It will be interesting to hear what, exactly. the courts will say, this time out.
If the San Francisco Handgun Ban law somehow DOES stand up in court, I think many people — myself definitely included — will be utterly shocked. It’s my impression that many people who voted in favor of Proposition H thought they were voting for some kind of “symbolic” measure, which had no chance at all of actually becoming law.
Background/Context: last month, 60% of San Francisco voters supported Proposition H, which, among other things, bans the sale or possession of handguns in the City and County of San Francisco. From the San Francisco Voter Guide:
Proposition H is an ordinance that would ban the manufacture, distribution, sale and transfer of firearms and ammunition within San Francisco.
Proposition H also would prohibit San Francisco residents from possessing handguns within San Francisco. An exception would allow residents to possess handguns if it is required for specific professional purposes. For example, San Francisco residents who are security guards, peace officers or active members of the U.S. armed forces would be permitted to possess handguns.
The Board of Supervisors would be required to enact penalties for violation of this ordinance.
Proposition H would take effect January 1, 2006. Until April 1, 2006, residents could surrender their handguns to any district station of the San Francisco Police Department or the San Francisco Sheriff’s Department without penalty.
Of course, the new law was challenged almost immediately. Like many people, I initially felt pretty certain that Prop. H would be struck down on appeal, just as the 1982 San Francisco Handgun ban was. (The text of that 1983 appeals court decision is here.)
But digging a little deeper I noticed that the 1983 decision actually held that “local governmental bodies” like the City of San Francisco are NOT, in the court’s opinion, “prevented” by State law “from regulating all aspects all aspects of the possession of firearms.” The Court of Appeals actually struck down San Francisco’s 1982 handgun ban primarily based on a concern over LICENSING. From the 1983 decision:
…the more troubling question is whether the [1982] San Francisco Handgun Ordinance merely regulates possession or instead constitutes a licensing ordinance in violation of the express preemption of Government Code section 53071.
The San Francisco ordinance does not mention the word “license” or “permit” and it does not establish a licensing procedure of any kind (unlike the ordinance struck in Sippel v. Nelder (1972) 24 Cal.App.3d 173, 101 Cal.Rptr. 89). However, it exempts from the general ban on possession any person authorized to carry a handgun pursuant to Penal Code section 12050. Thus, its effect is to create a new class of persons who will be required to obtain licenses in order to possess handguns
It was this question of “City creating a new class of persons who will be required to obtain licenses” that was the deal-breaker, it seems, in the eyes of the 1983 court.
The authors of Prop H have tried to get around this deal-breaker by writing the following language into the text of the new San Francisco Handgun Ban law. (The entire text of the law is in PDF form here, if you want to read it for yourself):
Section 6. State Law
Nothing in this ordinance is designed to duplicate or conflict with California state law. Accordingly, any person currently denied the privilege of possessing a handgun under state law shall not be covered by this ordinance, but shall be covered by the California state law which denies that privilege. Nothing in this ordinance shall be construed to create or require any local license or registration for any firearm, or create an additional class of citizens who must seek licensing or registration.
If the courts accept this as dealing sufficiently with the licensing issue, then it appears that there’s at least a chance that the courts may actually affirm the City’s latest Handgun Ban law.
A reminder, perhaps, to “be careful what you vote for.”
UPDATE: Here’s a window into how Prop H. passed with such big numbers. It comes from a Handgun Ban supporter, who describes attempting to persuade “undecided” voters with the following reasoning: “…it might only be symbolic anyway, kind of like schools and the military, in the sense that even if we voted ‘yes,’ it would still be a court that made the decision (but ONLY if we voted yes, so ‘let’s vote yes and leave the choice to someone who deals with crime and it’s tributaries for a living – a judge.’) People who were undecided REALLY responded to that…”
Great.
UPDATE: Welcome California Conservative readers. The outcome of the legal challenge to San Francisco’s handgun ban law will certainly have statewide (and probably nationwide) implications. I’d welcome comments from anybody that has an opinion or insight into the upcoming court battle.
UPDATE: The San Francisco Chr0nicle had a front-page story on this issue today (12/05/05): “Some citizens fear for safety if courts uphold S.F.’s voter-approved ban on handguns”.
UPDATE: Stephen Chapman of the Chicago Tribune is less than impressed with Prop. H. In a column entitled “San Francisco’s Pointless Handgun Ban, he writes that the new law is akin to “fighting alcoholism by prohibiting beer sales to Mormons.” Chapman makes several valid points in his enjoyable piece, but his contention that the new law “clearly” conflicts with the California constitution is debatable, after reading the actual 1983 decision. Stay tuned.
December 6th, 2005 | Politics, SF Politics & Culture