Amicus Brief: Fyock v. Sunnyvale

Everytown for Gun Safety filed this amicus brief in the Ninth Circuit to defend the ability of the voters of Sunnyvale, California, to adopt gun laws suited to local conditions—in this case, a restriction on possession of large capacity magazines. In March, 2015, the Ninth Circuit ruled in Everytown’s favor and upheld the gun law adopted by Sunnyvale’s voters.

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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
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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
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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
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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
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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
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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
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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 ………………………………………………………………………..24, 25
Guns and Crime: Breaking New Ground by Focusing on the Local Impact, POLICE
EXECUTIVE RESEARCH FORUM (May 2010), http://bit.ly/1rcCb4d (last visited
May 12, 2014)………………………………………………………………………………………..26
Analysis of Recent Mass Shootings, MAYORS AGAINST ILLEGAL GUNS (Sept. 2013),
http://bit.ly/R5K9zi (last visited June 24, 2014)………………………………………….27
Peter Applebome, Legislators in Connecticut Agree on Broad New Gun Laws,
N.Y. TIMES, Apr. 1, 2013, available at
http://www.nytimes.com/2013/04/02/nyregion/connecticut-legislators-agreeon-far-reaching-gun-control.html?pagewanted=all&_r=0
……………………………25
Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 85 (2013)…………….3, 4, 5, 7
Mark Rosen, Our Nonuniform Constitution: Geographical Variations of
Constitutional Requirements in the Aid of Community, 77 TEX. L. REV. 1129
(1999)……………………………………………………………………………………………………20
Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms
in Early America: The Legal Context of the Second Amendment,
25 LAW & HIST. REV. 139 (2007)………………………………………………………………..5
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INTEREST OF AMICUS CURIAE
Everytown for Gun Safety (“Everytown”) is a movement of Americans
fighting for common-sense policies that will reduce gun violence and save lives.1

Everytown was formed when two of the country’s leading gun violence prevention
organizations — Mayors Against Illegal Guns and Moms Demand Action for Gun
Sense in America — joined forces to create a grassroots movement of more than
1.9 million members. Mayors Against Illegal Guns is a national coalition of
current and former mayors from 44 states, from small towns and big cities, and
from across the political spectrum. Everytown’s mayors are united in their belief
that respect for the Second Amendment goes hand-in-hand with common-sense
laws that reduce gun violence and save lives. Co-founded in 2006 by the mayors
of New York City and Boston, Michael Bloomberg and Thomas Menino, Mayors
Against Illegal Guns includes the chief executives the country’s five largest cities
as well as more than 1,000 current and former mayors of cities and towns across
the country. The coalition also included Tony Spitaleri, who was mayor of
Sunnyvale, California when the voters of Sunnyvale — by an overwhelming,
nearly two-to-one margin — enacted the ordinance at issue in this litigation (“the
Ordinance”).
1 Appellants and Appellees have consented to the filing of this Brief of Amicus
Curiae Everytown for Gun Safety In Support of Appellees.
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SUMMARY OF ARGUMENT
Since before the founding of this country and still to this day, local
communities have adopted gun laws that varied based on the specific needs of each
community. These local laws have long been understood as consistent with the
Second Amendment and our constitutional tradition. When an overwhelming
majority of the citizens of Sunnyvale, California voted to adopt the Ordinance,
they acted consistently with this tradition and enacted a law that plainly passes
constitutional muster. The Ordinance does not burden Second Amendment rights:
It is a presumptively lawful regulation in line with numerous historic regulations of
weapons with enhanced lethality; plaintiffs have not shown that the magazines
prohibited under the Ordinance are commonly owned or used for self-defense in
Sunnyvale; and, multiple alternative channels for self-defense are available. But
even if it did impinge on the Second Amendment, the Ordinance would easily
satisfy the applicable intermediate scrutiny: the citizens of Sunnyvale undoubtedly
have a substantial interest in protecting their community and the Ordinance
reasonably advances their interest in reducing the dangers of gun violence. For all
these reasons, this Court should affirm the district court’s order denying plaintiffs’
motion for a preliminary injunction.
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ARGUMENT
I. VARIATIONS IN LOCAL GUN LAWS ARE PART OF A
LONGSTANDING TRADITION THAT DEFINES THE
CONTOURS OF THE RIGHT PROTECTED BY THE SECOND
AMENDMENT.
The scope of the Second Amendment right to keep and bear arms is
informed by “both text and history.” District of Columbia v. Heller, 554 U.S. 570,
595 (2008) (“Heller”). The historical analysis includes an examination of both
“the pre-ratification historical background of the Second Amendment,” and
sources that “shed light on the public understanding of the Second Amendment in
the period after its enactment or ratification.” Peruta v. Cnty. of San Diego, 742
F.3d 1144, 1151 (9th Cir. 2014), en banc petition pending (internal quotations,
alterations, and citations omitted).
Historical inquiry shows that, both before and after ratification of the Second
Amendment, gun laws were tailored to address local conditions. In particular, gun
laws have always tended to be more restrictive in densely populated metropolitan
areas, where risks from the misuse of firearms are greater, and less restrictive in
rural and exurban regions, where those risks are more attenuated. Indeed, “firearm
localism” may be the most longstanding characteristic of gun regulation. See
Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 85 (2013).
