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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #2561  
Old 08-09-2018, 5:02 PM
Chewy65 Chewy65 is offline
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Originally Posted by aBrowningfan View Post
You lost me there. How is the panel decision not in the interest of the anti-2A crowd? Didn't the roster get upheld?
My very bad. I must have been thinking of Young v. Hawaii or just not thinking. I see that I also typed that 5 votes were needed to grant a petition for cert when I and I believe most everyone knows you only need 4 to hear the appeal.
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  #2562  
Old 08-09-2018, 5:38 PM
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Originally Posted by CJ5&G23 View Post
Agreed, but it does more than that. Gunowners are mostly a very law abiding group, but as CA abuses lawful gunowners more and more, I suspect the side effects will go far beyond handgun blackmarket and straw purchases. Lawful gunowners will just silently say "fooey" to other firearm related laws and just buy/sell/trade/loan/carry what the want when they want. I certainly couldn't fault that if I was a juror on such a case.
It's already happening. I know many that just don't care and when it comes to firearms and ammunition they do what they want when they want and wherever they want. Some out of ignorance others just out of spite.
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  #2563  
Old 08-09-2018, 6:58 PM
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I'm not sure why people bring up taking brass with microstamps on them from the range and putting it at a crime scene ..

Lots of brass has people's thumb prints on it from loading it. You could takes brass right now from a range and spread it around a crime scene with thumb prints and connect people to crimes. Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.

The microstamps aren't really different from your thumb print.
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  #2564  
Old 08-09-2018, 8:13 PM
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"The microstamps aren't really different from your thumb print."

The multiple vendors (people) are turning out new products (kids) with thumb prints and the kids work.

No vendor is turning out a workable gun that has microstamping. That is a difference.
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  #2565  
Old 08-09-2018, 10:00 PM
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Originally Posted by abinsinia View Post
Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.
You don't know what they do with the thumbprint and why they do it, do you? They don't remember why either it seems.

Quote:
The microstamps aren't really different from your thumb print.
Really? You have a thumb with a print on it, how many guns have microstamps? How well does each work?

Don't fall for it. It is basically just a gun ban.
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  #2566  
Old 08-09-2018, 10:38 PM
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Originally Posted by Chewy65 View Post
A firearm having been connected to a crime by ballistics or otherwise can then be connected to the owner of record through the serial number.
If the owner says "I have no idea what you're talking about," does the "owner of record" provide any particular benefit to the prosecution?
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  #2567  
Old 08-10-2018, 5:37 AM
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Originally Posted by abinsinia View Post
I'm not sure why people bring up taking brass with microstamps on them from the range and putting it at a crime scene ..

Lots of brass has people's thumb prints on it from loading it. You could takes brass right now from a range and spread it around a crime scene with thumb prints and connect people to crimes. Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.

The microstamps aren't really different from your thumb print.
If a resizing die were as effective at removing micro stamps (however and wherever they are hypothetically imprinted) as a case tumbler is at removing finger prints then you might have a point.
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  #2568  
Old 08-10-2018, 5:49 AM
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Originally Posted by kemasa View Post
Don't fall for it. It is basically just a gun ban.
I agree, I never said it's a good idea.

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Originally Posted by champu View Post
If a resizing die were as effective at removing micro stamps (however and wherever they are hypothetically imprinted) as a case tumbler is at removing finger prints then you might have a point.
It's not the resizing die, it's the primer removal makes quick work of it.

Last edited by abinsinia; 08-10-2018 at 5:51 AM..
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  #2569  
Old 08-10-2018, 8:28 AM
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Originally Posted by abinsinia View Post


It's not the resizing die, it's the primer removal makes quick work of it.
Remember, the requirement is two stamps.
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  #2570  
Old 08-10-2018, 9:16 AM
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Reloaded ammo could be an issue. If the person gets range brass and has a firearm which doesn't have the microstamp, then if they are caught, it could be reasonable doubt for a jury since the microstamp points to someone else.

But lets say it is perfect and there is no reloaded ammo. So the government can trace the firearm to the original purchaser. Since criminals can't buy firearms legally, it won't trace to them. This means that it is likely that the firearm was stolen or illegally sold. If it was stolen, the trace is worthless since it would stop there. If it was illegally sold, unless you have multiple firearms which go through a given person or gun shop, it would be hard to prove anything.

Then there are a lot of older firearms which don't have the microstamp, so that could make those firearms much more valuable to criminals. Since it is just a limited law, then it means that it would be likely that the firearms would come from locations where it isn't required or older firearms which don't have it, so it won't help a thing.

Unless you can find the firearm, worse than a needle in a haystack, it won't help at all and with the no questions asked destruction of firearms gun buy backs it means that it won't matter at all since the firearm can be safely disposed of.

