1 BRIAN S. KOUKOUTCHOS 28 Eagle Trace 2 Mandeville, LA ... · DOES 1-10, Case No.: CV 13-05351 WHA AMICUS CURIAE BRIEF OF PINK IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY

AMICUS BRIEF OF PINK PISTOLS

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BRIAN S. KOUKOUTCHOS* 28 Eagle Trace Mandeville, LA 70471 Telephone: (985) 626-5052 * Pro hac vice application to be submitted BENBROOK LAW GROUP, PC BRADLEY A. BENBROOK (SBN 177786) STEPHEN M. DUVERNAY (SBN 250957) 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 Attorneys for Amicus PINK PISTOLS

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SAN FRANCISCO VETERAN POLICE OFFICERS ASSOCIATION, LARRY BARSETTI, RAINERIO GRANADOS, ARTHUR RITCHIE, and RANDALL LOW,

Plaintiffs,

vs. THE CITY AND COUNTY OF SAN FRANCISCO, THE MAYOR OF SAN FRANCISCO, EDWIN LEE in his official capacity, THE CHIEF OF THE SAN FRANCISCO POLICE DEPARTMENT, GREG SUHR, in his official capacity, and DOES 1-10,

Defendants.

Case No.: CV 13-05351 WHA AMICUS CURIAE BRIEF OF PINK PISTOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Date: February 13, 2014 Time: 8:00 a.m. Courtroom: 8

AMICUS BRIEF OF PINK PISTOLS.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................................................................................... ii

INTRODUCTION ........................................................................................................................... 1

ARGUMENT .................................................................................................................................. 1

I. THE SECOND AMENDMENT PROTECTS OWNERSHIP OF FIREARMS AND FIREARM

FEATURES THAT ARE IN COMMON USE FOR LAWFUL PURPOSES. ......................................... 1

A. The Second Amendment Protects the Individual Right To Possess Firearms

that Are Commonly Used by Law-Abiding Citizens for Lawful Purposes. ........... 1

B. Heller Forbids Any Form of Interest-Balancing when the Challenged Law

Is a Categorical Ban on Particular Firearms or Their Features That Affects

the Rights of Law-Abiding Citizens. ....................................................................... 2

II. THE BAN ON MAGAZINES HOLDING MORE THAN TEN ROUNDS OUTLAWS A NEARLY

UNIVERSAL FEATURE OF FIREARMS COMMONLY USED FOR LAWFUL PURPOSES. ................ 5

III. BANNING LCMS WOULD DO NOTHING TO REDUCE FIREARMS VIOLENCE AND THUS COULD NOT SURVIVE INTERMEDIATE SCRUTINY EVEN IF IT WERE THE PROPER STANDARD, WHICH IT IS NOT. ........................................................................................... 13

IV. THE SAD TRUTH IS THAT THE ORDINANCE WOULD NOT HAVE PREVENTED THE

ATROCITY THAT SPAWNED IT—THE MASSACRE AT NEWTOWN. ........................................ 16

CONCLUSION ............................................................................................................................. 22


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TABLE OF AUTHORITIES

Cases Page

DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189 (1989)................................ 10

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................................ passim

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ........................................................... 3, 4, 5

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) .................................................... 5

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir.2012).................................................... 4

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ............................................................. 3, 11

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ..................................................... 3, 4, 11, 13, 14

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

714 F.3d 334 (5th Cir. 2013) ................................................................................................... 11

New York State Rifle & Pistol Assoc., Inc. v. Cuomo,

No. 13-cv-291S, 2013 WL 6909955 (W.D.N.Y. Dec. 31, 2013) ........................................ 5, 21

Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748 (2005) .............................................. 10

United States v. Carter, 669 F.3d 411 (4th Cir. 2012) .................................................................. 14

United States v. Chester, 628 F.3d 673 (4th Cir. 2010) .................................................................. 4

United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) .................................................. 3, 4, 5, 14

United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) .............................................................. 4

United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) ......................................................... 4

United States v. Virginia, 518 U.S. 515 (1996) ............................................................................. 13

Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981) ............................................................. 10

Constitutional Materials and Statutes

18 U.S.C. § 922(g)(1) .................................................................................................................... 15

18 U.S.C. § 922(g)(9) ...................................................................................................................... 4

36 U.S.C. § 40701 et seq. .............................................................................................................. 13

Title XI of the Violent Crime Control and Law Enforcement Act of 1994,

Pub. L. No. 103-322, 108 Stat. 1796 (1994) ........................................................................... 14

San Francisco Police Code § 619 .................................................................................. 1, 10, 16, 19

Other

1 WILLIAM HAWKINS, TREATISE OF THE PLEAS OF THE CROWN (1716) .......................................... 1

2013 CMP SALES CATALOG, http://www.odcmp.com/Sales/pdfs/catalog.pdf .............................. 13

Alex Klein, A Look at the Aurora Shooter’s Guns, THE DAILY BEAST (July 22, 2012),

available at www.thedailybeast.com/articles/2012/07/22/a-look-at-the-aurora-shooter-

s-guns-including-the-ar-15.html .............................................................................................. 18


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Brian McCombie, An Inside Look at FBI Handgun Training, in GUNS & AMMO,

HANDGUNS (Aug./Sept. 2013), www.handgunsmag.com/2013/06/20/new-fbi-handgun-

training/ ..................................................................................................................................... 9

BUREAU OF JUSTICE STATISTICS: CENSUS OF STATE AND LOCAL LAW ENFORCEMENT

AGENCIES, 2008 (July 2011), http://www.bjs.gov/content/pub/pdf/csllea08.pdf ..................... 7

Casey Wian, Jim Spellman & Michael Pearson, He Intended To Kill Them All, Prosecutor

in Theater Shooting Says (CNN Jan. 9, 2013), available at http://www.cnn.com

/2013/01/09/justice/colorado-theater-shooting ........................................................................ 18

CENTERS FOR DISEASE CONTROL, Recommendations To Reduce Violence Through Early

Childhood Home Visitation, Therapeutic Foster Care, and Firearms Laws,

28 AM. J. PREV. MED. 6 (2005) ............................................................................................... 16

CHAD ADAMS, COMPLETE GUIDE TO 3-GUN COMPETITION (2012) ............................................... 12

Christopher S. Koper et al., An Updated Assessment of the Federal Assault Weapons Ban:

Impacts on Gun Markets and Gun Violence, 1994-2003, Rep. to the Nat’l Inst. of

Justice, U. S. Dept. of Justice (2004) .............................................................................. 6, 7, 15

Christopher S. Koper, America’s Experience with the Federal Assault Weapons Ban,

1994-2004, in REDUCING GUN VIOLENCE IN AMERICA: INFORMING POLICY WITH

EVIDENCE AND ANALYSIS (Daniel W. Webster & Jon S. Vernick eds., 2013) ........... 15, 16, 21

CIVILIAN MARKSMANSHIP PROGRAM, http://odcmp.com (home page) (last visited Jan. 14,

2014) ........................................................................................................................................ 13

CIVILIAN MARKSMANSHIP PROGRAM, About Us, http://odcmp.com/Comm/About_Us.htm

(last visited Jan. 10, 2014) ....................................................................................................... 13

CNN Wire, Source: Colorado Shooter James Holmes Had 100-Round Rifle Magazine

(July 20, 2012), www.abc15.com/dpp/news/national/source-colorado-shooter-james-

holmes-had-100-round-rifle-magazine .................................................................................... 18

Columbine High School Massacre, WIKIPEDIA, available at http://en.wikipedia.org/

wiki/Columbine_High_School_massacre (last visited Jan. 10, 2014) .................................... 17

Crime in the United States, Violent Crime, 2012, FED. BUREAU OF INVESTIGATION,

www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/violent-

crime/violent-crime (last visited Jan. 10, 2014) ...................................................................... 10

Dale Miles, New M-16 EIC Match Scores a Hit at Nationals, CIVILIAN MARKSMANSHIP

PROGRAM, www.odcmp.org/0904/M-16Match.asp ................................................................ 13

Dan Haar, America’s Rifle: Rise of the AR-15, HARTFORD COURANT (Mar. 9, 2013),

http://articles.courant.com/2013-03-09/business/hc-haar-ar-15-it-gun-20130308_1_

new-rifle-colt-firearms-military-rifle ........................................................................................ 8

Dave Altimari & Jon Lender, Sandy Hook Shooter Adam Lanza Wore Earplugs, HARTFORD

COURANT (Jan. 6, 2013), www.courant.com/news/connecticut/newtown-sandy-hook-

school-shooting/hc-sandyhook-lanza-earplugs-20130106,0,2370630.story ........................... 17

David B. Kopel, “Assault Weapons,” in GUNS: WHO SHOULD HAVE THEM (David B. Kopel

ed., 1995) ....................................................................................................................... 9, 12, 18

DEP’T OF JUSTICE, GUNS USED IN CRIME (1995) ............................................................................. 7


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Dick Metcalf, The Big Boys, in GUNS & AMMO (Jan. 2013) ......................................................... 12

Glock USA company website, http://us.glock.com/products/model/g17 (last visited Jan. 10,

2014) .......................................................................................................................................... 7

GUN DIGEST 2013 (Jerry Lee ed., 67th ed. 2012)........................................................................ 6, 8

GUNS & AMMO, BOOK OF THE AR-15 (Eric R. Poole ed., 2013) ..................................................... 6

GUN: A VISUAL HISTORY (Chris Stone ed., 2012) .................................................................... 7, 19

HANDGUNS: 2013 BUYER’S GUIDE (2013) ....................................................................................... 6

How They Were Equipped That Day, Jefferson County Sheriff’s Office (2000),

www.cnn.com/SPECIALS/2000/columbine.cd/Pages/EQUIPMENT_TEXT.htm .......... 17, 18

PUBLIC INQUIRY INTO THE SHOOTINGS AT DUNBLANE PRIMARY SCHOOL ON 13 MARCH

1996, www.ssaa.org.au/research/1996/1996-10-16_public-inquiry-dunblane-lord-cullen

.pdf ............................................................................................................................... 18, 19, 20

INSTITUTE OF MEDICINE AND NATIONAL RESEARCH COUNCIL, PRIORITIES FOR RESEARCH TO

REDUCE THE THREAT OF FIREARM-RELATED VIOLENCE (Alan I. Leshner et al. eds.,

2013) ........................................................................................................................................ 16

INTERNATIONAL PRACTICAL SHOOTING CONFEDERATION, www.ipsc.org (last visited Jan.