Courts hearing Second Amendment challenges should bear in mind this
history of firearm localism when reviewing local gun laws that respond to local
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needs. The Ordinance is part of this long-standing tradition under the Second
Amendment, and reflects Sunnyvale’s substantial interest in enacting laws that
help reduce gun violence within city limits.
A. Historically, Local Laws Regarding Gun Use And Possession
Have Varied To Meet The Needs Of Each Community.
Historically and today, local gun laws have varied as dramatically as the
country’s myriad hamlets, villages, towns, and sprawling, densely populated
metropolitan centers. Local firearm laws have always fallen along a broad
spectrum, reflecting the different rules local polities have enacted to maintain
public safety in widely divergent circumstances. This historic practice is fully
consistent with our constitutional tradition.
The Supreme Court observed in Heller that “the Second Amendment . . .
codified a preexisting right.” 554 U.S. at 592 (emphasis omitted). As early as the
14th Century, the exercise of that right in England was subject to important
limitations, especially in densely populated London and other crowded locations
where members of the public congregated and arms could prove particularly
dangerous — like “Fairs” and “Markets.” See Blocher, 123 YALE L.J. at 112-13
(collecting statutes).
Local variations in gun laws continued in colonial America, both before and
after the right to bear arms was enshrined in the Constitution. The “shooting of
guns was prohibited in the cities of Philadelphia, New York, and Boston,” the three
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largest early American cities. Robert H. Churchill, Gun Regulation, the Police
Power, and the Right to Keep Arms in Early America: The Legal Context of the
Second Amendment, 25 LAW & HIST. REV. 139, 162 (2007); Heller, 554 U.S. at 683
(Breyer, J., dissenting). These same cities also “regulated, for fire-safety reasons,
the storage of gunpowder, a necessary component of an operational firearm.”
Heller, 554 U.S. at 684-85 (Breyer, J., dissenting) (citing Saul Cornell & Nathan
DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73
FORDHAM L. REV. 487, 510-12 (2004)).2

Gunpowder restrictions were not limited to the largest cities in the country;
states extended such restrictions to smaller cities and towns of varying sizes during
the Founding era.3
See Blocher, 123 YALE L.J. at 116-17. And, as states began
incorporating towns throughout the 19th century, many of them expressly
permitted these newly incorporated towns to enact locally-tailored gun laws. For
instance, when incorporating the towns of Hartford, New Haven, New London,
2 See Act of June 26, 1792, ch. 10, 1792 Mass. Acts 208; Act of Apr. 13, 1784, ch.
28, 1784 N.Y. Laws 627; Act of Dec. 6, 1783, ch. 1059, 11. Pa. Stat. 209.
3 See, e.g., Act of Apr. 13, 1782, ch. XIV, § XLII, 1781-1782 Pa. Laws 25, 41-42
(regulating the storage of gunpowder in “any house, shop, cellar, store or other
place” within the town limits of Carlisle, Pennsylvania); 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 (regulating gunpowder in Mobile, Alabama);
Act of Sept. 12, 1783, ch. LXXVI, § XLII, 1782-1783 Pa. Laws 124, 140
(regulating gun powder in Reading, Pennsylvania).
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Norwich and Middletown, the Connecticut Legislature provided that local
authorities had the express power “to make by-laws . . . relative to prohibiting and
regulating the bringing in, and conveying out, or storing of gun-powder . . . .” An
Act Incorporating the Cities of Hartford, New Haven, New London, Norwich and
Middletown, ch. 1, § 20, 1836 Conn. Pub. Acts 104-05. Other states passed similar
laws permitting local communities to regulate gunpowder.
4

Local firearm laws carried forward, even in frontier lands, as the country
expanded westward. In the so-called “Wild West,” numerous towns and cities
passed “blanket ordinances against the carrying of arms by anyone,” which
differed dramatically from gun rules in surrounding, unincorporated areas.
ROBERT R. DYKSTRA, THE CATTLE TOWNS 121 (1983). These frontier towns
nearly always proscribed the “carrying of dangerous weapons of any type,
concealed or otherwise, by persons other than law enforcement officers,” id., and
required visitors to leave their guns with local authorities at the city limits. See
4 See, e.g., An Act to Incorporate the City of Trenton, § 24, 1837 N.J. Laws 373
(“[I]t shall and may be lawful for the common council . . . to pass such ordinances .
. . for regulating the keeping and transporting of gunpowder or other combustible
or dangerous materials . . . .”); An Act to Incorporate the City of Key West, ch. 58,
§ 8, 1838 Fla. Laws 70 (“[T]he common council of said city shall have power and
authority to prevent and remove nuisances . . . to provide safe storage of gunpowder
. . . .”; An Act to Incorporate Nebraska City, § 25, 1867 Neb. Laws 68
(“The city council shall regulate the keeping and sale of gun-powder within the
city . . . .”).
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ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN
AMERICA 165 (2011).
