California's ban on all new pistol models: Supreme Court amicus brief

Since 2013, California has outlawed new semiautomatic handguns


Can a state ban all new handguns? According to a 2-1 panel of the Ninth Circuit, the answer is yes. A pending cert. petition asks the U.S. Supreme Court to consider the question. I filed an amicus brief in support of petition, on behalf of professors (including VC's Randy Barnett) who teach Second Amendment law, and also on behalf of several civil rights organizations (the Independence Institute, where I work; the Millennial Policy Center; and Mountain States Legal Foundation).

Background: The case is Pena v. Horan, with Supreme Court docket number i18-843. My amicus brief is here. The Supreme Court's docket page is here. As the docket indicates, California has received an extension for its reply brief until March 6.

A California statute requires that all new models of semi-automatic handguns stamp the handgun's serial number in two locations on each round of ammunition. It is possible for a handgun's firing pin to stamp the serial number onto the cartridge's primer, which is a disk in the center of the back side of the ammunition. It not possible to stamp a serial number in two locations, as an erudite amicus brief from the Cato Institute explains. Nevertheless, California Attorney General Kamala Harris in May 2013 declared that all conditions for implementation by the statute had been met. Accordingly, all pistol models created since May 2013 are prohibited from commercial sale in California.

Cert. petition amicus briefs were also filed on behalf of 19 states, led by Texas Attorney General Ken Paxton (lower courts have been flouting Heller and need guidance from the Supreme Court); and by gun rights organizations led by the Firearms Policy Coalition (detailing how the microstamping law and other California laws have greatly constricted California consumer choice on handguns).

After Attorney General Harris announced the ban on all new pistol models, a suit was brought by four individual plaintiffs, plus the Second Amendment Foundation. Attorneys are Alan Gura (winner of the Heller and McDonald cases in the Supreme Court) and Don Kilmer. Before the Ninth Circuit, amicus briefs in support of the ban were filed by the Law Center to Prevent Gun Violence, the Brady Center to Prevent Gun Violence, the Los Angeles City Attorney, and Everytown for Gun Safety.

The Ninth Circuit upheld the ban 2-1, with Judge Bybee dissenting.

Amicus brief: California's unprecedented ban prevents consumers from taking advantage of all improvements in pistol safety. Since 2013, new handgun models have introduced better ergonomics, reduced recoil (especially important for people who do not have great upper body strength), durability, and accuracy. Better ergonomics, better sights, easier control, and so on, make the gun safer to use, such as by reducing stray shots.

In Heller, the Supreme Court expressly rejected the notion that the Second Amendment could be limited to the types of arms in existence in 1791. In the 2016 Caetano case, the Court per curiam overturned a Massachusetts decision that had upheld a stun gun ban since stun guns did not exist in 1791. Because technological freezes on constitutional rights are forbidden, California may not bar citizens from buying pistols that were created after 2012.

The Ninth Circuit attempted to blame the California government's pistol freeze on firearms manufacturers, rather than on the government. The panel majority speculated that pistol manufacturers could produce double-microstamped guns but were refusing to do so.

As our brief explains, firearms manufacturers readily comply with California mandates (no matter how foolish) when manufacturers can do so. For example, certain laws in California require that semiautomatic rifles sold in California may not have particular useful features, such as adjustable stocks. (An adjustable stock is ergonomically helpful because people have varying heights and arm lengths, so users can adjust the stock for a good personal fit.) The brief and its appendix describe the hundreds of models of semiautomatic rifles that manufacturers have produced in order to be "California legal."

According to the Supreme Court, a court applying intermediate scrutiny should consider both sides of the evidence. As detailed in City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), the first step of intermediate scrutiny analysis is to see if the government has introduced evidence to "fairly support its rationale." According to the Ninth Circuit, California succeeded on the first step, because California had shown that microstamping technology does exist. So the rationale that microstamped cartridges could aid in solving crimes was sufficiently supported.

The second step, according ot Alameda Books, is to see if the other side can "cast direct doubt on this rationale, either by demonstrating" that the government's "evidence does not support its rationale or by furnishing evidence that disputes the [government's] factual findings." The Ninth Circuit majority skipped the second step. As Judge Bybee's dissent pointed out, the plaintiffs had introduced extensive evidence showing that double-microstamping as demanded by California is impossible.

