California asks Ninth Circuit to allow it to enforce handgun regulations

(CN) — A Ninth Circuit panel in Pasadena Wednesday heard arguments in two cases in which the California Attorney General’s Office is seeking to lift an injunction that is preventing the state from enforcing a series of gun control regulations.  

In the cases filed in the Southern And Central Districts of California, the plaintiffs — including gun rights groups, firearms retailers, and would-be semiautomatic handgun owners — challenge several provisions of the state's Unsafe Handgun Act, including the chamber load indicator (CLI), magazine disconnect mechanism (MDM), and microstamping requirements.

U.S. District Judge Cormac Carney blocked enforcement of the law in March, writing that the requirements force Californians to "settle" for decade-old models of handguns and are, moreover, unconstitutional. In the second case, Chief U.S. District Judge Dana Sabra also granted an injunction, writing that the state failed to meet their burden of "presenting relevantly similar, historically comparable analogues" to the provisions at issue.

On Wednesday, Charles Sarosy of the California Attorney General's Office, who was representing the state in Roland v. Bonta, told the three judges on the appeals panel that Massachusetts has a requirement that guns sold in the state have chamber load indicators, visual indicators that show there’s a round in the chamber of a gun, and that state as well as Maryland and Washington, D.C., also have handgun rosters — lists of guns that have been tested for safety by the state and denote the ones residents can’t buy. New York and New Jersey also passed laws that require gun manufacturers to microstamp their bullets — characters imprinted on bullet casings which can be used to identify the make, model, and serial number of the gun it was fired from, Sarosy said.

“Does any state have both CLI and MDM requirements besides California?” U.S. Circuit Judge Daniel Bress, a Trump appointee, asked.  

“No," Sarosy replied. "California is the only one that requires both, but there are other states like I said that have drop safety and firing test requirements and five states have melting point tests. I think the fact that states are taking different approaches in this regard, I don’t think it means that just because California has taken this approach means it’s unconstitutional,” Sarosy said.

The Unsafe Handgun Act law also requires the California Department of Justice to keep a roster of all guns that have been tested for safety by the state, and gunmakers must pay an annual fee to keep their products on the roster.  

Plaintiff gun owners and lobbying groups claimed that all of the provisions in the act violated their Second Amendment rights to buy handguns, especially new handgun designs. But the state contends the laws only restrict people from buying handguns that are not on the roster.

In his injunction order in March, Carney noted that there hadn't been a single new semiautomatic handgun approved for sale in California since 2013, when the microstamping requirement was introduced:

"That is because the technology effectuating microstamping on a broad scale is simply not technologically feasible and commercially practical," the judge wrote. "The result of this is that when Californians today buy a handgun at a store, they are largely restricted to models from over sixteen years ago. 

Sarosy argued that, essentially, gun manufacturers have boycotted the microstamping regulation and chosen not to comply.

Representing the plaintiffs in Renna v. Bonta, attorney Bradley Benbrook said the Unsafe Handgun Act is "an extreme outlier among modern firearm regulation, and it has no analogue in history.'

“Isn’t it true that at the time of the founding, basically most guns were long guns and you had to put gunpowder in the gun and push it with the ramrod and have a little ball ... — and I gather this was true of even smaller guns — so this problem kind of didn’t exist. So what are we supposed to do, just step history and say since the problem didn’t exist there was no analogue?” asked Senior U.S. Circuit Judge Marsha Berzon, a Clinton appointee.  

Since the U.S. Supreme Court held in New York State Rifle & Pistol Association, Inc. v. Bruen last year that New York’s concealed carry laws were unconstitutional, and carrying a gun in public is a constitutional right, local governments wanting to pass gun control regulations have to justify their regulations by showing they are analogous and consistent with regulations in the country’s past.

Sarosy argued that both Revolutionary War-era and Colonial American laws on musket inspection and where and how gunpowder should be stored were analogues to California’s handgun safety laws.    

Both Benbrook and Erin Murphy, the attorney representing the plaintiffs in Boland v. Bonta, argued that the state is misinterpreting the 18th century laws, and that they don’t deal with regulation of guns, but were instead quality control standards that made sure the guns being produced back then worked correctly. The laws on how and where gunpowder was to be stored, Murphy said, dealt strictly with the storage of excess gunpowder. 

Murphy argued that the state's goal is to phase out guns that residents in other states are allowed to own and create a market in California that requires guns to have features that aren’t common elsewhere.

She added that the historical test to determine whether a gun is protected or not is whether it is commonly used.  

“That is a test that asks, 'is this something that the people choose?'” she said.

Sarosy concluded by saying that even though the injunction only required the state to stop enforcing certain gun control requirements, the plaintiffs had originally sought to stop the entirety of the Unsafe Handgun Act. 

Berzon asked if he was making “a slippery slope argument.”

"That is correct," Sarosy said.

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