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

[kcbrown]

What the dissent says in the text bolded by you is another way of saying the same thing he says in the text quoted by the majority. Both describe the dissent's "'proportionality' approach" and it is the dissent who labels that approach an "interest-balancing inquiry."

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"?

I'll quote the relevant bit again for reference:

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.

So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? 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. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.

The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.

But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:

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?

[kcbrown]

"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?

No. Incorrect in the sense of not being a match with the actual, real-world application of strict scrutiny to gun regulations and other similar regulations where the state cites public safety as its compelling interest.

[tabrisnet]

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"?

I'll quote the relevant bit again for reference:

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.

So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? 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. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.

The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.

But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:

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?

yipe. I'm so far thinking, from the various readings here, that it's #2. that is, scrutiny as such is not expected to apply to the 2A.

And saying that strict scrutiny requires an interest balancing approach is a very odd reading to me.
B/c interest balancing is aka "court & prosecutorial discretion" and "on a case by case basis". case by case basis is also known as "the law usually is right".

[Tincon]

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.

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).

FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.

[hardlyworking]

Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.

I agree, and sadly I haven't seen Navy In Rwanda here in a while. As aggravating as FGG can be at times, think of him as your debate coach, warning you of the ways you are about to get hammered in front of a judge who does not share your views on the presumption of liberty and a highly regulated government with the balance of power resting on The People.

[elSquid]

<Devil'sAdvocacyContinues>

In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. Outside a relatively small group of firearms enthusiasts, many handgun owners do not seek additional handgun training. Most handgun owners in this state do not compete in formal handgun competition. In fact, most handgun owners are not enthusiasts and do not regularly practice with their firearm at all; for these folks, a handgun is an appliance no different from a natural gas stove or a water heater.

Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe')

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.

</Devil'sAdvocacyContinues>

If this roster is addressing safety, then how will micro stamping make the handgun safer?

<Devil'sAdvocacyContinues>

Microstamping isn't about making safer handguns.

</Devil'sAdvocacyContinues>

-- Michael

[REH]

I believe you're asking about a 14th Amendment equal protection challenge. As Orwell said "All animals are equal, but some animals are more equal than others", and in this country the ruling class and their minions are generally considered more equal than we in the peasant class and thus not subject to the same rules. That Orwellian "All animals are equal, but some animals are more equal than others" description of "equal" seems to satisfy the requirements of the equal protection clause in the eyes of most judges and nearly all legislators (who along with LEOs, benefit from their "more equal" class status).

If the the 14th is not considered applicable by the ruling class, what about the position that micro stamping to enhance the safety of a firearm? The micro stamping at minimum should be tossed out by the court

[FABIO GETS GOOSED!!!]

Let me walk you through it.

When the dissent says:

I would simply adopt such an interest-balancing inquiry explicitly.

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

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.

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

[FABIO GETS GOOSED!!!]

FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.

No problem. I looked back in this thread and I could have ratcheted things down a notch, sorry about that haha. Let me finish this exchange with kcbrown before moving on.

[IVC]

<Devil'sAdvocacyContinues>

Microstamping isn't about making safer handguns.

</Devil'sAdvocacyContinues>

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

[IVC]

Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe').

The state easily passes "Rational Basis," no question about that.

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.

We don't need to prove that the "state is wrong," just that their approach is too restrictive since there are other ways to achieve the same (marginal/non-detectable) improvement in safety.

[fizux]

<Devil'sAdvocacyContinues>

In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. ....

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.

</Devil'sAdvocacyContinues>

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?

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.].

[fizux]

The state easily passes "Rational Basis," no question about that.

I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?

[IVC]

Rational Basis is an extremely low standard where legislators are presumed to be acting in a rational manner. A challenger would have all the burden of proof to the contrary.

[curtisfong]

I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?

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).