"If plaintiffs succeed in casting doubt … the burden shifts back" to the government "to supplement the record with evidence renewing support." So says Alameda Books. But the Ninth Circuit also ignored step three of intermediate scrutiny.

As Judge Bybee's dissent pointed out, "the question of technological feasibility—in the sense of whether a manufacturer can satisfy the testing protocol—is one that can be readily answered in a laboratory." California could have satisfied its step three burden by showing at a firearm exists (even one of the prototypes made by microstamping's inventor) that meets the California standards. California's failure to do so is a tacit admission that compliance is impossible.

A lower court faithfully applying Heller would have found the California ban categorically unconstitutional, since it a ban on an entire class of arms (as the Cato brief argues). Had the Ninth Circuit applied ordinary intermediate scrutiny, the ban still would have been stricken. But like many other courts (including the Second and Fourth Circuits) the Ninth Circuit persists in defying Heller and nullifying the Second Amendment.

NEXT: "You Don't Get to Pick the Day You Need Your Gun. Someone else will pick that day and they will only tell you at the last minute."

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  1. Pretty sure ‘infringe’ includes implementing policies not backed up by any scientific data, designed expressly to harass and inconvenience exercisers of 2nd Amendment rights

  2. How many times can you repeat the claim that microstamping is impossible, without bothering to explain what it is in the California regulations that make it impossible?

    I can think of at least two ways it could be done, neither of which lends itself particularly well to portability but that just moves the dial back a notch. “Impossible” and “not financially feasible” are not interchangeable.

    1. On the primer is feasible, but would also require purchasing of a new firing pin or rim striker ever so often. It is also easily circumvented by simply filing. There are no other locations which strike the casing in such a manner as to leave an imprint.

      Secondly, your suggestions make it clear that you don’t care about the poor. Poor areas statistically have the highest crime where being able to defend oneself from such criminals would be most beneficial.

      So am I to suppose that you hate the poor and support class warfare?

      1. So am I to suppose that you hate the poor and support class warfare?

        He just hates guns, and supports anything that makes them harder for anyone to own or carry anywhere. The poor are just eggs for his omelette.

      2. The law specifies that the stamp must be on the cartridge case, they don’t define “case” but I could see them arguing that a primer stamp doesn’t qualify

        Also the law specifies the case must be stamped in at least 2 places

    2. He links to an amicus brief arguing that the microstamping required by California is impossible. What more do you want?

    3. Reading the Kopel brief, I amused myself by thinking of ways to stamp the serial number on another location on the case.
      One of them is having a machine/device permanently attached to the ejection port of the pistol which captures the ejected cartridge, places it on a spindle and then places a die against the outer side of the cartridge case and presses or hits the die so as to stamp the serial number on case – and then eject the case. This device could be powered by a Lithium battery, and would block the trigger action if the battery wasn’t functioning. Design and manufacture would not be simple, especially with respect to reliably placing the case on the spindle, but with today’s capable computers such as are found in smart cellphones, that is not an unsurmountable barrier. However, the time to process a case will place a lower limit on the time allowed between shots. This does not disqualify this approach because there is no Constitutional requirement regarding the rapidity with which successsive discharges can be dispatched.
      This device certainly should be able to be manufactured to fit within a volume of nor more than 1 cubic foot and to have a weight of no more than 100 pounds.

      1. Does the law require the serial number to be stamped on the casing at the moment it is fired? Could you not have the serial number etched on each round at the moment of purchase? That way you could customize your ammunition. Different fonts, font sizes, italics. Maybe some nice scrollwork.

        1. Since the ammunition could be used in any number of guns of the same caliber, stamping it at the time of purchase would allow anyone who could steal your ammunition to cast the suspicion on you, since an ejected casing would NOT accurately identify the gun from which the round was fired.

          1. If you are careless and allow your ammunition to be stolen, you deserve to be punished. You are an accessory before the fact to any crime committed with the ammunition you put in the hands of criminals.

            (we’re doing sarcasm, right?)

            1. I guess I should have just referred you to the actual text of the California law, which requires that all firearms be:

              “designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired.”

