Legal History
A look at a decision in the Ninth Circuit where The People lost.

Today, that lose is a win. The Ninth and, by reference, the Seventh have given The People powerful case law to fight the rogue states and courts.
(1600 words)

Sometimes bad case law gets unusually good results.

This appeal raises the question whether two of San Francisco’s firearm and ammunition regulations, which limit but do not destroy Second Amendment rights, are constitutional. We conclude that both regulations withstand constitutional scrutiny, and affirm the district court’s denial of Jackson’s motion for preliminary injunction.
Espanola Jackson V. City and County of San Francis, 746 F.3d 953 (9th Cir. 2014)

We can see just how well the Ninth Circuit honors the constitution. The unqualified command is “shall not be infringed”. It doesn’t say “shall not be destroyed”. The arrogance of these rogue judges drives me mad.

The law being challenged was a gun storage law and a ban on hollow point ammunition. The Ninth made interesting findings about the conduct implicating the Second Amendment. They then said that since the infringement didn’t destroy the Second Amendment protected right, that intermediate scrutiny should be applied.

Having decided on intermediate scrutiny, the state merely stated that they believed it would be good for the state, and the Ninth gave the infringement their stamp of approval.

We aren’t concerned about Jackson losing, that is done with, we care about the findings that we can use today.

Do Arm Storage Laws Implicate the Plain Text of the Second Amendment?

First, we ask whether section 4512 regulates conduct “historically understood to be protected” by the Second Amendment “right to keep and bear arms.” Chovan, 735 F.3d at 1136, 1137. In analyzing the scope of the Second Amendment, we begin with the list of “presumptively lawful” regulations provided by Heller. See 554 U.S. at 626–27; see also Chovan, 735 F.3d at 1137. Section 4512 resembles none of them, because it regulates conduct at home, not in “sensitive places”; applies to all residents of San Francisco, not just “felons or the mentally ill”; has no impact on the “commercial sale of arms,” and it regulates handguns, which Heller itself established were not “dangerous and unusual.” 554 U.S. at 626–27.
id. at 14

This amplifies the power of Thomas’ Bruen opinion. Notice that the Ninth Circuit wasn’t looking at the plain text. They were looking for the “shortcuts”. The rogue inferior courts took “presumptively lawful” from dicta and used it to justify any challenge that they could stuff into that category.

We also use a Supreme Court defined shortcut. If the conduct touches fingers with the Second Amendment, and the conduct involves an arms ban, then we can use the Heller shored up by Caetano to say “There are more than 200,000 in use for (presumptively) lawful purposes, it cannot be banned”.

If the storage law had resembled any of the “presumptively lawful” infringements, then the Ninth would have stopped there.

The power of the Bruen decisions is that it is simply “Does it implicated the plain text of the Second Amendment?” This is not a difficult test. Prior to Bruen the rogue inferior courts did it all the time, they presumed it was protected conduct, then slapped down The People by claiming the state had good reason to be raping them, only a little bit.

Here, the Ninth says that arms storage laws do not resemble any of the presumptively lawful infringements.

They then move on to “history and tradition”.

Nor does section 4512 resemble the prohibitions discussed in “historical evidence in the record before us.” Chovan, 735 F.3d at 1137 (internal citation omitted). Heller discusses two founding-era laws which regulated the storage of firearms and gunpowder. See 554 U.S. at 631–32. First, it notes a 1783 Massachusetts law that prohibited residents of Boston from taking loaded firearms into “any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building.” Id. at 631 (quoting Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts p. 218.) Heller indicated that this statute should be construed narrowly in light of its context, “which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the ‘depositing of loaded Arms’ in buildings.” 554 U.S. at 631. Heller also concluded that the Massachusetts law was an outlier that contradicted “the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home.” Id. at 632. With respect to “gunpowder-storage laws,” Heller noted they “did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home.” Id. Because Heller rejected the probative value of this evidence, these historical precedents do not establish that San Francisco’s requirement is historically longstanding.
id. at 15

This is a gigantic win for The People within the Ninth Circuit. Here, the Ninth has explicitly stated that gun storage regulations effect conduct covered by the Second Amendment.

