Espanola Jackson v. City and County of San Francis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ESPANOLA JACKSON; PAUL COLVIN; No. 12-17803
THOMAS BOYER; LARRY BARSETTI;
DAVID GOLDEN; NOEMI MARGARET D.C. No.
ROBINSON; NATIONAL RIFLE 3:09-cv-02143-
ASSOCIATION OF AMERICA, INC.; RS
SAN FRANCISCO VETERAN POLICE
OFFICERS ASSOCIATION,
Plaintiffs-Appellants, OPINION

v.

CITY AND COUNTY OF SAN
FRANCISCO; EDWIN M. LEE, Mayor
for the City and County of San
Francisco; GREG SUHR, San
Francisco Police Chief,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding

Argued and Submitted
October 7, 2013—San Francisco, California

Filed March 25, 2014
2 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

Before: Dorothy W. Nelson, Milan D. Smith, Jr.,
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of plaintiffs’
motion to preliminarily enjoin two San Francisco firearm and
ammunition regulations in an action alleging that the
regulations were impermissible violations of the right to bear
arms under the Second Amendment.

The panel held that the first regulation, San Francisco
Police Code section 4512(a), (c)(1), which requires handguns
to be stored in a locked container at home or disabled with a
trigger lock when not carried on the person, burdened the
rights protected by the Second Amendment because such
storage regulations were not part of a long historical tradition
of proscription. Nevertheless, the panel determined that
section 4512 was not a substantial burden on the Second
Amendment right itself because it did not prevent an
individual from possessing a firearm in the home. Applying
intermediate scrutiny, the panel held that San Francisco had
shown that section 4512’s requirement that persons store
handguns in a locked storage container or with a trigger lock
when not carried on the person was substantially related to

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 3

the important government interest of reducing firearm-related
deaths and injuries.

The panel held that the second regulation, San Francisco
Police Code section 613.10(g), which prohibits the sale of
hollow-point ammunition within San Francisco, may burden
the core Second Amendment right of self-defense and the
record contained no persuasive historical evidence suggesting
otherwise. The panel therefore held that section 613.10(g)
regulated conduct within the scope of the Second
Amendment. Applying intermediate scrutiny, the panel held
that San Francisco carried its burden of establishing that
section 613.10(g) was a reasonable fit to achieve its goal of
reducing the lethality of ammunition.

The panel held that because San Francisco’s regulations
did not destroy the Second Amendment right, and survived
intermediate scrutiny, the district court did not abuse its
discretion in concluding that plaintiffs would not succeed on
the merits of their claims.

COUNSEL

C.D. Michel (argued), Michel & Associates, P.C., Long
Beach, California for Plaintiffs-Appellants.

Dennis J. Herrera, City Attorney; Wayne Snodgrass and
Christine Van Aken (argued), Deputy City Attorneys, San
Francisco, California for Defendants-Appellees.

Richard E. Gardiner, Fairfax, Virginia, for Amicus Curiae
The Law Enforcement Alliance of America.
4 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

Anthony T. Caso, John C. Eastman, and Karen J. Lugo,
Orange, California, for Amicus Curiae Center for
Constitutional Jurisprudence.

David B. Kopel, Denver, Colorado; Dan M. Peterson, Dan M.
Peterson PLLC, Fairfax, Virginia, for Amici Curiae
California Rifle and Pistol Association Foundation and
Independence Institute.

Don B. Kates, Battle Ground, Washington, for Amicus Curiae
FFLGuard LLC and Gun Owners of California, Inc.

Paul Flum and Anand Viswanathan, San Francisco,
California, for Amicus Curiae Brady Center to Prevent Gun
Violence and Major Cities Chiefs Association; Jonathan
Lowy, Washington D.C., for Amicus Curiae Brady Center to
Prevent Gun Violence.

Brent P. Ray and Casey R. Frank, Chicago, Illinois, for
Amicus Curiae Law Center to Prevent Gun Violence.
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 5

OPINION

IKUTA, Circuit Judge:

I

This appeal raises the question whether two of San
Francisco’s firearm and ammunition regulations, which limit
but do not destroy Second Amendment rights, are
constitutional. We conclude that both regulations withstand
constitutional scrutiny, and affirm the district court’s denial
of Jackson’s motion for preliminary injunction.

II

San Francisco Police Code section 4512 provides that
“[n]o person shall keep a handgun within a residence owned
or controlled by that person unless” (1) “the handgun is stored
in a locked container or disabled with a trigger lock that has
been approved by the California Department of Justice,” or
(2) “[t]he handgun is carried on the person of an individual
over the age of 18.”1 S.F., Cal., Police Code art. 45,
§ 4512(a), (c)(1). Violations of section 4512 are punishable
by a fine of up to $1,000 and up to six months in prison. Id.
§ 4512(e).

San Francisco Police Code section 613.10(g) prohibits the
sale of ammunition that (1) has “no sporting purpose,” (2) is
“designed to expand upon impact and utilize the jacket, shot
or materials embedded within the jacket or shot to project or
disperse barbs or other objects that are intended to increase

1
Section 4512 also contains an exception for a handgun “under the
control of a peace officer.”
6 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

the damage to a human body or other target,” or (3) is
“designed to fragment upon impact.” S.F., Cal., Police Code
art. 9, § 613.10(g). Bullets that expand or fragment upon
impact are generally referred to as “hollow-point”
ammunition.

