Gun rights groups take aim, again, at California's handgun roster

November 13, 2020


Matthew Hoy

A coalition of gun rights groups, individuals and firearms retailers have filed suit in an attempt to rid California of its so-called "Safe Handgun Roster."

A brief history of the handgun roster

A largely similar case, Pena v. Horan, was one of the 10 Second Amendment cases that were denied a hearing before the Supreme Court last summer.

California's "Safe Handgun Roster," signed into law by then-Gov. Arnold Schwarzenegger, listed a variety of safety features that were required to sell new handguns in the state, including things like a loaded chamber indicator and a magazine disconnect safety. In 2013, vice president-elect and then-California Attorney General Kamala Harris decreed that microstamping was also required for new semi-automatic handguns, invoking a provision in the law that stated that such technology would be required when it was "available to more than one manufacturer unencumbered by any patent restrictions." The fact that no one has ever made a gun with microstamping technology described by the law (i.e. "in two or more places on the interior surface or internal working parts of the pistol, and are transferred by imprinting on each cartridge case when the firearm is fired.") was no barrier.

[Microstamping technology has demonstrated the ability to imprint a series of characters using the gun's firing pin, but that isn't technically the "cartridge case" as described in California law. No one has demonstrated an ability to imprint characters on two places on a cartridge. Critics of microstamping point out that if the firing pin is the part of the gun used to imprint the gun's serial number and other attributes, then it will wear off over time and that the firing pin is simple enough for criminals to replace that it would likely lead police on wild goose chases. Others have worried about potential criminals picking up handfuls of discarded brass at a firing range and scattering them at a crime scene to also waste investigators' time.]

In 2018, the California Supreme Court upheld the microstamping requirement, saying that the fact that it was impossible to comply with the microstamping requirement did not give the court the power to invalidate the law.

Since 2013, no new semi-automatic handgun has been added to the California roster. At the time, there were more than 1,200 models of handguns available for sale in California. As of January 30, 2019, that number was down to 763; removing functionally identical, but cosmetically different (e.g. different grip color, etc.), redundant entries, the number turned out to be just 528.

The law continues to act as a sort of slow-motion handgun ban, as any change in the manufacture of an already-approved, grandfathered, handgun without adding the impossible microstamping technology results in the gun's removal from the roster. One can compare California's list of de-certified handguns to its page alerting people of its newly approved one, to get an idea of what's happening.

Handgun roster encourages police corruption

While gun shops in California are prohibited from selling off-roster, "un-safe" handguns to ordinary citizens. The roster does not apply to law-enforcement officers who can buy any handgun they like, even for personal use. Ordinary citizens can, however, buy off-roster guns from other citizens, so long as they are not a Federal Firearms Licensee.

Of course, there are also laws requiring a person to obtain an FFL from the federal government (and other paperwork from the state of California) if they start selling handguns often enough so that they would be considered "in the business" of selling guns.

Aside from the occasional resident of a free state who moves to California and decides to sell an off-roster gun that they no longer want or need, the primary method of getting newer, off-roster firearms is by buying them from law enforcement personnel. If an officer sells one or two handguns a year, that's legally OK. And police officers can charge a premium for those unused or lightly used guns, since their availability is otherwise very limited.

This has resulted in police officers across the state being charged with federal crimes for re-selling off-roster guns.

California changes the roster law; invites new lawsuit

On Sept. 29, Gov. Gavin Newsom signed AB 2847 into law. The law changes the microstamping requirement described above from "two places on the cartridge" to just one place. Should some company actually produce a handgun that can microstamp cartridges, then once that new gun is added, the three semi-automatic handguns that have been on the roster the longest will be removed from the roster.

While the Supreme Court's decision not to take Pena v. Horan effectively prevented further lawsuits against California's handgun roster as it stood at the time. The changes made in the most recent legislative session and signed into law by Newsom, create a new paradigm where the law can be challenged once again.

The new lawsuit, Renna v. Becerra, takes aim at the ever increasing number of new semi-automatic handguns that are commonly used for the purpose of self-defense that California prohibits its residents from purchasing.

California’s Handgun Ban, as amended by AB 2847, not only forces and requires the Defendants’ Roster to continue to shrink into oblivion, but, on information and belief, even minor changes to manufacturing processes, materials, and suppliers will cause a previously-certified handgun to be removed from the Roster by Defendants under the State’s laws and Defendants’ policies and enforcement practices.

Worse, certified handgun models are removed from the Roster by Defendants if the manufacturer does not pay an annual fee to maintain the model on the Defendants’ Roster. Penal Code § 32015(b)(2).

Handguns that have passed California’s tests and were certified by Defendants do not become “unsafe” because the manufacturer does not pay an annual fee.

Hey, this is a lawsuit about California's gun laws, isn't it?

Unlike the earlier Pena v. Horan case which was filed in the Central District of California (Fresno) and lost at every level right up to the Supreme Court, Renna was filed in the Southern District of California.

Why does that make a difference? Because the Ninth Circuit has a policy of assigning similar subject cases to a single judge under it's "related case" rule, on the likely accurate belief that the judge would have a better understanding of that particular area of law, since they've heard arguments and studied the law in other cases.

What does that mean? It means that it is almost assured that this case will be assigned to Judge Roger T. Benitez, who has already struck down the state's large capacity magazine ban (ruling upheld 2-1 at the Ninth Circuit, awaiting potential en banc hearing or appeal to the U.S. Supreme Court) and issued a preliminary injunction against California's new ammunition background check law (oral arguments were made earlier this week at the Ninth Circuit on whether to allow background checks to continue while the court case continues). Late last month, Benitez heard expert testimony on a lawsuit against California's so-called "assault weapons" ban—the third Second Amendment-related suit that Benitez heard was what caused gun control advocates to decry the "related case" rule.

Californians, don't expect to buy an off-roster handgun anytime soon

While most court-watchers would agree that California would have an uphill battle to prove the state's handgun roster passes Second Amendment scrutiny, especially with Judge Benitez presiding, it will be years, not weeks or months, before Californians could walk into their local gun store to buy any handgun they chose. The earlier Pena lawsuit that met its end last summer before the Supreme Court was initially filed on April 30, 2009.

More than a decade passed before the courts had finalized the Second Amendment defeat. While four years of President Donald Trump and Sen. Mitch McConnell confirming appellate court judges at a record pace has made the uber-liberal Ninth Circuit a little more centrist overall, victory at the appellate level is not assured. The recent confirmation of Justice Amy Coney Barrett has encouraged Second Amendment supporters and appears to have put a solid five justice majority in place to make sure the right to keep and bear arms is no longer a "second-class right" in the words of Justice Clarence Thomas, but it can take a long time to reach the Supreme Court, and who knows what the court's composition might look like then.

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