Filed 1/9/08 CERTIFIED FOR PUBLICATION …

Filed 1/9/08
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


PAULA FISCAL et al.,
        Plaintiffs and Respondents,
                                                   A115018
v.
CITY AND COUNTY OF SAN                             (San Francisco County
FRANCISCO et al.,                                  Super. Ct. No. CPF05505960)
        Defendants and Appellants.


                                              I.
                                      INTRODUCTION
        In 2005, the voters of the City and County of San Francisco (City), a home rule
charter city, passed Proposition H, a local ordinance prohibiting: (1) virtually all City
residents from possessing handguns; and (2) all City residents, without exception, from
selling, distributing, transferring and manufacturing firearms and ammunition. A legal
challenge to the ordinance resulted in the trial court holding that key aspects of the
ordinance were preempted by state law. Based on its further determination that the
invalid portions of the ordinance were not severable from the arguably valid portions, the
court found that the ordinance was preempted in its entirety. Lastly, the trial court held
that the City's home rule power under the California Constitution, article XI, section 5,
subdivision (a) (municipal home rule for charter cities) did not override state preemption
because the field being regulated was one of statewide, rather than local, concern. We
agree with the trial court's conclusions, and affirm the judgment in all respects.




                                              1
                                              II.
                       FACTS AND PROCEDURAL HISTORY
       This appeal concerns Proposition H (Prop H or ordinance), a municipal ordinance
enacted by the City's voters in November 2005. The "Findings" section of Prop H states
that "[h]andgun violence is a serious problem in San Francisco," accounting for 67
percent of injuries or deaths caused by firearms in the City in 1999. These findings also
state that Prop H is not intended to affect residents from other jurisdictions with regard to
handgun possession. Therefore, "the provisions of Section 3 [banning handgun
possession in the City] apply exclusively to residents of the City and County of San
Francisco." Section 1 also invokes the City's "home rule" power and describes that
power as allowing "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."
       Prop H contains two substantive provisions, Section 2 and Section 3. Section 2 is
entitled "Ban on Sale, Manufacture, Transfer or Distribution of Firearms in the City and
County of San Francisco." It states, in its entirety, that "[w]ithin the limits of the City
and County of San Francisco, the sale, distribution, transfer and manufacture of all
firearms and ammunition shall be prohibited." There are no exceptions to this section.
       Section 3 is entitled "Limiting Handgun Possession in the City and County of San
Francisco." It states that within City boundaries, "no resident of the City and County of
San Francisco shall possess any handgun unless required for professional purposes, as
enumerated herein." Section 3 contains narrow exemptions to the City's ban on
possession of handguns for government employees carrying out the functions of
government employment, active members of the United States armed forces or the
National Guard, and security guards "while actually employed and engaged in protecting
and preserving property or life within the scope of his or her employment . . . ."
Section 3 indicates that any City resident may surrender his or her handgun "without
penalty" at any district station of the San Francisco Police Department or to the
San Francisco Sheriff's Department within 90 days after Section 3 becomes effective.



                                              2
The City's board of supervisors is charged with enacting penalties for violation of the
ordinance.
       Section 6 is entitled "State Law." It provides that "[n]othing in this ordinance is
designed to duplicate or conflict with California state law" or to "create or require any
local license or registration for any firearm, or create an additional class of citizens who
must seek licensing or registration." Additionally, the ordinance does not apply to "any
person currently denied the privilege of possessing a handgun under state law . . . ."
       Finally, Section 7 of the ordinance contains a severability clause that provides "[i]f
any provision of this ordinance or the application thereof to any person or circumstances
is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect
other provisions or applications or [sic] this ordinance, which can be given effect without
the invalid or unconstitutional provision or application. To this end, the provisions of this
ordinance shall be deemed severable."
       After Prop H passed, Paula Fiscal, several retired law enforcement and military
personnel, two law enforcement associations, and several firearms rights groups
(collectively, petitioners) sought a writ of mandate declaring Prop H invalid. Among
other arguments, petitioners challenged the ordinance on the grounds that it was
preempted by state law.
       The trial court granted petitioners' request for writ of mandate, finding Prop H
unenforceable, primarily because it was preempted by three separate state laws regulating
firearms. Specifically, the court determined that the key provisions of Prop H,
prohibiting the sale of firearms and possession of handguns by City residents, were
preempted by Penal Code section 12026, subdivision (b) [prohibiting localities from
restricting handgun possession in an individual's home, business, or private property],
Government Code section 53071 [indicating an express intent by the Legislature to
occupy the whole field of firearms licensing and registration] and the Unsafe Handgun
Act, Penal Code sections 12125-12233 [establishing a protocol for designating which
handguns may be sold in California] (UHA). Finally, the trial court found that any
residual portions of Prop H arguably valid were not severable because the court could not


                                              3
disentangle the various bans without exceeding its powers by deleting and adding words,
i.e., rewriting the ordinance. The court further concluded that the subject of Prop H
"dealing with the possession and use of handguns" is one of statewide concern and
therefore controlled by the applicable state law. This appeal followed.
                                             III.
                                       DISCUSSION
                                      A. Introduction
       Before addressing the issues raised in this case, we briefly note what is not at issue
in this appeal. This case is not about the public policy choices that the voters in San
Francisco have made by enacting Prop H. Thus, we need not, and do not, pass judgment
on the merits of Prop H, or engage ourselves in the sociological and cultural debate about
whether gun control is an effective means to combat crime. (Compare Ayres &
Donohue, Shooting Down the "More Guns, Less Crime" Hypothesis (2003) 55 Stanford
L.Rev. 1193; Comment, Confirming "More Guns, Less Crime" (2003) 55 Stanford
L.Rev. 1313.) Similarly, the question of whether California citizens do or do not enjoy a
constitutional right to own or possess firearms, or if it exists, whether that right can be
limited by local gun control legislation has not been raised or argued by the parties to this
case. (See generally Kasler v. Lockyer (2000) 23 Cal.4th 472, 481 [no mention made in
California Constitution of right to bear arms].) Our task is simply to determine whether
Prop H is preempted by state law.
              B. California Preemption Analysis and Standard of Review
       In O'Connell v. City of Stockton (2007) 41 Cal.4th 1061 (O'Connell), our
Supreme Court recently restated the guiding principles for determining whether a local
ordinance is displaced by a state measure. The court explained, " `Under article XI,
section 7 of the California Constitution, "[a] county or city may make and enforce within
its limits all local, police, sanitary, and other ordinances and regulations not in conflict
with general [state] laws." [¶] "If otherwise valid local legislation conflicts with state
law, it is preempted by such law and is void." [Citations.] [¶] "A conflict exists if the
local legislation ` "duplicates, contradicts, or enters an area fully occupied by general


