California Gun Law Assailed as Back-Door Ban in Court

Gun World co-owner Joseph Ferrero is telling customers it’s their last chance to buy some semiautomatic handguns including a .40-caliber Smith & Wesson M&P or a 9 mm Ruger LC9 because “California has effectively banned” them.

The guns, which will remain legal for sale in other states, are being snapped up as enthusiasts at his Burbank store try to get ahead of tightening restrictions that firearms makers say amount to an indirect and unconstitutional ban in the largest U.S. state.

California is the first to bar retailers from selling new models of semiautomatic handguns not equipped to imprint the weapon’s make, model and serial number on the cartridge when a bullet is fired. While microstamping technology is popular with law enforcement to help deter or solve crime, manufacturers Smith & Wesson Holding Corp. and Sturm Ruger & Co. say they won’t use it even if it means their guns can’t be sold in California.

In Sacramento, a federal judge may decide as soon as next week whether the state’s microstamping requirement, which took effect last year, constitutes a de facto ban that violates the right to bear arms. The ruling may spur appeals all the way to the U.S. Supreme Court, which in 2008 upheld individuals’ right to own handguns, calling them the “quintessential self-defense weapon.”

‘Safe’ Handguns

“It comes to the point where we will only be selling revolvers,” said Ferrero, whose website advertises the last chance to buy select models as more fall off the state’s list of “safe” handguns.

The 2008 high court ruling left room for gun-control backers to impose new rules to promote safety. California, New York and Maryland, among other states, enacted restrictions that U.S. gun manufacturers and retailers contend are intended to regulate their $14 billion industry out of business.

U.S. District Judge Kimberly J. Mueller, who was appointed by President Barack Obama, a Democrat, heard arguments on Dec. 16 on both sides’ request to rule on the legality of California’s gun regulations.

The National Shooting Sports Foundation and the Sporting Arms and Ammunition Manufacturers’ Institute also sued in state court in Fresno to invalidate the law.

Aurora, Newtown

U.S. courts have struck down only a handful of state and local gun laws in about 800 challenges since the Supreme Court’s ruling, Juliet Leftwich, legal director of the Law Center to Prevent Gun Violence in San Francisco, said in a phone interview. Those left intact include restrictions passed in the wake of 2012 massacres at an Aurora, Colorado, movie theater and Sandy Hook Elementary School in Newtown, Connecticut.

New York’s measure banned assault weapons and large-capacity magazines. Maryland requires people to show a special need for protection to get a permit for carrying a handgun in public.

One law that didn’t survive was Chicago’s ban on firearm transfers and sales within the city, which a federal judge found unconstitutional because it allowed residents to own guns while making it illegal to buy them.

If California’s law is ruled constitutional, other states including New York, New Jersey and Connecticut will probably require microstamping, Leftwich said.

So far, only the District of Columbia has passed a similar requirement. That measure isn’t scheduled to go into effect until 2016.

Appeal Prospects

Erwin Chemerinsky, a constitutional law scholar and dean of the University of California at Irvine law school, said at a gun-law panel discussion in Los Angeles that he expects the state’s microstamping requirement to be upheld on an appeal.

“It serves all interests and it doesn’t infringe the right to have a firearm,” Chemerinsky said.

California enacted the nation’s first assault-weapons ban in 1989 after Patrick Purdy fired 106 rounds in three minutes from an AK-47 rifle into a Stockton, California, schoolyard, killing five children and wounding 30.

California’s restrictions have contributed to a 56 percent drop in fatalities from gun violence over the past 20 years, according to Leftwich’s group.

Los Angeles City Attorney Mike Feuer, who as a state assemblyman in 2007 introduced the microstamping mandate, said most homicides are committed with handguns and about 45 percent go unsolved.

If bullet casings found at a crime scene have microscopic marks uniquely identifying the gun, that will provide police with a lead they wouldn’t otherwise have to solve a case, he said.

‘Realistic Goal’

“That is a very realistic goal of this legislation,” Feuer said in an interview at his office. “And it would be achieved if only the gun industry steps aside and devotes as much time as it does to fighting this law to implementing it.”

The law was signed in 2007 by then-Republican Governor Arnold Schwarzenegger and was put on hold until last year when the state attorney general’s office determined the technology was available to all gun makers, unencumbered of any patent claims. The bill was supported by about 65 police chiefs and sheriffs, including New York City Police Commissioner Bill Bratton, then chief of the Los Angeles Police Department, Feuer said.

The advocacy group Mayors Against Illegal Guns said a peer-reviewed study found that microstamping has at least a 54 percent success rate. Former New York City Mayor Michael Bloomberg, co-chairman of the coalition, is the majority owner of Bloomberg LP, the parent of Bloomberg News.

Microstamp Tracing

Microstamps allow police to identify a gun’s owner if it was sold in a state that requires handgun registration; otherwise, federal authorities can trace it back to the first retail buyer, according to the mayors’ group.