10, 2014) .................................................................................................................................. 12

J. Guthrie, The 300 Blackout Story, in GUNS & AMMO, BOOK OF THE AR-15: 300

BLACKOUT EDITION (Eric R. Poole ed., 2013) ........................................................................ 12

Jason Whong, Enforcement Snarls, Confusion, Paperwork Backlog Blunt Impact of N.Y.’s

SAFE Act, ELMIRA STAR-GAZETTE (Jan. 11. 2014), available at www.star

gazette.com/article/20140111/NEWS01/301110027/Enforcement-snarls-confusion-

paperwork-backlog-blunt-impact-N-Y-s-SAFE-Act ............................................................... 21

Jeffrey A. Roth & Christopher S. Koper, Impact Evaluation of the Public Safety and

Recreational Firearms Use Protection Act of 1994 (Final Report) (Mar. 13, 1997),

www.urban.org/UploadedPDF/aw_final.pdf .......................................................................... 14

JOHN R. LOTT, JR., MORE GUNS LESS CRIME (3d ed. 2010) .......................................................... 15

JOHN R. LOTT, JR., THE BIAS AGAINST GUNS (2003) .................................................................... 15

Joseph von Benedikt, Double Down: Get Your DA Revolver Skills Up to Snuff with These

Pro Tips, in GUNS & AMMO, HANDGUNS (Aug./Sept. 2013) .................................................. 20

JOYCE LEE MALCOLM, GUNS AND VIOLENCE: THE ENGLISH EXPERIENCE (2002) ........................ 11

K.D. KIRKLAND, AMERICA’S PREMIER GUNMAKERS: BROWNING (2013) ................................. 7, 20

Karen E. Crummy, Hickenlooper: Tougher Gun Laws Would Not Have Stopped the

Shooter, THE DENVER POST (July 22, 2012), available at www.denverpost.com/

breakingnews/ci_21132699/hickenlooper-tougher-gun-laws-would-not-have-stopped-

#ixzz21ceXm9R1 .................................................................................................................... 20


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Mary Ellen Clark & Noreen O’Donnell, Newtown School Gunman Fired 154 Rounds in

Less than Five Minutes, REUTERS U.S. EDITION (Mar. 28, 2013), available at

www.reuters.com/article/2013/03/28/us-usa-shooting-connecticut-idUSBRE92R0EM2

0130328 ................................................................................................................................... 19

MASSAD AYOOB, THE COMPLETE BOOK OF HANDGUNS (2013) ...................................................... 7

Matt Apuzzo & Pete Yost, Connecticut Shooter Adam Lanza’s Guns Were Registered

To Mother Nancy Lanza, HUFFINGTON POST (Dec. 15, 2012), available at

www.huffingtonpost.com/2012/12/15/connecticut-shooter-guns_n_2306913.html ............... 19

Mayors Against Illegal Guns, Analysis of Recent Mass Shootings, NYSRPA ECF

No. 81-9 (filed June 21, 2013) ................................................................................................ 21

Michael Remez, A Civilian Version of an M-16: Bushmaster Rifle a Common Choice,

HARTFORD COURANT (Oct. 25, 2002), http://articles.courant.com/2002-10-

25/news/0210252068_1_bushmaster-firearms-john-allen-williams-distributor-in-

washington-state ........................................................................................................................ 8

Mike Lupica, Morbid Find Suggests Murder-Obsessed Gunman Adam Lanza Plotted

Newtown, Conn.’s Sandy Hook Massacre for Years, NEW YORK DAILY NEWS (March

17, 2013), available at www.nydailynews.com/news/national/lupica-lanza-plotted-

massacre-years-article-1.1291408?print .................................................................................. 17

MILITARY SMALL ARMS (Graham Smith ed., 1994) ................................................................. 7, 19

Mother Jones, More Than Half of Mass Shooters Used Assault Weapons and High-

Capacity Magazines (Feb. 27, 2013), NYSRPA ECF No. 81-8 (filed June 21, 2013) ...... 21, 22

N.R. Kleinfield et al., Newtown Killer’s Obsessions, in Chilling Detail,

THE NEW YORK TIMES, Mar. 28, 2013 (listing Lanza’s weapons), available at

www.nytimes.com/2013/03/29/nyregion/search-warrants-reveal-items-seized-at-

adam-lanzas-home.html?_r=0 ........................................................................................... 17, 19

NATIONAL RESEARCH COUNCIL, FIREARMS AND VIOLENCE: A CRITICAL REVIEW

(Charles F. Wellford et al. eds., 2005) .................................................................................... 15

National Trophy Pistol Matches, CIVILIAN MARKSMANSHIP PROGRAM, http://odcmp.

com/NM/Pistol.htm ................................................................................................................. 13

Nick Jacobellis, Carry a Cop Gun, HANDGUNS MAGAZINE (Sept. 24, 2010),

www.handgunsmag.com/2010/09/24/featured_handguns_copcarry_122206 ............................

PAUL M. BARRETT, GLOCK: THE RISE OF AMERICA’S GUN (2012) ................................................. 9

Report of Virginia Tech Review Panel, Chapter VI, available at www.governor.

virginia.gov/tempcontent/techpanelreport-docs/fullreport.pdf ......................................... 17, 20

Susan Candiotti, Colorado Shooter’s Rifle Jammed During Rampage, CNN (July 22,

2012), available at www.cnn.com/2012/07/22/us/colorado-shooting-investigation/

index.html .......................................................................................................................... 18, 20

THE AMERICAN RIFLEMAN GUIDE TO BLACK RIFLES (Michael Humphries ed., 2006) ................... 8

THE COMPLETE BOOK OF AUTOPISTOLS: 2013 BUYER’S GUIDE (2013) ........................................... 8


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UNITED STATES PRACTICAL SHOOTING ASSOCIATION, www.uspsa.org/uspsa-announcements

-details.php?USPSA-shows-record-breaking-membership-numbers-in-2013-112

(last visited Jan. 10, 2014) ............................................................................................................. 12

WILL FOWLER AND PATRICK SWEENEY, WORLD ENCYCLOPEDIA OF RIFLES AND MACHINE

GUNS (2012) .............................................................................................................................. 7

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INTRODUCTION

San Francisco Police Code § 619 (“the Ordinance”) criminalizes the possession of any

“large capacity magazine” (“LCM”), generally defined as “any detachable ammunition feeding

device with the capacity to accept more than ten rounds.” § 619(b). Outlawed LCMs must either

be removed from the City of San Francisco, surrendered to the police, or relinquished to a licensed

firearms dealer. § 619(c)(2). Because the Ordinance outlaws standard firearm magazines that are

“of the kind in common use . . . for lawful purposes,” District of Columbia v. Heller, 554 U.S. 570,

624 (2008) (internal quotation marks omitted), it violates the Second Amendment.

ARGUMENT

I. THE SECOND AMENDMENT PROTECTS OWNERSHIP OF FIREARMS AND FIREARM

FEATURES THAT ARE IN COMMON USE FOR LAWFUL PURPOSES.

A. The Second Amendment Protects the Individual Right To Possess Firearms

that Are Commonly Used by Law-Abiding Citizens for Lawful Purposes.

The firearms protected by the Second Amendment are those “arms ‘in common use at the

time’ for lawful purposes like self-defense.” Heller, 554 U.S. at 624. Conversely, “the Second

Amendment does not protect those weapons not typically possessed by law-abiding citizens for

lawful purposes,” such as sawed-off shotguns or machineguns. Id. at 625, 627. This distinction is

“fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual

weapons,’ ” id. at 627 – a tradition that did not bar “Persons of Quality [from] wearing common

Weapons . . . for their Ornament or Defence, in such places, and upon such Occasions, in which it

is common Fashion to make use of them, without causing the least Suspicion of an intention to

commit any Act of Violence or Disturbance of the Peace.” 1 WILLIAM HAWKINS, TREATISE OF

THE PLEAS OF THE CROWN 136 (1716) (emphasis added). Applying this historical and practical

“common use” test, rather than any nebulous form of multi-tiered scrutiny, Heller struck down the

D.C. ban on handguns: “The handgun ban amounts to a prohibition of an entire class of ‘arms’

that is overwhelmingly chosen by American society for [the] lawful purpose [of self-defense].”

