Federal Judge upholds Microstamp Law in California

[usmarine0352_2005]

Where's the next appeal to? SCOTUS?









http://www.bloomberg.com/news/artic...-microstamping-law-is-upheld-by-federal-judge

California Cartridge-Microstamp Law Upheld in Gun Group Loss

The Associated Press

February 27, 2015

(Bloomberg) -- California’s ban on new semiautomatic handguns that don’t stamp identifying information on the cartridge was upheld by a U.S. judge in a major loss for gun-rights groups.

The law barring sales of handguns without the microstamping technology doesn’t violate the Constitution’s Second Amendment because gun owners don’t have a right to buy specific types of firearms, U.S. District Judge Kimberly Mueller in Sacramento said in her ruling.

“Plaintiffs insist they have the right to determine the precise way in which they would exercise their Second Amendment rights,” Mueller said. The insistence upon particular handguns falls “outside the scope of the right to bear arms,” she said.

“The court’s reasoning, that California’s prohibition of most handguns doesn’t even implicate the Second Amendment, is interesting,” Alan Gura, a lawyer for the groups, said Friday in an e-mail. “But we’re confident that we have a strong case on appeal.”

 

[N003k]

Are there even any current production handguns that do microstamp? I heard about a few of the 'smart guns' that require a watch or what not...but not about anyone producing a microstamping one yet...I would think that'd be a pretty strong case for appeal right there.

 

[DT Guy]

In the face of the proven non-utility of microstamping, this is a pretty clear indication that reason and judgement have fled the Federal benches in California, at least some of them.

How can something that limits a constitutional right and *doesn't work* be legal?


Larry

 

[Thermactor]

The law barring sales of handguns [...] doesn’t violate the Constitution’s Second Amendment because gun owners don’t have a right to buy specific types of firearms, U.S. District Judge Kimberly Mueller in Sacramento said in her ruling.

On March 10, 2010, President Barack Obama nominated Mueller to serve as United States federal judge for the United States District Court for the Eastern District of California. Her nomination was unanimously confirmed by the United States Senate on December 16, 2010.

Yes sir.

 

[GJSchulze]

The next step is the federal Court of Appeals which means the 9th circuit in California. The District Court is a trial court and only the first step. I believe that the final outcome will depend on the level of scrutiny if Gura can show that microstamping is unreliable. Level of scrutiny refers to how restrictive the solution can be that the law provides to protect government interests. There are three levels and it seems she used the lowest. I'm guessing at that, though. Circuit courts in other cases have used intermediate scrutiny and in at least one case used strict scrutiny. The higher the better for us. After the 9th Circuit Court, it could go to SCOTUS if they elect to take it.

IANAL(bmwi)

 

[Librarian]

'Microstamping' on its own is not the subject of the suit, though it seems to be the aspect of the Roster that gets the most attention. The suit seeks to get the whole Roster thrown out. See California Penal Code here and here, especially Section 32015.

 

[GJSchulze]

To get the law prohibiting the whole roster of guns thrown out I would think they will have to prove that it doesn't do what its intended purpose is: to make people safer. After reading some of the requirements it seems more likely that some of them could be tossed while others kept.

For instance, it's hard to argue against a drop safety test. Hell, they should all be safe when dropped.

OTOH, prohibiting a gun simply because it has a malfunction like a stove pipe is ridiculous. That, by itself, doesn't make it unsafe unless you carry for self defense purposes and I think we all know CA doesn't care about that.

I think level of scrutiny will play an important role in invalidating all or some of the prohibitions. Here is a description of the three from Find Law:

Strict scrutiny requires the government to prove that:
•There is a compelling state interest behind the challenged policy, and
•The law or regulation is narrowly tailored to achieve its result.

Intermediate Scrutiny

The next level of judicial focus on challenged laws is less demanding than strict scrutiny. In order for a law to pass intermediate scrutiny, it must:
•Serve an important government objective, and
•Be substantially related to achieving the objective.

As with strict scrutiny, intermediate scrutiny also places the burden of proof on the government.

Rational Basis Review

This is the lowest level of scrutiny applied to challenged laws, and it has historically required very little for a law to pass as constitutional.

Under the rational basis test, the person challenging the law (not the government) must prove either:
•The government has no legitimate interest in the law or policy; or
•There is no reasonable, rational link between that interest and the challenged law.

Heller did not specify a level of scrutiny. Some judges have with other cases. Some say that any fundamental right must pass strict scrutiny so it seems obvious to us that it applies to the 2nd. It befuddles me that many judges don't think the same.

Anyway, it will take a few years for this case to get to SCOTUS.

 

[striker3]

I think that the argument against the roster is not so much the safety requirements, but that it is cost prohibitive for manufacturers to sell handguns in the state. Every model number must pass the testing, which, from what I gather, is fairly expensive for each.

By model number, that means that every different color or accessory options that are sold must each be paid to be tested. Not only that, but the test is only valid for a set amount of years, after which the company must pay to have them retested.

 

[GJSchulze]

I think that the argument against the roster is not so much the safety requirements, but that it is cost prohibitive for manufacturers to sell handguns in the state.

Oh, I completely agree that that is the real reason for the tests that they put the guns through. it isn't for some noble reason of protecting humankind.

 

[Librarian]

By model number, that means that every different color or accessory options that are sold must each be paid to be tested. Not only that, but the test is only valid for a set amount of years, after which the company must pay to have them retested.

The Roster is pretty bad, but no, the above is not correct.

In reverse order, no, once on the Roster guns are not routinely retested. The state can ask for a retest, if there is some question that the models being sold may differ from the tested examples. Otherwise, it's pay the $200, pass 'go' for another year.

