Microstamping and Smart Guns

[Art Eatman]

It is my understanding that in states where such laws have been passed or have been contemplated, the firearms of police are exempt from these requirements.

So, for the legal scholars among us, my question is whether or not this would be actionable under the 14th Amendment's "equal protection" clause. Exemption seems to create two classes of people, with different rights.

Let's not get into any "they" and "ought to" stuff, okay? Just the legal aspects.

Art

 

[tnieto2004]

As far as the 14th amendment is concerned, what privileges or immunities would the citizen be deprived? A stamp free gun? We already allow the military and law enforcement to have the option of using weapons deemed "illegal" (Term is used loosely here, there are exceptions) for many to possess. I assume this issue of the police exemptions from microstamping may be viewed the same. We have let a lot slide already. Would this be any different?

 

[whm1974]

I think the biggest results of these two laws is CA and NJ will lose a lot of people.

-Bill

 

[Art Eatman]

"Let slide." If nobody challenges, the sliding continues. I'm looking for some grounds for challenge. And, it's possible that a public challenge could forestall such impositions if enough publicity were generated.

If police are exempt from "smart" guns because of reliability issues, why should non-police be endangered by this unreliability?

The microstamping issue is fuzzier, but I see no justification for any exemption if there is one...

Art

 

[Thain]

There are pretty much two two-word phrases in the Constitution that have, sadly, let the courts make a mockery of the rest of the document. These are "police power" and "commerce clause."

Everything under the sun can be spun to be allowable under one of those two catch-all categories. Growing your own wheat in Iowa, eating it yourself, and never selling it or crossing state lines is something that Congress can regulate under the interstate commerce clause, don't try to understand it. You'll just wind up throwing your legal casebooks across the room and scaring the cat. (Or was that just me?)

"Police power," of course, can justify everything from microstamping and smart guns (especially in the 9th Circus), to socialized medicine and warrantles wiretaps.

Welcome to the brave new world.

 

[glockman19]

I believe that CA's law can be challenged based upon:

California Constitution Article 1 7B states, "A citizen or class of Citizens may not be granted privileges or immunities not granted on the same terms to all citizens".

 

[Henry Bowman]

"A citizen or class of Citizens may not be granted privileges or immunities not granted on the same terms to all citizens".

The exemption for LEO firearms is not a personal one, it is for the .gov agency.

 

[glockman19]

The exemption for LEO firearms is not a personal one, it is for the .gov agency

.

Sorry to disagree with you but LEO are Ordinary citizens when not working. Also they are a Class of Citizen.

 

[Hawk]

I believe the observation that the exemption is departmental is correct.

I don't claim any special knowledge of the microstamping bill but isn't it roughly analogous to the restrictions on newly manufactured full-auto weapons wherein the department owns the product rather than the individual and the individual isn't supposed to be taking the thing home for personal use?

It would appear that a LEO buying a non-listed (but pre-microstamping legislation) non-NFA handgun was acceptable for personal use if a departmental letter was provided. I base this on nothing better than a Skinnergram (STI).

On the "flip side" of states’ laws, we have California! As you know, we let all of our DOJ listings lapse several years ago. We also stopped selling to CA law enforcement agencies in the same time frame. We did, however, continue selling to individual officers, who could get their agency to approve, for (IPSC, IDPA, etc.) sporting purposes. Now we have more even MORE onerous restrictions on the general populace? No more! We’re sorry! We’re done! No guns! Nobody! ‘Nuff said!

I read this as LEOs couldn't buy non-CALDOJ weapons for their own use without getting the thing signed off for "sporting purposes" and that option is gone now.

caveat: not only am I not a lawyer, I don't have any knowledge of STI's goings on other than snagging a blog excerpt.

 

[illspirit]

Until SCOTUS rules that the Second is an individual right, a traditional rights-based equal protection challenge would likely be impossible. Even when it is found to be an individual right, it might still be tricky since California (or whoever) would argue that the police have no right to them, per se, but rather a duty.

On the other hand, if one were to make an issue of the fact that police feel "smart guns" aren't all that safe because they could malfunction or otherwise fail to work (e.g. attempting to fire offhand when the hand with the "smart ring" is injured, the ring is damaged in a scuffle, etc..), perhaps an equal protection claim could be made. Individual right or not, surely a law which directly endangers people isn't protecting them. Equally or otherwise.

