Ivan Pena v. Stephen Lindley , 898 F.3d 969 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN PENA; ROY VARGAS; DONA No. 15-15449
CROSTON; BRETT THOMAS; SECOND
AMENDMENT FOUNDATION, INC.; D.C. No.
CALGUNS FOUNDATION, INC., 2:09-cv-01185-
Plaintiffs-Appellants, KJM-CKD
v.
OPINION
STEPHEN LINDLEY, Chief of the
California Department of Justice
Bureau of Firearms,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted March 16, 2017
San Francisco, California
Filed August 3, 2018
Before: J. Clifford Wallace, M. Margaret McKeown,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Bybee
2 PENA V. LINDLEY
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of California in an action challenging three
provisions of California’s Unsafe Handgun Act.
California requires that new models of handguns meet
certain criteria, and be listed on a handgun roster, before they
may be offered for sale in the state. Two provisions require
that a handgun have a chamber load indicator and a magazine
detachment mechanism, both of which are designed to limit
accidental firearm discharges. The third provision, adopted
to aid law enforcement, requires new handguns to stamp
microscopically the handgun’s make, model, and serial
number onto each fired shell casing. Plaintiffs asserted that
these three provisions have narrowed their ability to buy
firearms in California, in violation of the Second
Amendment, and that the handgun roster scheme imposes
irrational exceptions, in violation of the Equal Protection
Clause of the Fourteenth Amendment.
The panel held that it did not need to reach the question
of whether the challenged provisions fell within the scope of
the Second Amendment’s right to bear arms because, even
assuming coverage, the provisions passed constitutional
muster. Applying intermediate scrutiny, the panel held that
the Act only regulates commercial sales, not possession, and
does so in a way that does not impose a substantial burden on
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PENA V. LINDLEY 3
purchasers. The panel held that the requirements for a
chamber load indicator and a magazine detachment
mechanism reasonably fit with California’s interest in public
safety. The panel further held that California had met its
burden of showing that the microstamping requirement was
reasonably tailored to address the substantial problem of
untraceable bullets at crime scenes and the value of a
reasonable means of identification. The panel rejected
plaintiffs’ claim that they have a constitutional right to
purchase a particular handgun and their claim that the
provisions violate the Equal Protection Clause.
Concurring in part and dissenting in part, Judge Bybee
agreed that intermediate scrutiny applied to plaintiffs’ Second
Amendment challenge. Judge Bybee also agreed that there
was a reasonable fit between the chamber load indicator and
magazine detachment mechanism requirements and the
State’s substantial interest in enhancing public safety. Judge
Bybee could not conclude, however, that the State was
entitled to summary judgment on plaintiff’s challenge to the
microstamping requirement given the state’s demanding
testing protocol, which plaintiffs alleged acts as a prohibition
on the commercial sale of new handguns in California. He
would reverse the district court and remand for further
proceedings.
4 PENA V. LINDLEY
COUNSEL
Alan Gura (argued), Gura & Possessky PLLC, Alexandria,
Virginia; Donald E. J. Kilmer Jr., Law Offices of Donald
Kilmer, San Jose, California; for Plaintiffs-Appellants.
Anthony R. Hakl (argued), Deputy Attorney General; Stepan
A. Haytayan, Supervising Deputy Attorney General; Douglas
J. Woods, Senior Assistant Attorney General; Office of the
Attorney General, Sacramento, California; for Defendant-
Appellee.
C.D. Michel and Clinton B. Monfort, Michel & Associates
P.C., Long Beach, California, for Amici Curiae National
Rifle Association of America Inc. and California Rifle and
Pistol Association.
Lance A. Selfridge and Daniel C. DeCarl, Lewis Brisbois
Bisgaard & Smith LLP, Los Angeles, California, for Amici
Curiae National Shooting Sports Foundation Inc. and
Sporting Arms and Ammunition Manufacturers’ Institute Inc.
Grace R. DiLaura and David H. Fry, Munger Tolles & Olson
LLP, San Francisco, California, for Amicus Curiae Law
Center to Prevent Gun Violence.
Eric A. Krause, White & Case LLP, Palo Alto, California;
Daniel Levin, White & Case LLP, Washington, D.C.;
Jonathan Lowy, Brady Center to Prevent Gun Violence,
Washington, D.C.; for Amicus Curiae Brady Center to
Prevent Gun Violence.
Andrew Esbenshade, Amy E. Pomerantz, and Michael R.
Leslie, Caldwell Leslie & Proctor PC, Los Angeles,
PENA V. LINDLEY 5
California, for Amicus Curiae Office of the Los Angeles City
Attorney.
Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC,
Washington, D.C.; J. Adam Skaggs and Mark Anthony
Frassetto, Everytown for Gun Safety, New York, New York;
for Amicus Curiae Everytown for Gun Safety.
OPINION
McKEOWN, Circuit Judge:
Unsurprisingly, the Second Amendment says nothing
about modern technology adopted to prevent accidental
firearm discharges or trace handguns via serial numbers
microstamped onto fired shell casings. The question before
us is whether making specific commercial gun sales
contingent on incorporating these innovations violates the
constitution. This appeal stems from a challenge to three
provisions of California’s Unsafe Handgun Act (“UHA”).
For safety reasons, California requires that new models of
handguns meet certain criteria, and be listed on a handgun
roster, before they may be offered for sale in the state. Two
provisions require that a handgun have a chamber load
indicator and a magazine detachment mechanism, both of
which are designed to limit accidental firearm discharges.
The third provision, adopted to aid law enforcement, requires
new handguns to stamp microscopically the handgun’s make,
model, and serial number onto each fired shell casing.
Ivan Pena, along with several other individuals and two
nonprofit organizations, the Second Amendment Foundation,
Inc. and the Calguns Foundation, Inc. (collectively,
6 PENA V. LINDLEY
“Purchasers”), challenge the constitutionality of the UHA.
Purchasers argue that these three provisions have narrowed
their ability to buy firearms in California, in violation of the
Second Amendment, and that the handgun roster scheme
imposes irrational exceptions, in violation of the Equal
Protection Clause of the Fourteenth Amendment. We do not
need to reach the question of whether these limitations fall
within the scope of the Second Amendment’s right to bear
arms because, even assuming coverage, these provisions pass
constitutional muster. The California law only regulates
commercial sales, not possession, and does so in a way that
does not impose a substantial burden on Purchasers. We
reject Purchasers’ claim that they have a constitutional right
to purchase a particular handgun. Nor do the provisions
violate the Equal Protection Clause. We affirm the district
court’s grant of summary judgment in favor of California.
BACKGROUND
I. The Unsafe Handgun Act
As its name implies, California’s Unsafe Handgun Act
(UHA) seeks to reduce the number of firearm deaths in the
state. The primary enforcement clause reads:
A person in this state who manufactures or
causes to be manufactured, imports into the
state for sale, keeps for sale, offers or exposes
for sale, gives, or lends an unsafe handgun
shall be punished by imprisonment in a
county jail not exceeding one year.
PENA V. LINDLEY 7
CAL. PENAL CODE § 32000(a).1 An “unsafe handgun” is
defined as “any pistol, revolver, or other firearm capable of
being concealed upon the person” and that does not have
certain safety devices, meet firing requirements, or satisfy
drop safety requirements. Id. § 31910.
The UHA charges the California Department of Justice
(“CDOJ”) with maintaining a roster of all handgun models
that have been tested by a certified testing laboratory, “have
been determined not to be unsafe handguns,” and may be sold
in the state. Id. § 32015(a).2 Effectively, the Act presumes
all handguns are unsafe unless the CDOJ determines them
“not to be unsafe.” Handguns with purely cosmetic
differences (including a difference in finish, grip material,
and shape or texture of the grip) from a handgun already on
the roster need not meet these criteria. See id. § 32030.
Over time, California has added new requirements for
inclusion on the roster. Since 2007, new models of
semiautomatic pistols must be equipped with both a chamber
load indicator (CLI) and a magazine detachment mechanism
(MDM)—safety features designed to limit accidental
discharges that occur when someone mistakenly believes no
round is in the chamber. Id. § 31910(b)(5). A CLI is a
“device that plainly indicates that a cartridge is in the firing
chamber.” Id. § 16380. An MDM is “a mechanism that
prevents a semiautomatic pistol that has a detachable
magazine from operating to strike the primer of ammunition
1
Enacted in 1999, the UHA became effective in 2001.
2
To add a handgun to the roster, a firearm manufacturer must pay a
fee so that the state may test the firearm against the statutory and
regulatory criteria. See CAL. PENAL CODE § 32015(b).
8 PENA V. LINDLEY
in the firing chamber when a detachable magazine is not
inserted in the semiautomatic pistol.” Id. § 16900.
Since 2013, new models of semiautomatic pistols need to
include a feature called “microstamping”: each such pistol
must imprint two sets of microscopic arrays of characters that
identify the make, model, and serial number of the pistol onto
the cartridge or shell casing of each fired round. Id.
§ 31910(b)(7).3 Designed to help solve crimes,
microstamping provides law enforcement with identifying
information about a handgun fired at a crime scene. See
Fiscal v. City & Cty. of S.F., 70 Cal. Rptr. 3d 324, 337 (Ct.
App. 2008).
There are exceptions to these requirements. Most
significant, the required features are inapplicable to models
of semiautomatic pistols that were “already listed on the
roster” when such requirements became effective. CAL.
PENAL CODE § 31910(b)(5), (7). In addition, firearms sold to
law enforcement officials and certain curios or relics (as
defined in the Code of Federal Regulations) are exempt.
CAL. PENAL CODE § 32000(b)(3), (4). Pistols used in
Olympic target shooting are exempt, see id. § 32105, as are
certain single action revolvers and single shot pistols of either
a certain age (a curio or relic made before 1900) or a certain
size (greater than seven-and-a-half inches), see id.
§§ 32000(b)(3), 32100. Other exemptions include firearms
transferred between private parties, see id. § 32110(a),
3
This requirement was set to begin in 2010, but did not become
effective until 2013 because it was contingent on the CDOJ certifying
“that the technology used to create the imprint is available to more than
one manufacturer unencumbered by any patent restrictions.” Id.
§ 31910(b)(7)(A).
 PENA V. LINDLEY 9
firearms delivered for consignment sale or as collateral for a
pawnbroker loan, see id. § 32110(f), and firearms used solely
as props for video production, see id. § 32110(h).
II. District Court Proceedings
Seeking to enjoin the state from enforcing the UHA, in
2009 Purchasers sued the Chief of the CDOJ Bureau of
Firearms Stephen Lindley on two constitutional theories.
Purchasers claimed that the CLI, MDM, and microstamping
requirements restricted access to the firearms of their choice,
in violation of the Second Amendment.4 Purchasers also
claimed that the UHA’s roster scheme transgressed the Equal
Protection Clause of the Fourteenth Amendment by making
irrational exceptions.
After cross-motions, briefing, and a hearing, the district
court granted summary judgment to California. Citing the
Supreme Court’s landmark decision in District of Columbia
v. Heller, 554 U.S. 570 (2008), the district court characterized
the UHA provisions as “laws imposing conditions or
qualifications on the commercial sale of firearms,” and thus
concluded that the laws presumptively did not violate the
Second Amendment. The district court observed that the
provisions were conditions on the sale of firearms, not
4
Purchasers’ theory is that handguns lacking CLI, MDM, and
microstamping technology are in common lawful use throughout the
United States and that prohibiting their sale in California violates the
Second Amendment. When the legislature amended the UHA to include
these requirements, between eleven and fourteen percent of handguns in
the United States were available with a CLI and MDM. According to
Purchasers, no handguns were available in the United States that met the
microstamping requirements. The record does not indicate whether and
how these figures have changed over time.
10 PENA V. LINDLEY
prohibitions, and that Purchasers maintained access to nearly
1,000 types of firearms on the roster, all of which were
approved for sale in California. Purchasers’ “[i]nsistence
upon . . . particular” handguns, the court concluded, simply
“f[e]ll outside the scope of the right to bear arms.”
Analysis
I. SECOND AMENDMENT
A. The Supreme Court’s Heller Framework
The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. In Heller, the Supreme
Court held that the Second Amendment protects an individual
right to possess a “lawful firearm in the home operable for the
purpose of immediate self-defense.” 554 U.S. at 635.5
Whether the UHA violates Purchasers’ Second
Amendment rights is framed by a two-step inquiry
established in Heller. We first consider whether the Act
“burdens conduct protected by the Second Amendment,” and
if it does, we “apply an appropriate level of scrutiny.”
Jackson v. City & Cty. of S.F., 746 F.3d 953, 960 (9th Cir.
2014).6
5
The Second Amendment applies to the states through the Due
Process Clause of the Fourteenth Amendment. See McDonald v. Chicago,
561 U.S. 742 (2010).
6
Once the district court answered “no” to the first question, it never
reached the second part of the analysis.
PENA V. LINDLEY 11
Whether a challenged law burdens conduct protected by
the Second Amendment depends on “the historical
understanding of the scope of the right,” including “whether
the challenged law falls within a well-defined and narrowly
limited category of prohibitions that have been historically
unprotected.” Jackson, 746 F.3d at 960. In Heller, the
Supreme Court set forth non-exhaustive categories of
“presumptively lawful regulatory measures” that are
presumed to be consistent with the historical scope of the
Second Amendment:
Although we do not undertake an exhaustive
historical analysis today of the full scope of
the Second Amendment, nothing in our
opinion should be taken to cast doubt on
longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in
sensitive places such as schools and
government buildings, or laws imposing
conditions and qualifications on the
commercial sale of arms.
Id. at 626–27 & n.26. The Court, however, did not define the
contours of these “presumptively lawful” categories. See id.
at 635 (“[T]here will be time enough to expound upon the
historical justifications for the exceptions we have mentioned
if and when these exceptions come before us.”).
In the decade since Heller, the courts of appeals have
spilled considerable ink in trying to navigate the Supreme
Court’s framework. Perhaps that is why the Seventh Circuit
observed, “[w]e do not think it profitable to parse these
passages of Heller as if they contained an answer.” United
12 PENA V. LINDLEY
States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc).
Our sister circuits have struggled to unpack the different
meanings of “presumptively lawful.” See United States v.
Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010) (“On the one
hand, this language could be read to suggest the identified
restrictions are presumptively lawful because they regulate
conduct outside the scope of the Second Amendment. On the
other hand, it may suggest the restrictions are presumptively
lawful because they pass muster under any standard of
scrutiny.”); United States v. Chester, 628 F.3d 673, 679 (4th
Cir. 2010) (“It is unclear to us whether Heller was suggesting
that ‘longstanding prohibitions’ such as these were
historically understood to be valid limitations on the right to
bear arms or did not violate the Second Amendment for some
other reason.”); Heller v. District of Columbia (Heller II),
670 F.3d 1244, 1253 (D.C. Cir. 2011) (citations omitted)
(“Heller tells us ‘longstanding’ regulations are
‘presumptively lawful,’ that is, they are presumed not to
burden conduct within the scope of the Second
Amendment.”).
Our circuit similarly has strained to interpret the phrase
“conditions and qualifications on the commercial sale of
arms.” Viewing that language as “sufficiently opaque” to
“rely[] on it alone,” we instead conducted a full textual and
historical review of the scope of the Second Amendment in
a recent challenge. Teixeira v. Cty. Of Alameda, 873 F.3d
670, 683 (9th Cir. 2017) (en banc).
The opaqueness of the presumption of legality for
“conditions and qualifications on the commercial sale of
arms” likely explains why we and other courts often have
assumed without deciding that a regulation does burden
conduct protected by the Second Amendment rather than
PENA V. LINDLEY 13
parse whether the law falls into that exception. In these
cases, the court avoided having to define the contours of the
commercial sales category because it assumed the Second
Amendment applied and upheld the restriction under the
appropriate level of constitutional scrutiny.7
We, too, follow this well-trodden and “judicious course.”
Wollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013). We
assume without deciding that the challenged UHA provisions
burden conduct protected by the Second Amendment because
we conclude that the statute is constitutional irrespective of
that determination. By making this assumption, we bypass
the constitutional obstacle course of defining the parameters
of the Second Amendment’s individual right in the context of
commercial sales. Thus, we have no occasion to engage with
the dissent’s extensive exegesis on this point.
B. Determination of the Appropriate Level of
Scrutiny
Because we assume that the UHA implicates Purchasers’
right to bear arms, our next task is to determine the
appropriate level of scrutiny for review of the California
requirements. Purchasers stump for strict scrutiny while
California invites intermediate, at most.
7
See Silvester v. Harris, 843 F.3d 816, 827–29 (9th Cir. 2016)
(assuming a ten-day waiting period on the purchase of a firearm burdened
conduct protected by the Second Amendment and applying intermediate
scrutiny); Wilson v. Lynch, 835 F.3d 1083, 1092 (9th Cir. 2016) (applying
intermediate scrutiny to a regulation prohibiting possessors of medical
marijuana card from buying firearms), cert. denied, 137 S. Ct. 1396
(2017); cf. Jackson, 746 F.3d at 967–68 (applying intermediate scrutiny
to a ban on the sale of hollow-point ammunition).
14 PENA V. LINDLEY
Our post-Heller decisions generally have applied
intermediate scrutiny to firearms regulations. See Silvester,
843 F.3d at 822 (upholding a ten-day waiting period on the
sale of firearms to those who already own one); Wilson,
835 F.3d at 1092 (upholding ban on possession by holders of
state medical marijuana cards); Fyock, 779 F.3d at 1000–01
(refusing to preliminarily enjoin an ordinance banning
possession of high-capacity magazines); Jackson, 746 F.3d at
966, 970 (upholding ordinances requiring firearms to be
stored in a locked container when not carried on the person
and forbidding the purchase of hollow-point ammunition);
United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013)
(upholding a ban on firearm possession by people convicted
of domestic violence).
Which level of scrutiny to apply depends on “how close
the law comes to the core of the Second Amendment right”
and “the severity of the law’s burden on the right.” Id. at
1138. We strictly scrutinize a “law that implicates the core of
the Second Amendment right and severely burdens that
right.” Silvester, 843 F.3d at 821. Otherwise, we apply
intermediate scrutiny if the law “does not implicate the core
Second Amendment right or does not place a substantial
burden on that right.” Fyock, 779 F.3d at 998–99.
Consistent with our threshold decision not to assess
whether the California restrictions fall within the Second
Amendment, we need not answer conclusively whether the
UHA’s restrictions implicate the core Second Amendment
right of “self defense of the home.” Silvester, 843 F.3d at 821
(citing Heller, 554 U.S. at 628–29). Because the restrictions
do not substantially burden any such right, intermediate
scrutiny is appropriate.
PENA V. LINDLEY 15
At the outset, it is important to understand what the
statute does and does not do vis-à-vis handguns, the
“quintessential self-defense weapon.” Heller, 554 U.S. at
629. Moving forward, the statute limits commercial sales of
new models of semiautomatic pistols to those with the CLI,
MDM, and microstamping protections. Importantly, the
UHA “grandfathers” hundreds of handgun models on the
approved guns roster that do not meet the new requirements.
The statute does not restrict possession of handguns in the
home or elsewhere (with or without CLI, MDM, and
microstamping features). The statute also includes a number
of exemptions. For example, the statute does not affect the
sale of off-roster existing handguns in private sales
transactions. Nor are out-of-state sales regulated.
In weighing the severity of the burden, we are guided by
a longstanding distinction between laws that regulate the
manner in which individuals may exercise their Second
Amendment right, and laws that amount to a total prohibition
of the right. See Chovan, 735 F.3d at 1138; accord Heller II,
670 F.3d at 1251–58 (reasoning that gun-registration
requirements do not severely burden the Second Amendment
because they do not “prevent[] an individual from possessing
a firearm in his home or elsewhere”); Marzzarella, 614 F.3d
at 97 (distinguishing between a law requiring handguns to
bear original serial numbers, and Heller’s law prohibiting the
possession of handguns). The UHA is of the former
variety—regulation of the manner of use, not
possession—and thus affects Second Amendment rights less
severely. See Silvester, 843 F.3d at 827 (“[L]aws which
regulate only the ‘manner in which persons may exercise
their Second Amendment rights’ are less burdensome than
those which bar firearm possession completely.” (citation
omitted)).
16 PENA V. LINDLEY
The CLI, MDM, and microstamping requirements place
almost no burden on the physical exercise of Second
Amendment rights. There is no evidence that CLIs or
microstamping interferes with the functioning of any arms.
Although MDMs might prevent a gun from firing at will, it is
likely a rare occurrence when someone has time to put a
round from outside a magazine in the chamber without
inserting the magazine itself. CLIs and MDMs are designed
to make the handgun owner aware of when there is
ammunition in the chamber. That feature not only prevents
accidental discharges—which itself protects “hearth and
home”—but also informs the owner when the gun is loaded
so that the weapon may be fired in self-defense.
Perhaps recognizing the absence of a physical burden,
Purchasers assert a substantial burden because the UHA
precludes them from buying in California the majority of
Smith & Wesson’s handguns, two of Ruger’s most popular
models, and the fourth generation of Glocks. But being
unable to purchase a subset of semiautomatic weapons,
without more, does not significantly burden the right to self-
defense in the home. See Heller, 554 U.S. at 626 (“[T]he
Second Amendment right is not unlimited. . . . [T]he right
was not a right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose.”).
Indeed, all of the plaintiffs admit that they are able to buy
an operable handgun suitable for self-defense—just not the
exact gun they want. Purchasers have adduced little evidence
that the handguns unavailable for purchase in California are
materially more effective for self-defense than handguns
PENA V. LINDLEY 17
currently for sale in the state.8 See Jackson, 746 F.3d at 968
(looking at self-defense effectiveness during this inquiry).9
Contrary to Purchasers’ assertion, the severity of the burden
is not “obvious[].”
Any burden on the right is lessened by the UHA’s
exceptions, which allow for the purchase of firearms that do
not have the CLI, MDM, and microstamping features. See
Chovan, 735 F.3d at 1138 (holding that a “substantial[]
8
The evidence is slim. One Purchaser was born without a right arm
and wishes to buy a Glock with an ambidextrous magazine release, which
is better suited for left-handed people. A similar Glock model is listed on
the CDOJ roster, except it does not include the ambidextrous release.
Apparently, the CDOJ determined that the ambidextrous release was not
purely a cosmetic change and declined to list the model without going
through its testing and registration protocols. Two others wish to purchase
handguns not on the roster. A fourth wishes to purchase a firearm that is
on the roster, but in a different color. Apparently, the manufacturer has
not yet paid the fee to submit that change to the CDOJ to see if the gun
can be listed as cosmetically “similar” to the model already on the roster.
9
Purchasers point to the declining number of handguns listed on the
roster. At the end of 2013, the CDOJ’s handgun roster contained 1,273
handguns and 883 semiautomatics. As of oral argument in March 2017,
it contained 744 handguns and 496 semiautomatics. Roster of Handguns
Certified for Sale, CAL. DEP’T JUST., http://certguns.doj.ca.gov (last
visited Mar. 2, 2017). But simply showing that the number of entries on
the roster has decreased does not tell us much about whether the
availability of handguns has declined in a way relevant to the Second
Amendment. It is not the number of handguns on the roster that matters,
it is the impact on self-defense in the home. Some handguns might not be
on the roster for the simple reason that they have not been submitted to
DOJ for testing for reasons wholly unrelated to CLIs, MDMs, and
microstamping. And, handguns could have fallen off the list simply
because no one paid the fee to keep them on. The mere fact of a declining
number of rostered handguns does not satisfy Purchasers’ obligation to
show a substantial burden.
18 PENA V. LINDLEY
burden[] . . . is lightened by . . . exceptions”). For example,
Purchasers may buy handguns without the three features if
such firearms are grandfathered on the roster, and may buy
off-roster handguns in private transactions. There is no
evidence in the record that the hundreds of firearms available
for purchase are inadequate for self-defense. See Decastro,
682 F.3d at 168 (“[A] law that regulates the availability of
firearms is not a substantial burden on the right to keep and
bear arms if adequate alternatives remain for law-abiding
citizens to acquire a firearm for self-defense.”).
Because the UHA does not effect a substantial burden, we
conclude that intermediate scrutiny is adequate to protect the
claimed Second Amendment rights at issue here.
C. Application of Intermediate Scrutiny to the UHA
Provisions
Intermediate scrutiny requires (1) a significant,
substantial, or important government objective, and (2) a
“reasonable fit” between the challenged law and the asserted
objective. Jackson v. City & Cty. of San Francisco, 746 F.3d
953, 965 (9th Cir. 2014). The government must show that the
regulation “promotes a ‘substantial government interest that
would be achieved less effectively absent the regulation,’”
but not necessarily that the chosen regulation is the “least
restrictive means” of achieving the government’s interest.
Fyock, 779 F.3d at 1000 (quoting Chovan, 735 F.3d at 1139).
When considering California’s justifications for the
statute, we do not impose an “unnecessarily rigid burden of
proof,” and we allow California to rely on any material
“reasonably believed to be relevant” to substantiate its
interests in gun safety and crime prevention. Mahoney v.
PENA V. LINDLEY 19
Sessions, 871 F.3d 873, 881 (9th Cir. 2017). Hence, our
analysis of whether there is a “reasonable fit between the
government’s stated objective and the regulation” considers
“the legislative history of the enactment as well as studies in
the record or cited in pertinent case law.” Fyock, 779 F.3d at
1000 (9th Cir. 2015) (internal citations marks omitted).
It is important to note that we are weighing a legislative
judgment, not evidence in a criminal trial. Because
legislatures are “not obligated, when enacting [their] statutes,
to make a record of the type that an administrative agency or
court does to accommodate judicial review,” we should not
conflate legislative findings with “evidence” in the technical
sense. Minority Television Project, Inc. v. F.C.C., 736 F.3d
1192, 1199 (9th Cir. 2013) (en banc) (internal citations and
quotation marks omitted).
Nor do we substitute our own policy judgment for that of
the legislature. Id. When policy disagreements exist in the
form of conflicting legislative “evidence,” we “owe [the
legislature’s] findings deference in part because the
institution is far better equipped than the judiciary to amass
and evaluate the vast amounts of data bearing upon legislative
questions.” Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180,
195 (1997) (internal citations and quotation marks omitted);
see also id. (“In reviewing the constitutionality of a statute,
courts must accord substantial deference to the predictive
judgments of Congress.” (internal quotation marks omitted)).
“It is not our function to appraise the wisdom of
[California’s] decision to require” new semiautomatic gun
models manufactured in-state to incorporate new technology;
instead, the state “must be allowed a reasonable opportunity
to experiment with solutions to admittedly serious problems.”
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 52
20 PENA V. LINDLEY
(1986). These principles apply equally to benchmarking the
efficacy as well as the technological feasibility of the
regulations. Therefore, in the face of policy disagreements, or
even conflicting legislative evidence, “we must allow the
government to select among reasonable alternatives in its
policy decisions.” Peruta v. Cty. of San Diego, 824 F.3d 919,
944 (9th Cir. 2016) (en banc) (Graber, J., concurring), cert.
denied, 137 S. Ct. 1995 (2017); accord Kachalsky v. Cty. of
Westchester, 701 F.3d 81, 99 (2d Cir. 2012) (“It is the
legislature’s job, not ours, to weigh conflicting evidence and
make policy judgments.”).
Our role is not to re-litigate a policy disagreement that the
California legislature already settled, and we lack the means
to resolve that dispute. Fortunately, that is not our task. See
City of Renton, 475 U.S. at 51–52. And, as required by
precedent, California’s evidence “fairly support[ed]” its
conclusions. Jackson, 746 F.3d at 969.
1. The CLI and MDM Requirements
There is no doubt that the governmental safety interests
identified for the CLI and MDM requirements are substantial.
California represents that the legislature’s goal in requiring
CLIs and MDMs “was targeting the connection between
cheaply made, unsafe handguns and injuries to firearms
operators and crime.” These interests are undoubtedly
adequate. See, e.g., Schenck v. Pro-Choice Network of W.
N.Y., 519 U.S. 357, 376 (1997); Jackson, 746 F.3d at 965–66;
see also Silvester, 843 F.3d at 827 (“[The statute at issue] has
. . . the objective of promoting safety and reducing gun
violence. The parties agree that these objectives are
important. The first step is undisputedly satisfied.”).
PENA V. LINDLEY 21
The CLI and MDM requirements also reasonably fit with
California’s interest in public safety. A CLI lets someone
know that a gun is loaded without even having to pick it up to
check; it acts as a red flag for those handling the gun who
may have forgotten that it was loaded. An MDM prevents a
firearm from shooting unless a magazine is inserted. Without
an MDM, a magazine-equipped pistol can be fired if there is
a bullet in the chamber, even if the magazine has not been
inserted.
In one sense then, an MDM disables a gun capable of
providing self-defense. But the practical effect strikes us as
a rare instance. Because it is more likely that people will
associate firearms that have magazines with loaded firearms
and firearms that do not have magazines with unloaded
firearms, the legislature could reasonably predict that the
MDM could prevent accidental discharges of the weapon.
The legislative judgment that preventing cases of accidental
discharge outweighs the need for discharging a gun without
the magazine in place is reasonable. The legislative history
cites studies confirming this common-sense conclusion.
Purchasers do not provide any reliable evidence that these
studies are incorrect or that CLIs or MDMs will clearly
thwart, rather than advance, California’s goal of saving lives
by preventing accidental discharges. The fit between the
prevention of accidental discharges and the requiring of CLIs
and MDMs on not-yet-rostered handguns is a reasonable one.
Purchasers argue that the UHA’s requirements have
“nothing to do with consumer safety” because the UHA
“exempts specially-favored individuals whose safety is no
less important[] [and] mandates alleged ‘safety’ features that
California instructs consumers to ignore as unreliable.”
Purchasers point to exemptions in the UHA for law
22 PENA V. LINDLEY
enforcement, entertainment industry-related props, intra-
family transfers, and private-party transfers. See, e.g., CAL.
PENAL CODE §§ 32000(b)(4) (law enforcement), 32110(a)
(private party transfer), 32110(h) (entertainment industry
props), 27875 (intra-family transfers). Although Purchasers
are correct that these groups are exempt from the UHA, that
underinclusiveness does not doom the MDM and CLI
requirements under intermediate scrutiny. See Minority
Television Project, 736 F.3d at 1204 (“Unlike strict scrutiny,
intermediate scrutiny does not require that the means . . . be
the least restrictive.”). The exceptions are not so pervasive or
without basis as to make the fit unreasonable.
Purchasers further fault the UHA because “not every
aspect of the roster obviously advances the state’s regulatory
interest.” Purchasers argue that once a gun has been deemed
“safe” and put on the roster and then falls off the roster for
administrative reasons, California has no interest in deeming
it “unsafe.” We do not agree. Although purely
administrative reasons may not have anything to do with a
weapon’s performance and safety—just as not having a
current driver’s license is not proof that the driver is not a
safe driver—we will not interfere with the orderly
administration of California’s roster. We are not here to
order California to re-list weapons where the manufacturers
or importers have otherwise failed to comply with California
law.
Purchasers also argue that California “teaches consumers
to disregard [CLIs] and [MDMs], [so] requiring handguns to
have these features actually impedes the state’s safety
interests.” Amicus briefs filed in support of Purchasers add
that the regulations, by encouraging people to look for or rely
on a CLI or a MDM, respectively, “inevitably discourage[]
PENA V. LINDLEY 23
individuals from actually checking to see whether a firearm
is loaded.” This, amici tell us, “may increase the likelihood
of an unintentional discharge.” We disagree. California does
not instruct consumers to disregard CLIs and MDMs.
