Update: Peña v. Lindley

March 3, 2015

A district court judge recently held that the limitations under California’s Unsafe Handgun Act, which prohibits many pistols commonly sold in the rest of the country, do not violate the Second Amendment.

The “Roster” of handguns that meets the states expansive safety requirements first implemented in 1997 excludes many popular models and is getting gradually smaller due to increasing restrictions to include unworkable microstamping requirements.

In reaching its decision, the court mistakenly concluded that the Roster doesn’t burden the Second Amendment at all because it considered the Roster to be a presumptively lawful condition and qualification on the commercial sale of firearms.

The Court’s order can be viewed here: http://michellawyers.com/wp-content/uploads/2012/06/February-25-2015-Order.pdf.

All filings in the case can be viewed here: http://michellawyers.com/guncasetracker/penavcid/.

The plaintiffs are appealing the misguided ruling to the Ninth Circuit, and the CRPA-NRA legal team will support the fight on appeal.

There is also another legal challenge underway in state court. In 2014, the National Shooting Sports Foundation (NSSF) filed a lawsuit challenging California’s microstamping scheme. A copy of the press release containing a link to the lawsuit can be found here.

That suit seeks to invalidate and enjoin enforcement of provisions of state law enacted in 2007, but not made effective until May 2013, requiring that all semiautomatic pistols sold in the state not already on the California approved handgun roster contain unproven and unreliable microstamping technology.

CRPA-NRA lawyers are also monitoring this suit and may prepare a new suit if necessary to protect the interests of California gun owners.

The roster and microstamping schemes have now resulted in two costly lawsuits that will cost California taxpayers millions to defend.

How California’s Microstamping Mandate Is A De Facto Gun Ban: Dealers Face A Shortage Of Handguns For Sale

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.

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.

Ironically, California’s misnamed “Unsafe Handgun Act” is now making it impossible for gun retailers to sell these more refined and more reliable pistols. Even though these models have passed the performance tests that California law imposes, according to California regulators even minor changes trigger the need for these guns to be retested and re-certified for sale. And since last year, a gun can only be certified if it incorporates a “microstamping” process. None of these refined handgun models have microstamping, and major manufacturers can’t incorporate this unworkable technology. 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.

California’s “Unsafe Handgun” Ban

Since January 1, 2001, California’s so-called “Unsafe Handgun Act” law has mandated that before a handgun can be sold in California it must be listed on the Roster of Handguns Certified for Sale (the “Roster”). Originally, handguns only needed to pass a drop test and other performance tests to be listed and approved for retail sale.

In 2006, the law was amended to require that all centerfire semi-automatic pistols have a loaded chamber indicator and magazine disconnect safety by January 1, 2007. The firearms that had these required features and passed the performance tests were deemed “not to be unsafe handguns.” But the firearms that were on the Roster before the law was amended were “grandfathered,” meaning they did not need to have the new features to stay on the Roster.

In 2007, notoriously anti-gun-owner then-Assembly Member Mike Feuer (now Los Angeles City Attorney) pushed a new law adding a new requirement for pistols to make it onto the Roster – microstamping.

Proponents of the microstamping bill falsely claimed that the additional cost of microstamping “would be $0.50 to $2 a gun.” But the real cost of incorporating microstamping into the manufacturing process is very expensive and doesn’t work. Although microstamping has nothing to do with making a firearm safer, Mr. Feuer touted his scheme as a law enforcement tool. But microstamping doesn’t work. Nonetheless, the law passed. You can read the history of this bill and information presented to the Legislature at the California Legislative Information website here.

The Microstamping Fraud

Implementation of the microstamping requirement was postponed until the California Attorney General could certify that microstamping technology was available to manufacturers and was not encumbered by a patent. Attorney General (now Governor) Jerry Brown did not certify that microstamping was available during his tenure Attorney General. But on May 17, 2013, Attorney General Kamala Harris certified that microstamping technology was unencumbered by any patent. The DOJ alert and certification can be read here. After that, pistols that were already on the Roster were “grandfathered” and did not need to meet the new microstamping requirement. But any new pistol seeking to be certified or re-certified for sale must now incorporate the microstamping process.

Problem is, it can’t be done. Experts agree that the microstamping process itself is not a viable technology. A U.C. Davis study shows the flaws in this process. The NSSF’s summary of the study may be found here and the full study can be found here. Even the patent holder of the microstamping process acknowledged in 2012 that the concept of microstamping requires further study and should not be mandated. Click here to view the 2012 AFTE Journal article. The attorneys at the law firm of Michel & Associates, P.C., have published a set of materials relating to microstamping, posted here. To view the National Shooting Sports Foundation (NSSF)’s background papers on microstamping, click here.

The Dilemma For Manufacturers

Gun manufacturers now face an impossible dilemma. California currently interprets the Unsafe Handgun Act to require retesting and re-certification when any change to a handgun is made, unless the change is purely cosmetic. So if a manufacturer makes a minor change to a part of a handgun, how a part of the firearm is made, what a part is made of, or any other non-cosmetic change, then the handgun must be submitted for retesting and recertified before it can be re-listed on the Roster. But 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. Gun manufacturers can’t, don’t, and won’t.

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. 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. 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 has confirmed that it is being largely forced out of the California market as a result. The statement from Ruger CEO Mike Fifer can be found here. Smith & Wesson has also made a similar announcement. An article on that announcement can be read here. Since the microstamping mandate kicked in last May, over 100 handguns have fallen off the Roster. The list of De-Certified Handgun Models can be found here. Even more disturbing, the list of “Newly Added Handgun Models” has been blank for over a month. That list can be reviewed here.

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. 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 of the planning, procurement, logistics, and warehousing aspects of manufacturing firearms with this ill-conceived technology.

Taking Action Outside The Courtroom

CRPA-NRA 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.

Help us in the fight. Donate now by clicking here.

A district court judge recently held that the limitations under California’s Unsafe Handgun Act, which prohibits many pistols commonly sold in the rest of the country, do not violate the Second Amendment.

The “Roster” of handguns that meets the states expansive safety requirements first implemented in 1997 excludes many popular models and is getting gradually smaller due to increasing restrictions to include unworkable microstamping requirements.

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