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"Reasonable and Narrowly Tailored" Gun Control:

The S.F. Chronicle reports on the judge's decision striking down the San Francisco law that (1) banned possession of handguns by residents (with a few narrow exceptions, such as for police officers and security guards), and (2) banned the sale or transfer of all guns or ammunition. Here's one item from the story:

"We're disappointed that the court has denied the right of voters to enact a reasonable, narrowly tailored restriction on the possession of handguns," [Matt] Dorsey[, spokesman for the City Attorney's office,] said.

I'm not sure that "narrowly tailored" means that much here (except in the rather trivial sense that the law is narrowly tailored to its goal of completing banning San Francisco residents from possessing handguns in the city, and making long guns harder go get). But in any event it's something to remember when people say they're just supporting "reasonable" gun controls.

And here's the reaction of one of the backers of the law:

Supervisor Chris Daly, a chief sponsor of Prop. H, urged Herrera to appeal and criticized [Judge] Warren. The judge "sided with the powerful gun lobby against the safety of San Franciscans" after showing "disregard for the voters of San Francisco" by taking nearly three months to rule, Daly said.

What exactly is the relevance of the power of the "gun lobby"? I had thought that judges were obligated to "side" with whatever side has the stronger legal argument, even if, God forbid, they're the "gun lobby" or the "civil rights lobby" or the "pro-choice lobby" (funny how somehow we only hear the first term and not the other two).

Also, is it really that bad for a judge who's writing a 30-page opinion, and presumably handling other litigation at the same time -- I don't believe that in the California court system challenges to ballot measures are fast-tracked, but I could be wrong -- to take three months to rule on a matter? Perhaps I'm too influenced by how slowly our legal system normally moves, but three months just doesn't seem like that much of a delay.

Related Posts (on one page):

  1. "Reasonable and Narrowly Tailored" Gun Control:
  2. San Francisco Gun Ban Struck Down by Trial Court:
Ex-Fed (mail) (www):
The three months is significant in that it is his outside deadline -- California is so hardcore that a state judge doesn't get paid if he or she has anything under submission longer than that.

But, no, I can see a careful judge legitimately taking that long.
6.13.2006 8:51pm
Bruce Wilder (www):
The phrase, "civil rights lobby" (with quotation marks used to indicate that it is the phrase, which is of interest), results in 501 English pages on Google. The phrase, "pro-choice lobby" results in over 14,000 English pages of results. The phrase, "gun lobby" results in ~315,000 pages.

The phrase, "pro-gun lobby" gets 15,900 pages. The phrase, "abortion rights lobby" gets 291 pages.

The phrase, "civil rights group" gets ~285,000 pages; the phrase, "pro-choice group" gets ~34,000 pages; "gun rights group" gets ~18,000 pages.

Google Trends doesn't have any data on the frequency of any of the three-word phrases used above. The frequency of searches for civil rights, pro choice, gun rights appears to be very, very roughly proportional to the results for the phrases ending in group.

I don't know what any of this means, but I was curious, to see if we really never "hear" "civil rights lobby".
6.13.2006 10:28pm
Eugene Volokh (www):
I did the same "lobby" google searches you did, before putting up my post. (I should acknowledge that the "only hear the first term" in my post is somewhat hyperbolic, but a difference of 315,000 to 14,000 seemed to me to justify the mild hyperbole.)
6.13.2006 10:33pm
Porkchop (mail):
Those darn activist judges are at it again. :-)
6.13.2006 10:54pm
jgshapiro (mail):
San Francisco has announced they are going to appeal. It's hard to see how they could win since the court to which they must appeal is the same one that struck down an identical law in 1982. If they somehow lose, the NRA would of course appeal to the California Supreme Court, which ruled in 1962 that California cities and counties cannot impose licensing or permitting requirements on gun ownership (registration requirements are ok), and therefore impliedly ruled that cities and counties cannot ban gun ownership outright.