Instead, the regulations simply mean that consumers should
not rely entirely on them or assume that just because a
magazine is out or the CLI is not popped up, the weapon is
incapable of being dangerous. “Treat all guns as if they are
loaded,” California tells gun-owners. That is just good, old-
fashioned common sense. Cf. United States v. Carona,
660 F.3d 360, 368–69 (9th Cir. 2011) (“That some wear a belt
and suspenders does not prove the inadequacy of either to
hold up the pants, but only the cautious nature of the person
wearing the pants.” (citation omitted)).
We conclude that the CLI and MDM regulations pass
intermediate scrutiny. See Draper v. Healey, 98 F. Supp. 3d
77, 85 (D. Mass. 2015) (holding that Massachusetts’ CLI and
MDM regulations pass “any standard of scrutiny”), aff’d on
other grounds, 827 F.3d 1 (1st Cir. 2016).
2. The Microstamping Requirement
The UHA’s microstamping requirement also passes
constitutional muster under intermediate scrutiny. Purchasers
acknowledge that California’s two stated objectives for the
microstamping requirement—public safety and crime
prevention—are substantial government interests. Countless
cases support this concession. See, e.g., Schenck, 519 U.S. at
376 (public safety); United States v. Salerno, 481 U.S. 739,
750 (1987) (crime prevention). More specifically,
“preserving the ability of law enforcement to conduct serial
number tracing—effectuated by limiting the availability of
untraceable firearms—constitutes a substantial or important
24 PENA V. LINDLEY
interest.” United States v. Marzzarella, 614 F.3d 85, 98 (3d
Cir. 2010). Serial number tracing “enabl[es] law enforcement
to gather vital information about recovered firearms.” Id.
The same logic applies to recovered bullets, and counsels the
conclusion that limiting the availability of untraceable bullets
serves a substantial government interest.
California also has established a “reasonable fit” between
these substantial interests and the microstamping
requirement. The legislative history supporting the
microstamping provision describes California’s “enormous
and diverse” problem regarding unsolved homicides
committed with handguns. In approximately 45 percent of all
homicides in California, no arrests are made because police
lack the needed evidence, and more than 60 percent of the
homicides in California are committed with handguns.
According to the legislative history, microstamping would
“provide rapid leads in the first crucial hours after a
homicide” because police could match a bullet found at a
crime scene with the registered owner. This data is
particularly critical in drive-by-shootings, the legislature
observes, where the only evidence at the crime scene may be
spent cartridges. California is dealing with a real-world
problem and has crafted a real-world solution.
The California legislature considered and rejected other,
more intrusive solutions to combat the unsolved homicide-by-
handgun problem. The legislature found that microstamping
technology improved the accuracy of ballistic identification
“without requiring the manpower and expense associated
with the creation and maintenance of a ballistic image
database containing millions of images.” Purchasers do not
suggest a less invasive approach to curbing unsolved handgun
homicides.
PENA V. LINDLEY 25
Instead, Purchasers contest California’s evidence that
microstamping will address the problem effectively.
California presented evidence that existing microstamping
technology is accurate 96 percent of the time. Purchasers
caution that the microstamping technology is not as reliable
as California claims. The standard does not demand that
California’s solution be a perfect one. At the time it
considered this provision, the California legislature weighed
competing evidence on effectiveness before enacting the
statute. California’s evidence need only “fairly support[]” its
conclusions. Jackson, 746 F.3d at 969. California has gone
well beyond this threshold requirement.
Purchasers also argue that microstamping is
impracticable.10 Although this case involves the Purchasers,
not the manufacturers, the Purchasers cloak their argument in
the language of the producers. The reality is not that
manufacturers cannot meet the standard but rather that they
have chosen not to. Purchasers offered evidence that gun
manufacturers have not “produced a functioning,
commercially available semiautomatic pistol” equipped with
the microstamping technology and they “have no plans to
attempt to do so.” The declarations offered are “lacking in
details,” as the dissent candidly notes, and rest on conclusory
language, such as “appears infeasible” or “cannot practically
implement.” Simply because no gun manufacturer is “even
10
The California Supreme Court recently ordered judgment in favor
of California in a challenge brought to invalidate the UHA as “impossible”
to comply with under state law, observing that the plaintiffs had not
“petitioned for a writ of mandate against the [California] Department of
Justice for improperly certifying the availability of dual placement
microstamping technology.” Nat’l Shooting Sports Found., Inc. v. State,
No. S239397, 2018 WL 3150950, at *4 (Cal. June 28, 2018).
26 PENA V. LINDLEY
considering trying” to implement the technology, it does not
follow that microstamping is technologically infeasible.
Notably, the parties agree that semiautomatic handguns
are not subject to the microstamping requirement and are
grandfathered as long as the manufacturer continues to pay a
roster fee and the firearms do not fail a retest. We thus find
it odd, indeed, that the manufacturers indirectly assert a right
to sell new models of—modern—semiautomatic handguns,
but refuse to modernize their firearms by installing
microstamping features. We need not accept wholesale that
manufacturers will decline to implement this new public
safety technology in the face of California’s evidence that the
technology is available and that compliance is feasible.11
It is ironic that Purchasers filed a cross-motion for
summary judgment, agreeing with California that “[t]his
case’s essential facts are not in dispute.” As Purchasers lay
out in their cross-motion:
11
The argument here echoes a similar one made for decades about
airbags. See Chrysler Corp. v. Dep’t of Transp., 472 F.2d 659 (6th Cir.
1972) (“The petitioners next contend that Standard 208 is not practicable
because airbag technology is not, at present, developed to the point where
airbags can be installed in all presently manufactured cars.”); Frank
Waters, Air Bag Litigation: Plaintiffs, Start Your Engines, 13 Pepp. L.
Rev. 4 (1986) (“There is mounting concern that because automobile
manufacturers and governmental agencies have not been successful in
paving the way toward air bag installation, consumers may never receive
the benefit of this lifesaving device.”); Nat’l Highway Traffic Safety
Admin., Airbags, available at http://www.nhtsa.gov/equipment/air-bags
(“In 25 years—from 1987 to 2012—frontal air bags saved 39,976 lives.”).
As with that debate, it may be that protests about technical ability to
comply reflect a reluctance to comply.
PENA V. LINDLEY 27
Defendant admits that no handguns for sale in
the United States have the microstamping
technology required by California’s roster
law. No firearms manufacturer has submitted
any microstamping-compliant handguns, and
Defendant has no information as to whether
any manufacturer will ever produce
microstamping handguns. Accordingly, the
microstamping requirement imposes a de
facto ban on the sale of all new semiautomatic
handgun models in California.
For Purchasers, it is enough that manufacturers say that they
will not and “cannot” comply. But that begs the question of
the deference we provide to California’s lawmakers, who
made a considered judgment.
California’s evidence carries the day in the legislative
context. The state produced evidence that compliance with
the microstamping requirement is “technologically possible”
and would cost an incremental $3.00 to $10.00 per gun. By
2008, the inventor of microstamping had publicly tested the
technology with local police departments across the country.
In those tests, he gave microstamping-equipped firearms and
cartridges to local range officers so that they could observe
the stamped cartridges and extract their codes. Overall, the
technology was publicly tested seven times with seven
different police departments, including in Sacramento and
Los Angeles before the law was enacted. In addition to this
critical evidence, the legislature considered studies showing
that microstamping technology generally works.
Throughout the legislative process and in this litigation,
the state has reasonably relied on Todd Lizotte, the inventor
28 PENA V. LINDLEY
of microstamping. For over fifteen years, Lizotte has shared
his expertise by testifying before state legislative committees,
conducting public tests, and contributing to articles that
appear in law enforcement periodicals, technical journals, and
newspapers. During consideration of the UHA, Lizotte
answered technical questions from the drafting committee,
and the legislative history contains multiple references to
Lizotte and his company, NanoMark Technologies. Given
his extensive firsthand knowledge, it is significant that
Lizotte concluded that “20 years of development, testing and
public demonstrations show that microstamping can be
implemented,” that “[p]rinting two separate codes on the
firing pin is feasible,” and that “it is possible for firearm
manufacturers to implement microstamping technology
contemplated by the California legislation.”
The judgment California made about technological
feasibility is no less predictive than the judgment on efficacy.
In both cases, the legislators reviewed the record, including
conflicting testimony. We cannot countenance the dissent’s
effort to draw an artificial distinction and hold California to
a standard never before imposed. The dissent suggests that
California must produce specific evidence of compliance with
its own microstamping requirement in a “laboratory.” But the
state need not don lab coats, equip semiautomatic firearms
with microstamping technology, and test the technological
feasibility results itself. That is far too exacting a standard of
“proof” in the context of intermediate legislative scrutiny.
See City of Renton, 475 U.S. at 52. In effect, the dissent
would transform the state into a gun manufacturer. Instead,
California may “predict[]” as a policy judgment that gun
manufacturers are capable of outfitting firearms with
“available” technology when experts state that compliance is
technologically “feasible.” Turner, 520 U.S. 16 at 195.
PENA V. LINDLEY 29
Reliance on experts is particularly understandable here, since
a government “considering an innovative solution may not
have data that could demonstrate the efficacy of its proposal
because the solution would, by definition, not have been
implemented previously.” Alameda Books, 535 U.S. at
439–40 (O’Connor, J., announcing the judgment of the court).
California’s microstamping requirement is the first of its
kind, an “experimental” solution “to admittedly serious
problems.” City of Renton, 475 U.S. at 52. The
microstamping requirement only became effective after the
CDOJ certified that the technology “is available to more than
one manufacturer unencumbered by any patent restrictions.”
It bears noting that a second microstamping law became
effective this year, in the District of Columbia. See D.C.
Code Ann. §§ 7-2504.08; 7-2505.03. The District initially set
its applicability date “in order to incorporate best practices
learned from California’s experience” and “to allow the
model being developed in California to be refined.” District
of Columbia Committee Report, B. 18-963 (2010). As
Justice Brandeis famously wrote, “a single courageous state
may, if its citizens choose, serve as a laboratory,” and “try
novel [legislative] experiments.” New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)
(emphasis added). But we have never forced an
experimenting state to prove its policymaking judgment with
scientific precision, especially when expert opinion supports
the decision.
Even if microstamping proves technologically infeasible
or ineffective, the UHA authorizes an alternative process: The
California Attorney General “may also approve a method of
equal or greater reliability and effectiveness in identifying the
specific serial number of a firearm from spent cartridge
30 PENA V. LINDLEY
casings discharged by that firearm than that which is set forth
in this paragraph.” CAL. PENAL CODE § 31910(b)(7)(B).12
Microstamping or an authorized alternative may indeed
“represent[] an important advance in the techniques used by
law enforcement to serve legitimate police concerns.” See
Maryland v. King, 133 S. Ct. 1958, 1975 (2013). In King, the
Supreme Court justified additional Fourth Amendment
intrusion because of DNA technology’s promise in serving
“important” identification interests:
DNA identification is an advanced technique
superior to fingerprinting in many ways, so
much so that to insist on fingerprints as the
norm would make little sense to either the
forensic expert or a layperson. The additional
intrusion upon the arrestee’s privacy beyond
that associated with fingerprinting is not
significant . . . and DNA is a markedly more
accurate form of identifying arrestees.
Id. at 1976. The Court held that DNA identification secured
by swabbing the inside of an arrestee’s cheek is “no more
than an extension of methods of identification long used in
dealing with persons under arrest” and so did not violate the
Fourth Amendment’s protection against unreasonable
searches. Id. at 1977 (internal citation omitted).
Similarly, microstamping is an extension of identification
methods long used in imprinting serial numbers on guns. The
Third Circuit upheld under heightened scrutiny a statute
12
Such alternative method must also be “unencumbered by any patent
restrictions.” Id.
PENA V. LINDLEY 31
punishing receipt or possession of any firearm on which the
manufacturer’s serial number was removed, obliterated, or
altered. See Marzzarella, 614 F.3d at 98–99. The court held
that “[r]egulating the possession of unmarked firearms . . . fits
closely with the interest in ensuring the traceability of
weapons,” and so 18 U.S.C. § 922(k) survives intermediate
scrutiny. Id. at 99.13
During consideration of the UHA, the California
legislature considered microstamping to be a modification on
the federal serial number law upheld by the Third Circuit. As
in King, any additional constitutional intrusion beyond
requiring serial numbers is “not significant” and justified by
“scientific advancements.” 133 S. Ct. at 1975–76. Indeed,
“new technology will only further improve” microstamping’s
effectiveness. Id. at 1977.
We are not convinced that the microstamping requirement
impinges any further on Second Amendment rights than the
serial number law approved in Marzzarella. That law
punishes receipt or possession—in addition to sale or
transfer—of any firearm on which the manufacturer’s serial
number was removed, obliterated, or altered. 614 F.3d at 88
n.1 (citing 18 U.S.C. § 922(k)). California law does not go so
far—it does not ban possession or use of guns manufactured
without microstamping features. Instead, the UHA sanctions
only someone who “manufactures,” “imports into the state for
sale,” “keeps for sale,” “offers or exposes for sale,” or “gives
13
18 U.S.C. § 922(k) makes it “unlawful for any person knowingly
to transport, ship, or receive . . . any firearm which has had the importer’s
or manufacturer’s serial number removed, obliterated, or altered or to
possess or receive any firearm which has had the importer’s or
manufacturer’s serial number removed, obliterated, or altered.”
32 PENA V. LINDLEY
or lends an unsafe handgun.” CAL. PENAL CODE § 32000(a).
The microstamping restrictions on commercial manufacture
and sale implicate the rights of gun owners far less than laws
directly punishing the possession of handguns. See D.C. v.
Heller, 554 U.S. 570, 627 (2008); Teixeira v. Cty. of
Alameda, 2017 WL 4509038, at *8 (9th Cir. Oct. 10, 2017)
(en banc) (“[G]un buyers have no right to have a gun store in
a particular location, at least as long as their access is not
meaningfully constrained.”). In addition, the law at issue in
Marzzarella applies to “any firearm” that once had a serial
number. The microstamping provision, however, regulates
only new models of semiautomatic weapons offered for sale
in California after May 2013.
California is entitled to “a reasonable opportunity to
experiment with solutions to admittedly serious problems.”
City of Renton, 475 U.S. at 52. The microstamping
requirement need not be “the least restrictive means of”
reducing the number of unsolved handgun homicides.
Jackson, 746 F.3d at 966. California has met its burden to
show that microstamping is reasonably tailored to address the
substantial problem of untraceable bullets at crime scenes and
the value of a reasonable means of identification.
Accordingly, the requirement passes intermediate scrutiny.
II. EQUAL PROTECTION CLAUSE
Purchasers also claim that the UHA’s three requirements
violate the Equal Protection Clause of the Fourteenth
Amendment. We disagree. To the extent that the Equal
Protection challenge is based on the Second Amendment’s
fundamental right to bear arms and the disparate treatment of
groups in exercising that right, as recognized by McDonald,
that challenge is subsumed in the Second Amendment inquiry
PENA V. LINDLEY 33
above. See Orin v. Barclay, 272 F.3d 1207, 1213 (9th Cir.
2001) (treating an “equal protection claim as subsumed by,
and co-extensive with, his First Amendment claim”).
Purchasers do not allege that they are part of any suspect
or quasi-suspect class.14 “[A] statutory classification [that
treats similarly situated persons differently] that neither
proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.”
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993); see
Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.
1995) (requiring, as a prerequisite, that there be a “similarly
situated” class of persons (citation omitted)). Thus, the
regulations need do no more than “bear[] a rational relation
to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631
(1996). Purchasers “have the burden ‘to negative every
conceivable basis which might support it,’” and each basis
will be afforded a “strong presumption of validity.” FCC,
508 U.S. at 314–15. But Purchasers have failed to carry that
burden and demonstrate that any of the differences in
treatment by the UHA challenged here lack a rational basis.
