Pena et al v. Cid

Filing 94

ORDER signed by Judge Kimberly J. Mueller on 2/25/15 GRANTING 55 Motion for Summary Judgment ; DENYING 61 Motion for Summary Judgment ; MOOTING 82 Motion to Supplement. CASE CLOSED. (Meuleman, A) Modified on 2/26/2015 (Meuleman, A).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IVAN PEÑA, et al.,

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Plaintiffs,

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No. 2:09-CV-01185-KJM-CKD

v.

ORDER

STEPHEN LINDLEY, in his official
capacity as Chief of the California
Department of Justice Bureau of Firearms,

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Defendant.

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On cross-motions, the parties move for summary judgment on claims related to

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the constitutionality of California’s Unsafe Handgun Act (“UHA”). The court heard argument

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on December 16, 2013, with Alan Gura and Donald Kilmer appearing for plaintiffs and

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Anthony Hakl III appearing for defendant. Subsequent to the hearing, the court directed

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supplemental briefing. In light of the supplemental briefing, plaintiffs’ pending motion to

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supplement the record, ECF No. 82, is DENIED as moot. For the following reasons, the court

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DENIES plaintiffs’ motion and GRANTS defendant’s motion.

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I.

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BACKGROUND
A.

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PARTIES
Individual plaintiffs Ivan Peña, Roy Vargas, Doña Croston, and Brett Thomas

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are law-abiding citizens of the United States and California. Pls.’ Second Am. Compl.

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(“SAC”) ¶¶ 1–4, ECF No. 53; Pls.’ Resp. to Def.’s Undisputed Facts ¶¶ 4, 9, 14, 19, ECF

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No. 73-1. Each is a member of plaintiff Second Amendment Foundation, Inc. (“SAF”), and

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plaintiffs Vargas and Croston are “supporter[s] of and participant[s] in” the activities of

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plaintiff Calguns Foundation, Inc. (“CGF”). SAC ¶¶ 1–4. Plaintiffs Peña and Thomas are

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board members of CGF. Id. ¶¶ 1, 4.

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Plaintiff SAF is

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a non-profit membership organization incorporated under the
laws of Washington with its principal place of business in
Bellevue, Washington. SAF has over 650,000 members and
supporters nationwide, including California. The purposes of
SAF include education, research, publishing and legal action
focusing on the Constitutional right to privately own and possess
firearms, and the consequences of gun control.

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Id. ¶ 5; see also Pls.’ Resp. to Def.’s Undisputed Facts ¶ 2. Plaintiff CGF is

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a non-profit organization incorporated under the laws of
California with its principal place of business in San Carlos,
California. The purposes of CGF include supporting the
California firearms community by promoting education for all
stakeholders about California and federal firearm laws, rights and
privileges, and defending and protecting the civil rights of
California gun owners. CGF represents these members and
supporters, which include California firearm retailers and
consumers. CGF brings this action on behalf of itself and its
supporters, who possess all the indicia of membership.

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SAC ¶ 6; see also Pls.’ Resp. to Def.’s Undisputed Facts ¶ 3.

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Plaintiffs name as defendant Stephen Lindley in his official capacity as the Chief

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of the California Department of Justice Bureau of Firearms. SAC ¶ 7; Pls.’ Resp. to Def.’s

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Undisputed Facts ¶ 1. In this capacity, defendant is responsible for formulating, administering,

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enforcing, and executing the challenged laws. SAC ¶ 7.

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B.

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UNSAFE HANDGUN ACT
The UHA is a penal statute that prohibits the manufacture, sale, gifting, or

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lending of any handgun in California that does not meet certain requirements. Cal. Penal Code

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§§ 31910, 32015(a). It finds its genesis in 1997, when the California Legislature passed S.B.

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500, which attempted to ban guns, known as “Saturday Night Specials,” that did not comply

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with federal safety standards. S.B. 500, 1997–1998 Leg., Reg. Sess. § 1 (Cal. 1997) (as passed

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by Senate, Sept. 9, 1997, but not enacted); Assem. Comm. on Appropriations, 1997–1998 Leg.-

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Comm. Analysis of S.B. 500, Reg. Sess. at 1 (Cal. July 30, 1997). Noting that “[t]he leading

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cause of death among young people ages 10 to 17 in California [in 1996] was firearm

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violence,” “[t]he overwhelming majority of [which] were caused by the cheaply manufactured

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Saturday Night Special,” the Legislature sought to require that any handgun sold or

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manufactured in California undergo independent laboratory testing and be certified by the

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California Department of Justice (“DOJ”) as “safe.” Assem. Comm. on Appropriations, 1997–

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1998 Leg.-Comm. Analysis of S.B. 500, Reg. Sess. at 2 (Cal. July 30, 1997). Finding that the

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bill would “fail to keep guns out of the hands of criminals,” while “depriv[ing] law-abiding,

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legitimate gun users of the needed protection of handguns,” however, Governor Peter Wilson

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vetoed the legislation, saying that S.B. 500’s “net [was] cast much too wide . . . .” S.B. 500

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Veto Message from Governor Wilson to Members of the Cal. Senate (Sept. 26, 1997).