Then add to all that, it is likely that it would be possible to modify the microstamping so that it is useless. All of this means that it only costs money to the law abiding and has little, if any, benefit for criminal acts.
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  #2571  
Old 08-10-2018, 10:16 AM
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Originally Posted by IVC View Post
If the owner says "I have no idea what you're talking about," does the "owner of record" provide any particular benefit to the prosecution?
You tell us. If the last known owner has no explanation as to why he doesn't have the gun, like he made a theft report, sold it, lost it, or whatever, the benefit could be a narrowing of the investigation. However the owner may have a lead for the investigator, such as identifying who borrowed it or very likely stole it. That may lead to a dead end but it may not.

Last edited by Chewy65; 08-10-2018 at 10:26 AM..
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  #2572  
Old 08-10-2018, 10:57 AM
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Originally Posted by Chewy65 View Post
You tell us. If the last known owner has no explanation as to why he doesn't have the gun, like he made a theft report, sold it, lost it, or whatever, the benefit could be a narrowing of the investigation. However the owner may have a lead for the investigator, such as identifying who borrowed it or very likely stole it. That may lead to a dead end but it may not.
This argument is completely academic, microstamping doesn't bloody work. Until at least one hand gun can be mass produced that satisfies the requirement the state legislature is just banning all new guns.
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  #2573  
Old 08-10-2018, 11:23 AM
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This argument is completely academic, microstamping doesn't bloody work. Until at least one hand gun can be mass produced that satisfies the requirement the state legislature is just banning all new guns.
This.

Unless and until you can show that microstamping works LONG TERM, then it shouldn't even be considered. How many rounds can be accurately microstamped? The answer might be zero, but it would need to be thousands of rounds in order for it to even start to hope that it would be effective, then it has to be done in such a manner that criminals can't defeat it since if criminals defeat it, it is useless.
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  #2574  
Old 08-10-2018, 11:44 AM
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Even the State admits the 'technology isn't there, yet;' but, they blame the manufacturers.

More than a decade after it passed, California gun law still being fought in court

Quote:
...Firearms manufacturers say microstamping is still beyond the range of modern technology. They’ve refused to sell new models of the handguns in the state since the law took effect, and on Wednesday they asked an apparently skeptical state Supreme Court to halt the law’s enforcement...

The state’s lawyer, Deputy Attorney General Janill Richards, disagreed. Gunmakers, she countered, will have the means to comply with the law sometime in the foreseeable future, and the lawmakers are entitled to enact such challenging measures as “an incentive to push technology forward.” ...

The state’s 2013 certification cited the availability of microstamping patents and did not specify the technology needed for compliance. In a court filing, the Giffords Law Center to Prevent Gun Violence declared that microstamping “has been extensively tested and found to be feasible and reliable,” but argued that the state also has the authority to pass “technology-forcing” laws requiring companies to meet new standards, like clean-air goals for cars, to remain in the California market...
You see? You guys have it backward.

The Legislature sees a patent. As a result, they decide the technology exists and is feasible. So, they pass a Law to 'force' manufacturers to implement the technology they 'believe' exists.

Thus, it is the manufacturers who are refusing to comply. That's why the manufacturer's are not selling newer model firearms in California. It's not about the roster. It's about the manufacturers failing to comply with the Law by implementing (ahem) 'existing' technology. That's why the roster exists; i.e., to force manufacturers to do their part in helping with public safety.

As I noted in another thread... Everyone is happy if you don't let a little thing like reality get in the way. Right? Or, as the State Supreme Court put it...

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In sum, the case law recognizes that a statute may contain an implied exception for noncompliance based on impossibility where such an exception reflects a proper understanding of the legislative intent behind the statute. We are not aware of any appellate precedent in California that has invoked Civil Code section 3531 or impossibility of compliance to invalidate a statute itself.
The Legislative intent is to 'force the technology' to be developed and implemented, not to ban guns. Therefore, the simple impossibility to implement the technology 'now' does not negate the Law. The manufacturers just need to work harder to make the (ahem) 'existing' technology work.

Last edited by TrappedinCalifornia; 08-10-2018 at 11:55 AM..
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  #2575  
Old 08-10-2018, 11:59 AM
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They should read some of the free energy patents and outlaw so power plants.
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Originally Posted by TrappedinCalifornia View Post
Even the State admits the 'technology isn't there, yet;' but, they blame the manufacturers.

More than a decade after it passed, California gun law still being fought in court



You see? You guys have it backward.

The Legislature sees a patent. As a result, they decide the technology exists and is feasible. So, they pass a Law to 'force' manufacturers to implement the technology they 'believe' exists.

Thus, it is the manufacturers who are refusing to comply. That's why the manufacturer's are not selling newer model firearms in California. It's not about the roster. It's about the manufacturers failing to comply with the Law by implementing (ahem) 'existing' technology. That's why the roster exists; i.e., to force manufacturers to do their part in helping with public safety.

As I noted in another thread... Everyone is happy if you don't let a little thing like reality get in the way. Right? Or, as the State Supreme Court put it...



