It Only Took Six Years To Come To This Bad Conclusion

The CalGuns Foundation filed its challenge to the state of California’s handgun roster on April 30, 2009 in the case of Pena et al v. Lindley. Today US District Court Judge Kimberly Jo Mueller finally rendered a decision in the case. It has only been five years and ten months.

And after all that time you would think that she would get it right. However, when the decision is rendered by a judge appointed by Barack Obama, you get the clue that she wouldn’t. And she didn’t.

She found for the state of California and upheld the handgun roster. She went on to say the Second Amendment was not even implicated by the roster. So what if you can’t get any new guns or that law enforcement officers and new residents who bring their guns are treated differently than existing residents.

The CalGuns Foundation has already said that they will appeal this ruling. They released this statement:

“We are disappointed that the district court sidestepped a clear violation of Second Amendment civil rights in its decision today. However, we are absolutely committed to litigating this case as far as necessary to reverse this incorrect ruling and restore the right to keep and bear modern handguns in the Golden State.

It is difficult to understand how the Supreme Court’s landmark District of Columbia v. Heller decision could be so badly mis-applied. Laws that ban law-abiding people from acquiring virtually all modern handguns following a rigorous background check have no constitutional basis and must be overturned.

It is utterly preposterous that a Federal Court would rule that a ban on all new semi-automatic handguns does not burden Second Amendment rights. Such a decision conflicts with Ninth Circuit precedent, much less the Supreme Court’s holdings in Heller and McDonald v. Chicago.

Our counsel have already appealed the ruling to the Ninth Circuit Court of Appeals and will take every action necessary to create a successful outcome there.”

I hope to have more on this ruling after I’ve read the whole decision as well as on Judge Mueller and her social justice warrior background.

Stepping Up To The Plate In California

As I reported earlier this month, both Ruger and Smith & Wesson have taken a stand against the California Department of Justice Handgun Roster by letting numerous popular models of their handguns drop off the list. In other words, they refuse to make a California-only model that includes a microstamped firing pin.

Now Mike Fifer and James Debney, the CEOs of Ruger and Smith & Wesson respectively, have filed Declarations in support of the plaintiffs challenging the Handgun Roster in the long-running case of Pena v. Lindley. This is a case being brought by the CalGuns Foundation and the Second Amendment Foundation in US District Court for the Eastern District of California.

The Declaration of Ruger CEO Mike Fifer can be found here. In it he says that the microstamping requirement is unworkable and that no firearms manufacturer has been able to implement it.

The Declaration of S&W CEO James Debney says that the technology is unworkable and that “the state law requires the technology to perform at a level it cannot.” Debney goes on to point out that many of their handguns also do not have mag disconnects and loaded chamber indicators.

These Declarations join the amicus curie brief of Glock, Inc. in arguing against the Handgun Roster and in favor of the plaintiffs’ position.

The Second Amendment Foundation welcomed the support from all three firearms manufacturers in a release put out yesterday shown below.


BELLEVUE, WA – The Second Amendment Foundation is expressing heartfelt gratitude today to three major firearms companies – Ruger, Smith & Wesson and Glock – for their supporting documents in the on-going case of Pena v. Lindley, a lawsuit challenging the California handgun roster requirements that include microstamping and magazine disconnects.

Earlier this week, Ruger CEO Michael O. Fifer and Smith & Wesson President and CEO James Debney submitted declarations to the court, explaining their respective companies’ positions on the California microstamping requirement. Late last year, attorneys representing Glock, Inc. filed an amicus curiae brief supporting the SAF case.

“SAF will be eternally grateful for the timely support from all three companies, which we believe strongly reinforces our case,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The statements from Messrs. Debney and Fifer confirm what we have argued all along, that California’s requirements place an undue burden on both consumers and manufacturers.”

In his statement, Fifer bluntly observed, “There is no workable microstamping technology today, and Ruger believes that California’s microstamping regulations make compliance impossible.”

Debney concurs in his statement, noting, “Smith & Wesson does not believe it is possible currently to comply with California’s microstamping regulations. Quite simply, the state law requires the technology to perform at a level that it cannot.”

In its earlier brief, submitted by attorneys Erik S. Jaffe of Washington, D.C. and John C. Eastman of Orange, Calif., Glock maintained that neither its pistols nor any other handgun in common use can comply with California’s microstamping mandate.

“You cannot regulate handguns out of existence or out of the marketplace by mandating technology that doesn’t work,” Gottlieb observed. “Now three major gun companies have weighed in and we’re confident their opinions will carry a lot of weight.”

The impact of the microstamping requirement on handguns available for sale in California can be seen in this infographic from the CalGuns Foundation.  It is not a pretty picture and not a Constitutional one in my opinion.

Glock Steps Up In Challenge To California’s Handgun Roster

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.

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.