Second Amendment Foundation Files for Supreme Court Review of CA ‘Unsafe Handgun Act’

Second Amendment Foundation condemns media bias

courtesy SAF

In the crime-free, gun-controlled utopia of California, guns available for sale to civilians are subject to something called the Unsafe Handgun Act. The law mandates that guns sold there have three features: 1) a magazine disconnect safety, 2) a loaded chamber indicator and…wait for it…3) microstamping capability.

Gun models sold before the law was enacted were grandfathered in. But since microstamping doesn’t work and no manufacturers produce guns capable of uniquely marking casings, the law has resulted in a gradual reduction of the number of guns available for sale in the state. As far as California’s concerned, that’s not a bug, it’s a feature!

A federal lawsuit, Pena v. Lindley, argued that result constitutes a violation of Californians’ Second Amendment rights.

Earlier this year, the Ninth Circus, as it’s done so many times in the past, disregarded the Supreme Court’s Heller decision and ruled that the Unsafe Handgun Act is A-OK as far as they’re concerned. Second Amendment and Heller be damned.

The panel held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with California’s interest in public safety. The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. The panel rejected plaintiffs’ claim that they have a constitutional right to purchase a particular handgun and their claim that the provisions violate the Equal Protection Clause.

Now, the Second Amendment Foundation has filed for Supreme Court review of the Pena decision. Here’s SAF’s press release:

SAF SEEKS SUPREME COURT REVIEW IN CHALLENGE OF CALIF. HANDGUN STATUTE

BELLEVUE, WA – The Second Amendment Foundation and Calguns Foundation have petitioned the U.S. Supreme Court for a review of their challenge to California’s “Unsafe Handgun Act,” a part of that state’s penal code that violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes.

SAF and Calguns are joined by private citizens Ivan Pena, Dona Croston, Roy Vargas and Brett Thomas. They are represented by attorneys Donald Kilmer of California and Alan Gura of Virginia. The case is known as Pena v. Horan.

“Our challenge of the California Unsafe Handgun Act (UHA), if the high court accepts it for review, could be a critical wake-up call to lower federal courts that continue to employ what they call an ‘interest-balancing approach’ to deciding gun control cases because that strategy is forbidden by the 2008 Heller decision,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “It is time to bring a halt to what is essentially a revolt by the lower courts against the landmark Heller opinion, and the Pena case could provide that vehicle.”

California’s Unsafe Handgun Act generally prohibits the manufacture, import or distribution of handguns that do not meet the state’s extremely restrictive design requirements under the state penal code. The result, as the plaintiffs contend in their petition for high court review, is that the state is gradually achieving a handgun ban because they cannot meet the impossible requirements, which include microstamping. That technology is not offered by any handgun manufacturer because it cannot be practically implemented, the petition notes.

“The landmark Heller ruling cannot become just a footnote in history,” Gottlieb observed, “but that appears to be the ultimate goal if such laws as California’s are allowed to stand. We are hopeful that the Supreme Court, with the benefit of fresh perspectives from two recently-seated associate justices, agrees that it is time to once again visit the Second Amendment and further restore its rightful place as a cornerstone of the Bill of Rights.”

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

comments

  1. avatar Accur81 says:

    Good on SAF!

    1. avatar frank speak says:

      SCOTUS is going to have to start taking some of these cases…and rendering rulings soon….or risk becoming irrelevant…

      1. avatar Sam I Am says:

        “SCOTUS is going to have to start taking some of these cases…or risk becoming irrelevant…”

        Care to elaborate?

        1. avatar Anymouse says:

          The Supreme Court in Heller and McDonald found the the 2A is an individual right, and that it is incorporated by the 14th. If lower courts continue to rule otherwise, they are essentially gutting the Supreme Court decisions, which sets a precedent for ignoring other Supreme Court decisions. If government interests can override individual rights, what is the point of having those rights? If a right to self defense can be subjugated to limit or solve crimes, can political speech be subjugated to prevent riots?

        2. avatar Sam I Am says:

          “If government interests can override individual rights, what is the point of having those rights?”

          Having rights is just a cool thing. Who cares if you have to accept government definition of when, where and why you can exercise your rights?

          “If a right to self defense can be subjugated to limit or solve crimes, can political speech be subjugated to prevent riots?”

          Well, only legitimate speech is protected by the First Amendment, and you likely are guilty of illegitimate speech (that which offends anyone, anytime, anyplace). To your direct question, political speech will only be subjugated to curb riots when those riots threaten SJW supremacy. (Seriously, your free speech is suppressed by hate speech laws.)