Purchasers challenge the UHA’s exceptions for sales to
sworn members of law enforcement agencies, sales of curios
14
Purchasers allege that the UHA discriminates “on the basis of state
residence” and this “normally triggers strict scrutiny.” But because
Purchasers pursue this line of reasoning no further—and, in fact, admit
that strict scrutiny has not been used when laws discriminate against in-
state residents as opposed to out-of-state residents—it is forfeited. See
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (refusing to
manufacture arguments for an appellant who made bare assertions in an
opening brief).
34 PENA V. LINDLEY
and relics, and use in movie and television productions. See
CAL. PENAL CODE §§ 32000(b)(3), (4), 32110(h). But we
have already said that “[i]t is manifestly rational for at least
most categories of peace officers to possess and use firearms
more potent than those available to the rest of the populace in
order to maintain public safety.” Silveira v. Lockyer,
312 F.3d 1052, 1089 (9th Cir. 2003), abrogated on other
grounds by Heller, 544 U.S. 570. Purchasers point out that
the UHA’s exception does not limit law enforcement officers
to use of their weapons only during “official duties.” Even
so, the legislature could rationally conclude that because law
enforcement officers receive extensive training and are
expected to respond to emergencies even when off duty, such
safety provisions might not be necessary for them. That is a
rational explanation.
Purchasers’ challenge to the exceptions for curios and
relics and weapons used in film and television also have a
rational justification. The curios-and-relics provision
grandfathers “[f]irearms which are of special interest to
collectors by reason of some quality other than is associated
with firearms intended for sporting use or as offensive or
defensive weapons.” 27 C.F.R. § 478.11, para. Curios or
Relics; see CAL. PENAL CODE § 32000(b)(3) (incorporating
the federal definition found at 27 C.F.R. § 478.11). These
include firearms more than fifty years old, “curios or relics of
museum interest,” and firearms valuable because they are
“novel, rare, bizarre, [or associated with] some historical
figure, period, or event.” 27 C.F.R. § 478.11, para. Curios or
Relics, subsec. (a)–(c). Because collectors hold these
weapons for reasons other than “as offensive or defensive
weapons,” the exemption is a rational one. Similarly, the
video-production exemption is rational because those
weapons, one anticipates, are not intended to be used for live
PENA V. LINDLEY 35
fire. The fit of these exemptions may not be perfect—and we
express no view how these exceptions might fare under more
exacting standards of scrutiny—but it is sufficient to satisfy
rational basis scrutiny.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of California.
AFFIRMED.
BYBEE, Circuit Judge, concurring in part and dissenting in
part:
Under California’s Unsafe Handgun Act (UHA), any new
semiautomatic handguns commercially sold in the state must
be equipped with three technical features: a chamber load
indicator (CLI), a magazine detachment mechanism (MDM),
and microstamping.1 CAL. PENAL CODE §§ 32000(a),
31910(b)(1)–(7). For the reasons explained in the majority
opinion, I agree that intermediate scrutiny applies to
Plaintiffs’ Second Amendment challenge. I also agree that
there is a reasonable fit between the CLI and MDM
requirements and the State’s substantial interest in enhancing
public safety. See United States v. Chovan, 735 F.3d 1127,
1139 (9th Cir. 2013) (“[T]he intermediate scrutiny standard
. . . require[s] (1) the government’s stated objective to be
significant, substantial, or important; and (2) a reasonable fit
between the challenged regulation and the asserted
1
The UHA exempts from these three requirements any handguns that
were “already listed on the roster” of approved handguns before the
requirements were enacted. See CAL. PENAL CODE § 31910(b)(5)–(7)(A).
36 PENA V. LINDLEY
objective.”). Both mechanisms help prevent accidental
handgun discharges by decreasing the likelihood that a person
will mistakenly believe that the firing chamber is empty. I
therefore join these portions of the majority opinion.2
I part company with the majority, however, over the
microstamping provision.3 Plaintiffs have raised two
different points. First, they argue that the mechanism for
stamping cartridge casings can be disabled by the owner, thus
undoing the benefits of microstamping. The State and its
amici emphasize that microstamping is a proven technology
and that, even if some owners disable the microstamping
mechanism, it will aid the police in solving crimes. They
urge us to defer to the California legislature’s judgment on
the overall usefulness of microstamping. The majority
agrees. Pointing to “evidence that the technology is
available,” Maj. Op. at 26; see also id. at 27–28, the majority
concludes that “California has gone well beyond [the]
2
I also join the majority opinion in concluding that the three
provisions do not violate the Equal Protection Clause.
3
Microstamping is a mechanism that can imprint a cartridge casing
“with a microscopic array of characters that identify the make, model, and
serial number of the pistol” that fired the round. CAL. PENAL CODE
§ 31910(b)(7)(A). Microstamping involves laser micromachining
alphanumeric characters linked to a handgun’s make, model, and serial
number onto a handgun’s interior surfaces. Once a microstamped surface,
such as the tip of the firing pin or the breech face, impacts the cartridge
casing after the handgun is fired, that surface will imprint the casing with
its identifying characters. If the police discover a spent casing from a
microstamped handgun at a crime scene, they can examine it under a
microscope and, in theory, discover legibly-imprinted characters. A
simple database search would reveal who last registered the handgun that
ejected the casing. The police would then have an important lead in their
investigation.
PENA V. LINDLEY 37
threshold requirement” of showing that its evidence “fairly
support[s] its conclusion,” id. at 25 (citation omitted). If the
efficacy of microstamping as an aid to police forensics were
the only issue before us, I would join the majority in its
entirety; this is a policy question well-suited to legislative
prediction. And even if microstamping is not a perfect
solution, California is entitled to see whether microstamping
will aid police in solving crime.
But Plaintiffs raise a second argument, one that the
majority largely ignores. Plaintiffs argue that the testing
protocol adopted by the California Department of Justice
(“CDOJ”) in its regulations is so demanding that no gun
manufacturer can meet it. Plaintiffs have come forward with
evidence that no new handguns being sold in the United
States can satisfy CDOJ’s testing protocol and, therefore, no
new handguns qualify for California’s approved-as-safe
roster. The State argues that the technology is available, and
that the manufacturers are just unwilling to submit to
California’s requirements. This is an argument we cannot
resolve on this record. So far as we can tell from the meager
record before us, no one—including CDOJ—has ever tested
any weapon against California’s protocol to see whether it is
technologically feasible. Plaintiffs claim that the
microstamping requirement acts as a prohibition on the
commercial sale of new handguns in California. On the
record before us, I cannot conclude that the State is entitled
to summary judgment on Plaintiffs’ challenge to the
microstamping requirement, and that means that we must take
Plaintiffs’ Second Amendment claims seriously.
Under the appropriate Second Amendment analysis, I
cannot conclude that there is a reasonable fit between CDOJ’s
microstamping requirement and the legislature’s object in
38 PENA V. LINDLEY
solving handgun crimes. The result of CDOJ’s restrictive
testing protocol is undisputed: since at least 2013, no new
handguns have been sold commercially in California, and that
means that no guns were sold with the microstamping feature.
That fact has an important secondary effect—it means that no
new handguns are being sold commercially with the MDM
and CLI safety features either.4
The consequence is obvious. Today, no one in California
can purchase handguns that have the safety features the
legislature thought critical for saving lives, nor can any
Californian purchase guns with the microstamping feature the
legislature thought important to assist police. The only guns
commercially sold in California are grandfathered from these
provisions. This is a totally perverse result. If the legislature
(or CDOJ, seeking to implement the legislature’s
instructions) has adopted safety requirements that no gun
manufacturer can satisfy, then the legislature has effectively
banned the sale of new handguns in California. The effect of
this result on our intermediate-scrutiny analysis is clear: the
fit between California’s interest in solving handgun crimes
and the microstamping requirement would not only fail to be
reasonable, it would be non-existent. The requirement would
severely restrict what handguns Californians can purchase
without advancing the State’s interest in solving handgun
crimes—or any government interest—one iota.
4
Some guns with CLIs and MDMs might have been approved before
the microstamping requirement went into effect. Neither party has
provided figures on how many handgun models on the UHA roster are
equipped with CLIs and MDMs. But given the scarcity of these features
nationwide, the vast majority of the handguns on the roster likely lack
these safety features.
PENA V. LINDLEY 39
This result would surely violate the Second Amendment
and therefore cries for a more searching inquiry than the
majority has provided us. Here is how I will proceed. In Part
I, I demonstrate that there is a conflict in the evidence as to
whether any manufacturer can comply with California’s
testing protocol. The majority confronts neither the
conflicting evidence nor the possibility that California has
effectively banned the commercial sale of all new handguns.
It instead concludes—in a cursory fashion—that we must
defer to the State because its legislature weighed the evidence
of microstamping’s technological feasibility. Maj. Op. at 24.
But as I discuss in Part II, the majority is in error both as a
matter of law and fact. This deference is only appropriate for
a legislative body’s predictive policy decisions—i.e., how
effectively a law will advance the government’s stated
interest. In contrast, Plaintiffs’ challenge to CDOJ’s
microstamping protocol presents a more fundamental
question of technological feasibility, one the legislature did
not and, in fact, could not have addressed because it did not
have the testing protocol before it.
These defects reveal why, at step 2 of our Second
Amendment inquiry, we cannot conclude on summary
judgment that there is a reasonable fit between the
microstamping requirement and the State’s goal in solving
handgun crimes. But this disposition requires returning to
step 1 and deciding whether the microstamping requirement
burdens conduct protected under the Second Amendment—a
point the majority assumed without deciding. I believe we
must address the point rather than assume it. I thus conclude
in Part III by discussing why the microstamping requirement
is not, as the district court held, presumptively valid as a
“law[] imposing conditions and qualifications on the
commercial sale of arms,” District of Columbia v. Heller,
40 PENA V. LINDLEY
554 U.S. 570, 626–27 (2008), and requires the application of
heightened scrutiny. I would reverse the district court and
remand for further proceedings.
If all of this feels complicated and backwards, welcome
to the strange world of the Second Amendment.
I
The critical factual question raised by Plaintiffs is
whether any handgun is capable of satisfying the testing
protocol for microstamping set out in the UHA and its
regulations. Plaintiffs’ challenge to the microstamping
requirement is not over whether the technology generally
works. There can be little doubt that microstamped handguns
are capable of imprinting a cartridge casing with
alphanumeric characters, and the technology’s inventor
attests to having publicly tested the technology with police
departments across the country. Plaintiffs have quibbled
around the edges about the usefulness of microstamping, but
even the studies that Plaintiffs cite demonstrate the
technology’s general application. See, e.g., David Howitt et
al., WHAT MICRO SERIALIZED FIRING PINS CAN ADD TO
IDENTIFICATION IN FORENSIC SCIENCE, at 31–40 (2008);
George G. Krivosta, NanotagTM Markings from Another
Perspective, 38 AFTE J. 41, 43 (2006). The degree to which
microstamping will in practice aid police investigations is not
my concern. My sole interest is the conflicting evidence over
whether CDOJ’s testing protocol can be satisfied by any gun
manufacturer. Because the majority has not addressed these
requirements, I will discuss the statute and its accompanying
regulations and then address the evidence in the record.
PENA V. LINDLEY 41
A
In order to qualify for the UHA’s approved-as-safe roster,
a handgun model must undergo testing by a state-certified
laboratory. CAL. PENAL CODE § 32010(a)–(b); 11 CAL. CODE
REGS. § 4059(a). The manufacturer must “provide[] three
handguns of the make and model for which certification is
sought,” and the lab must fire 600 rounds from each handgun.
CAL. PENAL CODE § 31905(a)–(b). To ensure that the
handgun model is capable of legibly microstamping the
cartridge casings, the lab must fire 2 rounds from each
handgun before the 600-round test, as well as 2 rounds after
the test. 11 CAL. CODE REGS. § 4060(e)–(g). These 4 casings
per handgun are the only casings the lab examines. Id.
§ 4060(h). Using a “stereo zoom microscope,” the lab must
verify that (1) “the pistol has transferred an imprint or etching
in at least two places on each cartridge casing” and that
(2) “the pistol’s complete FIN can be identified from the one
or more etchings on each cartridge casing . . . .” Id.
§ 4060(h)(1). The “FIN” is the firearm identification number,
which must “consist of at least eight, but no more than 12,
unique alpha and/or numeric characters that must begin with
the manufacturer’s” identifying code. Id. § 4049(j). This test
is conducted on all three handguns of the model submitted for
certification. Id. § 4060(h)(3). The lab may certify that the
model is microstamping compliant only if the examiner can
identify the complete FIN from all twelve of the cartridge
casings collected for testing.5 Id.
Plaintiffs and their amici raise two specific objections to
these requirements. First, they argue that microstamping
5
Four cartridge casings are collected from each of the three handguns
submitted, for a total of twelve casings examined.
42 PENA V. LINDLEY
technology is incapable of legibly imprinting casings
consistently enough to ensure that all twelve casings are
imprinted with the complete FIN. Second, Plaintiffs contend
that no handgun can satisfy the requirement that each casing
be imprinted “in at least two places . . . .” See id.
§ 4060(h)(1); see also CAL. PENAL CODE § 31910(b)(7)(A).
They assert that, while a handgun’s firing pin can sometimes
successfully imprint a casing, the other internal
surfaces—e.g., the breech face, extractor, ejector—are
incapable of ever imprinting legible characters.
Plaintiffs cite to studies and declarations in support of
these troubling assertions. I will address this evidence
momentarily, but the critical take-away is this: contrary to
the majority’s assertion, Maj. Op. at 27–29, there is no
indication in the brief legislative history included in the
record before us that the state legislature, in enacting the
UHA, considered either of these two impediments to
certifying handguns as microstamping compliant. With
regard to the examination of the twelve casings, the
legislature could not have directly considered whether
manufacturers could comply with this testing standard
because CDOJ promulgated the regulation after the
legislature amended the UHA to include the microstamping
requirement. Similarly there is almost no mention in the
legislative history of the dual-imprint requirement6 and no
evidence that the legislature addressed whether a surface
other than the firing pin could legibly imprint cartridge
6
This is not to say that the dual-imprint requirement was heedlessly
added to the UHA or its regulations. The legislature originally considered
a single-imprint requirement. It appears the legislature included the dual-
imprint requirement to prevent criminals from circumventing
microstamping by replacing or defacing a handgun’s firing pin.
PENA V. LINDLEY 43
casings. Simply stated, the California legislature did not
consider the concerns raised by Plaintiffs, to which I now
turn.
B
Plaintiffs rely principally on declarations from industry
representatives and academic studies. Their most detailed
declaration comes from Lawrence Keane, who is the
Secretary and General Counsel to the Sporting Arms and
Ammunition Manufacturers’ Institute (“SAAMI”) and Senior
Vice President, Assistant Secretary, and General Counsel to
the National Shooting Sport Foundation (“NSSF”).
According to Keane, NSSF is a trade association for the
firearms industry, while SAAMI is an ANSI-accredited
standards development organization for the industry’s test
methods, definitive proof loads, and ammunition performance
standards. Keane states:
To date, I am not aware of a single handgun
manufacturer worldwide that has produced a
functioning, commercially available
semiautomatic pistol designed and equipped
with “a microscopic array of characters that
identify the make, model, and serial number
of the pistol” etched or otherwise imprinted in
two or more places on the interior surface of
internal working parts of the pistol, and that
are transferred by imprinting on “each
cartridge case when the firearm is fired.” I
am unaware of any handgun manufacturer
who has attempted, or is even considering
trying, to design and equip a semiautomatic
pistol incorporating this technology. NSSF
44 PENA V. LINDLEY
and SAAMI handgun manufacturers have
informed me and stated publicly that they
cannot compl y wi t h C al ifornia’s
microstamping requirements and have no
plans to attempt to do so. The reason is
simple, microstamping does not work.