                                               4
law, either expressly or by legislative implication." ' " [Citations.]' (Sherwin-Williams
Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 . . . , italics added, fn. omitted
(Sherwin-Williams); see also American Financial Services Assn. v. City of Oakland
(2005) 34 Cal.4th 1239, 1251 . . . (American Financial).)" (O'Connell, supra, 41 Cal.4th
at p. 1067.)
       The O'Connell court explained the italicized terms as follows: "A local ordinance
duplicates state law when it is `coextensive' with state law. (Sherwin-Williams, supra, 4
Cal.4th at pp. 897-898, citing In re Portnoy (1942) 21 Cal.2d 237, 240 . . . [as `finding
"duplication" where local legislation purported to impose the same criminal prohibition
that general law imposed'].)
       "A local ordinance contradicts state law when it is inimical to or cannot be
reconciled with state law. (Sherwin-Williams, supra, 4 Cal.4th at p. 898, citing Ex Parte
Daniels (1920) 183 Cal. 636, 641-648 . . . [as finding ` "contradiction" ' in a local
ordinance that set the maximum speed limit for vehicles below that set by state law].)
       "A local ordinance enters a field fully occupied by state law in either of two
situations--when the Legislature `expressly manifest[s]' its intent to occupy the legal
area or when the Legislature `impliedly' occupies the field. (Sherwin-Williams, supra, 4
Cal.4th at p. 898; see also 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional
Law, § 986, p. 551 [`[W]here the Legislature has manifested an intention, expressly or by
implication, wholly to occupy the field . . . municipal power [to regulate in that area] is
lost.'].)" (O'Connell, supra, 41 Cal.4th at pp. 1067-1068.)
       The O'Connell court went on to say: "When the Legislature has not expressly
stated its intent to occupy an area of law, we look to whether it has impliedly done so.
This occurs in three situations: when ` "(1) the subject matter has been so fully and
completely covered by general law as to clearly indicate that it has become exclusively a
matter of state concern; (2) the subject matter has been partially covered by general law
couched in such terms as to indicate clearly that a paramount state concern will not
tolerate further or additional local action; or (3) the subject matter has been partially
covered by general law, and the subject is of such a nature that the adverse effect of a


                                              5
local ordinance on the transient citizens of the state outweighs the possible benefit to the
locality." (Sherwin-Williams, supra, 4 Cal.4th at p. 898.)' " (O'Connell, supra, 41
Cal.4th at p. 1068.))
       Because the City in this case is a charter city, the home rule doctrine also comes
into play. Article XI, section 5, subdivision (a) of the California Constitution reserves to
charter cities the right to adopt and enforce ordinances that conflict with general state
laws, provided the subject of the regulation is a "municipal affair" rather than one of
"statewide concern." (Johnson v. Bradley (1992) 4 Cal.4th 389, 398-399.) " `Because
the various sections of article XI fail to define municipal affairs, it becomes necessary for
the courts to decide, under the facts of each case, whether the subject matter under
discussion is of municipal or statewide concern. This question must be determined from
the legislative purpose in each individual instance.'. . ." (City of Santa Clara v. Von
Raesfeld (1970) 3 Cal.3d 239, 246, quoting Professional Fire Fighters, Inc. v. City of Los
Angeles (1963) 60 Cal.2d 276, 294.)
       A trial court's decision invalidating a local ordinance on grounds of preemption is
reviewed de novo. (See City of Watsonville v. State Dept. of Health Services (2005) 133
Cal.App.4th 875, 882; Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th
886, 889.) Similarly, where a charter city ordinance is challenged on preemption grounds
and is defended as a permissible exercise of the city's home rule power, the challenge
also presents a question of law which must be decided on a case-by-case basis. (Northern
Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 100 (Northern
Cal. Psychiatric Society).)
                           C. Overview of Parties' Arguments
       The preemption doctrine outlined above frames the parties' arguments. Petitioners
contend the ordinance contains multiple provisions that trespass into fields of regulation
that the state has either expressly or impliedly fully occupied. According to petitioners,
state law has so thoroughly and pervasively covered the subjects covered by Prop H, and
the subjects are so in need of uniform state treatment, that the City's most recent effort to



                                              6
restrict its citizens' ability to purchase, own, and possess firearms, at home and at their
businesses, is clearly preempted.
       In rebuttal, the City points out that the Legislature has never made clear its
intention to preempt local regulation of firearms, and therefore this court should not infer
preemption. The City stresses San Francisco is besieged by violent crime, which often
involves firearms, and the state Legislature has failed to enact laws that would effectively
address the gun violence that "has particularly ravaged the City's less affluent
neighborhoods and minority communities." In light of the Legislature's inaction, the
City claims it is essential that it be able to enact its own local ordinance restricting access
to firearms in order to provide for the safety and welfare of its citizens.
       The City is correct to the extent it argues that the Legislature has never expressed
an intent to preempt the entire field of firearm regulation to the exclusion of local control.
The Legislature, instead, has chosen to preempt "discrete areas of gun regulation."
(Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 861 (Great
Western).) "That state law tends to concentrate on specific areas, leaving unregulated
other substantial areas relating to the control of firearms, indicates an intent to permit
local governments to tailor firearms legislation to the particular needs of their
communities. [Citation.]" (Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1119
(Suter).)
       We therefore turn to the state statutory scheme to determine whether any of the
provisions of Prop H duplicate or contradict state law, or whether its subject matter
invades a field that the state has fully occupied, either expressly or implicitly.
(O'Connell, supra, 41 Cal.4th at pp. 1067-1068.) In undertaking a preemption analysis,
we examine the myriad of subjects covered by the ordinance section-by-section, starting
with Section 3's handgun ban. Despite the fact that no other court has been called upon




