Ninth Circuit upholds requirement that guns be either locked or carried on one’s person

The case is today’s Jackson v. City & County of San Francisco (9th Cir. Mar. 25, 2014). The court concludes that the ban is constitutional, even though it applies even to people who aren’t living with children (most such locked storage requirements apply only when children could otherwise access the gun), and even to people who are living alone. The court also upholds the ban on sale of hollow-point bullets, though it repeatedly stresses that the law doesn’t ban possession or use of such bullets.

The court’s general approach does seem to take the Second Amendment seriously; for instance, the court allows the challengers to challenge the statute on its face, and rejects arguments that this sort of restriction is just outside the scope of the Second Amendment. But I’m not wild about the court’s decision about the particular restrictions in play here.

1. The court concludes that the carry-or-lock law doesn’t impose a substantial burden on the right to keep and bear arms (paragraph break added):

Unlike the challenged regulation in Heller [which categorically required locked storage -EV], section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly.

Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.

I’m skeptical about this conclusion, for reasons I mentioned at pp. 1534-35 of my Implementing the Right to Keep and Bear Arms, though I agree that the matter is close. There are times you can’t practically carry a gun in your home on your person — sleeping and showering are classic examples. And even the few seconds that it takes to unlock a safe might easily mean the difference between life and death. Nor is this like magazine size limits, where the second or two to change a magazine is required only once you’ve shot all 10 rounds, something that is apparently extremely rare in self-defense situations; here, the extra time may be required in many more situations.

The court also concludes that, when no substantial burden is present, the law must still pass intermediate scrutiny. But that seems to be a highly pro-government test, as the court is applying it here. For instance, consider this passage:

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.

But it’s not clear that the law offers much of a prevention of theft; a gun with a trigger lock — which is all the law requires — can still easily be stolen, and the trigger lock disabled at the thief’s leisure. And it’s also hard to see how the locked storage requirement will have any material effect on suicides and deadly domestic violence incidents, precisely given how quickly the gun can be unloaded. A few seconds are enough to stymie self-defense; I doubt they’d do much to prevent suicide. In my article, I urged a simple substantial burden test: substantial burdens are unconstitutional, but smaller burdens are constitutional (largely because I thought ostensibly more protective tests, like intermediate scrutiny, would will likely end up being largely empty protections). Still, the court does purport to offer some protection here under intermediate scrutiny, and I think it isn’t really providing the protection that it’s promising.

2. The court also upheld a ban on sale of hollow-point bullets, though it stressed that the ban didn’t prohibit possessing or using hollow-points, or bringing them in from neighboring cities. Here, the burden does seem likely to be less than substantial; though hollow-points can have substantial advantages for self-defense (and apparently can even be safer, because they seem to be less likely to go through walls), I do think that here the law leaves open so many pretty much equally effective self-defense alternatives that the burden ends up being very modest.

This having been said, I’m not persuaded by the “only sales are banned” argument, for reasons discussed in the case cited in this post. And beyond that, the very fact that people are allowed to possess hollow-points makes it hard to see how the law would pass any meaningful sort of intermediate scrutiny. (Again, I think this opinion highlights what a weak test intermediate scrutiny is likely to be in Second Amendment cases.)

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.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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