554 U.S. at 628. The Court repeatedly stressed that the Second Amendment’s protection

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encompasses firearms that are “in common use,” “typically possessed,” and “preferred” by law-

abiding Americans for lawful purposes. Id. at 624, 625, 628-29.

B. Heller Forbids Any Form of Interest-Balancing when the Challenged

Law Is a Categorical Ban on Particular Firearms or Their Features That

Affects the Rights of Law-Abiding Citizens.

The Supreme Court has ruled that the line between permissible regulations and

impermissible bans on firearms is not to be established by balancing the individual Second

Amendment right against competing government interests such as public safety, because that

balance has already been struck: the Second Amendment itself “is the very product of an

interest-balancing by the people,” and “[t]he very enumeration of the right takes out of the hands

of government . . . the power to decide on a case-by-case basis whether the right is really worth

insisting upon.” Heller, 554 U.S. at 634, 635 (emphasis in original). Although Heller stated that

the challenged D.C. handgun ban would fail “any of the standards of scrutiny that [the courts have]

applied to enumerated constitutional rights,” id. at 628, the Court made a point of not applying any

of those standards. Instead, the Court categorically struck down the handgun ban after finding it

irreconcilable with the Second Amendment’s text and history: the Second Amendment is

“enshrined with the scope [it was] understood to have when the people adopted [it], whether or not

future legislatures or (yes) even future judges think that scope too broad.” Id. at 634-35 (emphasis

added). Accordingly, the Second Amendment’s scope is to be determined through textual and

historical analysis and any limits on the right must be supported by “historical justifications.” Id.

at 627, 635.

In Heller the Court could find no historical justification for a total ban on possession of

handguns in the home, but it is imperative to recall here that the D.C. ordinance at issue in Heller

was not limited to the ban. Heller also categorically invalidated D.C.’s separate requirement “that

firearms in the home be rendered and kept inoperable at all times” by adding some variety of

“trigger lock” mechanism to the gun, and it did so without subjecting that part of D.C.’s ordinance

to any of the “standards” or “levels” of judicial scrutiny familiar in other areas of constitutional

doctrine. Id. at 630. The Court expressly disavowed the “interest-balancing” proposed by Justice

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Breyer’s dissent, see id. at 634-35, an approach that was in substance, if not in name, a form of

intermediate scrutiny forbidden in Second Amendment analysis. See id. at 704-05 (Breyer, J.,

dissenting) (urging the Court to apply “intermediate scrutiny” precedents). Thus the Court made a

deliberate decision not to employ “intermediate” or any other standard of judicial scrutiny. During

oral argument, the Chief Justice remarked that “these various phrases under the different standards

that are proposed, ‘compelling interest,’ ‘significant interest,’ ‘narrowly tailored’—none of them

appears in the Constitution.... I mean, these standards that apply in the First Amendment just kind

of developed over the years as sort of baggage that the First Amendment picked up.” Tr. of Oral

Arg. at 44, Heller, 554 U.S. 570 (No. 07-290) (Roberts, C.J.). As a result, the rule in Heller

applies when the challenge is not to a ban on a class of firearms, but to a ban on vital features of

firearms, such as restrictions on a gun’s magazine capacity or other features that determine the

efficacy of the firearm’s use for self-defense and other lawful purposes.

If there were any lingering doubt that interest-balancing, whether “intermediate” or

otherwise, is foreclosed by Heller, the Court dispelled it in McDonald v. City of Chicago, 130 S.

Ct. 3020 (2010), when it confirmed that Heller “expressly rejected the argument that the scope of

the Second Amendment right should be determined by judicial interest-balancing.” Id. at 3047

(controlling opinion of Alito, J.). McDonald emphasized that resolving Second Amendment cases

would not “require judges to assess the costs and benefits of firearms restrictions and thus to make

difficult empirical judgments in an area in which they lack expertise.” Id. at 3050. As Judge

Posner wrote in the Seventh Circuit’s decision striking down the Illinois ban on public carriage of

guns for self-defense, “the Supreme Court made clear in Heller that it wasn’t going to make the

right to bear arms depend on casualty counts.” Moore v. Madigan, 702 F.3d 933, 939 (7th Cir.

2012) (citing Heller, 554 U.S. at 636).

The Ninth Circuit, however, has held that at least in certain circumstances a levels-of-

scrutiny analysis may apply to Second Amendment claims. But the Ninth Circuit has

distinguished between claims by individuals who fall outside the “core of the Second Amendment

right,” such as those with a “criminal history”—whose claims are subject to “intermediate rather

than strict scrutiny”—and claims by “ ‘law-abiding, responsible citizens’ ”—whose Second

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Amendment claims “ ‘are entitled to full solicitude under Heller.’ ” United States v. Chovan, 735

F.3d 1127, 1138 (9th Cir. 2013) (quoting Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir.

2011)).1 Thus in Chovan the Ninth Circuit concluded that “ ‘intermediate scrutiny is more

appropriate than strict scrutiny’ ” for Second Amendment claims by plaintiffs who are not

responsible, law-abiding citizens. 735 F.3d at 1135 (quoting United States v. Chester, 628 F.3d

673, 682-83 (4th Cir. 2010)). In contrast, the plaintiffs here are “law-abiding, responsible

citizens,” Heller, 554 U.S. at 635, and San Francisco’s Ordinance restricting their Second

Amendment rights is consequently subject to strict scrutiny. Similarly, the Seventh Circuit has

rejected intermediate scrutiny where the challenged law affected “the gun rights of the entire law-

abiding adult population of Illinois.” Moore, 702 F.3d at 940.2

Thus the rulings of lower federal courts that have applied intermediate scrutiny to laws

affecting felons and others who are outside the Second Amendment’s protection by no means

foreclose application of strict scrutiny—or application of Heller’s historical analysis and

categorical approach—to the Ordinance challenged here. The Ordinance, like the law struck down

1 Chovan rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(9), which bans

“persons convicted of domestic violence misdemeanors from possessing firearms for life.” 735

F.3d at 1129. The Ninth Circuit reasoned that, “ ‘[a]lthough Chovan asserts his right to possess a

firearm in his home for the purpose of self-defense, we believe his claim is not within the core

right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a

weapon for self-defense—by virtue of Chovan’s criminal history as a domestic violence

misdemeanant.’ ” Id. at 1138 (quoting United States v. Chester, 628 F.3d 673, 682-83 (4th Cir.

2010)) (brackets and emphasis omitted).

2 See also Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) (rejecting

intermediate scrutiny when claim is “made by a ‘law-abiding, responsible citizen’ as in Heller”

and “involve[s] the central self-defense component of the right”); United States v. Chester, 628

F.3d 673, 682-83 (4th Cir. 2010) (intermediate rather than strict scrutiny applies because felon’s

“claim is not within the core right identified in Heller—the right of a law-abiding, responsible

citizen to possess and carry a weapon for self-defense”) (emphasis by the court); United States v.

Marzzarella, 614 F.3d 85, 95 (3d Cir. 2010) (intermediate scrutiny applies to claim of a right to

own a gun with its serial number filed off, because no “law-abiding citizen” wants such guns,

which are of value only to criminals “seeking to use them for illicit purposes”); United States v.

Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“[W]e assume that any law that would burden

the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject

to strict scrutiny.”); Kachalsky v. County of Westchester, 701 F.3d 81, 93-94 (2d Cir.2012)

(suggesting a distinction between strict scrutiny for limits on firearms possession and intermediate

scrutiny for limits on carrying firearms in public).

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in Heller, restricts the rights of law-abiding citizens. In addition, “the severity of the [Ordinance’s]

burden on the [Second Amendment] right” is manifest because it is a flat ban on possession of

standard-capacity, commonly owned magazines, and it extends into the home, where the Second

Amendment right is at its zenith. See Chovan, 735 F.3d at 1138; Heller, 554 U.S. at 628, 635.

“Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second

Amendment right—like the handgun bans at issue in those cases, which prohibited handgun

possession even in the home—are categorically unconstitutional.” Ezell, 651 F.3d at 703 (citing

Heller, 554 U.S. at 636, and preliminarily enjoining Chicago’s ban on firing ranges that gun

owners need to practice marksmanship and safe gun handling). San Francisco’s Ordinance is thus

subject to the most exacting Second Amendment scrutiny.

II. THE BAN ON MAGAZINES HOLDING MORE THAN TEN ROUNDS OUTLAWS A NEARLY

UNIVERSAL FEATURE OF FIREARMS COMMONLY USED FOR LAWFUL PURPOSES.

The test is whether firearms equipped with LCMs constitute “arms ‘in common use at the

time’ for lawful purposes like self-defense,” Heller, 554 U.S. at 624, or are instead “weapons not

typically possessed by law-abiding citizens for lawful purposes,” id. at 625. This is not a close

question. Indeed, the only federal Court of Appeals to consider the constitutionality of a ban on

LCMs found that LCMs are in common use. In Heller v. District of Columbia, 670 F.3d 1244,

1261 (D.C. Cir. 2011) (“Heller II”), the panel majority found that “magazines holding more than

ten rounds are indeed in ‘common use,’ as the plaintiffs contend.” The Western District of New

York recently came to the same conclusion; in fact, the State of New York “concede[d] that

[LCMs] are in common use nationally.” New York State Rifle & Pistol Assoc., Inc. v. Cuomo, No.