  2. avatar Mark N. says:

    Good luck; they will need it. I don’t think that this is a case that will pique the court’s interest.
    I wonde3red from the beginning as to the manner in which the case was presented, which was a 2A and equal protection posture. Personally, I would have argued that the requirements of the statute for triggering of the miocrostamping mandate had not been met, as the technology upon with the AG relied in her certification did not actually do what the statute required. The statute requires that a casing be stamped in two separate locations, one on the back of the casing and the other on the side. The existing–and experimental–technology upon whi8ch she based her certification stamps the primer only, and only once. ?Therefore, she abused her discretion in declaring that the prerequisites of the statute had been met. But I was told that her certification was indeed proper–though I have no idea why. (By the way, the AG was none other than US Senator Kamala Harris, who has designs on the White House, and may make a run in 2020.)

  3. avatar Warren Pease says:

    I just sent SAF a contribution. Thank you from California.

    1. avatar joefoam says:

      I guess I’d better send them more as well. They seem to be more involved than than the NRA.

      1. avatar Sam I Am says:

        “They seem to be more involved than than the NRA.”

        Two things about the NRA that gets little attention:
        1. NRA has influence far beyond its actual financial impact on politicians
        – – NRA spent $22million on political campaigns in the last ten years; not even top 100
        – – Gun grabbers, with 10X the financial power are irrationally fearful of NRA

        2. NRA is way outside its “lane”; marksmanship with rifle, and firearm safety
        – – NRA has a mixed mission statement, and is doing well at none of it

        NRA should retire to its natural mission, and gun owners should allocate funds based on which organization is best suited to which purpose.

        In general, NRA demonstrates that even in the gun owning demographic, most owners are comfortable with a notable amount of government regulation of firearms. POTG are a minority of gun owners, even though POTG might be the hard core, pro-2A advocates.

        I might apply for membership in NRA if they demonstrate the membership has any influence over NRA policies, and if NRA would become a nationally visible source of firearm safety and marksmanship training. But, NRA plays defense on political issues. If NRA abandoned the 2A political arena, other organizations with a single mission to defend and encourage 2A, could perhaps create a critical mass that can thoroughly defeat the gun-grab mafia could be obtained.

        1. avatar Miner49er says:

          It seems there are no patriots at the NRA, with their top leader ship taking an all expense paid trip to meet with the Russian oligarchs and government officials in 2015. The fact that the ‘All-American’ national rifle Association has financial ties to Russian mobster billionaires should alarm all patriots.

      2. avatar TomC says:

        The NRA is plenty involved in 2A issues! Who do you think PROPOSED the ban on bump stocks?

        Our NRA has always been deeply involved — after all, EVERY single piece of anti-gun legislation passed by the US Congress in the last fifty years did so with the endorsement of the NRA.

  4. avatar OBOB says:

    all firearms laws should apply to the cops too—with NO grandfathering!
    AKA they have to RE-BUY new guns that are ‘lawful’ each time they come up with new shit laws…and since no gun has microstamping…then the cops have NO guns

    its real simple…use the ‘Unsafe Handgun Act.’ against the STATE…in EACH and EVERY shooting a cops does. File that they used an UNSAFE gun by their own laws…see how many cases it takes to knot up the whole justice system!

    1. avatar Southern Cross says:

      Although they absolutely hate to admit it, cops are civilians too.

    2. avatar Kevin McAdams says:

      And Hollywood. Bunch of hypocritical a-holes!

    3. avatar Anymouse says:

      The loophole doesn’t apply just to departments. An individual officer can purchase any “unsafe” gun for personal use. A Pasedena Lt was busted for buying hundreds of “unsafe” guns and then selling them to unannointed citizens for profit, which made him an unlicensed gun dealer.

    4. avatar Bob999 says:

      Most police outside the leftist enclaves like LA do not like these leftist gun restrictions either. They are often affected by these restrictive laws too, albeit when off-duty and when they quit/retire from law enforcement. Really, if you want to send a message to politicians, force their bodyguards to abide by these unreasonable restrictions when onduty.

  5. avatar Hal_greaves says:

    Roberts the RINO won’t allow this on the bench.

    Hopefully RGB kicks the bucket so we can finally move around these fake conservatives once and for all.

    1. avatar rt66paul says:

      I don’t wish that RBG kick the bucket, I would be happy if she retired or finally admitted that being a judge is just to much work for someone of her age with her lack of health.

      Retire already!

      1. avatar Green Mtn. Boy says:

        Never mind the fact that she is a Marxist along with a couple of others.

