Gun Laws Implicate More Than Just the Second Amendment

Today, the Ninth Circuit Court of Appeals ruled on the constitutionality of several San Francisco firearm regulations, which are part of that city's Firearms and Weapons Violence Prevention Ordinance. Writing for a unanimous three-judge panel, Judge Sandra Ikuta upheld the constitutionality of the rules, violations of which are misdemeanors and carry fines of as much as $1000 and jail incarceration as long as six months.

One of the regulations prohibits the sale of certain types of ammunition (such as hollow point bullets), but the prohibition I want to talk about today deals with in-home storage of privately owned firearms. As the court says:

San Francisco Police Code section 4512 provides that "[n]o person shall keep a handgun within a residence owned or controlled by that person unless" (1) "the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice," or (2) "[t]he handgun is carried on the person of an individual over the age of 18." ...Violations of section 4512 are punishable by a fine of up to $1,000 and up to six months in prison.

Six individual plaintiffs along with the National Rifle Association and the San Francisco Veteran Police Officers Association sued the city and county governments of San Francisco, alleging that the above regulation violates the Second Amendment. The Second Amendment, as you may know, somewhat confusingly states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

To say that the wording of this Amendment has been subject to much debate would be to comically understate history. What matters for the purpose of this post is that the Ninth Circuit applied the analysis used by the U.S. Supreme Court in the case of District of Columbia v. Heller, 544 U.S. 570 (2008), a ruling which defeated very strict gun laws in Washington, D.C. Though the Supreme Court in Heller determined that a D.C. law (which mandated "firearms in the home be rendered and kept inoperable at all times") was a violation of the Second Amendment, the Ninth Circuit ruled that the very similar San Francisco regulation is not.

The purpose of this post is not to second-guess the Ninth Circuit's application of Heller or its ruling, though that can certainly be done. The purpose of this post is to consider exactly how gun regulations like San Francisco's are enforced, and what their true effect really is. Rather than consider the restriction on in-home storage under the language of the Second Amendment, we should consider it under the language of the Fourth Amendment. That Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With that language in mind, consider for a moment how the San Francisco regulation is enforced. How, exactly, are violators exposed? The regulation specifically dictates proper in-home storage of firearms, not their public display, use, or transport. While all laws serve at least the theoretical purpose of encouraging and incentivizing safe (or "good") behavior simply by existing, they can only be effective at that purpose when they can be enforced sufficiently to deter unsafe behavior through punishment of violations.

So, how is the San Francisco regulation enforced? How do local police officers know that someone is not storing their privately owned handgun in the proper way inside their home? The only way for police to expose violators is through searches of people's homes. And the only way those police can lawfully conduct such searches (under the Fourth Amendment) is by having probable cause to suspect some other type of criminal behavior. After all, there is no public behavior by the owner of the handgun (other than perhaps self-reporting to a sidewalk cop) that would expose the precise method of that person's in-home handgun storage.

Let's consider a hypothetical. Bob is a drug dealer. He sells drugs in hand-to-hand exchanges on street corners. He stores drugs in his home. One day, the police observe Bob acting in a way that strongly suggests he is selling drugs, and then the police arrest one of his customers, who rats on Bob. With that information in hand, the police obtain a search warrant for Bob's home, suspecting (reasonably) that he stores his drug supply there. The police execute the search warrant by raiding Bob's house, discover his drug supply, and the rest is a matter of criminal court procedure.

But what if Bob is just a gun owner who keeps his handgun inside his home when he isn't transporting it to a shooting range for target practice? How do the police gain enough information from his public behavior to reasonably suspect his in-home storage method is insufficient under the regulation? Unless a reliable informant rats on him, the police would never gain the kind of information sufficient to search his home simply because he doesn't store his handgun properly. Nothing Bob could do in public would provide that kind of information.

So if someone in San Francisco is to be charged with the crime of improper handgun storage, the police have to find out about it incidentally. They have to be in the home for some other reason. Let's revisit Bob the Drug Dealer for a moment: the police raid his home looking for drugs, and not only do they find a kilo of cocaine, but they also find two loaded handguns without locks sitting on his dining room table. Even if those guns are legally owned, their open, loaded display in the home would be a violation under San Francisco regulations. So now Bob can be charged not only with federal or state drug crimes (the actual reason the police were searching his home), but also with two counts of violating the local handgun storage regulation, which could tack on $2000 in fines and a year in the local jail.

While the purpose of the San Francisco regulation may be the promotion of gun safety, the effect is cumulatively punitive. It just tacks on additional criminal penalties to people most likely already in trouble for something else. For law-abiding citizens, even those willing to follow San Francisco's gun regulations, it imposes restrictions on their in-home behavior for which the state would have no reasonable purpose to monitor or interfere with under the Fourth Amendment. Again, we're talking actual effects of the law, not the purpose of the law, which may or may not be noble.

San Francisco's gun regulations may indeed be constitutional under the Second Amendment (though the Supreme Court may have the final say). Those regulations may also be smart policy in a country with massive gun ownership and a sizable amount of gun violence. And the Fourth Amendment restricts government action, not the language of its laws, so a facial challenge to these regulations under that Amendment would likely be futile. But these regulations, which control strictly in-home behavior and require police searches to expose violators, should at least be viewed by both proponents and opponents through an additional constitutional lens.


A fellow attorney raised a good point in response to this post: what about situations in which the prohibited storage of Bob's handgun results in actual harm to someone? Suppose Bob leaves his handgun loaded and on the dining room table, where his ten year-old son and a friend discover it. Bob's son then picks up the gun and accidentally shoots his friend, who dies. Is a gun regulation like San Francisco's a good way (or the only way) to ensure Bob is punished for his failure to safely store his gun?

Again, it is my contention that such a regulation is cumulative because such a situation already subjects Bob to criminal penalties. Bob could be found guilty of criminally negligent homicide (a form of "manslaughter" in many jurisdictions). Generally speaking, criminally negligent homicide is a reckless oversight that results in the death of another person. Bob could certainly be found guilty of such a crime if he left a loaded handgun within the reach of a young child. That would be the case with or without the additional San Francisco regulation, which strictly prohibits behavior that is not, without some other action, harmful to anyone else. Similarly, the police would have reason to gain entry to Bob's home because of the shooting, not because of any failure to properly store the handgun.

A post more fully exploring this topic can be found here.