An analogous reading of the First Amendment would be that the State can restrict certain publications on the grounds that they might impact public safety…
(Dean Weingarten, Gun Watch) A three judge panel in the Ninth Circuit Court of Appeals has ruled the restrictions of the California Unsafe Handgun Act (UHA) do not violate the Second Amendment. In circular reasoning, the opinion posits the UHA restrictions do not restrict behavior protected by the Second Amendment. They then apply the least restrictive Constitutional test to determine if the behavior is protected. Unsurprisingly, they find that it is not.
The key to the decision is the Ninth Circuit’s hostility to a broad reading of the Second Amendment. The Circuit, in it’s en banc rulings, such as Peruta, Tiexeira v. County of Alameda, and in a three judge panel, Silvester v. Harris, has consistently worked to restrict Second Amendment rights to the narrowest possible box. An analogous reading of the First Amendment would be that the State can restrict certain publications on the grounds that they might impact public safety. For example, that violent video games could be banned. The Supreme Court has rejected that argument for the First Amendment.
Here is the summation of the opinion of the court, From Pena v. Lindley:
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 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.
The Court’s using of the words “intermediate scrutiny” belies the fact that, in the case of the Second Amendment, “intermediate scrutiny” has collapsed to mere rational basis scrutiny. Rational Basis scrutiny is so close to no scrutiny, there is effectively no difference.
Under “intermediate scrutiny” in a Second Amendment case at the Ninth Circuit, to pass Constitutional muster, the State only has to claim some vague governmental interest. “Public Safety” is a favorite. It can be made to fit nearly every circumstance.
Then the State need only claim there is some relationship between the interest and the law in question. The State does not have to show the law actually accomplishes any increase in public safety; nor does the state have to show the law performs better than other, less restrictive, remedies.
In effect, in the Ninth Circuit and in other circuits hostile to a broad interpretation of Second Amendment rights, intermediate scrutiny is used as a sophistry to restrict the Second Amendment to narrower and narrower meanings.
The problem cannot be solved at the current Ninth Circuit. There are too many judges on the Circuit actively hostile to Second Amendment rights.
Given the political situation in California, it is unlikely the California legislature will correct the situation. Citizens in California who resent every greater restrictions on exercise of their Second Amendment rights have one judicial remedy left: appeal to the Supreme Court.
The Supreme Court may or may not accept the case. The Supreme Court has been unwilling to accept appeals from the Ninth Circuit on Second Amendment grounds. I cannot recall a single case the Supreme Court has accepted from the Ninth Circuit on a Second Amendment challenge.
When and if President Trump’s nominee, Judge Kavanaugh, becomes Justice Kavanaugh on the Supreme Court, the makeup of the Supreme Court may be changed enough so the Court will accept Second Amendment appeals from the Ninth Circuit.
That remains to be seen.
An alternate, and plausible solution would be for the Congress of the United States to pass legislation to enforce Second Amendment rights against the states. A national reciprocity act, as has broad support in the Congress, would go a long way to restore Second Amendment rights to Californians.
Congress could remove the current prohibition on interstate handgun sales, if it so wished.
©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.