There are numerous examples of laws that restricted gun ownership or use in
Western towns. In an effort to suppress violence in Dodge City, local leaders
passed a law imposing criminal penalties on “any person or persons found carrying
concealed weapons in the city of Dodge.” DYKSTRA, supra at 119. In 1879, out-oftown
visitors were welcome in Dodge City — but not if they were armed; upon
entering town, they would encounter a prominent billboard that read: “THE
CARRYING OF FIREARMS STRICTLY PROHIBITED.” WINKLER, supra at
165 (citation omitted). Similarly, in late 19th century Wichita, Kansas, when
visitors entered the city they were required to deposit their guns at police
headquarters. See id. at 122 (citing Kansas Statutes, 1868, p. 378). These laws
were vigorously enforced. Perhaps the most famous gun fight in American history,
the shoot-out at the OK Corral, took place after Wyatt Earp attempted to enforce a
Tombstone, Arizona ordinance that prohibited the carrying of firearms within city
limits. See WINKLER, supra, at 172-73. Throughout the 19th century — when,
according to the popular imagination, society was more tolerant of gun carriage
and usage — farmers and ranchers who could use guns without restriction in their
home communities encountered sweeping restrictions on gun possession and use
when they traveled to busy, crowded frontier towns.
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Other 19th century state laws prohibited the discharge of guns within the
limits of specific cities.5
As far back as 1845, for example, the Connecticut
legislature passed gun rules that applied within the city limits of New Haven,
Connecticut — a city that currently is approximately the same size as Sunnyvale
— and prohibited the firing of any firearms without permission of the mayor,
except for military purposes. See 1845 Conn. Acts 10, An Act Prohibiting the
Firing of Guns and Other Firearms in the City of New Haven, chap. 10.
Firearm laws adopted by Congress for the District of Columbia also reflect
the enduring tradition of tailoring gun laws to local conditions. In 1932, Congress
passed a law regulating possession in the District of firearms similar to those at
issue here, banning “any firearm which shoots . . . semiautomatically more than
twelve shots without reloading.” Act of July 8, 1932, ch. 465, §§ 1, 8, 47 Stat. 650,
650, 652 (emphasis added). This Congressional regulation of local gun use and
possession in Washington, D.C. predates the prohibition on gun possession by
convicted felons that the Supreme Court, in Heller, identified as “presumptively
lawful” by virtue of its longstanding history.6
554 U.S. at 626-27 n.26.
5 See, e.g., Ohio Act of Feb. 17, 1831, ch. 834 § 6; Act of Dec. 3, 1825, ch. 292 §
3, 1825 Tenn. Priv. Acts 306; Act of Jan. 30, 1847, ch. 79, 1846-1847 Va. Acts 67;
Act of Feb. 4, 1806, ch. 94, 1805-1806 Va. Acts 51.
6 The first federal restrictions on gun purchases and possession by convicted felons
were enacted through the Federal Firearms Act of 1938. See Federal Firearms Act
of 1938, 52 Stat. 1250 (June 30, 1938).
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B. California Courts Have Long Recognized The Appropriateness
Of Tailoring Firearm Laws To Local Conditions.
Consistent with this historical tradition, California courts have long
recognized that the state’s firearms laws will and should vary county to county,
area to area — and that such variation is constitutional. In Galvan v. Superior
Court of City & Cnty. of San Francisco, the court observed that the “problems with
firearms are likely to require different treatment in San Francisco County than in
Mono County should require no elaborate citation of authority.” 70 Cal. 2d 851,
864, 452 P.2d 930, 938 (1969) (holding that a San Francisco ordinance requiring
firearm registration was a constitutional exercise of local police power and was not
preempted).
More than thirty years later, the California Supreme Court reiterated that
tailoring gun laws to local conditions is an appropriate part of well-established
constitutional tradition, observing that “[t]he need for the regulation or prohibition
of the carrying of deadly weapons . . . may be much greater in large cities, where
multitudes of people congregate, than in the country districts or thinly settled
communities, where there is much less opportunity and temptation to commit
crimes of violence for which such weapons may be used.” Great W. Shows, Inc. v.
Cnty. of Los Angeles, 27 Cal. 4th 853, 867, 44 P.3d 120, 128 (2002) (holding that a
county may regulate the sale of firearms on its property). And, in People v.
Jenkins, the Appellate Department of the Superior Court in Los Angeles upheld a
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municipal ordinance that regulated carrying firearms in automobiles in California’s
largest city, observing that, “Los Angeles is a densely populated municipality. The
danger from gun men in a large city is far greater than in a sparsely settled rural
area and is a far more frequent occurrence.” 207 Cal. App. 2d Supp. 904, 907, 24
Cal. Rptr. 410 (App. Dep’t Super. Ct. 1962).
C. The Citizens Of Sunnyvale Acted Consistently With This
Longstanding Tradition When They Enacted the Ordinance.
When an overwhelming majority of Sunnyvale’s citizens voted to adopt the
Ordinance, they acted consistently with this centuries-long tradition of firearm
localism. In fact, the State of California had already decided that this issue should
not be uniformly decided state-wide, but was appropriately resolved by different
communities according to their own conditions.
California has taken certain policy choices off the table for local
communities. Because of the heightened lethality of large capacity magazines
(“LCMs”) and their close association with heightened death tolls in mass shootings
and killings of law enforcement officers, see infra at pp. 24-28, California’s state
legislators adopted a state LCM law that paralleled the federal Violent Crime
Control and Law Enforcement Act of 1994, which banned the possession and
transfer of magazines holding more than ten rounds that were not legally possessed
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before 1994.7
The California Legislature criminalized the manufacture, sale, or
transfer of new LCMs in 1999. Cal. Stats. 1999, ch. 129, §§ 3, 3.5, codified at Cal.
