Jackson v. City & County of San Francisco — Amicus Brief

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, Ninth Circuit

Today, our firm filed a brief to uphold gun rights in the U.S. Court of Appeals for the Ninth Circuit, in support of a Petition for Rehearing En Banc, in the case Jackson v. San Francisco, No. 12-17803.

San Francisco ordinances prohibit the possession of a handgun within the home unless it is (i) being worn on the person or (ii) locked away. San Francisco also prohibits the purchase of hollowpoint ammunition within city limits. A panel of three judges from the Ninth Circuit had upheld the ordinances on the ground that they “limit but do not destroy Second Amendment rights,” standing in stark contrast to the text of the Second Amendment which states clearly that the right “shall not be infringed.”

The panel defended the ordinances relying on First Amendment case law that permits government to regulate the “time, place, and manner” of certain speech. Our brief argued that First Amendment precedents have no application in Second Amendment cases, and in any event, “time, place, and manner” cases apply to speech in public places, while the San Francisco ordinances regulate conduct inside the home. Then, our brief explained why the Supreme Court’s decisions in Heller and McDonald did not sanction judicial use of First Amendment balancing tests, but indeed rejected their use in Second Amendment cases.

Next, our brief explained the proper judicial review in Second Amendment cases. If (i) a person is part of “the People,” (ii) his weapon is a protected “arm” and (iii) the activity is to “keep” or “bear,” then his right is absolute — not subject to any judicial balancing in light of the government’s desire to infringe the right. It is not up to the government to decide the permitted ways of “keeping” arms, or the types of ammunition that a person may use any more than it is up to the government to decide what types of books can be read. The Second Amendment prohibits all infringements — not just ones that Courts believe go too far.

The Ninth Circuit panel, in upholding the San Francisco ordinances, treated the Heller decision as if the right to keep and bear arms protects only a limited right to possess a handgun for self-defense in the home.

The panel, which ruled in favor of San Francisco, was forced to admit that San Francisco’s regulations on handguns within the home burden “core” Second Amendment rights. Yet, in disregard for the text of the Second Amendment, the panel applied a “standard of review” so absurdly deferential that its decision amounts to little less than a judicial rubber stamp.

The panel blindly adopted the City’s baseless assertions that the burden was “indirect” and thus insubstantial. The panel next blindly adopted the City’s baseless assertions that it had an important governmental interest in “public safety” which permitted it to regulate firearms and ammunition.

In short, while claiming to exercise judicial review, the panel left it entirely up to the City of San Francisco to decide the outcome of the challenge to its ordinance. All the City was required to do was make the assertions the court wanted — and if it did, then there would be no way it could lose. That is clearly not what the Second Amendment requires.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Nevertheless, yesterday, on July 17, 2014, the Ninth Circuit denied the petition for rehearing. The only silver lining is that the Ninth Circuit is also considering a petition for rehearing in another case — Peruta v. San Diego — where the Ninth Circuit sided with the challengers to an anti-gun law, and it may be that the Peruta case would be a good vehicle for the en banc Ninth Circuit to rule on gun rights.

Link to brief