                                               7
to consider a local firearms ban of this scope1, this court, when considering the power of
the City to legislate in this area, is by no means writing on a blank slate.
    D. Section 3 of Prop H entitled "Limiting Handgun Possession in the City and
                 County of San Francisco" is Preempted by State Law
       With narrow exceptions, Section 3 of Prop H bans the possession of handguns by
San Francisco residents, including handgun possession within the sanctity of homes,
businesses, and private property.2 The trial court identified two state statutes, "each of
which specifically preempts a narrowly limited field of firearms regulation," which the
trial court found preempted Section 3. (California Rifle & Pistol Assn. v. City of West
Hollywood (1998) 66 Cal.App.4th 1302, 1318 (CRPA).) These two code sections are
Penal Code section 12026, subdivision (b) [prohibiting localities from restricting
handgun possession in an individual's home, business, or private property] and
Government Code section 53071 [indicating an express intent by the Legislature to
occupy the whole field of firearms licensing and registration]. The trial court's
conclusion is supported by the legislative history and subsequent judicial interpretation of
these provisions.
       In its current form, Penal Code section 12026, subdivision (b), reads that if a
California resident suffers no legal impediment to handgun ownership, "[n]o permit or
license" shall be required "to purchase, own, possess, keep, or carry, either openly or
concealed, a pistol, revolver, or other firearm capable of being concealed upon the person
within the citizen's or legal resident's place of residence, place of business, or on private




1      In a recent law review article, counsel for petitioners have characterized
Proposition H as "the most extreme gun ban ever enacted in the United States, except for
the confiscation of all firearms enacted by the seceding state of Tennessee during the
Civil War." (Kate & Michel, Local Gun Bans in California: A Futile Exercise (2007) 41
U.S.F. L.Rev. 333, 334, fn. omitted (Local Gun Bans).)
2      Section 3 prohibits possession of only handguns, so presumably other types of
firearms, such as rifles or shotguns, are outside its scope.


                                              8
property owned or lawfully possessed by the citizen or legal resident."3 Penal Code
section 12026 was enacted in 1923 as part of the Uniform Firearms Act. By barring the
imposition of any permit or licensing requirement, Penal Code section 12026 served to
preclude local public entities from adopting impediments on legally qualified citizens
wishing to "purchase, own, possess, keep, or carry" a concealable firearm in their homes
or businesses.
       In Galvan v. Superior Court (1969) 70 Cal.2d 851, 855 (Galvan) our Supreme
Court held that Penal Code section 12026 did not prohibit San Francisco from passing an
ordinance requiring the registration of most firearms within city limits. (Id. at pp. 855,
859.) The Supreme Court held that the San Francisco ordinance did not contradict
section 12026 because "registration" has an entirely different meaning than "licensing,"
and registration and licensing, by their very nature, seek to achieve different goals. (Id. at
pp. 856-858.) Significantly, in discussing Penal Code section 12026, Galvan interpreted
the "no permit or license . . . shall be required" language broadly, as indicating a
legislative intent "that the right to possess a weapon at certain places could not be
circumscribed by imposing any requirements . . . ." (Id. at p. 858.)
       In response to Galvan, the Legislature enacted former Government Code section
9619 (Stats. 1969, ch. 1428, § 1. pp. 2932-2933), later re-codified at Government Code
section 53071 (Stats. 1971, ch. 438, § 95, pp. 119-121) (Government Code section
53071). This section expressly preempts all local laws which attempt to regulate either

3       Currently, Penal Code section 12026, subdivision (b) reads in full: "No permit or
license to purchase, own, possess, keep, or carry, either openly or concealed, shall be
required of any citizen of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within the excepted classes
prescribed by Sections 12021 or 12021.1 of this code [relating to certain persons
convicted of crimes and to narcotics addicts] or Section 8100 or 8103 of the Welfare and
Institutions Code [relating to persons with mental disorders], to purchase, own, possess,
keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of
being concealed upon the person within the citizen's or legal resident's place of
residence, place of business, or on private property owned or lawfully possessed by the
citizen or legal resident." Hereafter, we will simply refer to this section as Penal Code
section 12026.


                                              9
licensing or registration of firearms, by declaring "the intention of the Legislature to
occupy the whole field of regulation of the registration or licensing of commercially
manufactured firearms" while expressly prohibiting "all local regulations, relating to
registration or licensing of commercially manufactured firearms . . . ."4
       After Government Code section 53071 was enacted, San Francisco passed an
ordinance requiring anyone seeking to purchase a concealable firearm within the City
first to get a permit from the City's police chief. This permit requirement was easily
struck down by the court in Sippel v. Nelder (1972) 24 Cal.App.3d 173 as running afoul
of both Penal Code section 12026 and Government Code section 53071. (Id. at p. 177.)
The court concluded that, with the passage of Government Code section 53071, "the
Legislature resolved any possible doubt as to its intent to fully occupy the field of firearm
control, both in terms of registration and licensing." (Ibid.) The court also held that the
plaintiff was "entitled, under Penal Code[] section 12026, to possess a concealed firearm
at his residence without obtaining a license or permit of any kind." (Id. at p. 177.)
       Ten years later, in Doe v. City and County of San Francisco (1982) 136
Cal.App.3d 509 (Doe), Division Three of this court was called upon to examine a San
Francisco ordinance banning the possession of handguns within City limits. Exempted
from the ordinance were persons possessing a state license to carry a concealed firearm
under Penal Code section 12050. (Id. at p. 512.)
       The Doe court found the ordinance preempted by employing multiple, alternative
analyses. Most important to our analysis of Prop H, the court concluded that section
12026 was intended to occupy the field of residential firearm possession. (Doe, supra,
136 Cal.App.3d at p. 518.) "It is at least arguable that the state Legislature's adoption of
numerous gun regulations has not impliedly preempted all areas of gun regulation. . . .