Penal Code § 32310; Cal. Penal Code § 16740. The state left to localities,
however, whether to criminalize the possession of LCMs already in possession
before the federal or state bans took effect.
In more rural parts of California, it may well be reasonable for communities
to determine that the threat to public safety presented by preexisting LCMs is
insufficient to justify prohibiting them. In California’s most populous counties, by
contrast, where residents are reminded daily of the high price of gun violence, it is
equally reasonable to determine that the dangers posed by LCMs do justify a
prohibition.
The voters of Sunnyvale reached that conclusion and embodied it in the
Ordinance — just as their neighbors in San Francisco (through their duly elected
representatives), made the same decision on the question left to them by the state
legislature. Whether the citizens and elected representatives of these two cities
have made a wise policy judgment is not for this Court to decide. This court must
only decide whether the choice was a constitutional one. See San Francisco
Veteran Police Officers Ass’n v. City & Cnty. of San Francisco, No. C 13-05351
7 See Pub. L. 103-322, Sept. 13, 1994, 108 Stat. 1796, 1998-2000, codified at 18
U.S.C. 922(w).
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WHA, 2014 U.S. Dist. LEXIS 21370 (N.D. Cal. Feb. 19, 2014) (“SFVPOA”). As
demonstrated below, it plainly was.
II. THE ORDINANCE BANNING LARGE-CAPACITY MAGAZINES IS
CONSTITUTIONAL.
Like most of its sister circuits, this Court resolves a Second Amendment
challenge to firearm regulations by conducting a two-step inquiry, which “(1) asks
whether the challenged law burdens conduct protected by the Second Amendment
and (2) if so, directs courts to apply an appropriate level of scrutiny.” United
States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The Ordinance easily
meets this test, especially in light of the leeway that should be afforded to the type
of locally tailored gun control measures that have existed before and since the
ratification of the Second Amendment. As evident from a historical survey of laws
enacted throughout the nation, local officials have long engaged in firearm
localism with respect to weapons deemed highly dangerous — without infringing
upon any lawful conduct protected by the Second Amendment. The Ordinance is
no different. Moreover, any minimal burden that may exist is far outweighed by
Sunnyvale’s interest in protecting its citizens from weaponry with enhanced
lethality such as LCMs.
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A. The Ordinance Does Not Impinge Upon Conduct Protected By
The Second Amendment.
Plaintiffs’ claim that the Ordinance burdens conduct protected by the Second
Amendment fails at the outset for at least two reasons. First, restrictions on the use
and possession of weapons with enhanced lethality, like those imposed by the
Ordinance, have traditionally been enacted at the local level and are among the
“longstanding prohibitions” that Heller held were “presumptively lawful
regulatory measures,” outside the scope of the Second Amendment right. Heller,
554 U.S. at 626, 627 n.26. Weaponry with enhanced lethality that has little utility
for self-defense or other lawful purposes accordingly has a weak claim, if any, to
Second Amendment protection. See McDonald v. City of Chicago, 130 S. Ct.
3020, 3047 (2010) (The “right to keep and bear arms is not ‘a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.’”) (quoting Heller, 554 U.S. at 626). Indeed, the “historical tradition of
prohibiting the carrying of dangerous and unusual weapons” is an “important
limitation” on the Second Amendment right. Heller, 554 U.S. at 627 (internal
citation omitted).
Second, plaintiffs have failed to introduce any evidence showing that, by
barring possession of LCMs within city limits, the Ordinance infringes their
Second Amendment rights — or those of any Sunnyvale residents. For these
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reasons, the Ordinance does not infringe upon the core right to self-defense, or any
other lawful purpose, protected by the Second Amendment.
1. Restrictions On Large Capacity Firearms Are Longstanding,
Presumptively Lawful Regulations.
Even before the Second Amendment’s ratification, early American laws
banned the possession or carrying of weapons that the residents of various states or
localities deemed especially dangerous. As high-capacity firearms developed —
and began being used by organized crime during the Prohibition era — they, too,
were highly regulated.
Prior to the Second Amendment’s ratification, for example, a colonial law
adopted in 1758 in New Jersey banned individuals from wearing weapons that
lawmakers considered highly dangerous when carried concealed in population
centers.8
These types of policies persisted across the nation throughout the
nineteenth century.9

Regulation of weapons that contemporary policymakers deemed highly
dangerous carried through the Civil War period and into the early twentieth
8 See The Grants, concessions, and Original Constitutions of the Province of New
Jersey, 289 (1758) (banning certain unusual weapons considered especially
dangerous).
9 See, e.g., Revised Statutes of Arkansas (1837) Division VIII, chap. 44, art. I, §
13; Act of Jan. 14, 1820, chap. 23 (regulating weapons considered especially
dangerous); Act of Dec. 25, 1837, 1837 Ga. Laws 90. § 1 (same); Mass. Gen. Law
(1850), chap. 194 §§ 1, 2 as codified in Mass. Gen. Stat., chap. 164 (1873) § 11
(same); Act of Jan. 27, 1838, chap. 137 at 1837-1838 Tenn. Pub. Acts 200 (same).
