By Allen Thompson, Esq.
UPDATE: Justice Kennedy has denied the requested injunction, according to SCOTUSblog.
UPDATE: The City of Sunnyvale responded before the 3 pm deadline, arguing that the residents had not met their burden required to enjoin enforcement during the pendency of the appeal. Read the Response here.
Several residents of Sunnyvale, California, have filed a request with the Supreme Court of the United States, asking Justice Anthony Kennedy to stay the Order of the Ninth Circuit Court of Appeals denying them injunctive relief. The residents had challenged Sunnyvale’s ordinance prohibiting the possession of so-called “high-capacity” magazines capable of holding more than ten rounds.
While the U.S. District Court for the Northern District of California stated in its introduction that
magazines having a capacity to accept more than ten rounds . . . are hardly central to self-defense . . . [and] . . . [t]he right to possess magazines having a capacity to accept more than ten rounds lies on the periphery of the Second Amendment . . .,
it later held that these magazine were protected by the Second Amendment. Fyock v. City of Sunnyvale, C-13-5807-RMW, slip op. at 2, 9 (N.D.Ca. 2013). After its analysis of whether the magazines were protected, it concluded that
[i]n sum, Sunnyvale’s ban on possession of magazines having a capacity to accept more than ten rounds implicates the Second Amendment’s protections . . . . Thus, the court finds that the Sunnyvale ordinance prohibits average, law-abiding citizens from possessing protected arms that are not dangerous and unusual. As such, Sunnyvale’s ban burdens conduct protected by the Second Amendment.
Fyock, at 10. (Emphasis added). However, the court then determined that the law was not particularly burdensome, since it determined that banning a particular type of magazine was not the same as the sort of ordinance at issue in Heller, which completely banned handguns. The court did not address Heller’s statement that banning a particular type of protected firearm was not permissible so long as other types of protected firearms were available. See, Heller, 554 U.S. 570, 629 (2008) (“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed”).
After the District Court refused to issue the preliminary injunction, the residents appealed to the Ninth Circuit for an emergency injunction, which was denied. They then appealed to the U.S. Supreme Court to grant an injunction during the pendency of the appeal.
The truly concerning part of the District Court’s ruling is its fundamentally flawed analysis. Once the court determined that these specific magazines were protected by the Second Amendment, the fact that all magazines were not banned by the ordinance should have become irrelevant. It is notable that the court did not say that larger capacity magazines were not protected by the Second Amendment and then proceed to uphold a total ban on them – rather, it upheld a total ban on the exercise of what it admitted was a Constitutionally protected right, since the ordinance allowed ownership of some magazines. As the Supreme Court noted in Heller, however, the availability of other Constitutional rights is irrelevant to whether a particular right is being burdened.
This is equivalent to saying that some political speech may be completely banned, so long as speech, in general, is not banned. While the Supreme Court has upheld regulations and certain limitations on speech, such as time, place, and manner restrictions, and has held that certain locations have greater protections than others (public forums, for example), it has never held that protected speech may be completely banned throughout a municipality.
On a final, procedural note, the residents are not asking the Supreme Court to hear the case on its merits. They are merely asking the Court to (1) grant an injunction against the enforcement of the ordinance until the District Court makes a full decision on the merits (the District Court only denied the preliminary injunction) or (2) stay the decision until the issues can be briefed further for the Court. According to SCOTUSblog, Justice Kennedy has asked for a response from Sunnyvale, due Wed., March 12, by 3 pm.