13-cv-291S, 2013 WL 6909955, at *11 (W.D.N.Y. Dec. 31, 2013) (hereinafter “NYSRPA”).3 At

any rate, the commonality of LCMs should be beyond dispute, because Americans own tens of

3 The Heller II panel and NYSRPA should have stopped there because that is the decisive

issue under Heller. See 554 U.S. at 624-25, 627. Once a court has found that a class of firearms is

“in common use at the time for lawful purposes like self-defense,” id. at 624, those firearms fall

within the scope of the Second Amendment and the court’s work is done where they are being

flatly banned. See id. at 625, 627, 628-29.

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millions of rifle and pistol magazines that hold more than ten rounds. Therefore, such magazines

are “in common use” by any conceivable meaning of the term.4

Indeed, the Ordinance adopts the rhetorical device of calling magazines that hold more than

10 rounds “large capacity magazines” to suggest they are somehow unusual, but this is an utter

misnomer: magazines that hold more than ten rounds are standard equipment on: (i) the

predominant brands of semiautomatic rifles used for both self-defense and recreation, and (ii) the

most common and popular semiautomatic pistols sold in America. The standard-issue magazines

for the most popular semiautomatic rifles hold 30 rounds.5 The standard-issue magazines for a

great many pistols—including the most popular and most commonly owned semiautomatic

handguns—hold more than ten rounds (usually between 15 and 17 rounds).6 Insofar as firearms

equipped with magazines of more than ten rounds are in “common use” for “lawful purposes”—

particularly the paramount “lawful purpose [of] self-defense”—the Second Amendment guarantees

the right of law-abiding, responsible citizens to acquire, possess, and use them. Heller, 554 U.S. at

4 See Christopher S. Koper et al., An Updated Assessment of the Federal Assault Weapons

Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, Rep. to the Nat’l Inst. of Justice, U.

S. Dept. of Justice at 65 (2004) (hereafter “KOPER DOJ REP. 2004”) (estimating that by the year

2000 there were as many as 72 million magazines of more than ten rounds available to the public

in the United States). 5 See GUN DIGEST 2013 268-69, 455-58, 461-64, 497-99 (Jerry Lee ed., 67th ed. 2012)

(listing dozens of common and popular semiautomatic sporting rifles, including AR-15’s AK-47’s,

FN’s, and Ruger models, all with standard magazines ranging from 20-32 rounds); GUNS &

AMMO, BOOK OF THE AR-15 3, 18, 32-33, 52, 70, 82, 146 (Eric R. Poole ed., 2013) (articles and

advertisements for AR-15 rifles that come with a 30-round magazine as standard). 6 See GUN DIGEST 2013, supra note 5, at 415-16 (listing and describing ubiquitous Glock

semiautomatics, including models G17, G22, G23, G26, G27, G31, G32, G33, G34, G35, which

have standard-issue magazines of 17 rounds or more); id. at 409 (Beretta handguns with standard-

issue magazines of 17 rounds or more); id. at 469 (Bersa handguns, 17 rounds); id. at 437 (Dan

Wesson, 21 rounds); id. at 415 (Fabrique Nationale, 17 rounds); id. at 430 (Smith & Wesson, 16

rounds); id. at 426 (Ruger, 17 rounds); id. at 411-12, 436-37 (CZ handguns, 16 to 20 rounds); id. at

413 (European American Armory, 18 rounds); id. at 427-28 (Sig Sauer, 16 rounds); id. at 433

(Taurus, 17 to 19 rounds); id. at 420 (Kel-Tec, 30 rounds); THE COMPLETE BOOK OF AUTOPISTOLS:

2013 BUYER’S GUIDE 93 (2013) (Springfield Armory, 16 to 19 rounds); id. at 93 (Steyr, 12 to17

rounds); id. at 75 (Caracal, 18 rounds); id. at 77 (Witness, 18 rounds). See also HANDGUNS: 2013

BUYER’S GUIDE 11-13, 50-55, 86-123 (2013).

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624; see also id. at 625 (Second Amendment protects firearms “typically possessed by law-abiding

citizens for lawful purposes”).7

The proposition that LCMs are in common use for defense against criminal aggression is

underscored by police department firearms purchases. The six-shot revolvers so familiar from TV

shows of the 1950’s were superseded decades ago.8 Today the nation’s one million law

enforcement agents at the federal, state and local levels9 are overwhelmingly armed with

semiautomatic handguns with standard magazines holding as many as 20 rounds of ammunition.10

“The most popular police handgun in America, the Glock, is also hugely popular for action pistol

competition and home and personal defense.”11

The standard-capacity Glock 17 magazine holds

7 The LCM has been a familiar firearms feature for more than 150 years. The Jennings rifle

of 1849 had a 20-round magazine, the Volcanic rifle of the 1850s had a 30-round magazine, both

the 1873 Winchester and the 1860 Henry had fixed 16-round magazines, the 1898 Mauser

accepted a box magazine of 20 rounds, and the 1903 Springfield accepted a box magazine of 25

rounds. See MILITARY SMALL ARMS 146-47, 149 (Graham Smith ed., 1994); GUN: A VISUAL

HISTORY 170-71, 174-75, 196-97 (Chris Stone ed., 2012). The same is true for semiautomatic

handguns: the 1896 Mauser C/96 could accept a detachable 20-round box magazine, the famous

1908 Luger could accept a detachable 32-round magazine, and the Browning High-Power pistol

designed in 1926 came standard with a 13-round magazine. See GUN: A VISUAL HISTORY, supra,

at 68-69, 81; WILL FOWLER AND PATRICK SWEENEY, WORLD ENCYCLOPEDIA OF RIFLES AND

MACHINE GUNS 138, 141 (2012); K.D. KIRKLAND, AMERICA’S PREMIER GUNMAKERS: BROWNING

31 (2013); MILITARY SMALL ARMS, supra, 89, 96-97. 8 See PAUL M. BARRETT, GLOCK: THE RISE OF AMERICA’S GUN 2-5, 20-21 (2012)

(discussing nationwide transition of law enforcement agencies from revolvers to semiautomatic

pistols with large capacity magazines); id. at 20-21 (discussing eclipse of revolvers by

semiautomatic handguns in marketplace for both police and private citizens); KOPER DOJ REP.

2004 at 81 (80% of handguns produced in 1993 were semiautomatic); DEP’T OF JUSTICE, GUNS

USED IN CRIME 3 (1995) (“Most new handguns are pistols rather than revolvers.”). 9 See BUREAU OF JUSTICE STATISTICS: CENSUS OF STATE AND LOCAL LAW ENFORCEMENT

AGENCIES, 2008 (July 2011), www.bjs.gov/content/pub/pdf/csllea08.pdf. 10

See MASSAD AYOOB, THE COMPLETE BOOK OF HANDGUNS 50 (2013) (discussing

nationwide police transition from revolvers to semiautomatics with large magazines in 1980s and

1990s). 11

Id. at 90. “[T]he Glock 17, in 9x19 [9mm ammunition] is the most widely used law

enforcement pistol worldwide.” See Glock USA company website,

http://us.glock.com/products/model/g17 (last visited Jan. 10, 2014).

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17 rounds of 9mm ammunition.12

Thus police practices confirm that pistols with LCMs are “in

common use” for “lawful purposes like self-defense.” Heller, 554 U.S. at 624.

The same is true for long-arms, including widely issued police patrol rifles such as the AR-

15.13

This is the most popular semi-automatic rifle in the United States and is manufactured by

dozens of companies.14

In the nation as a whole, there are approximately five million such rifles

with standard 30-round magazines; this firearm accounts for 60% of all civilian rifles sold each

year in the United States.15

Thus it is beyond cavil that a semiautomatic rifle with a standard 30-

round magazine is among the “most popular weapon[s] chosen by Americans” for lawful purposes

ranging from hunting to target shooting to self-defense. Id. at 628-29. There are literally millions

of these rifles in private hands, along with tens of millions of their standard 30-round LCMs. Such

LCMs cannot possibly be marginalized as “highly unusual in society” or dismissed as “not

typically possessed by law-abiding citizens for lawful purposes.” Id. at 627, 625. LCMs therefore

fall within the Second Amendment’s protection and may not be outlawed by San Francisco.

There is nothing sinister in private citizens arming themselves with the same firearms and

magazines that ordinary police carry. “While any handgun can be used for self-defense, some are

clearly better than others because of their caliber, capacity, method of operation and quality of

construction,” and the best exemplars of this are the actual “side-arms carried by law enforcement

12

See GUN DIGEST 2013, supra note 5, at 415; Glock USA company website,

http://us.glock.com/products/model/g17 (17-round magazine is standard) (last visited Jan. 10,

2014). 13

See Michael Remez, A Civilian Version of an M-16: Bushmaster Rifle a Common

Choice, HARTFORD COURANT (Oct. 25, 2002), http://articles.courant.com/2002-10-

25/news/0210252068_1_bushmaster-firearms-john-allen-williams-distributor-in-washington-state. 14

See generally GUNS & AMMO, BOOK OF THE AR-15, supra note 5. See also THE

AMERICAN RIFLEMAN GUIDE TO BLACK RIFLES 6 (Michael Humphries ed., 2006) (“The ‘black

rifle’—in its civilian-legal, semi-automatic form—has become a category of firearms extremely

popular with sportsmen, competitive shooters, plinkers and everyday gun owners.”). 15

See Dan Haar, America’s Rifle: Rise of the AR-15, HARTFORD COURANT (Mar. 9, 2013),

http://articles.courant.com/2013-03-09/business/hc-haar-ar-15-it-gun-20130308_1_new-rifle-colt-

firearms-military-rifle; GUNS & AMMO, BOOK OF THE AR-15, supra note 5, at 4.