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century, when states began restricting new weapons with enhanced lethality — like
automatic machine guns and high-capacity, semi-automatic weapons. Many states
enacted laws concerning the use of weapons capable of semi-automatically firing
multiple bullets without reloading — sometimes as few as 5, 7, or 8. For instance,
in 1929, Missouri enacted a law prohibiting the selling, transporting, and
possessing of guns of any caliber capable of discharging more than eight cartridges
successively without reloading, in which ammunition was fed from clips, disks,
belts, or other separable mechanical device. See 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. In the early 1930s, South Dakota and Virginia enacted laws
that prohibited weapons capable of firing more than five and seven shots,
respectively, rapidly or semi-automatically.10 Numerous other states adopted
similar laws, restricting the use of high-capacity firearms with enhanced lethality.11
10 See 1933 S.D. Sess. Laws 245, An Act relating to Machine Guns, and to make
uniform the law with reference thereto: § 1; 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.
11 See, e.g., 1927 R. I. Pub. Laws 256, An Act to Regulate the Possession of
Firearms: § 1. (prohibiting any weapon which shoots more than twelve shots semiautomatically
without reloading); 1931 Ill. Laws 452, An Act to Regulate the Sale,
Possession and Transportation of Machine Guns: § 1: (prohibiting guns of any
caliber capable of discharging more than eight cartridges successively without
reloading, in which ammunition is fed from clips, disks, belts, or other separable
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Sunnyvale’s voters chose to ban the possession of magazines that allow the
user of a semi-automatic firearm to rapidly fire more than ten bullets without
stopping to reload. Because such a restriction has a longstanding historical
pedigree — indeed, one that predates “longstanding” gun regulations cited in
Heller — it is a “presumptively lawful” measure that does not infringe the Second
Amendment right.12 Heller, 554 U.S. at 626, 627 n.26. For that reason alone, this
Court should affirm the district court’s decision.

mechanical device); 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 (prohibiting guns of any caliber capable of discharging
more than eight cartridges successively without reloading, in which ammunition is
fed from clips, disks, belts, or other separable mechanical device); 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. (prohibiting
possessing and using a weapon of any description by whatever name known,
loaded or unloaded from which more than five (5) shots or bullets may be
automatically discharged from a magazine by a single functioning of the firing
device). Other states adopted restrictions that employed a higher threshold for
restricting high capacity firearms; Act of June 2, 1927, No. 372, § 3, 1927 Mich.
Laws 887, 888, (prohibiting possession of any “firearm which can be fired more
than sixteen times without reloading”).
12 In evaluating a ban on LCMs, the Court of Appeals for the D.C. Circuit observed
that it was unaware of historical regulations of LCMs, and therefore could not
conclude that such laws were “longstanding and thereby deserving of a
presumption of validity.” Heller II, 670 F.3d at 1260. That court was, by its own
admission, unaware of the numerous historical examples cited above, which
establish the longstanding heritage of laws such as the Ordinance. In any event,
the D.C. Circuit upheld the LCM ban under intermediate scrutiny.
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2. Plaintiffs Have Failed To Establish That LCMs Are In Common
Use For Lawful Purposes In Sunnyvale.
As demonstrated, the Ordinance is presumptively lawful and valid. But the
district court concluded that the Ordinance imposes a burden on the Second
Amendment right, albeit “only the most minor burden.” Fyock v. Sunnyvale, No.
C-13-5807-RMW, 2014 U.S. Dist LEXIS 29722, at *23 (N.D. Cal. Mar. 4, 2014).
It should have found there is no burden at all, because plaintiffs failed to show that
LCMs are widely distributed, commonly owned, or commonly used for selfdefense
or any other lawful purposes in Sunnyvale.
The record evidence — drawn from data collected by the NRA Institute for
Legislative Action — shows that persons using guns for self-defense fire, on
average, just over two shots per incident. See EOR 36 [Allen Decl. ¶¶ 7-9]. And
“[o]ut of 279 incidents [studied], there were no incidents in which the defender
was reported to have fired more than 10 bullets.” Id. ¶ 9 (emphasis added). Even
if the Ordinance had been applicable in all these cases, it would have had no effect
on any of these defensive firearm uses — and would not have affected any
shooter’s Second Amendment rights. This is the only evidence in the record
concerning the discharge of more than 10 rounds in actual incidents involving
defensive gun use.
As in any constitutional challenge, Plaintiffs bear the burden of establishing
the elements of a Second Amendment violation. This, they have failed to do:
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while plaintiffs speculate that “[s]ome defensive gun uses (DGUs) are likely to
require large numbers of rounds” because there could be multiple assailants or
because shots might miss the target, their own witnesses concede that there is no
evidence of defensive gun use requiring a shooter to fire more than 10 rounds
without reloading.13 Simply put, plaintiffs failed to show that LCMs are in
common use for self-defense — in Sunnyvale or anywhere else — and thus failed
to meet their burden of demonstrating that the Ordinance infringes the Second
Amendment.
The district court nonetheless determined that LCMs “are in common use”
for lawful purposes because gun owners possess LCMs in large numbers,
purportedly “in the tens-of-millions.” Fyock, 2014 U.S. Dist. LEXIS 29722, at
**13-14. But the fact that people possess millions of LCMs yet virtually never use
this enhanced capacity for self-defense — even when they find it necessary to
discharge their weapons to ward off an assailant — shows that a restriction on the
13 See EOR 19 [Kleck Decl. ¶ 21] (emphasis added); see also EOR 45-2 [Kleck
Reply Decl. ¶ 2] (“[N]o one knows how many times LCMs are used defensively. I
suspect that only a tiny fraction of DGUs involve over 10 rounds being fired.”).