4      Government Code section 53071, reads in full: "It is the intention of the
Legislature to occupy the whole field of regulation of the registration or licensing of
commercially manufactured firearms as encompassed by the provisions of the Penal
Code, and such provisions shall be exclusive of all local regulations, relating to
registration or licensing of commercially manufactured firearms, by any political
subdivision as defined in Section 1721 of the Labor Code."


                                             10
However, we infer from Penal Code section 12026 that the Legislature intended to
occupy the field of residential handgun possession to the exclusion of local governmental
entities. A restriction on requiring permits and licenses necessarily implies that
possession is lawful without a permit or license. It strains reason to suggest that the state
Legislature would prohibit licenses and permits but allow a ban on possession." (Id. at
p. 518.)
       In our view, Doe correctly interpreted Penal Code section 12026 as depriving local
entities of any power to regulate handgun possession on private property. The City
claims Doe's "finding of a legislative intent to occupy the field of residential handgun
possession" was based on "faulty reasoning." It argues that Doe interpreted Penal Code
section 12026 too broadly because when read literally, section 12026 does nothing more
than preempt local governments from imposing a requirement "that gun owners obtain a
permit [or license] to purchase a handgun or to keep a handgun in their home or
business . . . ." However, they cite to no subsequent case which has overruled,
disapproved of, or even sought to limit or clarify, the Doe decision. In fact, Doe has been
cited with approval by our Supreme Court. (Great Western, supra, 27 Cal.4th at p. 864.)
       Also, " `the Legislature is deemed to be aware of existing laws and judicial
decisions in effect at the time legislation is enacted and to have enacted and amended
statutes in the light of such decisions as have a direct bearing upon them.' [Citation.]"
(Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1814-1815.) Given the
presumption of the Legislature's awareness of Doe during the three times it has reenacted
Penal Code section 12026 since the Doe decision,5 it is reasonable to assume that if the
Legislature intended to reopen this area of regulation to local units of government, it
would have addressed the issue specifically by repealing or amending Penal Code section
12026. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 815.) Because it
did not do so, we conclude that the Legislature intended to maintain the prohibitions
5      Stats. 1995, ch. 322, § 1, p. 1803; Stats. 1989, ch. 958, § 1, p. 3372; Stats. 1988,
ch. 577, § 2, pp. 2128-2129. The one noteworthy change is that Penal Code section
12026 is now subdivided. See Stats. 1988, ch. 577, § 2, pp. 2128-2129; Stats. 1989,
ch. 958, § 1, p. 3372; Stats. 1995, ch. 322, § 1 & subd. (b), p. 1803.


                                             11
placed on local government that are contained in Penal Code section 12026, as
interpreted by the Doe decision. (Peltier v. McCloud River R.R. Co. (1995) 34
Cal.App.4th 1809, 1821 [refusing to consider arguments that a previous case's
interpretation of a statute was wrong, given that the statute was reenacted without change
to the language interpreted].)6
       Therefore, insofar as Section 3 of the ordinance operates to prohibit and punish
handgun possession by City residents on private property, e.g., in their homes and
businesses, it is impliedly preempted by Penal Code section 12026. We agree with Doe
that it can be readily "infer[red] from Penal Code section 12026 that the Legislature
intended to occupy the field of residential handgun possession to the exclusion of local
governmental entities." (Doe, supra, 136 Cal.App.3d at p. 518.)
       While we have thus far focused on the relationship between state law and
Section 3's ban on handgun possession on one's private property, it is important to note
that Section 3 regulates in a much broader field than just private property. Section 3
prohibits both public and private handgun possession and thus effectively displaces
numerous state laws allowing private citizens to possess handguns for self-protection and
other lawful purposes. As the trial court noted, "[t]he statute books contain almost one
hundred pages of unannotated state gun laws that set out a myriad of statewide licensing
schemes, exceptions, and exemptions dealing with the possession and use of handguns."
We provide a brief overview of just a few of the state statutes dealing with public
handgun possession.
       Penal Code section 12050 provides that, upon a showing of good cause, any law-
abiding, responsible adult can obtain a license to carry a concealed handgun. Even
without a license, Penal Code sections 12025.5 and 12031, subdivision (j)(2) create
special exceptions whereby people who have been threatened and who have obtained
restraining orders may carry loaded and concealed handguns. Penal Code sections

6      One can easily infer from how expeditiously the Legislature moved to enact what
is now Government Code section 53071 after the Galvan case was decided that our
lawmakers have an acute awareness of, and an abiding interest in, firearms regulation.


                                            12
12027, subdivision (a) and 12031, subdivision (b)(1) allow civilians to possess concealed
and loaded handguns when summoned by police to assist police in making an arrest or to
preserve the peace. Penal Code section 12031, subdivision (k) permits possession of a
loaded gun when making a citizen's arrest. Penal Code section 12031, subdivision (j)(1)
allows possession of a loaded firearm when a person has a reasonable belief that he or she
is in immediate grave danger and the firearm is necessary to protect person or property.
       Certain classes of persons, while engaged in legitimate activities, are exempted
from the operation of most of the statutory prohibitions governing handgun possession,
including law enforcement agencies and officers (see, e.g., Pen. Code, §§ 12027, subd.
(a)(1)(A); 12201, subds. (a), (b); 12287, subds. (a)(4), (5); 12302; 12031, subd. (b),
including retired peace officers (Pen. Code, §§ 12027, subd. (a)(1)(A)), and the military
(Pen. Code, § 12280, subds. (e), (f)(1)).
       Additionally, special exemptions and licenses are granted to certain individuals in
the private sector, including the private security industry (Pen. Code, §§ 12031, subds.
(b)(7), (d)(1)-(6)), entertainment industry professionals (Pen. Code, §§ 12072, subd.
(a)(9)(B)(vi), 12026.2, subds. (a)(1), (8); 12305, subd. (a)), members of gun clubs (Pen.
Code, § 12027, subd. (f), § 12026.2, subd. (a)(2)), and private investigators (Pen. Code,
§ 12031, subd. (d)(3)). Any legal firearm may be possessed in public for hunting or
shooting at a target range, or going to or from these places, one's home and business, and
certain other recognized activities (Pen. Code, § 12026.2, subds. (a)(3), (9).)
       The broad language of Government Code section 53071, prohibiting "all local
regulations, relating to registration and licensing" of firearms, indicates that the state has
an interest in statewide uniformity of handgun licensing. (Italics added.) In finding
Government Code section 53071 expressly preempted Prop H, the trial court pointed out
that the ordinance had the practical effect of "revoking or otherwise invalidating existing
state licenses," including those permitting the possession of handguns. The trial court
went on to conclude that "[a] local regulation that invalidates existing licenses, but does
not affirmatively create new licensing schemes, `relates' to the state's regulatory scheme



