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Shotgun News, January 1, 2006, pp. 20-21

A Tale of Two Referendums

“It was the best of times, it was the worst of times...” or so Dickens' A Tale of Two Cities starts out. This month, we have the story of two popular votes about gun ownership. In Brazil, gun owners won. In San Francisco, gun owners lost--but it was the type of loss that will almost certainly rebound in our favor.

Brazil's government decided to solve its horrible murder problem with a ban on civilian purchases of firearms and ammunition. This was an extreme measure--on top of what are already some of the toughest gun control laws of a democratic society. At first glance, it would seem like our side would have a very difficult time defeating it. The government backed it. The Catholic Church (in an officially Catholic country) backed it. Only one out of eighty-one senators opposed it. Gun control groups from around the world stepped in to help pass it (and of course, gun rights groups from around the world stepped in to stop it).

Brazil had nothing like the National Rifle Association before this referendum came up, and no constitutional protection of a right to keep and bear arms. At one point, the Brazillian gun rights group organized to fight the referendum couldn't raise money from French human rights groups, because they couldn't afford the cost of international phone calls! The vast majority of the guns in Brazil are technically illegal, because they are unregistered. Even the notion of a "right" to own a gun is not part of the Brazillian tradition.

Brazil is also a tremendously violent country, with a jungle frontier that is as violent and dangerous as Hollywood likes to portray the American Wild West, and urban ghettos that make all but the worst parts of the United States look pretty nice. Brazil has about 38,000 firearms murders a year--or about five times the rate of the United States.

So the gun ban went down to a startling defeat. More than 63% of the voters said, “No,” with a majority in every Brazillian state voting against the ban. What happened? Contrary to popular opinion, fear of crime does not generally encourage voters to back gun control laws. As happens in America, most people are smart enough to figure out that if the criminal justice system can't prevent murder, rape, and robbery, it isn't going to be any more efective at making guns disappear.

The Brazillian government is also in the midst of a corruption scandal at the moment, and this may have given a lot of Brazil's citizens reason to wonder how much they could trust their own government.¹ Remember also that in Brazil, like all of South America, tmilitary dictatorship, secret police, and death squads, are not just pages in a history book, but something burned into the memory of many of those still alive. As much as we in America may focus on the danger from armed criminals, in much of the world, the biggest danger isn't free enterprise thuggery, but criminals carrying government ID cards.

I rather doubt that this is the last we will hear from gun control groups in Brazil. I would expect that a “more reasonable” measure will be presented to the voters in a year or two. Let us hope that the newly organized Brazillian gun rights groups can keep their momentum.

A bit closer to home, we had a loss that will almost certainly end up as a victory for us. San Francisco voters approved a far-reaching--and astonishingly poorly written--handgun ban in early November. Proposition H (which perhaps should be called Preparation H, for where it belongs) passed by a wide margin. In the cold light of dawn on November 9, about 58% had voted in favor of the ban, and 42% opposed. Not only did it ban handguns in San Francisco, it also made it illegal to buy, sell, or transfer any firearms there. (There is one gun store still operating in San Francisco--whoops!) It also made it illegal to buy, sell, or transfer any ammunition in the city.²

Those of you with long memories may recall that San Francisco has been down this road before, back in 1982, when then Mayor Dianne Feinstein persuaded the County Supervisors to ban handguns. The only exception was for the less than a dozen people with concealed carry permits issued by the San Francisco Police Department--which oddly enough, included one Dianne Feinstein. That law didn't survive a court challenge, because the California legislature, in more sane days, had passed Government Code § 53071, prohibiting local governments from doing that sort of thing.

So, what's changed since then? Not terribly much. While some California cities have banned particular categories of weapons, they haven't tried anything quite so extreme as a complete ban on handgun possession, or a ban on transfers of all firearms and ammunition. If not for the rather bizarre nature of the California judiciary, this would be a slamdunk. Even San Francisco Mayor Gavin Newsom, who supported Preparation H, admitted that, "It clearly will be thrown out.... It's so overtly pre-empted. I'm having a difficult time with it, and that's my one caveat. ... It's really a public opinion poll at the end of the day.”³ Of course, Mayor Newsom should know a lot about local measures being pre-empted by state law, after his little experiment having the city clerk issue same-sex marriage licenses--and even California's courts slapped San Francisco silly.
 

It turns out that there is a bit more to the problems with Preparation H than just state law pre-empting a city ban. If you want to be really entertained, read the legal brief by the atttorneys who are challenging it.⁴ A handgun ban was dumb--but this particular ban was so poorly written that that I would have to call it dumb raised to the dumb power.