The Legislative intent is to 'force the technology' to be developed and implemented, not to ban guns. Therefore, the simple impossibility to implement the technology 'now' does not negate the Law. The manufacturers just need to work harder to make the (ahem) 'existing' technology work.
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  #2576  
Old 08-10-2018, 2:43 PM
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Why didn’t the prosecution make the state prove that the features and method of testing the handguns are actually in the interest of public safety? That’s the point of the lawsuit.......and an easy thing to prove the state wrong by. (LEOs use firearms not approved for public safety)
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  #2577  
Old 08-10-2018, 2:50 PM
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Originally Posted by HiND-SIGHT View Post
Why didn’t the prosecution make the state prove ...
Just to be accurate, it would be the plaintiff, not the prosecution. Prosecution is only in criminal cases, not civil, and is the government, not a civilian.
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  #2578  
Old 08-10-2018, 5:11 PM
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Originally Posted by kemasa View Post
Just to be accurate, it would be the plaintiff, not the prosecution. Prosecution is only in criminal cases, not civil, and is the government, not a civilian.
The plaintiff usually has the burden of proof and here the 9th Circuit bent over backwards to defer to the Legislature's finding of practicability.
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  #2579  
Old 08-11-2018, 7:03 AM
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Microstamping is the bastard fanciful cousin of fired bullet databases, upon which much treasure was wasted by multiple smarties who knew they could make it work "this time". Sort of like marxists, they were, except they finally gave up after failing to contribute to solving a single case anywhere.

Marxists never give up, but that's another subject.
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  #2580  
Old 08-13-2018, 6:08 AM
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Just wait till CA decides that since everyone buys revolvers now they need to change those as well. Every new revolver must now stamp and auto eject the casings. If it can't you cant sell it. This case has literally set the precedent they can make a law where as long as you can dream its possible its good enough for the 9th circuit.
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  #2581  
Old 08-13-2018, 12:23 PM
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Originally Posted by kemasa View Post
You don't know what they do with the thumbprint and why they do it, do you? They don't remember why either it seems.



Really? You have a thumb with a print on it, how many guns have microstamps? How well does each work?

Don't fall for it. It is basically just a gun ban.
Concur. Just another stop gap measure to chip away at gun rights until they have the vote to repeal the 2A. Once that happens, it is all over for guns.

Just look at all the dem controlled states. No mystery how they work when it comes to guns.
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  #2582  
Old 08-13-2018, 12:41 PM
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Honestly, the manufacturers should band together and allow their guns to fall off the roster. Once off, they can't renew...... It won't look good if only second-hand pistols of old design are the only ones available in ca. It would show the ban for what it is....a ban.
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  #2583  
Old 08-13-2018, 2:22 PM
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Just look at all the dem controlled states. No mystery how they work when it comes to guns.
If 3/4 of states are firmly controlled by D, guns will be the least of our problems.

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Old 08-16-2018, 9:12 AM
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Originally Posted by Solidsnake87 View Post
Honestly, the manufacturers should band together and allow their guns to fall off the roster. Once off, they can't renew...... It won't look good if only second-hand pistols of old design are the only ones available in ca. It would show the ban for what it is....a ban.
If the mfrs allow their guns to fall off, then it's not a ban, it's a voluntary act on the part of the mfr.

They have other avenues, should they wish. They could make a Dormant Commerce Clause case and bring it against the microstamping requirements:

Quote:
Originally Posted by US v. Lopez, 514 U.S. 579 (1995)
One element of our dormant Commerce Clause jurisprudence has been the principle that the States may not impose regulations that place an undue burden on interstate commerce, even where those regulations do not discriminate between in-state and out-of-state businesses
It might not be difficult to show that microstamping places an undue burden on interstate commerce, since they are apparently "impossible" to make. OTOH, it might be very difficult, IANAL. But it's a legal option (even if a poor one, perhaps), whereas voluntarily letting their guns fall off is not.

They could also go after the law on rational basis grounds, or they could use the statistics to show that gun violence hasn't appreciably changed under the roster, therefore it doesn't survive intermediate scrutiny.

Maybe they could throw all those arguments into the gumbo, and hope SCOTUS likes at least one of them -- that's a tactic I know nothing about -- might be a good idea or a terrible one.
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Old 08-16-2018, 9:19 AM
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Originally Posted by speedrrracer View Post
If the mfrs allow their guns to fall off, then it's not a ban, it's a voluntary act on the part of the mfr.
In essence, this is the Government's argument regarding manufacturers not incorporating microstamping; i.e., that it's 'voluntary' on the manufacturers' part and that the legislation was needed to 'force' the development of the technology. Thus, microstamping is not a 'ban,' but simply manufacturers failing to act in the interest of public safety.
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Old 08-16-2018, 9:48 AM
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Originally Posted by TrappedinCalifornia View Post
In essence, this is the Government's argument regarding manufacturers not incorporating microstamping; i.e., that it's 'voluntary' on the manufacturers' part and that the legislation was needed to 'force' the development of the technology. Thus, microstamping is not a 'ban,' but simply manufacturers failing to act in the interest of public safety.
And we know the 9th was all too happy to lap that BS up like a dog at its water bowl.

But I don't know of any support for that decision that would fly with SCOTUS -- there may well be a ton, I'd like to hear about it, but I don't know of any.

