California Rings In New Year With Handgun Ban

There are less handguns available for sale in California in 2016 because of another ill-conceived gun law. Since January 1, 2001, California’s so called “Unsafe Handgun Act”(“UHA”) law has mandated that all handguns sold at retail in the state must be listed on the California Department of Justice’s Roster of Handguns Certified for Sale (“the Roster”). Originally, handguns only needed to pass a drop test and other performance tests to be added to the Roster. The law was later amended to require that all centerfire semi-automatic pistols to be added to the Roster had to have a loaded chamber indicator and magazine disconnect. And more recently, notoriously anti-gun-owner and then-Assembly Member Mike Feuer (now Los Angeles City Attorney) pushed a law adding a requirement that pistols be equipped with “microstamping” technology which is supposed to imprint on a casing upon discharge a microscopic code that identifies the handgun from which it was fired.

Anti-gun politicians sold the UHA as a product safety measure that would merely set safety standards for the design of handguns to be sold within the state. But, as predicted by those who opposed its adoption, including the NRA and CRPA, the UHA has in practice become an incremental handgun ban. This is evidenced by the annual removal from the Roster of significant numbers of handguns that are perfectly safe and widely available outside of California. This year’s loss of 81 handgun models was about 10% of all handguns remaining on the Roster. At this rate, within a decade there will be no more handguns allowed for retail sale in California.

Why are these handguns falling off the Roster? To best answer that question requires much explanation. Essentially, however, once a handgun model is on the Roster it is “grandfathered” until (according to California but never related to manufacturers until recently) it is updated in any minor way, at which point it becomes a “different” gun and must meet the UHA’s new requirement of having “microstamping” technology to be included back on the Roster. But, because implementing such technology is not feasible, for reasons explained below, any handgun that is altered in any way drops off the Roster and cannot be put back on.

The Microstamping Fraud

Following its adoption, implementation of the microstamping requirement was postponed until the California Attorney General could certify that microstamping technology was not encumbered by a patent. Attorney General (now Governor) Jerry Brown did not certify that microstamping was available during his tenure as Attorney General. But on May 17, 2013, Attorney General Kamala Harris certified that microstamping technology was unencumbered by any patent.

Problem is, according to experts, the microstamping process itself is not a viable technology. A U.C. Davis study shows the flaws with this process and the National Shooting Sports Foundation (NSSF) prepared a summary of the study. Even the patent holder of the mircostamping process acknowledged in a 2012 ATFE Journal article that the concept of microstamping requires further study and should not be mandated. The NSSF has published a set of materials relating to microstamping.

Tellingly, no firearm manufacturer is currently producing a handgun with microstamping. So, ironically, with its mis-named “Unsafe Handgun Act,” California is now making it impossible for gun retailers to sell more refined and more reliable pistols.

The Dilemma For Manufacturers

Conscientious gun manufacturers often make minor changes to their products as new technology or manufacturing processes become available so consumers get the best, most reliable products on the market. Even though these minor changes are made, manufacturers typically do not change the product model numbers. Under California rules, however, handgun models with any such minor changes, even if for the purpose of increasing safety, must be equipped with microstamping capability or the handgun must be re-certified before it can be re-listed on the Roster.

Gun manufacturers now face an impossible dilemma. To comply with California’s current interpretation of the UHA, once a minor change is made to a pistol the only way a gun manufacturer can get it back on the Roster is to incorporate microstamping technology into the firearm. But gun manufacturers can’t, don’t, and won’t do so.

This also means that manufacturers cannot modify and improve their pistols in any way if they want to keep the existing models on the Roster unless the change is purely cosmetic. They cannot even make their current models more reliable, more durable, less expensive, or more advanced, unless they include microstamping technology–a flawed technology that manufacturers cannot comply with because it does not work and the technology to implement it does not currently exist. As a result, a large number of handguns have been “delisted” and can no longer be sold by retailers in California. And no new model pistols will be able to pass the test to be sold.

So, ironically, the “Unsafe Handgun Act” now forces California retailers to sell less refined and potentially less safe firearms–all supposedly in the name of safety.

The Consequences For Consumers

The consequences of California’s microstamping mandate are already being felt. Ruger confirmed in a statement from Ruger CEO Mike Fifer that it is being largely forced out of the California market as a result. Smith & Wesson has also made a similar announcement. Since the microstamping mandate took effect in May 2013, hundreds of handguns have fallen off the Roster, keeping the list of De-Certified Handgun Models ever growing. By contrast, the list of “Newly Added Handgun Models” is fairly stagnant, with only a handful of revolvers and derringers being added periodically (since those don’t require microstamping), but no semi-automatic pistols.

As vividly illustrated in a compelling video from NRA News correspondent Ginny Simone, California’s microstamping law has become a de facto gun ban in the state. The video features accounts from firearms industry professionals, dealers and technical experts, and shows how the microstamping process is an utter failure–except as a way to stop pistols from reaching the consumer marketplace.

As the NRA video shows, firearms are typically manufactured on a type of modern assembly line, with specific parts largely interchangeable. Microstamped firing pins or other microstamped parts require a special batch production. These special microstamped parts then must be segregated from the rest of the firearm parts of the same kind for the California market alone. After they are separated, the special batch parts must be matched to the specific firearm that it is individually made for. All of this time-intensive work requires a vast amount of supervision and manufacturing technology that doesn’t exist. And this doesn’t even take into account the added complexity in the planning, procurement, logistics, and warehousing aspects of manufacturing firearms with this ill-conceived technology.

Taking Action Inside and Outside the Courtroom

The NRA and CRPA have been actively opposing microstampting ever since it was proposed. They submitted two sets of comments to the California Department of Justice (“DOJ”) opposing DOJ’s decision to propose regulations implementing the “microstamping” requirement before the law had taken effect. And when the law took effect in May 2013, Attorneys for the NRA & CRPA demanded and obtained documents concerning the Attorney General’s decision to implement the law and published a legal memorandum explaining its impact so the firearms community was aware.

The NRA and CRPA have also supported the two lawsuits challenging the Roster and  microstamping schemes.

Unfortunately, a district court judge has, in one of those cases, Peña v. Cid, held that UHA does not violate the Second Amendment. In reaching its decision, the court mistakenly concluded that the Roster doesn’t burden the Second Amendment at all because, based on an erroneous reading of a Supreme Court case, it considered the Roster to be a presumptively lawful condition and qualification on the commercial sale of firearms. The plaintiffs have rightly appealed the misguided ruling to the federal Ninth Circuit Court of Appeals, and the NRA and CRPA filed a brief in support of the appeal.

The other legal challenge underway is in state court. In 2014, the National Shooting Sports Foundation filed a lawsuit challenging California’s microstamping scheme. The NRA and CRPA lawyers are monitoring this suit, weighing in as needed, and are preparing to file a new lawsuit if necessary to help NSSF protect the interests of California gun owners.

The NRA and CRPA are taking action in the legislative and regulatory arenas as well. Our representatives are working with regulators to seek a policy change that would allow improved firearms to get back on the Roster. Legislation is also in the works that would fix the problem of improved guns falling off the Roster.