The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Second Amendment Roundup: District Court Invalidates California's Unsafe Handgun Act

Pistol designs are frozen in a 2007 time warp.


On March 20, 2023, U.S. District Judge Cormac J. Carney of the Central District of California issued a preliminary injunction in Boland v. Bonta against enforcement of California's ban on the retail sale of semiautomatic pistols that do not have a chamber load indicator, a magazine disconnect mechanism, and microstamping capability.  Since no pistols with all three features are manufactured nationwide, the Unsafe Handgun Act amounts to a prohibition that violates the Second Amendment.  The Act requires Californians who want to exercise their Second Amendment rights to purchase pistols designed over two decades ago and prohibits, with narrow exceptions, their acquisition of modern-day pistols.

A chamber load indicator may take the form of either a visual recess or a small stud that protrudes upward from atop a pistol slide when a cartridge is in the chamber.  A magazine disconnect prevents a pistol from being fired unless a magazine is fully engaged in the pistol. These designs do exist, but the latter is rejected by many for the very reason that it may prevent the pistol from being fired in an emergency.

Microstamping is the mostly-theoretical process that consists of the transfer from a firearm's firing pin to the cartridge casing of a fired round of ammunition microscopic characters identifying the firearm's make, model, and serial number. This is not a feasible technology and just doesn't exist in reality.  That's why, Boland found that, "no handgun available in the world has all three of these features."

When it originally passed, the Unsafe Handgun Act required a drop test, firing test, and other tests for pistols to be placed on the Roster of Not Unsafe Handguns (they couldn't bring themselves to say "Safe Handguns").  Some 800 "grandfathered" pistols remain on the Roster from the original requirements.  In 2007, the chamber load indicator and magazine disconnect requirements were enacted, although few pistols had those features, and only 32 pistols with those features were thereafter added to the Roster.

But since 2013, when the microstamping requirement was imposed, not a single new pistol has been added to the Roster.  Since they are grandfathered, the 832 pistols left on the Roster are not required to have the three newest features, and thus don't meet the current definition of "not unsafe."

To top that off, the Act doesn't apply to law enforcement or other government entities.  They can buy all the "unsafe" pistols they like.  And when they upgrade, they can sell the "unsafe" pistols at inflated prices to private citizens, although few go on the market.

Manufacturers regularly improve their firearms by making them safer and more reliable, but these improved models may not be sold at retail in California.  Once a year, manufacturers must certify that no changes have been made to their models listed on the Roster, which prevents use of newer, better parts. Pistol designs are frozen in time as of 2007, leading Judge Carney to find: "Requiring Californians to purchase only outdated handguns for self-defense without question infringes their right to keep and bear arms."

Since the Supreme Court decided Heller, it cannot be argued that it's okay to ban some guns if others are allowed.  Indeed, while the Boland opinion doesn't explicitly mention Heller's test that arms in common use are protected arms and may not be banned, it could and should have stopped right there and invalidated the Act on the basis that post-2007 handgun designs are in common use by law-abiding citizens for lawful purposes throughout the United States.

In Heller, the Supreme Court effectively applied Bruen's text-and-history test (before it became the Bruen text-and-history test) to arrive at the "common-use" test, which governs questions about the constitutionality of firearm prohibitions.  Because the Heller Court did the text and historical work already, lower courts (such as Judge Carney) do not need to consider alleged historical analogues when deciding arms ban cases. Heller's common-use test is the governing law and the standard that every court should apply.

In Boland, the court went straight to Bruen, with its presumption that bearable arms are protected, skipping over Heller's test that the common use of those bearable arms precludes any justification by the government of its restrictions via analogues to regulations in the founding era.  Historical tradition becomes relevant only for arms that are not in common use.

Even so, California's attempt to assemble historical evidence fell flat. Through its expert historian Saul Cornell, the state relied on "proving" laws and gunpowder storage rules as analogues from the founding period.

"Proving" or "proofing" refers to the testing of firearm barrels with higher-than-normal amounts of gunpowder to ensure that they will not crack or fail under pressure. For centuries, European states have required testing in proof houses, which stamp barrels that pass the test with proof marks.

In the United States, such testing has been largely prompted by gun makers striving for a good reputation and being subject to tort liability.  However, a few early states mandated proving by law. For instance, Massachusetts enacted a "proving" law in 1804 requiring that muskets and pistols manufactured in the Commonwealth had to be tested with certain loads of gunpowder to demonstrate that they were safe to fire.  An inspector would stamp the barrel to show that it had been proved.

