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San Francisco Handgun Possession Ban Is Preempted by State Law,

says the California Court of Appeal, and so is the provision banning transfers of all firearms and ammunition in San Francisco. The panel vote was 3-0, and it affirmed a 2006 trial court decision that took the same view.

Thanks to Terence Edwards for the pointer, and congratulations to Chuck Michel, Don Kates, Glenn Roberts and Thomas Maciejewski on the victory.

Happyshooter:
I am shocked. Not that the decision is the law, but that a cali court followed the law on this issue.
1.9.2008 4:42pm
Mark Field (mail):
Whew. Thank God we have courts to protect us all from those beknighted democrats (small d) who think they know how to run their own lives.
1.9.2008 4:42pm
Anderson (mail):
We thus miss an opportunity to find out whether, if guns are outlawed, outlaws really *would* be the only ones with guns.
1.9.2008 4:46pm
K Parker (mail):
Anderson,

DC and Chicago already show us what we need to know on that subject, don't they?
1.9.2008 4:52pm
wrangler5 (mail):
Doesn't the recent experience in Great Britain also offer some lessons on the effects of disarming the law-abiding public?
1.9.2008 5:00pm
Anderson (mail):
I thought the D.C. ban wasn't implemented yet? And I confess to not knowing anything about a gun ban in Chicago. Though they *have* executed fewer killers lately!
1.9.2008 5:00pm
Kazinski:
The DC gun ban was implemented and enforced for 30 years. Reasonable people can argue how much harm the gun ban did, there isn't much argument that it didn't do any good.
1.9.2008 5:09pm
K Parker (mail):
Dude, the D.C. ban has been in place for two decades! The reason it's in the news now is that there's been a legal challenge to it. Chicago's has been in place nearly as long, though I don't think it's quite as stringent as DC's.
1.9.2008 5:10pm
K Parker (mail):
Oops, Kazinski is right about the time scale. My, how the decades fly!

Anderson, I'll just give you the obvious advice that if you don't know anything about a topic, it's safer to not comment about it.
1.9.2008 5:11pm
Tony Tutins (mail):
The Chicago ban was not an explicit ban. Years ago, Chicago required all handguns to be registered. They quit taking new registrations in the early 80s. So, that's only a ban on those who've moved to Chicago, or came of age past 1983 or so.
1.9.2008 5:13pm
DiverDan (mail):
I'm shocked that the idiotic San Francisco voters thought that they could get away with such a draconion limitation on liberty. I'm really appalled that the Petitioners in this case almost certainly had to eat the legal fees involved in getting the ban thrown out. Just one more reason why we really need the English Rule (Loser Pays All Fees) if we ever hope to have real justice from our judicial system.
1.9.2008 5:15pm
ejo:
well, the michigan post-concealed carry law trends show gun crime going down, not up. not that the real world concerns the gun banners.
1.9.2008 5:25pm
WHOI Jacket:
But, don't worry. Great Britain is on top of it, with Knife Control!



1.9.2008 6:04pm
WHOI Jacket:
One should really get the [link] button fixed



"Call for tough knife laws after teen death"

1.9.2008 6:07pm
WHOI Jacket:
gah

it's too late for this. Just google "knives destroy lives" and the BBC stories from Jan 5th.
1.9.2008 6:08pm
EIDE_Interface (mail):
Billy clubs destroy lives. Ban them. Along with 2x4 wood planks.
1.9.2008 6:10pm
Eugene Volokh (www):
Mark Field: The S.F. ordinance involved legislators running other people's lives.
1.9.2008 6:11pm
D Palmer (mail):
The ban here in Chicago is not as stringent as DC, but handguns are totally illegal as are (I believe) the sale of any kind of firearm or amunition.

It is rare these days to find a gun dealer in one of the first ring suburbs either. typically to purchase a handgun you would have to go several miles outside the city limits to do so.
1.9.2008 6:22pm
KeithK (mail):

I'm shocked that the idiotic San Francisco voters thought that they could get away with such a draconion limitation on liberty.


You don't know much about SF, do you? :-)
1.9.2008 7:01pm
Roy:
if knives destroy lives what about broadsheets?
1.9.2008 7:11pm
whit:
let's not forget... SF is the same city where the chief executive took it upon himself (as king of the people's fiefdom by the bay) to go against state law and the will of the california voters by not merely ignoring the ban on same sex marriage, but by facilitating, encouraging the violation of this law.

disclaimer: i am not against SSM. i AM against the mayor's actions.
1.9.2008 7:28pm
MarkField (mail):

Mark Field: The S.F. ordinance involved legislators running other people's lives.


