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Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellees

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Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellees Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 1 of 38 No. 14-15408 United States Court of Appeals for the Ninth Circuit LEONARD FYOCK et al., Plaintiffs-Appellants, – v. – CITY OF SUNNYVALE et al., Defendants-Appellees. ___________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NO. 5:13-CV-05807-RMW BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN SUPPORT OF APPELLEES GREGORY SILBERT Counsel of Record VANESSA W. CHANDIS WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000 Attorneys for Amicus Curiae Everytown for Gun Safety Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 2 of 38 CORPORATE DISCLOSURE STATEMENT Amicus Curiae Everytown for Gun Safety has no parent corporations. It has no stock, and therefore, no publicly held company owns 10% or more of its stock. /s/ Gregory Silbert Gregory Silbert US_ACTIVE:\44481206\14\99995.5019 Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 3 of 38 Table of Contents ARGUMENT ............................................................................................................ 3 I. VARIATIONS IN LOCAL GUN LAWS ARE PART OF A LONGSTANDING TRADITION THAT DEFINES THE CONTOURS OF THE RIGHT PROTECTED BY THE SECOND AMENDMENT. ............................................................................................. 3 A. Historically, Local Laws Regarding Gun Use And Possession Have Varied To Meet The Needs Of Each Community. ...................... 4 B. California Courts Have Long Recognized The Appropriateness Of Tailoring Firearm Laws To Local Conditions. ................................ 9 C. The Citizens Of Sunnyvale Acted Consistently With This Longstanding Tradition When They Enacted the Ordinance.............. 10 II. THE ORDINANCE BANNING LARGE-CAPACITY MAGAZINES IS CONSTITUTIONAL. ................................................... 12 A. The Ordinance Does Not Impinge Upon Conduct Protected By The Second Amendment. .................................................................... 13 1. Restrictions On Large Capacity Firearms Are Longstanding, Presumptively Lawful Regulations. .................. 14 2. Plaintiffs Have Failed To Establish That LCMs Are In Common Use For Lawful Purposes In Sunnyvale. .................. 17 B. In Any Event, The Ordinance Satisfies Intermediate Scrutiny. .......... 20 1. Intermediate Scrutiny Is Appropriate. ...................................... 21 2. The Ordinance Survives Intermediate Scrutiny And Is Thus Constitutional. .................................................................. 23 CONCLUSION ....................................................................................................... 28 i US_ACTIVE:\44481206\14\99995.5019 Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 4 of 38 TABLE OF AUTHORITIES Cases Page(s) Fyock v. Sunnyvale, No. C-13-5807-RMW, 2014 U.S. Dist LEXIS 29722 (N.D. Cal. Mar. 4, 2014) ......................................................................... 17, 18, 19 Great W. Shows, Inc. v. Cnty. of Los Angeles, 27 Cal. 4th 853, 44 P.3d 120 (2002) ..................................................................... 9 Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) ............................................................................................ 23 District of Columbia v. Heller, 554 U.S. 570 (2008) .....................................................................................passim Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) ...................................................................passim Jackson v. City and Cty. of San Francisco, 746 F.3d 953 (9th Cir. 2014) .......................................................................passim McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ........................................................................................ 13 N.Y. State Rifle & Pistol Ass’n v. Cuomo, No. 13-cv-2915, 2013 U.S. Dist. LEXIS 182307 (W.D.N.Y. Dec. 31, 2013) ...................................................................... 21, 27, 28 Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014), en banc petition pending .................................... 3 San Francisco Veteran Police Officers Ass’n v. City & Cnty. of San Francisco, No. C 13-05351 WHA, 2014 U.S. Dist. LEXIS 21370 (N.D. Cal. Feb. 19, 2014) ................................................................. 11, 24, 26, 28 Shew v. Malloy, No. 3:13-cv-739, 2014 WL 346859 (D. Conn. Jan. 30, 2014) ......... 21, 24, 27, 28 ii US_ACTIVE:\44481206\14\99995.5019 Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 5 of 38 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) .......................................................... 