Justices should review SF gun law

After a five-year hiatus, the Second Amendment may be back on the U.S. Supreme Court's docket. The court will soon decide whether to grant certiorari in Jackson v. San Francisco, 746 F.3d 953 (9th Cir. 2014), a case challenging San Francisco's ordinance requiring handguns kept in the home be "stored in a locked container or disabled with a trigger lock" when not carried on the person. The Los Angeles City Council adopted an ordinance imposing similar requirements last November.

Jackson Upholds Virtually Identical Rule Struck Down in Heller

The Jackson plaintiffs noted a basic problem with San Francisco's rule. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court didn't just rule that Washington, D.C.'s handgun ban violated the Second Amendment right to keep and bear arms in the home for self-defense. It also struck down D.C.'s rule requiring all guns be "unloaded and disassembled or bound by a trigger lock" because it prevented handguns from being "operable for the purpose of immediate self-defense." (Emphasis added).

Plaintiffs argued that San Francisco's rule violated the Second Amendment for the same reason: Handguns stored in a safe or disabled with a trigger lock are not "operable for the purpose of immediate self-defense." When faced with a need to use a gun for self-defense, spending valuable, panic-stricken seconds fiddling with a trigger lock or a gun safe can mean the difference between life and death.

But the district court and 9th U.S. Circuit Court of Appeals upheld San Francisco's rule. They accepted the argument that accidental injuries and impulsive acts of violence may be reduced if guns are not immediately usable. How, it must be asked, can these courts purport to apply Heller to reach a result that contradicts one of Heller's core conclusions?

The answer lies in the constitutional balancing tests that have emerged to evaluate gun restrictions. And this is why Jackson is worthy of Supreme Court review: It exposes how multi-step balancing tests allow lower courts to miss the forest for the trees. Petitioners were more blunt: They say Jackson "illustrates the inherent manipulability of the lower courts' post-Heller approach to the Second Amendment."

Supreme Court Says No Balancing in Second Amendment Claims

While Heller is a watershed opinion, it left important questions unanswered. It stressed that "the right secured by the Second Amendment is not unlimited," in that it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." In other words: Firearms regulations will continue in some form. The Heller majority refused, however, to specify the standard of review that would govern Second Amendment challenges of those regulations.

The court's main guidance, in both Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment right is fundamental and applies to state and local governments), is that Second Amendment claims are not subject to a constitutional interest-balancing inquiry. The majority in both cases expressly rejected the approach advocated by Justice Stephen Breyer in dissent: He said the court should adopt an "interest-balancing inquiry" akin to intermediate scrutiny. Instead, the majority looked mainly to the understanding of the Second Amendment around the time of its ratification through the ratification of the 14th Amendment.

Lower Courts' Response: We'll Balance Anyway

Yet the prevailing test adopted by the lower courts (and applied by the 9th Circuit in Jackson) is a two-step, intermediate-scrutiny-style analysis that looks suspiciously similar to the very sort of interest balancing the court rejected in Heller.

Applying what the Jackson petitioners call the "post-Heller two step," the 9th Circuit rule (1) asks whether a firearm restriction burdens conduct protected by the Second Amendment, and, if so, (2) applies either intermediate or strict scrutiny depending on the severity of the burden.

In Jackson, the court agreed that the storage requirement burdened conduct within the scope of the Second Amendment. But in applying the second step, it concluded the rule only imposed an "indirect[] burden" on the "manner in which persons may exercise their Second Amendment rights." The regulation survived intermediate scrutiny because it serves San Francisco's public safety interest and "imposes only a minimal burden on the right to self-defense in the home because it causes a delay of only a few seconds while the firearm is unlocked or retrieved from storage."

The result: San Francisco's ordinance (gun must not be available for immediate use) survives under the Second Amendment, when Heller said the constitutional rule was precisely the opposite (gun must be available for immediate use).

Ripe for Clarification

But the 9th Circuit is hardly alone. In case after case, circuit courts have used the "post-Heller two step" to, as the Jackson petitioners claim, "avoid any meaningful form of scrutiny" to gun regulations enacted by legislatures that are hostile to Second Amendment rights. Petitioners fairly view this as an organized form of "resistance" to Heller's teaching that the enumeration of the individual right to keep and bear arms "necessarily takes certain policy choices off the table."

At a minimum, the circuits have reached the remarkably odd circumstance where Justice Breyer's dissenting opinions in Heller and McDonald now effectively control the course of Second Amendment litigation. One commentator has gone so far as to declare that the prevailing lower court test represents a "triumph" for Justice Breyer.

And yet the court has rejected various attempts to clarify the standard governing Second Amendment claims. Most notably, it has refused to step in to resolve a wide-ranging circuit split on Second Amendment challenges to restrictions on the right to carry outside the home. (The 9th Circuit is current considering whether Peruta v. County of San Diego, 742 F.3d 1144 (2014), should be reheard en banc.)

For a court in no mood to rush the development of Second Amendment law, Jackson provides a good vehicle for at least incremental guidance. The court can reaffirm that it meant what it said in Heller - guns must be kept "operable for the purpose of immediate self-defense" - and thus still clarify the standard governing Second Amendment challenges without expanding Heller's reach.

The authors filed an amici brief on behalf of multiple public interest groups in support of petitioners in Jackson.