Monday, June 30, 2008

NRA v. San Francisco Housing Authority

Flush from their success before the Supreme Court, the NRA has vowed to challenge gun control laws it views as violative of the Second Amendment around the country. Two of the ones which were mentioned frequently after the Supreme Court released the decision in District of Columbia v. Heller, were San Francisco and Chicago.

The suit against San Francisco was filed on Friday before the U.S. District Court for the Northern District of California.

Now, it first might be helpful to explain what the Heller decision actually says. Written by Justice Scalia, the decision essentially states that the 2nd Amendment of the U.S. Constitution is a personal right. It is not a right which is dependent on being an active member of an organized militia. The reason why, argues Justice Scalia, is that when the Amendment was written certain terms had slightly different meanings than they do now. In 1789, militia effectively meant any able-bodied (male) person who could hold a weapon and use it as part of an organized militia. (Interestingly, he also argues that the "free state" term in the Amendment refers to a free politiy instead of a political entity. While I agree with the first definition the second one seems a little bit of a stretch.)

In striking down the District of Columbia law, the Justice Scalia's majority opinion made it clear that they were not making 2nd Amendment an exception under American law, i.e. that there were no limits on it. Within the opinion, he stated that the States and Federal government could limit the rights of felons and the instance to own firearms. He also stated that reasonable time and place limitations could be placed on the keeping of firearms (District of Columbia v. Heller, (2008) slip op. 07-290 at 54.) Specifically, the opinion states,

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
So, while the right is personal, and cannot be taken away, it can be limited as to when and where the firearms may be brought. Blanket bans are unconstitutional.

Now, the NRA has brought suit against the San Francisco Housing Authority, the City and County of San Francisco, as well as other entities which help enforce San Francisco's ban on firearms. Under San Francisco's ban, passed last August, firearms are prohibited from generally everywhere in the city that is not private property (including public buildings of the city and county, parks, and public housing operated by SFHA), unless you fall into one of the exceptions. These exceptions including police officers, military personnel, private guards, and "honorably retired Federal officers and agents of Federal law enforcement". It also curtails sales of weapons and ammunition except for a gun club/firearms range.

What the law does not do is ban ownership of firearms by private citizens in their own homes. It does not criminalize them for transporting their own weapons on city streets or sidewalks.

Now, although the gun advocates have won a significant victory with the Heller decision, that does not mean that suddenly San Francisco's gun ban on county property going to go away. There are significant differences between the Heller situation and the law in San Francisco. First off, the D.C. law banned all weapons everywhere in the District of Columbia unless you had a special permit that had to be renewed every year. Furthermore, it mandated that for those who were able to obtain the special permit, the weapon must be rendered inoperable or disabled by use of a trigger guard.

San Francisco's law does neither of these things. It only permits firearms on city and county property.

Now, the complaint was filed on behalf of NRA members in the county, including named plaintiff Guy Montag Doe (a pseudonym) for a man who lives in an SFHA unit (and I wonder now, have I ever represented this guy?) who keeps the weapon for protection. The argument goes that Mr. Doe is being denied his right to keep a firearm for self-defense against
particularly against perpetrators of sexual orientation-based hate crimes, i.e. physical attacks on persons perceived as homosexuals, motivated solely by antagonism to them because of their perceived sexual orientation.
(side note... did anyone tell this attorney who picked this guy as the named plaintiff that this is San Francisco? Yes I know hate crimes and discrimination occur, but...)

Looking at the Heller decision, a lot of the law should withstand challenge. It is unlikely that anyone in the U.S. N.D.CA is going to completely strike down this law (or the 9th Circuit). The ban on weapons in county buildings, including schools, will probably remain in effect. The banin those places can be supported by the clear wording of the Heller decision It may be closer as far as weapons in plaza's, parks, and the like, but I think that the courts will probably uphold the ban there as well.

The question, at least in my mind, is how the court is going to deal with guns in public housing. On the one hand, a lot of people live there. On the other, they are not required to live there. Now, although the argument could have been made that gun owners did not have to live in the District of Columbia, that situation was different. Under that law in Heller, nowhere in the District of Columbia could a person own a firearm, even in their own private homes. Under the San Francisco law, the right is not curtailed in private property, only on government property.

Furthermore, there is a host of case law which acknowledges that if you accept public benefits you have to comply with the rules of the benefit programs in order to retain those benefits. People receiving SSDI/SSI have to spend down their assets or forego other types of employment if they want to retain their benefits. People who are receiving aid under Section 8 have to comply with the programs guidelines and re-certify economically periodically. Arguably, both require a person to forgoe property rights that they might have had by earning additional money (i.e. a Fifth Amendment taking does not occur).

While I don't have brief ready to go to court on this one, I am sure some well-qualified attorney over at the San Francisco City Attorney's office is already putting together the case law to write one up on this issue. Basically, I think the NRA is not going to get the law struck down like they think they will.

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