    2. avatar CarlosT says:

      It’s not up to him alone. Granting a Writ of Certiorari, which means the Supreme Court will hear the case, takes four votes. Those votes could come from Thomas, Alito, Gorsuch, and Kavanaugh, even without Roberts’ vote. There are valid reasons for a Justice who would vote one way on a ruling on a case to vote the opposite on granting cert. For example, if you know the votes are not there for the correct outcome, then it’s preferable to deny cert and let bad rulings stand at the Circuit level, rather than instantiate precedent at the Supreme Court level. That’s where Second Amendment jurisprudence has been stuck for the past decade. The Heller and MacDonald decisions were compromises to begin with, in order to get Kennedy’s votes, and then the lower courts routinely ignored them. The votes weren’t ever there to issue decisions correcting that, so therefore many cert decisions on Second Amendment cases were 7-2. Some of the dissents by Thomas on those were particularly scathing.

      If the votes are there, particularly if Ginsburg is replaced by someone actually friendly to the Second Amendment, then I think you’ll see a lot more petitions granted. I don’t know which way Roberts will go. It’s not that he’s becoming Kennedy or Souter, it’s that he’s heavily invested in the public image of the court, and his own legacy. That makes him a weather vane, and easily pressured. If there were another Justice solidly in the vein of Thomas, then that becomes irrelevant, and Roberts can posture all he wants, while the serious thinkers settle cases.

      1. avatar Anymouse says:

        There are so many cases submitted to the Supreme Court that there’s only a couple percentage chance to be granted cert. A case needs to be answer a compelling question, such as being decided differently in multiple Circuits, or it has to be a cause that interests enough Justices. Thomas has already expressed interest in taking cases to clarify 2A.

  6. avatar GS650G says:

    If they can prove miceostampi my works for just one fired round the suit is toast.
    Just because no one wants to comply or do so economically and practically is that a violation of civil rights.
    Just pray this doesn’t become a national requirement under a socialist Democrat administration.
    Remember states are considered laboratories for federal laws.

    1. avatar Draven says:

      Even Sacramento’s pet anti-gun scientists at UC Davis told them not to pas the microstamping law, that a tool file or even ‘normal operation of the weapon’ will erase microstamping…

  7. avatar SurfGW says:

    If Kavanaugh’s vote has to break the tie, which is likely, what is the possibility that Kavanaugh will consider it settled law since it has been in effect for a while?

    1. avatar GS650G says:

      It hasn’t been law for that long not has there been adoption by other states. The test for settled law is a little tougher .

    2. avatar Serpent_Vision says:

      Not settled law if the only review by a court is the one currently under appeal.

      If it’s been the law for a while, the state should be required to bring in the evidence of how many crimes they’ve solved by tracing bullets stamped with the new technology to support their public safety claim.

      1. avatar Sam I Am says:

        “If it’s been the law for a while, the state should be required to bring in the evidence of how many crimes they’ve solved by tracing bullets stamped with the new technology to support their public safety claim.”

        “Public Safety” likely comes under the heading of “compelling government interest”. Not aware of any SC decision that requires effectiveness as a support for a law spawned by “compelling government interest”. Indeed, if imminent domain is illustrative, the public interest does not actually require that a public benefit ensue from a taking under imminent domain.

  8. avatar LKB says:

    My read is that the recent flurry of cert petitions on 2A cases is because Gura et al. expect the Supreme Court to grant cert on a 2A case this term. If the Court does so and you have a cert petition pending in another 2A case, then there’s a very good chance that your case will ultimately be sent back to the lower courts for reconsideration in light of whatever the SCt. decides. OTOH, if you haven’t filed for cert, the mandate from the Court of Appeals issues and your case is kaput, and so even if the Supreme Court issued a new, sweeping pro-2A decision, you’d have to start all over again with a new lawsuit.

    In 10 days we should have a better idea of where we stand. Los Supremos have a conference on January 4 on the New York Pistol & Rifle Assoc. case. As I have opined (https://www.thetruthaboutguns.com/2018/11/daniel-zimmerman/dont-freak-out-over-the-scotus-refusal-to-hear-the-california-concealed-carry-case/) this is probably one of the best candidates for a 2A cert grant. (More on that case is here: https://www.thetruthaboutguns.com/2018/12/daniel-zimmerman/new-york-state-rifle-pistol-assn-v-city-of-new-york-could-be-exactly-the-supreme-court-case-gun-owners-have-been-waiting-for/)

    Results of the conference come out in the form of a written order at 10AM on the following Monday. (It’s largely a long list of all the cases where the cert petitions have been denied, and a very short list of cases (if any) where cert has been granted or the case relisted.) There’s usually a link to the order posted on http://www.scotusblog.com/ immediately after the conference order comes out, but if cert is granted or the case is relisted the SCOTUSBLOG people will definitely post about that quickly.

