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

[riftol]

Hence, my hypothesis forces me to predict a loss here.

^^^

Unhappily, I too predict a loss.


I think that Judge Mueller will hold that the microstamping requirement does not infringe the Second Amendment's "right of the people to keep and bear Arms."

She will uphold it as a permissible requirement enacted by the California legislature pursuant to its police power to promote and protect public safety.



The hypothesis I'm operating under posits a predictive mechanism (that the political inclination of the judge will determine the judge's decision, most especially in the absence of strongly controlling jurisprudence), and it is falsifiable (a correctness rate equivalent to or worse than that of chance is cause to discard the hypothesis).

^^^

The overarching, controlling jurisprudence in this case is the immense body of state statutes that comprise the several states' police power.

The more specific controlling jurisprudence is as voluminous as it is weighty; it consists of the thousands of long established laws regulating firearms that the states, pursuant to their police power, have enacted to safeguard public safety.

It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code.

COMMONWEALTH vs. CYRUS ALGER (1851)

Justice Shaw:




The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious, that all well regulated minds will regard it as reasonable.

Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other imcombustible material.

HENNING JACOBSON, Plff. in Err., v. COMMONWEALTH OF MASSACHUSETTS. (1905)

Mr. Justice Harlan delivered the opinion of the Court.


The authority of the state to enact this statute is to be referred to what is commonly called the police power,—a power which the state did not surrender when becoming a member of the Union under the Constitution.


Although this court has refrained from any attempt to define the limits of that power...the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.


It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety.


The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.


We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court.


But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.


This court has more than once recognized it as a fundamental principle that 'persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.


In Crowley v. Christensen...we said: 'The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.

Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.

The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Com. v. Alger, 7 Cush. 84.


There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.

But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

[IVC]

Hence, my hypothesis forces me to predict a loss here.

What reasoning do you expect in the ruling? Surely you don't think she'll just say "I'm more liberal than conservative so I'll rule against 2A."

Issuing a ruling is still mostly a matter of law and the judge in this case asked for and received additional briefs on microstamping. I cannot imagine microstamping and the ever shrinking roster boosting government's position.

[Jeffersonian]

Evidence? All I have at the moment is some rather crude generalities. The more specific a picture that can be built, the better.

I'm not going to expand upon it further. I'd wager that there is a draft opinion granting defendant's motion and she is seeking further briefing to buttress her opinion against the appeal. Hope I'm wrong.

[IVC]

I'm not going to expand upon it further. I'd wager that there is a draft opinion granting defendant's motion and she is seeking further briefing to buttress her opinion against the appeal. Hope I'm wrong.

She was asking all sorts of questions that would relate microstamping to a categorical ban on modern handguns.

While I'm not particularly optimistic at District Courts in deep blue states, there still must be *some* reasoning for granting the defendant's motion. Most of the dodges in the past were about the "core of the right is at home." However, this case is about "possession for self defense in the home" and clearly no modern semi-auto can get on the roster. Not a single one.

This case is as close to Heller as it can be.

[Maestro Pistolero]

She was asking all sorts of questions that would relate microstamping to a categorical ban on modern handguns.

While I'm not particularly optimistic at District Courts in deep blue states, there still must be *some* reasoning for granting the defendant's motion. Most of the dodges in the past were about the "core of the right is at home." However, this case is about "possession for self defense in the home" and clearly no modern semi-auto can get on the roster. Not a single one.

This case is as close to Heller as it can be.

Agreed. However much weight one might give the common use test introduced in Heller, surely eliminating every new modern semi-auto from the approved list fails to pass muster. It is a categorical ban on weapons which lack a feature that isn't even generally available in the marketplace, and that manufacturers are not going to be including in their designs.

The only approved weapons may be relatively common now, but they will become gradually uncommon in the national marketplace. Example: Few gun buyers seek out Gen 3 Glocks outside of CA or perhaps a couple of other roster states. The only way this scheme ends is with Californians having access to only uncommon weapons, turning the common use test completely on its head.

[RobertMW]

Agreed. However much weight one might give the common use test introduced in Heller, surely eliminating every new modern semi-auto from the approved list fails to pass muster. It is a categorical ban on weapons which lack a feature that isn't even generally available in the marketplace, and that manufacturers are not going to be including in their designs.

But what if the ONLY thing that gets turned over is the micro-stamping, and not things like the loaded indicators, mag locks, or the roster itself? If the whole thing isn't dismantled, I can still see the DOJ finding many excuses to deny a multitude of new firearms from ever getting on the list, even IF manufacturers decide to start making CA compliant versions of more of their guns, we still get stuck with a minority of the market, or possibly never see the list grow at all. There are fewer reasons for manufacturers to design to the curtails of CA laws.

[IVC]

But what if the ONLY thing that gets turned over is the micro-stamping, and not things like the loaded indicators, mag locks, or the roster itself?

Doesn't work that way. A judge cannot modify a law. It's a package deal.

Besides, the complaint includes a disabled plaintiff who requires ambidextrous controls of Gen 4 Glocks. Gen 4 doesn't have LCI or magazine disconnect so even if just microstamping could be removed, it wouldn't be relevant.

[ke6guj]

Doesn't work that way. A judge cannot modify a law. It's a package deal.

sure they can, that is why they have severability clauses in many laws.