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The next year, the Legislature passed a narrower version of S.B. 500, known as

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S.B. 15 or the UHA, which the Governor signed into law. The UHA established a

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comprehensive regulatory scheme applicable to all handguns sold commercially in California.

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S.B. 15, 1999–2000 Leg., Reg. Sess. § 1 (Cal. 1999). Specifically, the UHA criminalized the

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manufacture, import, lending, or sale of any “unsafe handgun,” permitting “imprisonment in a

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county jail [for a period] not exceeding one year.” Cal. Penal Code § 32000. The term “unsafe

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handgun” is defined to include any revolver or semiautomatic pistol that is “not already listed

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on the roster” of “tested handguns determined not to be unsafe” by the California Department

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of Justice. Id. §§ 31910, 32015(a).

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The purpose of the UHA was twofold. First, it was intended to reduce crime by

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eliminating the sale of cheap handguns. Fiscal v. City & Cnty. of San Francisco,

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158 Cal. App. 4th 895, 912 (2008); see also Assem. Comm. on Appropriations, 1999–2000

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Leg.-Comm. Analysis of S.B. 15, Reg. Sess. at 2 (Cal. July 7, 1999) (Bureau of Alcohol,

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Tobacco and Firearms statistics show that four of five guns used in criminal acts are cheap guns

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that do not meet drop safety and other gun specification requirements). Second, it was meant to

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ensure handguns “fire when they are supposed to and that they do not fire when dropped” by

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requiring that all handguns be subject to a “drop test,” which the bill’s author submitted is “fair

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and reasonable for weapons sold to the public for self-protection. If a weapon is not reliable for

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self-defense it has no business being sold in California.” S. Rules Comm., 1999–2000 Leg.-

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Comm. Analysis of S.B. 15, Reg. Sess. at 11 (Cal. Apr. 28, 1999). To be considered safe,

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revolvers must meet firing and drop safety requirements and must have a “safety device . . . that

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causes the hammer to retract to a point where the firing pin does not rest upon the primer of the

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cartridge.” Cal. Penal Code § 31910(a). Pistols must also meet the firing and drop safety

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requirements and must have a “positive manually operated safety device.” Id. § 31910(b)(1)–

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(3). If a handgun not on the roster is sufficiently similar to a model already listed, then the

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similar model may be listed without undergoing testing, upon certification by the applicant in

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an affidavit that the model is indeed similar. Id. § 32030. Sufficient similarity means differing

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only in purely cosmetic feature[s] not affecting the “dimensions, material, linkage, or function[]

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of the magazine well, the barrel, the chamber, or any of the components of the firing

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mechanism of the firearm,” or differing only in finish or the material from which the grips are

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made. Id.

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Manufacturers and importers who seek to have a handgun listed bear the costs of

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creating and maintaining the rostering program. Cal. Code Regs. tit. 11, § 4072. There is a

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$200.00 annual listing fee for each model, payable by the manufacturer or importer. Id.

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§§ 4071, 4072. If the responsible party fails to make this payment, the gun is delisted. Id.

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§ 4071(d). If a manufacturer or importer discontinues manufacturing or importing the model,

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then a fully licensed wholesaler, distributor, or dealer may submit a written request and pay the
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listing fee to maintain the model on the roster. Id. § 4070(d). Similarly, if a listing has lapsed

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or was removed for lack of payment, a manufacturer, importer, or “other responsible party”

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may submit a written request to have the model relisted. Id. § 4070(e). “‘Responsible party’

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includes, but is not limited to, firearm manufacturers/importers and law enforcement agencies.”

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Id. § 4049(s).
The UHA was amended in 2003, requiring among other things that center fire1

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semiautomatic2 pistols not listed by January 2007 come equipped with two additional safety

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features:

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a “chamber load indicator,” which is “a device that plainly
indicates that a cartridge is in the firing chamber”; and

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a magazine disconnect mechanism, which is a “mechanism that
prevents a semiautomatic pistol that has a detachable magazine
from operating to strike the primer of ammunition in the firing
chamber when a detachable magazine is not inserted in the
semiautomatic pistol.”

