B.L.U.F. A big win out in California where parts of the Unsafe Handgun Act were enjoined. If this injunction stand it is possible that new handguns will be added to the California Roster for the first time since 2013. Side note, the say that there are some 800 handguns on the roster, this is misleading. A firearm can be on the roster multiple times because each sku is considered a different handgun. I.e. a changing the finish of a handgun makes it a different handgun in the eyes of the state.

The Question

On 2022-08-01 the plaintiffs(good guys) filed a Complaint for Declaratory and Injunctive Relief in the Federal District Court of Central California. The complaint asks does the California Unsafe Handgun Act (UHA) violate the Second Amendment by denying The People of California access to new firearms in common use throughout the country? and does the UHA violate the Commerce Clause by interfering in interstate economic activities?

Or as the plaintiffs put it:

and:

On 2022-09-22 the parties agreed to drop the second question regarding discrimination against interstate commerce.

The defendant response consists of nearly 18 pages of the Attorney General denies each and every allegation unless they are admitting to a statement of law. In that case he still denies each and every allegation and denies even the quoted regulation if it is misstated. For other paragraphs he says he just doesn’t know.

In short the AG’s answer is “Nope.”

The state then claims affirmative defenses. An affirmative defense is when the other party is required to prove. The first is that the state claims that the plaintiffs failed to state facts sufficient to bring action against the state. Given that the state denies all the allegations this makes sense.

Then there is that old bugaboo. They claim that the plaintiffs lack standing and if they did they there are adequate remedies within the law for their complaint.

The Stages

What the plaintiffs are requesting is an injunction. An injunction is a court order instructing a person or persons to do or cease doing a particular action. If everything was simple that would look something like this.

• Complaint filed
• Defendant Informed
• Briefs, counter briefs, counter-counter-briefs, expert opinions, and evidence filed
• Arguments heard by the court
• Opinion of the court rendered

Nothing is ever simple. Even in this simplified example the orders of the court are ignored. Since the plaintiffs are requesting an injunction, one of the first things they are going to do is to ask for a temporary injunction. Theses are normally referred to as a TRO or Temporary Restraining Order.

The defendants are going to argue in their filings against having a TRO granted.

This argument is an argument doing in briefs. The idea is to have the court quickly agree to grant or deny the TRO. If the TRO is granted it will be in place till the next stage of the case.

The next stage is the request for a preliminary injunction. The preliminary injunction lasts from the time granted until the final decision in the case. There is some heavy lifting required to get a preliminary injunction and one is granted it is a strong indication that the party getting the injunction is going to win the case.

After the preliminary injunction is granted (or denied) the case moves forward until it is heard in court. The court will hear arguments from the parties and may hear testimony from other interested parties and maybe even experts.

Once the oral arguments are completed, the court will consider everything and will then grant or deny the injunction.

When an injunction is granted it stays in place until a higher court removes it.

At any point in this process the loser of that particular court order can appeal to the next higher court to have that court override the inferior court. These appeals can go up multiple levels until the parties stop appealing or the Supreme Court either denies cert. or gives their opinion.

Normally the case is put on hold while these appeals are happening. This doesn’t mean that documents aren’t being filed or the parties and court aren’t still working on the case, it just means that the court will not issue any orders until the appeal is resolved. This doesn’t have to happen but it seems to be what does happen.

In addition to all of the above, the court can order or the parties can request that a case be paused while waiting for other cases to be resolved at a higher court. This happened with Rupp v. Bonta. The case was paused while Duncan v. Bonta was being heard at the Ninth Circuit Court and remained paused when Duncan v. Bonta was pending cert. at the Supreme Court. It was only after the Supreme Court Granted, Vacated, and Remanded Duncan v. Bonta back to the Ninth Circuit that both cases moved forward.

In our case of OBoland v. Bonta the plaintiffs are looking for that injunction and they start by requesting a preliminary injunction enjoining California from enforcing the Unsafe Handgun Act.