He further states that various “[i]ndependent, peer-reviewed
studies, including ones by the inventor of microstamping,
Todd Lizotte, have confirmed that firearm microstamping is
unproven and unreliable to perform in the manner that the
UHA requires.” According to Keane, “[b]ecause the
microstamping requirement cannot be complied with, it is
currently preventing scores of manufacturers, distributors and
retailers from selling many semi-automatic pistol models in
the State of California that are widely available in more or
less every other state of the Union, because any such sales
would subject them to criminal prosecution.” More
specifically, he states that “[microstamping] certainly cannot
produce the required markings at two locations on the
cartridge case, as required by the law.” He repeats that
“[b]ecause the microstamping requirement cannot be
complied with,” manufacturers are not planning to sell in
California. These “[c]ompanies have actually stopped doing
business in California because of that requirement, not
because they wished to cease operations there.” He
concludes that the microstamping requirement “constitute[s]
a de facto ban on handguns in California . . . .”
Plaintiffs also provided declarations from two CEOs,
Michael Fifer of Sturm, Ruger & Co., and James Debney of
Smith & Wesson Corp. Their declarations are nearly
identical, although Debney provides more detail. Fifer states
that “Ruger believes that California’s microstamping
PENA V. LINDLEY 45
regulations make compliance impossible. Quite simply, the
state law requires the technology to perform at a level that
Ruger cannot practically implement and, to our knowledge,
has never been achieved by any manufacturer.” Debney
states that “Smith & Wesson does not believe it is possible
currently to comply with California’s microstamping
regulations. Quite simply, the state law requires the
technology to perform at a level that it cannot . . . . As it
appears infeasible to comply with the CA DOJ
microstamping regulations, Smith & Wesson does not have
the ability or plans to incorporate microstamping in its semi-
automatic handguns . . . .” He adds that Smith & Wesson
currently produces California-compliant handguns and will
continue to do so “as long as we do not make any changes to
them,” because any changes Smith & Wesson makes would
require CDOJ to test the weapons to keep them on the
approved-as-safe roster.
In addition, Plaintiffs and their declarants cite to several
studies regarding microstamping’s technological feasability.
One of the most insightful pieces of evidence is a 2013 study,
in which Lizotte is listed as a co-author. See T. Grieve et al.,
Gear Code Extraction from Microstamped Cartridges,
45 AFTE J. 64 (2013). The study acknowledges that the
alphanumeric characters microstamped on a casing can
become “deformed, or partially removed due to the firing and
cartridge ejection process . . . .” Id. at 64. Indeed, the study
focuses on the viability of additionally microstamping casings
with a “circular gear code” as a failsafe “that could either fill
in any gaps in a distorted alpha-numeric code, or be used to
replicate the code if the alpha-numeric identifier is entirely
illegible.” Id. at 64–65 (emphasis added). The study
acknowledges that characters can become distorted when the
primer is “struck twice”—presumably by the firing pin—and
46 PENA V. LINDLEY
consequently smeared. Id. at 68. It also notes that “[d]ouble
strikes were especially prevalent in” one of the handgun
models tested, id., which indicates that a handgun’s ability to
satisfy the UHA’s testing protocol may rely more on its make
and model than on the progression of microstamping
technology.
Similarly, microstamping’s effectiveness appears to have
almost as much to do with the type of ammunition used as it
does with any other factor addressed so far. Id. at 70
(“Lacquered cartridges . . . posed problems during the optical
and SEM evaluations, especially for the Hi-Point cartridges
as it interfered with the transfer of the identifiers and the gear
code.”); see also L.S. Chumbley et al., Clarity of
Microstamped Identifiers as a Function of Primer Hardness
and Type of Firearm Action, 44 AFTE J. 145, 153 (2012)
(“[F]urther study is necessary before any definitive
statements can be made concerning the effect of ammunition
type. However, it is clear that the presence of lacquer is of
paramount importance in identifier transfer.”).7 Finally, the
2013 study also acknowledges that the ability to identify
characters imprinted on a casing may depend on the use of a
scanning electron microscope. Grieve, supra, at 68. As I
discuss immediately below, this equipment is not currently
permitted under the UHA’s testing protocol and the use of
only an optical microscope is unaccounted for in the State’s
evidence.
The State relies solely on a declaration from
microstamping’s inventor, Todd Lizotte. Mostly notably,
Lizotte describes a “stress test” he performed in 2007 with a
Smith & Wesson .40 caliber handgun, which he equipped
7
Lizotte is also listed as a co-author of this 2012 study.
PENA V. LINDLEY 47
with a microstamped firing pin that he designed to work with
that specific handgun model. Lizotte attests that, after firing
over 2,500 rounds, “all eight microstamped digits from the
firing pin were legible 97% of the time,” while “breech face
markings transferred to cartridge casings were legible 96% of
the time.” He further represents that,“[b]etween firing pin
and breech face markings, all eight microstamped digits were
identifiable in all cases.”
These results are undeniably impressive, but they do not
directly assuage the concerns regarding the UHA’s testing
requirements because it is not clear that Lizotte’s 2007 stress
test would satisfy California’s testing protocol, which did not
even become effective until 2011. There are several
problems.
Although Lizotte reports a perfect rate of legibility when
combining characters imprinted on casings by both the firing
pin and breech face, there is a subtle but important caveat to
this result: he identifies the imprinted characters through the
use of both “optical microscopy and scanning electron
microscopy techniques . . . .” The UHA’s regulations,
however, prescribe the use of only a “stereo zoom
microscope”—i.e., an optical microscope. 11 CAL. CODE
REGS. § 4060(h)(1); see also id. § 4052(b)(1)(A). In other
words, Lizotte’s declaration never explains how often
imprints are legible using only the equipment allowed for in
the microstamping protocol. Certainly handgun
manufacturers and consumers would have reason for concern
if these rates are relatively low. And this may very well be
the case, as Lizotte has emphasized the importance of
scanning electron microscopy in identifying imprinted
characters. In countering the results of a study critical of
48 PENA V. LINDLEY
microstamping’s technological feasibility,8 Lizotte asserted
“that the results [the study] observed would have been
different, and the markings would have been ‘fully legible,’
if a more sophisticated method had been used to read the
markings known as, ‘Scanning Electron Microscopy (SEM)
. . . .’”
Moreover, it is unclear from Lizotte’s declaration whether
the modified handgun he used in the stress test imprinted
each casing with two sets of microstamped characters. He
does not state how often the breech face made an imprint, but
only how many imprints were legible. Because each of the
twelve casings examined during CDOJ’s certification
procedure must be imprinted “in at least two places,” a low
rate of breech-face imprints would also be troubling.
In highlighting these informational deficits, it is not my
intention to be critical of Lizotte’s work. He appears to be a
responsible inventor and advocate who has placed his
technology in the public domain in order to encourage
microstamping’s adoption. But the State, in defending its
implementation of a novel handgun restriction against a
Second Amendment challenge, has relied solely on Lizotte’s
nine-page declaration, which is not fully responsive to the
concerns raised by Plaintiffs.
The majority does not even mention any of this evidence.
Rather, it offers a back-of-the-hand dismissal by concluding
that “[t]he reality is” that gun manufacturers are merely
8
See Krivosta, supra, at 43 (testing microstamping in ten different
handguns and concluding that “[t]he overall ratio of Satisfactory to
Unsatisfactory impressions [imprinted on the casings] was 54 to 46”).
PENA V. LINDLEY 49
unwilling to comply with the microstamping requirement.9
See Maj. Op. at 25. The majority claims that the failure to
produce a complying handgun is not evidence “that
microstamping is technology infeasible.” Maj. Op. at 25–26.
But Ruger’s CEO attests that California’s “law requires the
technology to perform at a level that Ruger cannot practically
implement and, to [his] knowledge, has never been achieved
by any manufacturer.” I do not see how the majority gets to
decide at summary judgment what “the reality is” when there
is conflicting evidence in the record. While the declarations
are certainly lacking in detail, they should not be construed so
narrowly—especially considering that it is the State that bears
the burden under intermediate scrutiny of proving that its law
passes constitutional muster. After all, the State does not
attempt to explain why gun manufacturers would forgo the
opportunity of selling their new generations of handguns in
a major market like California.
9
The majority’s conclusion that manufacturers are unwilling, not
unable, to comply with California’s testing protocol is the subject of
debate between two amici. NSSF/SAAMI point to the Keane Declaration.
They explain that the dual-imprint requirement came about because the
legislature was concerned that a firing pin could be easily altered by the
weapon’s owner. They represent that the statute and regulations require
a 100 percent success rate, which is beyond what any testing has shown.
The Los Angeles City Attorney argues that NSSF/SAAMI “cherry-
pick[ed] the facts they like, and mischaracteriz[ed] or omitt[ed] those they
do not.” In the end, the L.A. City Attorney relies exclusively on Lizotte’s
declaration, and concludes that “it is not that manufacturers can’t comply
with the UHA’s microstamping requirement. It is that they won’t.”
The majority just sided with the State in this debate. We don’t get to
do that at summary judgment. Nor, as I discuss in the next section, do we
have to side with the State out of deference to the legislature.
50 PENA V. LINDLEY
The majority also summarily asserts that this suit has been
brought by gun purchasers rather than gun manufacturers,
implying that the inability of the latter to comply with the
UHA is somehow irrelevant to Plaintiffs’ inability to
purchase handguns. See Maj. Op. at 25. But Plaintiffs have
not claimed that gun manufacturers have a right under the
Second Amendment to produce the guns of the
manufacturer’s choice. See Teixeira v. County of Alameda,
873 F.3d 670, 681 (9th Cir. 2017) (en banc) (rejecting a gun
seller’s argument “that, independent of the rights of his
potential customers [to acquire firearms], the Second
Amendment grants him a right to sell firearms”), cert. denied,
138 S. Ct. 1988 (2018). Rather, Plaintiffs’ claim is based
solely on their own inability to purchase handguns.
Taken together, Plaintiffs’ evidence is impossible to
reconcile with Lizotte’s declaration, which portrays
microstamping as nearly infallible. We cannot assume that
microstamping can satisfy the UHA’s testing protocol.10 In
any other context, this conflict in the evidence would render
this case inappropriate for decision on summary judgment.
The district court was well aware of these factual disputes.
Instead of resolving them, the court held that the commercial
10
The majority finds that California produced evidence that
microstamping is technologically feasible and would cost between $3 and
$10 per handgun, citing Lizotte’s demonstrations of microstamping with
police departments. Maj. Op. at 27–28. But the majority stubbornly
refuses to acknowledge the problem. As stated above, there can be little
doubt that microstamped handguns are generally capable of imprinting a
cartridge casing with alphanumeric characters. But there is conflict in the
evidence before us whether any handgun can satisfy California’s
microstamping testing protocol. The problem is not the legislation, but the
regulations that implement the microstamping requirement. A testing
protocol that cannot be satisfied is effectively a ban.
PENA V. LINDLEY 51
sales exception—which I discuss at length below—meant that
the Second Amendment does not even apply to Plaintiffs’
claims. The majority declines to affirm the district court on
the grounds on which the court based its decision, assumes
the Second Amendment applies, and then decides the factual
conflict for itself. We should have sent this case back to the
district court to resolve these factual issues.
C
The majority raises other arguments in defense of its
decision to uphold the microstamping requirement in the face
of conflicting evidence. These rationales are unavailing and,
in large part, inapposite.
The majority highlights aspects of the UHA that, in its
view, offset Plaintiffs’ central contention that the requirement
effectively bans the sale of new handguns. It cites, for
instance, the fact that “[t]he microstamping requirement only
became effective after the CDOJ certified that the technology
‘is available to more than one manufacturer unencumbered by
any patent restrictions.’” Maj. Op. at 29. If the majority is
implying that this certification has any bearing on the issue
before us, this assertion is wide of the mark. The certification
was required by the legislature to ensure that manufacturers
had legal access to the technology; the certification was about
patent rights, not technological feasibility. CAL. PENAL CODE
§ 31910(b)(7)(A). As the State recently conceded before the
California Supreme Court, “this certification confirms the
lack of any patent restrictions on the imprinting technology,
52 PENA V. LINDLEY
not the availability of the technology itself.”11 Nat’l Shooting
Sports Found., Inc. v. State, No. S239397, 2018 WL
3150950, at *1, slip op. at 2 (Cal. June 28, 2018). The
absence of patent restrictions resulted from Lizotte
generously placing his technology in “the public domain . . .
free of royalty.”
The majority similarly relies on the fact that, even if
microstamping proves to be technologically infeasible, the
UHA authorizes the California Attorney General to “approve
a method of equal or greater reliability and effectiveness in
identifying the specific serial number of a firearm from spent
cartridge casings . . . .” Maj. Op. at 29–30 (quoting CAL.
PENAL CODE § 31910(b)(7)(B)). So what is this replacement
technology? Who knows? The State has not represented that
it knows of a microstamping alternative even at the
11
This concession was made in the context of a state-law challenge
to the microstamping requirement by NSSF, an amicus in this case.
Although NSSF claimed (as it does here) that the dual-imprint requirement
is impossible to comply with, the California Supreme Court had no cause
to address this technical question. See Nat’l Shooting Sports Found., 2018
WL 3150950, at *1–2. Rather, “[t]he sole dispute” was whether a
California court could invalidate the microstamping requirement “on the
basis of Civil Code section 3531’s declaration that ‘[t]he law never
requires impossibilities.’” Id. at *2 (alteration in original). Because the
challenge was decided below at the pleading stage, the California Supreme
Court “assume[d] that complying with the [microstamping requirement]
is impossible . . . .” Id. The court’s decision addressed only a matter of
state statutory interpretation and therefore has no bearing on the question
before us. Nor should we draw any inference from the fact that—as the
majority points out—NSSF did not challenge the propriety of CDOJ’s
certification of “the availability of dual placement microstamping
technology . . . .” Id. at *4; see also Maj. Op. at 25 n.10. Again, the
absence of a patent encumbrance says nothing about the technology’s
feasibility.
PENA V. LINDLEY 53
conceptual stage, and the majority has wisely declined to
speculate on this point.
The majority also misleadingly states that “semiautomatic
handguns are not subject to the microstamping requirement
and are grandfathered as long as the manufacturer continues
to pay a roster fee and the firearms do not fail a retest.” Maj.
Op. at 26. But semiautomatic handguns that were not listed
on the UHA roster before the microstamping requirement
took effect are expressly subject to the requirement. See CAL.
PENAL CODE § 31910(b)(7)(A). If the majority is asserting
that the availability of grandfathered handguns in California
affects the application of intermediate scrutiny, then this too
is incorrect. That Plaintiffs can commercially purchase older-
model handguns says nothing about whether there is a
reasonable fit between the microstamping requirement—
which Plaintiffs claim effectively bans new handgun
sales—and the State’s interest in solving handgun crimes. If
the requirement is impossible to comply with, then as
discussed above, it imposes a burden without advancing any
state interest. Similarly, the fact that the UHA does not
altogether ban possession of non-microstamped handguns
does not squarely address the application of intermediate
scrutiny; it only means that California has not banned the sale
of all handguns—new and old—in violation of Heller.
Moreover, contrary to the majority’s assertion, the Third
Circuit’s decision in United States v. Marzzarella, 614 F.3d
85 (3d Cir. 2010), bears little resemblance to this case. Maj.
Op. at 31–32. There, the Third Circuit rejected a Second
Amendment challenge to a federal criminal statute
prohibiting “possession of a firearm with an obliterated serial
number . . . .” Marzzarella, 614 F.3d at 88. The court
reasoned that “preserving the ability of law enforcement to
54 PENA V. LINDLEY
conduct serial number tracing—effectuated by limiting the
availability of untraceable firearms—constitutes a substantial
or important interest.” Id. at 98. Here, however, there is no
disputing that microstamping’s potential ability to aid the
police in solving handgun crimes presents a substantial
interest. Marzzarella did not address anything remotely
analogous to the question of technological feasibility
presented in this case and is therefore inapposite.