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Cal. Penal Code §§ 32010(d), 16380, 16900. Not every chamber load indicator (“CLI”) meets

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the statutory requirement. Rather, each CLI must be “designed and intended to indicate to a

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reasonably foreseeable adult user of the pistol, without requiring the user to refer to a user’s

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manual or any other resource other than the pistol itself, whether a cartridge is in the firing

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chamber.” Id. § 16380. Rimfire3 semiautomatic pistols do not require a CLI but do require a

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magazine-disconnect mechanism (“MDM”). See id. § 32010(d). The CLI requirement took

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effect in January 2007, while the MDM requirement took effect a year earlier, in January 2006.

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Center fire ammunition “fires when the primer at the bottom-center of the cartridge
case is struck and thus ignited by the gun’s firing pin.” Pls.’ Corrected Mot. Summ. J. (“Pls.’
Mot.”) at 1 n.1, ECF No. 67-1.
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A semiautomatic gun fires “only one shot with each pull of the trigger.” Heller v.
District of Columbia (Heller II), 670 F.3d 1244, 1263 (D.C. Cir. 2011) (internal quotation
marks omitted). The energy of the just-fired bullet causes ejection of the spent case and the
loading of the next cartridge, enabling rapid firing. Pls.’ Mot. at 1 n.2.

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Rimfire ammunition incorporates the primer into the bottom rim of the case; when the
rim is struck by the firing pin, the primer ignites the gun powder. Pls.’ Mot. at 2 n.3. For
technical reasons, plaintiffs assert, CLIs are not feasible for firearms that use rimfire
ammunition. Id.
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Handguns that appeared on the roster prior to an effective date are grandfathered in and need

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not comply with the respective requirements. See id.

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In 2007, the Legislature also passed the Crime Gun Identification Act (“CGIA”).

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Assem. B. 1471, 2007–2008 Leg., Reg. Sess. § 1 (Cal. 2007). This legislation imposed a

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microstamp-technology requirement, amending the UHA to expand the definition of “unsafe”

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handguns to include “semiautomatic pistols that are not designed and equipped with a

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microscopic array of characters that identify the make, model, and serial number of the pistol

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. . . and that are transferred by imprinting on each cartridge case when the firearm is fired.”

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Assem. B. 1471, 2007–2008 Leg., Reg. Sess. Leg. Counsel Digest (Cal. 2007). In theory, a

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gun equipped with the technology imprints every bullet fired with a “microstamp” that

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identifies the weapon and owner.

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According to the bill’s author, the CGIA “is about catching criminals.” Assem.

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Comm. on Pub. Safety, 2007–2008 Leg.-Comm. Analysis of Assem. B. 1471, Reg. Sess. at 2

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(Cal. Apr. 17, 2007). Proponents claimed generally it would: “(a) help law enforcement solve

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handgun crimes; (b) help reduce gang-violence; and (c) help reduce gun trafficking of new

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semiautomatic handguns.” Id. Moreover, they claimed the legislation would “place[] no

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additional burden [on] gun owners,” because the “additional cost w[ould] be $0.50 to $2 a gun

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and no new licenses or permits [would be] required.” Id.

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The opposition countered that “[m]andating [micro-stamping technology] . . . at

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th[at] time would be excessively premature as it [could] []not be scientifically justified, and it

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ha[d] not been proven to be practical in implementation.” Id. at 4. Further, the opposition

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noted that as of 2007, “micro-stamping [wa]s a ‘sole source’ technology” and that the costs

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“would not be contained by realistic competition,” “result[ing] [in] higher costs for retailers and

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their customers.” Id. at 4–5.

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The Legislature addressed opponents’ concern about microstamping’s status as a

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sole-source technology, conditioning implementation of the requirement on DOJ certification

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“that the technology used to create the imprint is available to more than one manufacturer

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unencumbered by any patent restrictions.” Cal. Penal Code § 31910(b)(7)(A). Thus, although
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the microstamping bill was signed into law in October 2007, Assem. B. 1471, 2007–2008 Leg.,

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Reg. Sess. (Cal. 2007), the requirement did not take effect until May 2013, when the DOJ

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issued the required certification. DOJ Information Bulletin, Ex. N at 2, ECF No. 61-21.4 Guns

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listed prior to the May 2013 date are grandfathered. DOJ Information Bulletin at 3. Despite

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the DOJ certification, “[n]o handguns currently available for sale in the United States have

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microstamping technology that satisfies the requirements of California’s Handgun Roster

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Law,” Interrog. No. 4, Ex. O at 3, ECF No. 61-22, and no manufacturer has submitted a

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handgun that complies with the UHA’s microstamping provision for approval, Interrog. No. 8,

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Ex. N at 4, ECF No. 61-23.