                                              13
of licensing firearms" and, consequently, is expressly preempted by Government Code
section 53071. We agree.
       While the City emphatically argues that Prop H is a proper response to crime
because it is aimed at criminals who use handguns in the commission of their unlawful
acts, the City's arguments fail to acknowledge that the ordinance will affect more than
just criminals. It will also affect every City resident who has not, through some
demonstration of personal disability or irresponsibility, lost his or her right to possess a
handgun. Although a precise assessment of the impact of this ordinance is difficult to
gauge because the ordinance has never been enforced, at a minimum, Section 3 of Prop H
would invalidate all licenses possessed by City residents to carry a concealed weapon
issued under Penal Code section 12050, and it would prohibit the possession of handguns
by City residents even if those residents are expressly authorized by state law to possess
handguns for self-defense or other lawful purposes.
       If the preemption doctrine means anything, it means that a local entity may not
pass an ordinance, the effect of which is to completely frustrate a broad, evolutional
statutory regime enacted by the Legislature. Section 3 of Prop H stands as an obstruction
to the accomplishment and execution of the full purposes and objectives of the legislative
scheme regulating handgun possession in this state. For that further reason, it is
preempted. (Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898 [local legislation is
preempted if it is "inimical" to accomplishment of the state law's policies].)
             E. Section 2 of Prop H entitled "Ban on Sale, Manufacture,
                       Transfer or Distribution of Firearms in the
            City and County of San Francisco" is Preempted by State Law
       Section 2 of the ordinance provides in full: "Within the limits of the City and
County of San Francisco, the sale, distribution, transfer and manufacture of all firearms
and ammunition shall be prohibited." Unlike Section 3, there are no exceptions
contained in Section 2. Presumably, if Section 2 were enforced, there would be no sales
of firearms or ammunition in the City. Storefront firearms dealers in the City would
immediately go out of business. Other businesses that deal in the sale of firearms, such


                                              14
as auction houses that offer collectible firearms for sale, would also be adversely
affected. The impact of the "transfer" and "distribution" bans are more difficult to gauge.
A literal interpretation of the transfer/distribution ban could lead to absurd results, such as
prohibiting law enforcement agencies from distributing firearms and ammunition to their
officers.
       We first note that the key provision of Section 2, banning the sale of all firearms
within City limits, runs into many of the same preemption obstacles as does Section 3.
First, it is at odds with Penal Code section 12026's guarantee that City residents be able
"to purchase, own, possess, keep, or carry" firearms at their homes, and businesses.
(Italics added.) As the trial court recognized, "[a] local ordinance that substantially
burdens the purchasing and possession of handguns by banning their sale is just as
contrary to section 12026 as was the possession ban struck down by Doe."
       Secondly, we agree with the trial court that Section 2 contravenes Government
Code section 53071, which expressly preempts any local enactments "relating to" the
licensing or registration of commercially manufactured firearms. As noted by the trial
court, "San Francisco currently has gunshops, pawnshops, and auction houses that hold
valid state licenses specific to their firearm transactions. . . . Section 2 effectively cancels
all of these licenses." (See Pen. Code, §§ 12070, subd. (a); 12071; 12072; 12078.)
Clearly, therefore, in adopting Section 2, San Francisco has entered the preempted field
of firearms registration and licensing in express derogation of Government Code
section 53071.
       Lastly, we agree with the trial court that Section 2's City-wide ban on the sale of
firearms is impliedly preempted due to its duplication of, and contradiction with, the
UHA (Pen. Code, §§ 12125-12233). The UHA was enacted in 1999 in response to the
proliferation of local ordinances banning low cost, cheaply made handguns known as
"Saturday Night Specials," which called to the Legislature's attention the need to address
the issue of handguns sales in a more comprehensive manner. (See Stricker, Gun Control
2000: Reducing the Firepower (2000) 31 McGeorge L.Rev. 293, 313 (Gun Control
2000).)


                                              15
       The UHA uniformly bans the sale of Saturday Night Specials in California, but it
also includes provisions applicable to all handguns sold in the state, including those of
higher quality. (Pen. Code, § 12125, subd (a).) For example, the UHA requires that all
models of handguns meet certain quality assurance tests and other standards before being
approved for sale in this state, including specified standards relating to the safe firing of
the handgun and the ability to drop the handgun without it firing accidentally. (Pen.
Code §§ 12126, 12127, subd. (a).) The UHA charges the California Department of
Justice with testing and compiling a list of handguns that "may be sold in this state
pursuant to this title." (Pen. Code, § 12131, subd. (a).) There are criminal penalties for
violating the UHA (for instance, selling a Saturday Night Special) with potential
imprisonment for up to one year in a county jail. (Pen. Code § 12125, subd. (a).)
       The trial court held that Section 2's wholesale ban on the sale of firearms within
City limits, including all handguns, was impliedly preempted by the UHA. In reaching
its conclusion, the trial court pointed out that, with respect to unsafe UHA-prohibited
handguns, Section 2 "duplicates state law by doubly banning them." For UHA-approved
handguns, Section 2 conflicts with state law because it has the effect of banning the sale
of every single handgun which the UHA indicates "may be sold" in California. (Pen.
Code, § 12131, subd. (a).)7
       In challenging this conclusion, the City first claims the UHA has no applicability
to resolving the preemption question posed in this case because this legislation was
simply a consumer measure unrelated to the regulation of firearms as a response to crime.
(See Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 868-869,
7       The theory of implied preemption relied upon by the trial court has been explained
as follows: "A local government cannot adopt a regulation which duplicates state law
because to do so would create a conflict of jurisdiction between the locality and the state
in cases of violation. . . . Nor can a local government adopt a regulation which
contradicts, or `is inimical to,' state law. . . . In either of these circumstances, the
invalidity of local law arises not from any specific intention of the state legislature that
local governments be barred from regulating, but from the effect that the local action
would have on the state's ability to exercise its sovereignty." (See Gorovitz, California
Dreamin': The Myth of State Preemption of Local Firearm Regulation (1996) 30 U.S.F.
L.Rev. 395, 401, fns. omitted (California Dreamin').)


