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

[RobertMW]

You might want to take another look at the opinion, I think you're misstating the analysis.

It's really just splitting hairs though. The opinion is that the roster does not burden the 2A, therefore the second half of the two-step doesn't need to be used. Thus, it passes under rational scrutiny.

The problem is where judges are putting the trigger point on the sliding scale of 0 to "lol you think you have a right to that?"

This judge seems to think that the needle has to rise far beyond where it is, in order to consider it a burden. The problem with this, the needle is racing towards the point of heavily burdened, but it can't stop on a dime, at the time they do act on laws "burdening" the right, it will be past the point of mattering, it will already have been effectively destroyed.

Some judges would probably be fine with that.

Those judges need to be removed from their position of power.

[Chewy65]

She wouldn't and she didn't.

The point is that she didn't say "this is a 2A issue, but here is why this regulation passes elevated scrutiny." Instead, she said "this is not a 2A issue so rational basis applies."

We are all still waiting on SCOTUS to confirm the framework.

I don' know if that is really what the Court meant, but, to paraphrase the judge, it is what she wrote.

[i]

Order, p. 22, 14-16.

If you read this in context with the immediately preceeding analysis, it does seem that she may have meant that CA may limit the exercise of the right to bear in performance of its police powers so long as it does not cut off that right. IOW, it is a 2A issue, and in her opinion any burden is constitutional so lontg as it is not so sever that the right to bear is totally obliterated. I don't get it, but that is my interpretation of what she is saying.\

This is clearly a 2A issue and the determinative factor is if the burden withstands the appropriate scrutiny, but this judge refuses to apply any standard of scrutiny.

[ronlglock]

So the district court says on page 26, lines 12-15:

"However, California residents, including those who have no out-of-state family, are not prevented from possessing unlisted guns, receiving them as intra-family gifts from in-state relatives, or bringing them into the state for noncommercial purposes."

Has the judge just given us permission to receive a gun from a friend in another state without PPT background checks and then bring it back into California to register as long as it's for personal use?

[FABIO GETS GOOSED!!!]

I'm not sure I'd say "this is not a 2A issue" is equivalent to "the 2A right is not burdened" but it's good you cleared that up lol. I'm not sure that I'd say "presumptively lawful" is "rational basis" either, the opinion ostensibly tracks Heller on that.

[FABIO GETS GOOSED!!!]

The opinion is that the roster does not burden the 2A, therefore the second half of the two-step doesn't need to be used. Thus, it passes under rational scrutiny.

The opinion never evaluates the regulation under rational basis, which in my mind could be one of the more interesting issues on appeal. Not that I think this one is going anywhere on appeal.

[glock_this]

Has the judge just given us permission to receive a gun from a friend in another state without PPT background checks and then bring it back into California to register as long as it's for persona use?

No, but nice try to those who keep thinking this.

[stix213]

Has the judge just given us permission to receive a gun from a friend in another state without PPT background checks and then bring it back into California to register as long as it's for persona use?

I thought the roster rules recently changed to prevent a CA resident from bringing off roster guns back to CA that were legally acquired outside of CA (for example a dual resident).

Librarian knows the answer....

[chayden]

Has the judge just given us permission to receive a gun from a friend in another state without PPT background checks and then bring it back into California to register as long as it's for persona use?

I'm not a lawyer, but it seems the judge erred in his rationale on that issue based upon the CA laws governing a persons ability to purchase firearms from out of state.
The judgement also eludes that we all can become movie production companies and buy a lot of "props."

[RobertMW]

The opinion never evaluates the regulation under rational basis, which in my mind could be one of the more interesting issues on appeal. Not that I think this one is going anywhere on appeal.

Ah, now I see where you are getting at with this. You're right, I overstated as well about rational basis. I guess we will have to see if any higher court disagrees with her opinion, that dis-allowing certain types of a protected class of weapons is not a 2A issue.

If you look at the historical route, I don't think you could find examples of particular models of a legal class of weapons being ruled illegal, up until "Assault Weapons" and The Roster.

[IVC]

The opinion never evaluates the regulation under rational basis, ...

The end results is that the regulation is upheld as-is without government having to prove anything.

Sure the path avoids "rational basis" by claiming that there is no burden on 2A, but the end result is the same: *IF* it's a 2A regulation, it has been evaluated under rational basis.

[OleCuss]

. . .Not that I think this one is going anywhere on appeal.