As for microstamping, personally I think it would be best to attack it from a due process angle. Were someone to gather a gun owner's spent cartridges from a range and scatter them at a crime scene (or steal the gun for that matter), microstamping would only serve as a presumption of guilt.

And on that note, should someone decide to misuse their own firearm, wouldn't the microstamping law essentially be compelling him to provide evidence against himself? While this (or the above) might not be enough to get the law stricken on it own, if it does end up that microstamps are found to be inadmissible as evidence (and you know there will be lawyers who try), maybe then it will be open to an equal protection challenge. In that it would really only protect criminals. Or perhaps even a rational basis review.

 

[romma]

California Constitution Article 1 7B states, "A citizen or class of Citizens may not be granted privileges or immunities not granted on the same terms to all citizens".

This argument works well for Concealed Carry for Californians well also!

 

[geekWithA.45]

Aparently, the only concensus on the 14th amendment is that "it does not mean what you think it means", no matter what you think it actually means.

 

[Telperion]

The exemption for LEO firearms is not a personal one, it is for the .gov agency.

I believe the observation that the exemption is departmental is correct.

Not true. California LEOs are exempted from the state's safe handgun BS for their private, personal purchases. No letterhead is required. See Penal code 12125(b)(4).

 

[geekWithA.45]

NJ also holds that policebeings are exempt from various firearms laws for their own personal, not duty related gear.

Essentially, what's happened is that one's employment has become a basis for exemption from various laws, which can be viewed as a sort of immunity from prosecution, and therefore an indirect de-jure basis for a de-facto privileged class of citizens.

The dots do not connect in an airtight manner, but they do connect.

 

[Henry Bowman]

Telperion: Then I would agree. But don't expect a court to agree so long as it is perceived not as a right but as an evil that must be tolerated in those limited circumstances.

 

[Titan6]

Even so there really is no restriction based upon the state granting privilege for employment. After all then certain other things would have to count as well say... police speeding to the scene of a crime.... purchasing drugs as part of an investigation.... soliciting for prostitution (and in some cases actually recieving services rendered ).... Doing drugs as a deep cover operative.... the list is endless.

Bowman is correct, until and unless it is recognized as an individual right the crazy laws will continue.

 

[mlr1m]

My only question is why the state feels that they need to use firearms that are harder to trace? If their officers are involved in shoots wouldnt they want to show who fired what? Do they have something they are trying to hide?
Do they have a legit reason to exempt themselves? I do recall in the Randy Weaver incident that some of the bullets couldnt be traced. They were thought to have been fired by athorities but were said to be in to bad a shape to be tested.

Michael

 

[Henry Bowman]

Do they have a legit reason to exempt themselves?

They don't need a reason. They are making up the rules.

I do recall in the Randy Weaver incident that some of the bullets couldnt be traced. They were thought to have been fired by athorities but were said to be in to bad a shape to be tested.

The CA microstamping law does not mark the bullets, only the casings.

 

[billwiese]

I do not know of other states with either passed or implemented microstamping laws except for CA.

California's recently-passed microstamping law (AB1471) may well never see the light of day given that it has to be enforced thru a regulatory agency, with formal adoption-of-regulation procedures governed by our state Administrative Code (and supervised by Office of Administrative Law, OAL).

There's no reason to panic and start buying a ton of handguns.

AB1471 contains clauses restricting application of proprietary technology encumbered by patents. (Even antigun Democrats hate sole-source laws.) Some analysis on Calguns reveals Todd Lizzotte ain't gonna give up his patents, and there are likely a wide variety of lithography patents in other fields that either (1) conflict w/existing patent(s) or (2) if this patent were out of way, may well apply. Our little DOJ BoF (Bureau of Firearms) does not have the skill set necessary to fight this, and I think we can keep this entangled for at least 17+ years, if not longer.

It may be that the NRA has to go get some patents on microstamping too to keep things locked up

I nosed around & talked with various folks that hang around Sac, trying to find out why AB1471 & AB821 were signed - even though gov's legislative staff recommended against it.

It was worse than I thought: it came from "our side" - and it had absolutely nothing to do with specious assumptions it resulted from Teddy Kennedy being part of Arnie's extended family. Initial reports that some police association or a bunch of police chiefs drove it were not correct (or the influence was so minor to be negligible).

