SAN FRANCISCO (CN) - Gun owners fighting a Silicon Valley suburb's ban on high-capacity ammo magazines told the 9th Circuit Monday that they are being deprived of their rights to protect themselves.
The three-judge panel heard arguments on a ruling by U.S. District Judge Ronald Whyte, who refused to block the ban from taking effect in December this year.
The ban embodied in voter-approved Measure C gave Sunnyvale gun owners until March 6 this year to turn to police in all gun magazines holding more than 10 rounds.
Measure C was a response to several violent mass shootings: at Sandy Hook Elementary School in Connecticut in December 2012, and the Colorado movie theater massacre in July 2012.
Sunnyvale gun owner Leonard Fyock and five others sued the city in December 2013, claiming the confiscatory ban violates the Second Amendment, as it includes no exemption for law-abiding citizens seeking to defend themselves with massive firepower.
Attorneys for the gun owners said Whyte was wrong in ruling that the government's interest in public safety and preventing mass shootings outweighed the relatively light burden on Sunnyvale residents' right to bear arms.
"The district court concluded that these magazines are protected by the Second Amendment, yet nonetheless concluded that they may be prohibited entirely," Fyock's attorney Erin Murphy said. "Those two conclusions are fundamentally incompatible. Once something is within the scope of the Second Amendment, then flatly prohibiting it is not an option."
Murphy said repeatedly that the law was not "tailored" enough to achieve the government's purpose.
Judge Michael Daly Hawkins asked Murphy how she would tailor the ordinance.
Murphy replied: "A much more tailored approach is to target the individuals who would misuse them instead of the blanket approach instead of taking the magazines out of the hands of individuals ..."
Daly cut her off: "How would you do that?"
"There are many laws that do so, laws such as felony possession restrictions, laws that require people to safely store their firearms so that they can be stolen by individuals who would misuse them," Murphy said. "I'll concede there is a little bit of a difficulty when you're talking about mass shootings, which this law is particularly aimed at, because generally that's less of a crime that has to do with deterrence and is generally committed only once."
"Right, and many of the people who have been perpetrators have not had criminal records," Judge Johnnie B. Smith said.
Murphy said the ordinance should have tried to identify and tighten restrictions on people most likely to commit crimes with high-capacity magazines, instead of "taking them away from everybody, even though the vast majority of individuals certainly aren't trying to use these magazines to perpetrate crime let alone to perpetrate mass murder."
Defending the ordinance, attorney Roderick Thompson said the law "does nothing to dispossess people from arms; it does nothing to categorically prevent anyone from using a firearm."
Thompson said city residents are well within their rights to have as many 10-round ammo clips as they want in their homes, but that "there is not a shred of evidence that large capacity magazines are necessary for self defense." He added:" The vast majority of firearms work just as well."
Visiting Judge Barbara Lynn from the Northern District of Texas asked Roderick: "What's the evidence that the magazine with a capacity of 11 kills more and injures more than a magazine with 10 bullets? Because it's just a question of reloading."
Roderick said that in 62 mass killings, most of the shooters used high-capacity magazines.
"In Sandy Hook, 30-round magazines were used," Roderick said. "In the Aurora, Colorado movie theater shooting, where 58 people were killed, the killer could do that because he had a 100-round magazine and never had to reload."
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