I've never seen legislation which doesn't. Perhaps those laws banning gay marriage and denying housing to those without citizenship papers don't involve "running other people's lives", but they sure get defended a lot as expressions of citizen rule.

Let's be clear: what the court did here is what courts are supposed to do. The point of my post was to expose the hypocrisy of those on this site (not you) who repeatedly lecture us about how the courts are usurping the role of legislators when they strike down laws those posters happen to like. I'm sure they'll be showing up any minute to protest this decision.
1.9.2008 7:50pm
David M. Nieporent (www):
The point of my post was to expose the hypocrisy of those on this site (not you) who repeatedly lecture us about how the courts are usurping the role of legislators when they strike down laws those posters happen to like.
Of course, I don't know anyone -- maybe Lino Graglia (not that I know him) -- who opposes judicial review.

What people complain about is when courts usurp the role of legislators in striking down laws without any basis for it besides the personal preference of the judge.
1.9.2008 7:53pm
Tony Tutins (mail):

It is rare these days to find a gun dealer in one of the first ring suburbs either.

Yes, when the City of Chicago sues you as a public nuisance, and various community groups run campaigns to shut you down, staying in business is hard. Trying to sell guns in Cook County buys you a lot of trouble.
1.9.2008 7:58pm
NickM (mail) (www):
The court struck down a municipal ordinance on the ground that it violated a state law explicitly barring municipalities from passing ordinances of that sort. I don't even think Graglia opposes that sort of judicial review.

Nick
1.9.2008 8:04pm
A. Zarkov (mail):
San Francisco tried this before. I think it was in the 1980s, and with the same ultimate result: the courts found state law preempted local law. BTW at the time the SF city attorney argued that a "ban" was not regulation, and since state preempted regulation, a ban was ok.

Mark Field:

State preemption makes a lot of sense in some cases. Berkeley California once tried to outlaw the use of electroconvulsive therapy within the city limits. The courts held that ordinance invalid because the state is supreme with regard to regulation of medical practice. If we let the cities decide medical matters, we get chaos. Imagine if your city decided that you shouldn't take a certain medication (for your own good of course). Your doctor can prescribe it, and the drug store can sell it outside your city, but you can't use it.
1.9.2008 8:05pm
Brian K (mail):
Yes, when the City of Chicago sues you as a public nuisance, and various community groups run campaigns to shut you down, staying in business is hard. Trying to sell guns in Cook County buys you a lot of trouble.

sounds an awful lot like adult businesses and bars.

oh...my mistake. they're nothing alike...conservatives approve of those laws/government actions.
1.9.2008 8:13pm
Brian K (mail):
i should also add abortion centers and planned parenthood facilities. i don't know how i forgot that one.
1.9.2008 8:15pm
Cactus Jack:

"What people complain about is when courts usurp the role of legislators in striking down laws without any basis for it besides the personal preference of the judge."


But in such cases, there is rarely direct evidence of the judge deciding the case on personal preference (and there's usually an opinion that sets out a plausible, if not reasonable, legal argument), only an inference of such behavior. And that inference is often explained as "I think this law is clearly good, so the judge MUST be imposing her policy preferences on the constitution."

To be fair, people of all ideological colors levy this complaint from time to time and neither side is any more reasoned than the other.
1.9.2008 9:11pm
David M. Nieporent (www):
But in such cases, there is rarely direct evidence of the judge deciding the case on personal preference
I can think of one bit of evidence: instead of the judge citing the text of a constitutional provision, he cites an emanation. Or a penumbra.
1.9.2008 9:14pm
Tony Tutins (mail):
Brian K: the gun store I was thinking of was actually across the highway from a strip club and clip joint, famous for the CPA who dropped $440K over a two year period buying drinks for the "girls" (one turned out to be a man). The only problem I have with bars is the patrons who loudly stumble out of them at 2AM. But unlike bars and aborticenters, most stores that sell guns also sell camping equipment, skateboards, fishing tackle, running shoes, basketballs, bikes, coolers, canoes, and exercise gear as well. Further, their clientele is the entire family, they expect repeat business through the year, and their hours permit their neighbors at least eight hours of sleep.
1.9.2008 9:30pm
Tony Tutins (mail):
DNN: I prefer the earlier Harlan phrasing to emanations from a penumbra: "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." (Dissent from denial of cert. in Poe v. Ullman)
1.9.2008 9:34pm
MarkField (mail):

I prefer the earlier Harlan phrasing


I've always liked that passage by Harlan. I also like the 9th Amendment.


