San Francisco Handgun Ban FAQ

by Declan McCullagh (declan /at/ well.com)

Created January 9, 2005
Updated December 7, 2006
V1.0d


June 14, 2006 update: The city of San Francisco has lost before a trial judge (opinion) but says it will appeal. Here's the opinion.

April 18, 2006 update: The lawsuit (PDF) is underway.

November 9, 2005 update: The San Francisco Chronicle is reporting that the handgun ban initiative was approved by 58 percent to 42 percent. Next step: a legal challenge.

October 24, 2005 update: The so-called "Coalition Against Prohibition" is holding a press conference at 10am on October 27. And another anti-ban group has set up a web site at sfgunban.com


What does San Francisco's proposed ballot initiative say?
It has two parts. First, it says that "no resident of the City and County of San Francisco shall possess any handgun." Residents would have 90 days to turn them over to the cops -- or face still-to-be-determined punishments for possessing them in their homes, places of business, or anywhere else.

Second, it prohibits the sale of "all firearms and ammunition" inside city limits. Nearly all news reports have been confused about the second portion. The Associated Press was forced to run a "clarification."

When will a vote on the ban take place?
On November 8, 2005.

Who's responsible for the proposal?
Board of Supervisors members Chris Daly, Matt Gonzalez, Bevan Dufty, Tom Ammiano and Michela Alioto-Pier, who drafted the proposal and voted to place it on the ballot. You can find their office phone numbers here. Supervisor-elect Ross Mirkarimi was quoted in a Dec. 17, 2004 San Francisco Chronicle article as saying: "How many more Michael Moore films does it take to tell us that the Second Amendment is absolutely archaic, and other nations do it better than we do?"

Who are you?
I moved to San Francisco in July 2005 and put this FAQ together because I wanted to know how my new home feels about firearms. I write about law and public policy for my day job, though this FAQ is my own effort. While I have my own views on the topic, I've tried to keep the FAQ accurate -- if I've misstated anything, please let me know.

Does the proposed ban have any exceptions?
Yes. Law enforcement officers, members of the military, and security guards are exempted.

Would a ban on handguns reduce crime?
I've spent a decade living in downtown Washington, DC. It has the strictest gun control laws and, at least most years, the highest murder rate. The DC handgun ban was enacted in 1976 and upheld by an appeals court in 1978. You can look at these raw data and get a feel for the trend in DC:
- in 1968, 24 deaths per 100,000
- in 1978, 28 deaths per 100,000
- in 1988, 59 deaths per 100,000
- in 1998, 50 deaths per 100,000

A BBC article from 1998 reported DC's rate was higher, at 69.3 per 100,000. Whichever set of data you prefer, DC easily ranks as the most murderous city in the U.S., Europe, or Russia. Even Moscow, with the Russian mafia running amok, had a murder rate of only 18.1 that year.

Will San Francisco also see murder rates double if the ban is approved?
This is the subject of considerable debate. It may depend in part on the details of the San Francisco ban. DC's was very restrictive and sharply limited residents' ability to possess rifles and shotguns in their own homes. One difference is that San Francisco is not going that far.

Wait -- does the proposed ban affect ownership of rifles or shotguns?
The ban on mere possession would only affect handguns. It will remain (for now, at least) legal to own rifles or shotguns.

If the San Francisco handgun ban is approved, will it be upheld by the courts?
Probably not, but it's hard to say. We do know the ordinance will be challenged in court by Second Amendment groups and individual gun owners. The short answer is that the state of California prohibits municipalities from enacting their own firearm laws in this area. But there are some possible loopholes.

Why do you say that -- are there any court precedents?
Yes. In the 1960s, San Francisco enacted an ordinance requiring the registration of most firearms inside the city limits. The California Supreme Court upheld the requirement in Galvan v. Superior Court in 1969, saying:

"We find that the legislature has not adopted a uniform statutory scheme governing gun registration, that the absence of provisions governing registration does not reflect a legislative intent to prohibit local registration, that the San Francisco gun law imposes no undue burden on transients, and that the differing community needs for gun registration within the state justify local regulation of the subject."

In response, the California legislature enacted a law that shifted control of firearm regulation to Sacramento. That law said "it is the intention of the legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms" and that "such provisions shall be exclusive of all local regulations."