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officers.”16

“These handguns have a solid reputation for reliability and serviceability and are

almost always good choices for civilians….”17

The firepower provided by magazines of more than ten rounds has proven to be essential in

police encounters with armed criminals. The FBI recently revamped its firearms training program

due to the discovery that 75% of FBI agent shoot-outs involved criminals who were within nine

feet of the agent.18

This tracks the experience of police officers nationwide: 65% of law

enforcement officers who have been murdered in the line of duty were killed by assailants who

were within ten feet of them.19

The problem is that, even at such close ranges, trained police

officers miss their target far more often than they hit it. A study of the Metro-Dade Police

Department in Florida revealed that officers who fired at suspects at these close ranges missed

85% of the time.20

New York City’s police did slightly better: its officers only missed 83% of the

time when the assailant was nine to twenty-one feet away, but when the criminal was within six

feet the police still missed 62% of the time.21

It is little wonder that local governments throughout the United States have concluded that

high-capacity magazines are essential to protect their police officers, even with all their training

and experience, from armed criminals. The virtually universal use of semiautomatic pistols with

LCMs by a million American law-enforcement officers is sufficient by itself to confirm that pistols

with LCMs are “in common use” for “lawful purposes like self-defense.” Heller, 554 U.S. at 624.

If San Francisco were correct that LCMs are useful only for mass slaughter of the innocent, then

surely “such killing machines have no place in the hands of domestic law enforcement.”22

But in

16

Nick Jacobellis, Carry a Cop Gun, HANDGUNS MAGAZINE (Sept. 24, 2010) (emphasis

added), www.handgunsmag.com/2010/09/24/featured_handguns_copcarry_122206. Mr.

Jacobellis is a retired U.S. Customs Agent and New York police officer. Id. 17

Id. 18

See Brian McCombie, An Inside Look at FBI Handgun Training, in GUNS & AMMO,

HANDGUNS (Aug./Sept. 2013), www.handgunsmag.com/2013/06/20/new-fbi-handgun-training/. 19

Id. (considering data from 2002 through 2011). 20

Id. (considering ten years of data). 21

Id. 22

See David B. Kopel, “Assault Weapons,” in GUNS: WHO SHOULD HAVE THEM 176, 202

(David B. Kopel ed., 1995).

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truth, the LCMs that the Ordinance outlaws are essential tools for self-defense, which San

Francisco itself tacitly—but unavoidably—concedes by exempting its police officers’ duty

firearms from the Ordinance’s magazine restriction. See § 619(d)(1).

Moreover, if police officers need that much firepower to defend themselves against armed

criminals, a fortiori law-abiding citizens need the same firepower, if not more.23

Police officers

have many advantages over civilians when it comes to self-defense: (1) they wear bullet-proof

vests; (2) they carry at least two extra magazines on their utility belts; (3) they usually have a

second, back-up pistol hidden away; (4) they have additional firepower available in their patrol

cars, such as a 12-gauge shotgun or a semiautomatic patrol rifle (and the latter is often equipped

with a 30-round magazine); (5) they have additional weapons on their belts, including Tasers,

police batons and chemical weapons such as Mace; (6) they often have a partner in the patrol car

who is similarly armed; and (7) police reinforcements, including paramilitary SWAT teams, are

only a radio call away. Regular civilians do not have those resources, so their need for standard

pistol magazines that hold as many rounds as possible is both acute and undeniable.

It is no answer to say that because the police are so well-armed, citizens need not be. Not

only is that proposition wrong as a matter of law—because the Second Amendment’s right to bear

arms is conferred on private citizens—it is also tragically false as a matter of fact. No citizen

enjoys a constitutional right to police protection from assailants24

and the police are, unfortunately,

but understandably, rarely around when a citizen is being assaulted.25

Nor can the Ordinance be redeemed by pointing to the many firearm magazines that it does

not outlaw. As the Supreme Court ruled in Heller, “[i]t is no answer to say . . . that it is

permissible to ban the possession of handguns so long as the possession of other firearms (i.e.,

23

Id. at 202. 24

See, e.g., Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 757-67 (2005);

DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 197 (1989); Warren v. District

of Columbia, 444 A.2d 1, 3 (D.C. 1981). 25

Consider the crime statistics for 2012: in that year the police were unable to protect the

public from 14,827 murders, 84,376 rapes, 354,520 robberies and 760,739 aggravated assaults.

Crime in the United States, Violent Crime, 2012, FED. BUREAU OF INVESTIGATION, www.fbi.gov/

about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/violent-crime/violent-crime (browse

by violent crime category) (last visited Jan. 10, 2014).

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long guns) is allowed.” 554 U.S. at 629. The same rule applies to the ammunition magazines that

are a vital component of any firearm used for self-defense. “[R]estating the Second Amendment

right in terms of what IS LEFT after the regulation rather than what EXISTED historically, as a

means of lowering the level of scrutiny, is exactly backward from Heller’s reasoning.” Nat’l Rifle

Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 714 F.3d 334, 345 (5th

Cir. 2013) (Jones, J., joined by Jolly, Smith, Clement, Owen, and Elrod, JJ., dissenting from denial

of rehearing en banc) (emphasis in original).

San Francisco cannot justify denying law-abiding citizens the same magazines that are

issued to police officers across the country on the premise that civilians cannot be trusted to use

their defensive firearms responsibly. The fact is that armed civilians—even though they

outnumber police by several orders of magnitude—make far fewer mistakes with their firearms.

Each year there are approximately 30 instances in which an armed civilian mistakenly shoots and

kills an innocent individual who was not actually a murderer, mugger, or similar threat—but

“[o]ver the same period the police erroneously kill five to eleven times more innocent people.”26

The undeniable reality is that civilians are often left to defend themselves, and the Second

Amendment guarantees that they may do so with firearms that are “in common use” and “typically

possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 624, 625.

Semiautomatic pistols and rifles with magazines holding more than ten rounds are among “the

most preferred firearm[s] in the nation to ‘keep’ and use for protection of one’s home and family.”

Id. at 628-29. San Francisco’s restriction on magazine capacity—an essential feature of defensive

gun use—is just as unconstitutional as the D.C. handgun ban struck down in Heller or the D.C.

requirement that handguns be accessorized with a trigger lock, which was also categorically struck

down. Here, as in Heller, the city has impermissibly outlawed a class of arms “overwhelmingly

chosen by American society for [the] lawful purpose [of self-defense],” id. at 628, and has even

intruded that ban into the very homes of law-abiding citizens.

26

See JOYCE LEE MALCOLM, GUNS AND VIOLENCE: THE ENGLISH EXPERIENCE 239 & n.71

(2002) (emphasis added). In any event, the Ordinance could not be sustained on such a ground

because that would embroil this Court in precisely the “casualty count” interest-balancing that

Heller forbids. See McDonald, 130 S. Ct. at 3050; Moore, 702 F.3d at 939.

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Magazines holding more than ten rounds are just as standard and common, and therefore

just as constitutionally protected, on semiautomatic rifles that are commonly employed for

hunting27

—another use that is protected by the Second Amendment. See id. at 599. These

magazines are not merely common but in many circumstances essential in competitive shooting

sports. Greater ammunition capacity is necessary when proceeding through the multi-target

competitions sponsored by the International Practical Shooting Confederation (IPSC), which has

some 24,000 members in the United States.28

This is even more true for “3-Gun Competition,” the

fastest-growing shooting sport in America,29

where civilian, police, and military participants

compete in three categories, including (i) rifle (typically using a rifle with 30- or 60-round

magazines),30

(ii) shotgun (typically using 23-round magazines)31

and (iii) handgun (typically

using 17- or 33-round magazines).32

Three-Gun Competition is valuable training for soldiers and

police officers, as well as civilians.33

Army units, including the Fifth Special Forces Group and

the Oregon National Guard, have recognized the value of 3-Gun Competition in refreshing their

firearm skills prior to deployment in Iraq or Afghanistan.34

27

It is a common occurrence for a hunter to need quick, multiple shots to take down small,

fleet-footed game. And the need for multiple, follow-up shots is even more vital when using a

semiautomatic rifle to take down bigger, more dangerous game, such as feral pigs weighing over

300 pounds. See generally Kopel, GUNS: WHO SHOULD HAVE THEM, supra note 22, at 171

(explaining that hunters often need to take multiple shots). See also Dick Metcalf, The Big Boys, in

GUNS & AMMO 51 (Jan. 2013); J. Guthrie, The 300 Blackout Story, in GUNS & AMMO, BOOK OF

THE AR-15: 300 BLACKOUT EDITION 18 (Eric R. Poole ed., 2013). 28

See INTERNATIONAL PRACTICAL SHOOTING CONFEDERATION, www.ipsc.org (last visited

Jan. 10, 2014); UNITED STATES PRACTICAL SHOOTING ASSOCIATION, www.uspsa.org/uspsa-

announcements-details.php?USPSA-shows-record-breaking-membership-numbers-in-2013-112

(last visited Jan. 10, 2014). 29

See CHAD ADAMS, COMPLETE GUIDE TO 3-GUN COMPETITION 89 (2012). 30

See id. at 31, 33, 161. 31

See id. at 75, 92-94. 32

See id. at 75, 130, 132. 33

See id. at 30. 34

See id. at 53-54.