So let's assume a new case, not Pena, just challenging the microstamping requirement on dormant commerce clause grounds or whatever. SCOTUS sees that CA claims the mfrs can do X, the mfrs claim they can't do X or X is a massive burden on interstate commerce.

CA says "The mfrs are unwilling / lazy / stupid / whatever".
The mfrs say, "We're the mfrs, we know what's possible / massively burdensome, not you"

OK, that's a bunch of testimony. Experts flying around on both sides. What legal framework exists to help guide SCOTUS in making their decision? I don't know how to do an effective search for precedent requiring the implementation of allegedly impossible technology.

I see that burdens are permissible under the dormant commerce clause if they pass a 2-step test, but I also see that microstamping clearly doesn't pass any part of that test, so we're back to not knowing. The state is not the market participant, Congress did not give CA permission to own this space, and microstamping is not the only way to achieve the state's goal of reducing gun violence.
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Old 08-16-2018, 11:30 AM
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Originally Posted by speedrrracer View Post
...But I don't know of any support for that decision that would fly with SCOTUS -- there may well be a ton, I'd like to hear about it, but I don't know of any...
Laws That Are 'Impossible' to Follow Can Still Be Constitutional, Says California Court

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...Strip away the absurdity, and it's essentially a very technical ruling. The court acknowledges its role in making sure that people are not punished for being unable to comply with a law because it's impossible—that would be an unconstitutional violation of a person's rights. It just can't use that basis for invalidating the law itself...

Laws that are "impossible" to comply with do, in subtle ways, threaten the livelihoods of citizens as they struggle to adjust to these demands. They do challenge our freedom as citizens by attempting to force markets and innovators to dance to the government's tune—or the tune of the people with powerful government connections. There's a saying: "Nothing's impossible for the person who doesn't have to do it." Some of those people have the power to enshrine the impossible as law and leave the rest of us figuring out how to adapt.
Now, that was the California Supreme Court. Bear this line in mind...

Quote:
On appeal, the Court of Appeal observed that “the courts must defer to the Legislature’s factual determination unless it is palpably arbitrary and must uphold the challenged legislation so long as the Legislature could rationally have determined a set of facts that support it.”
So, how does that translate for SCOTUS? It sounds suspiciously like the following from Souter's dissent in United States v. Morrison (2000)...

Quote:
...Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce... The fact of such a substantial effect is not an issue for the courts in the first instance... but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact... Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied...
In other words, depending on which 'side' is in the majority on the Court, there is a working paradigm that the Court must defer to Congress in terms of "factual authority;" the assumption or presumption or premise being that Congress is better suited than the Court to investigate such matters. Now, if that sounds familiar, remember that the panel in the 9th determined...

Quote:
...We do not need to reach the question of whether these limitations fall within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers...

...it does not ban possession or use of guns manufactured without microstamping features...
Also...

Quote:
...Because legislatures are “not obligated, when enacting [their]statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review,” we should not conflate legislative findings with “evidence” in the technical sense...

...Nor do we substitute our own policy judgment for that of the legislature... When policy disagreements exist in the form of conflicting legislative “evidence,” we “owe [the legislature’s] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” ...
As a result, depending on the majority's paradigm, deference will be paid to the Legislature's "fact finding" ability being "superior" to that of the Court's. Since Microstamping does not ban ALL handguns, only new models produced since 2013, the Court could determine it is strictly an issue of commerce and States have long been allowed to be more restrictive then the Federal Government when it comes to purchasing firearms. As the decision states...

Quote:
..The microstamping restrictions on commercial manufacture and sale implicate the rights of gun owners far less than laws directly punishing the possession of handguns...
Further, Heller is seen as providing some 'cover'...

Quote:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
(emphasis mine)

That's just a cursory glance and off-the-top-of-the-head simplistics. But, you get the idea. It's not necessarily whether specific precedent exists. It's whether the majority can 'create' a 'plausible' argument based on...

Put another way, SCOTUS could simply reiterate the 9th's logic (or lack thereof), using existing statements in decisions from both the majority and dissents. Which is, at least in part, what the 9th's panel appears to have done.

Last edited by TrappedinCalifornia; 08-16-2018 at 11:58 AM..
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Old 08-16-2018, 12:22 PM
speedrrracer speedrrracer is offline
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Originally Posted by TrappedinCalifornia View Post
In other words, depending on which 'side' is in the majority on the Court, there is a working paradigm that the Court must defer to Congress in terms of "factual authority;" the assumption or presumption or premise being that Congress is better suited than the Court to investigate such matters. Now, if that sounds familiar, remember that the panel in the 9th determined...
First, thanks. Great response.

So, sure, I remember what CASC said about "impossibility" (I also know that a dissent by a now-retired Justice and a dollar won't get you a cup of coffee).
We know the CA legislature gets to decide what is what -- for California -- and the 9th will defer to their findings. That's all fine, and your presentation makes a great reminder.