On May 15, 2009, Espanola Jackson, Paul Colvin,
Thomas Boyer, Larry Barsetti, David Golden, Noemi
Margaret Robinson, the National Rifle Association, and the
San Francisco Veteran Police Officers Association brought
suit against the City and County of San Francisco, and other
defendants, to challenge the validity of Police Code sections
4512 and 613.10(g) as impermissible violations of the right
to bear arms under the Second Amendment.2 The individual
plaintiffs are handgun owners and citizens of San Francisco
“who presently intend to keep their handguns within the
home in a manner ready for immediate use to protect
themselves and their families.” The organizations have
brought this suit on behalf of their members, who have an
interest in keeping handguns within their home for self-
defense.

On August 30, 2012, Jackson moved for a preliminary
injunction. The district court denied that motion on
November 26, 2012. Plaintiffs filed a timely notice of appeal
on December 21, 2012.

III

Jackson challenges the district court’s order denying her
motion for preliminary injunction of sections 4512 and

2
We refer to plaintiffs collectively as “Jackson.” We refer to the
defendants as “San Francisco.”
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 7

613.10(g) on the ground that both infringe upon her Second
Amendment rights. To obtain a preliminary injunction,
Jackson must establish that (1) she is likely to succeed on the
merits; (2) she is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips
in her favor; and (4) an injunction is in the public interest.
Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046,
1052 (9th Cir. 2009) (citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). A denial of preliminary
injunction is reviewed for abuse of discretion. See Sanders
Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741,
744 (9th Cir. 2012). However, “[t]he district court’s
interpretation of the underlying legal principles . . . is subject
to de novo review.” Sw. Voter Registration Educ. Project v.
Shelley, 344 F.3d 914, 918 (9th Cir. 2003).

IV

We turn first to the question whether the district court
abused its discretion in concluding that Jackson did not carry
her burden of showing a likelihood of success on the merits
of her challenge to sections 4512 and 613.10(g).

We begin with the text of the Second Amendment: “A
well regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not
be infringed.” U.S. Const. amend. II. Our analysis of this text
starts with District of Columbia v. Heller, 554 U.S. 570
(2008). In Heller, the Supreme Court considered whether
the District of Columbia’s regulations, which barred the
possession of handguns both inside and outside the home,
and required other firearms to be kept “unloaded and
disassembled or bound by a trigger lock or similar device,”
violated the plaintiff’s Second Amendment rights. 554 U.S.
8 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

at 575. After undertaking a lengthy analysis of the original
public meaning of the Second Amendment, the Court
concluded that it confers “an individual right to keep and bear
arms.” Id. at 595. Guided by the same historical inquiry, the
Court emphasized that “the inherent right of self-defense has
been central to the Second Amendment right.” Id. at 628.
Therefore, prohibiting the possession of handguns was
unconstitutional. Id. at 628–29. Similarly, the District of
Columbia’s requirement that “firearms in the home be
rendered and kept inoperable at all times” made “it
impossible for citizens to use [firearms] for the core lawful
purpose of self-defense and [was] hence unconstitutional.” Id.
at 630.3

Heller did not purport to “clarify the entire field” of
Second Amendment jurisprudence and does not provide
explicit guidance on the constitutionality of regulations which
are less restrictive than the near-total ban at issue in that case.
Id. at 635. But Heller’s method of analysis suggests a broad
framework for addressing Second Amendment challenges.
First, Heller determined whether the possession of operable
weapons in the home fell within “the historical understanding
of the scope of the [Second Amendment] right.” Id. at 625.
In conducting this analysis, Heller indicated that the Second
Amendment does not preclude certain “longstanding
prohibitions” and “presumptively lawful regulatory
measures,” such as “prohibitions on carrying concealed
weapons,” “prohibitions on the possession of firearms by
felons and the mentally ill,” “laws forbidding the carrying of
firearms in sensitive places such as schools and government

3
McDonald v. City of Chicago held that the Second Amendment right
recognized in Heller is fully applicable to the States. 130 S. Ct. 3020,
3050 (2010).
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 9

buildings,” “laws imposing conditions and qualifications on
the commercial sale of arms,” and prohibitions on “the
carrying of ‘dangerous and unusual weapons,’” referring to
weapons that were not “in common use at the time” of the
enactment of the Second Amendment. Id. at 626–27, 627
n.26 (internal citations and quotations omitted).

Next, after determining that the possession of operable
weapons fell within the scope of the Second Amendment,
Heller considered the appropriate level of scrutiny for the
challenged regulation. In light of the severity of the
restriction posed by the D.C. regulation, Heller determined
that it was unconstitutional “[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional
rights.” Id. at 628. As Heller made clear, “‘[a] statute which,
under the pretence of regulating, amounts to a destruction of
the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defence, would be
clearly unconstitutional.’” Id. at 629 (quoting State v. Reid,
1 Ala. 612, 616–17 (1840)). While Heller did not specify the
appropriate level of scrutiny for Second Amendment claims,
it nevertheless confirmed that rational basis review is not
appropriate, explaining that “[i]f all that was required to
overcome the right to keep and bear arms was a rational basis,
the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have
no effect.” Id. at 628 n.27.

