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26 State AGs File Amicus to Oppose S.F.'s 'Gun Locker' Ordinance

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By Mark Wilson, Esq. on January 12, 2015 10:27 AM

Attorneys general from 26 states filed an amici curiae brief in a suit over San Francisco's "gun locker" ordinance last week, increasing the possibility that the U.S. Supreme Court will take the case (which they were probably going to, anyway).

On March 25, 2014, a three-judge panel of the Ninth Circuit determined that the ordinance, which requires that handguns stored at a residence be kept in a locked container or disabled with a trigger lock, didn't violate the Second Amendment.

Just Parallel the Logic

When we last blogged about Jackson v. City and County of San Francisco, the Ninth Circuit had issued a sua sponte order to consider rehearing the case en banc. None of the parties to the case asked for en banc review, and even though Attorney General Kamala Harris moved to intervene, the Ninth Circuit wouldn't let her join the case. The parties had 21 days to file briefs on whether the case should be reheard, but apparently none of them did. Instead, the plaintiffs filed a cert. petition with the U.S. Supreme Court on December 14.

The amicus brief boils down to one really simple argument: San Francisco's ordinance is similar to the one the High Court struck down in District of Columbia v. Heller, the 2008 case that found a constitutional right for individuals to own handguns. That's sort of true, except that the D.C. ordinance required either a trigger lock or the more extreme solution of keeping a gun "unloaded and disassembled." Even so, the AGs claim that even a trigger lock or a gun safe are too restrictive to the "lawful purpose of self-defense" that Heller recognized. "This is particularly true where, in an emergency, every second counts," their brief says.

Another noteworthy reason for taking the case, though one that's not quite as important, is that the Supreme Court never defined the standard of review for burdens on the Second Amendment. It's rejected rational basis review, and the amici attorneys general urge strict scrutiny, but that urging isn't overwhelmingly important at the petition stage. Right now, what's important is getting cert. granted, and that means urging that the Ninth Circuit has created a constitutional problem.

Nothing Can Stop This Cert.

Yeah, that's not going to be too hard. Even without a majority of the states' attorneys general urging it, there's no way the Court will let this slide, especially since it's so close to the facts of Heller and the Ninth Circuit applied some kind of intermediate scrutiny to something for which the level of scrutiny is, as yet, up in the air.

It only takes four justices to grant cert. One wonders if Justice Kagan is going to side with her new hunting buddy.

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