                                              16
disapproved on other grounds in City of West Hollywood v. Beverly Towers, Inc. (1991)
52 Cal.3d 1184, 1191-1192 [where local legislation serves local purposes, and state
legislation that appears to be in conflict actually serves different, statewide purposes,
preemption will not be found].) While the UHA was primarily enacted to "protect
legitimate owners and innocent bystanders from a product that may inadvertently injure
them," the UHA also has the effect of "eliminating a type of firearm from criminals'
arsenals." (Gun Control 2000, supra, 31 McGeorge L.Rev. at p. 316, fns. omitted.)
       Petitioners offer legislative history of the UHA, of which we take judicial notice,
showing that one of the goals of the UHA included curbing handgun crime, as well as
promoting gun safety.8 We have also taken judicial notice of Assembly Bill No. 1471,
entitled "the Crime Gun Identification Act of 2007," which was signed into law by
Governor Arnold Schwarzenegger on October 12, 2007, and became effective January 1,
2008. (See Stats. 2007, ch. 572, § 2; Pen. Code, § 12126.) Assembly Bill No. 1471
amends the UHA by requiring that all semi-automatic handguns sold in California after
January 1, 2010, be equipped with an array of characters identifying the make, model,
and serial number of the handgun. These characters must be embossed onto the pistol's
firing pin and interior surfaces, which will then be imprinted on each cartridge case when
the handgun is fired. This new technology, identified as micro-stamping, will provide
important investigative leads in solving gun-related crimes by allowing law enforcement
personnel to quickly identify information about the handgun from spent cartridge casings
found at the crime scene. There can be no doubt that this newly enacted amendment to
the UHA deals with crime prevention and criminal apprehension. We therefore reject the
City's argument that the UHA can have no preemptive effect because it is a consumer
protection statute that operates in a different regulatory field than does Section 2.
8      This legislative history shows that: 1) banning cheaply made guns has been
advocated as a means of reducing gun availability to criminals; 2) the first two times the
Legislature enacted the UHA it was vetoed by then-Governor Pete Wilson because it
would deprive the poor of needed protection by outlawing the purchase of the only
firearm they could afford; and 3) cities and groups supporting the passage of the UHA
wrote the Legislature that the UHA would ban certain guns used by criminals, and
thereby reduce gun crime.


                                             17
       The legislative history of the UHA also reveals that the issue of preemption was
specifically raised with respect to the existing local bans on the sale of Saturday Night
Specials as well as any future attempts by local governments to ban handgun sales more
broadly. A report by the Senate Committee on Public Safety concluded that "[t]his bill
would appear to preempt any such local ordinance, both those already in existence and
any proposed locally in the future." (Sen. Com. on Public Safety, Firearms--Restrictions
on `Unsafe Handguns,' Rep. on Sen. Bill No. 15 (1999-2000 Reg. Sess.) as amended
April 5, 1999, p. 9.) In apparent response to this concern, a subsequent amended version
of the April 5, 1999 version of the proposed bill addressed the question of preemption
directly by including language expressly preserving the power of local governments to
place "more stringent requirement upon the manufacture, importation, transfer, sale, or
possession of handguns." (Assem. Amend. to Sen. Bill No. 15 (1999-2000 Reg. Sess.)
June 2, 1999.) Had the UHA been enacted with this quoted language, the City's position,
at least with regard to Section 2 of Prop H, would have more persuasive bite. However,
when the Legislature ultimately enacted the UHA, this language was deleted. (Assem.
Amend. to Sen. Bill No. 15 (1999-2000 Reg. Sess.) June 16, 1999.)
       Our Supreme Court has cautioned courts not to read too much into deletions from
bills when ascertaining legislative intent. (See American Financial Services Assn. v. City
of Oakland (2005) 34 Cal.4th 1239, 1261-1262.) However, following passage of the
UHA, cities, including San Francisco, repealed their own Saturday Night Special
ordinances. We agree with the trial court's conclusion that these repeals were in
recognition of "the UHA's preemptive effect on the topic;" and indeed, the City has
offered no other explanation for its action.
       The City next challenges the trial court's finding that the UHA impliedly preempts
Section 2 by arguing there can be no conflict with state law because the UHA simply
provides that handguns not found to be unsafe "may be sold" in the state. (Pen. Code,
§ 12131, subd. (a), italics added.) The City contends that the italicized language means
only that the UHA allows the sale of those handguns; it does not mandate that local
governments permit such sales. Consequently, the mere fact that the Legislature has


                                               18
sanctioned certain handguns for sale does not prohibit a municipality from imposing
additional requirements.
       We acknowledge courts have found, in the absence of express preemptive
language, that a city or county may make additional regulations, different from those
established by the state, if not inconsistent with the purpose of the general law. (See, e.g.,
Suter, supra, 57 Cal.App.4th at p. 1116 [finding an ordinance enacted by the City of
Lafayette requiring persons seeking to sell, transfer or lease weapons to obtain local land
use and police permits was not preempted by state law]); Fisher v. City of Berkeley
(1984) 37 Cal.3d 644, 704-709; Northern Cal. Psychiatric Society, supra, 178
Cal.App.3d at p. 106.) We further acknowledge that, in spite of the UHA's enactment,
room has been left by the Legislature for some quantum of local handgun sales
regulation. (See, e.g., Great Western, supra, 27 Cal.4th at p. 868 [upholding a Los
Angeles County ordinance prohibiting the sale of firearms at gun shows on county
property against a preemption challenge even though the UHA permits the type of sale
barred by the ordinance].)
       But, this case is not one where a local entity has legislated in synergy with state
law. To the contrary, here the state and local acts are irreconcilable, clearly repugnant,
and so inconsistent that the two cannot have concurrent operation. (Water Quality Assn.
v. City of Escondido (1997) 53 Cal.App.4th 755, 765, citing Western Oil & Gas Assn. v.
Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420.) As
the trial court recognized, Section 2's ban on the sale of handguns does not merely
overlap with the UHA; instead, it "swallows the state regulations whole." The City is not
simply imposing additional restrictions on state law to accommodate local concerns; but
instead, it has enacted a total ban on an activity state law allows. This difference was
recognized in Great Western, which noted that total bans are not viewed in the same
manner as added regulations, and justify greater scrutiny. (Great Western, supra, 27
Cal.4th at pp. 867-888.) Therefore, we agree that with the passage of the UHA, the
Legislature has impliedly preempted local ordinances, such as Section 2, which
completely bans the sale of all handguns.