The majority similarly justifies its unfounded confidence
in the ability of manufacturers to comply with the
microstamping requirement by citing to other areas of law
that have little relevance to this case. The challenge before us
“echoes a similar one made for decades about airbags,” the
majority announces. Maj. Op. at 26 n.11. We as readers,
however, are left to suss out how regulations concerning
automobile safety standards compare to testing requirements
that will potentially curtail a fundamental right to possess
handguns. The analogy is pretty far afield. The majority also
perplexingly attempts to analogize to the Fourth Amendment.
Maj. Op. at 30 (citing Maryland v. King, 133 S. Ct. 1958
(2013)). But the challenge before us presents the inverse of
the Fourth Amendment paradigm, in which the more
advanced certain technologies become the more likely it is
that they can be used to encroach upon our constitutional
rights. See, e.g., Kyllo v. United States, 533 U.S. 27 (2001).
Here, by contrast, it is the lack of assurance that
microstamping technology can perform at the levels required
under California law that prevents us from concluding that
the requirement passes constitutional muster.
***
PENA V. LINDLEY 55
In sum, there is a plain conflict in the evidence that in any
other context would preclude summary judgment. Indeed, the
district court in this case requested additional briefing on the
factual questions and then decided that summary judgment
was appropriate under one of Heller’s exceptions—an error
that I address in Part III. Pressing fearlessly where the
district court declined to go, the majority does not address the
conflict in evidence in any degree of granularity. Instead, it
asserts that we must defer to the California legislature’s
conclusion that microstamping is technologically feasible
because the legislature “weighed competing evidence on
effectiveness before enacting the statute.” Maj. Op. 25. But
as I show in the next section, such deference is inapplicable
to the question of whether gun manufacturers can comply
with the UHA and its testing requirements and is unwarranted
in this case given the impediments to compliance that the
legislature failed to consider.
II
The majority thinks it has an answer to why, in light of
the conflict in evidence, we can grant summary judgment. In
the majority’s view, we must defer to the legislature’s own
judgment on microstamping’s technological feasability. Maj.
Op. at 25, 28–29. With respect, the majority is wrong, both
as a matter of law and fact. I address first the general
principles, then discuss how we have applied these principles
in Second Amendment cases, and why these principles do not
apply to the arguments Plaintiffs have made in this case.
A
When applying heightened scrutiny, we defer to a
legislative body’s predictive policy judgments. Although
56 PENA V. LINDLEY
there is seldom a dispute that the government’s interest in an
objective is substantial, these goals are often stated in the
abstract. After all, who could genuinely dispute that
enhancing public safety and solving handgun crimes are
important interests? See Chovan, 735 F.3d at 1139 (“It is
self-evident that the government interest of preventing
domestic gun violence is important.”). But a legislature
“must do more than simply ‘posit the existence of the disease
sought to be cured.’” Turner Broad. Sys., Inc. v. FCC
(Turner I), 512 U.S. 622, 664 (1994) (plurality opinion)
(quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455
(D.C. Cir. 1985)). It “must demonstrate that the recited
harms are real, not merely conjectural, and that the [law at
issue] will in fact alleviate these harms in a direct and
material way.” Id. Accordingly, a legislature must have a
basis for believing that it is necessary to enact “X”-law in
order to prevent “Z”-harm.
In Turner I, for instance, the Supreme Court reviewed the
constitutionality of a federal requirement that cable operators
“carry the signals of a specified number of local broadcast
television stations”—a policy aimed at advancing Congress’
stated interest in “promoting the widespread dissemination of
information” and “fair competition . . . .” Id. at 640, 662.
The so-called “must-carry rules” (X-law) were premised on
the proposition that, absent federal intervention, cable
operators would refuse to voluntarily carry the signals from
broadcast stations, thus forcing them out of business (Z-
harm). Id. at 666.
In addressing Plaintiffs’ challenge to this proposition and
the supporting studies, the Court began from the premise
“that courts must accord substantial deference to the
predictive judgments of Congress.” Id. at 665. “Sound
PENA V. LINDLEY 57
policymaking often requires legislators to forecast future
events and to anticipate the likely impact of these events
based on deductions and inferences for which complete
empirical support may be unavailable.” Id. Deference to
such policymaking stems in part from the reality that
legislative bodies are “far better equipped than the judiciary
to ‘amass and evaluate the vast amounts of data’ bearing
upon” complex issues. Id. at 665–66 (quoting Walters v.
Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 330 n.12
(1985)); see also City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425, 440 (2002) (plurality opinion) (applying this
same rationale to a local government).
Similarly, when a legislature attempts to redress a harm,
it must forecast the effect of its remedial law—I will call this
“Y.” Means-end scrutiny thus inevitably invokes questions
of the law’s efficacy in advancing the government’s stated
interest. The parties often present competing evidence, such
as social-science studies and economics forecasts, on whether
X-law will have Y-effect, which is aimed at redressing Z-
harm in order to advance the government’s interest. See, e.g.,
Alameda Books, 535 U.S. at 429, 435–36 (addressing the
parties dispute regarding whether a police-department report
supported the city council’s conclusion that prohibiting “the
establishment . . . of more than one adult entertainment
business in the same building” would advance the city’s
interest in mitigating the secondary effects these businesses
cause, such as increased crime).
We may defer to these types of predictive policy
judgments, even when they touch on protected constitutional
rights. See id. at 440 (citing Turner I, 512 U.S. at 655–56).
Indeed, the Supreme Court has admonished on multiple
occasions that the legislature “must be allowed a reasonable
58 PENA V. LINDLEY
opportunity to experiment with solutions to admittedly
serious problems.” City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 52 (1986); see also Alameda Books, 535 U.S. at
439. While a legislature may have empirical data to support
its predictions, a policy’s efficacy is not something that can
be tested in a laboratory; rather, a legislature must implement
a law and assess over time whether it had the desired
remedial effect. See Alameda Books, 535 U.S. at 439–40 (“A
municipality considering an innovative solution may not have
data that could demonstrate the efficacy of its proposal
because the solution would, by definition, not have been
implemented previously.”).
B
It should therefore come as no surprise that deference to
legislative policy judgments has played a role in several of
our post-Heller Second Amendment decisions. Applying
intermediate scrutiny, we have upheld city ordinances
banning large-capacity magazines, Fyock v. Sunnyvale,
779 F.3d 991, 1000–01 (9th Cir. 2015), banning hollow-point
rounds, Jackson v. City & County of San Francisco, 746 F.3d
953, 969–70 (9th Cir. 2014), and requiring residents to either
store their handguns in an approved locked container or
disable them with a trigger lock, id. at 958, 965–66. We were
able to conclude that each of these laws advanced their
intended interest in enhancing public safety based, in part, on
the fact that the city councils had relied on relevant studies
and made legislative findings.12 Fyock, 779 F.3d at 1000
12
None of this is to say that legislative bodies are “obligated, when
enacting [laws], to make a record of the type that an administrative agency
or court does to accommodate judicial review.” Turner I, 512 U.S. at 666.
But as discussed below, courts must still ascertain whether a legislature,
PENA V. LINDLEY 59
(“Sunnyvale also presented evidence that large-capacity
magazines are disproportionately used in mass shootings as
well as crimes against law enforcement, and it presented
studies showing that a reduction in the number of large-
capacity magazines in circulation may decrease the use of
such magazines in gun crimes.”); Jackson 746 F.3d at 965,
969; see also Peruta v. County of San Diego, 824 F.3d 919,
944 (9th Cir. 2016) (en banc) (Graber, J., concurring)
(“[S]ocial scientists disagree about the practical effect of
modest restrictions on concealed carry of firearms. In the
face of that disagreement, and in the face of inconclusive
evidence, we must allow the government to select among
reasonable alternatives in its policy decisions.”).13
This brings me to the appropriate role for legislative
deference in this case. Recall that Plaintiffs actually raised
two challenges to microstamping. See supra pp. 36–37.
Although I have focused on Plaintiffs’ challenge to the
microstamping requirement based on its technological
feasibility, they first raised the question of microstamping’s
“in formulating its judgments, . . . has drawn reasonable inferences based
on substantial evidence.” Id.
13
Our sister circuits have applied legislative deference in similar
Second Amendment challenges. See, e.g., New York State Rifle & Pistol
Ass’n, Inc. v. Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (“We remain
mindful that, ‘[i]n the context of firearm regulation, the legislature is “far
better equipped than the judiciary” to make sensitive public policy
judgments (within constitutional limits) concerning the dangers in carrying
firearms and the manner to combat those risks.’” (quoting Kachalsky v.
County of Westchester, 701 F.3d 81, 97 (2d Cir. 2012))); Drake v. Filko,
724 F.3d 426, 437 (3d Cir. 2013) (“The predictive judgment of New
Jersey’s legislators is that limiting the issuance of permits to carry a
handgun in public to only those who can show a ‘justifiable need’ will
further its substantial interest in public safety.”).
60 PENA V. LINDLEY
efficacy in aiding police investigations. Plaintiffs contend
that criminals can easily defeat the technology by either
replacing a handgun’s firing pin—a fairly common and
inexpensive procedure—or obliterating its characters with
sandpaper. And even if a microstamped handgun did
successfully imprint the cartridge casings from the rounds
fired during a crime, Plaintiffs assert that it is only the utterly
careless criminal who fails to pick up his casings before
fleeing the scene. The brief legislative history of the
microstamping requirement demonstrates that these precise
arguments were made before the legislature, which evidently
found them unpersuasive.
Perhaps Plaintiffs are correct, and microstamping will do
little to solve handgun crimes. But it is not our role to second
guess the legislature’s predictive judgment that
microstamping will solve at least some crimes. Indeed, the
technology need not result in the police making arrests in
every case in order for the microstamping requirement to
have a reasonable fit. This is thus precisely the type of
dispute over whether X-law will have Y-effect that will
prevent Z-harm that is entitled to legislative deference. And
as the majority notes, the “legislature considered and rejected
other, more intrusive solutions” to solving handgun crimes.
Maj. Op. at 24. We must therefore “allow the government to
select among reasonable alternatives in its policy decisions.”
Peruta, 824 F.3d at 944 (Graber, J., concurring). Faced with
an alarmingly-high number of unsolved handgun-based
homicides per year,14 California “must be allowed a
14
Plaintiffs concede that solving handgun crimes is an important
government interest. Indeed, in presenting the microstamping amendment
to the UHA before the California legislature, the legislation’s author cited
the fact that nearly 60 percent of the approximately 2400 homicides in the
PENA V. LINDLEY 61
reasonable opportunity to experiment with solutions to [an]
admittedly serious problem[].” Renton, 475 U.S. at 52. I
agree with the majority on this point.
When the majority notes that the parties dispute whether
microstamping will “effectively” address this problem, it fails
to distinguish between the issues of efficacy in solving crime
and the separate issue of technological feasibility. See Maj.
Op. at 25–26. The majority summarily cites to the principles
of legislative deference laid out above to conclude that we
must defer to California with respect to both the efficacy of
microstamping to aid police and the question of whether
manufacturers can produce handguns that satisfy the testing
protocol. The former question is a predictive judgment about
policy and should earn our deference; the latter is a judgment
of scientifically-verifiable fact—a question of whether gun
manufacturers, importers, and sellers can even comply with
the law—and is not entitled to the same deference.
The majority counters that this is “an artificial
distinction” and that I seek to “hold California to a standard
never before imposed.” Maj. Op. at 28. But this assertion
fails to take into account that Plaintiffs’ challenge to the
microstamping provision raises a novel question. The
majority does not cite—nor was I able to discover—any case
in which the public’s ability to exercise a constitutional right
was dependent on the technological feasibility of a
requirement imposed by the government. Rather than
state each year are committed with handguns. No arrests are made in
nearly 45 percent of homicide cases. Had Plaintiffs contested the need for
some form of remedial action, this evidence would have been more than
sufficient to demonstrate that the harm California seeks to redress is “real,
not merely conjectural . . . .” Turner I, 512 U.S. at 664.
62 PENA V. LINDLEY
proceed with caution through this unchartered terrain, the
majority presses forward by relying solely on the concept of
legislative deference. Indeed, the majority declines to even
pause and question whether the rationales discussed above for
deferring to a legislative body’s policy judgments are
applicable to the question before us. They are not.
Indeed, the technological feasibility of microstamping is
just not comparable, for example, to questions of how
effective a zoning ordinance will be in combating the
secondary effects of adult entertainment. See Renton,
475 U.S. at 52 (“We also find no constitutional defect in the
method chosen by Renton to further its substantial interests.
Cities may regulate adult theaters by dispersing them, as in
Detroit, or by effectively concentrating them, as in Renton.”).
Nor can we properly compare the question before us to our
prior Second Amendment cases, which similarly hinged on
what can fairly be described as policy disputes. See, e.g.,
Fyock, 779 F.3d at 1000–01 (acknowledging the existence of
competing evidence regarding whether high-capacity
magazines are conducive for self-defense rather than crime);
see also Peruta, 824 F.3d at 944 (Graber, J., concurring) (“To
be sure, we recognize the existence of studies and data
challenging the relationship between handgun ownership by
lawful citizens and violent crime. . . . It is the legislature’s
job, not ours, to weigh conflicting evidence and make policy
judgments.” (quoting Kachalsky v. County of Westchester,
701 F.3d 81, 99 (2d Cir. 2012))).
In contrast, the question of technological feasibility—in
the sense of whether a manufacturer can satisfy the testing
protocol—is one that can be readily answered in a laboratory.
As discussed above, the UHA already requires gun
manufacturers to submit handguns they wish to sell in
PENA V. LINDLEY 63
California to a State-certified laboratory, which tests
compliance with the CLI, MDM, and microstamping
requirements. CAL. PENAL CODE § 32010(a). If
microstamping technology is feasible and as reliable as the
State believes it to be, there is no purpose for relying on
predictive judgment. The State could simply demonstrate and
certify that popular brands of modern handguns, once
modified with microstamped interior surfaces, will legibly
imprint cartridge casings in two places with their identifying
information—and can do so at rate of consistency that will
satisfy the State’s testing protocol.15
The majority objects to this invitation, arguing that it
would essentially “transform [California] into a gun
manufacturer.” Maj. Op. at 28. But the State has already
interjected itself into the granularity of this issue by setting
(through CDOJ regulations) the technical UHA compliance
requirements and certifying private laboratories to certify
handgun compliance. It is not an onerous burden for the State
to counter Plaintiffs’ central contention that no handgun can
satisfy the testing protocol by simply testing a single
handgun. This is especially true in light of the fundamental
right at stake.
One final note on legislative deference. The majority fails
to acknowledge that even though predictive policy judgments
“are entitled to substantial deference”—where appropriately
15
While the State may counter this invitation by pointing to the
purported unwillingness of gun manufacturers to comply with the
microstamping requirement, the State’s own evidence indicates that
components such as the firing pin and breech face can be microstamped
and tested without a manufacturer’s participation. Indeed, Lizotte’s stress
test involved a handgun he modified with microstamped interior surfaces.
64 PENA V. LINDLEY
applied—they are not “insulated from meaningful judicial
review altogether.” Turner I, 512 U.S. at 666. “On the
contrary, [the Supreme Court has] stressed in First
Amendment cases that the deference afforded to legislative
findings does ‘not foreclose . . . independent judgment of the
facts bearing on an issue of constitutional law.’” Id. (quoting
Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 129
(1989)). While “not a license to reweigh the evidence de
novo,” id., courts are obliged “to assure that, in formulating
its judgments, [a legislature] has drawn reasonable inferences
based on substantial evidence,” Turner Broad. Sys., Inc. v.
FCC (Turner II), 520 U.S. 180, 195 (1997) (quoting Turner
I, 512 U.S. at 666); see also Alameda Books, 535 U.S. at 438
(“This is not to say that a municipality can get away with
shoddy data or reasoning. The municipality’s evidence must
fairly support the municipality’s rationale for its ordinance.”).