But I don't see how any of that is a big deal to this theoretical new case. Such a challenge wouldn't be saying that CA isn't right about CA, it would be saying microstamping poses a severe burden on interstate commerce, and the CA legislature has no authority over that arena. It's findings (even if it had some) mean nothing in that arena, that arena is for Congress to own (with certain exceptions which don't appear to apply here). I'm not saying field preemption makes microstamping go away, just that CA is no more a source of reliable information in the interstate arena than any other source, so we transition from having to kneel before the findings of the CA legislature to being on a level playing field.

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Since Microstamping does not ban ALL handguns, only new models produced since 2013, the Court could determine it is strictly an issue of commerce
To my ears, banning all new products from any company since 2013 sounds like a very serious impact on that company's ability to conduct commerce, perhaps even a fatal blow. Does anyone think Apple would still be in business if they couldn't sell anything more recent that their 2013 offerings? And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause.

I'm not looking for the "ban" angle -- I don't think that's available here. I am looking for the "burden on interstate commerce" angle.

Totally agree on the Heller quote about conditions and qualifications on the commercial sale of arms (although I personally disagree that Heller intended that to provide cover to such a thing as microstamping), it is certainly going to be brought up and could be a stumbling block. Same vein as "longstanding" -- people are trying to figure out if that means 40 years or 50 years or what, and no way does an originalist like Scalia buy into that BS -- "longstanding" means "founding era", in my ignorant opinion.

I'm not saying, "I have found the Magic Answer and this path cannot fail to overturn microstamping". I'm saying, "I don't know of any reason why it would be impossible for this path to succeed; it seems to have a fair shot from my perspective, somebody educate me".

Quote:
It's not necessarily whether specific precedent exists. It's whether the majority can 'create' a 'plausible' argument based on...
No question about it, but if there is specific precedent, it provides that veneer of legitimacy to a decision acting in concert with that precedent. Of course you're right about the majority, but I was just trying to get the lay of the land wrt precedent before proceeding any further. In that vein, what are your favorite legal research websites, and why?
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Old 08-16-2018, 1:07 PM
sarabellum sarabellum is offline
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To my ears, banning all new products from any company since 2013 sounds like a very serious impact on that company's ability to conduct commerce, perhaps even a fatal blow. Does anyone think Apple would still be in business if they couldn't sell anything more recent that their 2013 offerings? And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause.
Under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)( a facially neutral state law is unconstitutional when “the burden imposed” on interstate commerce “is clearly excessive in relation to the putative local benefits” of the law); see also Bibb v. Navajo Freight Lines, Inc. 359 U.S. 520 (1959).
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Old 08-16-2018, 1:13 PM
speedrrracer speedrrracer is offline
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Under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)( a facially neutral state law is unconstitutional when “the burden imposed” on interstate commerce “is clearly excessive in relation to the putative local benefits” of the law); see also Bibb v. Navajo Freight Lines, Inc. 359 U.S. 520 (1959).
Good finds -- thanks; I'll start reading
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Old 08-16-2018, 1:22 PM
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Doesn't this boil down to the degree to which conditions and qualifications on commerce burden a persons right to possess or use those firearms. If you are pro 2A the burden is so great it is all but a total prohibition on the core of a protected right. If you are on the other side it is merely a commercial regulation with little effect on a right subject to regulations to promote a state's police power. Whatever happened to requiring a reasonable fit? If you simply defer to the state's finding that microstamping can work doesn't the federal judiciary abandon its duty to determine reasonableness of fit?
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Old 08-16-2018, 2:14 PM
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Originally Posted by speedrrracer View Post
... And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause...

Totally agree on the Heller quote about conditions and qualifications on the commercial sale of arms (although I personally disagree that Heller intended that to provide cover to such a thing as microstamping), it is certainly going to be brought up and could be a stumbling block...
Bear in mind that there are exceptions to precluding State laws from being able to burden interstate commerce...

Quote:
So state laws that burden interstate commerce are permissible if they pass the two-part test. There are three exceptions which, when applicable, will permit a court to find a state law is constitutional despite being discriminatory against interstate commerce.
  • First, if the state law is necessary to achieve an important state goal, the law might not run afoul of the negative implications of the Commerce Clause. In order to be necessary, there must be no other means of achieving the goal. So while a non-discriminatory law only needs to be rationally related to a legitimate state goal, a law which discriminates against interstate commerce must be necessary to achieve an important state goal in order to be upheld.
  • Second, if Congress authorized the states to pass legislation in a certain area despite the effect on interstate commerce, so long as the law does not violate other constitutional provisions, it will be upheld.
  • Finally, the “Market Participant” exception allows states to discriminate against out-of-staters insofar as the state itself is acting as a market participant. For example, when a state is engaging in the buying or selling of goods it may choose to buy from local companies at a higher price than it would pay outside the state, or sell to local companies at a lower price than it would otherwise receive. But in the absence of one of these three exceptions, laws discriminating against out-of-staters will be struck down as violating the Commerce Clause.
If you can show...

Quote:
Originally Posted by speedrrracer
...microstamping is not the only way to achieve the state's goal of reducing gun violence.
...then #1 wouldn't apply.

