B.L.U.F. A look at the state’s appeal to the Ninth Circuit court. The District Court granted a preliminary injunction blocking part of the California roster infringement.
The Question
As you read different case filings, you quickly find that the parties are supposed to respectful and polite. Much like a congressional representative says, “My friend from the other side of the aisle is concerned about a fantasy.” Rather than “She’s moon bat crazy.” When you find language that is pushing the boundaries of respect, it pops.
—Lana Renna v. Rob Bonta, No. 23-55367, Doc. 13 (Court of Appeals for the Ninth Circuit), at 15
It is showing a level of disrespect to the District court to say they “abused its discretion”. I’ve seen this phrased, more politely, as “the district court errored”. This is not a good look in a court filing.
State’s Justification for the Roster
— Id. at 12
The cited case is about Proposition H, a San Francisco regulation that was a handgun ban. This was decided before Heller. The case cited didn’t seem to discuss the handgun roster so much as it discussed that local gun laws are preempted by state law.
In a brief Google Search, I didn’t find any references to “Saturday Night Specials” blowing up in peoples hands. The Saturday Night Special was the first target of the gun banners.
They worked to get them classified as “different” from regular pistols. There were multiple cases looking for “Strict liability” against the manufacturers and sellers of these low-priced hand guns. The result was that most of the manufacturers and importers of these low-cost handguns stopped making and selling them.
The people, most harmed, were the poor. They could no longer afford to purchase a handgun.
In addition, the brief research I did indicated that the arguments then, as today, were that the manufactures were making these guns with a goal of getting them into the hands of criminals.
— Id at 13
The state is arguing that they were lenient. They could have removed all firearms from the list, but since they are nice people, they left guns on the roster that should have been removed. That largesse was not without bounds, though, as new firearms were added to the roster, older “unsafe” firearms were to be removed. Don’t forget to thank the state for keeping you safe from yourself.
— Id. at 14
The people representing the state learned a different version of English than I did. “Shall not be infringed” is pretty plain. That means I should be able to acquire any arm I wish at anytime without the state’s permission.
When the Bruen court affirmed the Heller decision, they made it clear that “history and tradition” must be from the founding era. There was a single sentence in dicta that acknowledged that academics were interested in what the 14th amendment meant.
It is clear that the 14th did not reset the Bill of Rights to mean what it was wanted in the 1860s. It was the people of the 1860s saying they accepted the Bill of Rights as it was understood in 1791. There is no reasonable reading that lets the state choose regulations after 1826 or so to justify a current infringement. They can use regulations of the 1860s to support a tradition that was started in the founding era.
I do not know how to do a search for tort law supporting people suing arms manufactures for dangerous malfunctions in the 1790s. I doubt you could find it. Tracing firearms didn’t actually exist until the Gun Control Act of 1968. It is clear that the state is lying about there being a history and tradition.
Of course, in legal speak, that would be stated more politely. Maybe something like: The state needs to provide evidence of their unfounded assertion.
— Id. at 15
It has been established, multiple times, that the state cannot support an infringement as constitutional by allowing its subjects some arms. In Heller, the court explained that just because the state allowed Mr. Heller to possess a long gun or a shotgun for self-defense, that did not make a ban on handguns constitutional.
Any regulation that imposes restrictions on the core rights are “irreparable injury.” To search your home, as long as they don’t search your bedroom. Because if that was found constitutional, then they could just as easily say that it is constitutional to search your home without a warrant as long as they didn’t search your bedside table. And so forth.
Notice in the above quote that the state says lacking safety features that can save lives
. The state feels that they can infringe on your rights because something might, some way, somehow, save a life. That is not how rights work.
In explaining the UHA to the court, the state says that it takes 4 different tests of 3 different firearms to be passed before a handgun can be added to the roster. Three are tested by an independent lab, then one of those is forwarded to the CA DoJ for a final verification. If a gun only differs in cosmetic differences, then only one gun need be sent and only to the CA DoJ.
Be aware, the state has been known to make statements not supported in regulation as to the meaning of a regulation. In other words, the state claims that purely cosmetic features only require the single sample to be tested. But I don’t trust them in their definition of “cosmetic feature”.
— Id. at 22
Important
It is important to take notice of what the state is doing here, and in other cases. The state is arguing that a decision by a circuit court, before Bruen, is still good law. This is the case where the AW/LCM bans in the 7th is asking if Arie Friedman V. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) is still good law, and if it isn’t, why not. In the 4th Circuit, they are asking if Stephen Kolbe v. Lawrence Hogan, Jr., 813 F.3d 160 (4th Cir. 2016) is still good law.
If the state can get any of the Circuit Courts to agree that any of the decisions made prior to June 2022 are still good law, then they will have won until the Supreme Court can slap them down again.
Procedural History
— Id. at 23
Recall that Bruen did NOT announce a new standard. It affirmed the Heller standard. It told the inferior courts, “You’ve been doing it wrong”.
Another reoccurring theme, in the state’s arguments, is that the courts should not be looking at the history and tradition, that should be reserved for experts. An expert is introduced to provide an opinion, which the court says is evidence.
This use of experts is counter to what the Supreme Court said. The Supreme Court said a history and tradition of regulation supporting the infringement. An expert’s opinion doesn’t matter. The only thing that the state’s so-called expert can provide it a reference to a regulation. At which point the state should just add it to their briefings supporting their infringement.
