Peņa v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[Tincon]

Your disagreeing with the wrong premise. You are arguing that "rational basis" should mean something other than "the legislature says its rational".

Unfortunately that is not the case. "Rational basis" means the courts defer to legislatures as to what "rational" is (in CA, when it comes to the 2A).

No, it does not.

[fizux]

No, it does not.

When it comes to 2A in CA, I think curtisfong is correct. For any other regulation (whether implicating a right or otherwise), rational basis has to be at least vaguely rational.

[RipVanWinkle]

1. The Supreme Court is contradicting itself in its own opinion.
2. The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
3. The Supreme Court doesn't mean what it says.

Which is it?

Possibly 2.?

I was investigating intermediate scrutiny in 1A cases, per FGG's earlier questions, and I came across a couple of academic articles on that topic focusing on problems with levels of scrutiny. These articles are about 1A issues, but the development of levels of scrutiny is a lot more extensive than in 2A cases. Both articles are critical of the levels of scrutiny approach to legal analysis.

The first article gives a brief history of the subject and contains a small empirical study suggesting that despite a paucity of Supreme Court guidance appellate courts have forged ahead, with less than optimal results. Worth reading if you've a high tolerance for ambiguity and counter factual conditionals! I'm including a link and a quote of the abstract:

http://illinoislawreview.org/wp-content/ilr-content/articles/2007/3/Bhagwat.pdf

The second article, by Eugene Volokh, is here:

http://www2.law.ucla.edu/volokh/scrutiny.htm

I don't know whether these academic articles have any influence on judges, but it's possible that there's some dissatisfaction with the levels of scrutiny approach among the judiciary, and that's appearing in the Heller decision. Scalia may be just being more inscrutable than FGG.

[elSquid]

This is not "devil's advocacy" since it's one of the points our side is making.

Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?

Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?

It's when it comes to the elevated levels of scrutiny that the state must start proving its assertions and must start considering alternative less restrictive ways of achieving the same goal. At that time the state doesn't control the narrative anymore and their claim of marginal and non-detectable safety improvement is measured against the massive ban on modern semi automatic handguns.

My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale. As mentioned before, the largest handgun manufacturers in the country - Ruger and S&W - have adapted their designs to meet roster requirements. SIG actually makes handguns specifically targeted for CA.

I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?

I also wonder if the "massive ban" claim really devolves into "I have a Constitutional right to own whatever handgun I want for personal defense."
How will the courts view that?

An example: Norinco makes pretty neat, good quality 1911 clones. Unfortunately not only are those handguns not on the roster, they can't be legally imported into the country. Does my right to buy a new Norinco not only invalidate state law, but federal trade laws as well? Would the courts ever say "yes"?

-- Michael

[elSquid]

How is a retired LEO (that received the same training and is required to requalify annually according to the same standards as active police officers) less safe than an active officer? Does that interest in public safety outweigh the burden on the 2A right?

How about current active/reserve military members that shoot waaay more than most, if not all, members of SFPD? How about USPSA competitors looking for a new Open Division gun -- are they somehow safer with a LCI?

Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...

Me thinks this is akin to creating a list of "certified not-unsafe" pr0n. Submit 3 copies of each video, magazine, etc., to CA DOJ, and pay $200/yr. Oh yeah, and you can only buy/sell pr0n through a CA DOJ approved dealer that updates a statewide registry of pr0n possessors with the specific material acquired by the buyer; delivery only after a background check, DROS fee, and 10-day wait -- we wouldn't want those registered sex offenders to have access to naughty stuff. Its for the children!
... wayddaminit ... didn't SF try prior restraint with pr0n already? Isn't the burden on the gov't to file an action to enjoin with clear and convincing evidence? Cooper v. Mitchell Bros., 454 U.S. 90 (1981) [Applying U.S. Const. standard], followed by Cooper v. Mitchell Bros., 128 Cal.App.3d 937 (1982) [State standards no stricter than U.S. Const.].

Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?

-- Michael

[IVC]

Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?

No, it doesn't affect the firearm and doesn't add any measurable cost.

Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?

It's unconstitutional because of the "current problems with the implementation," or to be more precise, because such handguns don't exist at all. If it's worked out and it consists of some simple modification of the firing pin and chamber it would most likely be constitutional (and irrelevant). As long as it is not used to limit access to spare parts or to start registration of barrels and firing pins.

My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale.

This is the same argument as "magazine capacity." How many are "sufficient" before it becomes an infringement?

I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?

This is the crux of the disagreement. It's not "how many are sufficient" (the most restrictive way to implement a policy), but "why are some handguns that are bona fide suitable for self defense banned" (the least restrictive way to implement a policy.)

The state must justify the ban and the justification for the ban cannot be reversed by requiring us to justify a need. That's the main change post-Heller when 2A was recognized as pertaining to an individual civil right and the simple "rational basis" is no longer sufficient. The burden is now on the state.

[curtisfong]

No, it does not.

I think Breyer's dissent in Heller perfectly captures the position of CA courts. And until SCOTUS says otherwise with more clarity, this will stand.