Since "government agencies" are exempt, you would likely be able to demonstrate...

Quote:
...The state is not the market participant...
So, #3 would likely not be available.

However, what about #2? By what authority are States 'allowed' greater restrictions on firearms and the commercial sale thereof than Federal Law? States get to set the age, determine background check requirements (PPT), carry, 'red flag' laws, waiting periods, etc. Is it simply the 10th Amendment or the absence of specific, Federal Law or Heller (presumptively Constitutional) or something else? Might there be a reason "public safety" has become almost a shibboleth for these 'gun safety' laws? Could it be an argument that while Congress didn't, specifically, 'authorize' the State, they have not passed a law 'prohibiting' States from...???

After all that, you'll have to demonstrate an actual burden on interstate commerce. The fact remains that manufacturers CAN keep their products on the roster, thereby eligible for sale; they simply can't add 'new' products without meeting the LCI, magazine disconnect, and microstamping requirements. So, you're going to have to show that maintaining a firearm on the roster and the loss of potential sales of new products is an 'undue,' not simply an 'incidental' burden. Which brings us to...

Quote:
Originally Posted by Chewy65
Doesn't this boil down to the degree to which conditions and qualifications on commerce burden a persons right to possess or use those firearms. If you are pro 2A the burden is so great it is all but a total prohibition on the core of a protected right. If you are on the other side it is merely a commercial regulation with little effect on a right subject to regulations to promote a state's police power...
Remember, you don't have to convince me. I agree it's a burden; not just on the 2nd Amendment right, but on interstate commerce as well. In fact, as I've observed before, anti-civil rights activists (including gun control proponents) are focusing on State and Local levels; not only because they have a greater chance of individual success in a greater number of regions, but also due to 'loopholes' such as the 'exceptions' I just mentioned and interpretations coming from lower courts. But, I'm pro-2nd Amendment.

Quote:
Originally Posted by speedrrracer
...what are your favorite legal research websites, and why?
I don't have any 'favorites.' Usually, I start with what I know, then move to Google with judiciously created search strings (bearing in mind that accusations have been made that FindLaw is 'gaming' Google), and go where the trail leads.

*Edited to add...

Quote:
Originally Posted by speedrrracer
Such a challenge wouldn't be saying that CA isn't right about CA, it would be saying microstamping poses a severe burden on interstate commerce, and the CA legislature has no authority over that arena.
Bear in mind that Washington, D.C. now has a microstamping requirement similar to California's; effective 1/1/18. Other States are also entertaining the possibility. So, while California may not have authority over interstate commerce, per se, they and other regions can have a decided impact. (Think online sales and state sales taxes and the interstate commerce implications.)

** Re-edited to add...

You have another issue as well. Justice Thomas no longer agrees with the "Negative Commerce Clause" (a.k.a. Dormant Commerce Clause)...

Quote:
I concur in the judgment. Although I joined C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), I no longer believe it was correctly decided. The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (Thomas, J., dissenting); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 259–265 (1987) (Scalia, J., concurring in part and dissenting in part); License Cases, 5 How. 504, 578–586 (1847) (Taney, C. J.). As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.
In other words, you'd be asking one of the five we'd need to 'hang his hat' on something that, as of 2007, he believes has no basis in the Constitution.

Last edited by TrappedinCalifornia; 08-16-2018 at 2:48 PM..
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Old 08-16-2018, 4:29 PM
speedrrracer speedrrracer is offline
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However, what about #2?
I read #2 as:

"Second, if Congress authorized the states to pass legislation in a certain area despite the effect on interstate commerce, so long as the law does not violate other constitutional provisions, it will be upheld."

I know of no Congressional authorization to the states generally, or to CA specifically, stating that "microstamping, despite it's impact on interstate commerce, can be required for pistol sales via legislation" or anything similar. I could well be wrong, but I certainly can find nothing of the sort, so I'm going to run with the assumption that no such authorization exists. Ergo, they don't pass #2.

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Originally Posted by TrappedinCalifornia View Post
" By what authority are States 'allowed' greater restrictions on firearms and the commercial sale thereof than Federal Law? (snip)
Is it the absence of specific, Federal Law
Since we're talking commerce clause, yes, it's the absence of federal law pertaining to this specific issue (the so-called express preemption), and the absence of federal law pertaining to this area (implied preemption) and the absence of a sufficiently large quantity of Congressional legislation in this general area or an exceptionally broad bit of Congressional legislation over this area which suggests Congress just wants the whole damn pie to itself (field preemption) that allows States to do this.

Quote:
Might there be a reason "public safety" has become almost a shibboleth for these 'gun safety' laws?
No better way to attack a civil right than via the safety angle, imo.