12, 20, 21, 23 Statutes Federal 18 U.S.C. 922(w) ..................................................................................................... 11 Act of July 8, 1932, ch. 465, §§ 1, 8, 47 Stat. 650, 650, 652..................................... 8 Federal Firearms Act of 1938, 52 Stat. 1250 (June 30, 1938) ................................... 8 State An Act to Prevent the Storage of Gun-powder in Larger Quantities than one Hundred Pounds, Within the City of Mobile, 1848 Ala. Laws 121 ..................... 5 Revised Statutes of Arkansas (1837) Division VIII, chap. 44, art. I, § 13; Act of Jan. 14, 1820, chap. 23 ........................................................................................ 14 Cal. Penal Code § 16740 .......................................................................................... 11 Cal. Penal Code § 32310 .......................................................................................... 11 Cal. Stats. 1999, ch. 129, §§ 3, 3.5 .......................................................................... 11 An Act Incorporating the Cities of Hartford, New Haven, New London, Norwich and Middletown, ch. 1, § 20, 1836 Conn. Pub. Acts 104-05 ............................... 6 1845 Conn. Acts 10, An Act Prohibiting the Firing of Guns and Other Firearms in the City of New Haven, chap. 10 .......................................................................... 8 An Act to Incorporate the City of Key West, ch. 58, § 8, 1838 Fla. Laws 70 .......... 6 Act of Dec. 25, 1837, 1837 Ga. Laws 90 ................................................................. 14 1932 La. Acts 336-37, An Act to Regulate the Sale, Possession and Transportation of Machine Guns, and Providing a Penalty for a Violation Hereof. § 1 ............ 21 Act of June 2, 1927, No. 372, § 3, 1927 Mich. Laws 887, 888 ............................... 16 Act of June 26, 1792, ch. 10, 1792 Mass. Acts 208 .................................................. 5 iii US_ACTIVE:\44481206\14\99995.5019 Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 6 of 38 Mass. Gen. Law (1850), chap. 194 §§ 1, 2 as codified in Mass. Gen. Stat., chap. 164 (1873) § 11 ................................................................................................... 14 1929 Mo. Laws 170, Crimes and Punishment, Prohibiting the sale delivery, transportation, possession, or control of machine rifles, machine guns and sub-machine guns, and providing penalty for violation of law: § 1 ................... 15 An Act to Incorporate Nebraska City, § 25, 1867 Neb. Laws 68 .............................. 6 An Act to Incorporate the City of Trenton, § 24, 1837 N.J. Laws 373 ..................... 6 Act of Apr. 13, 1784, ch. 28, 1784 N.Y. .................................................................... 5 Ohio Act of Feb. 17, 1831, ch. 834 § 6 ...................................................................... 8 Act of Apr. 13, 1782, ch. XIV, § XLII, 1781-1782 Pa. Laws 25, 41-42 ................... 5 Act of Sept. 12, 1783, ch. LXXVI, § XLII, 1782-1783 Pa. Laws 124, 140 .............. 5 Act of Dec. 6, 1783, ch. 1059, 11. Pa. Stat. 209 ........................................................ 5 1927 R. I. Pub. Laws 256, An Act to Regulate the Possession of Firearms: § 1 ....................................................................................... 14, 15, 16 1933 S.D. Sess. Laws 245, An Act relating to Machine Guns, and to make uniform the law with reference thereto: § 1........................................................ 15 Act of Dec. 3, 1825, ch. 292 § 3, 1825 Tenn. Priv. Acts 306 .................................... 8 Act of Jan. 27, 1838, chap. 137 at 1837-1838 Tenn. Pub. Acts 200 ....................... 14 1933 Tex. Gen. Laws 219, Anti-Machine Gun Law -An Act defining “machine gun” and “person”; making it an offense to possess or use machine guns. § 1 ........................................................................................................................ 16 Act of Feb. 4, 1806, ch. 94, 1805-1806 Va. Acts 51 ................................................. 8 Act of Jan. 30, 1847, ch. 79, 1846-1847 Va. Acts 67 ................................................ 8 1933-34 Va. Acts 37, An Act to define the term “machine gun;” to declare the use and possession of a machine gun for certain purposes a crime and to prescribe the punishment therefor: § 1 ............................................................................... 15 iv US_ACTIVE:\44481206\14\99995.5019 Case: 14-15408 06/24/2014 ID: 9144045 DktEntry: 54 Page: 7 of 38 Other Authorities David Fallis & James Grimaldi, VA Data Show Drop in Criminal Firepower During Assault Gun Ban, WASH. POST, Jan. 23, 2011, available at http://wapo.st/Uiu1fX
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