Like the majority of our sister circuits, we have discerned
from Heller’s approach a two-step Second Amendment
inquiry. See United States v. Chovan, 735 F.3d 1127,
1136–37 (9th Cir. 2013) (collecting cases). The two-step
inquiry we have adopted “(1) asks whether the challenged
law burdens conduct protected by the Second Amendment
10 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

and (2) if so, directs courts to apply an appropriate level of
scrutiny.” Id. at 1136 (citing United States v. Chester,
628 F.3d 673, 680 (4th Cir. 2010); United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). As other
circuits have recognized, this inquiry bears strong analogies
to the Supreme Court’s free-speech caselaw. See, e.g., Ezell
v. City of Chicago, 651 F.3d 684, 702–03, 706 (7th Cir. 2011)
(“Both Heller and McDonald suggest that First Amendment
analogies are more appropriate, and on the strength of that
suggestion, we and other circuits have already begun to adapt
First Amendment doctrine to the Second Amendment
context.” (internal citation omitted)).

In the first step, we ask “whether the challenged law
burdens conduct protected by the Second Amendment,”
Chovan, 735 F.3d at 1136, based on a “historical
understanding of the scope of the [Second Amendment]
right,” Heller, 554 U.S. at 625, or whether the challenged law
falls within a “well-defined and narrowly limited” category
of prohibitions “that have been historically unprotected,”
Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733,
2734 (2011). To determine whether a challenged law falls
outside the historical scope of the Second Amendment, we
ask whether the regulation is one of the “presumptively
lawful regulatory measures” identified in Heller, 554 U.S. at
627 n.26, or whether the record includes persuasive historical
evidence establishing that the regulation at issue imposes
prohibitions that fall outside the historical scope of the
Second Amendment, Chovan, 735 F.3d at 1137. See also
United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012)
(noting that only “the few historic and traditional categories
[of conduct] long familiar to the bar” fall outside the scope of
First Amendment protection (internal quotations omitted)).
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 11

If a prohibition falls within the historical scope of the
Second Amendment, we must then proceed to the second step
of the Second Amendment inquiry to determine the
appropriate level of scrutiny. Chovan, 735 F.3d at 1136.
When ascertaining the appropriate level of scrutiny, “just as
in the First Amendment context,” we consider: “(1) ‘how
close the law comes to the core of the Second Amendment
right’ and (2) ‘the severity of the law’s burden on the right.’”
Chovan, 735 F.3d at 1138 (quoting Ezell, 651 F.3d at 703).

In analyzing the first prong of the second step, the extent
to which the law burdens the core of the Second Amendment
right, we rely on Heller’s holding that the Second
Amendment has “the core lawful purpose of self-defense,”
554 U.S. at 630, and that “whatever else it leaves to future
evaluation, [the Second Amendment] surely elevates above
all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id. at
635; see also Chovan, 735 F.3d at 1138 (stating that a core
right under the Second Amendment is “the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home”).

In analyzing the second prong of the second step, the
extent to which a challenged prohibition burdens the Second
Amendment right, we are likewise guided by First
Amendment principles. Cf. Ezell, 651 F.3d at 706–07. As we
explained in Chovan, laws which regulate only the “manner
in which persons may exercise their Second Amendment
rights” are less burdensome than those which bar firearm
possession completely. 735 F.3d at 1138; see also Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that
laws that place “reasonable restrictions on the time, place, or
manner of protected speech” and that “leave open alternative
12 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

channels for communication of information,” pose less of a
burden on the First Amendment right and are reviewed under
intermediate scrutiny). Similarly, firearm regulations which
leave open alternative channels for self-defense are less likely
to place a severe burden on the Second Amendment right than
those which do not. Cf. Marzzarella, 614 F.3d at 97
(applying intermediate scrutiny to a regulation which “leaves
a person free to possess any otherwise lawful firearm he
chooses—so long as it bears its original serial number”).

A law that imposes such a severe restriction on the core
right of self-defense that it “amounts to a destruction of the
[Second Amendment] right,” is unconstitutional under any
level of scrutiny. Heller, 554 U.S. at 629 (internal quotations
omitted). By contrast, if a challenged law does not implicate
a core Second Amendment right, or does not place a
substantial burden on the Second Amendment right, we may
apply intermediate scrutiny. See, e.g., Chovan, 735 F.3d at
1138–39; cf. Heller v. District of Columbia (Heller II),
670 F.3d 1244, 1257 (D.C. Cir. 2011) (“[A] regulation that
imposes a substantial burden upon the core right of
self-defense protected by the Second Amendment must have
a strong justification, whereas a regulation that imposes a less
substantial burden should be proportionately easier to
justify.”).

V

We now apply these principles to the facts of this case.
We begin by addressing Jackson’s facial and as-applied
challenge to the constitutionality of section 4512, which
requires handguns to be stored in a locked container when not
carried on the person.
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 13

A

As a threshold issue, San Francisco argues that Jackson
may not bring a facial challenge to section 4512. San
Francisco contends that Jackson conceded that locked storage
is appropriate in some circumstances, such as when it is
foreseeable that a child would otherwise gain possession of
a firearm. Therefore, San Francisco claims that section 4512
has a “plainly legitimate sweep,” and a facial challenge is
inappropriate. Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008) (quoting Wash. v.
Glucksberg, 521 U.S. 702, 739–40 & n.7 (1997)).