Preparation H did not actually ban all handgun possession in San Francisco. It only banned handgun possession in San Francisco by San Francisco residents. This means that someone who has a business in San Francisco but doesn't live there can legally keep a handgun at his place of business. It means that if I visit San Francisco, and my handgun is unloaded until I get in my hotel room (at which point I can lawfully load it)--that's not illegal. But you if you actually live in San Francisco, you are in a world of hurt.

This isn't just dumb--it means that Preparation H is treating non-residents differently than residents. The equal protection clause of the Fourteenth Amendment now comes into play. If a government agency treats two people differently, it has to have a reason. The courts use a bunch of different standards for deciding whether a law that discriminates violates the equal protection clause. There's no rhyme or reason to why “strict scrutiny” applies to race, “intermediate scrutiny” applies to sex, and mere “rational basis” applies to just about every other category. A lot of why these distinctions exist is that, for a very long time, the segregationists down South had the best lawyers that money could buy, and the federal courts had to come up with all sorts of excuses for why some discriminatory laws were unconstitutional, and others were not.

You might be able to make some argument for why a law treats residents of San Francisco better than non-residents--perhaps giving residents special parking privileges, since the tourists just clog the place up, anyway--but there is no sensible reason for why residents should have less rights than some guy who is just passing through town. Our side's lawsuit argues that Preparation H fails what is known as “rational basis” test--that the voters of San Francisco passed a law without any good reason.

I don't think much of the “rational basis” test for the equal protection clause. It really means, “We, the judges, are vastly smarter than the people. We don't think this law makes any sense, and we can't figure out any other basis for striking it down, except to insult you by saying that you aren't rational.” This “;rational basis” test doesn't get used very often by the courts--most notably in Romer v. Evans (1996), where the Supreme Court ruled that the people of Colorado had no rational basis for amending their state constitution to prohibit local governments from adding homosexuals to local antidiscrimination ordinances.⁵ Think about this for a second: the Supreme Court told the people of a state that they did not know what they were doing in amending their state constitution--and it was therefore okay to overrule the people.

Preparation H's discrimination against the residents of San Francisco, as much as it offends me, isn't irrational. The authors knew that because state law pre-empts local law concerning handgun possession for anyone passing through town, they had to exempt non-residents--or add one more basis for the courts to strike it down. The result is dumb, and unfair to residents, but it is not irrational. This discrimination was a rational attempt at implementing a very dumb idea--trying to ban handguns at the city level. Still, arguing that this provision qualifies as "irrational" seems like a darn good strategy for our lawyers--it gives the judges who hear this case one more excuse to remind San Francisco that they are still part of California--and even still part of the United States.
Gun control laws usually have all sorts of exemptions for police officers. Preparation H only exempts police officers from the handgun ban while in the performance of their official duties--so they can't have a gun with them off-duty. (You can see why the San Francisco Police Officers Association opposed Preparation H. Would you want to be an off-duty cop in San Francisco without a handgun?)

Even worse, because Preparation H bans transfers of firearms--and fails to exempt police officers and law enforcement agencies from this ban--it is apparently illegal for a police officer going off-duty to transfer the gun to the police department. He can probably lock it up at work, but he can't hand it to the duty sergeant and say, "I'll be back for this tomorrow when I come back to work."

Nor, it appears, may a police officer transfer his gun to the departmental armorer for repair or inspection. It also appears that the department may not issue guns or ammunition to its officers, because that's a transfer--the drafters of Preparation H forgot to provide for this. (Or perhaps the drafters figured that once the new ban takes effect, they won't need to be issuing guns or ammunition anyway, as peace and love take over the streets of San Francisco.)

It gets worse. If a police officer seizes a handgun used in a crime, he apparently can't transfer it to the police department, or the district attorney's office for use as evidence at trial. That means no forensic examination of the gun; no handling of the gun by either district attorney or defense attorney at trial--those are transfers, prohibited by the law, and with no exemption. (It is possible that the courts will find some way to excuse this, even without the law allowing for it, but it will certainly make the criminal justice system much more entertaining to watch!)
There was no exemption for historical collections, so a number of museums in San Francisco are going to have to remove their collections of historic handguns. I'm sure that if the lawyers spent enough time going over this steaming pile, they could probably find a bunch more serious problems with it.

I mentioned at the beginning of this column that while we lost the vote, this may well turn out to be a great advantage for gun owners. There are two reasons that I say this. The first is that the next time a gun control advocate claims, "We aren't trying to ban guns, just control them," you only have to say, "You mean, like in San Francisco?" The second reason is that this measure so clearly establishes that our opponents are not serious about reducing crime. If they were, they would have exempted police officers, police departments, and the criminal justice system from these absurd transfer prohibitions. Instead, they have created a law that, if the courts actually allow it, will rapidly grind the criminal justice system to a halt--and probably cause nearly all San Francisco police officers to move out of town.

I think San Francisco should hire an idiot to draft initiatives in the future--it would be a real step up from whoever currently writes them.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.