Have there been any cases since that state preemption was put into place?
Two are especially relevant. San Francisco lost both times. First, the city tried to circumvent the state law by requiring anyone who wanted to buy a concealable firearm to ask the police for permission. In that case, Sippel v. Nelder, an appeals court ruled "that the ordinance here involved, insofar as it purports to regulate the licensing or registration of firearms, is invalid."

The second case is better known. San Francisco banned possession of handguns by enacting an ordinance in June 1982. The ordinance exempted the handful of people granted permits by the SFPD under Penal Code Sec. 12050 but did not exempt the average city resident who wanted to have a gun in his or her home or business for safety reasons. Mere possession was punished by a prison term of up to six months.

That case was called Doe v. City and County of San Francisco (136 Cal. App. 3d 509) and was decided by an appeals court in October 1982. The court acknowledged that local governments could regulate some aspects of firearms possession, but ruled against the city on two grounds. First, the court found the ordinance was directly preempted ("The San Francisco Handgun Ordinance does create a license requirement for one seeking to possess a handgun at home, and therefore conflicts with Penal Code section 12026"). Second, the court said even if the ordinance would not have been directly preempted, it was still obvious what the state meant: "It strains reason to suggest that the state legislature would prohibit licenses and permits but allow a ban on possession."

Read that last sentence again. It is still good law today (the California Supreme Court did not take the case and the appeals court declined two requests for a re-hearing). It is what could doom San Francisco's most recent efforts.

Then why are they trying again?
Well, voting to place an ordinance on the ballot doesn't cost the city supervisors anything, and may even get them votes. They also don't pay for the lawyer bills if they lose; city taxpayers do. But the best answer probably is that the city made some relatively minor changes to the ordinance's requirements and structure that they hope will help it survive in court this time.

Are there any cases that buttress San Francisco's arguments?
I'm familiar with one, which UCLA law professor Eugene Volokh also has pointed out.

It arose out of a West Hollywood ordinance that banned the sale of so-called "Saturday Night Specials," relatively inexpensive <$100 handguns that tend to be of inferior quality. The final ruling in the case came from the California appeals court in September 1998:

"The legislature has expressly declared that the City may not require the licensing or registration of firearms. (Gov. Code, Sec. 53071.) The legislature has also declared that the city may not require permits or licenses to purchase, own, possess, keep, or carry a pistol, revolver, or other firearm capable of being concealed within a place of residence, place of business, or on private property lawfully owned or lawfully possessed. (Pen. Code, Sec. 12026.) The legislature has also declared that the city may not regulate the sale of 'imitation' firearms. (Gov. Code, Sec. 53071.5.) This, however, is the extent of the fully preempted fields.... It is quite clear that the legislature has not expressly preempted the area of local regulation of handgun sales."

If that analysis were applied to the proposed San Francisco ban, the city might be able to get away with its first part of the ban (banning firearm sales and transfers) but not the second part (banning handgun possession).

Michael Pelletier points to the Great Western v. Los Angeles and Nordyke v. King opinions from the California Supreme Court, saying they "gutted" statewide preemption in 2002. I haven't had a chance to read them yet.

What does the state preemption say, exactly?
"No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident." (Penal Code Sec. 12026)

Summarized, that paragraph says "no permit or license" can be required for a legal resident of California to own a gun at home or at work.

What about the Second Amendment? Doesn't that prohibit San Francisco from doing this?
Perhaps in theory, but it seems unlikely that California courts will rule that way. If any case involving San Francisco ever ends up in the U.S. Supreme Court (also unlikely) we might see a different outcome. But another case challenging Washington, DC's handgun ban may get there first -- see this writeup by Bob Levy of the Cato Institute and an October 2004 followup.

Doesn't California already regulate handguns?
Yes. California residents are required to register their handguns with the California Department of Justice. Few states have this requirement.

Might San Francisco get a copy of handgun registrations and send police door-to-door to confiscate weapons?
I don't know. For any confiscation to happen, the ballot initiative would have to be approved, San Francisco would have to defend its ordinance successfully in court, and it would have to obtain somehow the list of handgun owners, possibly over the state's objection. I would note that the San Francisco Chronicle reported in 2003 that California state officials were apparently misusing federal databases to hunt down Californians who may have bought guns in other states and brought them in.