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Finally, LCMs that the Ordinance bans are standard in the National Match Competitions

sponsored by the federal government’s Civilian Marksmanship Program (“CMP”).35

The CMP

and its five thousand local clubs provide safety and marksmanship training to over one million

citizens each year.36

Thousands of participants compete using semiautomatic Beretta handguns

(which take 15-round magazines) and M-16 rifles (which take 30-round magazines).37

In sum,

what the Ordinance demonizes and outlaws as “Large-Capacity Magazines” are in fact nothing

more than millions of ordinary, standard-issue magazines that are “typically possessed” by law-

abiding citizens and that are “ ‘in common use’ … for lawful purposes like self-defense,” hunting,

and recreational shooting. Heller, 554 U.S. at 625, 624.

III. BANNING LCMS WOULD DO NOTHING TO REDUCE FIREARMS VIOLENCE AND THUS

COULD NOT SURVIVE INTERMEDIATE SCRUTINY EVEN IF IT WERE THE PROPER

STANDARD, WHICH IT IS NOT.

As demonstrated above, the challenge to San Francisco’s ban on a particular class of

magazines should be resolved by application of the principles applied in Heller, which itself

involved a categorical ban on a particular class of firearms. But even if—contrary to Heller—

interest-balancing were employed here according to tests that might be imported from First

Amendment doctrine, and even if—contrary to Heller—intermediate scrutiny were the correct

standard of review, the Ordinance’s ban on LCMs would be nonetheless unconstitutional.

The Ordinance would fail any level of heightened scrutiny because it is not “substantially

related to the achievement” of San Francisco’s goal of advancing public safety. United States v.

Virginia, 518 U.S. 515, 533 (1996). The burden is on the government “to make a ‘strong

35

See CIVILIAN MARKSMANSHIP PROGRAM, http://odcmp.com (home page) (last visited

Jan. 14, 2014). For 80 years, the CMP was administered by the U.S. Army. Now it is run by a

non-profit §501(c)(3) organization chartered by Congress and known as the Corporation for the

Promotion of Rifle Practice & Firearms Safety, Inc. See 36 U.S.C. § 40701 et seq. 36

See About Us, CIVILIAN MARKSMANSHIP PROGRAM, http://odcmp.com/Comm/About_

Us.htm (last visited Jan. 10, 2014); see also id., 2013 CMP SALES CATALOG at 13,

www.odcmp.com/Sales/pdfs/catalog.pdf. 37

See Dale Miles, New M-16 EIC Match Scores a Hit at Nationals, CIVILIAN

MARKSMANSHIP PROGRAM, www.odcmp.org/0904/M-16Match.asp; National Trophy Pistol

Matches, CIVILIAN MARKSMANSHIP PROGRAM, http://odcmp.com/NM/Pistol.htm.

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showing’ that a gun ban [i]s vital to public safety,” and if the ban applies to “law-abiding adult[s],”

then a much “stronger showing” is required. Moore, 702 F.3d at 939-40. “[T]he government may

not rely upon mere anecdote and supposition,” but instead must defend the law with “tangible

evidence” rather than “unsupported intuitions.” United States v. Carter, 669 F.3d 411, 418 (4th

Cir. 2012) (internal quotation marks omitted). As explained above, the standard of proof required

of San Francisco is more demanding than in other cases because: (i) this categorical ban on

firearms reaches into the home, Heller, 554 U.S. at 628, and (ii) the plaintiffs are not criminals but

“law-abiding, responsible citizen[s]” whose Second Amendment rights receive “full solicitude.”

Chovan, 735 F.3d at 1138.

San Francisco cannot possibly meet this standard of proof. Indeed, all of the empirical

research on federal and state LCM bans reveals that they have no discernible impact on firearms

violence. The federal magazine ban in effect from 1994 to 2004 outlawed magazines holding

more than ten rounds,38

just like the Ordinance here. The Justice Department’s first review found

that any potential reduction in armed violence attributable to the federal magazine ban was

“statistically insignificant.”39

“Any effort to estimate how the ban affected the gun murder rate

must confront a fundamental problem, that the maximum achievable preventive effect of the ban is

almost certainly too small to detect statistically.”40

Thus “[t]he evidence [was] not strong enough

. . . to conclude that there was any meaningful effect (i.e., that the effect was different from

zero).”41

A follow-up report in 2004 concluded that “we cannot clearly credit the ban with any of

38

See Title XI of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

No. 103-322, 108 Stat. 1796 (1994). 39

Jeffrey A. Roth & Christopher S. Koper, Impact Evaluation of the Public Safety and

Recreational Firearms Use Protection Act of 1994 (Final Report) at 76 & n.65 (Mar. 13, 1997)

(emphasis added), www.urban.org/UploadedPDF/aw_final.pdf (“KOPER REP. 1994”). 40

KOPER REP. 1994 at 79 (emphasis added). 41

Id. at 6 (emphasis added). See also id. at 6 (“[We] found no statistical evidence of post-

ban decreases in either the number of victims per gun homicide incident, the number of gunshot

wounds per victim, or the proportion of gunshot victims with multiple wounds.”); id. at 10 (“There

is very little empirical evidence … on the direct role of ammunition capacity in determining the

outcomes of criminal gun attacks. The limited data which do exist suggest that criminal gun

attacks involve three or fewer shots on average. Further, there is no evidence comparing the

fatality rate of attacks perpetrated with guns having large-capacity magazines to those involving

guns without large-capacity magazines.” (citations omitted)).

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the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in

the lethality and injuriousness of gun violence….”42

Studies of state “assault weapons” bans, some

of which included restrictions on magazine capacity, likewise found that they “have not reduced

crime.”43

The Justice Department report concluded that, “[s]hould it be renewed, the ban’s effects

on gun violence are likely to be small at best and perhaps too small for reliable measurement.”44

In a remarkable display of candor and common sense, the DOJ report conceded that the policy

assumption on which the federal magazine ban was based was fatally flawed because it ignored the

fact that criminals denied LCMs will simply substitute other magazines: “Because offenders can

substitute non-banned … small magazines for banned … [LCMs], there is not a clear rationale for

expecting the ban to reduce assaults and robberies with guns.”45

Moreover, no LCM ban is going

to affect a felon’s decision whether to insert an LCM into the gun he carries to his next crime, or to

use an unbanned ten-round magazine instead, because for felons there are no legal firearms,

regardless of the size of the magazine used. See 18 U.S.C. § 922(g)(1).46

42

KOPER DOJ REP. 2004 at 96 (emphasis added). 43

KOPER DOJ REP. 2004 at 81 n.95 (citing, inter alia, JOHN R. LOTT, JR., THE BIAS

AGAINST GUNS (2003)); LOTT, THE BIAS AGAINST GUNS 221 (finding “an increase in the average

murder rate after a state enacts a ban on assault weapons”); JOHN R. LOTT, JR., MORE GUNS LESS

CRIME 327 (3d ed. 2010) (analyzing data on federal and state “assault weapons” bans and

concluding that “the data appear more supportive of an adverse effect of assault weapons bans on

murder and robbery rates”). 44

KOPER DOJ REP. 2004 at 3. See also id. at 3 (“it is not clear how often the outcomes of

gun attacks depend on the ability of offenders to fire more than ten shots (the current magazine

capacity limit) without reloading.”); id. at 92 (“neither medical nor criminological data sources

have shown any post-ban reduction in the percentage of crime-related gunshot victims who die.”). 45

KOPER DOJ REP. 2004 at 81 n.95. Professor Koper stressed this glaring flaw in the LCM

ban in a follow-up essay in 2013. See Christopher S. Koper, America’s Experience with the

Federal Assault Weapons Ban, 1994-2004, in REDUCING GUN VIOLENCE IN AMERICA: INFORMING

POLICY WITH EVIDENCE AND ANALYSIS 165 (Daniel W. Webster & Jon S. Vernick eds., 2013)

(“KOPER REVIEW 2013”). 46

The failure of the federal magazine ban to have any discernible effect on gun violence

has been confirmed by the National Research Council and the Centers for Disease Control. See

NATIONAL RESEARCH COUNCIL, FIREARMS AND VIOLENCE: A CRITICAL REVIEW 96-97 (Charles F.

Wellford et al. eds., 2005) (“the premise of the ban” on LCMs “was that a decrease in their use

may reduce gunshot victimization, particularly victimizations involving multiple wounds or

multiple victims,” but the data “did not reveal any clear impacts on gun violence outcomes”); id. at

97 (“the maximum potential effect of the ban on gun violence outcomes would be very small and,

if there were any observable effects, very difficult to disentangle from chance yearly variation”);

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In short, the beneficial impact, if any, of the challenged Ordinance on firearms violence

will be minute and statistically unknowable. But the effect on the Second Amendment rights of

law-abiding citizens will be pronounced and unconstitutional. Indeed, the above analysis does not

even account for the extent to which banning LCMs will harm public safety by prohibiting law-

abiding citizens from using LCMs to defend themselves. And as Heller makes clear, it is a law’s

effect on law-abiding citizens, not on criminals, that matters for purposes of Second Amendment

analysis. See Heller, 554 U.S. at 629 (discussing why “a citizen may prefer a handgun for home

defense,” rather than Justice Breyer’s dissenting assertions about criminal misuse of handguns, see

id. at 696-99 (Breyer, J. dissenting)).

