9th Circuit Upholds Storage Requirement & Hollow Point Ban

The 9th circuit upholds a requirement that guns be locked up. There’s more here over at the Volokh Conspiracy. Once again, I’m disappointed to see Prof. Volokh promoting balancing tests:

The court also upheld a ban on sale of hollow-point bullets, though it stressed that the ban didn’t prohibit possessing or using hollow-points, or bringing them in from neighboring cities. Here, the burden does seem likely to be less than substantial …

Would we argue that a ban on newspapers or books being sold in the city is a less substantial burden, because they could still be bought outside the city and brought in? No, that would be properly ruled unconstitutional. I will repeat that endorsing this kind of burden analysis, even if it is used in other rights, is a green light for the courts to gut any substantive protection, because the courts will always balance in favor of the government. The courts, who have zero expertise in self-defense (very few would have ever taken a course), are in no position to make these calls, and shouldn’t be encouraged to make them. Limiting my magazine size, restricting my access to effective ammunition, and adding precious time between me and my firearm are not light burdens, and shouldn’t be treated as such.

We have to advocate a different approach if we want this right taken seriously. I’m a great fan of Professor Nelson Lund’s approach, on examining police use and practices.

12 thoughts on “9th Circuit Upholds Storage Requirement & Hollow Point Ban”

  1. Well, that HP ruling at least makes more sense than NJs laws were back in the 80’s, there you could buy, but not legally own or use HPs.
    Crazy laws…….

    1. Doesn’t really make sense. It clearly falls under the “in common use” standard for arms, within which ammunition would obviously be covered.

  2. I don’t see how a ban on the sale (but not possession or use) of hollow point ammunition can withstand even rational basis scrutiny. How can they even claim that it serves the interest of public safety to ban only the sale of hollow point ammunition? If they banned use and possession as well they could at least claim to do so in furtherance of an important government interest.

    But you’re right… We need Congress to exercise its powers under section 5 of the 14th amendment or we’re basically screwed. Don’t hold your breath.

    1. Is public safety enhanced by FMJ bullets that can easily over penetrate putting by-standers at risk?

      1. “Is public safety enhanced by FMJ bullets that can easily over penetrate putting by-standers at risk?”

        Of course not. And we know that. But most people think that hollow points actually explode on impact and can penetrate an armored car. And *that’s* the sort of ignorance we’re up against.

  3. The mandatory storage law in this case will be over turned on appeal. Since the US Supreme Court ruled that mandatory storage laws in the home were unconstitutional in the case of DC v. Heller. To quote from that opinion, “Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.”

    1. This WAS the appeal. Unless the Supreme Court grants a petition for cert (which they have refused to do for 2A cases for a while now), that’s the end of it.

    2. They’re taking advantage of one of the massive loopholes in Heller by saying you don’t have to lock up all your guns, just the ones you’re not actually carrying at the moment – ergo, it is now possible to use one for self-defense, you just have to be carrying it at the time.

      The law at issue in Heller didn’t even allow for carrying or “quick-access safes” in the home – IIRC, it was trigger locks or disassembled, and those were the only two choices – so this bit of gymnastics by the 9th was never addressed in the decision (there was apparently some discussion during oral arguments, but that got derailed).

  4. You are right that courts are clueless about self-defense. Of course, they are also clueless about economics.

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