The argument against this proposal when it was introduced by Chris Daly was not so much that it was a bad idea (this is San Francisco, after all), but that it was doomed to be struck down when it was inevitably challenged and at a cost of hundreds of thousands of dollars in legal fees that could be better put to use elsewhere. Nevertheless, the desire to make a political statement won out over common sense and the law was passed anyway. So now we get to watch the inevitable play out for the third time. It would seem that in San Francisco, history repeats itself every generation.
6.13.2006 11:20pm
M. Stack (mail):
I don't get it. Liberals proclaim that the First Amendment's protection of freedom of speech is absolute, but that the Second Amendment is not?
6.13.2006 11:39pm
D. Fox (mail):
It'd be kind of ironic, wouldn't it. if the Bay Area liberals now put up billboards with the slogan "Impeach Warren"?
6.14.2006 12:32am
GregHH (mail):
The law was "narrowly tailored" because it only outlawed guns, not, say, guns and roses.
6.14.2006 12:50am
BGates (mail) (www):
I thought the guns lobby was just the subset of the civil rights lobby that concentrated on the civil right to own guns as the best way to safeguard all the other civil rights.
6.14.2006 2:26am
logicnazi (mail) (www):
Yah, the people in SF are complaining because their policy preferences got struck down by a judge. Yes it is unreasonable to evaluate the correctness of an opinion based on whether or not you like the outcome but this is what virtually everyone does especially politicians.

I mean what do you hear when judges rule in favor of gay marriage from conservative groups? You don't hear, well I don't agree with the deciscion but I see why someone might infer that from Turner v. Safley. What did you hear from conservative groups when the supreme court ruled in the assisted suicide case (though I do find Thomas's argument that the court can't square this with its conclusion in the MMJ case kinda compelling)? What do you think social conservatives would have said if the MMJ case had been decided on federalism grounds? Even if you disagree with the courts deciscions in these cases you can hardly find the grounds the conservative public reaches its conclusions on compelling.

It's an unfortunate trend but the public at large decides whether a judge made a good or bad deciscion based on whether they like the result. Breyer (not a conservative favorite) even has a great quote to this effect I can't remember. I agree that the people in SF finding fault with the judge's ruling are in the wrong. However, to the extent that this post is implying that this is somehow a uniquely or even particularly liberal failling I have to disagree.

If you didn't mean to suggest this and just to castigate the people in SF who are the latest to join the judicial deciscion bashing then I'm all behind you but I think it is a failing shared equally on both sides of the aisle.
6.14.2006 2:55am
paranoid (www):
I've been trying to find the specifics of Chicago's handgun ban on Google but with no luck. How did the proposed San Francisco ban compare to Chicago's? Or to D.C.'s? As far as I can find so far, the only major difference between the SF/Chicago situations is Illinois' "home rule" policy that allows municipalities to enact stricter gun control laws.
6.14.2006 3:24am
BT:
Paranoid: I went to cityofchicago.org, which I believe is the city's offical web site, and I could find nothing relating to the handgun law. I looked under public safety, police,public health etc. Though I live in Chicago, I can't tell you what the specifics of the law are, although it was passed about twenty years ago under Mayor Jane Byrne. Other near by communities like Morton Grove have similar bans. I am not a lawyer so maybe if someone has access to Illinois or Chicago law they could post where it is available on line.
6.14.2006 4:22am
Medis:
Your side won, Professor. Relax and enjoy it.
6.14.2006 8:37am
Medis:
Oh, and lest I be misconstrued--it seems absolutely clear that this was the right result under California law. But I would suggest that this result actually vindicates the notion that reasonable gun regulations can exist without them becoming total bans, even when such a ban might have popular appeal in certain areas.
6.14.2006 8:40am
PersonFromPorlock:
Actually, doesn't the cited comment show (once more) that "reasonable," as applied to political issues, is just "a meaningless noise?"
6.14.2006 9:47am
Anderson (mail) (www):
California is so hardcore that a state judge doesn't get paid if he or she has anything under submission longer than that.

Sweet! Can we get that in Mississippi, please?

How about waiting a *year* without any decision on your motion to dismiss, in a routine penny-ante case?

One can always seek a writ of mandamus from the state supreme court, but strangely, few attorneys are eager to point the finger at their judge and say "get to work deciding my motion, lazybones!" We may never know the reasons behind this reluctance.
6.14.2006 10:57am
Anonymous Koward:
I thought the guns lobby was just the subset of the civil rights lobby that concentrated on the civil right to own guns as the best way to safeguard all the other civil rights.


"I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."

Nadine Strossen
"Life, Liberty, and the ACLU"
Reason. October 1994.
6.14.2006 11:34am
Anonymous Koward:
I thought the guns lobby was just the subset of the civil rights lobby that concentrated on the civil right to own guns as the best way to safeguard all the other civil rights.


"I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty."