San Francisco’s argument reflects a misunderstanding of
the Supreme Court’s jurisprudence. Facial challenges are
disfavored for two reasons. First, when considering
“complex and comprehensive legislation,” we may not
“resolve questions of constitutionality with respect to each
potential situation that might develop,” especially when the
moving party does not demonstrate that the legislation
“would be unconstitutional in a large fraction of relevant
cases.” Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007)
(internal quotation omitted). Second, facial challenges “often
rest on speculation.” Wash. State Grange, 552 U.S. at 450.
Consequently, “they raise the risk of premature
interpretations of statutes on the basis of factually barebones
records,” and “threaten to short circuit the democratic process
by preventing laws embodying the will of the people from
being implemented in a manner inconsistent with the
Constitution.” Id. at 450–51.

Jackson’s facial challenge to section 4512 raises neither
concern. First, section 4512 is not an example of “complex
and comprehensive legislation” which may be constitutional
14 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

in a broad swath of cases. Either it is a permissible burden on
the Second Amendment right to “keep and bear arms” or it is
not. Second, unlike the voting scheme at issue in Washington
State Grange, the constitutionality of section 4512 does not
turn on how San Francisco chooses to enforce it. The statute
constitutes a flat prohibition on keeping unsecured handguns
in the home. On its face, it does not give courts the
opportunity to construe the prohibition narrowly or accord the
prohibition “a limiting construction to avoid constitutional
questions.” Id. at 450.

B

We next apply the two-step inquiry to determine whether
section 4512 is constitutional. We consider whether section
4512 burdens conduct protected by the Second Amendment.
If so, we then determine an appropriate level of scrutiny.
Chovan, 735 F.3d at 1136.

First, we ask whether section 4512 regulates conduct
“historically understood to be protected” by the Second
Amendment “right to keep and bear arms.” Chovan,
735 F.3d at 1136, 1137. In analyzing the scope of the Second
Amendment, we begin with the list of “presumptively lawful”
regulations provided by Heller. See 554 U.S. at 626–27; see
also Chovan, 735 F.3d at 1137. Section 4512 resembles none
of them, because it regulates conduct at home, not in
“sensitive places”; applies to all residents of San Francisco,
not just “felons or the mentally ill”; has no impact on the
“commercial sale of arms,” and it regulates handguns, which
Heller itself established were not “dangerous and unusual.”
554 U.S. at 626–27.
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 15

Nor does section 4512 resemble the prohibitions
discussed in “historical evidence in the record before us.”
Chovan, 735 F.3d at 1137 (internal citation omitted). Heller
discusses two founding-era laws which regulated the storage
of firearms and gunpowder. See 554 U.S. at 631–32. First,
it notes a 1783 Massachusetts law that prohibited residents of
Boston from taking loaded firearms into “any Dwelling
House, Stable, Barn, Out-house, Ware-house, Store, Shop or
other Building.” Id. at 631 (quoting Act of Mar. 1, 1783, ch.
13, 1783 Mass. Acts p. 218.) Heller indicated that this statute
should be construed narrowly in light of its context, “which
makes clear that the purpose of the prohibition was to
eliminate the danger to firefighters posed by the ‘depositing
of loaded Arms’ in buildings.” 554 U.S. at 631. Heller also
concluded that the Massachusetts law was an outlier that
contradicted “the overwhelming weight of other evidence
regarding the right to keep and bear arms for defense of the
home.” Id. at 632. With respect to “gunpowder-storage
laws,” Heller noted they “did not clearly prohibit loaded
weapons, but required only that excess gunpowder be kept in
a special container or on the top floor of the home.” Id.
Because Heller rejected the probative value of this evidence,
these historical precedents do not establish that San
Francisco’s requirement is historically longstanding.

The other historical evidence in the record does not
establish that prohibitions such as those in section 4512 fall
outside the scope of “the Second Amendment, as historically
understood.” Chovan, 735 F.3d at 1137. San Francisco and
its amici note that many states regulated the storage of
gunpowder in the founding era, see, e.g., Act of June 28,
1762, 1762–1765 R.I. Acts & Resolves 132 (mandating that
large quantities of gunpowder be stored in a powder house);
1784 N.Y. Laws 627 (requiring gunpowder to be stored in
16 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

appropriate containers), and also point to reconstruction-era
state court decisions upholding gunpowder-storage
regulations as lawful applications of the state’s police powers,
see, e.g., Williams v. City Council of Augusta, 4 Ga. 509,
511–12 (1848); Foote v. Fire Dep’t of the City of New York.,
5 Hill 99, 100 (N.Y. Sup. Ct. 1843). But, as noted by Heller,
such laws are best described as “fire-safety” regulations.
554 U.S. at 632. The fact that states historically imposed
modest restrictions on the storage of gunpowder, a dangerous
and highly flammable substance, does not raise the inference
that the Second Amendment is inapplicable to regulations
imposing restrictions on the storage of handguns.

Because storage regulations such as section 4512 are not
part of a long historical “tradition of proscription,” Entm’t
Merchants Ass’n, 131 S. Ct. at 2734, we conclude that section
4512 burdens rights protected by the Second Amendment, see
Chovan, 735 F.3d at 1137.

