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Wednesday, June 10, 2015

Gun Control Denial of Cert: Jackson v. City of San Francisco

A couple of days ago, the Supreme Court declined cert in Jackson v. City of San Francisco, a petition challenging my fair city's gun control ordinance in Section 4512 of the police code, according to which, "[n]o person shall keep a handgun within a residence owned or controlled by that person unless (1) the hand-gun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice"; or "(2) the handgun is carried on the person of an individual over the age of 18” or “under the control of a person who is a peace officer under [California law].”

Jackson, five other gun owners, and (of course) the NRA thought this ordinance a violation of Heller. The city argued that the restrictions were reasonable (they did not apply to long guns; they allowed carrying on the person; the lockbox retrieval was not too onerous or slow) and protected an important interest of public safety (preventing accidents and suicides.) But I guess we won't know for a while, because there were only two dissenters--Scalia and Thomas--who wrote:

The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “ ‘inherited from our English ancestors,’” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. . . We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented residents from rendering their firearms “operable for the purpose of immediate self-defense. . . San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of immediate self-defense” when not carried on their person.The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed."

Some commentators have thought that this might be picked up in the future, when there is a circuit split about similar ordinances, but there might be something else going on, according to the dissenters; they find the denial "difficult to account for in light of [the Court's] repeated willingness to review splitless decisions involving alleged violations of other constitutional rights."

Are most of the Justices sick of the unreasonable expansion of unregulated gun ownership under Heller? And if not, what do you think is going on?

Posted by Hadar Aviram on June 10, 2015 at 05:19 PM | Permalink


The fact it involved a burden on the right to own a gun in the home makes it a particularly inviting case to take but the first two comments suggest to me a good reason not to take the case. I do think they are due to take case, since there really does seem to be some sort of split in the circuits as to the proper standard of review and so forth.

But, this case very well might not be an apt one. I do think they might be avoiding taking a case given the sensitivity of the question. I'm unsure if the SF case is intended to test Heller, but the abortion question is another case where they seem to have be loathe to take up cases -- after over twenty years of Planned Parenthood v. Casey, only two (on the same basic issue) got full examination.

Posted by: Joe | Jun 12, 2015 11:15:19 AM

I find it interesting that the San Francisco ordinance in question seems to be intended to pick away at Heller in the same fashion that recent abortion restrictions are intended to pick away at Roe v Wade. Perhaps Scalia and Thomas are somewhat irked at getting a taste of their own medicine.

Posted by: MGould | Jun 11, 2015 10:03:19 PM

I think it much more likely that the denial of Cert. was related to the procedural posture of the case. The Ninth Circuit decision merely refused to reverse the denial of a preliminary injunction, sending the case back to the District Court for a trial on the merits. The Petitioners will have another crack at the Ninth Circuit and the Supreme Court after a full record is developed and the District Court renders a final decision on the merits. While one might argue about what a full factual record might add to this particular case, it is very rare for the Supreme Court to intervene in any case at a preliminary stage of the proceedings, preferring to wait for a case with a fully developed record and a final determination by the lower courts.

Posted by: Daniel Artz | Jun 11, 2015 9:04:46 PM

I found the statement entirely baffling. The Court regularly denies splitless decisions involving alleged violations of other constitutional rights. Hell, it regularly denies decisions involving splits concerning the scope of constitutional rights. It seemed to me that Thomas is the one who wants some sort of special rule for Second Amendment cases.

Posted by: baffled | Jun 10, 2015 6:50:34 PM

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