Well, I had every intention of writing a blog this week about either God, the transcendent human condition, why I really like gefilte fish, or the demographic catastrophe about to manifest on the European continent…
But, a funny thing happened on the way to the forum, so to speak.
We got a victory in federal court (well… a procedural victory, but a victory nonetheless) and Attorney General Garland either decided (or was pressured) to make what potentially could be a massive miscalculation in the Biden Administration’s war on civil liberties. So… this week you get a “law blog”… grab your cup of coffee (or whisky)… this one is going to be fun… and somewhat long.
First off, let’s talk about the news in Boland v Bonta.
As we have discussed before, the Supreme Court case of NYSRPA v Bruen has opened up a spectacular avenue to challenge existing gun control statutes nationwide, beyond the original limited question the Supremes were asked to speak on. (This is actually important… we will be discussing the concept of “vehicle cases” later on when we discuss Garland’s latest potential misstep.)
In Bruen the question was squarely whether the Second Amendment existed outside of the home; that was what the limited scope of inquiry was originally centered on. Since the Court agreed the Second does exist outside of the home, it naturally flowed to the conclusion that someone must be able to actually exercise that right. If State statutes forbade the open carrying of a firearm, then they MUST issue concealed carry permits. (We call this concept “shall issue”. To be a bit more granular… if applicants for a concealed carry permit are not prohibited persons, then the issuing agency MUST grant them the permit. Essentially, they enjoy a presumption that in the absence of any empirical evidence to the contrary, the request for a permit must be issued.)
Then the Court went a step further… a massive step.
Justice Thomas began opining on the Second Amendment itself, not just where it existed. Specifically, he established a new Constitutional “test” to determine if a proposed or existing statute (or executive regulation) is in violation of the Constitution. This now has been fleshed out to the “two-part test”. Essentially, we ask a threshold question: Does the regulation affect the individual exercise of the Second Amendment? It is the plaintiff’s burden to prove that it does. If the plaintiff is successful, we move to step two, and the burden now shifts to the defendants: Is the regulation consistent with the history, text, and regulatory traditions of arms at the time of the ratification (in 1792). (To be fair, the State can also look to 1867 for regulations since this is often referred to as the “Second Ratification” with the passage of the Fourteenth Amendment after the Civil War.)
The State does not need to prove that a similar law existed at the ratification; it can look to laws that were analogous to the current suspect law to try and satisfy its burden. Since there were arguably very, very, very few regulations at the time of the ratification, it is usually forced into the “analogous” regulation argument.
So… with Bruen now at our disposal, the lawsuits started to fly. The California Rifle and Pistol Association (CRPA), as well as the brilliant lawyers at Michele and Associates, filed a case in federal court called Boland v Bonta challenging the California Roster of Safe Handguns. More specifically, they were challenging the micro-stamping requirement a manufacturer must meet to get a handgun on the roster.
The case is currently being litigated in the courtroom of the Honorable Carmac J. Carney. Plaintiffs (our side) filed a motion for a preliminary injunction to stop the enforcement and application of the roster as it relates to micro-stamping.
Now a bit about preliminary injunctions and their survivability on appeal:
Usually… and this case is a bit unusual as you will soon see… a statute is stayed by a preliminary injunction before it goes into effect. Plaintiffs believe the implementation of the new law is unconstitutional and they will suffer irreparable harm if it gets enforced. So the Court issues a “time out” called the preliminary injunction. The implementation of the law is stayed until the case goes to trial and the judge rules on the merits. Okay… so far, so good.
But this law has actually been on the books since 1999, with the nefarious micro-stamping requirement since 2014. So Michele and Associates had to convince the judge that the “continued” enforcement of the law was not only unconstitutional, but would harm the plaintiffs.
And they succeeded.
Now… for a judge to issue a preliminary injunction, they need to find two things: 1) that the plaintiffs have a winning argument and will likely prevail at trial down the road, and 2) that they will suffer irreparable harm if the law is enforced.
Judge Carney found both to be true. The second part of the analysis is interesting, but the first part is critically important. In his papers granting the injunction, he underwent an abbreviated Bruen analysis… and ended up going beyond the scope of the initial inquiry finding that the requirements of a loaded chamber indicator, a magazine disconnect, AND the micro-stamping requirement all failed under Bruen. (He found the requirement that a gun survive a drop test… the original, singular requirement to get on the roster, might be constitutionally ok.) Thus, he did not issue an injunction barring the enforcement of the roster… he simply enjoined the State from not putting a gun on the roster because it lacks these additional features.
Okay… so what if the State appeals?