C

Having determined that section 4512 regulates conduct
within the scope of the Second Amendment, we now turn to
the second step of the inquiry: deciding what level of
heightened scrutiny to apply to the ordinance. The level of
scrutiny depends upon “(1) how close the law comes to the
core of the Second Amendment right, and (2) the severity of
the law’s burden on the right.” Id. at 1138 (internal
quotations omitted).

We first consider whether the conduct regulated by
section 4512 is close to the core of the Second Amendment.
On its face, section 4512 implicates the core because it
applies to law-abiding citizens, and imposes restrictions on
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 17

the use of handguns within the home. See Heller, 554 U.S. at
635 (emphasizing “the right of law-abiding responsible
citizens to use arms in defense of hearth and home”). Section
4512 requires San Franciscans to choose, while in their
homes, between carrying a handgun on their person and
storing it in a locked container or with a trigger lock. S.F.,
Cal., Police Code art. 45, § 4512(a), (c)(1). As Jackson
argues, there are times when carrying a weapon on the person
is extremely impractical, such as when sleeping or bathing.
Therefore, as a practical matter, section 4512 sometimes
requires that handguns be kept in locked storage or disabled
with a trigger lock. Having to retrieve handguns from locked
containers or removing trigger locks makes it more difficult
“for citizens to use them for the core lawful purpose of self-
defense” in the home. Heller, 554 U.S. at 630. Section 4512
therefore burdens the core of the Second Amendment right.

This is not the end of our inquiry, however. We next look
to the severity of section 4512’s burden on the Second
Amendment right. Section 4512 does not impose the sort of
severe burden imposed by the handgun ban at issue in Heller
that rendered it unconstitutional. Id. Unlike the challenged
regulation in Heller, id. at 629, section 4512 does not
substantially prevent law-abiding citizens from using firearms
to defend themselves in the home. Rather, section 4512
regulates how San Franciscans must store their handguns
when not carrying them on their persons. This indirectly
burdens the ability to use a handgun, because it requires
retrieving a weapon from a locked safe or removing a trigger
lock. But because it burdens only the “manner in which
persons may exercise their Second Amendment rights,”
Chovan 735 F.3d at 1138, the regulation more closely
resembles a content-neutral speech restriction that regulates
only the time, place, or manner of speech. The record
18 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

indicates that a modern gun safe may be opened quickly.
Thus, even when a handgun is secured, it may be readily
accessed in case of an emergency. Further, section 4512
leaves open alternative channels for self-defense in the home,
because San Franciscans are not required to secure their
handguns while carrying them on their person. Provided San
Franciscans comply with the storage requirements, they are
free to use handguns to defend their home while carrying
them on their person.

Thus, Section 4512 does not impose the sort of severe
burden that requires the higher level of scrutiny applied by
other courts in this context. In Moore v. Madigan, for
instance, the government was obliged to meet a higher level
of scrutiny than intermediate scrutiny to justify a “blanket
prohibition” on carrying an operable gun in public. 702 F.3d
933, 940 (7th Cir. 2012). By contrast, section 4512 does not
constitute a complete ban, either on its face or in practice, on
the exercise of a law-abiding individual’s right to self
defense. Nor does section 4512 burden Second Amendment
rights to the same degree as a Chicago ordinance prohibiting
firing ranges in the city, which the Seventh Circuit analyzed
under “a more rigorous showing” than intermediate scrutiny,
“if not quite ‘strict scrutiny.’” Ezell, 651 F.3d at 708. The
Seventh Circuit reasoned that the “ban is not merely
regulatory; it prohibits the law-abiding, responsible citizens
of Chicago from engaging in target practice in the controlled
environment of a firing range,” and was therefore “a serious
encroachment on the right to maintain proficiency in firearm
use, an important corollary to the meaningful exercise of the
core right to possess firearms for self-defense.” Id. (internal
quotation marks omitted). Section 4512 does not impose
such a serious encroachment on the core right; rather, it is
more similar to the registration requirements upheld in Heller
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 19

II. In that case, the D.C. Circuit applied intermediate scrutiny
to evaluate registration requirements, including mandatory
firearm training and instruction, which “make it considerably
more difficult for a person lawfully to acquire and keep a
firearm, including a handgun, for the purpose of self-defense
in the home . . . .” 670 F.3d at 1255. The D.C. Circuit
reasoned that “none of the District’s registration requirements
prevents an individual from possessing a firearm in his home
or elsewhere, whether for self-defense or hunting, or any
other lawful purpose,” and therefore intermediate scrutiny
was appropriate. Id. at 1257–58 (emphasis added). Likewise,
section 4512 does not prevent an individual from possessing
a firearm in the home.

Accordingly, we conclude section 4512 is not a
substantial burden on the Second Amendment right itself.
Even though section 4512 implicates the core of the Second
Amendment right, because it does not impose a substantial
burden on conduct protected by the Second Amendment, we
apply intermediate scrutiny. Cf. id.

D

Having determined the applicable standard of review, we
must now determine whether section 4512 withstands
intermediate scrutiny. “[C]ourts have used various
terminology to describe the intermediate scrutiny standard.”
Chovan, 735 F.3d at 1139; compare Ward v. Rock Against
Racism, 491 U.S. 781, 798 (1989) (holding that “a regulation
of the time, place, or manner of protected speech must be
narrowly tailored to serve the government’s legitimate,
content-neutral interests but that it need not be the least
restrictive or least intrusive means of doing so,”) with Bd. of
Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)
20 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

(requiring “the government goal to be substantial, and the
cost to be carefully calculated,” and holding that “since the
State bears the burden of justifying its restrictions, it must
affirmatively establish the reasonable fit we require” (internal
citation omitted)). But “all forms of the standard require
(1) the government’s stated objective to be significant,
substantial, or important; and (2) a reasonable fit between the
challenged regulation and the asserted objective.” Chovan,
735 F.3d at 1139.