I hate it when I agree with you on things like this. Of course, my thinking may be all wrong - but that wouldn't be the first time.

To me this is the kind of opinion which makes no sense to me but which I think makes imminent good sense to the courts.

The two-step analysis seems to be the current state of 2A jurisprudence and is what the judge used. I'm not sure how an appeal would fix this.

The idea that being able to buy a particular example of a class of product is going to be a protected right seems to be a difficult one for the courts to handle. I can still buy a semi-auto pistol so the roster hasn't prevented my purchase of a semi-auto pistol and my rights simply haven't been impaired.

I don't think the courts can understand that a Gen 4 Glock may be substantially different and better than is a Gen 3. I don't think they much care whether a banned handgun fits the hand of myself or my wife better than does any sidearm on the roster. I don't think the courts are going to much care if the banned firearm has provision for mounting a light/laser which a rostered sidearm might not provide.

To me the judicial analysis is simplistic and wrong. But that doesn't mean the appellate courts will find it simplistic and wrong.


I absolutely detest this kind of analysis, however, in part because I believe it will creep further into our lives in other ways.


So let's say I want to call a politician a liar (I want to call almost all politicians "liars", BTW). So the politicians pass a law saying that I cannot use the word "liar" with regard to a politician. The courts then rule in favor of this restriction on free speech because I can still call politicians prevaricators. Since I can use a word which sort of means about the same thing they can still ban my use of the word "liar" since it doesn't substantially burden my free speech.

The fact that I want to use the word "liar" because it has the impact I'm looking for or because "prevaricator" is not a common-usage term is irrelevant to the courts. And yeah, they could even ban "prevaricator" and pretty much the use of any other word which essentially labels a politician as a liar since I can say something like, "this politician has been known to be less than totally honest" without using the term "liar" or any other single word with the same meaning. It doesn't matter that I find the term "liar" preferable.

And, of course, they don't have to apply scrutiny at all.

I want some court somewhere to stomp on this sophistry. I'm not betting that this will happen with our current 9th Circuit or with our current SCOTUS.

Important to remember that I've never even visited a law school.

[FABIO GETS GOOSED!!!]

The end results is that the regulation is upheld as-is without government having to prove anything.

Sure the path avoids "rational basis" by claiming that there is no burden on 2A, but the end result is the same: *IF* it's a 2A regulation, it has been evaluated under rational basis.

I think you're missing here that it was the plaintiffs who wanted rational basis, if the judge performed rational basis she would have had to reckon with the various roster law anomalies head-on. Rational basis would actually have helped here. She cites Heller but in doing so kind of turns its rationale for rejecting rational basis on its head. It really is a chickensh*t opinion in that regard, but that is not to say that the result is going to change on appeal, or that Pena isn't a candiate for the all time stinker award. My opinion on that score hasn't changed since this thread from 2011 (I know there's more stuff from earlier but for the life of me I can't find the threads), on all of the case themes: burden, regulation vs. prohibition of an entire class of arms, common use, wide variety of handgun models on roster, desire to purchase particular handguns ("I want two-tone"), etc. Even if there were some radical diminution in the number of handguns on the roster, there would be a huge cause and effect problem; if manufacturers stop selling in california en masse it wouldn't be a matter of "can't comply with the roster law" but "don't want to comply." Whatever points might be scored on anomolaies/irrationalities in the law can be fixed by legislation. There will not be any knockout punch.

[FABIO GETS GOOSED!!!]

The idea that being able to buy a particular example of a class of product is going to be a protected right seems to be a difficult one for the courts to handle.

Yep. This argument is the centerpiece of Pena and it will go nowhere, the courts are and will continue to be concerned with how the regulation affects your exercise of the right, and Pena does a lousy job of dealing with that.

[wolfwood]

I think that you are right that this case does not win on appeal. However, I think the Court will apply intermediate scrutiny and reject the lower court's proclamation that the roster does not burden Second Amendment conduct. This ruling misread both Chovan and Jackson to come to that conclusion. Jackson applied intermediate scrutiny to San Francisco ban on the retail sale of hollow point ammo and Chovan reads that if a law impacts the right at all some form of heightened scrutiny applies. Hence the lower court really should have applied intermediate scrutiny even if wanting to uphold the roster.
Hopefully that means that if the roster gets significantly worse a subsequent case will be able to strike it.

[Epaphroditus]

Even if the roster were devoid of listings one could obtain a firearm so even a 'empty' roster does not burden ... is that the logic?