Having determined that section 4512 regulates conduct within the scope of the Second Amendment, we now turn to the second step of the inquiry: deciding what level of heightened scrutiny to apply to the ordinance. The level of scrutiny depends upon “(1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on the right.” Id. at 1138 (internal quotations omitted).
id. at 16

This is not a presumption that the conduct is within the scope of the Second Amendment, this is a determination.

But what about the second step? Well, let’s listen to Justice Thomas for a moment:

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2127 (U.S. 2022)

What this means is that under the Ninth’s profoundly erroneous methodology, the conduct was still within the scope of the Second Amendment. The state failed to bring forth any historically relevant analogous regulations. This means that under Bruen the plaintiffs (good guys) win the challenge.

Prohibition on the Sale of Hollow-Point Ammunition

Applying the two-step analysis outlined above, we first ask whether a prohibition on the sale of hollow-point ammunition regulates conduct “historically understood to be protected” by the Second Amendment “right to keep and bear arms.” Chovan, 735 F.3d at 1136–37.
Espanola Jackson V. City and County of San Francis, 746 F.3d at 24

Again, under Bruen the question is not “understood to be protected” but, instead, within the scope of Second Amendment protections.

As the Ninth Circuit proceeded in Jackson, it is the burden of the plaintiffs to prove that the conduct was understood to be protected. It is now that the conduct is presumptively protected, and it is the state’s burden to prove a history and tradition.

The Second Amendment protects “arms,” “weapons,” and “firearms”; it does not explicitly protect ammunition. Nevertheless, without bullets, the right to bear arms would be meaningless. A regulation eliminating a person’s ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose. Cf. Heller, 554 U.S. at 630 (holding that “the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional”). Thus “the right to possess firearms for protection implies a corresponding right” to obtain the bullets necessary to use them. Cf. Ezell, 651 F.3d at 704 (holding that the right to possess firearms implied a corresponding right to have access to firing ranges in order to train to be proficient with such firearms). Indeed, Heller did not differentiate between regulations governing ammunition and regulations governing the firearms themselves. See 554 U.S. at 632. Rather, the Court considered the burden certain gunpowder-storage laws imposed on the Second Amendment right, and determined that they did not burden “the right of self-defense as much as an absolute ban on handguns.” Id. This observation would make little sense if regulations on gunpowder and ammunition fell outside the historical scope of the Second Amendment.
id. at 24–25

The Ninth is doing a fantastic job here of telling us why things no explicitly listed in the constitution are still considered protected rights. The fact that they cite to Ezell out of the Seventh Circuit is even more powerful.

Conducting our historical review, we conclude that prohibitions on the sale of ammunition do not fall outside “the historical understanding of the scope of the [Second Amendment] right.” Id. at 625. Heller does not include ammunition regulations in the list of “presumptively lawful” regulations. See id. at 626–27, 627 n.26. Nor has San Francisco pointed to historical prohibitions discussed in case law or other “historical evidence in the record before us” indicating that restrictions on ammunition fall outside of the historical scope of the Second Amendment. Chovan, 735 F.3d at 1137 (internal quotation omitted).
id. at 25

Even using their arse first methodology, the Ninth explicitly states that ammunition is an arm as protected by the Second Amendment.


The rogue inferior courts learned quickly to not make “determinations” and “conclusions” regarding Second Amendment challenges. Instead, they pretend to be magnanimous, say the conduct is presumptively protected by the Second, then proceed to allow the state’s infringement to stand based on “legislative findings”.

Today, every one of these admissions by the Circuit courts that some conduct was within the scope of the Second Amendment is another arrow in our quiver. Jackson and Ezell are both cases that can be used to attack magazine bans.


Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Rhonda Ezell V. City of Chicago, No. 10-3525 (7th Cir. Jul. 12, 2011)
Espanola Jackson V. City and County of San Francis, 746 F.3d 953 (9th Cir. 2014)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)

H/T Judge Benitez.

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