              So, stamping the ammunition at the time of purchase, or indeed at ANY time before a round is actually fired, does NOT comply with the statute.

    4. It’s not so much that it’s “impossible”, as that it would require a specially designed, (And very expensive!) firearm just for the California market, which isn’t gonna happen.

      1. Yes, probably the breech block could be embossed with the number but even if manufacturers thought it was economically feasible to do so it would be a fool’s errand as they would devise some other ridiculous requirement that had to be met.

  3. The left puts forth gun laws that it KNOWS will have no benefits on crime, but are purely designed to harass law abiding people. A good example is New York’s 7 round magazine law. When these idiot Democraps were told that many handguns don’t even HAVE 7 round magazines available, they changed the law so that you could own a 10 rounder, but could only LOAD it with 7.

    If someone is able to argue convincingly how that law is NOT in bad faith, I’d like to hear it.

  4. What is needed is a program by NRA and NSSF to encourage all manufacturers to REFUSE to sell to slave state cops what is forbidden to the citizens of the state. Let the Calipornistan SWAT teams run around with lever action 30-30’s, since they ain’t “assault weapons”. Only sell cops “restricted capacity” magazines where the public is restricted from standard capacity. Cop shops are not “royalty”. They should not have any “special rights”. Ronnie Barrett had the right idea when he tole the Callie cops he would not service or sell any more 50 cals to them since the citizens were BANNED from owning them. Let the Callie cops serve on with pre-2013 pistols and lever action/pump action long guns. And the same for all the yankee states that do the same. The gun makers can either stand with us or hope they can sell cops enough guns to survive. And “hope” isn’t much of a strategy. Ask Ruger, S&W and Zumbo how that works.

    1. While I like where you’re going, it’s symbolic. The average lifespan of a service pistol is 10-15 years. It would take too long for any effect. By way of comparison, some municipal governments promised S&W contracts for police pistols when they sold out to the Clinton admin to stop the tort litigation, but there were no big contracts lined up to plug the hole left by virtually everyone in the gun community not buying S&W products after the sellout. The Brit owners folded and sold the company to an American firm.

      1. Meanwhile, S&W has rebounded in a big way. I love my little Shield that I paid $250 for.

        1. Two years ago I also bought an M&P shield for $300, and I agree that it’s a nice little 9 like you say. I like it better than the XD I had (that I traded for a brake job). My only quibble is the trigger is not as crisp as I would like, but for $300, that’s a minor complaint.

          1. Yep, exactly, the trigger isn’t perfect, but the comfort of the grip and its thinness makes it worth it for me.

            I didn’t like the XD when I shot it. In my view, grip safeties belong on 1911’s only.

  5. In next week’s edition : Texas passes a law confirming that abortion is fully legal in Texas, so long as the baby is not harmed.

  6. Splitting hairs is what the law is about. Two places could mean two regions of the primer cap, struck by one firing pin bearing the number twice.

    1. They will just further split the hair and point out that the law says the stamp must be on the case, so on the primer doesn’t qualify

    2. You have to remember that the law is actually intended to be impossible to economically comply with. That’s why they exempted their own employees, and the movie industry: They didn’t intend to disarm THEM.

      It will be enforced with that end in mind. There is likely no way to design a gun that would be affordable AND be ruled in compliance. That’s the point of the law.

      1. And cops can resell guns to non-cops. That’s why guns like the Glock 43 sell for $900 in California, because civilians can’t buy them new.

      2. Why would they exempt Hoywood? Those hugh donors to the Democrats need the safety this provides just as mu…

        Oh. Nevermind.

  7. “Can a state ban all new handguns? According to a 2-1 panel of the Ninth Circuit, the answer is yes.”

    Well, duh. The Ninth never met a gun control law, no matter how ridiculous, that it wouldn’t support.

  8. From the Cato Institute’s brief.

    “In 2013, shortly after the microstamping patent expired, but before any evidence proved microstamping to be either technologically or economically feasible, California Attorney General Kamala Harris announced that the microstamping requirement had cleared all hurdles and would immediately be required on all new semiautomatics.”

    As if we didn’t already have enough reason to oppose Ms. Harris.

