explicitly found that the law did burden conduct protected by the Second Amendment (possessing large capacity ammunition magazines) because those magazines are commonly possessed. The court, however, found that the law was only a minimal burden on Second Amendment rights and therefore found intermediate scrutiny appropriate. Applying intermediate scrutiny, the court held that the ordinance was reasonably related to the city’s interest in promoting public safety and therefore upheld it. The plaintiffs filed an emergency motion with the Ninth Circuit requesting an injunction from the court, but the Ninth Circuit denied that motion without opinion. The plaintiffs then filed a similar emergency motion with United States Supreme Court Justice Anthony Kennedy (Justice Kennedy is the Circuit Justice for the Ninth Circuit). Justice Kennedy denied their request without opinion.