Press "Enter" to skip to content

California’s ban on all new pistol models: Supreme Court amicus brief

Can a state ban all new handguns? According to a 2-1 panel of the Ninth Circuit, the answer is yes. A pending cert. petition asks the U.S. Supreme Court to consider the question. I filed an amicus brief in support of petition, on behalf of professors (including VC’s Randy Barnett) who teach Second Amendment law, and also on behalf of several civil rights organizations (the Independence Institute, where I work; the Millennial Policy Center; and Mountain States Legal Foundation).

Background: The case is Pena v. Horan, with Supreme Court docket number i18-843. My amicus brief is here. The Supreme Court’s docket page is here. As the docket indicates, California has received an extension for its reply brief until March 6.

A California statute requires that all new models of semi-automatic handguns stamp the handgun’s serial number in two locations on each round of ammunition. It is possible for a handgun’s firing pin to stamp the serial number onto the cartridge’s primer, which is a disk in the center of the back side of the ammunition. It not possible to stamp a serial number in two locations, as an erudite amicus brief from the Cato Institute explains. Nevertheless, California Attorney General Kamala Harris in May 2013 declared that all conditions for implementation by the statute had been met. Accordingly, all pistol models created since May 2013 are prohibited from commercial sale in California.

Cert. petition amicus briefs were also filed on behalf of 19 states, led by Texas Attorney General Ken Paxton (lower courts have been flouting Heller and need guidance from the Supreme Court); and by gun rights organizations led by the Firearms Policy Coalition (detailing how the microstamping law and other California laws have greatly constricted California consumer choice on handguns).

After Attorney General Harris announced the ban on all new pistol models, a suit was brought by four individual plaintiffs, plus the Second Amendment Foundation. Attorneys are Alan Gura (winner of the Heller and McDonald cases in the Supreme Court) and Don Kilmer. Before the Ninth Circuit, amicus briefs in support of the ban were filed by the Law Center to Prevent Gun Violence, the Brady Center to Prevent Gun Violence, the Los Angeles City Attorney, and Everytown for Gun Safety.

The Ninth Circuit upheld the ban 2-1, with Judge Bybee dissenting.

Amicus brief: California’s unprecedented ban prevents consumers from taking advantage of all improvements in pistol safety. Since 2013, new handgun models have introduced better ergonomics, reduced recoil (especially important for people who do not have great upper body strength), durability, and accuracy. Better ergonomics, better sights, easier control, and so on, make the gun safer to use, such as by reducing stray shots.

In Heller, the Supreme Court expressly rejected the notion that the Second Amendment could be limited to the types of arms in existence in 1791. In the 2016 Caetano case, the Court per curiam overturned a Massachusetts decision that had upheld a stun gun ban since stun guns did not exist in 1791. Because technological freezes on constitutional rights are forbidden, California may not bar citizens from buying pistols that were created after 2012.