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Tuesday, June 13, 2006 

San Fran Gun Ban in the Can

As seen on Volokh, the San Francisco gun ban has been struck down by a state trial court. Measure H, as it was known, was placed on the ballot last November and passed with 58% of the vote. The ban would have stopped handgun sales and possession by residents in the city of San Francisco.

The decision, linked here, was not much of a surprise. In 1982, the year of my glorious birth, a California appeals court struck down a similar San Francisco gun ban. The problem with the ban, aside from its stupidity, is that it conflicts with a CA state law. I guess the view is that the regulation of guns is seen as an issue for the state governments, so municipalities cannot regulate here. Strangely enough, CA courts have allowed some more limited gun bans, like West Hollywood's ban on Saturday Night Specials. It's all a matter of degree, I suppose.

Just as a quick federalism note, this is not a 2nd Amendment case. This is a state case decided under CA state laws. The Bill of Rights, which was originally only applied to the federal government, has been applied to the states. The idea is called incorporation. However, the entire Bill of Rights has not been incorporated yet. If my memory serves me, the 2nd Amendment, the 3rd Amendment, and the Grand Jury Clause of the 5th Amendment have yet to be explicitly incorporated against the states. Never expect the law to make a shred of sense.

There hasn't really been a big 2nd Amendment case before the Court in decades. It's possible that one will work its way up though. There is a similar gun ban case in the DC Circuit right now (it's the Washington DC gun ban, that's why it's in federal court). The piecemeal process of incorporation is really odd. I know that there is not much outcry to get the 3rd Amendment incorporated, but still. It's the principle of the thing. I realize that the 2nd Amendment is a hot button issue to some people because they don't like those icky guns. However, the Court shouldn't be worried about that. If the Bill of Rights is to be applied to the states via the 14th Amendment, apply the whole thing.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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