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Commentary: Secure that gun at home, it is the law

Scott Forsyth

Scott Forsyth

In June the Supreme Court refused to accept an appeal of a decision of the Ninth Circuit that a San Francisco gun law did not violate the Second Amendment. Predictably, the NRA complained the courts were eviscerating the right to bear arms. Almost as predictable, two Justices – Thomas and Scalia – agreed with it, Jackson v. City of San Francisco, 746 F.3d 953 (9th Cir. 2014), cert. denied, 576 U.S. __ ( June 8, 2015).

In 2007, San Francisco adopted an ordinance requiring a person possessing a handgun “within a residence” to store the handgun “in a locked container” or disable it “with a trigger lock.” An exception was made for a handgun “carried on the person.” A violation would result in a fine and/or six months in prison.

Various individuals and groups, including the NRA, challenged the validity of the ordinance under the Second Amendment. They argued the ordinance effectively deprived them of the ability to use a handgun in the defense of self and property at home.

You may recall before 2008 the District of Columbia banned totally the possession of any handgun at home, among other restrictions on the use of firearms. In that year the Supreme Court held for the first time the Second Amendment conferred upon individuals a personal “right to keep and bear arms.” This right was most acute “for the core lawful purpose of self-defense” of the home, District of Columbia v. Heller, 554 U.S. 570 (2008).

The Supreme Court based its conclusion on a lengthy and, some would say, selective analysis of the history of firearm use and regulation, going back to the 1600s.

Heller is actually a narrow decision. It refrained from “clarify(ing) the entire field” of Second Amendment jurisprudence. It invalidated the District’s bar on the possession of handguns at home but declined to say what level of scrutiny applied. It did admit certain firearm regulations were “historically unprotected” by the amendment, such as felons not owning firearms.

How did the Ninth Circuit analyze the ordinance? It followed “the majority of our sister circuits” and adopted a two-step inquiry.

First, it determined the ordinance did not meet one of the “presumptively lawful” regulations mentioned in Heller. The ordinance regulates conduct at home, not in “sensitive places,” and applies to all residents, not just “felons or the mentally ill.” There being no historical analogue for the ordinance, the court concluded in one sentence the ordinance “burdens rights protected by the Second Amendment.”

Second, those rights “implicate the core (of the Amendment) because (the ordinance) applies to law-abiding citizens and imposes restrictions on the use of handguns within the home.” Retrieving a handgun from a locked container or removing a trigger lock makes the use of a handgun more difficult “for the core lawful purpose of self-defense.”

Nevertheless, the ordinance’s burden is not as “severe” as the outright ban in Heller. The ordinance does not “substantially prevent” citizens from possessing firearms. It just regulates “the manner in which persons may exercise their Second Amendment right,” specifying how they must store their handguns (italics in original). It “leaves open alternative channels for self-defense in the home.”  Residents may carry handguns on their persons.

Since the ordinance did not impose a substantial burden on core conduct, the court applied intermediate scrutiny, not strict scrutiny, to test San Francisco’s justification for the law.

Intermediate scrutiny requires a government to demonstrate (1) its stated objective for a regulation is substantial or important and (2) a reasonable fit between the regulation and the objective exists.

San Francisco aimed to decrease the number of gun-related injuries and deaths from having an unsecured handgun at home. Increasing public safety “is an important government interest,” so stated the court.

The record contained ample evidence that securing handguns reduces the risk of accidental and intentional handgun deaths, including suicides, and retrieving a gun from storage or unlocking it “causes a delay of only a few seconds.” The ordinance was tailored to fit the city’s objective.

San Francisco is not the first municipality to adopt a safe storage law and will not be the last. The City of Rochester first adopted such an ordinance in 1951. It applies to all firearms, not just handguns, inside and outside the home. New York City, Buffalo and Westchester County also regulate the storage of firearms.

Albany may be next. Before its council is a bill to require firearms not being carried to be stored or locked. Not surprisingly, the NRA opposes the bill. The fur will fly when the council takes testimony on the bill before Labor Day.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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