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

[thedrickel]

In hindsight the left handed argument is crap. The court will just say "there are many options on the roster sufficient for someone with only a left hand, including revolvers and various semis with ambi controls that are on the roster."

The XD bitone is weak also, the court will agree with the DOJ that if that's what you want, just buy the stainless slide and change it out yourself. Mild cost and inconvenience are minor harms compared to the "safety" provided by the institution of the roster.

I really don't see us winning this one. Microstamping has a good possibility to get tossed in the other case, but otherwise I think the roster stands. We might win with the panel but good luck at the en banc.

[/FGG]

We were still on cloud 9 after Heller/McDonald when this was filed, but now we have to understand reality.

[abinsinia]

It has been a long time for me as well. As I recall, without going back to look, is that Pena was an attack on the entire Roster and all of its requirements for safety features, while the NSSF case focused on the certification of the microstamping requirement. Further, I think that the defendant was having a hard time justifying to the panel the microstamping requirement as it really has nothing at all to do with safety.
I think Pena has some hard ground that it will not be able to overcome, but that is just my opinion. As originally cast, the Roster was for drop safety, which is hard to criticize. The subsequent amendments to the law were imposed to protect people from their own stupidity, and in that sense, are not any different than all of the safety requirements the Fed imposes on car manufacturers. Again, these are easily justified unless you believe that the State has no justifiable interest in preventing the operation of Darwin's Law.

I would disagree that it's hard to criticize the safety features.. What the roster mandates to safety features that are suppose to prevent negligent discharges, absent proof they actually do that. The vast majority of guns don't have these features.

In California you have 30-60 people who die from negligent discharges per year. In contrast you have about 3000 vehicle fatalities in California. So between the two you have much more motivation to regulate cars.

If you extend the same regulatory scheme to the first amendment, then people who read Nietzsche are much more likely to commit suicide, some small number of people a year commit suicide as a result of Nietzsche , hence we must censor books. You could also say kids watch movies, then try to do what they saw in the movie, and end up dead so we have to censor movies, etc..

Guru argued the points pretty well, IMO. The roster is a straight gun ban, nothing more nothing less.

[CalAlumnus]

I would disagree that it's hard to criticize the safety features.. What the roster mandates to safety features that are suppose to prevent negligent discharges, absent proof they actually do that. The vast majority of guns don't have these features.

[abinsinia]

What is comes down to is the level of scrutiny. 2A should be intermediate scrutiny, at least. The roster likely survives rational basis review.

Unfortunately, lower courts often use rational basis, but then call it intermediate scrutiny. Thomas called this out in his dissent on the denial of cert for Silvester.

The roster won’t survive legitimate intermediate or strict scrutiny. But the 9th will likely only apply rational basis review, via an en banc review if necessary. That leaves it to SCOTUS to correct, but they just failed to do so in Silvester.

[lawj11]

In Pena it seems that that all of the judges are for requiring a LCI, even Bybee. Where they stand on mag disconnect safety is less clear, Bybee seems to be against it. I can see them overturning the roster if the NSSF case proves that microstamping is not possible. In that case, they would probably allow enforcement of the LCI requirement and mag safety disconnect. This is the impression I get from watching the recording of the oral arguments.

They are probably waiting for the NSSF ruling because whether or not the technology exists is key. They kept using the car/airbag analogy, manufacturers had to be forced to include airbags in all cars. If microstamping is possible, then they may uphold the roster because gun manufacturers can decide to play ball like the car manufacturers did. If microstamping is not possible, then the roster is unconstitutional because it essentially bans the use of common weapons used for self defense by requiring the use of a non-existent technology.

The technology is imperfect, will not help solve crimes, and is easy to circumvent, BUT, it does exist! This is what worries me.

[Uncivil Engineer]

I would disagree that it's hard to criticize the safety features.. What the roster mandates to safety features that are suppose to prevent negligent discharges, absent proof they actually do that. The vast majority of guns don't have these features.

In California you have 30-60 people who die from negligent discharges per year. In contrast you have about 3000 vehicle fatalities in California. So between the two you have much more motivation to regulate cars.

If you extend the same regulatory scheme to the first amendment, then people who read Nietzsche are much more likely to commit suicide, some small number of people a year commit suicide as a result of Nietzsche , hence we must censor books. You could also say kids watch movies, then try to do what they saw in the movie, and end up dead so we have to censor movies, etc..

Guru argued the points pretty well, IMO. The roster is a straight gun ban, nothing more nothing less.

The real issue is they have changed the meaning of safety. To get the roster established safety was defined as operating as the user intended. This is how most gun owners define and expect safety. If they was the case why would anyone need to be exempt? Shouldn't government issued weapons be safe under this definition?

Over time safety with regards to the roster was redefined to be "safety from guns". One might make the argument this was the long game all along. With this new definition of safety the intent is a ban and has worked like that in slow motion.

The courts should give California the ultimatum. If this is truly safety then there should be no exceptions. California should stop issuing off roster guns and stop allowing anyone to buy them. If it is just a slow motion ban then it must be unconstitutional.

[lawj11]

The real issue is they have changed the meaning of safety. To get the roster established safety was defined as operating as the user intended. This is how most gun owners define and expect safety. If they was the case why would anyone need to be exempt? Shouldn't government issued weapons be safe under this definition?

Over time safety with regards to the roster was redefined to be "safety from guns". One might make the argument this was the long game all along. With this new definition of safety the intent is a ban and has worked like that in slow motion.

The courts should give California the ultimatum. If this is truly safety then there should be no exceptions. California should stop issuing off roster guns and stop allowing anyone to buy them. If it is just a slow motion ban then it must be unconstitutional.

