Fyock v. City of Sunnyvale

Intermediate scrutiny is appropriate for a Second Amendment challenge if the law does not implicate the core Second Amendment right to possess the quintessential self-defense weapon, or does not place a substantial burden on that right.

Leonard Fyock, along with five other residents of Sunnyvale, California (collectively “Fyock”) appealed the district court’s decision that Measure C of the Sunnyvale Municipal Code is constitutional. Measure C makes it unlawful for one to possess a “large-capacity magazine” within city limits. Fyock challenged Measure C on the ground that it infringes on his Second Amendment rights and sought to preliminarily enjoin it. The Ninth Circuit addressed whether the district court relied on an erroneous legal premise in denying Fyock relief. Using the two-prong test developed after District of Columbia v. Heller, the panel asked: (1) “whether the challenged law burdens conduct protected by the Second Amendment”; and (2) “if so, what level of scrutiny should be applied.” The Second Amendment does not protect longstanding prohibitions on dangerous and unusual weapons possessed by law-abiding citizens. Because large-capacity magazines are not unusual, the panel held that Measure C falls within the scope of the Second Amendment. Thus, “to determine the appropriate level of scrutiny, the court must consider (1) how closely the law comes to the core of the Second Amendment right; and (2) how severely . . . the law burdens the right.” Because Measure C neither implicates the core Second Amendment right, “to possess the quintessential self-defense weapon,” nor place a substantial burden on that right, intermediate scrutiny is appropriate. The panel applied intermediate scrutiny and determined that Sunnyvale showed that Measure C serves a substantial government interest because it aimed to promote public safety, reduce violent crime, and reduce gun violence, and it is a reasonable fit. The panel therefore affirmed the district court’s denial of the preliminary injunction. AFFIRMED.