In analyzing the first prong of intermediate scrutiny
review, whether the government’s stated objective is
significant, substantial, or important, we must first define the
government’s objective. Cf. id. According to San Francisco,
the governmental objective in enacting section 4512 was to
reduce the number of gun-related injuries and deaths from
having an unlocked handgun in the home. See S.F., Cal.,
Police Code art. 45, § 4511(1)–(4). In considering a city’s
justifications for its ordinance, we do not impose “an
unnecessarily rigid burden of proof . . . so long as whatever
evidence the city relies upon is reasonably believed to be
relevant to the problem that the city addresses.” City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50–52 (1986).
Here, as the legislative findings explain, “[h]aving a loaded
or unlocked gun in the home is associated with an increased
risk of gun-related injury and death.” Id. § 4511(2). San
Francisco relied on evidence that “[g]uns kept in the home are
most often used in suicides and against family and friends
rather than in self-defense,” and that children are particularly
at risk of injury and death. Id. § 4511(3)–(4). San Francisco
therefore sought to “reduce[] the risk of firearm injury and
death” in the home through the use of trigger locks or lock
boxes under section 4512. Id. § 4511(5). “It is self-evident,”
Chovan, 735 F.3d at 1139, that public safety is an important
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 21

government interest. See, e.g., Nat’l Treasury Emps. Union
v. Von Raab, 489 U.S. 656, 670–71, 677 (1989) (holding that
government’s compelling interest in public safety justifies
drug testing of border agents who carry firearms); Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994) (“The
State also has a strong interest in ensuring the public safety
and order . . . .”). Accordingly, San Francisco has carried its
burden of demonstrating that its locked-storage law serves a
significant government interest by reducing the number of
gun-related injuries and deaths from having an unlocked
handgun in the home.

We next turn to the question whether section 4512 is
substantially related to San Francisco’s important interest. In
considering the question of fit, we review the legislative
history of the enactment as well as studies in the record or
cited in pertinent case law, Chovan, 735 F.3d at 1140, giving
the city “a reasonable opportunity to experiment with
solutions to admittedly serious problems,” City of Renton,
475 U.S. at 52 (internal quotations omitted). In the legislative
findings accompanying section 4512, San Francisco
concluded that firearm injuries are the third-leading cause of
death in San Francisco, and that having unlocked firearms in
the home increases the risk of gun-related injury, especially
to children. See S.F., Cal., Police Code art. 45, § 4511(1)(e),
(2)–(3). The record contains ample evidence that storing
handguns in a locked container reduces the risk of both
accidental and intentional handgun-related deaths, including
suicide. Based on the evidence that locking firearms
increases safety in a number of different respects, San
Francisco has drawn a reasonable inference that mandating
that guns be kept locked when not being carried will increase
public safety and reduce firearm casualties. This evidence
supports San Francisco’s position that section 4512 is
22 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

substantially related to its objective to reduce the risk of
firearm injury and death in the home.

Jackson contends that section 4512 is over-inclusive
because it applies even when the risk of unauthorized access
by children or others is low, such as when a handgun owner
lives alone. We reject this argument, because San Francisco
has asserted important interests that are broader than
preventing children or unauthorized users from using the
firearms, including an interest in preventing firearms from
being stolen and in reducing the number of handgun-related
suicides and deadly domestic violence incidents. See id.
§ 4511(2)(d), (4). Intermediate scrutiny does not require that
section 4512 be the least restrictive means of reducing
handgun-related deaths. Ward, 491 U.S. at 798. Moreover,
the burden imposed by the legislation is not substantial. San
Francisco relied on evidence showing that section 4512
imposes only a minimal burden on the right to self-defense in
the home because it causes a delay of only a few seconds
while the firearm is unlocked or retrieved from storage.
Because the ordinance imposes only a minimal burden on
the right to self-defense and San Francisco’s interest
encompasses more than just preventing minors from gaining
access to firearms, the ordinance is appropriately tailored to
fit San Francisco’s interest.

Accordingly, San Francisco has shown that section 4512’s
requirement that persons store handguns in a locked storage
container or with a trigger lock when not carried on the
person is substantially related to the important government
interest of reducing firearm-related deaths and injuries.
Jackson is thus not likely to succeed on the merits, and we
therefore affirm the district court’s denial of Jackson’s
motion for preliminary injunction. Because we decide on this
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 23

basis, we need not reach Jackson’s arguments that she
established the remaining prongs of the preliminary
injunction standard. See Am. Trucking Ass’ns, 559 F.3d at
1052.

VI

We now turn to the constitutionality of section 613.10(g),
which prohibits the sale of hollow-point ammunition within
San Francisco.