I could also see a judge just ruling that the AG was incorrect in certifying that microstamping was available to the manfacturers are required by the law.

Besides, the complaint includes a disabled plaintiff who requires ambidextrous controls of Gen 4 Glocks. Gen 4 doesn't have LCI or magazine disconnect so even if just microstamping could be removed, it wouldn't be relevant.

that is why you try to pack your lawsuit with many reasons to get the law tossed.

[IVC]

sure they can, that is why they have severability clauses in many laws.

You're probably thinking "contracts," not "laws."

[ke6guj]

You're probably thinking "contracts," not "laws."

nope, thinking laws.

for instance, this was in SB23, the 2000 AW ban.


SEC. 13. If any phrase, clause, sentence, section, or provision of
this act or application thereof is held invalid as to any person or
circumstance, such invalidity shall not affect any other phrase,
clause, sentence, section, provision, or application of this act,
that can be given effect without the invalid phrase, clause,
sentence, section, provision, or application and to this end the
provisions of the act are declared to be severable.

[kcbrown]

What reasoning do you expect in the ruling? Surely you don't think she'll just say "I'm more liberal than conservative so I'll rule against 2A."



Issuing a ruling is still mostly a matter of law and the judge in this case asked for and received additional briefs on microstamping. I cannot imagine microstamping and the ever shrinking roster boosting government's position.

I expect her to say that as long as there exist firearms on the roster, the right to keep and bear arms isn't being infringed (more precisely, that the law and its implementation pass intermediate scrutiny), since the acquisition of arms would not be entirely foreclosed. This would be a variation of the argument used to uphold laws preventing gun stores from existing in some localities (the "justification" there is that you can go someplace else. Here, it would be that you could buy something else). After all, the 2nd Amendment doesn't protect a right to "keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

And as to the question of whether or not the law furthers "public safety", I expect she would say that such a factual determination is for the legislature, not the courts, to decide, and that since the legislature passed the law for the purpose of improving "public safety", it must surely, then, have decided that the law does in fact improve "public safety".


Hey, you asked...

[CG of MP]

I expect her to say that as long as there exist firearms on the roster, the right to keep and bear arms isn't being infringed (more precisely, that the law and its implementation pass intermediate scrutiny), since the acquisition of arms would not be entirely foreclosed. ...

Does that not fly in the face of the SCOTUS opinion though? I mean if things as diverse as rifles, shotguns, and handguns are good enough for the SCOTUS and are not allowed to be foreclosed because one or the other is available, then why would they allow this?

[kcbrown]

Does that not fly in the face of the SCOTUS opinion though? I mean if things as diverse as rifles, shotguns, and handguns are good enough for the SCOTUS and are not allowed to be foreclosed because one or the other is available, then why would they allow this?

Because the court could simply claim that all SCOTUS was saying is that the availability of other classes of arms does not mean a specific class (handguns) can be entirely foreclosed, and that if SCOTUS wishes that logic to apply to arms within a class, it will "have to say so more plainly".

Put another way, if any handguns can be justifiably restricted from sale/ownership/etc., then liberal courts are going to insist that the right to purchase/own handguns is not "substantially burdened" unless they are all so restricted, i.e., that the class itself is banned as it was in Heller. They will claim that the availability of one handgun, whatever its characteristics may be, is sufficient to "satisfy the right".


Look, you guys are expecting these anti-2A courts to read Heller in the same way we are, and they just won't. They will read it in the most restrictive way possible. They will take passages out of context, mangle definitions, invert logic, and all the other things that comprise the "judicial reasoning" that courts love to use to justify the decisions they wish to reach.

You guys are presuming the courts are objective actors in all this, and that they somehow are tightly constrained in the decisions they can issue, when they simply aren't. Look at the district court's decision in Fyock for a prime example of this. Look at Colorado Outfitters Association, et. al. v Hickenlooper for another.

[IVC]

I expect her to say that as long as there exist firearms on the roster, the right to keep and bear arms isn't being infringed (more precisely, that the law and its implementation pass intermediate scrutiny), since the acquisition of arms would not be entirely foreclosed.

That's probably the closest to reality that the judge could get, but I believe that microstamping makes that somewhat of a stretch because *no semi auto* handgun can be added to the roster - a categorical ban with the only escape clause being the grandfathered handguns. This in turn makes the "safety" argument difficult since allegedly "unsafe" handguns remain on the roster.

However, you are probably right that *if* she is going to uphold the roster, she will use *precisely* the method you describe.

[IVC]

You guys are presuming the courts are objective actors in all this, and that they somehow are tightly constrained in the decisions they can issue, when they simply aren't. Look at the district court's decision in Fyock for a prime example of this. Look at Colorado Outfitters Association, et. al. v Hickenlooper for another.

We are fighting on several unrelated fronts.

The battle for "keep" was won, so we are in the cleanup phase where violations on "possession in the home" are being cleaned up, such as striking down of the various S.F. ordinances.

The battle for "bear" is in it's final and critical stages with Moore and now Peruta. This is a very far reaching battle that is in many ways the most damaging to the anti gun movement because of its ability to normalize guns in public.

The battle for "arms" is just beginning, where the lower courts are stumbling all over in trying to define what arms are and aren't, what types of sales and registration burdens can and cannot be had, etc. Since Pena is in this last category, I wouldn't read too much into what the lower courts are doing - it went that way for *every* other type of battle we fought and eventually won.