What about other states' laws?
California shares its longest border with Nevada, which has some of the least restrictive firearm laws in the country. No permit is required to purchase a rifle, shotgun, or handgun; firearms are not licensed nor are their owners registered. Background checks are not done on private purchases of firearms from individuals. See the NRA's state law writeup or one from the Brady Campaign. Nevada's laws affect the enforceability of a handgun ban in any California city.

Might there be any other economic impact, beyond crime?
Perhaps. The San Francisco Examiner reported on Dec. 17, 2004 that a downtown auction house called Bonhams and Butterfields "generates millions of dollars auctioning off antique arms and modern sporting guns." That would end.

I noticed a weird thing in the text of the proposal. It only restricts city residents from possessing handguns, right?
Good eye. Visitors may possess handguns legally as long as they follow other applicable laws. This was probably put in to make the law less susceptible to a challenge under the U.S. Constitution's Commerce Clause.

Is this related to the .50 caliber rifle ban?
No. You can see this New York Times article for details on the .50 caliber law.

Should I vote for the ballot measure?
That's your decision. Make up your own mind. I recommend reading what the Pink Pistols have to say about firearms and self-defense, especially their San Francisco chapter.

Do you have the complete text of the ordinance?
Yes. Here it is, thanks to publicola:

SAN FRANCISCO GUN BAN INIITIATIVE Prohibiting firearms distribution and limiting handgun possession.
Initiative ordinance prohibiting the sale, manufacture and distribution of firearms in the City and County of San Francisco, and limiting the possession of handguns in the City and County of San Francisco.


Be it ordained by the People of the City and County of San Francisco:
Section 1. Findings
The people of the City and County of San Francisco hereby find and declare:
Handgun violence is a serious problem in San Francisco. According to a San Francisco Department of Public Health report published in 2002, 176 handgun incidents in San Francisco affected 213 victims in 1999, the last year for which data is available. Only 26.8% of firearms were recovered. Of all firearms used to cause injury or death, 67% were handguns.
San Franciscans have a right to live in a safe and secure City. The presence of handguns poses a significant threat to the safety of San Franciscans.
It is not the intent of the people of the City and County of San Francisco to affect any resident of other jurisdictions with regard to handgun possession, including those who may temporarily be within the boundaries of the City and County.
Article XI of the California Constitution provides Charter created counties with the "home rule" power. This power allows counties to enact laws that exclusively apply to residents within their borders, even when such a law conflicts with state law or when state law is silent. San Francisco adopted its most recent comprehensive Charter revision in 1996.
Since it is not the intent of the people of the City and County of San Francisco to impose an undue burden on inter-county commerce and transit, the provisions of Section 3 apply exclusively to residents of the City and County of San Francisco.

Section 2. Ban on Sale, Manufacture, Transfer or Distribution of Firearms in the City and County of San Francisco
Within the limits of the City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms and ammunition shall be prohibited.
Section 3. Limiting Handgun Possession in the City and County of San Francisco
Within the limits of the City and County of San Francisco, no resident of the City and County of San Francisco shall possess any handgun unless required for professional purposes, as enumerated herein. Specifically, any City, state or federal employee carrying out the functions of his or her government employment, including but not limited to peace officers as defined by California Penal Code Section 830 et.seq. and animal control officers may possess a handgun. Active members of the United States armed forces or the National Guard and security guards, regularly employed and compensated by a person engaged in any lawful business, while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment, may also possess handguns. Within 90 days from the effective date of this section, any resident of the City and County of San Francisco may surrender his or her handgun at any district station of the San Francisco Police Department, or to the San Francisco Sheriff's Department without penalty under this section.
Section 4. Effective Date
This ordinance shall become effective January 1, 2006.
Section 5. Penalties
Within 90 days of the effective date of this section, the Board of Supervisors shall enact penalties for violations of this ordinance. The Mayor, after consultation with the District Attorney, Sheriff and Chief of Police shall, within 30 days from the effective date, provide recommendations about penalties to the Board.
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.
Section 7. Severability
If any provision of this ordinance or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications or this ordinance which can be given effect without the invalid or unconstitutional provision or application. To this end, the provisions of this ordinance shall be deemed severable.
Section 8. Amendment
By a two-thirds vote and upon making findings, the Board of Supervisors may amend this ordinance in the furtherance of reducing handgun violence.