Plaintiffs surmise that there might be as many as 10,000 defensive gun uses per
year in which more than 10 rounds are fired in a single incident. EOR 45-2 [Kleck
Reply Decl. ¶ 4]. But they submit no evidence of even one such use.
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ability to rapidly fire more than 10 rounds without reloading does not infringe the
Second Amendment’s core purpose.14
In any event, plaintiffs failed to present any evidence about who owns these
millions of LCMs, a crucial question in determining whether the Ordinance is
constitutional. This failure is critical because “[t]here is strong evidence that gun
ownership is concentrated.” EOR 37 [Donohue Decl. ¶ 6]. Many individuals own
multiple firearms and “the 20% of gun owners who own[] the most guns possess[]
about 65% of the nation’s guns.” Id. LCM ownership is likely concentrated too,
and while possession of LCMs might be common among certain communities, it
may still be decidedly uncommon among others. Whatever may be true of other
parts of the country, plaintiffs have advanced no evidence that LCMs are in
common use for lawful purposes in a city like Sunnyvale, where restrictions on
their purchase and sale have been in effect for two decades.
The Supreme Court has instructed courts to ask what weapons are “typically
possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625.
Surely the answer is different in rural Wyoming than on the streets of Sunnyvale or
San Francisco. Plaintiffs have failed to offer any evidence that the LCMs banned
by the Ordinance have been commonly used for lawful purposes in Sunnyvale at
14 Indeed, the high possession rate of LCMs that plaintiffs assert only renders it
more telling that plaintiffs are unable to point to even a single incident in which
such evidently broadly possessed LCMs were used for defense of hearth and home.
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any time, and especially since they were prohibited by federal law twenty years
ago. That failure of proof dooms their claims.15
B. In Any Event, The Ordinance Satisfies Intermediate Scrutiny.
Even if this Court were to assume the Ordinance did burden a Second
Amendment right, the Ordinance would withstand the “appropriate level of
scrutiny.” Chovan, 735 F.3d at 1136. Every court to consider an LCM ban like
Sunnyvale’s has upheld it under intermediate scrutiny. If this Court reaches the
issue, it should do the same.
15 Localism has long been a factor when assessing the burden placed on
constitutional rights, and is appropriately considered when evaluating Second
Amendment claims. Thus, “[g]eographic nonuniformity of constitutional
requirements and proscriptions is a mainstay of American constitutionalism” and
“constitutional rights are defined in part on the basis of community expectations
and considerations.” Mark Rosen, Our Nonuniform Constitution: Geographical
Variations of Constitutional Requirements in the Aid of Community, 77 TEX. L.
REV. 1129, 1133, 1169 (1999). This principle is most famously applicable in the
application of community standards to obscenity claims: Obscene materials fall
outside the protection of the First Amendment, and the definition of obscenity
depends on community standards. Such First Amendment jurisprudence is
instructive when considering the burden of gun regulations on Second Amendment
rights. See Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 968 (9th Cir.
2014). Thus, when evaluating the Ordinance’s constitutionality, it is appropriate to
note plaintiffs’ failure to establish the common use and possession of LCMs in
Sunnyvale in addition to the “alternative channels for self-defense” that remain
under the Ordinance, id. at 961, and Sunnyvale’s substantial interest in reducing
gun violence within its borders.
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1. Intermediate Scrutiny Is Appropriate.
“[T]he level of scrutiny . . . depend[s] on (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. Both factors point toward intermediate scrutiny here.
As the D.C. Circuit explained when addressing the identical issue:
“Although we cannot be confident the prohibitions impinge at all upon the core
right protected by the Second Amendment, we are reasonably certain the
prohibitions do not impose a substantial burden upon that right. . . . [T]he
plaintiffs present hardly any evidence that . . . magazines holding more than ten
rounds are well-suited to or preferred for the purpose of self-defense or sport.”
Heller v. District of Columbia, 670 F.3d 1244, 1262 (D.C. Cir. 2011) (“Heller
II”).
16
Here, too, any burden imposed by the Ordinance is far outside the Second
Amendment’s core purpose of self-defense. As noted, plaintiffs’ own evidence
shows that LCMS are not frequently — if ever — used for this purpose. The
16 See also Chovan, 735 F.3d at 1138 (applying intermediate scrutiny because the
challenged regulation did “not implicate the core Second Amendment right”);
Shew v. Malloy, No. 3:13-cv-739, 2014 WL 346859 (D. Conn. Jan. 30, 2014)
(evaluating an LCM ban under intermediate scrutiny); 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) (same).
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LCMs prohibited by the Ordinance fall well outside the core of the constitutional
right.
Nor does the Ordinance substantially burden plaintiffs’ — or anyone else’s
— Second Amendment rights. The ban on LCMs is, at most, a regulation of how
the Second Amendment right is exercised, akin to a content-neutral time, place and
manner restriction of speech. It leaves open ample alternative channels for the
effective use of guns for self-defense and other lawful purposes. As this Court
recently observed in upholding a ban on hollow-point bullets, these types of
restrictions do not “prevent the use of handguns or other weapons in self-defense.”