A

As a threshold issue, San Francisco contends that Jackson
lacks standing to challenge section 613.10(g). To satisfy
Article III standing, a plaintiff must show: “(1) an ‘injury in
fact’ that is ‘concrete and particularized’ and ‘actual or
imminent,’ not ‘conjectural or hypothetical’; (2) a ‘causal
connection between the injury’ and the challenged action of
the defendant; and (3) that it is ‘likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.’” Multistar Indus., Inc. v. U.S. Dep’t of Transp.,
707 F.3d 1045, 1054 (9th Cir. 2013) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). An
injury in fact is an “invasion of a legally protected interest.”
Lujan, 504 U.S. at 560.

San Francisco asserts that Jackson has not suffered an
injury in fact because she could easily obtain hollow-point
ammunition outside San Francisco. But the injury Jackson
alleges is not the inconvenience of leaving San Francisco;
rather, she alleges that the Second Amendment provides her
with a “legally protected interest,” id., to purchase hollow-
point ammunition, and that but for section 613.10(g), she
24 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

would do so within San Francisco. That Jackson may easily
purchase ammunition elsewhere is irrelevant. “In the First
Amendment context, the Supreme Court long ago made it
clear that one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it
may be exercised in some other place. The same principle
applies here.” Ezell, 651 F.3d at 697 (internal citations and
quotations omitted). Accordingly, section 613.10(g)
constitutes an injury in fact to Jackson, and she has standing
to challenge it.

B

Applying the two-step analysis outlined above, we first
ask whether a prohibition on the sale of hollow-point
ammunition regulates conduct “historically understood to be
protected” by the Second Amendment “right to keep and bear
arms.” Chovan, 735 F.3d at 1136–37.

The Second Amendment protects “arms,” “weapons,” and
“firearms”; it does not explicitly protect ammunition.
Nevertheless, without bullets, the right to bear arms would be
meaningless. A regulation eliminating a person’s ability to
obtain or use ammunition could thereby make it impossible
to use firearms for their core purpose. Cf. Heller, 554 U.S. at
630 (holding that “the District’s requirement (as applied to
respondent’s handgun) that firearms in the home be rendered
and kept inoperable at all times . . . makes it impossible for
citizens to use them for the core lawful purpose of
self-defense and is hence unconstitutional”). Thus “the right
to possess firearms for protection implies a corresponding
right” to obtain the bullets necessary to use them. Cf. Ezell,
651 F.3d at 704 (holding that the right to possess firearms
implied a corresponding right to have access to firing ranges
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 25

in order to train to be proficient with such firearms). Indeed,
Heller did not differentiate between regulations governing
ammunition and regulations governing the firearms
themselves. See 554 U.S. at 632. Rather, the Court
considered the burden certain gunpowder-storage laws
imposed on the Second Amendment right, and determined
that they did not burden “the right of self-defense as much as
an absolute ban on handguns.” Id. This observation would
make little sense if regulations on gunpowder and
ammunition fell outside the historical scope of the Second
Amendment.

Conducting our historical review, we conclude that
prohibitions on the sale of ammunition do not fall outside
“the historical understanding of the scope of the [Second
Amendment] right.” Id. at 625. Heller does not include
ammunition regulations in the list of “presumptively lawful”
regulations. See id. at 626–27, 627 n.26. Nor has San
Francisco pointed to historical prohibitions discussed in case
law or other “historical evidence in the record before us”
indicating that restrictions on ammunition fall outside of the
historical scope of the Second Amendment. Chovan,
735 F.3d at 1137 (internal quotation omitted).

Because restrictions on ammunition may burden the core
Second Amendment right of self-defense and the record
contains no persuasive historical evidence suggesting
otherwise, section 613.10(g) regulates conduct within the
scope of the Second Amendment.

C

We next turn to the appropriate level of scrutiny to apply
to the challenged regulation. We consider how close section
26 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

613.10(g) is to the core of the Second Amendment right, and
the severity of its burden on that right. See Chovan, 735 F.3d
at 1138.

We first consider how close San Francisco’s ban on the
sale of hollow-point bullets comes to the core of the Second
Amendment right. Jackson contends that hollow-point bullets
are far better for self-defense than fully jacketed ammunition
because they have greater stopping power and are less likely
to overpenetrate or ricochet. Barring their sale, she argues,
therefore imposes a substantial burden on the right of self-
defense. We disagree. There is no evidence in the record
indicating that ordinary bullets are ineffective for self-
defense. Moreover, section 613.10(g) prohibits only the sale
of hollow-point ammunition within San Francisco, not the use
or possession of such bullets. Such a sales prohibition
burdens the core right of keeping firearms for self-defense
only indirectly, because Jackson is not precluded from using
the hollow-point bullets in her home if she purchases such
ammunition outside of San Francisco’s jurisdiction.

Nor does section 613.10(g) place a substantial burden on
the Second Amendment right. A ban on the sale of certain
types of ammunition does not prevent the use of handguns or
other weapons in self-defense. The regulation in this case
limits only the manner in which a person may exercise
Second Amendment rights by making it more difficult to
purchase certain types of ammunition. This is akin to a
content-neutral time, place, and manner restriction, such as a
regulation which prevents a person from owning a firearm
with an obliterated serial number while not barring the
possession of an otherwise lawful firearm. See Marzzarella,
614 F.3d at 97. Further, section 613.10(g) leaves open
alternative channels for self-defense in the home. Jackson
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 27

may either use fully-jacketed bullets for self-defense or
obtain hollow-point bullets outside of San Francisco’s
jurisdiction. Because section 613.10(g) neither regulates
conduct at the core of the Second Amendment right nor
burdens that right severely, we review it under intermediate
scrutiny.