Nadine Strossen
"Life, Liberty, and the ACLU"
Reason. October 1994.
6.14.2006 11:35am
Silicon Valley Jim:
I'm going to note, for the benefit of those who don't follow San Francisco politics, that Chris Daly is probably the member of its Board of Supervisors (SF is also its own county) who is the furthest left, and, of course, that's somewhat harder than being the furthest to the left in most other bodies.
6.14.2006 12:08pm
David Walser:
logicnazi compared the reactions of those who disagree with the outcome in this case with those who disagree the outcome of other cases. The conclusion: Everyone rants when they don't like the result. While that may be true, the analysis did not go far enough. There is a world of difference in the reasons for disagreeing with particular decisions -- apart from not liking the result. In this case, the complaint seems to be: "You should have ignored the written law and case law history and done what was right for SF." In other cases, the complaint seems to be: "You ignored the written law and case law history in order to do what you thought was right for X."
6.14.2006 12:51pm
Medis:
David,

Although logicnazi can speak for himself, I took his point to be that people frequently complain about a case without any good faith attempt to ascertain what result written law and case law would require, or any good faith attempt to assess whether reasonable people could disagree on those issues.

And indeed, it seems quite common to me for people to express outrage over a court's decision in a case without, say, actually reading the opinion.
6.14.2006 1:36pm
Sujal (mail) (www):
I think the point about "gun lobby" vs the other lobbies. The term "lobby" is generally used when business interests are behind a effort to lobby congress. We don't generally say things like the abortion rights lobby or the anti-abortion lobby. This seems to be the biggest difference to me. It might not be true in a legal sense or in a dictionary sense, but then I, unlike many here, am not a lawyer. :)
6.14.2006 1:52pm
therut:
Gun Lobby is used in a political sense by those opposed to gun rights ie the 2nd Amendment. They insuinate and sometimes state that the NRA, GOA etc are lobbying for the gun manufactures. It is a political lie to mislead. Just think how it would affect public opinion if they were called by the biased MSM what they are. A civil rights group protecting the 2nd amendment. I would like the NRA to run an ad like the ACLU did showing Congress cutting out the 2nd amendment.
6.14.2006 2:23pm
Attorney SF (mail):
I'm an attorney practicing in San Francisco, and have two comments:

1. Judge Warren is notorious for taking a long, long time with his rulings. Indeed, he often asks for "supplemental briefing" related to pending motions when his 60-day deadline to rule approaches -- often on issues that have already been fully briefed.

2. Judge Warren, like many judges, often asks for proposed orders from the litigants that become the final orders once there is a ruling. So that 30-page opinion may have been written largely by the NRAs attorneys!
6.14.2006 3:03pm
John Vodonick (mail):
The California state statute that mandates a ninty day decision time is more honored in it avoidance than being followed. The judges simply re-submit the matter after ninety days and start the whole thing running again. The interesting thig about this case is not what the California Court of Appeals does with it but rather if they order the opinion published or not.
6.14.2006 3:22pm
washerdreyer (mail) (www):
EV said: But in any event it's something to remember when people say they're just supporting "reasonable" gun controls.

There's no chance you might rephrase that that as, "This shows what some people mean when they say they only support "reasonable" gun control," is there? Surely many people would use those words but never endorse a total handgun ban. I'm not currently convinced most proposed gun control measures would cause a large enough decrease in violent crime to be worth supporting. But if I were convinced of that in the future, I might well say that I only support reasonable gun control; I would not be trying to get handguns banned.

M. Stack said: I don't get it. Liberals proclaim that the First Amendment's protection of freedom of speech is absolute, but that the Second Amendment is not?

Yeah, remember when liberals argued that you should be able to publish planned troop movements in advance? Remember when they argued that people should be allowed to protest anywhere, in any manner, at any time? Wait, neither of those things ever happened. Conversely, remember David Bernstien, who posts on this site, writing a book about how some liberals want things like hostile environment workplace laws which have been used in ways which violate freedom of speech? Remember when liberals (correctly) supported much of the BCRA over cries that it violated freedom of speech? Is your problem that liberals do support the 1st amednment and you want them to stop that, or that we (oops, let the mask slip) should put equal resources into defending both at all times and under all circumstances?

Also, without taking a stand on comparisons between the 1st and 2nd amendment, surely some of the constitutional text, by the very language of the text, calls for a broader reading of that part of the text than of other parts.
6.14.2006 5:40pm
Medis:
I freely admit that I don't view the Second Amendment as being nearly as important as the First Amendment. Largely that is because I don't think it is true anymore that the right of the people to keep and bear arms bears any particularly special relation to the security of a free state. Indeed, I think you could make a much better argument to that effect in favor of, say, vehicles powered by internal combustion engines.

