And the Ban Played On: The 'Public Safety' Threat to Individual Rights.

71 Pages Posted: 20 Apr 2014 Last revised: 30 Jul 2015

See all articles by Marc Greendorfer

Marc Greendorfer

Zachor Legal Institute; Tri Valley Law

Date Written: April 18, 2014


In less than one month in early 2014, two Federal District Courts in the State of California issued orders denying preliminary injunctions against two local ordinances that banned the possession of ammunition magazines that were theretofore otherwise legal to possess in California. Both courts admitted that a Second Amendment right was at stake but determined that, under intermediate scrutiny, the bans did not violate the Second Amendment, as the public safety concerns were sufficient to justify what the courts found to be a rather limited burden on Second Amendment rights. The District Court Orders are quite troubling on a number of grounds and should be of concern to a wide variety of constituencies, particularly those with an interest in the exercise of rights that are generally seen as the province of minority groups.

Both courts facially relied upon the decision in District of Columbia v. Heller as a starting point in their analysis, but in doing so they ignored one of the key points made in the Heller decision, and in so doing inverted the basic system of rights and protections that were established by this nation’s founders and the framers of the Constitution.

This paper examines the rationale used by the two district courts to uphold the magazine bans and then compares the purported public safety risks posed by firearms to data for activities such as AIDS and motor vehicle accidents.

From this comparison, and a review of precedent for other cases where enumerated and unenumerated rights were at stake, this paper shows that the District Courts employed a flawed review process for the magazine bans and utterly disregarded the protections afforded to citizens by the Second Amendment. The public safety doctrine as currently applied can not be reconciled with foundational ideas of liberty and individual rights generally, and constitutionally enumerated protections specifically.

If public safety concerns are allowed to undermine constitutional protections of individual rights, the damage will extend to all rights, especially those dear to liberal constituencies (such as abortion and gay rights), and not just Second Amendment rights.

Keywords: Second Amendment, Heller, Fyock, Lanza, Sandy Hook, UCSB, Isla Vista, Elliot Rodger, AIDS, HIV, Same Sex Marriage, Arms, Chovan, Firearms, Magazines, Peruta, AB 1014, Gun violence restraining orders, firearms seizure warrant, CASE NO: CV-13-05807 RMW, HOCHSTETLER, Farella

JEL Classification: J70, J78, K00, K10, K14, K19, K2, K3, K4, K42, Z00, I18, I28, J78, K23, K29, K32

Suggested Citation

Greendorfer, Marc, And the Ban Played On: The 'Public Safety' Threat to Individual Rights. (April 18, 2014). Available at SSRN: or

Marc Greendorfer (Contact Author)

Zachor Legal Institute ( email )

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Tri Valley Law ( email )

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