Gun-rights advocates say the cost of equipping firearms with ID stamps penalizes lawful firearms owners.

The technology is “unreliable, serves no safety purpose, is cost prohibitive and, most importantly, is not proven to aid in preventing or solving crimes,” Springfield, Massachusetts-based Smith & Wesson said in a Jan. 22 statement.

The lawsuit in Sacramento brought by gun owners supported by the Second Amendment Foundation Inc. and Calguns Foundation Inc. targets the microstamping requirement as part of a broader challenge to California’s roster of “safe” firearms that can be sold.

The roster, created in 2001, spells out features that semiautomatic handguns must have. These include an indicator when a round is in the chamber and a mechanism that renders a gun incapable of firing when the magazine is removed. Microstamping and other requirements take effect on a rolling basis, as manufacturers introduce new models.

Gun Roster

“California will not roster handguns lacking features which are missing from many, if not the vast majority, of handguns,” the law’s opponents said in an Oct. 25 court filing. “Indeed, no new semiautomatic handgun models can be sold in California at all.”

Glock Inc. said in a court filing in support of the plaintiffs that its newest models can’t be sold in California because they lack both a magazine disconnect mechanism and microstamping technology.

Yet these guns are just as safe as older models that also lack these features and still can be sold legally in California, according to the gun maker.

“In addition to being an Orwellian approach to gun safety, California’s roster scheme is inconsistent with the Supreme Court’s common use test for identifying ‘arms’ that are protected by the Second Amendment,” Glock said.

Shooting Foundation

The National Shooting Sports Foundation said flaws and imprecision in the technology mean there’s no guarantee police will be able to match casings to a gun

“In cases of criminal misuse of firearms, assailants fire less than four shots on average; far short of the 10 cartridges from one firearm required to make a ‘reasonable guess’ at identification,” the foundation said in a statement.

Ferrero at Gun World in Burbank said criminals could skirt the law either by tampering with the guns -- switching pins and barrels where the stamps will be placed -- or by leaving shells from a different gun to confuse police.

The microstamping requirement, while fueling a spike in semiautomatic sales, will hurt business in the long run, Ferrero said. As many of the 40 percent of the models Gun World was permitted to sell last year won’t be legal in California once manufacturers update them, he said.

‘Heartland’ Demand

California generated about $1.2 billion in revenue from retailers and distributors through sales of guns, ammunition and accessories in 2011, according to the National Shooting Sports Foundation.

Brian Ruttenbur, an analyst at CRT Capital Group LLC in Stamford, Connecticut, who covers Sturm Ruger and Smith & Wesson, the No. 1 and No. 2 publicly traded firearms makers in the U.S., said the long-term demand for guns across the U.S. is in the “heartland,” not California.

“While it’s the most populous state, I think it’s not the biggest state for gun sales,” he said.

The Supreme Court’s 2008 ruling in Heller v. District of Columbia resolved a constitutional question that had lurked for two centuries: whether the Second Amendment protects individuals even though it refers to state-run militias. The ruling, which divided the court 5-4, struck down the District of Columbia’s handgun ban.

Scalia’s Distinction

In the majority opinion, Justice Antonin Scalia drew a distinction between “common use” weapons that can’t be banned and those that are “dangerous and unusual.”

The Supreme Court left intact prohibitions on felons and the mentally ill owning guns, laws banning firearms at places such as schools and government buildings, as well as laws regulating the commercial sale of arms.

California’s law is distinct from the District of Columbia’s sweeping ban on handguns, state Attorney General Kamala Harris said in a court filing.

“Nothing in the Second Amendment guarantees the right to purchase whatever kind of handgun one desires from whomever he or she desires,” Harris said.

In December in a separate lawsuit challenging the state’s 10-day waiting period to receive a gun after it is bought, U.S. District Judge Anthony Ishii in Fresno rejected Harris’s request to declare that law constitutional without holding a trial. Harris didn’t provide sufficient evidence that 10 days are needed for a background check or as a “cooling off” period, particularly if the buyer already owns a gun, the judge said. The case is scheduled for a nonjury trial on March 25.

Supreme Court

The Supreme Court hasn’t considered Second Amendment challenges since its 2008 Heller ruling and a 2010 decision that cities other than Washington can’t completely ban guns, Chemerinsky said.

When there’s a significant split among the mid-level federal appeals courts, the Supreme Court will revisit the Second Amendment and further clarify its meaning, he said.

Gun-regulation advocates should be careful which ruling they ask the top court to review, Chemerinsky said.

“I would love the first case to get there to be the gun-stamping case,” he said. “What’s the argument for not being able to identify which gun a bullet came from?”

The case is Pena v. Cid, 09-cv-01185, U.S. District Court, Eastern District of California (Sacramento).

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