The court found California's ban not to be analogous to such proving laws.  While "proving laws supported the use of firearms for self-defense by ensuring the weapon worked properly and safely," California's requirement that a pistol will not fire without a magazine inserted "can actually work against the use of a handgun for self-defense…." Proving laws were enacted to ensure that barrels would not burst on firing and that shots would fire minimum distances, while California's restrictions suppress design improvements that make pistols safer and more effective. Indeed, California has banned the sale of "virtually all new, state-of-the-art handguns."

Nor is California's law analogous to gunpowder storage laws at the founding.  As a fire prevention measure, an outlier 1783 Massachusetts law prohibited the storage of a loaded firearm in a building, and other states limited the amount of gunpowder that one could store.  (For well over a century now, the highly volatile black powder has been replaced with the more stable smokeless powder.) It is noteworthy the Supreme Court in Heller also distinguished these fire code-related black powder laws.

As the Boland court found, "the main goal of gunpowder storage laws was to prevent fire," while California's loaded chamber and magazine requirements "are meant to prevent inadvertent discharge or firing of the firearm."

The court further rejected California's argument that microstamping is similar to requiring serial numbers on firearms.  "In contrast to the requirement of a serial number, which has been universally and easily implemented by manufacturers across the globe, not a single manufacturer has implemented microstamping technology, and indeed it is not feasible to implement such technology broadly." And, again, the "why" of this law has nothing to do with helping gun owners discharge safe and effective arms, but instead was enacted to help law enforcement (in theory) solve crimes.

While Americans elsewhere have access to pistols that are "more ergonomic, durable, reliable, affordable, and possibly even safer," Californians are stuck with pistols with designs frozen in time in 2007.  And these grandfathered pistols do not have the supposed safety features that are now required.  Not to mention that government actors may buy any pistols they wish, leaving the safety arguments with little credibility.

The Boland court issued a preliminary injunction against enforcement of the Unsafe Handgun Act, but stayed it for two weeks (to April 3) to give the Attorney General an opportunity to seek a further stay from the Ninth Circuit. What are the chances that the Ninth won't issue a further stay, given its history of consistently reversing pro-Second Amendment decisions?

There is a back story to the opinion expressed in three days of hearings before Judge Carney.  California's star witness was Saul Cornell, who testified that in his opinion, California's law fully complied with the Bruen decision.  That was based on historical analogues like the proving laws and gunpowder storage laws.

The fun began with the cross-examination by plaintiffs' counsel Joshua Dale.  Cornell started with his usual attack on "law office history," which misuses history "to advance a contemporary policy agenda."  (Sounds kinda like what he himself does.)  Scholars supporting the individual-rights view of the Second Amendment, which Cornell has derided for decades, are "libertarians" who "read 18th century texts as if they were ghost-written by Ayn Rand."  And that would include the majority on the Supreme Court.

Just after Bruen was decided, Cornell wrote a piece for SCOTUSBlog. Mr. Dale asked Cornell if his opinions now were based on Bruen.  In the article, Cornell described "Justice Thomas's decision as an illustration of the current Supreme Court's new interpretative model – fiction, fantasy, and mythology."  He referred to "the bizarro constitutional universe inhabited by Thomas," said the Court cherry-picked evidence to "support the ideological agenda of the federalist society [sic]," and referred to Justices Gorsuch and Barrett as "ideological warriors and political hacks."


That caused Dale to ask, "what assurances you can give to the Court in light of the fact that your views were rejected by the Court in Heller; they were rejected, again, in Bruen."  Cornell responded that he easily moves between his roles as a writer and as an expert witness, which he described as "the very definition of an accomplished scholar."

Judge Carney wasn't buying it.  We'll see what the Ninth Circuit does.

It goes without saying that whether a firearm restriction violates the Second Amendment is a pure question of law to be decided by the courts.  "It is, emphatically, the province and duty of the judicial department, to say what the law is," as Chief Justice John Marshall famously said.  As Cornell's testimony illustrates, the opinions of a historian "expert" may be highly biased and are irrelevant.  Courts are fully capable of deciding whether old laws provide ample historical analogues for modern restrictions.  See this author's post "Should Courts Appoint Historians as Experts in Second Amendment Cases?"

One thing was left unsaid.  The theory of microstamping is that the firing pin would be coded to leave certain marks on a cartridge case when it is fired, allowing law enforcement to identify the pistol from which it was discharged.  What could go wrong?  Hint: just file down or exchange the firing pin for a new one and presto, the pistol will become anonymous.