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San Francisco Gun Ban Struck Down by Trial Court:

Here's the opinion, which concludes that the ban on S.F. residents' possessing handguns — and on sales and other transfers of all guns and ammunition within the city — is preempted by state law (thanks to Matt Rustler at Stop The Bleating for uploading the file).

I'm not sure I'd endorse all the details of the court's reasoning, and I'm not an expert on the ins and outs of California state/local preemption law. But I did want to make a few observations:

  1. California Penal Code § 12026(b) quite explicitly says:

    No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.

    This pretty clearly bars any California government entity (including cities and counties) from requiring licenses to buy or possess handguns. And it seems to me that if California government entities may not demand licenses or permits for an activity, they may not forbid it outright, either.

  2. This is yet another reminder to be skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." San Francisco voters categorically banned possession of handguns by city residents (except police officers, security guards, and the like), and categorically banned sales of all firearms. While San Franciscans would remain free to buy rifles or shotguns in neighboring cities, presumably those who advocate for such gun sales bans would endorse the broadening of the bans — if gun sales bans are indeed good for San Francisco, I take it that they would be good for Berkeley, Oakland, San Mateo, and Marin, too.

  3. Finally, the ordinance is another reminder of how gun controls routinely favor those who can hire others to guard them, yet restrict those who want to guard themselves or their family members. "[S]ecurity guards, regularly employed and compensated by a person engaged in any lawful business, while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment, may also possess handguns." The celebrity, big businessman, or relatively prosperous store owner may defend himself by hiring a guard. The woman who wants to protect herself against rapists, the parent who wants to protect his family against home invaders, or the small businessman who wants to be his own security guard — because he can't afford to hire someone else — is out of luck. (Nor can one justify this on the theory that security guards are trained professional; they're in fact generally not terribly well trained, and in any event a person who wants to defend himself, his family, and his business is not allowed to have a handgun to do so no matter how much training he gets.)

In any case, I'm glad the ordinance was struck down, and I hope the decision will be affirmed on appeal. Congratulations to my acquaintance Chuck Michel for winning this one.

UPDATE: I originally erroneously paraphrased § 12026 as "bar[ring] any California government entity ... from requiring licenses to buy or possess guns" (rather than "handguns"); thanks to commenter Christopher Cooke for correcting me.

Related Posts (on one page):

  1. "Reasonable and Narrowly Tailored" Gun Control:
  2. San Francisco Gun Ban Struck Down by Trial Court:
Anderson (mail) (www):
Fascinating. Colorado voters ought to be able to *forbid* local governments from providing services to illegal aliens ...

... but San Francisco voters shouldn't be able to forbid private gun ownership.

The ideological scorecard really is useful in figuring out which judges get it right, it seems. (FWIW, both the state and city laws strike me as foolish or even wicked.)
6.13.2006 3:58pm
UCLA Law Alum:
Didn't the California Supreme Court rule against San Francisco, on preemption grounds, the last time it banned all guns?

Why is this even a surprise?
6.13.2006 3:58pm
Anderson (mail) (www):
Fascinating. Colorado voters ought to be able to *forbid* local governments from providing services to illegal aliens (damn judicial activists!) ...

... but San Francisco voters shouldn't be able to forbid private gun ownership (--???).

The ideological scorecard really is useful in figuring out which judges get it right, it seems. (FWIW, both the state and city laws strike me as foolish or even wicked.)
6.13.2006 3:59pm
Anderson (mail) (www):
(Oops: don't hit "Post Comment" and then hit your stop button on your browser to add an afterthought, I have just learned.)
6.13.2006 4:00pm
Sasha (mail):
Um, wasn't Eugene criticizing the Colorado court for misapplying its "single-subject" rule? And wasn't Eugene praising the California court for interpreting California's local-ordinance-preemption statute? How are these decisions even remotely in conflict? Oh, maybe you think everyone (or perhaps just Eugene) only cares about whose ox gets gored in the bottom line -- even when (as in these two cases) they don't say anything about whether a case is right as a matter of "ultimate policy"?
6.13.2006 4:35pm
Dilan Esper (mail) (www):
I agree that there are some who want to ban handgun possession-- the laws in D.C. (which are tacitly supported by some lawmakers who trumpet the N.R.A. position, showing a certain hypocrisy) and New York City show this.

Nonetheless, I still am not sure about the slippery slope implications of this (and I say this as someone who believes that the Second Amendment should be interpreted to bar total and near-total bans on handgun possession). We are talking about VERY liberal cities that have these laws. There is no indication that they will even be adopted in a liberal but somewhat-less-liberal-than-San Francisco city like Los Angeles, let alone being adopted in the midwest and the south where gun ownership is seen as much more of a fundamental right.