Even if legislative deference, in the abstract, applied to
the question of technological feasability, its application
would be unwarranted in this case. As demonstrated above,
the California legislature failed to adequately consider the
impediments to complying with the microstamping
requirement and its testing protocol. And contrary to the
majority’s assertion, there is little indication in the record
before us that the legislature relied on Lizotte’s expertise in
debating whether to enact the requirement. See Maj. Op. at
27–28. I can find no reference in the legislative history to
Lizotte’s stress test discussed above or the public displays of
microstamping’s application cited in his declaration. As far
as I can tell, Lizotte never testified before the state legislature
nor submitted any materials to them other than a press
release. The only direct reference to him in the legislative
history involves staff members of a legislative committee
soliciting his brief response to one of the studies critical of
PENA V. LINDLEY 65
microstamping. See supra note 8. These deficiencies are
glaring, and I cannot conclude that the legislature relied on
substantial evidence in determining that microstamping is
technologically feasible—even before considering the
contrary evidence.
Surprisingly—and perhaps telling—the State has failed to
address on appeal Plaintiffs’ concerns regarding whether
manufacturers can successfully implement microstamping.
The majority attempts to fill this void by relying on a form of
deference that is inapplicable to the question of whether gun
manufacturers can comply with the UHA’s testing protocol.
Given the conflict of evidence on this very point, the majority
should not conclude that the microstamping requirement
survives intermediate scrutiny.
III
My analysis thus far has addressed only step 2 of our
Second Amendment framework: the application of the
appropriate level of scrutiny. See Jackson, 746 F.3d at 960.
The majority avoids step 1 by assuming without deciding that
the CLI, MDM, and microstamping requirements “burden[]
conduct protected by the Second Amendment . . . .” Id.
(quoting Chovan, 735 F.3d at 1136); see Maj. Op. at 13–14.
Because a state can also prevail on a Second Amendment
claim at step 1 by establishing that the Amendment is not
implicated, skipping this step is appropriate only when the
state prevails at step 2 by establishing that the law at issue
survives application of the appropriate level of scrutiny.
Stated otherwise, a court must engage in the step 1 inquiry if
the law would fail to pass constitutional muster at step 2.
Thus, in order for me to conclude that we should reverse and
remand as to the microstamping requirement, I must address
66 PENA V. LINDLEY
the threshold question of whether microstamping implicates
the Second Amendment. This analysis requires addressing
the district court’s conclusion that the UHA is “presumptively
lawful” because it is a “law[] imposing conditions and
qualifications on the commercial sale of arms.” Heller,
554 U.S. at 626–27 & n.26.
The majority—which will soon appear prophetic—states
that courts “have spilled considerable ink” addressing this
precise issue. Maj. Op. at 11. What follows, I fear, is no
exception. I first trace the development of Second
Amendment precedent post-Heller and offer a roadmap to
deciding what conduct falls outside of the Second
Amendment’s protection. I conclude by applying this
roadmap to the microstamping requirement.
A
Because the Second Amendment “codified a pre-existing
right,” its protections encompass “the historical
understanding of the scope of the right.” Heller, 554 U.S. at
592, 625. The scope of the Second Amendment may be
defined not only by what was historically protected, but also
by what the government was historically permitted to
regulate. We have said that the first question we must answer
in a Second Amendment challenge is “whether the challenged
law falls within a ‘well-defined and narrowly limited’
category of prohibitions ‘that have been historically
unprotected.’” Jackson, 746 F.3d at 960 (quoting Brown v.
Entm’t Merchs. Ass’n, 564 U.S. 786, 791–92 (2011)).
In Heller, the Supreme Court identified three categories
of regulatory measures that we may presume to be consistent
with the historical scope of the Second Amendment:
PENA V. LINDLEY 67
Although we do not undertake an exhaustive
historical analysis today of the full scope of
the Second Amendment, nothing in our
opinion should be taken to cast doubt on
longstanding [1] prohibitions on the
possession of firearms by felons and the
mentally ill, or [2] laws forbidding the
carrying of firearms in sensitive places such
as schools and government buildings, or
[3] laws imposing conditions and
qualifications on the commercial sale of arms.
Heller, 554 U.S. at 626–27. The Court, however, did not
elaborate on these enumerated categories, their intricacies, or
their justifications, and instead left that for another time. See
id. at 635 (“[T]here will be time enough to expound upon the
historical justifications for the exceptions we have mentioned
if and when these exceptions come before us.”); see also
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“We
made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as [quoting the three
enumerated categories]. We repeat those assurances here.”).
It added that “these presumptively lawful regulatory
measures” were only examples and not an exhaustive list.
Heller, 554 U.S. at 626 n.26.16
16
To these three categories of laws, the Court added that the “Second
Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes . . . .” Heller, 554 U.S. at 625
(citing United States v. Miller, 307 U.S. 174, 179 (1939)); see id. at 627
(acknowledging that the Second Amendment incorporates the “historical
tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”
(quoting 4 WILLIAM BLACKSTONE, COMMENTARIES 148–49 (1769))).
68 PENA V. LINDLEY
Because Heller’s examples of longstanding or historical
exceptions to the Second Amendment are not exclusive, we
have said that regulations that fall outside the enumerated
categories are immune from further Second Amendment
inquiry only if the government has come forward with
“persuasive historical evidence establishing that the
regulation at issue imposes prohibitions that fall outside the
historical [protection] of the Second Amendment.” Jackson,
746 F.3d at 960. A regulation “does not burden conduct
protected by the Second Amendment if the record contain[s]
evidence that [the subjects of the regulation] have been the
subject of longstanding, accepted regulation . . . .” Fyock,
779 F.3d at 997. These “longstanding, accepted regulations”
may come from the early-twentieth century and need not
trace their roots back to the Founding, so long as their
“historical prevalence and significance is properly developed
in the record.” Id.; see also Nat’l Rifle Ass’n of Am., Inc. v.
Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 196 (5th Cir. 2012) (“Heller demonstrates that
a regulation can be deemed ‘longstanding’ even if it cannot
boast a precise founding-era analogue.”); United States v.
Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (“[W]e
do take from Heller the message that exclusions need not
mirror limits that were on the books in 1791.”). We recently
upheld a state restriction on concealed weapons under this
standard. Peruta, 824 F.3d at 939 (upholding a concealed
carry permit system based on historical evidence of such
regulations going back to the thirteenth century).
How we treat the enumerated categories is, surprisingly,
a more difficult question. See United States v. Booker,
644 F.3d 12, 23 (1st Cir. 2011) (“The full significance of
these pronouncements is far from self-evident.”); see also
Skoien, 614 F.3d at 640 (“We do not think it profitable to
PENA V. LINDLEY 69
parse these passages of Heller as if they contained an answer
. . . .”). There are two important questions that must be
answered about these enumerated categories. First, does
“presumptively lawful” mean “conclusively lawful”? That is,
is a law falling within these three categories subject to a
rebuttable or an irrebuttable presumption of lawfulness?
Second, what is the scope of each of these categories? In this
case, in which California has argued that the challenged
restrictions are “conditions and qualifications on the
commercial sale of arms,” what does that phrase mean? The
stakes are significant: we have suggested that gun restrictions
falling within these three enumerated categories are to the
Second Amendment what libel, obscenity, and fighting words
are to the First Amendment: categories that are not covered
at all by the Amendment. See Jackson, 746 F.3d at 960; cf.
United States v. Alvarez, 567 U.S. 709, 717–18 (2012); New
York v. Ferber, 458 U.S. 747, 763 (1982). If California’s
microstamping restriction falls within one of these
categories—and either the presumption of lawfulness is
irrebuttable or Plaintiffs have failed to rebut the
presumption—the Second Amendment does not apply and the
case should end at step 1.
1
We have not had occasion to decide what “presumptively
lawful” means in this context, but I think that if a regulation
is presumptively lawful, then that is a starting point; that I
might begin from the premise that the regulation is lawful,
but am open to being persuaded otherwise. It is contrary to
my instincts to read “presumptively lawful” as “conclusively
70 PENA V. LINDLEY
lawful.” Nevertheless, the answer has proven elusive, as the
circuits have splintered over the question.17
The Third Circuit was the first court of appeals to address
this interpretative problem. It explained the problem, and the
choices, as follows:
[T]he phrase ‘presumptively lawful’ could
have different meanings under newly
enunciated Second Amendment doctrine. On
the one hand, this language could be read to
suggest the identified restrictions are
presumptively lawful because they regulate
conduct outside the scope of the Second
Amendment. On the other hand, it may
suggest the restrictions are presumptively
lawful because they pass muster under any
standard of scrutiny.
Marzzarella, 614 F.3d at 91; accord United States v. Chester,
628 F.3d 673, 679 (4th Cir. 2010) (“It is unclear to us
whether Heller was suggesting that ‘longstanding
prohibitions’ such as these were historically understood to be
valid limitations on the right to bear arms or did not violate
the Second Amendment for some other reason.”). Although
the Third Circuit considered “[b]oth readings [to be]
reasonable interpretations,” it thought “the better reading,
based on the text and the structure of Heller, is the
former—in other words, that these longstanding limitations
are exceptions to the right to bear arms.” Marzzarella,
17
The cases have been helpfully compiled in David B. Kopel &
Joseph G.S. Greenlee, The Federal Circuits’ Second Amendment
Doctrines, 61 ST. LOUIS L.J. 193, 214–26 (2017).
PENA V. LINDLEY 71
614 F.3d at 91. In a subsequent decision, however, the Third
Circuit rejected a facial challenge to a statute as
presumptively regulating unprotected conduct, but held that
the presumption could be rebuttable in the context of an as-
applied challenge. United States v. Barton, 633 F.3d 168,
172–73 (3d Cir. 2011) (“By describing the felon disarmament
ban as ‘presumptively’ lawful, the Supreme Court implied
that the presumption may be rebutted.” (citation omitted)),
overruled on other grounds by Binderup v. Att’y Gen.,
836 F.3d 336, 348–51 (3d Cir. 2016) (en banc) (disagreeing
over what a challenger needs to show to rebut the
presumption for an as-applied challenge).
Moreover, as if this were not confusing enough, in
Marzzarella, the Third Circuit elsewhere suggested that it
might have to take one approach with respect to disqualified
persons and sensitive places, and a different approach with
respect to commercial regulations. As the court explained, in
contrast to “prohibitions” on certain persons and “laws
forbidding” carrying firearms in sensitive places,
[c]ommercial regulations on the sale of
firearms do not fall outside the scope of the
Second Amendment . . . . In order to uphold
the constitutionality of a law imposing a
condition on the commercial sale of firearms,
a court necessarily must examine the nature
and extent of the imposed condition. If there
were somehow a categorical exception for
these restrictions, it would follow that there
would be no constitutional defect in
prohibiting the commercial sale of firearms.
Such a result would be untenable under
Heller.
72 PENA V. LINDLEY
Marzzarella, 614 F.3d at 92 n.8; see also id. at 92 (noting that
“the Second Amendment affords no protection for the
possession of dangerous and unusual weapons, possession by
felons and the mentally ill, and the carrying of weapons in
certain sensitive places” but omitting “conditions and
qualifications on the commercial sale of arms” from the list).
If I have read the Third Circuit’s precedent correctly, it
regards facial challenges to laws prohibiting possession of
guns by felons and the mentally disabled and to laws
forbidding the possession of guns in sensitive places to be not
just “presumptively lawful,” but lawful and thus outside of
further Second Amendment scrutiny. It permits, however, as-
applied challenges to such laws. With respect to conditions
and qualifications on commercial sale, though, the Third
Circuit has said it will not apply an irrebuttable presumption
to anything arguably within the category, but rather it will
depend on the “nature and extent of the imposed condition.”
Id. at 92 n.8.
The Fifth Circuit sort of sided with the Third Circuit, but
(like the Third Circuit) with a qualification. It agreed that it
was
difficult to map Heller’s “longstanding,”
“presumptively lawful regulatory measures”
onto [the] two-step framework. It is difficult
to discern whether “longstanding prohibitions
on the possession of firearms by felons and
the mentally ill, . . . or laws imposing
conditions and qualifications on the
commercial sale of arms,” by virtue of their
presumptive validity, either (i) presumptively
fail to burden conduct protected by the
Second Amendment, or (ii) presumptively
PENA V. LINDLEY 73
trigger and pass constitutional muster under a
lenient level of scrutiny.
Nat’l Rifle Ass’n, 700 F.3d at 196 (second alteration in
original) (citations omitted). The court concluded: “For now,
we state that a longstanding, presumptively lawful regulatory
measure . . . would likely fall outside the ambit of the Second
Amendment; that is, such a measure would likely be upheld
at step one of our framework.” Id. Thus, the Fifth Circuit
appeared to agree that the presumption was irrebuttable, but
qualified it by stating that such a regulation, if longstanding,
“would likely be upheld at step one” because it “would likely
fall outside” the scope of the Second Amendment. Two
“likely’s” in one sentence strongly suggests that the phrase
“presumptively lawful” is more a mindset than a rule.
The D.C. Circuit simply found “presumptively lawful” to
mean that a law carries a presumption that can be rebutted:
“Heller tells us ‘longstanding’ regulations are ‘presumptively
lawful’; that is, they are presumed not to burden conduct
within the scope of the Second Amendment.” Heller v.
District of Columbia (Heller II), 670 F.3d 1244, 1253 (D.C.
Cir. 2011) (citation omitted). It then explained that
[t]his is a reasonable presumption because a
regulation that is “longstanding,” which
necessarily means it has long been accepted
by the public, is not likely to burden a
constitutional right; concomitantly the
activities covered by a longstanding
regulation are presumptively not protected
from regulation by the Second Amendment.
A plaintiff may rebut this presumption by
showing the regulation does have more than a
74 PENA V. LINDLEY
de minimis effect upon his right. . . . We
uphold the requirement of mere registration
because it is longstanding, hence
“presumptively lawful,” and the presumption
stands unrebutted.
Id.; accord Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1129
(10th Cir. 2015) (Tymkovich, J., concurring in part and
dissenting in part) (“It is a close call, but Bonidy has on
balance not rebutted that presumption.”); Peterson v.
Martinez, 707 F.3d 1197, 1218 n.1 (10th Cir. 2013) (Lucero,
J., concurring) (“A plaintiff may rebut the resumption of
validity by showing that the regulation at issue has ‘more than
a de minimis effect upon his right.’” (quoting Heller II,
670 F.3d at 1253)).
I think that the most natural reading of “presumptively
lawful” is exactly what it says: a law within the enumerated
categories carries a presumption of lawfulness. But it must
be a presumption that is subject to rebuttal. The Supreme
Court introduced the enumerated categories with the
assumption that these restrictions are “longstanding.” Heller,
554 U.S. at 626. I agree with the D.C. Circuit that restrictions
within these categories that are longstanding are more likely
outside the scope of the Second Amendment. See Heller II,
670 F.3d at 1253; see also Jackson, 746 F.3d at 960; Chovan,
735 F.3d at 1137. At the very least, a plaintiff who has
identified a restriction that is not longstanding has the
opportunity to demonstrate how it affects his Second
Amendment rights.
PENA V. LINDLEY 75
2
In Jackson, we observed that Heller’s enumerated
categories, like categories of nonprotected speech, are “well-
defined and narrowly limited.” 746 F.3d at 960 (quoting
Brown, 564 U.S. at 791); cf. Chaplinsky v. New Hampshire,
315 U.S. 568, 571–72 (1942) (“There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem.”). Elsewhere, the Supreme Court has
described categories of nonprotected speech such as libel,
obscenity, and fighting words as “historic and traditional
categories long familiar to the [public].” United States v.
