This week’s decision by the Ninth Circuit upholding the ban on high-capacity magazines in Sunnyvale, CA, is another post-Heller indication of the way in which most Courts will decide 2nd Amendment cases going forward. Because on the one hand the notion that Americans have the right to defend themselves with guns now appears to be a cornerstone of jurisprudence about gun ownership. On the other hand, there is yet to be a decision which questions the ability of governments at the state and local level to regulate both the determination as to the fitness of individuals to own guns, as well as regulating the types of weapons that can be used.
The Sunnyvale case is different from other magazine-capacity laws recently passed in Connecticut and New York, for example, because it not only bans the sale or transfer of magazine with capacities in excess of 10 rounds, but also requires residents who own such magazines to get rid of them altogether, either by removing them beyond the city’s limits, turning them into the police or transferring them to a gunsmith. In other words, this law, known as Measure C, effectively makes Sunnyvale a hi-capacity magazine-free town. And similar ordinances appear to be going forward in other California jurisdictions, including Los Angeles.
These laws are anathema to the NRA and the pro-gun community for two reasons. First, they represent a growing trend to move the issue of gun control away from Washington, DC and focus gun-control activism at the state and local levels. And while the NRA has no equal at the national lobbying level, gun ownership becomes a vulnerable status in states where a majority of residents don’t own guns. This was clearly demonstrated in last year’s re-election of Connecticut’s Governor, Dannell Malloy, whose support of a restrictive, post-Sandy Hook gun law may have given his campaign a boost in the polls. The gun law pushed through the state legislature by Andy Cuomo also proved to be a non-issue in his re-election last year.
The other problem facing the pro-gun crowd has to do not with the specific rulings per se, but rather the degree of scrutiny that appears to be applied in just about every gun case that reaches the appellate level. Increasingly, Circuit courts are basing their review of lower-court decisions using ‘intermediate’ scrutiny, rather than the ‘strict’ scrutiny that the gun-owning community would prefer. And what is important about this trend is that it is based on the notion, explicitly stated in the Sunnyvale decision, that the law being reviewed reflect “government’s stated objective to be significant, substantial, or important,” which Sunnyvale was able to prove based on its responsibilities to promote public safety.
The problem for the gun folks in this respect is that this approach completely undercuts one of the most cherished notions of current pro-gun arguments, namely, that ownership of a gun is the surest way to make us safe. This has been the mantra of the gun industry ever since the decline in hunting required a new rationale for buying guns, and it is now believed by a majority of Americans whether they own guns or not. But the good news about the American judicial system is that, by and large, jurists don’t usually base their decisions on public-opinion polls. And to the extent that one of government’s fundamental responsibilities remains securing law and order, the primacy of individual citizens to protect themselves, pace the 2nd Amendment, cannot be sustained.
The 9th Circuit ventured directly into this issue by noting that the NRA indicated that most defensive shootings required the crime-stopping shooter to bang off only one or two rounds. I can’t find the link to this report but if it was quoted accurately, it’s a great irony that the NRA finds itself unable to justify the ownership of hi-cap magazines based on its own research into the use of guns for self-defense. Maybe localities considering banning hi-cap mags should also bring in the NRA to testify on their behalf.