IV. THE SAD TRUTH IS THAT THE ORDINANCE WOULD NOT HAVE PREVENTED THE

ATROCITY THAT SPAWNED IT—THE MASSACRE AT NEWTOWN.

Since there is no empirical evidence that LCM bans have ever had any effect on firearms

violence, San Francisco is thus left with only the hope—rather than any evidence—that a ban on

LCMs might furnish some relief from mass killings such as that at Newtown in December of 2012.

See § 619(a)(6). This is a false hope. The Justice Department’s reports on the federal magazine

ban concluded not only that the lack of data has made it “impossible to make definitive

assessments of the [federal magazine] ban’s impact on gun violence,” but also that it is even more

difficult “to judge the ban’s effects on the more specific problem of mass shootings.”47

Even if a version of the San Francisco Ordinance were in effect in Newtown, and even if it

were obeyed, it would not have changed the horrific outcome there, nor would it have changed the

outcomes in other high profile tragedies. Adam Lanza used 30-round magazines with his rifle, but

CENTERS FOR DISEASE CONTROL, Recommendations To Reduce Violence Through Early

Childhood Home Visitation, Therapeutic Foster Care, and Firearms Laws, 28 AM. J. PREV. MED.

6, 7 (2005) (“Evidence was insufficient to determine the effectiveness of bans on specified

firearms or ammunition for the prevention of violence.”). 47

KOPER REVIEW 2013 at 166. As the NRC recently recognized, although mass killings

“are a highly visible and moving tragedy,” they are statistically so rare that “there is no conclusive

information about which policies and enforcement and prevention strategies might be effective” in

reducing their number and severity. INSTITUTE OF MEDICINE AND NATIONAL RESEARCH COUNCIL,

PRIORITIES FOR RESEARCH TO REDUCE THE THREAT OF FIREARM-RELATED VIOLENCE 31, 47 (Alan

I. Leshner et al. eds., 2013).

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he changed some of them out before they were empty, firing only part of the magazine.48

Keeping

a firearm topped up with a full magazine in this way is known as a “tactical reload.”49

Thus Lanza

could just as easily and just as quickly have used a series of ten-round magazines that would be

legal under the Ordinance. That is precisely what mass-killer Eric Harris did at Columbine High

School on April 20, 1999, where he fired 96 shots from a Hi-Point 9mm rifle using a series of ten-

round magazines.50

Instead of putting new magazines into his rifle, Adam Lanza could have simply dropped it

and used the other firearms that he took to the Sandy Hook School: two semiautomatic handguns

and a shotgun.51

The mass-killers, at Virginia Tech, Columbine, and Aurora likewise carried

multiple firearms. The notion that an LCM ban might increase the chance that unarmed victims

can overpower a killer when he pauses to reload or change guns is mostly wishful thinking because

there simply is not enough time: changing a magazine or dropping an empty gun and unholstering

48

See Dave Altimari & Jon Lender, Sandy Hook Shooter Adam Lanza Wore Earplugs,

HARTFORD COURANT (Jan. 6, 2013) (Lanza swapped out magazines before they were half empty),

www.courant.com/news/connecticut/newtown-sandy-hook-school-shooting/hc-sandyhook-lanza-

earplugs-20130106,0,2370630.story. 49

See Mike Lupica, Morbid Find Suggests Murder-Obsessed Gunman Adam Lanza Plotted

Newtown, Conn.’s Sandy Hook Massacre for Years, NEW YORK DAILY NEWS (March 17, 2013)

(describing Lanza’s practice of changing out magazines that were only partly depleted in order to

have a full magazine when he entered each room of the Sandy Hook School), available at

www.nydailynews.com/news/national/lupica-lanza-plotted-massacre-years-article-

1.1291408?print. 50

See How They Were Equipped That Day, Jefferson County Sheriff’s Office (2000),

www.cnn.com/SPECIALS/2000/columbine.cd/Pages/EQUIPMENT_TEXT.htm (Harris fired his

rifle 96 times and thus went through ten magazines.); Columbine High School Massacre,

WIKIPEDIA (Harris carried 13 ten-round magazines for his carbine), available at

http://en.wikipedia.org/wiki/Columbine_High_School_massacre (last visited Jan. 10, 2014).

Similarly, the Ordinance would not have hindered Seung-Hui Cho, who killed 32 people at

Virginia Tech on April 16, 2007, using 10- and 15-round magazines for his two handguns. The

state’s official inquiry concluded that exclusive use of “10-round magazines that were legal would

have not made much difference in the incident.” Report of Virginia Tech Review Panel, Chapter

VI, at 71, 74, available at www.governor.virginia.gov/tempcontent/techpanelreport-docs/

fullreport.pdf. 51

See N.R. Kleinfield et al., Newtown Killer’s Obsessions, in Chilling Detail, THE NEW

YORK TIMES, Mar. 28, 2013, at A1 (listing Lanza’s weapons), available at

www.nytimes.com/2013/03/29/nyregion/search-warrants-reveal-items-seized-at-adam-lanzas-

home.html?_r=0.

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another takes mere seconds. After the Aurora massacre, experts explained that, “ ‘[e]ven without

the grand-sized mags, many people who are practiced can reload in 1½ to 2 seconds.’ ”52

And, in

fact, nobody charged the killers at Virginia Tech, Columbine, Aurora, or Newtown while they

were reloading their guns.53

Moreover, Adam Lanza was no sniper. Like nearly all mass-killers he shot his victims at

close range, where a common, bird-hunting shotgun (which would be untouched by the Ordinance)

is the most fearsome weapon. Lanza had a shotgun at Newtown but did not use it; if he had, the

bloodshed might have been worse. At the movie theater in Aurora, James Holmes had a

Remington 870 pump-action shotgun and 300 shells, but he fired only six of them before switching

to his rifle.54

Experts opined that the carnage would have been worse if he had stayed with the

shotgun and sprayed buckshot all over the theater instead of switching to a semiautomatic rifle

with a large drum magazine that jammed.55

Similarly, the British government’s PUBLIC INQUIRY

52

See CNN Wire, Source: Colorado Shooter James Holmes Had 100-Round Rifle

Magazine (July 20, 2012), www.abc15.com/dpp/news/national/source-colorado-shooter-james-

holmes-had-100-round-rifle-magazine. 53

Dylan Klebold and Eric Harris had shotguns at Columbine (one pump gun and one

double-barreled shotgun) and they fired them 37 times, which took a lot of manual reloading. See

How They Were Equipped That Day, supra note 50. None of the hundreds of students and faculty

at the high school overpowered them while they were reloading their shotguns. 54

See Alex Klein, A Look at the Aurora Shooter’s Guns, THE DAILY BEAST (July 22, 2012)

(describing Holmes’ arsenal, his 300 shotgun shells, and eyewitness reports that Holmes started

shooting with his shotgun, not his rifle), available at www.thedailybeast.com/articles/2012/07/22/

a-look-at-the-aurora-shooter-s-guns-including-the-ar-15.html; Susan Candiotti, Colorado

Shooter’s Rifle Jammed During Rampage, CNN (July 22, 2012) (same), available at

www.cnn.com/2012/07/22/us/colorado-shooting-investigation/index.html; Casey Wian, Jim

Spellman & Michael Pearson, He Intended To Kill Them All, Prosecutor in Theater Shooting Says

(CNN Jan. 9, 2013) (only six spent shotgun shells were found at the crime scene), available at

www.cnn.com/2013/01/09/justice/colorado-theater-shooting. 55

“A shotgun would do more damage among a tightly packed theater audience because its

ammunition comes out of the weapon in a reversed funnel shape and would disperse across a wider

area…. In a theater scenario, … ‘so many people’s heads are lined up next to each other that if you

fire down these rows of people … one blast is going to kill or seriously injure 10 or 15 people.’ ”

See CNN Wire, Source, supra note 52. See also Susan Candiotti, Colorado Shooter’s Rifle

Jammed, supra note 54 (high-capacity drum magazines are notorious for jamming). See also

Kopel, GUNS: WHO SHOULD HAVE THEM, supra note 22, at 164 (describing the massive killing

power that can be unleashed in three seconds by a recreational bird-hunting shotgun, which would

not be restricted by the Ordinance).

