Wednesday, March 12, 2014

Sunnyvale's Magazine Limit Ban Might Get Heard?

Shall Not Be Questioned and Of Arms and the Law are both reporting that the Sunnyvale, California magazine limit ordinance has received some Supreme Court attention:
It was challenged in US District Court, with a motion for preliminary injunction (to stay enforcement of the law while the case was under consideration). The District Court denied the motion, which was appealed to the Ninth Circuit, which also denied it. That denial was in turn appealed to the U.S. Supreme Court.

I'd have given it low odds there -- the Supreme Court is unlikely to trouble itself with whether a city ordinance should be stayed for the months necessary to dispose of a case. But in the latest development, Justice Kennedy (who handles emergency motions from the Ninth Circuit) ordered the city to respond by 5 PM tomorrow.
This is quite curious.  It suggests that Justice Kennedy is quite interested in this case.  While it might not be an indication that Justice Kennedy considers the challenge to the ordinance unconstitutional, if he really thought that there was nothing to the challenge, it is a darn odd reaction. 

The magazine limit laws are among the silliest of the gun control measures out there, because they are very broad (affecting not just criminals, but all law-abiding adults), and at the same time, because they exempt police officers (and sometimes even police officers with their off-duty weapons), they have two additional problems:

1. If the magazine ban is for public safety, why exempt police officers?  Are 15 round magazines suddenly not a public safety hazard when a police officer has them?

2. Why do police officers, and often police officers who are off-duty, get special treatment under the law?  We are talking about something that the courts have ruled is a fundamental human right.


  1. Professor Reynolds has lately been making an interesting point - that special carve-outs of onerous regulations that abridge rights is a title of nobility, and as such is unconstitutional...

    I doubt this idea will get much traction with the nobility of the bar, since it would limit their total immunity for their actions, but 20 years ago not many people thought Second Amendment law had much chance.

  2. It's a clever idea, but that's pretty clearly not what the Framers meant by titles of nobility. There is a stronger case to be made that when the government treats some people differently than others, it has to have some reason stronger than, "We think it makes sense." If states can't treat same-sex marriage differently than heterosexual marriage, why should they be allowed to treat police officers special?

  3. Clayton, I find it interesting that you stated " but that's pretty clearly not what the Framers meant by titles of nobility." Our founding father's were quite literate, and wrote a lot about their thoughts on the Constitution. However, the courts treat the Constitution as a "Living Document" thus some of the decisions seem to not be in the vein of the original writings.

    Just sayin'.

  4. " thus some of the decisions seem to not be in the vein of the original writings."

    What a droll way you have of understating the situation!

  5. If I was a little bit smarter and a bit better with words, I would not be so droll.

    Also, more people would like me and I'd have more blog readers.

    Or something like that. Just pretend I said something witty and we'll leave it alone.