The point is, whatever the constitutional and legal merits, I doubt that if we allowed some federalism and local control of this issue, that it would really put the camel's nose under the tent in the fashion that is sometimes argued. It certainly hasn't happened yet, and these strict local gun control laws have been on the books for a fairly long time.
6.13.2006 4:36pm
Kevin P. (mail):
Pages 18 onwards of the PDF file are blank!
6.13.2006 4:39pm
Matt22191 (mail):
Kevin,

Try again. It downloads OK for me -- all 32 pages of it.
6.13.2006 4:49pm
jgshapiro (mail):
The judge in this case (James L. Warren) is Earl Warren's grandson. Yes, that Earl Warren. He is also openly gay. I have no idea what these facts portend, if anything, but he's an interesting guy, especially for those engaged in "ideological scor[ing]."
6.13.2006 4:58pm
Christopher Cooke (mail):
Judge Warren's decision is correct under the CalFed case he discusses, which essentially mandated the result. The City Attorney of SF apparently advised Mayor Newsom of this before the election.

Professor Volokh's post is somewhat inaccurate, in the following description of Penal Code Section 12026(b):


This pretty clearly bars any California government entity (including cities and counties) from requiring licenses to buy or possess guns.

Actually, as Judge Warren discusses, the section only applies to "a pistol, revolver, or other firearm capable of being concealed upon the person." The plaintiffs invoked other arguments as to why the ban on shotguns, for example, was unconstitutional and preempted.
6.13.2006 5:00pm
Christopher Cooke (mail):
As an interesting tidbit about Judge Warren and "gun" cases: Judge Warren originally denied the motion to dismiss filed by the manufacturer of the Intertech Tech-9, in the lawsuit brought by the victims and relatives of the 101 California massacre--the shootings at the former Petit &Martin law firm's offices in 1990 or so-- that sought to hold that manufacturer liable for the deaths caused by by Gian Luigi Ferri, the ex-client who modified the Intertech Tech-9 so that it was an automatic weapon. Later, however, Judge Warren granted the defendants' motion for summary judgment. I don't he is particularly biased on these issues, one way or the other.
6.13.2006 5:08pm
Matt22191 (mail):
Anderson,

Nice straw man. How about, instead: "Colorado courts should not interpret the state's 'single subject' rule so expansively as to arrogate to themselves the right to strike down any legislation they don't like," and, "San Francisco is bound by California state law"? Those characterizations seem to me to be much closer to what Eugene actually said. You're free to believe his comments are motivated by an ideological agenda if you like, but you haven't given the rest of us any good reason to do so.
6.13.2006 5:09pm
Anderson (mail) (www):
Um, wasn't Eugene criticizing the Colorado court for misapplying its "single-subject" rule?

Sasha, I had the CO comment thread in mind more than the posts, an ambiguity I'm happy to correct. There was rather a strong trend in the CO thread about the court's supposedly frustrating the ability of the people to express their will.

I suspected in advance, and am thus far confirmed, that there was going to be very little lamenting that the people of San Francisco can't make democratic decisions about whether private gun ownership is a Bad Thing.
6.13.2006 5:30pm
Splunge (mail):
Maybe the anti-gun-control lobby in SF should take a page out of the anti-abortion-control lobby's book, and make bumper stickers like this:

Against guns? Don't buy one.
6.13.2006 5:36pm
pp (mail):
Concealed carry permits have always been issued by the county, not the state. In SF's case the city and county share similar borders so the county can control whether someone can carry a concealed loaded gun in the city of San Francisco. Trying to pass an overly broad crock of a law like that fortunately got the beat down it deserved.
BTW in California you cannot have a loaded weapon in a vehicle or in any city limits unless you are in your home (read for home protection) so this does lay ground work for slowing banning private ownership of guns in certain areas/communities.
6.13.2006 6:08pm
Glenn W Bowen (mail):

"I suspected in advance, and am thus far confirmed, that there was going to be very little lamenting that the people of San Francisco can't make democratic decisions about whether private gun ownership is a Bad Thing".


This is why we live in a republic, and not a democracy. It seems you would prefer mob rule.
6.13.2006 6:26pm
agog:
This is why we live in a republic, and not a democracy. It seems you would prefer mob rule.