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INTO THE SHOOTINGS AT DUNBLANE PRIMARY SCHOOL ON 13 MARCH 1996 concluded that the

death toll (which included 30 students and teachers) would have been far worse if the madman had

been armed with a shotgun rather than a pair of handguns, even though the handguns were

equipped with 20-round magazines.56

The Inquiry calculated that, within the same span of time,

the killer could have fired and reloaded an old-fashioned double-barreled shotgun 105 times—the

same number of shots that he fired with his pistols—but with a much higher death toll because that

many shotgun shells would have saturated the school with up to 1,000 buckshot projectiles.57

Nor did the rate of fire that Lanza achieved with his rifle and its 30-round magazines make

a significant difference at Newtown. He fired the rifle at precisely the same rate that all

semiautomatic guns fire, regardless of the size of their magazines: one bullet for each pull of the

trigger. Even if all semiautomatic firearms and their magazines (of whatever size) were outlawed,

Lanza could have maintained a comparable rate of fire using 150-year-old lever-action cowboy

rifles such as the Volcanic, the Henry, or the Winchester—all of which are exempted from the ten-

round magazine limit by § 619(b)(3) of Ordinance, despite the fact that the Volcanic has a 30-

round magazine and the Henry and Winchester hold 16 rounds each.58

Lanza fired 154 shots in

five minutes—about 30 shots per minute.59

That same rate of fire can be achieved with a

Winchester lever-action carbine from 186660

or a Volcanic lever-action rifle from the 1850s.61

Lanza had access at home to his mother’s .45 caliber Henry lever-action rifle.62

Even in its

56

See www.ssaa.org.au/research/1996/1996-10-16_public-inquiry-dunblane-lord-

cullen.pdf. 57

Id. at ¶ 9.53. 58

See supra note 7. 59

See Mary Ellen Clark & Noreen O’Donnell, Newtown School Gunman Fired 154 Rounds

in Less than Five Minutes, REUTERS U.S. EDITION (Mar. 28, 2013), available at

www.reuters.com/article/2013/03/28/us-usa-shooting-connecticut-idUSBRE92R0EM20130328;

N.R. Kleinfield et al., Newtown Killer’s Obsessions, supra note 51. 60

See GUN: A VISUAL HISTORY, supra note 7, at 174; MILITARY SMALL ARMS, supra note

7, at 147. 61

See MILITARY SMALL ARMS, supra note 7, at 146. 62

See Matt Apuzzo & Pete Yost, Connecticut Shooter Adam Lanza’s Guns Were

Registered To Mother Nancy Lanza, HUFFINGTON POST (Dec. 15, 2012), available at

www.huffingtonpost.com/2012/12/15/connecticut-shooter-guns_n_2306913.html.

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original 19th

century form, the Henry rifle, with its 16-round magazine, could fire up to 60 shots

per minute, which is twice as fast as Lanza fired his rifle with its 30-round magazines.63

Finally, mass-killers could commit equally grim atrocities without any semiautomatic

firearms or any magazines at all (large-capacity or otherwise), but merely a common six-shot

revolver, as the official inquiry into the Virginia Tech massacre concluded.64

The British

government’s inquiry into the Dunblane school massacre likewise concluded that mass-killer

Thomas Hamilton could easily have inflicted as much bloodshed in the same number of minutes if

he had used the revolvers he was carrying rather than his Browning semiautomatic pistol with its

20-round magazines. 65

Thus to address all of the risks of mass-killings presented by the Dunblane

massacre, Great Britain outlawed not only large-capacity magazines and semiautomatic handguns,

but virtually all private ownership of handguns of any kind—an option that the Second

Amendment, of course, forbids.

We must confront the depressing yet stubborn fact that no gun-control law would have

made much of a difference at Newtown or other recent mass-killings. Nineteenth-century firearms

technology—revolvers, double-barreled shotguns, and lever-action rifles—would have wrought at

least the same havoc at Newtown as the rifle and LCMs that Adam Lanza used.66

The

monstrosity at Newtown was not a particular firearm or large-capacity magazine, but the depraved

individual who wielded it.

63

See K.D. KIRKLAND, AMERICA’S GUNMAKERS: WINCHESTER 8 (2013). 64

The official report concluded that even revolvers “with rapid loaders would have been

about as deadly in this situation.” See Report of Virginia Tech Review Panel, supra note 50, at 74. 65

See DUNBLANE INQUIRY, supra note 56, at ¶ 9.51 (“[W]ith a revolver it is possible to

maintain a speed of firing which approaches that of the self-loading pistol. Further, as I stated

earlier, the use of a speedloader in conjunction with a revolver which had a cylinder which could

be swung out would enable a whole set of cartridges to be removed and replaced very quickly.”).

See also Joseph von Benedikt, Double Down: Get Your DA Revolver Skills Up to Snuff with These

Pro Tips, in GUNS & AMMO, HANDGUNS (Aug./Sept. 2013) at 62-63 (Rapid reloading of a revolver

is facilitated by common, inexpensive and handy devices such as speed-loaders, full- or half-moon

clips, or Quickstrips.).

66 As Colorado Governor John Hickenlooper said in the wake of James Holmes’ evil at the

Aurora movie theater, “[i]f it was not one weapon, it would have been another, and he was

diabolical.” Karen E. Crummy, Hickenlooper: Tougher Gun Laws Would Not Have Stopped the

Shooter, THE DENVER POST (July 22, 2012), available at www.denverpost.com/breakingnews/ci_

21132699/hickenlooper-tougher-gun-laws-would-not-have-stopped-#ixzz21ceXm9R1.

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For this reason, evidence relied on by the Western District of New York to uphold that

State’s LCM ban cannot save San Francisco’s law. That evidence purported to show that “large-

capacity magazines . . . were used in more than half of the mass shootings since 1982,” that “their

use is on the rise” because “[i]n the past year, guns with large-capacity magazines were used in at

least five of the six mass shootings,” and that “more people die when a shooter has a large-capacity

magazine.” NYSRPA, 2013 WL 6909955, at *17. Even if all of this were true, however,67

it would

not support San Francisco’s ban. As an initial matter, as described above, there is little reason to

suspect that the outcome of these incidents would have been less tragic had the killers not used

LCMs. In addition, the evidence does not support the conclusion that making LCMs illegal will

prevent mass killers from using them. Indeed, the report looking at mass shootings since 1982

found that LCMs were used in 53.3% (8 out of 15) of mass shootings between September 1994

and September 2004, when the federal LCM ban was in place. See Declaration of Lucy P. Allen,

Table 1, NYSRPA ECF No. 69 (filed June 21, 2013). This is higher than the overall percentage the

study found for LCM use in mass shootings from 1982 to 2013, which was 51.5% (34 out of 66).

Id. ¶ 18.68

Finally, this same report relied on data collected by Mother Jones. See id. ¶ 16. And

according to Mother Jones, “[b]y far the most common weapons used in [mass shootings] are

67 But see, e.g., KOPER 2013 REVIEW at 166 (“There is no national data source that provides

detailed information on the types of guns and magazines used in shooting incidents or that

provides full counts of victims killed and wounded in these attacks. Studying mass shootings in

particular poses a number of challenges with regard to defining these events, establishing the

validity and reliability of methods for measuring their frequency and characteristics (particularly if

done through media searches, as is often necessary), and modeling their trends, as they are

particularly rare events . . . .”); Mayors Against Illegal Guns, Analysis of Recent Mass Shootings at

1, NYSRPA ECF No. 81-9 (filed June 21, 2013) (report cited by W.D.N.Y. finding that either

“assault weapons” or LCMs were used in only 23% of mass shooting incidents from January 2009

through January 2013).

68

See also Jason Whong, Enforcement Snarls, Confusion, Paperwork Backlog Blunt

Impact of N.Y.’s SAFE Act, ELMIRA STAR-GAZETTE (Jan. 11. 2014), available at www.star

gazette.com/article/20140111/NEWS01/301110027/Enforcement-snarls-confusion-paperwork-

backlog-blunt-impact-N-Y-s-SAFE-Act (“Tompkins County Sheriff Ken Lansing . . . faults the

requirements [the SAFE Act] places on gun owners. ‘Why are we making laws more restrictive?’

he asked. ‘Criminals don’t pay attention to them anyway. Let’s enforce the laws that we have, and

have just punishment to deter people from breaking those laws.’ ”).

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semi-automatic handguns . . . .” Mother Jones, More Than Half of Mass Shooters Used Assault

Weapons and High-Capacity Magazines (Feb. 27, 2013), NYSRPA ECF No. 81-8 (filed June 21,

2013). But we know from Heller that banning handguns nevertheless would fail intermediate

scrutiny or any other standard that the Court has “applied to enumerated constitutional rights.”

Heller, 554 U.S. at 628. If this is true for the “most common weapons” used in mass shootings, it

must also be true for LCMs. In sum, the very evidence the Western District of New York used to

uphold New York’s LCM ban actually undermines it and all other LCM bans.

CONCLUSION

This case should be decided by the principles for evaluating categorical bans on particular

firearms that were laid down by the Supreme Court in Heller. Insofar as the firearm magazines

outlawed by the Ordinance are “arms ‘in common use at the time’ for lawful purposes like self-

defense,” Heller, 554 U.S. at 624, or are weapons “typically possessed by law-abiding citizens for

lawful purposes,” id. at 625, they are within the scope of the Second Amendment, and they cannot

be banned.

Dated: January 14, 2014 Respectfully submitted,

/S/ BRIAN S. KOUKOUTCHOS

By:____________________________________ Brian S. Koukoutchos Attorney for Pink Pistols Pro Hac Vice Application to be submitted

BENBROOK LAW GROUP, PC

/S/ BRADLEY A. BENBROOK

By:____________________________________ Bradley A. Benbrook Attorney for Pink Pistols

Documents

1 BRIAN S. KOUKOUTCHOS 28 Eagle Trace 2 Mandeville, LA ... · DOES 1-10, Case No.: CV 13-05351 WHA AMICUS CURIAE BRIEF OF PINK IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY