The Safe Handgun Law in California went to court, and you want to know how Alan Gura handled this argument.
From the Firearms Policy Coalition:
“On March 16, 2017 the Ninth Circuit Court of Appeals heard oral arguments on Pena v. Lindley, a key Second Amendment civil rights case that challenges the constitutionality of the “Not Unsafe Handgun Roster”
“Attorney Alan Gura (who won the landmark cases of D.C. v. Heller and McDonald v. Chicago at the Supreme Court) argued at the Ninth Circuit in the case of Pena v. DOJ Bureau of Firearms Acting Chief Martha Superior, our Second Amendment challenge to the State of California’s unconstitutional extortion scheme that it calls the Handgun Roster.”
9th. Circuit Court Highlights:
9th. Circuit Court Full Brief:
For those of you not familiar with California’s “Safe Handgun” extortion scheme, the state requires all firearms manufacturers to pay a fee for any and all hand guns they sell within the state. Now each gun is considered separate. So let’s say you have a Glock in three different colors, even though they are the same in every way. That is three separate applications. The manufacturer then needs to pay the state annually for each firearm. As of 2006 all semi-automatic pistols sold in California must have a chamber load indicator, or a magazine disconnect mechanism. What this does is prevent the gun from being fired, if the magazine is dropped. There are all sorts of reasons I feel this makes any firearm less safe, but we will keep moving along.
As of 2010 all new firearms being sold in the state of California are required to have micro stamping. The quick and dirty summary is that serial numbers are micro stamped on the inside of the frame of the firearm, and when the gun is fired, the firing pin places the serial number on the shell casing itself. If you really want to read up on it, you can get the full requirements here: Microstamping/Ballistic Identification in California. The only issue right now is, there is not a single manufacturer actually doing this. We do not see any manufacturer actually doing this in the future either.
Since the rosters inception, Californian’s have only had access to approximately 30% of the total hand gun market in the US. Much of this comes from manufacturers not wanting to go through the hassle of having their firearms “certified” for sale in California, when 49 other states were more than happy to buy them with no requirements. Since 2013 the available models in California have dropped by almost 50%. We now only have 97 models to choose from, out of thousands available to the rest of the country.
When asked why he feels the state laws are a gun ban, Alan Gura argued that it is the equivalent of California telling Ford, they can only sell a Model-T in California. Eventually Ford will choose to discontinue the Model-T. This would mean no Ford vehicles would be available in the state. In this example the state is not banning cars outright; it has legislatively “banned” the ability for a manufacturer to sell within the state. We are seeing this now, with manufacturers dropping older firearms from production. It makes sense, as a manufacturer updates a model line with improvements, for safety, reliability, etc. The state has clearly pigeon holed the manufactures to sell any new models within the state. While the state has never used the word ban used, it has in fact legislated it to death. We can also almost stop here. In the United States vs. Miller, the decision does introduce the precedent of “common use”. If we apply that precedent than the entire roster is unconstitutional, and therefore null and void. Gura also expanded upon the Model-T analogy stating that manufacturers were being forced to have separate manufacturing lines specifically to maintain California compliant firearms.
The judges seem to recognize this as a ban by regulation. One asked, could we ban all Ruger’s because there is a Colt available in the market? Another judge asked would it be ok to ban a church because there was another church across the street? The same judge also wanted to clarify that the second amendment was an individual right, which implies choice, and not bound to a firearm specifically. He further asked if this was really how the state wanted to analyze this case.
Given the safety rules which responsible gun owners follow, the magazine safety, and chamber load indicator are moot. We treat every firearm as if it were loaded at all times. All three judges asked Gura for clarification on this. One of the judges then asked the state attorney why they feel the need to restrict guns that can fire with the magazine removed since treating a gun as loaded is rule number one we all learn. The state couldn’t really argue this point.
Gura finished his arguments in stating that much like the Heller case; the current laws have lots of carve outs for special people. What makes a firearm safer for a politician, or a police officer, widows and family members of law enforcement, than for a law abiding citizen?
Where this will head is anyone’s guess. If it is overturned, I will assume that the state will push for an en-banc review of the case. California has incrementally continued to tighten their laws in such a way that manufactures, like Barrett Firearms, have either pulled out of the state entirely, or like many others, are letting their firearms drop off roster. The state feels that there is no freedom of choice when it comes to firearms. This of course is simply not true when common use is applied. It does however lend great insight into how the state feels about our rights as individuals.