Of course, I don't know anyone -- maybe Lino Graglia (not that I know him) -- who opposes judicial review.

What people complain about is when courts usurp the role of legislators in striking down laws without any basis for it besides the personal preference of the judge.


Ah, one of the guilty parties raises his hand. Your "explanation" won't serve as a passport to credulity, though.


Mark Field:

State preemption makes a lot of sense in some cases.


Agreed. I have no problem with the doctrine in general or in this case.
1.9.2008 9:46pm
Cactus Jack:
"I can think of one bit of evidence: instead of the judge citing the text of a constitutional provision, he cites an emanation. Or a penumbra."

My point exactly. And should SCOTUS discover the individual RKBA that's hidden in plain sight, I expect to hear equally vacuous sniffling about the court disregarding the phrase "a well-regulated Militia being necessary to the security of a free State" from your colleagues on the other side of the spectrum and will accord their views with an equal amount of weight.
1.9.2008 9:59pm
Brian K (mail):
The only problem I have with bars is the patrons who loudly stumble out of them at 2AM. But unlike bars and aborticenters, most stores that sell guns also sell camping equipment, skateboards, fishing tackle, running shoes, basketballs, bikes, coolers, canoes, and exercise gear as well. Further, their clientele is the entire family, they expect repeat business through the year, and their hours permit their neighbors at least eight hours of sleep.

planned parenthood provides many services other than abortions and certainly doesn't have "patrons who loudly stumble out of them at 2am". I had the facility that opened recently in aurora in mind when i made that post (i too live in chicago).

many bars have a restaurant component to them that serves entire families (similar to the yardhouse that is in glenview). but, quite frankly, that is a very weak argument. if it that was all that the opposition was concerned about, existing noise statutes would take care of it and there would be no laws along the lines of "bars/clubs/adult businesses can't be within 1000 ft of a school/church/park/etc." (zoning prohibits adult entertainment from being within 1,000 feet of a house of worship, residence, school or recreational facility.) the problem is not the noise, it is that there is a bar selling alcohol or women are mostly naked or abortions are being performed. I can see no principled reason why you (a general you, not necessarily you specifically) think it is not okay to try to restrict where guns can be sold but that is okay to restrict where planned parenthood can locate facilities or where bars and clubs can be located. (and no, not all bars have noise problems...i lived 2 floors above one for a year and never had any noise problems with the exception of my neighbor's drum set)

i also have to question why you think that bars, clubs, adult business, planned parenthood, etc. don't expect to get repeat business.
1.9.2008 10:32pm
Jmaie (mail):
I'm not familiar with Chicago's policy, but it sounds as if sales of firearms are restricted anywhere within city limits. Please correct me if I'm wrong.

If so, the comparison to restricting bars within 1000' schools is not quite apt.

I have no ethical problem with topless bars, having spent an hour or two there in younger days. As a parent I would rather not have to explain to my small children what goes on in such places. Hence I would support keeping such establishments away from areas where children commonly frequent. Does this qualify as a principled reason?
1.9.2008 11:40pm
Brian K (mail):
Does this qualify as a principled reason?

that depends. would you allow others to use that same rational to keep out establishments and businesses that they think have a negative impact on their children even if you disagree? to use the topic of this post: if you think people should be able to freely buy weapons*, would you give someone who doesn't want their children exposed to guns the same deference that you expect them to give to your belief that children should be exposed to naked women? would you support a ban on the sale of guns near children?

(*if this is not an accurate assumption, then substitute any similar belief into the sentence)
1.10.2008 12:33am
Brian K (mail):
correction:

...belief that children should not be exposed to naked women?
1.10.2008 12:34am
Hoosier:
Just great . . .
Now how is San Fran *ever* going to shed it's reputation as a free-shootin' cowboy town full of right-wing gun nuts?
1.10.2008 11:33am
Carl in Chicago (mail):
Chicago's laws differ from DC's laws in some respects.

Both municipalities require registration for any firearm.

DC closed their registry for handguns in 1976 while Chicago closed theirs in 1982. So, both municipalities have de facto handgun bans.

DC requires a license to carry a handgun...which applies also to movement of such firearm from room to room in your home. Chicago has no such requirement.

DC also requires arm to be disassembled or trigger-locked, with no exemption to render operable even in the case of violent attack (self defense). Chicago has no such requirement.