Which is not to say that I think we should ignore the text of the Constitution. But in a world of limited resources, I think it is fine for civil libertarians to focus their efforts where they think it matters the most.
6.14.2006 6:03pm
slackbp:
Medis writes:
this result actually vindicates the notion that reasonable gun regulations can exist without them becoming total bans

??? Medis, the law forbid residents of San Francisco to own handguns. Sounds like a total ban to me, if only of one type of firearm.

Silicon Valley Jim writes:
Chris Daly is probably the member of its Board of Supervisors (SF is also its own county) who is the furthest left

Agreed, but Ross Mirkarimi is certainly contending for the title. (Daly makes an appearance further down the page.)
6.14.2006 6:39pm
Medis:
slackbp,

You say: "Medis, the law forbid residents of San Francisco to own handguns. Sounds like a total ban to me, if only of one type of firearm."

Exactly, and the court invalidated this total ban, because it conflicted with the more limited regulatory scheme adopted by the state of California.

So, rather than this being a case where the state adopted a more limited regulatory scheme and it led to a total ban, it was actually a case where the state adopted a limited regulatory scheme and it PREVENTED the adoption of a total ban, even when approved by the voters of SF through Proposition H.

Hence, my claim that: "I would suggest that this result actually vindicates the notion that reasonable gun regulations can exist without them becoming total bans, even when such a ban might have popular appeal in certain areas."
6.14.2006 7:20pm
juris_imprudent (mail):
Medis-

Hence, my claim that: "I would suggest that this result actually vindicates the notion that reasonable gun regulations can exist without them becoming total bans, even when such a ban might have popular appeal in certain areas."

Except of course this does not jibe with the experience of "assault weapons" which were first registered (a "reasonable" gun regulation) and subsequently banned in CA.

All this does is merely illustrate that the state is sovereign and not the municipality. Just as surely as CA could no longer re-adopt the anti-Chinese laws it had in the 19th century (due to the 14th Amdt).
6.14.2006 8:40pm
Medis:
juris_imprudent,

Of course, I did not say that a total ban would NEVER follow a more limited regulation. The notion is just that the one does not necessarily lead to the other.

And while I agree that California was entitled to occupy this field because of state supremacy, it was not in fact required to occupy this field, and could have left the issue to its subdivisions. So, the fact remains that by occupying this field with a more limited regulatory scheme--something it did not have to do--California prevented SF from adopting a total ban.
6.15.2006 1:04am
Wince and Nod (mail) (www):
I support reasonable gun control. Which means we have a very large number of unreasonable gun control laws that should be repealed now.

Yours,
Wince
6.15.2006 3:00am
Realist Liberal (mail):
While I am very much in favor of any gun control that is passed, I think it is ridiculous that San Francisco is going to be wasting tax payer money on an appeal that has absolutely 0 chance of winning. Before the proposition even passed the city attorney told Chris Daly that the law would be struck down.

In response to the people who are saying that liberals don't support the 2nd Amendment to the same extent that we support the 1st, I have this to say. Remember the full text of the 2nd amendment. What the NRA frequently ignores is the line "... in a well regulated militia." Last time I checked the guy next door who wants to own M-16's and uzis is not part of the National Guard or any regulated police force.
6.15.2006 12:00pm
TheFaz (mail):
Oh stop that Realist, we've gone over this many times before. I (and you probably as well), are both members of the militia per the Guard act of 1903, which established the organized militia (National Guard), and unorganized militia (all males 17-45).
6.15.2006 12:24pm
Medis:
TheFaz,

Of course, that doesn't answer the question of whether we are well-regulated.
6.15.2006 12:42pm
MikeL (mail):
Of course, that doesn't answer the question of whether we are well-regulated.

I can't speak for anyone else, but I am well-regulated out to 600 yards with a rifle. As well, I expend a considerable amount of time training for close quarters combat with a pistol.
6.15.2006 3:56pm
Medis:
MikeL,

You say: "I can't speak for anyone else . . ."

That is a pretty good indication that you are acting as an individual, and not as part of some well-regulated militia.
6.15.2006 4:01pm
CWuestefeld (mail) (www):
Medis:

I freely admit that I don't view the Second Amendment as being nearly as important as the First Amendment.


and washerdreyer:

surely some of the constitutional text, by the very language of the text, calls for a broader reading of that part of the text than of other parts.