Quote:
After all that, you'll have to demonstrate an actual burden on interstate commerce. The fact remains that manufacturers CAN keep their products on the roster, thereby eligible for sale; they simply can't add 'new' products without meeting the LCI, magazine disconnect, and microstamping requirements.
I'm guessing this part will be easy. CA is a huge market -- 4th or 5th largest economy on planet Earth. The mfrs are invested in their new products for a variety of reasons, but they cannot recoup those investments in CA, because this law bans them from selling their new products here. I imagine any beancounter worth his salt could get you a spreadsheet in under a minute showing the financial impact sustained from having to sell only these feature-poor, less safe, less efficient "older" models compared to their expected sales projections for the amazing, efficient, ultra-safe, latest-greatest models.

Quote:
So, you're going to have to show that maintaining a firearm on the roster and the loss of potential sales of new products is an 'undue,' not simply an 'incidental' burden.
I'm not sure this is true, and I actually think it might be one of the "coolest" things about this approach. From your link:

Quote:
If the law only incidentally burdens interstate commerce, or if the law is nondiscriminatory, the court will balance whether the benefits of the state’s interest are outweighed by the burden on state commerce, by looking to the following: Are there less restrictive alternatives? Are there any conflicts with other states’ regulations?
So first, obviously there are conflicts with other states, since those states allow these guns, and CA does not, creating further problems with interstate commerce, since a vendor in state X cannot offer a non-roster gun for sale via an FFL in CA.

Less restrictive alternatives? Than a tech which doesn't exist? Why yes, choose a tech which does exist.

And generally, the state's interest: reducing gun violence / whatever. Here's is where you might get a free whack at them: You can produce the stats showing that the microstamping law, throughout its existence, has failed to have a significant effect on gun violence / crimes solved / whatever, therefore any impact on interstate commerce is too great an impact, since the state is getting nothing in return. The law has had a negative effect on interstate commerce -- this can be proven easily by the mfrs. The law cannot be shown to have helped in any way whatsoever, since there are no microstamped guns. It's guaranteed that we win this little corner of the overall argument, at least. Not our fault none of these magic guns exist, but it is their fault that the negative impact on interstate commerce exists.


Quote:
Bear in mind that Washington, D.C. now has a microstamping requirement similar to California's; effective 1/1/18. Other States are also entertaining the possibility. So, while California may not have authority over interstate commerce, per se, they and other regions can have a decided impact. (Think online sales and state sales taxes and the interstate commerce implications.)
Maybe. Or maybe these additional states just add to the damage caused to interstate commerce. Part of the whole point of Congress regulating interstate commerce is to prevent a patchwork quilt of 50 different sets of laws. And still none of the states has any authority over interstate commerce, so they can't force us to kneel before their "findings" at SCOTUS, so again, if the statistics show their rosters / microstamps aren't reducing gun violence / number of solved gun crimes (or whatever), then we now have a club we can use to beat them over the head.

Quote:
You have another issue as well. Justice Thomas no longer agrees with the "Negative Commerce Clause" (a.k.a. Dormant Commerce Clause)...

In other words, you'd be asking one of the five we'd need to 'hang his hat' on something that, as of 2007, he believes has no basis in the Constitution.
That's a great point. Hopefully, this is why we have concurring opinions.
ETA: So you're implying that none of the 4 liberals on the Court would agree? I'm shocked at such cynicism! Shocked!

Edited again: For Thomas, we can play the intermediate scrutiny card, which kinda lives in the "incidental burden" portion discussed above. The law burdens conduct under the 2A (I can't get the safest, most reliable guns with the latest features), yet provides zero benefit to the state (demonstrably true, again, since there are no microstamped guns in existence).
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Old 08-16-2018, 5:55 PM
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abinsinia abinsinia is offline
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I was just thinking how recently there's a been some guns released like the M&P 380 Shield EZ 2.0 where they make it very easy to rack the slide.

This is a good example of a gun where some people with disabilities or someone who isn't that strong might really want to get that gun over the original Shield or some other gun.

There are also recoil reducing technologies like the Walther CCP which have reduced recoil , and again that's something someone with disabilities or without much strength might want.

So for example, the first case was the dual tone guns, but you could make it people with disabilities.
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Old 08-16-2018, 9:14 PM
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TrappedinCalifornia TrappedinCalifornia is offline
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I know of no Congressional authorization to the states generally, or to CA specifically, stating that "microstamping, despite it's impact on interstate commerce, can be required for pistol sales via legislation" or anything similar.
The hurdle you have to get over isn't whether they specifically authorized this or that. Just like States can impact interstate trade on firearms with age restrictions, so-called "assault weapons" restrictions, etc., you'd have to get past how they do not specifically prohibit them from doing so. Remember, the 10th Amendment reads...

Quote:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, in not, specifically prohibiting it, the Government could argue that it is 'authorized' (by the Constitution - e.g., "the Federal Government") to do so. Or, as you suggest...

