San Francisco's Hollow Point Bullet Ban: A Completely Illegal Violation of the 2nd Amendment

The 1994 Hollow Point Bullet Ban

In 1994, San Francisco, California, enacted an outrageous ordinance prohibiting the sale of hollow point bullets within city limits. Codified in the San Francisco Police Code Section 618, this measure has been contentious, sparking debates over public safety, Second Amendment rights, and the effectiveness of localized ammunition restrictions.

Recent legal developments, particularly the U.S. Supreme Court's 2022 New York State Rifle & Pistol Association v. Bruen decision, suggest the ordinance may be unconstitutional.

Additionally, California’s state law preemption doctrine renders the ordinance illegal by conflicting with state authority over firearms and ammunition regulation. This blog explores the ordinance’s origins, details, legal challenges, unconstitutionality under Bruen, illegality under state preemption, and broader implications.

Background and Rationale

Hollow point bullets, or jacketed hollow point (JHP) ammunition, feature a hollowed-out tip that causes expansion upon impact, enhancing stopping power and reducing over-penetration. Widely used for self-defense and by law enforcement, hollow points are valued for their safety and effectiveness. However, their capacity for significant tissue damage has led some to label them as excessively lethal. On the flip side, the increased stopping power may require less shots to stop a suspect. In truth a gun should never be fired unless necessary to prevent death or serious bodily harm to oneself or others. The idea is to stop the suspect and choosing less effective bullets is a strange contradiction to that analysis.

San Francisco introduced the ordinance claiming concerns about urban gun violence. The city sought to curb the lethality of firearms by restricting ammunition deemed particularly dangerous.

However, it made no attempt to separate the use of certain ammunition by criminals and the use of ammunition by citizens acting cautiously, intelligently and out of an absolute necessity to defend life. The ordinance is grossly out of sync with its claimed purpose. It claims to seek to save lives but criminals with illegal guns are going to use whatever ammunition they want. San Francisco only limits honest and law abiding citizens from self defense. Using the Indiana Jones phrase, San Francisco wants good honest citizens to bring a knife to a gun fight.

The ordinance bans the sale of ammunition that “expands or splinters on contact,” including specific brands like Winchester’s discontinued Black Talon. The San Francisco Police Department has indicated the ban targets named brands, creating ambiguity around other hollow point types.

Legal Challenges and Court Rulings

The ordinance faced scrutiny following the U.S. Supreme Court’s 2008 Heller decision, affirming an individual’s right to possess firearms for self-defense, and the 2010 McDonald decision, extending this right to state and local jurisdictions. The National Rifle Association (NRA) and gun owners challenged the ban, arguing it violated Second Amendment protections.

In 2014, the Ninth U.S. Circuit Court of Appeals upheld the ordinance, ruling that the sale restriction imposed a “modest burden” on Second Amendment rights. Judge Sandra Ikuta noted residents could purchase hollow points outside city limits and possess them legally within San Francisco. The court deemed the ban a reasonable public safety measure, allowing access to conventional ammunition for self-defense. This was a pre-Bruen decision and it was likely wrongly decided even then. For better or worse when the NRA sought Supreme Court review, but the Court declined in 2015, leaving the Ninth Circuit’s ruling intact at the time.

Unconstitutionality Under Bruen

The Bruen decision redefined how Second Amendment challenges are evaluated, rejecting the “means-end scrutiny” used in the 2014 Ninth Circuit ruling. Instead, Bruen established a two-step test:

Textual and Historical Analysis: The government must show the regulated conduct (e.g., selling or possessing ammunition) falls outside the Second Amendment’s scope, as understood in 1791.

Historical Tradition: If the conduct is protected, the restriction must align with the nation’s historical tradition of firearm regulation.

San Francisco’s hollow point sale ban is likely unconstitutional under Bruen for the following reasons:

Second Amendment Protection: The Second Amendment encompasses the right to keep and bear arms, including ammunition essential for self-defense. Hollow points, used by millions for self-defense and by law enforcement, are “in common use” for lawful purposes, as emphasized in Heller and Bruen. Restricting their sale burdens this right by limiting access to the most effective defensive ammunition.

