by Glock, Inc. filed a amicus brief last Friday the case challenging California’s handgun roster. The case, Pena et al v. Lindley, was originally filed in 2009 in US District Court for the Eastern District of California. Glock’s amicus brief was filed in support of the plaintiffs’ motion for summary judgment.
It is rare to see an individual firearms company take a stance such as this. These briefs are usually filed on behalf of a group like the National Shooting Sports Foundation. That said, it makes good business sense for Glock to support this case as none of their Gen4 pistols can be sold in California as they don’t have magazine disconnects and aren’t microstamp-ready.
The brief was written by attorney Erik Jaffe and Chapman University School of Law Professor John C. Eastman. Both Jaffe and Eastman served as law clerks for Supreme Court Justice Clarence Thomas. They argue that given the ubiquity of the Glock pistol throughout the United States that it meets the Heller decision’s common use test. Because of this, banning the sale of the Glock in California runs afoul of the Second Amendment.
They start their argument by attacking the requirements for a magazine disconnect and for microstamping technology. The brief states that a magazine disconnect is a disadvantage in that a chambered round cannot be fired without a magazine in place.
GLOCK pistols can be fired if the magazine is lost or
damaged, and a round in the chamber can be fired if necessary while the user is in the
process of changing magazines. A pistol with a magazine disconnect mechanism would
not be capable of firing under those circumstances. For those reasons and others, the
overwhelming majority of law enforcement agencies require pistols that do not have a
magazine disconnect mechanism. In addition to GLOCK pistols, the majority of semiautomatic
pistols sold today do not include a magazine disconnect mechanism because of
its significant disadvantages. Accordingly, the pistols that are in “common use” by “law-abiding citizens for lawful purposes,” Heller, 554 U.S. at 625, 627, generally do not
include a magazine disconnect mechanism.
They attack microstamping as “novel and essentially theoretical” technology which does nothing to enhance the firearm’s safety which is the purported purpose of the handgun roster. It is meant to possibly help law enforcement. The absence of a magazine disconnect and microstamping does not make a pistol either unsafe or more dangerous.
Jaffe and Eastman argue that:
California has in essence reversed the Supreme Court’s “common use” test and
prohibited the sale and possession of those pistols that are commonly used by “lawabiding
citizens for lawful purposes,” Heller, 554 U.S. at 625, 627, and allowed only the
sale of those pistols that are not in common use and, in fact, are not even commercially
available. The absence of a magazine disconnect mechanism and microstamping technology in the Gen4 GLOCK pistols does not render them the type of “dangerous and
unusual weapons” that the government may prohibit, id. at 627, because they are
functionally identical to the earlier grandfathered versions of the GLOCK pistols that also
lack those features.
They attack California’s claim that the burden caused by the handgun roster is minimal. Consumers are not able to buy newer – and presumably safer – handguns while at the same time older handguns on the roster are exempted from the mag disconnect and microstamping requairements. As they note, this serves to weaken California’s argument that there is public safety interest in these requirements.
That
the government continues to allow sales of numerous handguns lacking these features,
and completely exempts law enforcement from regulations designed to exclude the sale
of allegedly “unsafe handguns,” shows at best an equivocal interest in the supposed
benefits from those technologies, not the type of substantial government interest that
would justify restricting an enumerated right.
They continue by saying:
In fact, the largest actual effect from the expanding list of novel technological
requirements for new models of guns is to prevent California consumers from being able
to obtain the new models of handguns, such as GLOCK’s Gen4 pistols, that incorporate
the latest improvements. It makes absolutely no sense to force consumers to purchase
older model handguns that lack the same features that the government is relying on to
prohibit the sale of newer model handguns. Justifying such a scheme in the name of
consumer safety or crime fighting is nonsensical, or simply disingenuous… Indeed, the very absurdity of the
scheme suggests that the actual objective of the challenged roster requirements is not
safety, but to create increasingly more problematic and expensive hurdles to the sale of
handguns in order to make the process more difficult and thereby deter the sale and
purchase of new handguns in California, an objective that cannot be squared with the Second Amendment.
They conclude that the burden is substantial and that California has a “minimal government interest inconsistently pursued” in maintaining the restrictions imposed by the handgun roster.
I’m glad to see Glock stepping up in this fight. The California handgun roster is a joke. Any roster such as the one in California that makes a distinction between a pistol based upon whether it is all stainless or all blue and then bans a two-tone version of the same pistol has just proved this.
The amicus brief can be found here.