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Appeals Under Way in Challenge to San Francisco Laws

Monday, June 24, 2013

On Nov. 26, a federal judge denied the plaintiffs’ motion (in the case of Jackson v. City & County of San Francisco) for a preliminary injunction to prevent San Francisco from enforcing its locked-firearm-storage requirement and its ban on the sale of popular ammunition that “serves no sporting purpose.”

The storage provision requires the locked storage of all handguns inside the home unless “carried on the person.” In opposition to the requirement, the motion cited Heller’s recognition that defense inside the home is the core of the Second Amendment right and argues that the storage requirement clearly conflicts with this finding. Quoting Heller,  the motion said, “‘whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home,’” which should make restrictions like the storage law “subject to the highest level of scrutiny.”

On the ammunition ban, the motion pointed out that ammunition is clearly protected under the Second Amendment, and no historical justification exists for curtailing the sale of certain types of ammunition. Therefore, under the view of the Second Amendment adopted in Heller, San Francisco’s ban must be invalid.

In his decision denying the motion, Judge Richard Seeborg of the U.S. District Court for the Northern District of California wrote, “Heller left too much unsettled for it to dictate a particular result here.” 

Undeterred, on Feb. 7, NRA-backed lawyers appealed the decision to the United States Court of Appeals for the Ninth Circuit. The opening brief for the plaintiffs noted, “The City’s restrictions exist at the extreme end of the gun-regulation continuum, they impinge upon the core right to self-defense in the home, and present a total ban on the sale of ammunition protected by the Constitution.”

In their responding brief on March 3, the city and county further defended their position on the city’s storage law and what they call “enhanced lethality ammunition.” The city mischaracterizes comparisons between San Francisco’s storage ordinance and others around the country that, while burdensome, are far less prohibitive than its own. Additionally, the defendants suggest that anything short of a “prohibition on the sale of any ammunition, or any ammunition other than ineffectual rubber bullets,” would not burden Second Amendment rights. Also weighing in with “friend of the court” briefs on the city’s behalf were the Brady Campaign and the Law Center to Prevent Gun Violence.

Further complicating matters for law-abiding gun owners, in March the San Francisco Board of Supervisors enacted an ordinance “to prohibit the possession or sale of certain ammunition, including Black Talon ammunition and ammunition intended exclusively for law enforcement and military purposes,” that went into effect April 12. During the debate on the law, politicians and media sources touted the legislation as a complete ban on the possession of hollow point ammunition.

Concerned that the new law would outlaw most self-defense ammunition, NRA threatened legal action against the city. However, on March 29 the Police Department of the City and County of San Francisco sent the NRA’s lawyers a letter clarifying the effects of the law. In direct contrast to what was stated by certain legislators and the media, Captain Dennis F. O’Leary of the San Francisco Police Department Operations Bureau made clear that the law does not ban all hollow point ammunition, only ammunition that is “physically identical to Black Talon ammunition or that performs identically to it in all respects,” along with other yet-to-be-determined ammunition that will be listed in a database to be created by the police department.

Even with that clarification, the fight in San Francisco could affect the ability of other like-minded localities to enact similar bans, and the NRA will continue to advocate for the availability of effective self-defense ammunition.

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