  9. Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn’t count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn’t say “file a lawsuit in federal court.” Madison advised a refusal to cooperate with officers of the union. Don’t depend on politically connected lawyers to protect your right to keep and bear arms.
    http://blog.tenthamendmentcenter.com/ 2016/06/depending-on-federal-judges-to -protect-your-gun-rights-is-a-bad-plan/

  10. According to the Cato brief the relevant text of the law is that the handgun must be ::

    “designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired.”

    So it’s clear that the imprinting has to be done mechanically, by the innards of the pistol, at the moment of firing.
    But it’s also clear that the characters only have to identify the make, model and serial number of the pistol, they do not have to state them verbatim. Thus using a compressing coding system it ought to be possible to reduce the number of characters required from the verbatim make, model and serial number to a shorter code.

    So if it’s technically possible to imprint the verbatim stuff once, it’s probably possible to imprint a compressed version twice in the same space. And if it’s imprinted twice, it’ll be imprinted in two places. Two laces that are not very far apart, admittedy – eg CALIFORNIANPOLSSUCKCALIFORNIANPOLSSUCK does contain the perative text twic ein two different places.

    So my guess is that if it can be done once it can be done twice.

    1. I’m assuming, of course, that “identify” does not require “reveal at a glance” without further work. In the same way that DNA identifies perps. You have to look it up in the database.

    2. Yeah, but it’s not going to be interpreted that way, because the point is that it’s supposed to keep Californians from buying new models of guns.

  11. Can a state ban all new handguns? According to a 2-1 panel of the Ninth Circuit, the answer is yes

    2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    The 9th Circuit judges that intentionally voted against the protections afforded in the 2A should be immediately impeached by Congress.

    These gun grabbing cases are a waste of taxpayer money and the time of the People.

    1. I’m hoping that after the civil war, all of the liberals who did things like this are rounded up and gassed.

      1. I am okay with rounding all the Lefties up, revoke their US citizenship, and banish them to Socialist nations.

        Let them live the life they always wanted for us.

        1. No, then they’ll continue their evil from those other nations. They are only a non-threat if they’re in graveyards.

    2. oh, great idea, I’m sure the DEMOCRAT Congress just elected by the American people will get right on that.

  12. Strangely, or not, Randy’s post above does not have a link to the text of the law, nor does his brief to the supreme court directly cite the law by its searchable name, AB 1471.
    California AB-1471
    Wikipedia page on AB 1471

    1. Strangely, or not, Randy didn’t write the post above, or the brief.

      Also, strangely, you don’t know the difference between a bill and a law. The brief to the Supreme Court ? which is an amicus brief, and therefore does not need to provide basic background like that ? cites not the bill designation of AB 1471, but the actual statute: Cal. Penal Code ? 31910(b)(7)(A).

  13. “A California statute requires that all new models of semi-automatic handguns stamp the handgun’s serial number in two locations on each round of ammunition. … It is not possible to stamp a serial number in two locations… Nevertheless, California Attorney General Kamala Harris in May 2013 declared that all conditions for implementation by the statute had been met. Accordingly, all pistol models created since May 2013 are prohibited from commercial sale in California.”
    I am reminded of this (from Wikipedia):
    From May 1918 and until 1922 [Nikolai] Krylenko was Chairman of the Revolutionary Tribunal of the All-Russian Central Executive Committee. He simultaneously served as a member of the Collegium of Prosecutors of the Revolutionary Tribunal. On June 23, 1918, he famously explained that there had been no discrepancy between the execution of Admiral Alexey Schastny and the prior abolition of the death penalty by the Bolshevik government in October 1917 since the admiral had not been condemned “to death” but “to be shot”.

  14. If Constitutional rights cannot be frozen in technological time, how is it that automatic weapons are basically prohibited?

    What happens when we advance to the point of having laser-based rifles? Only the government gets those too?

    1. Judges find citizens with automatic weapons scary.

      And, yes, they’ll probably find hand held lasers scary, too; I find them scary. The amount of light necessary to make for an effective laser weapon is so large, that by just sticking a lens on the end of the laser rifle you could turn it into a wide area blinding weapon. I don’t want to spend all my time in public wearing anti-laser goggles.

  15. This is the same as a 8.5 month waiting period for abortions

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