Imagine if California, to combat what the legislature considered the serious problem of manmade global warming, required all new vehicles sold by car dealers in the state to run on grass clippings, rather than fossil fuels.
Would it be fair to say that California was legitimately addressing serious environmental problems and promoting innovation?
Or would the more obvious conclusion be that California simply wanted to ban the sale of new cars?
If you agree with second option, you’d likely be in the minority of a recent Ninth Circuit Court of Appeals panel that found another non-existent technology – in that case, a microstamping requirement that applies to newly-introduced semiautomatic pistols – to be consistent with the Second Amendment.
In other words, two out of three judges ruled design requirements that no manufacturer can satisfy nor that are useful enough to be in development by any manufacturer can still be a prerequisite for the lawful commercial sale of constitutionally-protected handguns in the state.
The third judge, Jay S. Bybee – a George W. Bush appointee – dissented from the majority’s ruling on the microstamping issue. “[W]e must,” he wrote, “take Plaintiffs Second Amendment claims seriously.”
The case is Pena v. Lindley.
The dispute stems from California’s so-called “Unsafe Handgun Act” (UHA). The UHA purports to promote public safety by weeding out “unsafe” handguns from commercial sale by a series of design requirements for semiautomatic pistols that must be met by the manufacturer. These include a “chamber load indicator,” a “magazine detachment mechanism” (to prevent firing of the pistol with the magazine removed), and a requirement that the pistol legibly imprint an array of information (including the firearm’s make, model, and serial number) on two locations on each fired cartridge case. The microstamping requirement took effect in 2013, when then-attorney general Kamala Harris determined “that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions."
To offer new models of pistols for sale in the state, manufacturers must submit three samples to a state-certified laboratory for testing, as well as pay for the testing and other administrative costs. All three pistols must meet standards established in regulations by the California Department of Justice (CDOJ) in multiple repetitions of required tests. Significantly, CDOJ’s dual microstamping standards were not designed around proven, existing technology. Rather, they were purposely designed to force manufacturers to develop and adopt technology that was not yet available in the commercial sphere.
To date, however, no manufacturer has done so, and as far as industry representatives involved in the case were aware, no manufacturer has no plans or intentions to try. This is manifestly because of an industry-wide belief that any microstamping that could satisfy CDOJ’s standards is technically infeasible and even if developed would be ineffective, easily defeated, and economically impractical.
The upshot is that the only firearms that may be commercially sold in the state are designs that existed before the date in 2013 on which the microstamping mandate took effect. Such models are “grandfathered” under the law, provided the manufacturer continues to satisfy the bureaucracy and fees necessary to keep them on the California’s roster of “not unsafe” handguns. Any changes to the design – including non-mandatory safety features that weren’t incorporated in 2013 – requires the model to be retested and to meet the current standards, including those pertaining to microstamping.
The irony is that California’s law effectively deprives state residents of market-driven changes in design available to residents of other states that improve the safety and utility of modern pistols. And as the dissenting judge noted, the all-or-nothing nature of the requirements means that few pistols sold in California even have chamber load indicators and magazine detachment mechanisms – which are now technically feasible – because few designs in 2013 incorporated them. Thus, a law that is supposedly intended to force innovation in pistol “safety” actually confines state residents to increasingly dated technology.
Indeed, the law virtually ensures that there will come a time when the only semiautomatic pistols lawfully available for sale in California will be used models that are many years old.
None of that, however, bothered the two judges in the panel’s majority, who breezily concluded that even if the law burdened conduct protected by the Second Amendment, the state’s “public safety” interest and legislative “fact-finding” satisfied the low bar of “intermediate scrutiny.”
Yet even by the standards of politically-motivated judicial activism, the majority did not – as the dissent indicated – “take Plaintiffs’ Second Amendment claims seriously.” Indeed, the majority opinion written by Clinton-appointed Judge Mary Margaret McKeown is riddled with errors that have nothing to do with legal opinion or judicial philosophy but that simply misstate or misrepresent plain facts. The following are just a few examples.
First, the opinion stated that the Second Amendment question must be “framed by a two-step inquiry established in [District of Columbia v.] Heller,” i.e., the determination of “whether the Act burdens conduct protected by the Second Amendment,” and if it does, the application of an “appropriate level of scrutiny” (internal quotation marks omitted).
The Supreme Court’s opinion in District of Columbia v. Heller, however, established no such two-part test. The court there found that the text, history, and tradition of the Second Amendment would not countenance a handgun ban. In doing so, it expressly declined to apply a level of scrutiny analysis, rejecting the dissent’s call for an “interest-balancing” inquiry.
In fact, Judge Brett Kavanaugh – President Trump’s current nominee to the U.S. Supreme Court – opined when dissenting from the application of the “two-step” method in another case that Heller actually forbids such a test. “Heller and McDonald rejected the use of balancing tests – including, therefore, strict or intermediate scrutiny – in fleshing out the scope of the Second Amendment right,” he wrote.
