A little late to this story, due to the demands of an important client, but I would be remiss if I didn’t talk about last week’s Federal Court decision in Peña v. Lindley. Peña and the other plaintiffs brought suit because they allege that the California Unsafe Handgun Act (UHA) effectively barred them from buying handguns that are readily available almost everywhere else in the nation. The UHA . . .
criminalized the manufacture, import, lending, or sale of any “unsafe handgun,” permitting “imprisonment in a county jail [for a period] not exceeding one year.” The term “unsafe handgun” is defined to include any revolver or semiautomatic pistol that is “not already listed on the roster” of “tested handguns determined not to be unsafe” by the California Department of Justice.
Judge Kimberly Muller of the Eastern District of California (nominated by President Obama, and “unanimously confirmed by the United States Senate” in December 2010, for those who are keeping score) frankly admitted that the purpose of the UHA was to “reduce crime by eliminating the sale of cheap handguns,” because “four of five guns used in criminal acts are cheap guns that do not meet drop safety and other gun specification requirements.” Its other purpose was to ensure that handguns “fire when they are supposed to and that they do not fire when dropped” by requiring that all handguns be subject to a “drop test.” That’s a requirement the bill’s author submitted is “fair and reasonable for weapons sold to the public for self-protection. If a weapon is not reliable for self-defense it has no business being sold in California.”
Of course, the UHA is a California anti-gun law, so of course, it isn’t quite as simple as that. Some of the omitted firearms were kept off the list because they hadn’t been tested after something as simple as an ambidextrous magazine release or the color of the frame changed.
Plaintiff Vargas, who was born without an arm below the right elbow, seeks to purchase an unlisted Glock 21 SF with an ambidextrous magazine release. This model is not listed, but the same model without the ambidextrous magazine release is listed. Further, the UHA permits plaintiff to buy the listed model and have it subsequently fitted with the ambidextrous magazine release. Glock attempted to roster the model with the ambidextrous magazine release, but the DOJ determined it was not sufficiently similar to the listed model to be listed without independent testing.
Plaintiff Croston seeks to purchase an unlisted Springfield Armory XD-45 Tactical 5” Bi-Tone stainless steel/black handgun in .45 ACP, model number XD9623. This gun is grandfathered onto the roster but only in other colors. This particular color is not listed because, plaintiffs assert, it was released after the…requirements went into effect.
Despite all of this, the Eastern District found that since the UHA didn’t ban all handguns, it was a-ok. You can buy handguns in California, as long as they’re on the approved roster. Handgun isn’t exactly what you wanted? Too bad, you can get at least one type of handgun, so you’re good. You need a van that can accommodate a wheelchair lift? Fine, you have the right to buy any automobile you want, as long as it’s a Chrysler Sebring.
Later in the decision, the court swatted away the plaintiffs’ argument that they were being denied equal protection under the law, because civilian law enforcement was permitted to acquire some of the very pistols denied to other civilians. Again, the Eastern District frankly admits that the UHA “results in disparate treatment because exempting a group of people from compliance with the UHA imposes different burdens on different classes of people.” But then the Court just shrugs its metaphorical shoulders and says that this doesn’t matter:
Law enforcement personnel shoulder a duty to ensure public safety and thus assume different responsibilities, risks, and rights.
So: civilian law enforcement personnel have more rights than other civilians because–hey, why do you hate law enforcement, commie?
Finally, on microstamping: the plaintiffs argued that since no guns existed using microstamping, ultimately semiautomatic handguns would effectively be banned in due course. Judge Muller dismissed the argument over microstamping in a footnote, claiming that the plaintiffs hadn’t produced enough evidence to support a finding of ‘imminent disappearance’.
Overall, I’m fairly disgusted with this decision. The purpose of the UHA (as the court acknowledged) is to bar access to affordable and reliable handguns for California residents. I’d love to hear an expert explain how a $550 GLOCK is somehow a cheaply-made “Saturday night special” liable to just “go off” if it’s dropped (or, indeed, how a change of the color of the frame somehow means that the gun needs to undergo additional safety testing as though it’s a new model.)
No, the act is a very calculated effort to restrict rights of Californians that should be protected under the Second Amendment. This is like trying to restrict access to the Internet and high-quality printers to all civilians because some of them might be seditious, and then saying that there’s no burden on the First Amendment here, because everyone can still print up handbills and mail them out to people. We wouldn’t tolerate such an attach on the First Amendment; we shouldn’t tolerate a similar attack on the second. It’s embarrassing to watch Judge Muller try to jump through hoops in her apologia expanding state power at the expense of civil liberties.
In an e-mail to TTAG, the Calguns Foundation has announced that it has directed its counsel to appeal the case to the 9th Circuit Court of Appeals. Perhaps wiser counsels will prevail at that stage.
In the end, this is what happens to a people who disparage their own rights by voting for politicians who are similarly uncaring. The decision wouldn’t have come down this way if Californians hadn’t elected local pols who were anti-gun, nor would this judge in particular have written this decision if President Obama hadn’t appointed her, and if the Senate hadn’t approved her. (And before you GOP’ers start getting all smug about that, recall that she was approved unanimously.) Elections have consequences.