Some here in CA might remember that a SoCal Senator (Hollingsworth) was involved in calling for the head of a Dept. of Fish & Game (DFG) commissioner named Hanna. Hanna supported a lead ammo ban, or appeared at least to support some of the claims of damage to condors purportedly caused by lead ammo. This attack on Hanna was stupidly instigated at a very sensitive time for us, when the governor could have used the existence of the DFG regulatory powers as cover to vetoing the bill, saying it was unnecessary & duplicative. [Hollingsworth & other similar-minded pro-gun politicians can't be blamed for this: they were responding to what they saw as constituent anger over an antihunting F&G matter - they saw a problem they were contacted about, and tried to help - so let's not burn our friends, who were actually being direct and responsive!]

Apparently Arnie (and/or senior political staff) felt Hanna had to go due to 'keeping the peace' in party politics during critical end-of-session maneuvers (lotsa important budget stuff, etc.), but really felt cornered * pressured into making this happen at this time. It was a move the governor didn't wanna make but it apparently had to happen, party-wise.

The letter circulated by Hollingsworth was driven by GOC (Gun Owners of California) Sam Paredes, and had CRPA backing from Kathy Lynch and Gerry Upholt. (In fact, I'm hearing that Paredes likely ghost-wrote the letter for Hollingsworth.) Both these groups (well, these three people) had some personal grudges against Hanna, perhaps even for non-gun reasons (as CRPA & GOC folks often dabble in legislation outside gun/hunting realm and play "trade games" with legislation instead of being a mono-focused sole-issue entity.)

Needless to say, who gets blamed for the drama, and who gets conspicuously associated with this action? The NRA, of course - who was way to smart to cause Hanna trouble when legislation (3 bills) was gonna be landing on governor's desk soon. Legislative staffers reported a ton of calls from news agencies asking why the NRA was "anti condor", etc. (Few journalists know of CRPA or GOC, especially since they have no favorable legislative results. )

The politics/pressure with these F&G matters surrounding Hanna stunk so bad with the Gov & staff - and he's obviously a personality who doesn't respond well when 'cornered' - that he voted for *both* AB1471 & AB821 as 'payback' to the "gun people". Up at that level, on relatively 'small' bills (esp when compared to major state matters like taxes, roads, water, healthcare, etc.), there's no dividing line perceived concerning NRA vs CRPA vs GOC: if the GOC or CRPA screws up like this, NRA gets the blame - or rather, we get an antigun law passed.

While quite a few folks were worried that AB821 might turn out to be a clusterfluck due to GOC/CRPA's hamfisted Hanna dealings, nobody thought that any 'backwash' would propagate to AB1471 - but it did. Some of the Hanna affair matters left a very, very sour taste with Gov & senior staff - and when you push a dude like that, he plays hardball big-time.

These bills were ours to kill, and we shot ourselves in the foot entirely due to our supposed "pro-gun" "friends".

The ONLY reason these bills were signed is because of the GOC-inspired/ CRPA-supported Hanna debacle, and the leadership of GOC/CRPA was too friggin' hotheaded in their zeal to take a little guy down that they instead let the Big Guy walk all over them.

Upholt, Lynch and Paredes need to take another occupation. I am sorry to say that by sheer results alone, they're essentially running de facto anti-gun organizations which in combinatorial stupidity have more weight than the Brady Campaign.

You'd figure after SB15 approved handgun Roster and the AB2731 Torrico ammunition bill last year that they'd at least learn. (CRPA, due to nefarious connections of its contract lobbyists, has backing from big gun retailers who enjoyed the concept of approved handguns & outdated gun inventory as a way of putting the screws to small dealers.)

IMHO, the private lobbying firms calling themselves CRPA and GOC - and whose leadership cannot be shaped, changed or motivated by its membership - perhaps needs to be restructured thru attrition (i.e, "vote with your checkbook").

Perhaps you can help change things by not renewing your CRPA and GOC "membership". It's about the only way you can vote & affect the leadership of these groups. I and others here will try to drive alternate ways/organizations to distribute ODCMP Garands, etc. - since that now seems to be the main reason to even be associated with CRPA.