    If SCt. denies cert in NY Pistol & Rifle Assoc. — which is about as solid a test case as I can imagine, as NYC’s goofy gun laws do not even pass the “common sense” test — then I’ll be very afraid that Roberts has embraced his inner Kennedy (or, heaven forbid, Souter). However, for lots of reasons, right now I’d wager that we’re either going to see cert granted or the case relisted.

    If they grant cert in NY Pistol & Rifle Assoc., I’ll predict all of the pending 2A cert petitions will be held pending a decision in that case, and then they all will be remanded for reconsideration in light of whatever new 2A standard the Court has articulated.

    1. avatar TomC says:

      The New York Pistol & Rifle Assoc. case may be the most likely candidate for cert in the immediate future, but it is also the least useful 2A case in the pipeline.

      The only way the New York Pistol & Rifle Assoc. case outcome will be of any practical interest to any gun owner outside New York would be if there really is a ‘conservative majority’ on the court (I question that) AND if that ‘conservative majority’ chooses to go far afield in writing an opinion to deliberately break new ground in a way that the court hasn’t done in decades. It is far more likely that any favorable ruling will be very narrow and tailored to the specifics of this case.

      Not being discussed is the possibility that SCOTUS might grant cert in the New York case and reach an unfavorable decision — what if the court were to rule that the existing law in NY is legal because regulating intrastate commerce is not subject to federal review. Personally I think that is unlikely, but it IS possible and it is especially possible if we have a legally-conservative majority rather than a politically-conservative majority. There is an old saying, “No man’s life, liberty, or property are safe while the Legislature is in session” — the same is even more true of the Supreme Court.

      1. avatar LKB says:

        I respectfully disagree.

        The key to all current 2A jurisprudence is going to be the Court articulating what legal test must be used in deciding 2A challenges (probably will either be strict scrutiny or text/history). If it does that, then regardless of the fact that the immediate impact of the decision will be narrow, the actual impact will be huge, as that will undercut just about every case that has winked at Heller/MacDonald, and like most sea changes in the law will set the table for the cases that will have widespread direct 2A effects.

        As for the risk of the Supreme Court essentially overruling Wickard and a host of other hoary cases and allowing the NYC laws to stand as “regulating purely intrastate commerce,” get real. For starters, the NYC laws DO purport to directly regulate interstate commerce and transit — you’re prohibited from taking your “licensed” weapon to a range across the river in NJ or to Connecticut, for example, and traveling through NYC with an unlicensed weapon is a no-no (even though FOPA is supposed to override NY/NYC laws to the contrary, the NY constabulary simply ignores this federal law, and the courts there let them get away with it).

        1. avatar TomC says:

          I never said an unfavorable outcome was likely – I just offered one example of just how bad a legally-conservative ruling could possibly be.

          But within the realm of likely rulings there is still a major flaw in your reasoning. You ASSUME that just because the object being regulated is a firearm you think the court must decision must address the second amendment. Sure, the court COULD suddenly toss out ALL of NYC’s restrictions on keeping and bearing arms, but we both know that ain’t gonna happen. The court COULD decide this entirely as a commerce case. Or perhaps they might get inventive and discover yet another penumbra of a constitutional right that isn’t written anywhere.

          My point was that the court has generally written narrow opinions whenever possible except in a few notable instances of extreme judicial activism. (Dred Scott, Roe v Wade, etc.). I don’t believe “we” have a politically-conservative majority on the court at all and I doubt a decision that is legally-conservative in this case will have a wide impact (although I would love to be wrong).

    2. avatar Geoff "Jingle *this*..." PR says:

      “However, for lots of reasons, right now I’d wager that we’re either going to see cert granted or the case relisted.”

      Yeah, wasn’t ‘Peruta’ re-listed out the *ass* until finally denied cert.?

      1. avatar LKB says:

        Yes, but the Peruta relistings were likely just to keep the case alive to see if Kennedy was going to retire (or if he’d give a hint as to which way he’d go with it). Didn’t happen that year, so the stalemate continued. Neither side wanted to risk which way he’d bounce, so cert denied.

        Unless Roberts has now embraced his inner Kennedy (and we should have a good idea on that on Jan.7), that dynamic isn’t in play anymore. Yes, they will likely wait for a good test case that doesn’t have any procedural hickies,

        1. avatar LKB says:

          . . . but I think a cert grant on a 2A case this term is more likely than not.

          [BRING BACK THE EDIT FUNCTION!!!!!]