It is definitely a slow motion semi-auto handgun ban. The problem is that if the courts rule microstamping is possible (doesn't need to be perfect), than the onus is on the manufacturers to play ball. Sucks, but that's what I think it boils down to.

[Uncivil Engineer]

It is definitely a slow motion semi-auto handgun ban. The problem is that if the courts rule microstamping is possible (doesn't need to be perfect), than the onus is on the manufacturers to play ball. Sucks, but that's what I think it boils down to.

There shouldn't be enough evidence to support microstamping. Further adding requirements for features that aren't available in the market can't stand.

Courts like to look at the seat belt law. But seatbelts were generally available in the market before they were required. Second there was hard data much of which produced by the government proving seat belts were cost effective and increased safety.

So far there isn't general scientific evidence that microstamping is possible nor any that is is cost effective or achieves any safety at all.

Had they offered incentives not requirements I think the government would be in a better place. A tax , deeper back ground checks, storage requirements or even training requirements for all to buy off roaster would have greatly improved the governments case this isn't just a slow motion ban.
If the roaster cases is a loss for the government expect all those and all the AW restrictions to be on your first off roaster sale from an FFL.

[lawj11]

There shouldn't be enough evidence to support microstamping. Further adding requirements for features that aren't available in the market can't stand.

Courts like to look at the seat belt law. But seatbelts were generally available in the market before they were required. Second there was hard data much of which produced by the government proving seat belts were cost effective and increased safety.

So far there isn't general scientific evidence that microstamping is possible nor any that is is cost effective or achieves any safety at all.

Had they offered incentives not requirements I think the government would be in a better place. A tax , deeper back ground checks, storage requirements or even training requirements for all to buy off roaster would have greatly improved the governments case this isn't just a slow motion ban.
If the roaster cases is a loss for the government expect all those and all the AW restrictions to be on your first off roaster sale from an FFL.

Ummm, have you even watched the oral arguments from Pena? They use the airbag analogy, not seatbelts. Also, the NSSF lawsuit claims microstamping is impossible, which it is not. It does exist, the technology sucks and is stupid, but it exists. Why does everyone refuse to be realistic around here???

[TruOil]

Ummm, have you even watched the oral arguments from Pena? They use the airbag analogy, not seatbelts. Also, the NSSF lawsuit claims microstamping is impossible, which it is not. It does exist, the technology sucks and is stupid, but it exists. Why does everyone refuse to be realistic around here???

I did not watch the Pena oral arguments, but what difference does it make if the analogy is seat belts or airbags? The only difference between them is that one is passive (the passive motorized seat belts having bit the dust). The analogy is apt either way.

The technology that exists is (a) experimental, and (b) stamps the "case" only in one place (on the primer). This is the onlytechnology the State relied upon in support of the certification. However, the statute requires that the case be stamped in two separate locations, and thus the existing technology does not comply with the statutory requirements. And THIS is what NSSF is arguing. Is this realistic enough for you?

[TruOil]

I would disagree that it's hard to criticize the safety features.. What the roster mandates to safety features that are suppose to prevent negligent discharges, absent proof they actually do that. The vast majority of guns don't have these features.

In California you have 30-60 people who die from negligent discharges per year. In contrast you have about 3000 vehicle fatalities in California. So between the two you have much more motivation to regulate cars.

If you extend the same regulatory scheme to the first amendment, then people who read Nietzsche are much more likely to commit suicide, some small number of people a year commit suicide as a result of Nietzsche , hence we must censor books. You could also say kids watch movies, then try to do what they saw in the movie, and end up dead so we have to censor movies, etc..

Guru argued the points pretty well, IMO. The roster is a straight gun ban, nothing more nothing less.

1. They are safety features. How many times have you heard of an idiot who dropped the mag, and after shooting someone declared "I thought the gun wa unloaded?" You have no idea how many lives are saved by these safety features, and you cannot extrapolate from the number of "successful" negligent discharges to someone who realized before pulling the trigger that the gun was loaded? It is like DGUs: there is no way to acscertain the effectiveness of the law.
2. Cars ARE heavily regulated. That is why we have seat belts (I am old enough to remember when cares did not even have them), air bags, DRLs, airbags, crush zones, etc. etc. etc. I don't perceive that any manufacturer thinks of these safety features being a "car ban." There would be well over 1000 handguns on the roster but for the microstamping rule, and while we may argue as to the efficacy of any particular measure, would you rather have handguns that are or are not drop safe and won't blow up in your hand under normal circumstances? This is what the original roster law was intended to accomplish and it did. In fact, drop safe features are incorporated in most new handguns 9except Series 70 Colt 1911s).

3. The microstamping rule is NOT and was never intended to be a safety feature. It is supposed to be a feature that assists law enforcement in solving crime. As such it diverges greatly from the safety aspects of the original roster law. And this, plus the lack of proof that the staute's requirements have been met, make it the most vulnerable of the roster requirements.

4. The analogy to the First Amendment is inapt. You can still have guns, and as many guns as you like, as long as they are on the Roster. Your right to keep and bear them is unaffected. The original intent, and the purpose of its requirements, is top prevent you from shooting dangerous guns. And as I said, the later requirements were to protect people from their own stupidity and/or lack of training.

[lawj11]

[lawj11]

[nick]

How does this make it more or less unconstitutional?

[Librarian]

1. They are safety features. How many times have you heard of an idiot who dropped the mag, and after shooting someone declared "I thought the gun wa unloaded?" You have no idea how many lives are saved by these safety features, and you cannot extrapolate from the number of "successful" negligent discharges to someone who realized before pulling the trigger that the gun was loaded? It is like DGUs: there is no way to acscertain the effectiveness of the law.

They are not safety features.

We know this because LE are allowed to purchase and use 'unsafe handguns', endangering the public and their own families.