This sh*t makes me mad. We coulda had these in the bag. We ran the drill, we did everything right, we even had some ability to 'control our luck' in unfriendly waters with some smart NRA behind-the-scenes efforts. And then we get sabotaged by our own side. Now, NRA time & legal fees - your membership dollars - will have to be burned at multiple regulatory hearings addressing these bills' conflicts, complexity and unintended outcomes.


Bill Wiese
San Jose CA

 

[frankie_the_yankee]

Guys, this whole thread is nothing but wishful thinking. I thought gun owners prided themselves on being realists. Wake up and get back to the real world.

There will be no 14th amendment challange, nor any other challange. Forget it. It ain't gonna happen.

You or I might think these laws are unconstitutional, but no court will agree. Work to change/repeal the laws or get used to them - or move out of CA.

 

[rdhood]

AB1471 contains clauses restricting application of proprietary technology encumbered by patents. (Even antigun Democrats hate sole-source laws.) Some analysis on Calguns reveals Todd Lizzotte ain't gonna give up his patents, and there are likely a wide variety of lithography patents in other fields that either (1) conflict w/existing patent(s) or (2) if this patent were out of way, may well apply. Our little DOJ BoF (Bureau of Firearms) does not have the skill set necessary to fight this, and I think we can keep this entangled for at least 17+ years, if not longer.

Actually, I saw that in the bill. There is no way that a bunch of gun manufacturers are going to get together and come up with a gun microstamping standard that is free of patent restrictions, and there is no way that any private individual who has created microstamping technology is going to give up their patents. It is possible that, as an industry, they might purchase the patents and make them free to all manufacturers. But nobody is going to do that and risk that CA is going to make some crazy new law or ruling that would render the technology unsuitable or unusable. My prediction: manufacturers sell their old model guns in CA for the a long time. No new models introduced while this law stands.

 

[strat81]

Doesn't the 14th amendment deal with "protected classes?" For example, race, sex, religion, etc? Police vs. non-police are not protected classes.

If the law said "Protestants are exempt from the microstamping requirement" then the law would be bogus.

 

[frankie_the_yankee]

Doesn't the 14th amendment deal with "protected classes?" For example, race, sex, religion, etc? Police vs. non-police are not protected classes.

If the law said "Protestants are exempt from the microstamping requirement" then the law would be bogus.

A law like that would be bogus, possibly on equal protection grounds.

But gun owners are not defined anywhere in the law as a protected class. So forget that one.

U.S. Constitution: Fourteenth Amendment
Fourteenth Amendment - Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The original Bill of Rights was worded so as to affiirm or guarantee certain rights of the people against abridgement by the Congress.

This left state governments free to abridge those same rights themselves, which many states proceeded to do.

The boldface phrase in Section 1 has been interpreted by SCOTUS as "incorporating" the Bill of Rights so as to limit the powers of state governments to abridge rights gauranteed to the people under the US Constitution. So it became unconstitutional for state governments to limit free speech (for example), even though the 1st amendment begins with the phrase, "Congress (Note" Not the state governments) shall make no law.....". The 1st amendment was considered by SCOTUS to be among the "privileges and immunities" of US citizens, and they have so ruled in the past.

And so likewise for most of the other amendments as a result of various cases.

But the 2nd amendment has never been "incorporated" because there has not (yet) been a decision where the Court has ruled to do so. So it is somewhat of an orphan in that respect.

There is some hope that the Heller/Parker case will result in the 2nd amendment being incorporated, but it is far from clear at present if this will happen.

But even if it was, that would not result in microstamping or smart gun requirements being overturned. As many have pointed out, long established law allows for the police and military to possess weapons that are totally banned to the civilian population. "Equal protection" and "privileges and immunities" simply do not go that far, and never will.

Like I said, we should try to keep our thoughts in the real world.

Change the law, live with it, or move out of CA.

 

[ServiceSoon]

I think equal protection or due process would fail if put under the legal microscope. The gov grants itself special treatment in a variety of ways, not just firearm rights, so I'm not sure this would float.

Doesn't the 14th amendment deal with "protected classes?" For example, race, sex, religion, etc? Police vs. non-police are not protected classes.
But gun owners are not defined anywhere in the law as a protected class. So forget that one.

We have inalienable rights because we are humans, not because we belong to a group or class of people.

 

[no_problem]

An exemption is a law, it provides relief from another law. The law exempting police officers from having to comply with microstamping legislation provides relief to class of people in a certain profession.