Well… it probably will… because… well… it is the State, and they have nothing better to do with your money. But I digress…
When the State appeals a motion for preliminary injunction it goes to the 9th Circuit Court of Appeals and it makes its argument to a three-judge panel. As a general rule, the three-judge panel is pretty irritated with the State for waking them up and making them come into court for this. Regardless of their underlying political ideology, the appellate judges are extremely loath to second guess a sitting district court judge on what is essentially a procedural issue. You might remember something similar happed in Duncan when St. Benitez issued a preliminary injunction barring enforcement of the Magazine Control Act. The State appealed the injunction and the 9th Circuit smacked it down. Basically they told the State (correctly)… ”you are here too damn early! Don’t make us overrule a judge on a procedural issue while the case is still in his courtroom! Wait until after he makes his ultimate ruling, then come back here and we will figure out how to overturn it.”
I suspect that something similar is going to happen here.
So… practically what does this mean right at this moment? Well… the State still has a few days from the time you are reading this to appeal the issuance of the injunction, and as I mentioned in the paragraph above, it is probably going to lose. When that happens the injunction goes into force. A manufacturer can now submit its Mega Blaster 5000 to the CA DOJ for submission to the California Roster. If it survives the drop test, it MUST go on the roster and become available for sale through FFLs in the primary market.
(Since California is still the second largest market for firearms sales in the country, I suspect that just about every gun manufacturer has already boxed up a number of its products and has printed the shipping labels, waiting to have UPS pick them up for shipment to CA DOJ.)
Now… on to General Garland….
So… remember Bruen? Well… in the 1990s a Democratic senator named Frank Lautenberg sponsored an amendment to the 18 USC § 922 he called the Lautenberg Amendment. It states that anyone who has been adjudicated or pleads guilty to a crime of misdemeanor domestic violence is now prohibited for life, from ever owning a firearm. (To my knowledge it is the only time where a misdemeanor creates a lifetime prohibition on a fundamental, specifically enumerated right.)
Well… back in 1791 we certainly had issues with domestic violence, but there were no laws that specifically restricted misdemeanants from having access to arms (felonies… yep… there were a couple, but not misdemeanors).
So… old Zackey Rahimi in Texas gets declared a prohibited person under Lautenburg after he pleads guilty to misdemeanor domestic violence. This happens pre-Bruen.
He actually appeals his status after he learns that now, as a Lautenburg, he cannot ever own a gun. The appeals court tells him to go pound sand.
Then Bruen is handed down.
Mr. Rahimi decides to go back to court and now argue his case under the Bruen rubric. This time the Court agrees with him and finds the Lautenburg Amendment to be unconstitutional.
Now, here comes the Biden Administration. Furious and frothing at the mouth, it asks Attorney General Garland to appeal this decision to the Supreme Court. (In fairness… Garland might be quite comfortable doing this without any pressure, but there is clear indication the entire Administration is behind it.)
The question is whether the Supremes are going to take up the case. I suspect they will… and, oh boy… put your seatbelts on when they do.
Remember I mentioned a ways back about “vehicle cases”? These are cases that come to the Court for a singular purpose, but the Court uses the case to get us somewhere else, oftentimes to a place that neither litigant had any intention of going. Bruen was actually one of these cases. NYSRPA wanted people to get CCW permits…we now have a Constitutional test we can use to challenge the roster.
Rahimi may become another “vehicle case”. Courts (and legislators) have been trying to figure out how they can obviate, stall, or otherwise ignore Bruen. I have a feeling Thomas will end up writing the Rahimi decision as well, and may put more… shall we say…”teeth” into Bruen, perhaps even opining that plaintiffs challenging these laws should be entitled to file 1983 actions against the State and individual State actors, for civil rights deprivations.
This will be fun to watch…
Stephen, I went to buy ammo this week and because I had moved since I last purchased ammo (way before the pandemic) I learned that I have to give the state my new (three year old) address and make, model and serial number of one of my firearms. This smells like a gun registration scheme and the state can reasonably assume that where there is one gun there are more guns. I am thinking of doing the 10 day background check for my ammo purchase rather than register any of my firearms with the government. Otherwise, I will just keep depleting my supplies. Thoughts? Sorry to be off topic but I believe this ties into the Bruen decision since there is no text and historical support for registering your gun so you can buy ammunition….
Can CAL-DOJ “slow walk” any “drop test” such that placing new models on retail store shelves might be a long, long way off? More specifically, is there any administrative procedure “right” to have any firearm “safety tested” by CAL-DOJ within a certain period of time? E.g. 30 days? 60 days? Are there any applicable requirements (or rights) applicable? After many years watching the CA administrative state in action, I wonder how they would respond to hundreds of “current model” firearms being delivered for drop-testing…
It’s my understanding that the State has appealed but not included microstamping in the appeal. Wondering how many manufacturers will be willing to incorporate loaded chamber indicators and magazine disconnects in their latest offerings if that is necessary to make them CA-compliant?
Also wondering, given the State’s appeal, what happens to the 14 day stay? Will it expire or be extended while the appeal progresses?