In this edition of Reality Check, Sam Brock looks at the NRA's claims and the lawsuit's chance for success.
The NRA threatened a lawsuit if Sunnyvale voters passed a comprehensive package of gun laws wrapped into a ballot initiative called ‘Measure C.’
On Tuesday, voters helped ‘Measure C’ cruise to victory at the polls and as promised an NRA lawsuit is forthcoming.
The organization’s California attorney, C.D. Michel, told NBC Bay Area that residents of that city can expect “likely more than one
lawsuit” coming from a number of associations.
As it concerns his organization, Michel said “the NRA’s suit will be pure Second Amendment filed in federal court, and seeking an injunction against the magazine possession ban.”
The NRA plans on filing the lawsuit once Measure C is officially certified, expected sometime in January.
But is the NRA lawsuit more bark than bite?
Of the four gun restriction laws included in Measure C, the NRA is focusing on the one clamping down on high-capacity ammunition
magazines, or those which hold more than 10 rounds.
As it turns out, the gun lobby’s claim that restricting magazine size is “unconstitutional” and an “infringement on the right to keep and bear arms” has been litigated before a federal court before.
To be more specific, this issue came up two years ago before the D.C. Circuit Court of Appeals.
“There’s definitely other states and local governments that have banned large capacity ammunition magazines,” said Cody Jacobs, a staff attorney with the Law Center to Prevent Gun Violence who has been studying the Sunnyvale ballot measure.
“This isn’t anything new,” Jacobs continued. “It’s been upheld by the D.C. Circuit, a conservative circuit court of appeals. So I think [the NRA] is going to have a really uphill battle trying to argue that any of these measures are unconstitutional under the Second Amendment.”
In the 2011 decision, the D.C. Circuit Court did in fact uphold several restrictions on firearms and ammunition, both the high-capacity magazine possession ban and a law prohibiting the sale and possession of assault weapons.
“The District…argues neither assault weapons nor weapons with large-capacity magazines are among the ‘Arms’ protected by the Second Amendment because they are both ‘dangerous and unusual,” per the Supreme Court decision in District of Columbia v. Heller, noted the justices in their opinion.
Deep Gulasekaram, a constitutional law professor at Santa Clara Law School with a specialization in Second Amendment issues, says he expected the NRA to file a lawsuit but they will have tough sledding when it comes to the constitutional arguments.
“This is the type of red meat that the NRA will typically go after,” Gulasekaram said, referring to the contents of Meaure C. “And so I think in that sense there’s no doubt that this looks like something that the NRA would sue about.”
“Can they win?” he asked. “There I think it’s a separate issue…they might have trouble succeeding on a lot of these claims”
Gulasekaram said the magazine restriction issue has never been litigated before the Supreme Court- only a federal appeals court- so allowing such restrictions is not a nationwide precedent.
It is possible, he said, that Sunnyvale could lose the suit.
However, Gulasekaram believes that the federal courts in California will likely be sympathetic to the same arguments made before the judges in the D.C. Appeals Court.
“When you’re talking about a flat ban it becomes much easier to make a claim that there’s been a 2nd amendment violation,” Gulasekaram said.
“For the most part, gun regulations that fall short of flat bans that are generally reasonable have actually been upheld by most courts, state courts and federal courts.”
San Francisco voters did approve a flat ban on firearms in 2005, and that ballot measure was overturned by the courts.
Total gun bans met similar fates in Chicago and D.C.
California, however, already has a law prohibiting the manufacture and sale of high-capacity magazines in the state.
The possession of such magazines is still allowed.
“The large capacity ammunition magazine law in Sunnyvale, what it does is just close a loophole in state law,” Jacobs said. “It’s just a very common sense thing that, hey, if they’re so dangerous that you’re not allowed to sell them and you’re not allowed to buy them, you shouldn’t be allowed to possess them, either.”
We contacted Mr. Michel for comment about the D.C. Circuit Court decision upholding the magazine restriction.
His office has not yet responded to our inquiry.