                                             19
                F. Cases Addressing Local Regulation of Firearm Sales
       We next consider several cases the City claims have "resoundingly upheld local
laws that prohibit gun sales, or otherwise restrict access to firearms." The first of these
cases, CRPA, supra, 66 Cal.App.4th 1302, was decided shortly before the UHA was
enacted, and indeed, concerned one of the local ordinances that was the precursor to its
passage. In CRPA, the Second Appellate District held that a local ordinance which
banned, within city limits, the sale of any handgun which the city classified as a Saturday
Night Special was not preempted by Government Code section 53071 or Penal Code
section 12026. (Id. at p. 1302.)
       The court declined to extend the reasoning of Doe to handgun sales, instead
finding that "Doe identifies only `residential handgun possession' as a preempted field,"
and that "[t]he ordinance at issue here creates no permit or license requirement, and
instead regulates only sales." (CRPA, supra, 66 Cal.App.4th at p. 1319.) Additionally,
the opinion concluded that the ban of one specific type of handgun does not conflict with
Government Code section 53071's express preemption of the field of registration and
licensing. (Id. at p. 1322.)
       Thus, CRPA concluded that cities had some leeway to ban the sale of one
particular type of gun deemed to present dangers to a local community above and beyond
the dangers presented by handguns generally. However, that decision does not stand for
the principle that municipalities are free to ban the sale of all firearms. The CRPA court
was careful to make this distinction, emphasizing that "[t]he ordinance involved in the
instant case does not ban possession of any handgun, but instead bans the sale of a
limited category of handguns within city limits." (CRPA, supra, 66 Cal.App.4th at
pp. 1321-1322.) That clearly is inapposite to the facts of this case.
       Moreover, at the time CRPA was decided there was " `no [statutory] prohibition
on, nor any express authorization for, the sale of Saturday night specials or other
concealable firearms' " that would pose a potential conflict with a local ordinance
prohibiting the sale of Saturday Night Specials. (Id. at p. 1322.) Shortly after CRPA was
decided, the regulatory landscape relating to handgun sales was significantly altered


                                             20
when the Legislature passed the UHA. Thus, the court that decided CRPA had no
opportunity to determine to what extent the UHA preempts local authority in the area of
handgun sales, rendering CRPA's analysis of dubious precedential value.
       Finally, we consider a brace of recent cases decided by our Supreme Court which
the City argues supports its authority to ban the sale of firearms and ammunition.
Answering questions certified from the United States Court of Appeals for the Ninth
Circuit, the California Supreme Court held in two companion cases that a county
ordinance that prohibited the sale of firearms and ammunition at gun shows held on
county property was not preempted by state law. (Great Western, supra, 27 Cal.4th 853;
Nordyke v. King (2002) 27 Cal.4th 875 (Nordyke).) Unlike the broader preemption
question here, the question addressed by the Supreme Court was whether the Legislature
intended to occupy the entire field of gun show regulation, including controlling the
venues for such shows. The court answered this question in the negative, perceiving
nothing in state law that expressly or impliedly prohibited a county from withdrawing its
property from use for gun shows, based on its own calculation of the costs and benefits of
permitting such use. The court emphasized that California law regulating activities at
gun shows did not "mandate that counties use their property for such shows." (Great
Western, supra, 27 Cal.4th at p. 870; Nordyke, supra, 27 Cal.4th at p. 884.)
       The Supreme Court also held that, contrary to the claims of the gun show
promoters, the local ordinances did not contradict state firearms law by promoting
something prohibited by the state or by prohibiting something promoted by the state.
"[T]here is no evidence in the gun show statutes [Penal Code sections 12071, 12071.1
and 12071.4,] or, as far as we can determine, in their legislative history, that indicates a
stated purpose of promoting or encouraging gun shows." (Great Western, supra, 27
Cal.4th at p. 868.) The court went on to hold that "[T]he overarching purpose of [the
Penal Code sections] appears to be nothing more than to acknowledge that such shows
take place and to regulate them to promote public safety." (Ibid.) The court also pointed
out that the statutes governing gun shows contemplate that firearm dealers at gun shows
will be subject to applicable local regulations. (See Pen. Code, § 12071.4 [subjecting gun