No Historical Tradition: San Francisco must demonstrate a historical tradition of banning specific ammunition types, like hollow points, from the founding era or 1868 (Fourteenth Amendment ratification). No such tradition exists. Early regulations addressed militia duties or concealed carry, not ammunition bans. Hollow points are modern, but Bruen requires analogous historical restrictions, which are absent.

Think about it. Was there ever a ban on a particular type of ammunition in the entire history of the United States pre World War II? Did John Wayne ride into town and have sheriff check his pistol to see what kind of rounds were in the gun?

Rejection of Means-End Scrutiny: The Ninth Circuit’s 2014 reliance on intermediate scrutiny—balancing public safety against rights—is invalid post-Bruen. The Court prohibits weighing policy considerations, rendering arguments about purchasing hollow points outside the city irrelevant. The Second Amendment protects acquiring ammunition without undue burdens.

Burden on Self-Defense: The ban forces reliance on less effective ammunition, like full metal jacket (FMJ) rounds, which risk over-penetration and bystander harm. This undermines the Second Amendment’s core purpose of effective self-defense. Requiring residents to travel outside the city also creates practical barriers, disproportionately affecting those with limited resources.

Under Bruen’s stringent standard, the ordinance’s lack of historical grounding and direct burden on self-defense rights make it vulnerable to being struck down in future challenges.

Illegality Under California State Law Preemption

Beyond constitutional concerns, San Francisco’s ordinance is illegal under California’s state law preemption doctrine, which restricts local governments from enacting firearms and ammunition regulations that conflict with state law. California has a comprehensive framework governing firearms and ammunition, and the state legislature has asserted its authority to preempt local ordinances in this domain.

Key Preemption Principles

State Authority: California Government Code Section 53071 and Penal Code provisions establish that the state has primary authority over firearms and ammunition regulation. Local governments cannot enact laws that contradict or duplicate state regulations unless explicitly authorized.

Ammunition Regulation: California regulates ammunition through laws like the 2016 Proposition 63 and subsequent statutes, which govern sales, background checks, and restricted ammunition types (e.g., armor-piercing rounds). Hollow point ammunition is not banned statewide and is legal for purchase, possession, and use, subject to general ammunition laws.

Preemption Case Law: In Fiscal v. City and County of San Francisco (2008), the California Supreme Court struck down a San Francisco ordinance banning handgun possession, ruling it violated state preemption by intruding on a field fully occupied by state law. Similarly, in Great Western Shows, Inc. v. County of Los Angeles (2002), the court invalidated a local ammunition sales ban, affirming that ammunition regulation is a state-controlled domain.

Conflict with State Law

San Francisco’s hollow point sale ban is preempted because:

Direct Conflict: The ordinance prohibits the sale of hollow point ammunition, which is legal under state law. California does not restrict hollow points, and residents can purchase them statewide, including in neighboring cities like Daly City. This direct contradiction between local and state law violates preemption principles.

Field Preemption: California’s extensive ammunition laws, including licensing requirements, background checks, and restrictions on specific ammunition types, demonstrate the state’s intent to occupy the field of ammunition regulation. Local bans on commonly used ammunition, like hollow points, encroach on this authority.

Practical Implications: By banning sales, San Francisco creates a patchwork of regulations that undermines the uniformity intended by state law. This forces residents to navigate conflicting rules and burdens retailers, as seen in cases like Suter v. City of Lafayette (1997), where local firearm sales restrictions were struck down for similar reasons.

The ordinance’s focus on specific brands (e.g., Black Talon) or vaguely defined “expanding” ammunition further complicates enforcement and risks inconsistent application, reinforcing its incompatibility with state law. California courts have consistently invalidated local firearm and ammunition ordinances that exceed state authority, and San Francisco’s ban is likely unenforceable under this precedent.
 

California has strong legal leadership protecting the 2nd Amendment.  Organizations such as USCCA provide protections and lawyer referrals for people legitimately acting in self defense.

If you are charged with violating the unconstitutional San Francisco hollow point law, call Daniel Horowitz or one of the many skilled and dedicated 2nd Amendment lawyers who will aggressively defend you.