The Arguments

Because the easiest way to get a case to go away is to get the court to decide that the plaintiffs do not have standing, that is where most of these cases begin. Remember that in Antonyuk v. Nigrelli that the first time before Judge Suddaby that the judge denied standing. It was only when they refiled with better standing that he moved forward with big wins for the second amendment.

The state argues that the plaintiffs don’t have standing because the UHA only affects manufacturers and commercial resellers. If they aren’t resellers or manufacturers, the state argues that they aren’t entitled to an injunction. The state continues, even if the plaintiffs did have standing the plain text of the second amendment doesn’t preclude the requirements of the UHA because the plaintiffs could already have handguns and they can buy handguns and thus there is no infringement.

One of the requirements to get a preliminary injunction is that there needs to be “irreparable harm”. If there is no irreparable harm then the preliminary can’t be granted and the parties must wait until the court hears and decides the case.

The courts have established that a violation of your core civil rights guaranteed under the constitution is an irreparable harm. Since the state claims that no such violation is taking place this is not irreparable harm.

In addition, the state argues that even if they were enjoined against enforcing the requirements for Chamber Loaded Indicator (CLI), Magazine Disconnect Mechanism(MDM), and microstamping nothing would happen. The state would still need time to get more handguns onto the roster.

And of course they claim that their infringement is actually improving the safety of handguns sold in California so they would suffer harm if an injunction was granted.

One of the things that keeps showing up in these cases is the state relying on past decisions of the court prior to Bruen to support their position.

Pena v. Lindley was decided in 2018, 4 years before Bruen. The question then becomes “Is Pena v. Lindley good law?”. Over in the Fourth Circuit court they are hearing Bianchi v. Frosh, This is one of the cases GVR’ed after Bruen. The question in that case becomes “Is Kolbe v. Hogan still good law?” Bianchi v. Frosh was originally decided by the Fourth Circuit as having been previously decided in Kolbe v. Hogan so this is really a test of Kolbe.

One of the major components of the states argument is that if they are allowing “some” handguns on the register they have meet their second amendment obligations. As long as the leave some crumb for The People it isn’t really an infringement. They used the same type of argument in the magazine ban cases. As long as you can used crippled, mutilated, and hobbled magazines they aren’t really infringing.

[B]eing unable to purchase a subset of semiautomatic weapons, without more, does not significantly burden the right to self-defense in the home. Id. at P. 19 quoting Pena

The state also makes a footnoted claim that the likely reason there is no firearms microstamping is because The People keep litigating against microstamping which disincentivized firearms manufacturers from developing compliant models Id. Footnote 7

The entire state argument feels like another example of “it isn’t an infringement because it is just a FILL IN THE BLANK”.

Once again the state lies by saying …Bruen announced a new standard for analyzing Second Amendment claims Id. at P. 15

The plaintiffs fire back.

The plaintiffs point out that the state seems to think that Heller and Bruen only apply to complete bans. As stated above, they point out that the state claims that as long as The People have access to some handgun they have meet the states obligation under the Second Amendment.

The Court’s Order Granting The Preliminary Injunction

The court is not mincing words here, “devastating impact”. This eviscerates the state’s argument that the Second Amendment is not implicated by the UHA.

And then the court drops the hammer with a perfect Bruen reply to the state’s arguments

Conclusion

The court has granted a preliminary injunction. Much like judge Suddaby did against the CCIA. This court has also given the state time to appeal to the circuit court for a stay of the injunction.

If the stay is not forthcoming from the appeals court, in 14 days the requirements for CDI, MDM and microstamping are not enforceable. Firearm manufacturers can then submit handguns for drop testing. If those handguns pass the drop testing they should be added to the handgun roster.

If the Ninth Circuit Court does stay the injunction then nothing happens and the court continues to the next step. The end of those steps ends with the court granting or denying an injunction. This could be weeks or months away. There is currently nothing scheduled for the next steps.

This is another huge win for the second amendment. This is a case that could overturn all limitations put in place that require the state to pre-approve what firearms The People of their state can purchase.