                                              21
shows to local regulation].) (Great Western, supra, 27 Cal.4th at p. 865.) Accordingly,
the county had the authority to prohibit the operation of gun shows held on its property
and, at least to that extent, could "impose more stringent restrictions on the sale of
firearms than state law prescribes." (Id. at p. 870.)
       These cases are palpably distinguishable from the case before us. In deciding
Great Western and Nordyke, our Supreme Court was careful to confine its preemption
analysis to the question of whether state law authorizing gun shows necessarily
compelled counties to allow their property to be used for this purpose. (Great Western,
supra, 27 Cal.4th at p. 858; Nordyke, supra, 27 Cal.4th at p. 884.) The court found that
there was acceptable interplay between the local government's exercise of its power to
control the use of its property and the state government's regulation of gun shows to
permit local governments to ban the sale of firearms and ammunition at gun shows on
county-owned public property. (Great Western, supra, 27 Cal.4th at p. 869; Nordyke,
supra, 27 Cal.4th at p. 885.) Neither case can be properly read to extend that limited
preemption inquiry to a case such as this one involving a local government's attempt to
enact an absolute and total ban of firearm and ammunition sales on all property, public
and private, within its geographic jurisdiction.
       In conclusion, we find the situations presented in CRPA, supra, 66 Cal.App.4th
1302, Great Western, supra, 27 Cal.4th 853, and Nordyke, supra, 27 Cal.4th 875, are so
different from those presented in this case as to make them inapposite here.
                      G. Statewide Concern or Municipal Affair?
       Despite having found preemption, the City can nevertheless escape petitioners'
challenge if Prop H relates to a purely "municipal affair," because its city charter includes
a "home rule" provision. (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61.) But "[a]s
to matters which are of statewide concern, however, home rule charter cities remain
subject to and controlled by applicable general state laws regardless of the provisions of
their charters, if it is the intent and purpose of such general laws to occupy the field to the
exclusion of municipal regulation (the preemption doctrine). [Citations.]" (Id. at pp. 61-
62.)


                                              22
       Our Supreme Court also addressed this issue in its recent O'Connell case. There,
the City of Stockton argued that even if its ordinance authorizing forfeiture of vehicles
used in the commission of certain criminal acts was preempted by state law, it was lawful
because the subject matter of the ordinance constituted a "municipal affair," and did not
involve a matter of "statewide concern." (O'Connell, supra, 41 Cal.4th at pp. 1075-
1076.) The Supreme Court summarily rejected that argument in O'Connell, noting that
the illegal activities at issue, prostitution and trafficking in controlled substances, had
been "comprehensively addressed through various provisions of this state's Penal and
Vehicle Codes, leaving no room for further regulation at the local level," and therefore
were "matters of statewide concern." (Id. at p. 1076.)
       We likewise have reason to reject summarily the City's argument that Prop H
addresses only a municipal affair. When looked at as a whole, the Penal Code presents a
comprehensive montage of firearms possession, sale, licensing, and registration laws
complete with detailed exceptions and exemptions. These laws of statewide application
reflect the Legislature's balancing of interests­­on the one side the interest of the general
public to be protected from the criminal misuse of firearms, on the other, the interests of
law-abiding citizens to be able to purchase and use firearms to deter crime, to help police
fight crime, to defend themselves, and for hunting and certain recreational purposes. If
every city and county were able to opt out of the statutory regime simply by passing a
local ordinance, the statewide goal of uniform regulation of handgun possession,
licensing, and sales would surely be frustrated. Clearly, the creation of a uniform
regulatory scheme is a matter of statewide concern, which should not be disrupted by
permitting this type of contradictory local action. (See Long Beach Police Officers Assn.
v. City of Long Beach (1976) 61 Cal.App.3d 364.)
                                       H. Conclusion
       We, therefore, affirm the trial court's conclusion that Prop H is invalid as
preempted by state law. As the City repeatedly emphasizes, the statutes governing
firearms have been "carefully worded to avoid any broad preemptive effect." (CRPA,
supra, 66 Cal.App.4th at p. 1314.) Nevertheless, the sheer breadth of Prop H makes it


                                              23
vulnerable to a preemption challenge. As already noted, Section 2 of Prop H bans the
"sale, manufacture, transfer or distribution" of ammunition and firearms in the City,
without exception. (Italics added.) With narrow exceptions, Section 3 bans the
possession of handguns by San Francisco residents, including possession within the
sanctity of homes, businesses, and private property. (Italics added.)9
       We wish to stress that the goal of any local authority wishing to legislate in the
area of gun control should be to accommodate the local interest with the least possible
interference with state law. As we have seen, while courts have tolerated subtle local
encroachment into the field of firearms regulation (CRPA, Great Western, Nordyke), laws
which significantly intrude upon the state prerogative have been uniformly struck down
as preempted (Doe, Sippel). Therefore, when it comes to regulating firearms, local
governments are well advised to tread lightly. (See California Dreamin', supra, 30
U.S.F. L.Rev. 395.)
                                            IV.
                                      DISPOSITION
       The judgment is affirmed. Petitioners are entitled to their costs on appeal.


                                   _________________________
                                              Ruvolo, P. J.

We concur:

_________________________
Reardon, J.
_________________________
Sepulveda, J.

9      Section 7 of the ordinance contains a severability clause, and the City asks that we
parse the ordinance to save what we can. Specifically, the City claims that Prop H's ban
on the sale and possession of rifles and shotguns, which is intermingled with the ban on
handguns, can survive. The ordinance at issue requires extensive revision if there is any
hope of bringing it in conformance with state law, and the rewriting is more appropriately
done by the City than by this court. (See Birkenfeld v. City of Berkeley (1976) 17 Cal.3d
129, 173.)


                                             24
Trial Court:                   San Francisco County Superior Court

Trial Judge:                   Hon. Paul H. Alvarado
                               Hon. James L. Warren

Counsel for Appellants:        Dennis J. Herrera
                               San Francisco City Attorney

                               Wayne Snodgrass
                               Vince Chhabria
                               Deputy City Attorneys

Counsel for Respondents:       Trutanich Michel, C. D. Michel,
                               Don B. Kates, Glenn S. McRoberts and
                               Thomas E. Maciejewski

Counsel for Amicus Curiae on   Michael S. Hebel for The San Francisco
Behalf of Respondents:         Police Officers Association as Amicus Curiae
                               on behalf of Plaintiffs and Respondents

                               Law Office of Donald Kilmer, Donald E.
                               Kilmer, Jr. for Gun Owners of California,
                               Senator H. L. Richardson (ret.), and
                               The Madison Society as Amici Curiae
                               on behalf of Plaintiffs and Respondents

                               Law Office of Donald Kilmer, Donald E.
                               Kilmer, Jr. for California Rifle & Pistol
                               Association as Amicus Curiae on behalf
                               of Plaintiffs and Respondents

                               Law Offices of Bruce Colodny, Bruce Colodny
                               for American Entertainment Armories
                               Association as Amicus Curiae on behalf of
                               Plaintiffs and Respondents




                                 25