Stevens, 559 U.S. 460, 468 (2010). Two of the three
enumerated categories—“prohibitions on the possession of
firearms by felons and the mentally ill” and “laws forbidding
the carrying of firearms in sensitive places”—seem to fit well
in the class of “well-defined,” “narrowly limited,” “historic,”
and long familiar.”18
18
We have had little difficulty upholding restrictions that fall into
these two categories. For example, when a felon challenged a state’s ban
on his possession of firearms, we simply repeated Heller’s language and
upheld the ban. See Wilson v. Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016)
(noting that if a person falls into one of the exceptions for being a felon or
mentally ill, “her claims would fail categorically” and thus the only outlet
is challenging whether she is, in fact, a felon or mentally ill), cert. denied,
137 S. Ct. 1396 (2017); see also United States v. Phillips, 827 F.3d 1171,
1174 (9th Cir. 2016); Van der Hule v. Holder, 759 F.3d 1043, 1050–51
(9th Cir. 2014); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir.
2010). The same is true with respect to challenges to prohibitions on gun
possession in a “sensitive area,” such as a federal building. See Bonidy,
790 F.3d at 1125–26. In these cases, whether a law bans the possession
of a firearm by a felon, or in a federal building, is a relatively simple
76 PENA V. LINDLEY
The phrase “conditions and qualifications on the
commercial sale of arms,” however, is not so familiar,
narrow, or well defined. Indeed, we recently wrote that “[t]he
language in Heller regarding the regulation of ‘the
commercial sale of arms,’ . . . is sufficiently opaque with
regard to that issue that, rather than relying on it alone . . . ,
we conduct a full textual and historical review [to determine
if the regulation passes Second Amendment scrutiny].”
Teixeira, 873 F.3d at 682–83. This opaqueness probably
explains why in several cases we have assumed without
deciding that a given regulation burdened conduct protected
by the Second Amendment in the face of an argument that it
fell into this sales exception. In each case we avoided having
to parse the category by upholding the restriction under
intermediate scrutiny. ee Silvester v. Harris, 843 F.3d 816,
827–29 (9th Cir. 2016) (assuming a ten-day waiting period on
the purchase of a firearm burdened conduct protected by the
Second Amendment and applying intermediate scrutiny);
Wilson v. Lynch, 835 F.3d 1083, 1092 (9th Cir. 2016)
(applying intermediate scrutiny to a regulation prohibiting
possessors of medical marijuana card from buying firearms);
cf. Jackson, 746 F.3d at 967–68 (applying intermediate
scrutiny to a ban on the sale of hollow-point ammunition). In
fact, so far as I can tell, neither we nor any other circuit court
has held that a given regulation was exempt from Second
Amendment inquiry because it was a condition and
qualification on the commercial sale of arms. Cf. Silvester,
843 F.3d at 831 (Thomas, C.J., concurring) (applying the
categorical-exemption approach without citing cases having
done the same).
inquiry. Cf. United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012)
(upholding a ban on machine guns as qualifying as “dangerous and
unusual weapons”).
PENA V. LINDLEY 77
Because the category is not self-explanatory, I have to
start from a slightly different premise: the Supreme Court in
Heller could not have meant that anything that could be
characterized as a condition and qualification on the
commercial sale of firearms is immune from more searching
Second Amendment scrutiny. See Marzzarella, 614 F.3d at
92 n.8. Take, for example, a law saying that a condition for
the commercial sale of firearms is that sales may take place
only between 11 p.m. and midnight, on Tuesdays. Or a law
imposing a $1,000,000 point-of-sale tax on the purchase of
firearms for self-defense (presumably, to fund firearms
training and education). Even though these restrictions can
be characterized as “conditions and qualifications on the
commercial sale of arms,” we would have to find such
restrictions inconsistent with the “scope of the Second
Amendment.” After Heller, it seems clear that challenges to
these laws would easily overcome any presumption of
lawfulness.
So what constitutes a condition and qualification on
commercial sales? I know of no accepted or common
understanding of this phrase. At a minimum, the Court must
have meant that rules of general applicability do not violate
the Second Amendment just because they place conditions on
commercial sales, including sales of handguns used for self-
defense. Fire codes, sales taxes, and commercial licenses are
ordinary conditions on commercial sales generally. See
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 581 (1983) (“It is beyond dispute that
the States and the Federal Government can subject
newspapers to generally applicable economic regulations
without creating constitutional problems.”). As part of the
cost of doing business, such regulations may raise the cost of
commercial sales, a cost that is typically passed on to the
78 PENA V. LINDLEY
consumer. The fact that such costs of doing business raise the
costs of goods and may affect the willingness of consumers
to purchase the goods does not, for that reason, violate the
Second Amendment—no more than taxes collected on the
sales of religious materials restrict Free Exercise rights under
the First Amendment. Tex. Monthly, Inc. v. Bullock, 489 U.S.
1, 17–20 (1989) (rejecting the argument that an exemption
from sales tax for religious publications was compelled by the
Free Exercise Clause); see Tony & Susan Alamo Found. v.
Sec’y of Labor, 471 U.S. 290, 303 (1985) (“It is virtually self-
evident that the Free Exercise Clause does not require an
exemption from a governmental program unless, at a
minimum, inclusion in the program actually burdens the
claimant’s freedom to exercise religious rights.”); see also
Bowen v. Roy, 476 U.S. 693 (1986) (upholding requirement
that a welfare recipient obtain a social security number
against a Free Exercise Clause challenge); United States v.
Lee, 455 U.S. 252 (1982) (upholding the imposition of social
security taxes against a Free Exercise Clause challenge). We
accept such restrictions on our rights—including our
fundamental rights to speak, publish, and exercise our
religion—because laws of general applicability cover a broad
range of activities and, hence, must have broad, popular
acceptance and support.
The analogy to the First Amendment begins to break
down, however, once we move beyond rules of general
applicability. In the First Amendment context, laws that
single out certain kinds of speech or religion are subject to
strict judicial scrutiny. See, e.g., Texas v. Johnson, 491 U.S.
397, 413 (1989); Minneapolis Star, 460 U.S. at 582–83. The
courts have been vigilant even when a law appears to be one
of general applicability, but in fact has singled out a particular
religion, see Church of the Lukumi Babalu Aye, Inc. v. City of
PENA V. LINDLEY 79
Hialeah, 508 U.S. 520 (1993); Larson v. Valente, 456 U.S.
228 (1982), or a point of view or a mode of expression, see
Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987).
It is thus harder to know what to do with the “conditions
and qualifications on the commercial sale of arms” category
once we get to arms-sales-specific restrictions. There are
surely some restrictions that, to return to our First
Amendment analogy, are the equivalent of time, place, and
manner restrictions. See United States v. Decastro, 682 F.3d
160, 165 (2d Cir. 2012) (characterizing commercial-sale
restrictions as time, place, and manner restrictions). These
might include zoning restrictions, see Teixeira, 873 F.3d at
673, and other health and safety rules imposed on a
commercial site that are unique to arms sales, see Nordyke v.
King, 681 F.3d 1041 (9th Cir. 2012) (en banc). These
restrictions might also be abused—think of my example of a
law restricting commercial sales to one hour on
Tuesdays—but such restrictions, if reasonable, are
presumptively lawful, and any plaintiff bringing a Second
Amendment challenge will bear the burden of rebutting the
presumption. These restrictions go to where and when such
commercial sales can take place.19 See generally Eugene
Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. REV. 1443 (2009).
19
Other point-of-sale restrictions such as background checks and
waiting periods are better characterized as regulations in support of who
may lawfully possess (much less purchase) firearms. Such restrictions are
conveniently enforced at the point of sale but are more easily defended as
restrictions on “the possession of firearms by felons and the mentally ill.”
Heller, 554 U.S. at 626.
80 PENA V. LINDLEY
The question of what can be sold to qualified buyers at an
appropriate location and time comes much closer to the core
of the Second Amendment. The law at issue in Heller banned
all possession of handguns in the District of Columbia, but I
think it obvious that D.C. could not have taken the
intermediate step of banning all sales of handguns in the
District. See Marzzarella, 614 F.3d at 92 n.8. To return, yet
again, to the language of the First Amendment, what may be
sold (to anyone) fairly goes to the content of the Second
Amendment right to acquire the arms that we may keep and
bear for our defense. A law that permits only the commercial
sale of water pistols and Nerf guns is not what the Second
Amendment guaranteed.
Admittedly, I have no particularly good solution to
defining what is and what is not a condition and qualification
on commercial sales. As with the term “regulate Commerce”
in the Constitution, U.S. CONST. art. I, § 8, cl. 3, the phrase
“conditions and qualifications on the commercial sale of
arms” is impressively capacious and difficult to cabin. See
Gonzales v. Raich, 545 U.S. 1, 15–16 (2005) (noting that our
interpretations have “evolved over time”). But the Court’s
generous treatment of “Commerce” in Article I goes to the
regulatory powers entrusted to Congress, one of the core
powers Congress was given to knit together the union
following the Articles of Confederation. See id. at 16 (“The
Commerce Clause emerged as the Framers’ response to the
central problem giving rise to the Constitution itself: the
absence of any federal commerce power under the Articles of
Confederation.”). By contrast, giving “commercial sale” a
similarly broad construction here would serve to restrict
rights guaranteed by the Bill of Rights. I am reluctant to give
the term such a broad construction. Moreover, I am left with
the strong impression that Heller did not exempt from Second
PENA V. LINDLEY 81
Amendment scrutiny any condition and qualification on
firearm ownership that might be enforced at the point of sale.
In my view, the better approach to the conditions and
qualifications on commercial sale category is that taken by
the D.C. Circuit in Heller II. We should apply the
presumption of lawfulness to a longstanding regulation of
commercial sales of arms. The plaintiff would be able to
“rebut this presumption by showing the regulation does have
more than a de minimis effect upon his [Second Amendment]
right.” Heller II, 670 F.3d at 1253. This proposed
framework would capture the spirit of Heller. It places little
burden on the government to show that its regulations are
longstanding. See United States v. Greeno, 679 F.3d 510, 518
(6th Cir. 2012) (requiring the government to “demonstrate[]
that the challenged statute ‘regulates activity falling outside
the [historic] scope of the Second Amendment’” with more
than “inconclusive” or ambiguous evidence (quoting Ezell v.
City of Chicago, 651 F.3d 684, 702–03 (7th Cir. 2011))). At
the same time, it gives the plaintiff an opportunity to show
that the regulations substantially infringe Second Amendment
rights. The closer the regulations get to the core of the
Second Amendment, the less willing we should be to deem
them “presumptively lawful” and outside the scope of the
Second Amendment. Where the presumption is rebutted, the
government would have to defend its regulation under an
appropriate level of scrutiny.
B
With this understanding of what the step 1 inquiry entails,
I now turn to the question of whether the microstamping
requirement burdens conduct protected by the Second
Amendment. The State makes two arguments. Its primary
82 PENA V. LINDLEY
contention is that the microstamping requirement is
presumptively lawful as a condition and qualification on the
commercial sale of arms. Alternatively, the State claims that
the requirement, even if not a condition on commercial sales,
is still outside the scope of the Second Amendment because
it is a “longstanding, accepted regulation.” Fyock, 779 F.3d
at 997; see also Jackson, 746 F.3d at 960. I address each
argument in turn.
1
As is evident from my discussion above, not everything
that the State enforces at the point of sale should be deemed
a condition and qualification on the commercial sale of arms.
I conclude that zoning and commercial licensing
requirements are the kind of time, place, and manner
restrictions governing the when and where in commercial
sales that may be presumptively valid as conditions and
qualifications on the commercial sale of arms. Beyond that,
things get complicated, and whether restrictions on
commercial sales of firearms fall entirely outside the scope of
the Second Amendment will depend on the nature of the
restriction.
The microstamping requirement is not a condition
California imposes on time, place, or manner of sale, but on
the kinds of handguns Californians may purchase. It is true
that the restriction is generally enforced at the point of sale,
but that, as I have explained, is not a complete answer to
Plaintiffs’ complaints. Plaintiffs argue that the
microstamping requirement restricts the supply of weapons
available in the first place—and that surely is a burden on the
right of self-defense.
PENA V. LINDLEY 83
I am thus unwilling to assume that California’s restriction
on the types of arms that can be sold commercially is so
plainly a condition and qualification that it is “presumptively
lawful” and thus immune from any Second Amendment
inquiry. Whatever the contours of the commercial sales
category, Heller cannot mean that the State can ban the sales
of arms—whether it does so directly or indirectly by
imposing conditions on features that commercially sold
firearms must possess. Accordingly, I cannot conclude that
the microstamping requirement falls within the commercial
sales exception.
2
In the alternative, the State claims that there is “historical
precedent for California’s Unsafe Handgun Act.” I construe
this discussion of history as an attempt to recognize a new
category of presumptively lawful regulatory measures under
Heller. See Heller, 554 U.S. at 627 n.26. In such an inquiry,
the burden lies with the State. See Ezell, 651 F.3d at 702–03.
Moreover, historical exceptions must not be described at an
“inappropriately high level of generality—akin to saying that
because the government traditionally could prohibit
defamation, it can also prohibit speech criticizing government
officials.” Heller II, 670 F.3d at 1294 (Kavanaugh, J.,
dissenting).
The State claims that microstamping has a historical
provenance because police have long used ballistic testing of
fired rounds to determine which gun, and type of gun, the
round came from. But this historical evidence is inadequate
for the State’s purpose. The history of ballistic testing merely
shows that the police have examined bullets and casings for
distinctive markings inadvertently left by the barrels. This is
84 PENA V. LINDLEY
a history of forensics, not a history of the laws regulating
firearms. The State has supplied no evidence that rifling was
done for the purpose of identifying the weapon, or that this
inadvertent consequence of gun manufacturing was required
by law.
Alternatively, the State argues that microstamping is
similar to the longstanding requirement that weapons have a
serial number. Federal law has required serial numbers on
firearms since 1934, and the courts have upheld these
requirements post-Heller. The Third Circuit in Marzzarella
observed that requiring serial numbers was a longstanding
rule that had nothing to do with the gun’s utility: “[T]he
presence of a serial number does not impair the use or
functioning of a weapon in any way . . . . With or without a
serial number, a pistol is still a pistol.” 614 F.3d at 94. Thus,
the Third Circuit concluded, any burden would be “de
minimis.” Id. In other words, the only possible reason
anyone would want an unmarked firearm is for illegal
purposes, and that would fall outside the bounds of Heller’s
emphasis on the Second Amendment protecting law-abiding
citizens. Id. at 95. Marzzarella does not help the State at this
point in the analysis, however, because the Third Circuit
declined to adopt the government’s claim that the serial
number requirement did not impair Second Amendment
rights. Instead, the court concluded that the law passed
muster under either heightened or strict scrutiny. Id.; see also
id. at 97–99 (applying heightened scrutiny); id. at 99–101
(applying strict scrutiny). In other words, the case supporting
the State’s best historical example does not support the
State’s claim that its requirement falls outside the scope of
the Second Amendment.
PENA V. LINDLEY 85
From the State’s argument, I garner that there is at least
a ninety-year history of requiring that newly-manufactured
guns be imprinted with a serial number on some portion of
the weapon in accordance with a process in place since the
Industrial Revolution and that doing so does not affect the
gun’s utility. In other words, there is a history of imposing a
restriction that burdens nothing except for someone’s desire
to act unlawfully. Even assuming that microstamping is just
a variation on the serial number requirement, the State’s
history is not sufficient to persuade me that there should exist
a new class of laws immune from Second Amendment
inquiry, particularly when Plaintiffs allege that they cannot
satisfy the microstamping requirement. That is far greater
than a “de minimis” burden. Marzzarella, 614 F.3d at 94.
Accordingly, the district court erred in holding that, at
step 1, the microstamping requirement does not burden
conduct protected by the Second Amendment. Because I
additionally conclude that granting summary judgment in
favor of the State on the microstamping requirement is
improper at step 2, I respectfully dissent as to this claim.
***
“I will not add to this long paper by an apology for its
length. If I am wrong, there can be no good apology; and if
I am right, none is necessary.” Pet. for Reh’g, Hickman v.
McCurdy, 30 Ky. (7 J.J. Marsh) 555, 573 (1832), 1832 WL
2229, at *12.