Round One to State on Handgun Roster

Round One to State on Handgun Roster

Daily Journal

March 9, 2015

By:  Ara Jabagchourian


Over five years after the filing of an action challenging California’s Unsafe Handgun Act (UHA), last week a federal district court held that the law passes constitutional muster.


In Pena v. Lindley, 90118 (E.D. Cal. Feb. 25, 2015), the plaintiffs challenged California’s handgun regulatory scheme claiming the UHA violates the Second Amendment and the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. The suit challenged California’s requirement that all new semiautomatic handguns have microstamp technology, which places an identifying mark on each cartridge when fired. Currently, not one handgun manufacturer in the U.S. has the technology to do this.


The UHA was enacted in 1999 and criminalizes the manufacture, import, lending or sale of any “unsafe gun.” A handgun is deemed unsafe if it is not listed on the California Department of Justice’s Roster of Handguns Certified for Sale. To get on the roster, the handgun must be submitted to the state to be checked for several features, including passing a drop test. The law was amended in 2003 requiring a magazine disconnect mechanism (which prevents the handgun from firing when the magazine is detached) and a chamber load indicator.


In 2007, the state Legislature passed the Crime Gun Identification Act (CGIA). This expanded the term “unsafe” under the UHA to include “semiautomatic pistols that are not designed and equipped with a microscopic array of characters that identify the make, model and serial number of the pistol … and that are transferred by imprinting on each cartridge case when the firearm is fired.” Proponents of the CGIA argue this will aid law enforcement in solving crimes and help reduce gang violence. Opponents argue that microstamping exposes lawabiding citizens to potential prosecution given the risk of microstamped shells fired at a public range being picked up by criminals who may later use them at the scene of a crime.


Despite being promulgated eight years ago and enacted in May 2013, not one handgun available in the U.S. has microstamping technology that satisfies the requirements of California’s law. The DOJ roster currently has nearly 1,000 types of handguns. Since the lawsuit was filed, there have been approximately 1.5 million legal handgun transactions in California.


The lawsuit was filed by four individuals seeking to purchase particular handguns not on the roster and two organizations which support gun ownership rights: Second Amendment Foundation Inc. and The Calguns Foundation Inc. The complaint alleged that the UHA violates the Second Amendment because it bars the purchase of certain handguns that are “in common use” and therefore protected under District of Columbia v. Heller, 554 U.S. 570, 573 (2008). Furthermore, plaintiffs alleged the UHA violates the equal protection clause because it bars individual plaintiffs from possessing handguns it permits other people to possess.


The court looked to whether under a historical understanding of the scope of the right, the challenged law burdens conduct protected by the Second Amendment. A challenged law falls outside the historical scope and does not burden the protected conduct if the regulation is one of several presumptively lawful regulatory measures, or the record includes historical evidence establishing that the regulation falls outside the scope of the Second Amendment. Jackson v. City and County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014).


Applying this framework, the court found the UHA does not ban the commercial sale of firearms; rather, it criminalizes the manufacture and sale of guns deemed “unsafe” for which they are kept off the roster. Unlike the decisions in Heller (invalidating law requiring handgun registration) and Peruta v. San Diego, 742 F. 3d 1144 (9th Cir. 2014) (invalidating restrictive conceal firearm permit requirements), the UHA only imposes conditions and qualifications, and is not a prohibition on keeping arms.


Quoting Heller, the court said the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Here, the court held, the UHA does not effectively ban firearms and therefore cannot be deemed a prohibition under the Second Amendment.


Next, the court launched into its equal protection analysis. The plaintiffs argued the UHA creates privileged classes exempt from compliance. They focused on the UHA’s treatment of individuals who move into the state with a gun not on the roster, those who have family outside of California who can conduct an interfamily transfer to someone in California, and law enforcement personnel.

Regarding those moving into the state and those with family outside California, the court held while the law exempts specific types of transactions without regard to the individuals involved, California residents “are not prevented from possessing unlisted guns, receiving then as intrafamily gifts from instate relatives, or bringing them into the state for noncommercial purposes.” Thus, the court held, there is no equal protection violation as to these categories.


The court’s reasoning here misses the point. California residents cannot purchase handguns outside the state without a California firearm dealer accepting delivery. Since a California firearm dealer cannot process the purchase of an unrostered gun without being subject to UHA’s criminal penalties, a California resident cannot obtain an unrostered gun legally.


The UHA also exempts sworn members of law enforcement personnel who obtain unrostered guns for the discharge of their official duties. The court, however, held that active law enforcement and the general population are not similarly situated. The court stated, “[l]aw enforcement personnel shoulder a duty to ensure public safety and thus assume different responsibilities, risks, and rights.” Therefore, the court concluded the exemption does not violate equal protection.


The court’s cursory analysis on this issue did not go into why the dictates of the UHA are relevant to the exemption of law enforcement. There was no tie in between the duties of law enforcement and specific dictates of the act. The court failed to explain why microstamping is not necessary for law enforcement but it is for the general lawabiding public. Wouldn’t being able to identify a cartridge dispensed from a police officer’s gun be just as important in an investigation as that of a suspect?


Likewise, there was no analysis as to why particular handguns never submitted for a drop test to the DOJ were any safer for law enforcement than for the general public. Shouldn’t our law enforcement officers be entitled to the same protections afforded by the UHA to prevent misfires from a dropped handgun as the general public? Portions of the UHA which have no tie in to law enforcement duties may be found unconstitutional under the equal protection clause in the future.


Ultimately, the court granted the DOJ’s motion for summary judgment and denied the same motion brought by the plaintiffs. The plaintiffs immediately filed a notice of appeal, setting the stage for further argument at the 9th U.S. Circuit Court of Appeals.