Chicago's ordinance is also pre-empted by a law in the Illinois Criminal Code, which says that justified self-defense is an affirmative defense against prosecution for violation of any specific municipal firearm prohibition (which for handguns include Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park). Many of the same, plus other, municipalities also prohibit so-called assault weapons and/or standard capacity mags that hold >10 rounds.

At any rate and for example, it violates Chicago code to keep an unregistered handgun in the city, yet if that handgun is used in justified self defense (per IL Crim code), you cannot be prosecuted for violating Chicago's prohibitive ordinance. DC has no such "twist" surrounding their prohibitive law.

That said...Chicago's next.
1.10.2008 1:36pm
Jmaie (mail):
Brian K - Would I give the same deference? Depends on the restriction.

Zoning gun shops away from schools might be reasonable. That is a far cry from the (de facto) elimination of legal handgun purchase and ownership.
1.11.2008 12:34am
Brian K (mail):
Jmaie,

I would then agree that you are holding a principled position on one condition: that you don't believe it is right to ban strip clubs regardless of where they are located.

I don't agree with your position (wrt to naked women, not gun ownership), but that was never a criteria for determining if it is principled.
1.11.2008 1:28am
Andy Freeman (mail):
> The point of my post was to expose the hypocrisy of those on this site

That's nice, but does it tell us whether the legislation in question is good or not? To put it another way, how is their hypocrisy relevant?

I'll be happy to stipulate that the person quoted is a better person than his opponents but I don't see how that's relevant.

How about each person stipulating, for the purposes of the argument, that he or she is a bad person and then arguing the situation on its merits? Surely the goodness of the legislation doesn't depend on the personal attributes of its supporters or its opponents.
1.11.2008 10:50am
K Parker (mail):
Brian K,
I would then agree that you are holding a principled position on one condition: that you don't believe it is right to ban strip clubs regardless of where they are located.
He just said he could support a certain amount of location-based zoning-out of gun shops, and this is your reply? I don't think you're reading him...
1.11.2008 12:52pm
Brian K (mail):
K Parker,

I don't understand your comment. If i'm misreading him, then can you elaborate?

He said he supports restricting strip clubs to areas where children don't frequent in order to protect the kids. The position here is that protection of childrens' minds is worth restricting the liberty of adults. When I asked him if he would allow others to use the children defense to restrict adult liberties that he doesn't think should be restricted, he answered "[z]oning gun shops away from schools might be reasonable." I took this to mean that if a group tried to ban gun shops from close to children then he wouldn't oppose it. If you're reading it a different way, then please explain.

and if I am misreading him, then he is not holding a principled position. if you expect other people to give up liberties to protect your children, then you shouldn't have a problem when other people try to restrict your liberties to protect their children. (i am obviously expecting some common sense to be used here. i don't expect to respect the belief of a parent who puts their child in physical harm or at risk for severe mental problems.) to do otherwise is to hold that I have a right to protect my children, but you don't have a right to protect yours which is not a principled position.
1.11.2008 2:41pm
Jmaie (mail):
I don't support banning either one, and can't see how my posts would suggest otherwise.

I was attempting to draw a distinction between zoning laws which cause minor inconvenience (having to drive an extra half mile to purchase a pistol) and a ban on ownership within city limits.

I don't agree with your position (wrt to naked women, not gun ownership), but that was never a criteria for determining if it is principled.

I am curious what you perceive my position to be, with regards to naked women.
1.11.2008 8:31pm
Brian K (mail):
I don't support banning either one, and can't see how my posts would suggest otherwise.
Which is why I was curious as to how K Parker thought I was misreading you.

I am curious what you perceive my position to be, with regards to naked women.
Based on this sentence: "As a parent I would rather not have to explain to my small children what goes on in such places." it seems to be that small children shouldn't be told what happens in a strip club. am i incorrect? i disagree in that I don't think it matters one way or the other.
1.11.2008 11:01pm
Jmaie (mail):
Now I'm curious whether you have kids of your own. I'm guessing not, but I could be wrong.

It matters because I value my daughters' innocence, by which I mean that they will be exposed to the seamier side of life soon enough without learning about strip clubs now. It is not that I think there will be harm done, just that there is no upside to it.
1.12.2008 12:23am
Brian K (mail):
I don't. I'm basing my opinion on how I was raised. My parents never shied away from telling us stuff, but they were always careful to put what they told us into a proper perspective so that we would learn something (or at least not ask any follow up questions).
1.12.2008 12:42am
Jmaie (mail):
I'm willing to bet your opinion may change when/if you have kids. Time will tell.

Well, we've hijacked this thread enough, have a good night.
1.12.2008 2:12am