D

In considering whether section 613.10(g) withstands
intermediate scrutiny, we must first define the governmental
interest served by section 613.10(g), and determine whether
it is substantial. Again, we review the legislative history of
the enactment as well as studies in the record or cited in
pertinent case law. Chovan, 735 F.3d at 1139. In the
legislative findings accompanying section 613.10(g), San
Francisco states that it “has a legitimate, important and
compelling government interest in reducing the likelihood
that shooting victims in San Francisco will die of their
injuries by reducing the lethality of the ammunition sold and
used in the City and County of San Francisco.” S.F., Cal.,
Police Code art. 9, § 613.9.5(6). It is self-evident that San
Francisco’s interest in reducing the fatality of shootings is
substantial. See Chovan, 735 F.3d at 1139.

We next consider the fit between section 613.10(g) and
this interest to determine whether section 613.10 is
substantially related to San Francisco’s important interest of
reducing the lethality of ammunition. See id. at 1140.

Legislative findings explain San Francisco’s reasons for
adopting the approach in section 613.10(g). Section
613.9.5(2) states that hollow-point bullets are “designed to
tear larger wounds in the body by flattening and increasing in
28 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

diameter on impact,” and that “[t]hese design features
increase the likelihood that the bullet will hit a major artery
or organ.” Therefore, San Francisco concluded that hollow-
point bullets are “more likely to cause severe injury and death
than is conventional ammunition that does not flatten or
fragment upon impact.” Id. Jackson generally argues that
these legislative findings rely on bad science and erroneous
assumptions. More specifically, she challenges San
Francisco’s conclusion that hollow-point ammunition is more
lethal than other bullets. She bases this argument on an
American Bar Association publication, which states that
“medical examiners have been unable to show any difference
in lethality between hollow-point and traditional round-nosed
lead bullets.” Lisa Steel, Ballistics, in Science for Laywers 11
(ABA Sec. of Sci. & Tech. Law) (Eric York Drogin ed.,
2008).

We are not persuaded by Jackson’s arguments. The
Supreme Court has held that a municipality may rely on any
evidence “reasonably believed to be relevant” to substantiate
its important interest in regulating speech. City of Renton,
475 U.S. at 51–52. Of course, “the municipality’s evidence
must fairly support the municipality’s rationale for its
ordinance,” City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425, 438 (2002) (plurality), and courts should not
credit facially implausible legislative findings. In this case,
San Francisco’s evidence more than “fairly supports” its
conclusion that hollow-point bullets are more lethal than
other types of ammunition. At most, Jackson’s evidence
suggests that the lethality of hollow-point bullets is an open
question, which is insufficient to discredit San Francisco’s
reasonable conclusions. Section 613.10(g) is a reasonable fit
for achieving its objective of reducing the lethality of
 JACKSON V. CITY & CNTY. OF SAN FRANCISCO 29

ammunition because it targets only that class of bullet which
exacerbates lethal firearm-related injuries.

Jackson contends that San Francisco could have adopted
less burdensome means of restricting hollow-point
ammunition, for example by prohibiting the possession of
hollow-point bullets in public, but allowing their purchase for
home defense. See, e.g., N.J. Stat. Ann. § 2C:39-3(f), (g).
Even if this is correct, intermediate scrutiny does not require
the least restrictive means of furthering a given end. Ward,
491 U.S. at 798. City of Renton emphasizes that a “city must
be allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems.” 475 U.S. at 52
(internal quotation omitted). We also doubt that the laws to
which Jackson points are indeed less burdensome than section
613.10(g). Because section 613.10(g) affects only the sale of
hollow-point ammunition, San Franciscans are free to use and
possess hollow-point bullets within city limits. Under
Jackson’s “less burdensome” alternatives, individuals would
face criminal prosecution for possessing such ammunition
outside the home. Given the availability of alternative means
for procuring hollow-point ammunition, section 613.10(g)
imposes only modest burdens on the Second Amendment
right.

Accordingly, we conclude that San Francisco carried its
burden of establishing that section 613.10(g) is a reasonable
fit to achieve its goal of reducing the lethality of ammunition,
and section 613.10(g) thus satisfies intermediate scrutiny.
We therefore conclude that Jackson has not carried her
burden of showing she is likely to succeed on the merits.
Accordingly, we need not reach the remaining preliminary
injunction factors. See Am. Trucking Ass’ns, 559 F.3d at
1052.
30 JACKSON V. CITY & CNTY. OF SAN FRANCISCO

VII

We recognize the significance of the Second Amendment
right to keep and bear arms. “[I]t is clear that the Framers
and ratifiers of the Fourteenth Amendment counted the right
to keep and bear arms among those fundamental rights
necessary to our system of ordered liberty.” McDonald,
130 S. Ct. at 3042. But we also recognize that the Second
Amendment right, like the First Amendment right to freedom
of speech, may be subjected to governmental restrictions
which survive the appropriate level of scrutiny. Because San
Francisco’s regulations do not destroy the Second
Amendment right, and survive intermediate scrutiny, the
district court did not abuse its discretion in concluding that
Jackson would not succeed on the merits of her claims. We
therefore affirm the district court’s denial of Jackson’s
motion for preliminary injunction.

AFFIRMED.