Quote:
Originally Posted by speedrrracer
Since we're talking commerce clause, yes, it's the absence of federal law pertaining to this specific issue (the so-called express preemption), and the absence of federal law pertaining to this area (implied preemption) and the absence of a sufficiently large quantity of Congressional legislation in this general area or an exceptionally broad bit of Congressional legislation over this area which suggests Congress just wants the whole damn pie to itself (field preemption) that allows States to do this.
Bear in mind that, among the five you'd be depending on, there is a strong States' rights paradigm. Would there be sufficient desire to impinge upon the powers of the State to 'regulate public safety' in the interest of interstate commerce related to 'modern' (post-2013) handgun sales; especially when the Government's declared intent is to 'advance the technology' through legislation? Is it "nonexistent tech" or is it argued to be "too costly" from the manufacturers' perspective?

Put another way, California is arguing that since the patents exist, the tech exists; i.e., simply because manufacturers haven't implemented it, doesn't mean the tech is 'nonexistent.' Thus, the intent of the legislation is to prompt manufacturers to adopt the technology as part of production. Remember...

Quote:
Gun makers acknowledge micro stamping is feasible, but say it can’t possibly be done in two separate places in a handgun’s chamber. But the Giffords Law Center to Prevent Gun Violence, which filed arguments in support of the law, said dual stamping has been tested and certified, with the inventor submitting a declaration to that effect during current legal proceedings.
I think the "arguments in support of the law" to which they are referring is found here. (Note page 15 in particular.) It's not Peña, but it is directly related in terms of the existence of "microstamping technology."

Quote:
Originally Posted by speedrrracer
...they cannot recoup those investments in CA, because this law bans them from selling their new products here...
Bear in mind that the contention is that this is NOT a 'ban.' It is a legislative requirement to incorporate 'existing' technology in the interest of public safety. If the manufacturers refuse to incorporate such technology, that is, according to your own assertion... a voluntary act on the part of the manufacturer.

The bottom line is that you're going to have to be careful in terms of argue the tech is "nonexistent." Is it 'nonexistent' because it doesn't exist or is it 'nonexistent' because manufacturers haven't implemented it?

Quote:
Originally Posted by speedrrracer
So first, obviously there are conflicts with other states, since those states allow these guns, and CA does not, creating further problems with interstate commerce, since a vendor in state X cannot offer a non-roster gun for sale via an FFL in CA.
How many 'products' exist which individual States restrict sales on, creating the type of 'conflict' you cite? If you're going to argue interstate commerce, it's no longer about the specific product as a "Constitutional right," but whether that product complies with the laws of an individual State and whether the restrictions on the product are unrealistically prohibitive from an economic perspective.

For instance, are there pesticides authorized for use in some States, but prohibited in others? Can one purchase certain NFA items in some States, but not others? Do automobiles have to comply with California emissions standards nationwide or only in those States which have adopted those standards? What about so-called "assault weapons;" i.e., can you purchase certain configurations in other States which are precluded from sale in California or New York? How many products might be considered 'conflicted' in terms of their availability in certain States?

Quote:
Originally Posted by speedrrracer
You can produce the stats showing that the microstamping law, throughout its existence, has failed to have a significant effect on gun violence / crimes solved / whatever, therefore any impact on interstate commerce is too great an impact, since the state is getting nothing in return.
Doesn't the standard you suggest potentially preclude virtually any 'new' technology?

Quote:
Originally Posted by speedrrracer
The law has had a negative effect on interstate commerce -- this can be proven easily by the mfrs. The law cannot be shown to have helped in any way whatsoever, since there are no microstamped guns. It's guaranteed that we win this little corner of the overall argument, at least. Not our fault none of these magic guns exist, but it is their fault that the negative impact on interstate commerce exists.
If you conveniently ignore the Legislative intent, you might be correct. It bears repeating, California's argument is that the tech exists and they have a 'right' to promote its incorporation into products in the interest of public safety. It's been the manufacturers' choice not to incorporate it. Thus, any 'negative effect' is not a result of the law, but a result of noncompliance on the part of the manufacturers.

Quote:
Originally Posted by speedrrracer
Part of the whole point of Congress regulating interstate commerce is to prevent a patchwork quilt of 50 different sets of laws.
Again, don't we already have that in relation to many products? Isn't that precisely where we've been headed in terms of the 2nd Amendment 'right to keep and bear' with the Supreme Court's resistance to new cases post- Heller and McDonald and the deliberate lower court "misreadings and misinterpretations" of both?

Quote:
Originally Posted by speedrrracer
The law burdens conduct under the 2A (I can't get the safest, most reliable guns with the latest features), yet provides zero benefit to the state (demonstrably true, again, since there are no microstamped guns in existence).
I keep seeing this "safest" gun argument and I'm not sure proponents of that approach fully appreciate the 'double edge' it potentially represents. Let's say you win your point at SCOTUS regarding availability of the newest models in the interest of public safety. Could the State then come back and 'ban' older models as "unsafe," because the older models are not "as safe" as modern versions due to lacking 'modern technology?' Would we then end up down a similar rabbit hole to the one we are exploring now?

Bear in mind that I'm playing Devil's Advocate with all of this. In principle, I largely agree with you. What I'm pointing out is that the 'success' you posit is based on adopting a series of assumptions and premises which are not universally held or even 'absolutely true' in the strictest sense and they don't exist in a vacuum of legal legerdemain.
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