Jackson, 746 F.3d at 968. So, too, here. A regulation that does not destroy the
Second Amendment right, and leaves open multiple avenues for its exercise, does
not remotely approach the type of severe burden on a constitutional right that could
justify strict scrutiny.
Plaintiffs disagree, contending that strict scrutiny should apply because the
Ordinance is a “full and complete ban” on a purported “right to possess and use
constitutionally protected magazines.” App. Br. 28. But the Second Amendment
affords no absolute right to use particular types of magazines, just as it affords no
right to keep and carry “any weapon whatsoever in any manner whatsoever and for
whatever purpose,” Heller, 554 U.S. at 626, and just as “the First Amendment does
not guarantee the right to communicate one’s views at all times and places or in
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any manner that may be desired,” Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981). The right protected by the Second
Amendment is “to keep and bear arms,” especially for self-defense. “[F]irearm
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.”
Jackson, 746 F.3d at 961.
Plaintiffs have not shown — because they cannot show — that their ability
to use guns effectively for self-defense would be limited at all by the Ordinance.
Because the Ordinance leaves them ample alternative means to exercise their
Second Amendment rights, it should be assessed under intermediate scrutiny.
2. The Ordinance Survives Intermediate Scrutiny And Is Thus
Constitutional.
To satisfy intermediate scrutiny, this Court requires (1) “the government’s
stated objective to be significant, substantial, or important” and (2) that there is “a
reasonable fit between the challenged regulation and the asserted objective.”
Chovan, 735 F.3d at 1139 (citing United States v. Chester, 628 F.3d 673, 683 (4th
Cir. 2010)). The Ordinance easily meets both requirements.
Sunnyvale plainly has a substantial interest in reducing the dangers of gun
violence. The referendum enacting the Ordinance, approved by 66% of the voters,
provided: “[T]he People of the City of Sunnyvale find that the violence and harm
caused by and resulting from both the intentional and accidental misuse of guns
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constitutes a clear and present danger to the populace, and find that sensible gun
safety measures provide some relief from that danger and are of benefit to the
entire community.” EOR 1-1. “It is self-evident that [Sunnyvale’s] interest in
reducing the fatality of shootings is substantial.” Jackson, 746 F.3d at 969; see
also Heller II, 670 F.3d at 1258 (“the Government’s general interest in preventing
crime is compelling”); Shew, 2014 WL 346859 at *9 (recognizing that the degree
of a firearm’s “lethalness” is “related to a compelling interest of crime control and
public safety”); SFVPOA, 2014 U.S. Dist. LEXIS 21370 at *15 (recognizing the
city’s interest in “promoting public safety and preventing gun violence”).
Turning to the second requirement, there is a reasonable fit between the
Ordinance and the city’s objective because the record evidence “more than fairly
supports” Sunnyvale’s conclusion that LCMs increase the dangers of gun violence.
Jackson, 746 F.3d at 969.
When widely available, LCMs are frequently used in crime. During the
enforcement of the federal Assault Weapons Ban between 1998 and 2004, the
share of guns with LCMs that were used in crimes and recovered in Virginia
declined 60 percent. See 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. After the federal ban expired, the share of
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crime guns recovered in the state with LCMs increased each year through 2010,
more than doubling from the 2004 low. See id.
It is also undisputed that LCMs are frequently used in mass shootings and
this alone would have constituted sufficient justification for the residents of
Sunnyvale to enact the Ordinance. See EOR 19 [Kleck Decl. ¶ 9]; see also EOR
39 [Koper Decl. ¶¶ 8-14]; EOR 36 [Allen Decl. ¶ 12]. Because they allow shooters
to fire more rounds without stopping to reload, the number of deaths is higher in
“mass shootings that involve[] large-capacity magazine guns than in other mass
shootings.” EOR 36 [Allen Decl. ¶ 14]; see also EOR 39 [Koper Decl. ¶¶ 19-25].
It is not difficult to see why. As a parent of one of the twenty-six people killed at
Sandy Hook Elementary School reflected on the 30-round magazines used by the
shooter:
We have learned that in the time it took to reload, 11
children were able to escape. We ask ourselves every
day, every minute . . . if those magazines had held 10
rounds, forcing the shooter to reload six more times,
would our children be alive today?
Peter Applebome, Legislators in Connecticut Agree on Broad New Gun Laws,
N.Y. TIMES, Apr. 1, 2013, available at
http://www.nytimes.com/2013/04/02/nyregion/connecticut-legislators-agree-onfar-reaching-gun-control.html?pagewanted=all&_r=0.
A media investigation of 62
mass shootings between 1982 and 2012 resulting in the death of at least four
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people showed that, where magazine capacity could be determined, 86% of the
incidents involved an LCM. See EOR 39 [Koper Decl. ¶ 14]; see also SFVPOA,
2014 U.S. Dist. LEXIS 21370 at *15 (recognizing the strong correlation of mass
shootings with the use of LCMs).