   Actually, I think it's quite instructive to constrast the two. In the case of the 1st, we are told that "Congress shall make no law". In the case of the 2nd, the right "shall not be infringed."

   So freedom of speech is important enough that Congress can't abridge it. But the freedom to defend oneself is so important that it can't be infringed period. That is, the 1st limits the scope to which the restriction applies. The 2nd appears to apply to all actors.

   The language clearly puts the right to self defense on a much more solid foundation than that to speech.

   OK, I'm not a lawyer, just an over-educated redneck. What am I missing in my thumbnail analysis?
6.15.2006 4:05pm
Medis:
MikeL,

By the way, I like this quote from your link:

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

First, I seem to have missed my yearly militia assemblies. Second, I assume you are endorsing regulations of what arms you can keep--after all, we must ensure that you are properly armed and equipped.
6.15.2006 4:06pm
CWuestefeld (mail) (www):
Medis:

I assume you are endorsing regulations of what arms you can keep


While not the endorsement of gun control that anti-self-defense people would claim, the Miller court clearly answered this question. That decision tells us that, simply enough, the 2nd Amendment refers to arms that are used by militia members, which I read as equivalent to infantry soldiers.

Indeed, the decision against Mr. Miller hinged on this very point. The court was not shown any evidence that the short-barrelled shotgun he owned was used by soldiers. Of course, this detail was in error -- the "trench broom" was an important tool in WWI, and the mistake was due to a lack of contrary argument.
6.15.2006 4:30pm
Rich Rostrom (mail):
Supervisor Daly seems to have adopted a sort of legal deconstructionism:

There are no legal principles that should be followed, just outcomes. So called legal principles are just a screen for the exercise of power. Therefore outcomes are all that matter.

Note that Daly did not even bother to address the legal reasoning of Judge Warren. Whereas Professor Volokh criticized the Colorado SC's removal of a voter initiative because the decision's logic was obviously specious.
6.15.2006 4:50pm
washerdreyer (mail) (www):
CW - While this is not what I meant by the comment you quote, I guess it's a fair reading of it. So, are you suggesting that the text of the 1st Amendment (I'm not suggesting you believe the following, bur rather that you believe the following is a natural reading) means that, while Congress can't make laws which abridge the freedom of speech, the executive can enforce laws such a way that they do and that federal courts can interpret and apply laws which dont't violate freedom of speech so that they violate freedom of speech? And when you say the 2nd amendment applies to all actors, what you mean is that it applies to everyone, not just (prior to the passage of the 14th amendment) federal governmental actors? Unless you do mean those things, your purpoted distinction collapses.

It's also simply inaccurate to refer to the second amendment as the right to self-defense, as it's both wildly under- and over-inclusive if it were an attempt to do that.
6.15.2006 7:16pm
CWuestefeld (mail) (www):
washerdreyer -

Second item first: I agree that my "right to self defense" terminology isn't perfect. It's just my own personal effort to re-frame the debate away from the brain-dead "common-sense safety measures", much as the abortion rights debate struggles around defining the terms of the argument.

But to the more important question: you wonder if my proposed reading of the 1st Amendment (wrt the 2nd) allows the Exec and Judicial branches to collude in compromising our rights despite the Legislature's good intentions. Let me ask you: how does this differ from the status quo? And from a philosophical perspective, when does an act of Congress get its meaning? Is it imbued with meaning solely at the time it is written, or does the reader's understanding influence the meaning (in a mathematical or philosophical sense it's entirely the latter; in Law I'm not sure).

Regarding the 2nd Amendment, my reading actually encompasses ALL actors. In other words, my employer wouldn't be able to constrain me from coming to work armed. Even I think this is a might extreme, but that's the conclusion I come to.

I'm not (only) trying to be provocative here. It's obvious to me that the scope of the two Amendments differs, and one must assume that it's for a reason. Yet I've never heard a discussion of those two clauses from anyone really expert in Constitutional law. Anybody want to try?
6.15.2006 9:37pm
washerdreyer (mail) (www):
Reading any part of the Bill of Rights to have the effect of limiting the actions of any entity other than the Federal Government (prior to the passage of the 14th Amendment) is just a fundamental mis-reading of the Constitution as a whole. It's not a document that discusses limiting the powers of private citizens, and just because one amendment doesn't mention the subject matter of the document as a whole, that amendment doesn't suddenly become about something other than what the whole document is about. For more on what the consitution is about, please read Akhil Reed Amar America's Constitution: A Biorraphy.
6.16.2006 5:30pm