San Francisco Gun Law|Fought in 9th Circuit

SAN FRANCISCO (CN) - Attorneys argued before the 9th Circuit over whether a San Francisco law goes too far in requiring the lockup of handguns not being carried on a person.

Espanola Jackson, the NRA and others sued the city and county of San Francisco in 2009, seeking to block enforcement of a 2007 ordinance that requires the setting of handguns on trigger lock.

The plaintiffs claimed that requiring handguns to be rendered "inoperable at all times," makes it impossible for people to use guns for self-defense, "particularly in urgent, life-threatening situations."

U.S. District Judge Richard Seeborg refused to issue an injunction against the law in November 2012, noting the plaintiffs "candidly acknowledge" that they sought an injunction partly as "an attempt to obtain a legal ruling, one way or the other, that would permit appellate review."

The dispute centered on the U.S. Supreme Court ruling in District of Columbia v. Heller, which struck down a similar ordinance.

The Supreme Court found that requiring gun owners to use trigger locks "makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional."

But Seeborg found that "Heller left too much unsettled for it to dictate a particular result" in this case.

"Against the backdrop of evolving law, and in the absence of controlling precedent, the conclusion emerges that plaintiffs have failed to show a probability of success on the merits of their claims that the challenged ordinances are constitutionally infirm," Seeborg wrote.

The judge noted that "law in this arena undoubtedly will continue to develop," with more precise analytical standards for Second Amendment challenges.

On appeal to the 9th Circuit, attorney C.D. Michel had harsh words for the city ordinance.

"Ultimately, we're left with the city's true motivation," Michel wrote in a reply brief. "It does not 'trust' its law-abiding adults to exercise their constitutional rights within their own homes."

The plaintiffs argued in the brief that the District Court should have shifted the burden of proof to San Francisco, and that the court's analysis of the Second Amendment was flawed.

At oral arguments last week, Michel told the three-judge panel that lockboxes for guns can take time to remove at night, which can mean the "difference between life and death." Self-defense, the attorney said, is a central component to the Second Amendment.

"The city's saying you can exercise your right to self-defense, but you have to do it with one hand tied behind your back," Michel said.

Judge Milan Smith was skeptical.

"It seems like you're trying to treat this ordinance as if it were a complete ban on the ability of a person to exercise his or her Second Amendment right," Smith said. "I'm struggling with that. I'm not seeing where that exists."

Michel said the plaintiffs were looking for more viable or less intrusive alternatives to the ordinance, such as one that would not require a gun to be locked.

The attorney argued that the delay created by the ordinance decreases the chances of a person surviving a home invasion.

Arguing for the city and county of San Francisco, attorney Christine Van Aken said the challenged ordinance creates "only the modest requirement" that handguns be locked up when not being carried in hand or in a holster.

The ordinance, Van Aken said, applies only to handguns, and allows people to carry loaded guns in their homes.

Judge Sandra Segal Ikuta asked Van Aken how burdensome the storage ordinance is, and what sort of tools should be used to deal with it.

Van Aken said the San Francisco law is no harsher than other ordinances.

"It's hard to see how you're in control of a handgun while you're unconscious," the attorney said, adding that "modern storage tools are nearly instantaneous."

The fact that gun safes may malfunction is "merely a set of hypotheticals," Van Aken said.

A hypothetical situation in which a gun owner may be disarmed because of the regulation is not enough to apply strict scrutiny in deciding the case, he added.

California law requiring a 10-day waiting period to buy a gun would be jeopardized by strict scrutiny of the regulation in question, Van Aken said.

"That is complete disarmament for a person who doesn't already own a gun," the attorney told the panel.

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