  9. avatar Chris says:

    It’s pretty miserable here, I agree. Even the calguns forums have been infiltrated by fudds (learned that one the hard way, don’t ask). But, I do enjoy my beretta px4 and the ria mapp-ms. I would like to buy something from the new beretta apx line because of how amazing it looks, those new ones are without a doubt the sexiest pistols I’ve ever seen. But, who knows.

  10. avatar C.S. says:

    Wait… How the f— does the gun microstamp the _bullet_?

    1. avatar Draven says:

      it doesnt, just the case and/or primer.

      1. avatar C.S. says:

        “The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification.”

        I think it’s time for caseless ammo…

        1. avatar Draven says:

          or use a revolver.

  11. avatar Sam I Am says:

    The truly dangerous part of the “Unsafe Gun Act” is being overlooked – a law mandating something that cannot be done. If the micro-stamping requirement is held to be a permissible infringement on an enumerated right, then there is no limit to laws requiring that which is impossible, regardless of whether it is a manufactured item, or a process.

    In June 2018, the Californication Supreme Court ruled that the courts cannot invalidate (overturn) a legally passed law that cannot be complied with. While the case at the bar was firearm related (NSSF filed the suit), the state supreme court did not restrict its ruling to firearms. This case establishes a “precedent” that can be sited by other states (and state courts) as justifying current laws that may have to wait years, or decades, before actual compliance is possible.

    Regardless of contempt for Californication, this precedent cannot be ignored. Even if the state is overruled on appeal, the history is established. Even if several states do as has Californication (and lose on appeal), the history builds nonetheless (history, tradition, precedent).

    Note for those who entertain the faintest imaginings that the US Supreme Court will review dozens, if not hundreds of 2A cases – never happening. Nor will it file a decision that only “strict scrutiny can apply to any firearm related lawsuit. Nor will it file a bold declaration that 2A is absolute (or even near-absolute), overturning thousands of restrictions at once. The SC will look, maybe, for a case that limits government the least. One with little political repercussion. Of course, the continued refusal to review could continue indefinitely (the least problematic course of action for SCOTUS).

    1. avatar Anymouse says:

      I disagree. I don’t think the Supremes would waste their time picking an ineffectual case. They might pick a case that is 2A related, but rule on another aspect of the case, such as standing, legislating an impossibility, regulatory overreach, interstate commerce, federal supremacy, etc.

      1. avatar Sam I Am says:

        “I disagree. I don’t think the Supremes would waste their time picking an ineffectual case.”

        Being at half-speed today, not quite following your thinking here. In California, the validity of laws requiring the impossible stands as State law. Not seeing it challenged in federal court, yet. This means state and local governments in Californication can create laws that are impossible to meet, meaning a person can be charged (and convicted?) of not doing the impossible. Such laws are not restricted to firearms control.

        When state Supreme Courts rule on something, the precedent can be cited as support for similar laws in other States. The state courts may not be persuaded, but they might. With several States having similar laws, those can be used to support a position in federal court (may or may not be persuasive).

        In any event, the Alice Through The Looking Glass logic that an impossible law is quite valid is indicative of what the enemies of liberty are willing to do to rule over the populace. The impossible law in Californication is a threat to all of us.

  12. avatar Alan says:

    At the risk of sounding overly harsh, the law abiding U.S. Citizens who reside, for whatever reason, in California are getting screwed. That said, I believe that the following additional thought is worthy of mention. Via their electoral choices, people they voted for and or people they did not vote against, they suffer a fate that they brought on themselves.

    1. avatar Draven says:

      Beg to differ, i voted against almost all of em and they passed statist crap anyway.

  13. avatar Joe says:

    Why don’t they pass a law requiring all bullet manufacturers to engrave the name and address of all ammunition purchasers on tha casing, maybe include the SS# ! Who cares that it will delay purchase/use time frame, or infringe on our right to privacy? There is only one goal here; the Democratic Left wants to take away our right to bear arms in any way they can.

  14. avatar possum the red nose delete says:

    Daisy Cutters for California.

  15. avatar JOE MATAFOME says:

    What happens if we lose and they side with COMMIEFORNIA ?

    1. avatar SurfGW says:

      Or decide not to hear the case which is essentially siding with California. Most bets are that SCOTUS does not challenge the status quo.

  16. avatar Sora says:

    DONATE DONATE DONATE to http://www.saf.org
    $50 is less than what you spend on a range day.

  17. avatar joefoam says:

    What happens when they add more features that cannot be done as this microstamping thing? Will all guns become illegal because they don’t have some super space juice operated trigger?

  18. avatar Alex in Oregon says:

    Not sure how many here shop on Amazon but if you do the Smile program SAF is one of those that a portion of every purchase is donated to. I saw that and immediately signed up!

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