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

[kcbrown]

On a more serious note, this is the pattern that we've seen on "carry" from CA-2/3/4 and even in dissent in Peruta - not ruling against us based on *you are wrong*, but based on *we need more guidance from SCOTUS."

"We need more guidance from SCOTUS" can come in either form, either in a manner that sides with the right or a manner that sides against it. Here, the courts are generally siding against it. That is much more than merely "we need more guidance".

[kcbrown]

She pulled off an "Irma Gonzales" on us by avoiding to discuss the issue at all.

So while you were right about the brazen ignorance of the rules by some of the judges, there is still an issue of "avoiding to answer the question" vs. "ruling against us." In this case we got the "it's not a 2A issue" instead of "it is a 2A issue, but you're wrong."

No, she answered the 2A question. She said it isn't a 2A infringement, and therefore there is no need to go to heightened scrutiny.

That is different from saying that it's not a 2A issue at all.

As many have posted, this is going to the next level and only when we get an actual ruling along these lines from SCOTUS am I willing to convert to the dark side.

In the meantime, all I can say is: "noooooooo...."

Yes, well, the point here is that I saw this coming and you didn't, because you adhere to the view that the courts are judging cases objectively, while I have essentially disposed of that notion.

[Librarian]

I'd like to thank Arnold for signing this POS into law in the first place.

The bill was SB 15, signed by the Governor in August of 1999.

Gray Davis.

[FABIO GETS GOOSED!!!]

That plaintiff can use his index finger to drop the mag and an ambidextrous mag release isn't going to help all that much with what needs to be done after the mag is dropped, if he needs to reload he's already hosed. Or the plaintiff can install an aftermarket ambidextrous mag release. Or buy some other gun; by the way he and all the other defendants admitted they could purchase other handguns suitable for self-defense which is not what I'd call a strong showing of burden. And to be really specific about how lousy this particular plaintiff's argument was presented, the original iteration of the MSJ included the claim that the plaintiff "cannot operate" a standard Glock, which was flat out false. The next iteration included a conclusory declaration that the ambidextrous model was "superior" without bothering to explain why. Not that it would have mattered but they didn't even try.

Anyway, I tend to agree with wolfwood about intermediate scrutiny on appeal, that was what I was expecting here.

[IVC]

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.

Here is a serious question.

The judge said in this case: "A gun is a gun, so if you can get a gun you've got a gun." This reasoning wouldn't fly with the books if the state had a list of approved books, e.g., "a book is a book, so if you can get an approved book it doesn't matter that you cannot get the one you want because you've got a book."

How would one convince an unwilling judge that guns are different? In this case, one of the plaintiffs is very specific about needing an ambidextrous Glock because of physical disability and not having *a single* ambidextrous Glock on the roster. Why is that a lousy job?

[epilepticninja]

I'd like to thank Arnold for signing this POS into law in the first place.

[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?

[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.

[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.

[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.

[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.

[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.

[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.

[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."

[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....