Proposition H is an ordinance that would ban the sale, manufacture, transfer, or distribution of all firearms and ammunition in the City and County of San Francisco, and limit handgun possession for residents of the City and County of San Francisco, unless required for professional purposes as enumerated in the proposed ordinance.
This measure was placed on the ballot by four members of the Board of Supervisors in December 2004. As an ordinance, Proposition H does not legally need to be on the ballot, but could instead have been passed through the normal legislative process by a majority vote
of the Board of Supervisors and the mayor’s signature. However, an ordinance can be placed on the ballot by the mayor alone, four or more Supervisors, or by citizen initiative. Proposition H requires a majority vote to become law.
In California the state government primarily regulates purchase and possession of firearms. While there is a registration requirement, no permit is required for an individual to keep a firearm in his or her home or business. However, a permit is required to carry a concealed firearm in public.
Because gun owners may transport firearms within the state, it is difficult to estimate how many legally—much less illegally—owned firearms may be in San Francisco. In 1999, the latest year statistics are available, 2,720 firearms were sold within San Francisco (although not necessarily to city residents), and 235,875 handguns were sold in California. This figure does not include rifles, machine guns, or other classes of firearms. Only a handful of concealed weapons permits are issued to citizens (other than police officers or other public safety professionals) in San Francisco each year.
If passed, the ordinance would take effect on January 1, 2006. The ordinance’s prohibition on handgun possession exempts certain government employees who need them in carrying out the functions of their government employment, including members of the armed forces, security guards, and others who possess handguns as “required for professional purposes.” Residents could surrender handguns to the Police or Sheriff’s Departments within 90 days after the ordinance took effect. The Board of Supervisors would be charged with establishing penalties for handgun possession after that date. Only possession of handguns would be regulated by the measure—not rifles or other classes of weapons. The prohibition on sale, manufacture, transfer, and distribution within city limits would apply to all classes of firearms, but would likely have little practical effect in San Francisco, since only one firearm dealer currently operates within city limits.
The prohibition on handgun possession would apply only to San Francisco residents. The measure would not prohibit any residents of other jurisdictions with regard to handgun possession, including those who may temporarily be within the boundaries of the City and County. The likely intent of this is to avoid conflict with laws of the state or other local jurisdictions.
The measure raises significant legal questions regarding the authority of state versus local governments to regulate firearms. The ordinance refers Article XI of the California Constitution as providing Charter-created cities, such as San Francisco, with “home rule” power. This power allows counties to enact laws that exclusively apply to residents within their borders, even when such a law conflicts with state law or when state law is silent.
However, the California Government Code states that “it is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms...and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision.” This law seems to indicate that state government believes it has ultimate authority over local government in regulating firearms.
San Francisco passed a ban on handguns
in 1982, which was subsequently struck down by California Courts on the grounds that state law superseded the local ordinance. In Doe v. City and County of San Francisco (136 Cal. App. 3d 509), the court ruled that the handgun ban conflicted with Penal Code section 12026, which allows California residents to keep a firearm in their homes without a permit.
Those who support Proposition H state:
- Prohibiting handgun possession will reduce deaths and injuries to San Franciscans, including the all-too frequent assaults and murders, as well as suicides, accidents, domestic violence, and other crimes
- The measure will spark debate in state government and other jurisdictions around the country about the gun ownership issue
- The measure will surely be challenged in court, but nearly every important change in social policy is ultimately decided through the legal system. It is well worth every penny the City will spend on litigation to challenge the status quo on this issue, which has life-or-death implications
- The State government should not be able to dictate handgun policies against the will of local governments that wish to have stronger regulations
Those who oppose Proposition H state:
- The measure is likely in conflict with state law. Gun-ownership advocates will test the law in court, costing taxpayers money that could have been avoided
- There are better ways to regulate firearms, such as stricter permitting and background checks, which would be less legally questionable but equally effective
- Firearm regulation should be left to the State and federal governments, since laws must be applied evenly across jurisdictions to prevent unintended consequences
- A handgun ban will not effectively reduce mortality rates, since most gun-related violence involves illegal use or possession of firearms anyway
- The measure will be difficult to enforce
SPUR has no position on Proposition H. In order to take a position supporting or opposing any ballot measure, SPUR requires a vote of 60 percent of its Board of Directors. Unfortunately, we were unable to reach this threshold on Proposition H.
Concerns about legality, enforceability, and whether other more effective means of regulating firearms could be employed raise some concerns about this measure. There is no doubt this measure will be challenged in court if it passes, and it is quite possible at least portions of it would be found illegal. But regardless of what happens with this particular measure, the level of handgun violence in San Francisco, especially concentrated in many economically and socially troubled parts of the city, cannot be ignored. Even if this measure were to be struck down by the courts, it is a worthwhile endeavor for San Francisco to take a leadership role in some manner on an issue that has life-and-death implications within our own city’s borders and across the country.