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It's an hour before dawn, and Espanola Jackson, a 76-year-old activist known for her leading role in antidevelopment battles, is awoken by a clunk coming from the kitchen of her house, five blocks east of Candlestick Park. She sits up in her bed, takes a pair of keys out of her nightstand drawer, and steps softly toward her gun cabinet. While struggling with the lock, she hears footsteps growing louder.
Miles away from Jackson's Hunters Point home, San Francisco residents Therese Marie Pizzo and her domestic partner are on an out-of-state vacation. Two red-faced men approach them, laughing, taunting, asking menacing questions about the women's hair and clothes. Pizzo imagines reaching into her jacket to pull out a loaded pistol, but she's carrying only a pocketknife. She grabs her partner's forearm and steps back.
These scenes are fantasies. But they're based on fears described in legal complaints filed on behalf of real-life city residents Jackson and Pizzo, who are plaintiffs in separate but similar anti-gun-control lawsuits against San Francisco filed recently in federal court. Jackson is an elderly woman who keeps handguns in her home for self-defense "and other lawful purposes," according to a lawsuit filed on behalf of Jackson and several co-plaintiffs, including the National Rifle Association. Pizzo and her partner enjoy taking trips out of California; she says she applied for a concealed weapon permit to protect her against bigoted hicks, but was brushed off by the San Francisco sheriff's office. Pizzo's suit was filed by independent gun-control opponent Gary Gorski, an attorney in Fair Oaks.
On Sept. 30, the Supreme Court agreed to hear arguments that a Chicago handgun ban violates the Second Amendment. If it determines the ban is unconstitutional, Jackson and her co-plaintiffs have a good chance of striking down various San Francisco gun control laws, including a 2007 law requiring that guns be kept under lock and key. If that happens, said Calvin Massey, constitutional law professor at UC Hastings College of the Law, "San Francisco will lose this [Jackson's] lawsuit."
Pizzo's suit also seeks to overturn various San Francisco gun control laws, but goes a step further by seeking to strike down portions of the California code that give local law enforcement agencies discretion to reject applications for concealed weapons. However, under state and federal law, honorably retired police officers have the right to carry concealed weapons. In Pizzo's view, this is a violation of the constitutional guarantee to equal protection.
"If you took away the exemption for retired cops, I bet you $20 none of these [gun control] laws would ever get passed, because cops don't want their dicks cut off," Gorski said. "The idea that retired cops are better than anyone else, that's a bunch of bullshit."
Whether a possible Supreme Court order to lift the Chicago gun ban would result in a judge ruling that California cities have to issue concealed-weapons permits "is an open question," Massey said.
NRA attorney Chuck Michel, who has been quoted calling Gorski a "well-intentioned loose cannon," said that he will ask for the Pizzo case to be put on hold, pending the Supreme Court resolution of the challenge to the Chicago gun ban. Despite their differing strategies, Michel and Gorski share the idea that they can make their clients safer by eliminating gun control.
If they prevail, we will find ourselves in a country where the Second Amendment law has drifted from something reasonable — a constitutional clause enabling state militias — toward a land of illogic where the Constitution ensures public safety by enshrining citizens' rights to secretly pack guns loaded with hollow-point, or "cop-killer," bullets; where neighbors have a protected right to shoot off pistols in their backyards; and where youngsters visiting a relative's house can expect to find a Winchester resting above the couch, its place protected by the U.S. Constitution.
Gorski "wants to return us to the Wild West. He wants to see us wear a holster on the hip," said deputy city attorney Sherri Kaiser, who represents San Francisco in both cases.
In 2006, the California Supreme Court struck down a ban on private ownership of handguns in San Francisco because it was inconsistent with state law. But other local ordinances remain. Thanks to a 2007 law, San Francisco gun owners must keep their firearms in locked cabinets, or with trigger locks engaged — unless they have the weapons on their person. It is also illegal to sell bullets designed to expand on impact to produce a cantaloupe-sized flesh wound.
As a matter of practice, San Francisco issues virtually no concealed-weapons permits, under discretion allowed under state law. (Court papers indicate only one resident currently has such a permit.)
In June, gun control laws such as San Francisco's seemed imperiled when the Supreme Court struck down a Washington, D.C., handgun ban, which it ruled violated the right to bear arms.
The decision had gun-control advocates apoplectic because it represented a polar shift from conventional wisdom among legal experts that the Second Amendment didn't guarantee individuals the right to carry guns, but merely established militias such as the California National Guard.
Such a disparate range of perceived meanings has been possible because the Second Amendment is not clear. It reads, "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."
Until recently, this jumble of clauses and commas was widely interpreted as an expression by the Founding Fathers that, since it's inconvenient to keep a standing army, we'd have to occasionally muster citizen militias. And they'd need arms. The ascendant, NRA-backed view says the Founding Fathers meant for citizens to keep pistols on their nightstands to repel intruders.
But the ruling on the Washington law didn't overturn other local handgun bans, because the District of Columbia is not a state. In the Chicago case, the Supreme Court is expected to decide whether handgun bans passed by local or state governments are also unconstitutional. In the meantime, Jackson's lawsuit has been stayed, pending resolution of that case.
"Obviously if the Supreme Court finds that the Second Amendment does not apply to state or local governments, the San Francisco claims will be dismissed," said Juliet Leftwich, legal director of the gun control advocacy group Legal Community Against Violence. "But we're not optimistic that will be the outcome."
If the Supreme Court does overturn Chicago's law, Jackson may very well be able to keep her guns at home, and she could reach for one someday and gun down an intruder. But if her neighbors, friends, fellow congregants, and San Francisco residents indulge their newfound right to leave unfettered firearms around their houses, it's at least as likely that someone will use one of them to shoot someone, either by accident or on purpose, who is innocent.
If Pizzo ultimately wins her case, she might get to pull a licensed Glock .45-caliber pistol from a concealed holster to frighten away gay-bashing bubbas. But she won't be the only one with a right to pack hidden heat.
"On that reasoning, lots of people should get to carry concealed weapons if they have reason to believe somebody in the big wide world should want to hurt them," Kaiser said. "The decision Pizzo and her attorneys would have is taking trigger locks off guns, loading them with flesh-shredding ammunition, and putting them on your hip as you stroll down the street."
While that may be a compelling fantasy, I don't think it was what attendees at the Constitutional Convention of 1787 had in mind.