In addition, “guns with LCMs have been used disproportionately in murders
of police.” EOR 39 [Koper Decl. ¶ 18]. In part, this is because LCMs take away
the “2 or 3 second pause during which a criminal reloads his firearm[,which] can
be of critical benefit to law enforcement.” Heller II, 670 F.3d at 1264 (internal
quotations omitted). A 2010 survey by the Police Executive Research Forum
reported that since the federal ban on LCMs expired in 2004, 38 percent of police
agencies reported seeing noticeable increases in criminals’ use of semiautomatic
firearms with LCMs.17
LCMs increase the fatalities and other harms inflicted when they are used in
crime. One analysis found “a total victim differential of 22.58 killed or wounded
in . . . LCM cases compared to 9.9 in . . . non-LCM/unknown LCM cases.” EOR
39 [Koper Decl. ¶ 19]. Another analysis of mass shootings between 2009 and
2013, conducted by Mayors Against Illegal Guns, found that shootings involving
LCMs or assault weapons resulted in an average of 151% more people shot and
17 See Guns and Crime: Breaking New Ground by Focusing on the Local Impact,
POLICE EXECUTIVE RESEARCH FORUM (May 2010), http://bit.ly/1rcCb4d (last
visited May 12, 2014).
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63% more deaths than in other incidents. Analysis of Recent Mass Shootings,
MAYORS AGAINST ILLEGAL GUNS (Sept. 2013), http://bit.ly/R5K9zi (last visited
June 24, 2014); see also Heller II, 670 F.3d at 1263 (“‘[P]ermitting a shooter to
fire more than ten rounds without reloading . . . greatly increase[s] the firepower of
mass shooters.’”) (citation omitted); N.Y. State Rifle & Pistol Ass’n, U.S. Dist.
LEXIS 182307, at *54-55 (noting that “more people die when a [mass] shooter has
a large-capacity magazine.”).
In light of the evidence that LCMs dramatically increase the lethality of
crime, the citizens of Sunnyvale could reasonably conclude that banning
possession of LCMs in their densely populated city was a sensible means of
protecting the public from gun violence, curtailing LCM use in mass and police
shootings, and reducing deaths of innocent bystanders — thus furthering the
paramount governmental interest in public safety. See EOR 39 [Koper Decl. ¶ 4];
see also Shew, 2014 WL 346859 at *n.51 (quoting expert’s statement that a ban on
high-capacity magazines particularly has “the potential to prevent and limit
shootings . . . over the long-run”).
Evaluating substantially similar evidence, the D.C. Circuit had no trouble
upholding a virtually identical LCM ban under intermediate scrutiny: “Overall the
evidence demonstrates that large-capacity magazines tend to pose a danger to
innocent people and particularly to police officers, which supports the District’s
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claim that a ban on such magazines is likely to promote its important governmental
interests.” Heller II, 670 F.3d at 1264. Every other court to have considered the
question has reached the same result. See, e.g., SFVPOA, 2014 U.S. Dist. LEXIS
21370 at *15 (regulation of LCMs was “substantially related” to the city’s interest
in “promoting public safety” because of the “very high correlation between mass
shootings and the use of magazines with the capacity to accept more than ten
rounds”); Shew, 2014 WL 346859 at *9 (“limiting the number of rounds in a
magazine promotes and is substantially related to the important governmental
interest in crime control and safety”); N.Y. State Rifle & Pistol Ass’n, U.S. Dist.
LEXIS 182307, at *54-55 (connection between the regulation and the policy easily
surpasses the level of substantiality, based on statistics that high-capacity
magazines were used in more than half of the mass shootings since 1982, their use
in mass-shootings is rising, and more people die when shooters use them). This
Court should do the same.
CONCLUSION
This country has a long history of enacting different gun laws in densely
populated cities and towns than in rural and exurban areas. The Ordinance,
affecting citizens of an urban area, is simply another example. The Ordinance,
which leaves regular capacity magazines completely untouched, does not burden
the core Second Amendment right and, like other laws that have markedly reduced
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the use of LCMs in gun crimes, is substantially related to the important
governmental interest of protecting the public safety. Sunnyvale’s prohibition on
LCMs is constitutional.
Dated: June 24, 2014 Respectfully submitted,
New York, New York WEIL, GOTSHAL & MANGES LLP
/s/ Gregory Silbert
Gregory Silbert
Vanessa W. Chandis
767 Fifth Avenue
New York, NY 10153
Phone: (212) 310-8000
Fax: (212) 310-8007
Attorneys for Everytown for Gun Safety
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CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)
I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B). It contains 6,866 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6). It has
been prepared in a proportionally spaced typeface using Microsoft Word in
14-point Times New Roman font.
/s/ Gregory Silbert
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Phone: (212) 310-8000
Fax: (212) 310-8007
Attorneys for Everytown for Gun Safety
Dated: June 24, 2014
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the BRIEF OF AMICUS CURIAE
EVERYTOWN FOR GUN SAFETY IN SUPPORT OF APPELLEES with the
Clerk of the Court for the United States Court of Appeals for the Ninth Circuit via
the appellate CM/ECF system on June 24, 2014. I certify that all participants in
the case who are registered CM/ECF users will be served a copy of the foregoing
via the CM/ECF system.
/s/ Gregory Silbert
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Phone: (212) 310-8000
Fax: (212) 310-8007
Attorneys for Everytown for Gun Safety
Dated: June 24, 2014

Fyock V. Sunnyvale

Fyock v. Sunnyvale