The Second Amendment confers an individual right to keep and bear arms.
We know that now—after decades of uncertainty—because the Supreme Court said so in District of Columbia v. Heller, 554 U.S. 570 (2008).
But how far does the Second Amendment extend? Does it prevent a City from regulating the storage of handguns in homes or the sale of ammunition that expands upon impact, referrred to as hollow-point bullets?
In a case decided this week, Jackson v. City and County of San Francisco, No. 12-17803 (Mar. 25, 2014), the Ninth Circuit ruled that those bringing a Second-Amendment challenge to the City and County of San Francisco’s handgun and ammunition regulations were not likely to succeed on the merits.
What exactly was at issue and how did the court reach its conclusions?
What Regulations Did the Plaintiffs Challenge?
The regulations address storing handguns in residences, and the sale of particular types of ammunition that expand upon impact. Specifically, they prevent a person from keeping a handgun within a residence unless the handgun:
- “is stored in a locked container or disabled with” an approved trigger lock, or
- “carried on the person of an individual over the age of 18.” San Francisco Police Code, art. 45, Section 4512(a), (c)(1).
A separate regulation also prohibits the sale of “hollow-point” bullets, i.e., ammunition that: (1) has no sporting purpose; (2) is designed to expand upon impact to increase damage; and (3) is designed to fragment upon impact. San Francisco Police Code, art. 9, Section 613.10(g).
What Test Applies?
The Ninth Circuit found that after Heller, it must apply a two-step inquiry:
- Does the challenged law burden conduct protected by the Second Amendment?
- If so, what is the appropriate level of scrutiny, based on how close the law comes to the core Second-Amendment right, and how severely it burdens that right?
Do the Regulations Fall Within the Scope of the Second Amendment?
On the first question, the Ninth Circuit ruled that the regulations fall within the scope of the Second Amendment. It found that both restrictions fell outside of categories that Heller described as “presumptively lawful” regulations:
- prohibitions on the possession of firearms by felons and the mentally ill;
- laws forbidding the carrying of firearms in sensitive places such as schools and government buildings; and
- laws imposing conditions and qualifications on the commercial sale of arms
The court also noted that although the Second Amendment does not explicitly protect ammunition, “without bullets, the right to bear arms would be meaningless.”
What Level of Scrutiny Applies?
The court applied intermediate, not strict, scrutiny to both regulations.
The court ruled that the handgun-storage restriction “burdens the core of the Second Amendment right”:
[T]here are times when carrying a weapon on the person is extremely impractical, such as when sleeping or bathing. Therefore, as a practical matter, section 4512 sometimes requires that handguns be kept in locked storage or disabled with a trigger lock. Having to retrieve handguns from locked containers or removing trigger locks makes it more difficult “for citizens to use them for the core lawful purpose of self-defense” in the home.
The court declined to apply strict scrutiny, however. In the court’s view, the regulation does not impose “the sort of severe burden imposed by the handgun ban” at issue in Heller. The court found that the regulation is akin to a time, place, and manner regulation under the First Amendment:
Unlike the challenged regulation in Heller, 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 court distinguished cases from the Seventh Circuit — here and here — that had applied higher levels of scrutiny to bans and prohibitions. The court found that this regulation was more analogous to the registration requirements that the D.C. Circuit analyzed under intermediate scrutiny.
The court ruled that the restriction on the sale of hollow-point bullets does not burden the core of the Second Amendment at all, and that it too is more akin to a time, place, and manner regulation.
Do the Regulations Survive Intermediate Scrutiny?
The court said yes, and that the City and County were likely to succeed in defending their restrictions.
The court ruled that the locked-storage requirement serves a “significant government interest” by “reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home.” The court also found that there is a reasonable “fit” between this regulation and the City and County’s public-safety interest. The court stressed that the restriction need not be the least restrictive means of reducing handgun-related deaths, and found that the burden it imposes was not substantial.
The court also upheld the restrictions on hollow-point ammunition. It found that the City had an interest in reducing the fatality of shootings, and found that the regulation reasonably served that goal. Although the plaintiffs claimed that the governments had relied on “bad science and erroneous assumptions,” the court found that the evidence “fairly supports” their view:
San Francisco’s evidence more than “fairly supports” its conclusion that hollow-point bullets are more lethal than other types of ammunition. At most, Jackson’s evidence suggests that the lethality of hollow-point bullets is an open question, which is insufficient to discredit San Francisco’s reasonable conclusions. Section 613.10(g) is a reasonable fit for achieving its objective of reducing the lethality of ammunitation because it targets only that class of bullet which exacerbates lethal firearm-related injuries.