Experts, in court, are not allowed to express opinions on law. That is reserved for the lawyers and the court.
The counter to this, is that the court exists exactly to do this type of research. The Court’s job is to look at the historical record to determine which case law is still good law and, based on that, render an opinion that is backed by the ideals of common law.
An interesting observation, when the state claims historical support, they don’t cite to the regulation. They cite to other cases that supposedly cite the supporting regulations.
My question for you is simple: Is Dred Scott settled law?
It was settled law until it wasn’t.
The state argues that they presented experts and the plaintiffs (good guys) did not. There is an elementary reason for that, once the text of the Second Amendment is implicated, the activity of the plaintiff is presumptively protected. It is then the burden of the state to prove a history and tradition.
Conclusion
The state is arguing from the point of view that what is not explicitly banned by the Second Amendment is not protected. If the Second Amendment doesn’t say that a Sig P365 is an arm, then they can ban it. If the Second Amendment does not explicitly state that regulating the sale of arms is forbidden, then it is allowed.
To quote Hagar, “SHALL NOT BE INFRINGED!”
Post Scripts
The state continues its argument that the plaintiffs had not shown “irreparable harm” because they had not shown evidence of “practical harm.” If you are infringing, it is irreparable harm. The state can’t make it right with money. They can’t make it right by stopping the infringement. That makes it irreparable harm.
— Id. No. 10
This is something we have seen in a number of the ban cases. The state claims that the plaintiffs must prove that each make and model of an arm be in common use. Not the class of arm. If a Colt AR-15 and a Daniel Defense AR pattern are both listed, or even if they are only mentioned as Colt AR-15 patterns and Daniel Defense AR-15 pattern assault weapons, the state wants the plaintiffs to prove that there are 200,000+ Colt AR-15s in use which gets the Colt’s off the ban. That does not get the DD AR pattern off the ban list, unless the plaintiffs and prove 200,000+ DD AR pattern arms in use.
There is another 50 pages to this thing. You get the gist.
The fire- and drop-test requirements may, charitably, be seen as attempting to assess whether a gun is “safe,” e.g. won’t blow up in someone’s hand, etc.
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Mag disconnects and loaded chamber indicators, on the other hand, make a gun more likely to malfunction (increased component count and complexity). They, like microstamping, are not safety measures in the same sense that drop-testing is.
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The state is squirming on the hook, it seems.
Ok I’ll play the Devil… I could argue that AR-15 lower receivers from low production manufacturers are more likely to be out of dimensional spec for the hammer / trigger pin alignment, and therefore increase the chance of “accidental doubles” – that is more more than one bullet with a single function of the trigger…. tsk tsk… or worse yet, improper tolerance between the sear and safety. What I’m saying is, there is a reasonable engineering argument against low production manufacturers, as these could indeed result in a firearm being “less safe”. Not sure what the standard is there… is it 200K? 10K? 1? What is the military’s requirement for number of quality control examples before a component (lower receiver, trigger / hammer pin dimension and sear alignment of trigger components) is accepted for service? I recognize that is not the question before the court here, but still… there may be regulation, like IJB cites (drop test, fire test, etc… ) that may be warranted.
microstamping is not.
In my not-exhaustive-but-considerably-greater-than-zero experience assembling ARs, most times an out of spec lower will result in one of three things: upper and lower won’t mate up properly; lower based functionality does not work (e.g. bolt doesn’t lock back on empty magazine, mag doesn’t drop free); or the lower simply can’t be completed (e.g. trigger pin holes are too small or misaligned, misthreaded receiver extension for the buffer tube). Most of these simply result in a firearm that either can’t be assembled or doesn’t work well, not that is actively unsafe for the user.
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Most of these could be caught by a full dimensional inspection with a CMM, or failing that, go/no-go gauge sets. (That said, tolerance stack-up can still cause headaches even with full inspection.)
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I would not try to make the case, personally, that a small shop is more likely to produce an out of spec lower. (For one thing I know, every small precision shop I know around here takes a lot of pride in their work.) Most forged lowers come from only a few sources, after all. And smaller shops, with smaller production runs, might be able to check and replace tooling more frequently than some of the big boys, especially if they’re making their name on lowers either very well made, with premium features, or both. (I’m thinking Mega here, now under Zev, and also maybe Joe Bob’s Spartan line, for instance.)
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Now, that might be an interesting thing to try for a manufacturer: include the inspection report with each lower. It might become a selling feature that would allow a premium to be charged to cover the inspection costs. But I’d say that’s a question for the market.
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FWIW, I’ve had all of the issues I mentioned above, but never had an AR I’ve assembled inadvertently fire more than one shot per trigger pull. Not saying it cannot happen, just in my experience it never has, so from my sample size it’s a lower probability. As the assembler, I’d find out if it was going to do that during initial range tests, anyway, where if it happened it would be in a safe environment and under otherwise controlled conditions, such as only one round in the magazine for the first shot, two for the second and third, etc. for just such a possibility.
Oh, low probability for sure – but I have seen it happen…. and to be fair, it was on a 80% lower completed by somebody I’d call ‘bubba’ – so like a manufacturer production of 1 example… I never said it was a good argument, just said I’d play the devil…