Whether or not Judge Kavanaugh is correct about what Heller’s mode of analysis permitted in subsequent cases, and even if the majority were following the method established in other Ninth Circuit cases, Judge McKeown’s claim the Supreme Court “established” a two-step inquiry for resolving Second Amendment cases in Heller is plainly false.
Also false is her suggestion that Heller would allow for modern handguns popularly chosen for self-defense to be banned in a certain jurisdiction because the jurisdiction has chosen other types of firearms to remain available. Among the arguments the District made in Heller to salvage its handgun ban was that the right to armed self-defense was satisfied because rifles and pistols were still (at least theoretically) available.
This reasoning was squarely rejected by the U.S. Supreme Court, however. “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed,” Justice Scalia wrote for the majority. “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”
Justices Thomas and Scalia later made the same point when dissenting from the Supreme Court’s refusal to review a lower court decision upholding a broad ban on semiautomatic firearms. “The question under Heller is not whether citizens have adequate alternatives available for self-defense, Thomas noted. “Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist.”
Thus, even if the majority in Pena v. Lindley could rely on prior lower court precedent to make the “adequate alternatives” argument, a court that wanted to be consistent with the controlling precedent of the nation’s highest court would not.
Perhaps most embarrassingly, Judge McKeown seemed unaware of the difference between bullets and cartridges cases when analyzing the strength of the state’s interest in enforcing its microstamping requirement. Judge McKeown cited a prior case from another circuit that held the ability to conduct serial number tracing on firearms constituted an important state interest. “The same logic applies to recovered bullets, and counsels the conclusion that limiting the availability of untraceable bullets serves a substantial government interest,” she wrote.
Yet the law does not require fired bullets to be microstamped. Rather, it requires fired cartridge cases to be microstamped. While a criminal investigator might be able to tell which firearm ejected a particular cartridge case, that would not necessarily determine whether a bullet, even of the same caliber recovered at the same scene, came from the same gun. Indeed, cunning criminals could switch firing pins between guns of the same make and model or drop previously fired cartridge cases at a crime scene specifically to confuse criminal investigators.
Thus, Judge McKeown apparently didn’t understand to which component of a round of ammunition the microstamping requirement applies or she didn’t understand the difference between a fired bullet and a spent cartridge case. These differences, however, are crucial in understanding why people who are knowledgeable about firearms are so skeptical about microstamping’s utility. Microstamping could produce a lead in a case. Or it could just as easily be used to plant an intentional red herring.
The dissent also takes issue with the information the legislature used and the majority relied upon to determine that microstamping, as eventually required by the law, would be feasible. In particular, the state relied on tests conducted by the inventor of microstamping that used different protocols than the testing standards later implemented by CDOJ. For example, the inventor’s testing used far more powerful microscopes than can be used in the CDOJ protocols to examine the imprints on spent casings and did not specify whether dual markings or only one set of markings consistently remained legible. This, plus testimony from industry experts that they could not feasibly meet the CDOJ standards, meant that the case was inappropriate for summary dismissal as a purely legal dispute. “I do not see how the majority gets to decide at summary judgment what ‘the reality is’ when there is conflicting evidence in the record,” Judge Bybee wrote. He also implied that it strained credibility that major manufacturers would give up the opportunity to sell “their new generations of handguns in a major market like California” if they had any choice.
Regarding the state’s certification in 2013 about the “availability” of the technology, Judge Bybee noted this "this certification confirms the lack of any patent restrictions on the imprinting technology, not the availability of the technology itself."
“If the requirement is impossible to comply with,” the dissent concluded, “it imposes a burden without advancing any state interest.”
Finally, Judge Bybee rejected the majority’s suggestion that the microstamping requirement is “presumptively lawful” because it is a “condition and qualification on commercial sales” of firearms, a category of laws that Heller suggested was compatible with the Second Amendment. “Whatever the contours of the commercial sales category, Heller cannot mean that the State can ban the sales of arms—whether it does so directly or indirectly by imposing conditions on features that commercially sold firearms must possess,” he stated.
Reduced to their essence, the facts of the case strongly suggest that the state’s real goal is simply banning modern pistols, which of course is an outcome that any fair reading of the U.S. Supreme Court’s prior Second Amendment cases would prohibit.
Needless to say, that precedent is not getting a fair reading in most decisions of lower courts, with Pena v. Lindley being just the latest and among the more egregious examples.
President Trump’s nomination of Judge Kavanaugh for the Supreme Court could mean that help is on the way. In the meantime, however, lower courts are continuing to thumb their noses at the Second Amendment and the Heller majority, even to the extent of sanctioning broad bans on firearms that law-abiding people overwhelmingly choose for self-defense.