One Week after State Gun Control Setback in Federal Court, S.F. Wins One

Thursday, February 20, 2014

A federal judge rejected a lawsuit (pdf) Wednesday inspired by the National Rifle Association (NRA) to overturn a San Francisco ordinance passed last year that limits to 10 bullets the size of an ammunition magazine possessed in the city.

U.S. District Judge William Alsup rejected arguments that the U.S. Supreme Court decision in 2008 recognizing home gun possession as a constitutional right also covered high-capacity magazines. The plaintiffs were seeking a preliminary injunction to block the ordinance, but Alsup ruled it “did not ‘destroy’ the right to self-defense; it merely ‘burdens it.’ ”  

The “right to bear arms,” protected by the Second Amendment to the Constitution, is not denied simply because a gun owner has to snap in another 10-bullet magazine in order to keep firing. Judge Alsup pointed out that studies show the average number of bullets fired in self-defense averages 2.2. He did not say how many bullets are needed to bring down a deer.

“The main point is that we are not concerned with a total ban on magazines and thus the burden on Second Amendment interests is reduced,” he wrote.

Gun control advocates suffered a setback last week when a three-judge panel of the U.S. Court of Appeals for the Ninth District ruled 2-1 (pdf) that restrictions put in place by San Diego County under a California law—giving counties the right to restrict concealed-gun permits to people with a good reason to pack heat—violated the Second Amendment by requiring that an applicant show “good cause” to carry a gun. They should pretty much only have to indicate they want a gun for protection, the court said.

Alsup cited the city’s argument, and agreed it was relevant, that there is a high correlation between mass murders committed with guns and the presence of high-capacity magazines. The “ordinance prevents mass murderers from firing a larger number of rounds faster by depriving them of magazines with the capacity to accept more than ten rounds,” he wrote. 

Eighty-six percent of mass shootings the past 30 years involved at least one magazine with high-capacity.

The judge said San Francisco had met its responsibility to show that the goal of the ordinance was protecting public safety from criminal use of guns. He conceded that there could be rare occasions when a citizen may be harmed because he didn’t have a larger magazine, but thought those occasions were far outweighed by the damage done by bad guys.

“One critical difference is that whereas the civilian defender rarely will exhaust the up-to-ten magazine, the mass murderer has every intention of firing every round possible and will exhaust the largest magazine available to him,” Alsup wrote. “On balance, more innocent lives will be saved by limiting the capacity of magazines than by allowing the previous regime of no limitation to continue.”

In arguing for an injunction, the plaintiffs said they would be irrevocably harmed if they are forced to turn in their plus-10 magazines by April 7, as the ordinance requires. Their lawyers said even if they win on appeal, they will have already turned in the magazines and won’t be able to get new ones because of California’s law prohibiting the sale and transfer of new magazines with large capacities.

Alsup responded by ordering city and county officials to return magazines that had been surrendered should the plaintiffs prevail in a higher court. That concession is not expected to mollify the NRA or those suing.  

–Ken Broder


To Learn More:

Judge Upholds San Francisco Gun Magazine Ban (by Paul Elias, Associated Press)

NRA Sues S.F. to Kill Law on Gun Magazines (by Bob Egelko, San Francisco Chronicle)

Federal Appeals Court Rejects California’s Concealed-Gun Law (by Ken Broder, AllGov California)

San Francisco Veteran Police Officers Association et al v. The City and County of San Francisco et al (U.S. District Court for the Northern District of California) (pdf)

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