Based on his posts, it seems he would prefer less hypocrisy from the commenters here. His main point is that republican principles of government are viewed a little less kindly here when they don't achieve so desirable a result.
6.13.2006 6:43pm
KeithK (mail):
I found the following quote in an SF Chronicle election coverage article about Prop. H. It nicely demonstrates Eugene's point #2:

"San Francisco voters are smart and believe in sensible gun control," said Supervisor Chris Daly, who was among the four board members who placed the measure on the ballot.

I guess the only "sensible" gun control that "smart" people could support is a complete ban on possesion, manufacture and sales. Riiiiiiiiight.
6.13.2006 7:01pm
NickM (mail) (www):
The City and County of San Francisco is a creature of the State of California, and has only those powers delegated it by the State. A democratic decision by the state excluded this from the C&C's powers.

Nick
6.13.2006 7:13pm
KeithK (mail):
Anderson, as a matter of principle it's not unreasonable to argue that the residents of SF should have a right to local control over what happens in their city. But as a matter of law in our system they don't have an unfettered right to do so. The State of California is sovereign and it's laws clearly trump those passed by the city.
6.13.2006 7:38pm
KeithK (mail):
I meant to include the link for the Chronicle article I quoted before.
6.13.2006 7:58pm
A. Zarkov (mail):
If you think the residents of SF should be able to enact their own local ordinances controlling handguns, how about medical procedures? The city of Berkeley once banned electroshock therapy, and got overruled by the State of California. I didn't hear much complaining about that (outside of Berkeley). There has to be some limit on what a local community can enact to avoid chaos. How about no radioactive materials can be transported through our city? So all trucks carrying medical radiological materials and devices would have to go around the city. There are some communities that crazy.
6.13.2006 8:46pm
Cris:
IANAL, but doesn't the first to purchase, own, possess, keep, or carry, either openly or concealed, seem like the result of a bad paste job?
6.13.2006 10:05pm
Mr L (mail):
Based on his posts, it seems he would prefer less hypocrisy from the commenters here. His main point is that republican principles of government are viewed a little less kindly here when they don't achieve so desirable a result.

Uh, that the 'republican principle of government' in question here is a protected Constitutional right and that the law constricting it is essentially identical to a previous law struck down for similar reasons and is invalidated by specific language in the state law.

The Colorado case was where a court struck down a ballot initiative refusing non-emergency services to illegal immigrants on clearly spurious grounds. No fundamental rights issues were at stake and the nullification procedure was corrupt and invalid.

I really fail to see any parallel between the cases, except in the crude sense that locally popular initiatives were invalidated by the courts. Public opinion is important in a democracy, but there are certain things (like invalidating overriding legislation or the Bill of Rights) that require more than that by design.
6.14.2006 12:15am
Benjamin Coates:
NickM said:


The City and County of San Francisco is a creature of the State of California, and has only those powers delegated it by the State. A democratic decision by the state excluded this from the C&C's powers.


Do you have a source for this? I was under the impression that's not how things worked, as a matter of California Constitutional law.
6.14.2006 12:18am
K Parker (mail):
pp,

Concealed carry permits have always been issued by the county, not the state. In SF's case the city and county share similar borders so the county can control whether someone can carry a concealed loaded gun in the city of San Francisco.


Actually, unless I'm hopelessly confused about CA's concealed-carry laws, a CA permit is good anywhere in CA. If you live in Alturas and the Sheriff there issues you a permit, then you can carry when you're in San Francisco. Is this not the case?
6.14.2006 2:46am
Glenn W Bowen (mail):

Based on his posts, it seems he would prefer less hypocrisy from the commenters here. His main point is that republican principles of government are viewed a little less kindly here when they don't achieve so desirable a result.


could you simplify that for me, please?
6.14.2006 11:55am
pp (mail):
kparker,
I am actually not sure what extent a concealed carry permit allows yout to cross county borders (or state for that matter). It is becoming more restrictive. My understanding is that you have to have a residence or business in the county you apply and issues the permit. My point was that the ordinance was essentially for residents of San Francisco which would have to be permitted in the county. The carrier of the weapon is subject to state laws at all times as well.
A lot of these ideological local ordinances have few teeth in their bite. As an example californias "progressive city" says they are nuclear free, except that huge lab on the hill that ships it radioactive waste down its busiest street every Friday morning at ten am.
6.14.2006 12:01pm
Mark Seecof (mail):
Eugene wrote:

The celebrity, big businessman, or relatively prosperous store owner may hire a guard to defend himself.

But I suspect he meant:

The... businessman... may hire a guard to defend him.

What's the point of hiring a guard to defend himself? The guard would do that for free!
6.14.2006 7:59pm