Response by Sunnyvale to SCOTUS

The response from the City of Sunnyvale to the Supreme Court can be found here. TL;DR there’s no exigent circumstance here, and there’s no right to have a magazine holding more than ten rounds anyway. They say that at least one applicant is already storing his magazines outside of town, and that this shouldn’t be a problem for other applicants.

Applicants are merely attempting to circumvent the appeals process by asking this Court to prejudge the very issues that are now before the Ninth Circuit in this appeal.

They also note that no lower court has found for a right to keep and bear magazines holding more than ten rounds.

Every court that has considered the constitutionality of a ban on LCMs, including the D.C. Circuit, has applied intermediate scrutiny and held that such a ban does not violate the Second Amendment. See Heller v. District of Columbia, 670 F.3d 1244, 1264 (D.C. Cir. 2011); San Francisco Veteran Police Officers Ass’n v. City & Cnty. of San Francisco, C-13-05351 WHA, 2014 WL 644395, at *7 (N.D. Cal. Feb. 19, 2014); New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, C-13-291S, 2013 WL6909955, at *18 (W.D.N.Y. Dec. 31, 2013); Shew v. Malloy, C-13-739 AVC, 2014 WL346859, at *9 (D. Conn. Jan. 30, 2014); Tardy v. O’Malley, C-13-2861, TRO Hr’g Tr.,at 66-71 (D. Md. Oct. 1, 2013).3

And after all, all courts agree that the Second Amendment is a Second Class Right:

Since this Court recognized the Second Amendment right to keep and bear arms, the Circuits have adopted a careful and measured approach to the various gun control ordinances they have evaluated, deciding each case on its merits and avoiding broad pronouncements that would up-end the development of Second Amendment jurisprudence. In keeping with this careful approach, a consensus has emerged in the Circuits that while severe restrictions on the right to keep and bear arms either fail categorically without regard to their justifications or fail strict scrutiny, more modest burdens that permit armed self-defense but only regulate the exercise of that right are subject to less demanding scrutiny.

The response drips with disdain for the Second Amendment, and for the rights of gun owners. I hope the Court can help us out here with an injunction, but I’d be a liar if I said I was optimistic.

UPDATE: The motion was denied without comment. There’s not too much in the way of tea leaves to read here.

15 thoughts on “Response by Sunnyvale to SCOTUS”

  1. From the response:

    Echoing that approach, at least one noted scholar has already weighed in that the District Court’s decision is entirely consistent with emerging Second Amendment jurisprudence.

    Thanks, Professor Volokh. Thanks a shitload.

  2. The Heller 5 are human. The anti-rights folks, in and out of the lower courts, might feel cocky but their statements and written opinions boil down to Heller was wrongly decided and the cites used don’t mean what the 5 said. At some point they are going to push that attitude too far.

  3. Doesn’t CA have preemption? Why wasn’t this filed in state court under that law?

    1. We have weak preemption. State law preempts local law where (a) state law is contrary, (b) state law is comprehensive, or (c) where the legislature has manifested an intent to occupy the whole of the regulatory field.

      California law prohibits the manufacture, sale, or transfer of “large-capacity” magazines to civilians, but it’s silent about possession. So pre-emption doesn’t apply.

      1. BC,

        Thanks, I’ve been trying to get an answer to that for a while. So what’s the fundamental difference between this and San Francisco’s gun ban attempts which were twice overturned on preemption grounds (2005, 1982)? Is state law explicit in stating you may possess registered handguns?

        1. In the 1982 case, San Francisco tried to ban possession of handguns by ordinance. A state court of appeals held that because the state legislature had impliedly occupied the field with respect to residential handgun ownership, and that preempted local laws banning possession.

          I’m not sure what 2005 case you’re thinking of; maybe you meant 2008? In that case, San Francisco tried to prohibit manufacture, transport, and sale of all firearms and ammunition in the city, and (again) tried to ban possession of handguns by city residents. The transfer restrictions were “conflict” preempted by sections of state law, and the possession restrictions got slapped down on the same grounds as in 1982.

          1. Thanks BC, I’m almost there, but I’m looking to clarify one thing. You said the state legislator impliedly occupied the field for handgun ownership- have they not done the same by passing laws regulating 10+ round magazines? It’s clear from your description that SF and Sunnyvale could ban magazines if California had no existing laws on magazines- having no intent to occupy the field. I’m particularly interested if this is an implied occupation of the field, or manifested as you described in (c) above. SF’s handgun ban was first overturned in 1982 where a lot of today’s handgun regulation wasn’t even in place, so if implied, it was a weaker implication then than now. Also (and I know this is a long shot), but does it help that the state legislator tried to ban possession of these magazines this past year? They *intended* to be the regulating body for magazines, including possession.

            FYI, the later ban was passed in 2005 but SF lost the appeal in 2008 (I just looked it up). The transfer conflict you described makes perfect sense.

            1. You said the state legislator impliedly occupied the field for handgun ownership- have they not done the same by passing laws regulating 10+ round magazines?

              Our Penal Code section 12026(b) says, basically, that the state can’t require a permit to own and carry a handgun on private property. The court said that the implication of that was that the legislature intended to occupy the field of residential handgun possession to the exclusion of local governments.

              With magazines the situation’s different. Our statutes prohibit civilian manufacture, sale, transfer, or import of 10+ round magazines, but they’re (deliberately) silent about possession. My understanding is that our courts treat commerce and possession as different animals when looking at pre-emption claims.

              I don’t think it will matter to a court that the legislature thought about banning possession but chose not to, because you can’t unambiguously determine legislative intent from something like that. Maybe they intended to occupy the field; or maybe they intended just the opposite, and left it to allow local governments to hash out.

              1. Thanks for your responses, BC. I really appreciate it. That had been bugging me for a while.

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  5. How is this law not a “taking” under the 5th Amendment? Why are none of these lawyers arguing that angle in addition to the 2nd Amendment issues?

    Isn’t that the reason for the “grandfather” clauses? That by making illegal what was legal yesterday and forcing you to be deprived of that property as a result has been ruled as the government taking your property without compensation. I’d argue the thinness of the City’s argument that “You can keep them. You just can’t keep them here.”. What if that boundary keeps moving outward? First the city, then the county, then the state. Not everyone has friends out-of-state they can store prohibited items at. And then take it to the national level and now those 11+ round magazines have nowhere to run and hide to.

    If 10 is good enough for me, it is good enough for law enforcement. They aren’t special and this ladder of increasing legal privilege needs to stop.

    1. It may not be a taking if they demand you sell it. It would be a taking if the federals did this, but since there is still a market available elsewhere, you have options.

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