Metropolitan News-Enterprise


Monday, August 6, 2018


Page 1


Ninth Circuit:

Microstamping, Other Handgun Safety Laws Pass Muster


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday rebuffed challenges to California’s Unsafe Handgun Act, which bars sales of new handguns lacking microstamping technology, and upheld the requirement of the state’s Gun-Free School Zone Act which allows retired police officers to carry firearms in school zones but not other holders of concealed weapons permits.

The two cases were decided by separate panels.

The challenge to the Unsafe Handgun Act (“UHA”) was brought by three Californians and two non-profit groups, the Second Amendment Foundation and the Calguns Foundation. At issue on appeal were three requirements that handguns have microstamping technology, chamber load indicators, and magazine detachment mechanisms and before they can be added to the safe handgun roster, a requirement before most new handguns can be sold or manufactured in the state.

Microstamping technology, which causes a firearm to imprint a microscopic stamp on the cartridge casing when a round is fired, was the subject of a California Supreme Court case earlier this year. In that case, National Shooting Sports Foundation, Inc. v. California, it was held that the requirement did not run afoul of Civil Code §3531, a maxim of jurisprudence that “[t]he law never requires impossibilities.”

A chamber load indicator (“CLI”) is a device that visually indicates to anyone looking at a firearm whether there is currently a cartridge in the chamber. A magazine detachment mechanism (“MDM”) prevents a firearm with a removable magazine from being fired when a magazine is not inserted in the weapon.

Intermediate Scrutiny Applied

Circuit Judge M. Margaret McKeown wrote the majority opinion affirming a summary judgment granted to the state by U.S. District Court Judge Kimberly J. Mueller of the Eastern District of California. Joining in her opinion was Circuit Judge J. Clifford Wallace.

McKeown said:

“Purchasers argue that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment. We do not need to reach the question of whether these limitations fall within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers. We reject Purchasers’ claim that they have a constitutional right to purchase a particular handgun. Nor do the provisions violate the Equal Protection Clause.”

McKeown observed that the plaintiffs “have adduced little evidence that the handguns unavailable for purchase in California are materially more effective for self-defense than handguns currently for sale in the state.”

She pointed out that Mueller had observed that there are nearly 1,000 firearms currently on the safe handgun roster, able to be lawfully bought and sold in the state.

Equal Protection Argument

The equal protection challenge was predicated on the exception in the UHA for sales to law enforcement officers, to sellers of curios and relics, and to companies that produce television shows and movies.

The plaintiffs argued that allowing sales for law enforcements was an irrational exception inasmuch as their use of the weapons was not confined to when they are on duty.

“Even so,” McKeown wrote, “the legislature could rationally conclude that because law enforcement officers receive extensive training and are expected to respond to emergencies even when off duty, such safety provisions might not be necessary for them. That is a rational explanation.”

She added:

“Purchasers’ challenge to the exceptions for curios and relics and weapons used in film and television also have a rational justification.”

The “curios-and-relics provision,” she said, is merely a grandfather clause pertaining to weapons  more than 50 years old, and both that exception and the one pertaining to filming are with the expectation that the firearms will not be utilized as weapons.

Split Over Microstamping

Dissenting Circuit Judge Jay S. Bybee contended that the majority had ignored the plaintiffs’ argument that the California Department of Justice (“CDOJ”) testing protocol for the microstamping technology was “so demanding that no gun manufacturer can meet it,” and that summary judgment was inappropriate on the record before the panel.

He wrote:

“Under the appropriate Second Amendment analysis, I cannot conclude that there is a reasonable fit between CDOJ’s microstamping requirement and the legislature’s object in solving handgun crimes. The result of CDOJ’s restrictive testing protocol is undisputed: since at least 2013, no new handguns have been sold commercially in California, and that means that no guns were sold with the microstamping feature. That fact has an important secondary effect—it means that no new handguns are being sold commercially with the MDM and CLI safety features either.

“The consequence is obvious. Today, no one in California can purchase handguns that have the safety features the legislature thought critical for saving lives, nor can any Californian purchase guns with the microstamping feature the legislature thought important to assist police. The only guns commercially sold in California are grandfathered from these provisions. This is a totally perverse result.”

The case is Pena v. Lindley, No. 15-15449.

School Zones

Friday’s other gun safety case, Gallinger v. Becerra, No. 16-56125, involves a challenge to a recent amendment to California’s Gun-Free School Zone Act. That act, first passed in 1994, banned the possession of firearms both on school grounds and in school zones, defined as the area 1,000 feet from school grounds.

Initially, the act had an exemption for persons licensed to carry a concealed firearm (“CCW permit holders”) and retired peace officers.

In 2015, the Legislature passed Senate Bill 707 (“SB 707”), which granted school administrators the power to decide who could or could not possess a firearm on school grounds. Under the new law, retired peace officers are still exempt from the prohibition, but CCW permit holders are no longer exempt.

Circuit Judge John B. Owens wrote the opinion for a unanimous panel, affirming the order of dismissal by District Judge Beverly R. O’Connell of the Central District of California, since deceased.

The plaintiffs in the case included several individual CCW permit holders, the Firearms Policy Foundation, the Firearms Policy Coalition, the Madison Society Foundation, and the Calguns Foundation. They argued that treating retired peace officers differently from CCW permit holders was a violation of the Fourteenth Amendment’s equal protection clause.

Rational-Basis Review

Although the parties disputed whether the two classes of individual had similar standing, Owens declined to address that question because the challenge failed rational basis review, which both parties agreed was the correct standard.

The plaintiffs relied heavily on a 2002 Ninth Circuit case, Silveira v. Lockyer, in which the court had applied rational-basis review to an exception for retired peace officers in the state’s Assault Weapons Control Act (“AWCA”) and held that the exception did not pass even that low standard of review.

Owens wrote:

“There is a meaningful difference between the conduct regulated by the AWCA and SB 707. This is true for the commonsense reason that assault weapons are more dangerous than other kinds of firearms. The particular danger posed by assault weapons motivated the Legislature to enact the AWCA in 1989.…More specifically, it was the ‘random shooting’ that year by an individual with an AK-47 semi-automatic weapon that left five children dead, as well as one teacher and twenty-nine children wounded, at a California elementary school.”

He noted that in Silveira, the state had not offered any rational reason why a retired peace officer should be allowed to have an assault weapon. Conversely, SB 707 allows such officers to carry other weapons, and the state offered as a reason for the exception the safety of those officers, who may encounter former enemies at a school or be able to skillfully assist with school safety.

Owen also rejected the plaintiffs’ contention that CCW permit holders had been inappropriately targeted by the legislature, noting that simply because the law enforcement community’s lobbying efforts were successful in securing the exception for retired peace officers did not mean that any other group had been subject to animus.


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