[kcbrown]

Let me walk you through it.

When the dissent says:



he's referring to the "interest-balancing inquiry" he has just described in the immediately preceding sentence:



Right? (That's asking for a simple yes or no by the way.)

Yes, of course. But the problem here is that he has characterized that "interest-balancing inquiry" as being precisely what the application of strict scrutiny to gun regulations simplifies to. You can't simply dismiss the "interest-balancing inquiry" itself. You have to address the claim that strict scrutiny when applied to gun laws becomes the very interest-balancing inquiry that the majority objects to.

If the dissent is correct in that characterization, then by objecting to that "interest-balancing inquiry", the Supreme Court is objecting to the application of strict scrutiny to gun laws.

So everything revolves around whether or not the dissent's characterization of the application of strict scrutiny to gun laws is correct. And that obviously leads to the question of, if the characterization is incorrect, how that characterization is incorrect in such a way that the Supreme Court would object to it but not to strict scrutiny itself.

The problem for the interpretation you seem to subscribe to here (or that, at the very least, you appear to be putting forth) is that there is no indication whatsoever that the dissent's description of strict scrutiny as applied to gun laws is incorrect in any way, much less in a way that makes a difference here. Nothing stated by the majority indicates any shortcomings whatsoever of the characterization in question.

Indeed, the Court's very statements about what they object to do in fact apply to the traditional methods of scrutiny, namely that they are used to "decide, on a case by case basis, whether the right is really worth insisting upon", for they are used to determine neither the scope of the right nor whether the law in question infringes upon the right (for if that were the question being answered, then the issue of "government interest" would not enter into the equation at all), and that leaves only whether or not the right prevails. But insisting upon the right means the right must prevail when it is infringed upon by a law. Since traditional methods of scrutiny are used to decide whether or not to uphold the law anyway, it is in fact a means to decide, on a case by case basis, whether the right is really worth insisting upon. And that is something the Supreme Court explicitly objects to in Heller.


At the end of the day, it is all about this simple fact: any judicial method of analysis which allows some laws to infringe upon the right while disallowing others is, in fact, a method that is used to determine on a case by case basis whether the right is really worth insisting upon. One simply cannot claim that the right is being insisted upon while simultaneously allowing infringement of it! The latter contradicts the former, and that's that.

The Supreme Court could even state up front that traditional scrutiny methods do not conflict with the basis of their objection to dissent's "interest balancing" test, but that alone doesn't make it so. The Supreme Court could state that the moon is made of cheese, but that would not make it any less false. Argument by assertion is just as invalid when used by the Supreme Court as it is when used by anyone else.

[fizux]

Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...

You don't need an exception to buy a book that isn't on the "not unsafe book" roster. I think the proper analysis is that firearms should be presumptively lawful, and the State should have the burden of showing with clear and convincing evidence that a particular model is "dangerous" {defined in parallel with obscenity; devoid of artistic, historical, or self defense value, etc.}. So a claymore mine is probably going to be an easy win, but it's going to be up to the State to prove that Glock gen4s are "dangerous," not our job to pay Glock to prove to DOJ that the gun meets arbitrary lines drawn in the sand by folks that have never touched a firearm.

Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?

We only wish. Bow-chicka-bow-bow.

[kcbrown]

Between you, me, and the internet, I think you are right about this. But as I can't fit any of that into a legal argument, I'm going with SCOTUS has rejected intermediate scrutiny. All the counter arguments (including FGG's) require that you make one of those 3 impossible arguments (well, not logically impossible, but a lawyer would look very silly making them).

I figured by "impossible arguments", you were referring to arguments that were logically inconsistent. I agree, all of the counterarguments do require insisting upon illogic in that way. Or, at least, nobody has managed to put forth a counterargument that withstands the rigors of a logical analysis.

I won't dismiss out of hand the possibility of such a counterargument, but I see absolutely no flaw in the logic of the argument I've put forth on this, and it is, to my knowledge, comprehensive.

[Tincon]

I figured by "impossible arguments", you were referring to arguments that were logically inconsistent.

Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.

[curtisfong]

Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.

Which is exactly why travesties like Cruikshank will NEVER be reversed. The level of arrogance and self proclaimed infallibility displayed by judges (and the court system as a whole) always rankles.

[FABIO GETS GOOSED!!!]

You're bloviating again. You challenged me twice, here:

I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.

and here:

Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

Then you said I had to show that the "interest balancing inquiry" described in the text you quoted and bolded is the same thing as the "proportionality approach" the majority objects to in the text I quoted:

It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is.

That's what I'm doing so just answer the simple questions that I am asking and stop bloviating.

Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.

[kcbrown]

The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.

In the context of gun laws, yes, that is the approach being endorsed by the dissent.

[Tincon]

In the context of gun laws, yes, that is the approach being endorsed by the dissent.

I'd have to disagree. Every level of scrutiny asks more than one question.

The answer must be that the question of whether "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence" is part of the intermediate scrutiny ("interest-balancing inquiry") standard that SCOTUS has rejected.

Sorry to interject.