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9th Circuit's San Francisco Gun Ruling: Correct Review Standard?

By William Peacock, Esq. on March 31, 2014 | Last updated on March 21, 2019

This was a curious case. San Francisco passed a pair of laws, one regulating storage of firearms in one's home, one banning the sale of hollow-point ammunition in the city. Note the narrowness of the laws, with the safe storage requirement (in a safe, or with a trigger lock) applying only when the gun isn't on one's person, and the ammo restriction applying to the sale, but not possession or use.

Because of the mildness of the restrictions, the Ninth Circuit upheld the laws, applying a vague form of "intermediate scrutiny," the application of which has been questioned by many.

What Standard Was Applied?

You're required to lock up your guns when they aren't on your person (even if you live alone), but this doesn't impinge on your right to defend yourself with your firearm because "a modern gun safe may be opened quickly," and the law only burdens the "manner in which persons may exercise their Second Amendment rights," akin to a "content-neutral speech restriction that regulates only the time, place, or manner of speech."

Sound mushy? How about hollow-points? The restriction "prohibits only the sale of hollow-point ammunition within San Francisco, not the use or possession of such bullets." Again, the same "content-neutral" speech language pops up in the so-called intermediate scrutiny that was applied by the panel.

Is Intermediate Scrutiny the Correct Standard?

Obviously, the NRA doesn't think so. In a press release that promised en banc and SCOTUS petitions, the NRA argued that the "subjective 'intermediate scrutiny' framework allows political and personal bias to creep into the law making and judicial review process, and effectively creates a toothless and overly deferential review of government infringements on Second Amendment rights."

Professor Eugene Volokh also chimed in, arguing that the "court does purport to offer some protection here under intermediate scrutiny," but "it isn't really providing the protection that it's promising." He'd prefer a substantial burden test instead.

And then there's Judge Carlos Bea, who argued for strict scrutiny in his dissent in United States v. Chovan, the Ninth Circuit case cited by the panel as support for the version of intermediate scrutiny applied here.

"The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow [...] The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment's contours are drawn by the Constitution, and not by Congress."

The Supreme Court has yet to weigh in on an appropriate standard of review, other than the lengthy historical and textual analysis used in Heller, and mimicked in the Ninth Circuit's landmark concealed carry case, Peruta v. San Diego.

We want to hear from you, however. What's the appropriate standard of review? Does "content neutral" and "time, place, and manner" have any, well, time place or manner in Second Amendment jurisprudence? Sound off on Facebook or on Twitter.

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