SAN DIEGO (CN) — San Diego’s novel ban on so-called ghost guns — non-serialized, unfinished untraceable firearms — got the judicial green light Wednesday to go into effect later this week.
U.S. District Judge Cynthia Bashant, a Barack Obama appointee, declined to issue a temporary restraining order blocking the Eliminate Non-serialized Untraceable Firearms (ENUF) ordinance from going into effect Oct. 23 even though she acknowledged the law, “in both a technical and operational sense,” amounts to a ban.
The ordinance is currently being challenged by individual gun owners along with the San Diego County Gun Owners PAC and Firearms Policy Coalition, who claim the ban not only violates the Second Amendment but state law which allows Californians to assemble their own firearms so long as they apply for a Department of Justice-issued serial number within 10 days of putting together the DIY weapon.
Under the new ordinance, San Diegans can’t possess non-serialized firearms or components — effectively blocking city residents from assembling their own weapons — as unfinished firearms frames or receivers used by DIY gun hobbyists aren’t sold pre-serialized.
“Defendants do not — nor can they — dispute that unlike other Californians, residents of the City will be unable to exercise the option set forth in Section 29180 to manufacture a firearm using unfinished receivers or unfinished frames and apply to the DOJ for a serial number to imprint upon the finished weapon,” Bashant wrote in the 26-page order.
San Diego Mayor Todd Gloria signed the ordinance last month, citing an explosive increase in the number of untraceable ghost guns seized by San Diego police the past two years — most often from people who can’t pass state or federal background checks.
According to the mayor’s office, San Diego saw a 169% increase in the number of ghost guns retrieved and impounded in 2020 compared to the previous year.
This year, the number of ghost guns seized by SDPD officers has already surpassed the number seized in 2019 and 2020 and is expected to double by year’s end.
San Diego City Councilwoman Marni von Wilpert authored the ordinance. She “thanked” the court for denying efforts to block the ENUF ordinance from going into effect Saturday.
“The City of San Diego’s ghost gun ban intends to protect our communities from rising gun violence being fueled by untraceable, non-serialized ghost guns, and I am grateful there will be no delay of its effective date,” von Wilpert said in an email statement.
In their lawsuit, individual gun owner plaintiffs James Fahr, Desiree Bergman and Colin Rudolph claim they possess unfinished frames or receivers to construct a California-compliant ArmaLite 15-style (AR-15) rifle. They say San Diego’s new mandate requires they get rid of the unfinished firearms or risk being charged with a misdemeanor.
But Bashant disregarded that concern, finding the gun owners had failed to demonstrate a likelihood of success on their claims the ordinance amounts to a “blanket prohibition” infringing their Second Amendment right to self-manufacture firearms in common use for self-defense purposes.
She found San Diego’s ordinance was unlike the ones in Washington D.C. overturned by the Supreme Court’s Heller decision, where the Supreme Court found D.C.’s handgun ban prohibited “an entire class of arms” in violation of the Second Amendment.
“The ordinance neither strips persons of access to any serialized, California-compliant firearm, including AR-15s, nor does it prevent persons from assembling any class of California-compliant firearm using pre-serialized frames or receivers,” Bashant wrote.
The “hardware test” applied by the Supreme Court in Heller “would be nonsensical to gun control laws that do not regulate weapons themselves, but some ancillary component or feature, i.e., ammunition or, as here, serialization,” she added.
Bashant found it inappropriate to decide early in the litigation whether the ordinance’s prohibition falls outside the scope of the Second Amendment, noting both sides had provided “scant historical record” in their court filings.
She found the severity of the ordinance’s burden on San Diegans’ Second Amendment rights is minimal.
“The ordinance does not severely burden Second Amendment-protected conduct, but merely regulates it,” Bashant wrote.
She added: “Despite the ordinance’s prohibitions, plaintiffs’ ‘ability to use any and all serialized firearms to defend their homes remains unchanged.’”
The gun owners are represented by attorney Raymond DiGuiseppe. He said in a phone interview his clients are considering appealing the order, but will later be seeking a permanent injunction against the ordinance once the case has been fully briefed.
"It's not an adjudication of the merits of the case or sending us packing out of the courtroom by any means," DiGuiseppe said of the order.
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