Regulations Requiring Storage of Handguns in Locked Container and Prohibiting Sale of Hollow-Point Ammunition Do Not Substantially Burden Second Amendment

Overview: The Ninth Circuit Court of Appeal recently held that the San Francisco Police Code section requiring handguns be stored in a locked container at home or disabled with a trigger lock when not carried is not a violation of the Second Amendment since the regulation does not prevent a person from possessing a firearm. The court also found that another San Francisco Police Code regulation prohibiting the sale of hollow-point ammunition was constitutional since the purpose of the regulation is to reduce the lethality of ammunition. The Ninth Circuit affirmed the district court’s denial of plaintiffs’ request for preliminary injunction.

Training Points: While this ruling only addressed the constitutionality of regulations specific to the City and County of San Francisco, police officers regularly deal with improperly stored handguns and may during an investigation come across a case involving the sale of hollow-point ammunition. It is important for officers to understand how a citizen’s Second Amendment right to bear arms may be violated and whether their jurisdiction has regulations similar to those in San Francisco. There are several Penal Code sections that deal with weapons, including the sale of ammunition, which may, if investigated improperly or applied inconsistently, implicate Second Amendment concerns. Officers should follow their department’s policies and procedures as it pertains to detaining, citing or arresting persons suspected of improperly storing handguns or selling ammunition deemed unlawful or illegal by statute. Municipalities should consider whether similar narrowly tailored regulations would be beneficial in their communities to prevent accidental or unintentional discharge of weapons, and/or catastrophic injuries caused by hollow-point bullets.

Summary Analysis: In Jackson v. City and County of San Francisco, et al., handgun owners and citizens (as well as the National Rifle Association and the San Francisco Veteran Police Officers Association) challenged the validity of two Police Code sections claiming they were violations of their right to bear arms under the Second Amendment. In order to determine whether the regulations violated the Second Amendment, the court engaged in a two-step inquiry: (1) whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, what level of scrutiny should be applied. The court held that if the challenged law does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right, then the appropriate level of scrutiny to be applied is intermediate scrutiny.

Although the court found the storage regulation burdens a person’s Second Amendment rights, it found it is not a substantial burden since it does not prevent citizens from using firearms to defend themselves in the home, but rather only burdens the manner in which persons may exercise their Second Amendment rights. This finding was based on evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun related deaths, including suicide.

Turning to the second regulation prohibiting the sale of hollow-point ammunition, the court held that this regulation did burden the core of the Second Amendment. The court next considered the severity of this burden and found that there was no evidence indicating that ordinary bullets are ineffective for self-defense. Further, the court reasoned, the regulation only prohibits the sale of hollow-point ammunition within San Francisco, not the use or possession of such bullets. Additionally, the ban on the sale of certain types of ammunition does not prevent the use of handguns or other weapons for self-defense. This regulation, only limits the manner in which a person may exercise Second Amendment rights by making it more difficult to purchase certain types of ammunition. Again, applying the intermediate level of scrutiny, the court looked to the record which included evidence that San Francisco banned the sale of hollow-point ammunition because it is more lethal than other types of ammunition. Because the regulation is a reasonable fit for achieving San Francisco’s goals of reducing the lethality of ammunition, the regulation was found to be constitutional.