Models are a little more complicated. Indeed, most must be tested; Penal Code says

32030 (was 12131.5.)
(a) A firearm shall be deemed to satisfy the requirements of
subdivision (a) of Section 32015 if another firearm made by
the same manufacturer is already listed and the unlisted
firearm differs from the listed firearm only in one or more of
the following features:
(1) Finish, including, but not limited to, bluing,
chrome-plating, oiling, or engraving.
(2) The material from which the grips are made.
(3) The shape or texture of the grips, so long as the
difference in grip shape or texture does not in any way alter
the dimensions, material, linkage, or functioning of the
magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.
(4) Any other purely cosmetic feature that does not in any
way alter the dimensions, material, linkage, or functioning of
the magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.

With the right configuration, slightly different models may be added to the Roster without testing. But they must be added to the Roster before they may be sold by dealers to non-exempt buyers - having just the small differences is not sufficient.

 

[MachIVshooter]

But we’re confident that we have a strong case on appeal.

I think he's right. While the current roster requirements, ridiculous as they are, pass constitutional muster, the microstamping one clearly doesn't for this reason:

It is a technology that does not presently exist.

Firearms have been drop-safe for a long time, and making them so isn't rocket surgery, nor an unreasonable request. Moreover, most of us want drop safe guns, and manufacturers want to produce drop safe guns so they don't get their butts sued off (Lawful Commerce in Arms Act does not protect against lawsuits filed as the result of dangerous or defective products causing injury or death when used properly).

I'm not saying I agree in any way with the roster, but I can see how this requirement stands up to scrutiny (intentions of the statute notwithstanding).

However.........

California requiring a feature that is not currently extant and not easily implemented in manufacturing in order for a citizen of the state to exercise a constitutional right is a clear violation of the 2nd amendment. An extreme and unconstitutional onus. It would be akin to requiring that you make your statements in both Spanish and English to exercise your right to free speech, thus stripping that right from anyone who doesn't speak both languages (or either). That wouldn't pass muster, and neither should this.

 

[notaglockfanboy]

She is a member of obamas tyrannical team, I would expect nothing less. :banghead:

 

[denton]

it's hard to argue against a drop safety test

California's drop test is so statistically weak that we use it in our Six Sigma curriculum as an example of a very ineffective test, designed by people who don't understand statistics.

It's a little better than tossing a coin, but not much.

 

[HexHead]

She is a member of obamas tyrannical team, I would expect nothing less. :banghead:

IIRC, she was appointed by Bush.

You guys in CA are living a fantasy if you think any things are going to get better for you gun wise.

 

[50 Shooter]

HexHead,
You're very wrong! There are 1000's of gun owners fighting to make things better. The 10 day wait was overturned but until the state gets their appeal it's still active. Eventually this garbage along with others will go.

People like you do nothing to support us by being a naysayer! To you I say, if you're not helping, you're part of the problem!

 

[JERRY]

how could a state that gave us Ronald Reagan only a few decades ago, have fallen so far down the ladder?

 

[WestKentucky]

If the microstamping portion is upheld we really need to start a swap program for California folks to get as many microstampings on a case as possible...but then they might target reloadable ammunition casings, revive the attack on magazine clips, and make a listing of acceptable firearms rather than unacceptable ones leaving our brethren limited to waterpistols and nerfguns.

 

[Librarian]

Again, the 'microstamping' provision is not being specifically challenged here. It's the whole Roster law in question.

The original 2009 complaint said, in relevant parts -

By maintaining and enforcing a set of laws banning access to handguns whose
possession is protected by the Second Amendment, Defendant is propagating customs, policies,
and practices that violate the Second Amendment to the United States Constitution, facially and
as applied against the individual plaintiffs in this action, damaging plaintiffs in violation of 42
U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against such
customs, policies, and practices.

and

Defendant’s handgun roster program violates Plaintiffs’ rights to equal protection
of the law as guaranteed by the Fourteenth Amendment to the United States Constitution, in that
Defendant allows some people access to handguns barred to plaintiffs, and otherwise make
arbitrary, capricious, irrational, and otherwise unjustifiable distinctions among the handguns that
Defendant deigns to allow Plaintiffs in their exercise of fundamental Second Amendment rights.
Defendant is thereby propagating customs, policies, and practices that violate the Fourteenth
Amendment to the United States Constitution, facially and as applied against the individual
plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are
therefore entitled to permanent injunctive relief against such customs, policies, and practices.

In 2009, when this was filed, the 'microstamping' was not in effect.

 

[Frank Ettin]

Again, the 'microstamping' provision is not being specifically challenged here. It's the whole Roster law in question....

And as a District Court ruling this is just the beginning.

how could a state that gave us Ronald Reagan only a few decades ago,...

There was much to like about Reagan. But as governor he signed the 1968 law making open carry of a loaded gun illegal.

Reality can be complicated.

You guys in CA are living a fantasy if you think any things are going to get better...

On the other hand, the Ninth Circuit, in a California case, was the first court to find post-Heller that the Second Amendment applied to the States. The Ninth Circuit, in a California case, also gave us Peruta. And we've had some other favorable judicial rulings on Second Amendment issues.

Reality can be complicated.

 

[Dain Bramage]

“Plaintiffs insist they have the right to determine the precise way in which they would exercise their First Amendment rights,” Mueller said. The insistence upon a particular political opinion falls “outside the scope of the right to free speech,” she said.

 

[gbw]

Reality can be complicated.

Oh, please. You've long since read enough threads here to know better, it is simple. Perception (my perception) is reality.