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Finally, the UHA includes several exemptions from the rostering scheme, some
of which were added in 2010:
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“Firearms listed as curios or relics” under federal law,5 Cal. Penal
Code § 32000(b)(3);

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The sale or purchase of a handgun to the DOJ or other law
enforcement organizations, including their “sworn members,” for
“use in the discharge of their official duties,” id. § 32000(b)(4);

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Certain single-action6 revolvers, id. § 32100; and

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The sale, loan, or transfer of any semiautomatic pistol to be used
solely as a prop during the course of a movie, television, or video
production, id. § 32110(h).

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See Pls.’ Undisputed Facts ¶ 39, ECF No. 63. Private party transfers, in which two parties who
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The court takes judicial notice of the issuance of the DOJ certification because it can
be “accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(2); see Estate of Fuller v. Maxfield & Oberton Holdings,
LLC, 906 F. Supp. 2d 997, 1004 (N.D. Cal. 2012) (citing Daniels–Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998–99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this
information, as it was made publicly available by government entities . . . .”)).
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Federal law defines curios or relics as “[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 Fed. Reg. § 478.11. Additionally, a firearm
must fall within one of three categories to be considered a relic, such as “[f]irearms which were
manufactured at least 50 years prior to the current date, but not including replicas thereof.” Id.
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“Single-action” refers to a gun’s trigger function. In a single-action gun, the trigger
drops the hammer only after the gun is cocked. Pls.’ Mot. at 6 n.4.
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are not licensed firearm dealers wish to enter into a sale, are likewise unencumbered by the

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UHA. See Cal. Penal Code § 32110(a). Additional exemptions exist, but plaintiffs do not

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challenge them.

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C.

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SUMMARY OF CLAIMS
Plaintiffs bring two claims: (1) violation of the Second Amendment and

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(2) violation of the Equal Protection Clause of the Fourteenth Amendment. SAC ¶¶ 63, 65.

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They seek injunctive relief, declaratory relief, costs of suit, and any other relief the court deems

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appropriate.

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Plaintiffs argue the UHA violates the Second Amendment because it bars the

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purchase of certain handguns that are “in common use” and therefore, constitutionally

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protected under District of Columbia v. Heller, 554 U.S. 570, 573 (2008). These handguns

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may not be manufactured or sold in California because they: (1) have not been tested for firing

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and drop safety; (2) are not listed due to nonpayment of an annual listing fee; (3) do not have a

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CLI, MDM, or both; or (4) do not have microstamping technology. Pls.’ Mot. at 13. Plaintiffs

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stated at hearing that their facial and as-applied challenges are “the same” but wished to

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“preserve [their] arguments.” Dec. 16, 2013 Hr’g Tr. 5:11–17 , ECF No. 79.

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Each plaintiff identifies a particular handgun that he or she seeks to purchase
from a willing seller but cannot buy because that handgun is not on the UHA roster:
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Plaintiff Peña seeks to purchase an unlisted Para USA (Para
Ordnance) P1345SR/ Stainless Steel .45 ACP 4.25”. This gun was
previously listed on the roster but removed in December 2005.
Def.’s Resp. to Pls.’ Undisputed Facts ¶¶ 43–44, ECF No. 74-8.

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Plaintiff Vargas, who was born without an arm below the right
elbow, seeks to purchase an unlisted Glock 21 SF with an
ambidextrous magazine release. Id. ¶¶ 46–47, 49. This model is
not listed, but the same model without the ambidextrous magazine
release is listed. Further, the UHA permits plaintiff to buy the
listed model and have it subsequently fitted with the ambidextrous
magazine release. Id. ¶¶ 50–51. Glock attempted to roster the
model with the ambidextrous magazine release, but the DOJ
determined it was not sufficiently similar to the listed model to be
listed without independent testing. Decl. of Leslie McGovern
(“McGovern Decl.”) ¶ 9, ECF 74-1.

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Plaintiff Croston seeks to purchase an unlisted Springfield Armory
XD-45 Tactical 5” Bi-Tone stainless steel/black handgun in .45
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ACP, model number XD9623. Def.’s Resp. to Pls.’ Undisputed
Facts ¶ 54. This gun is grandfathered onto the roster but only in
other colors. This particular color is not listed because, plaintiffs
assert, it was released after the CLI and MDM requirements went
into effect. SAC ¶¶ 50–52. Plaintiffs also assert that the XD-45
has a CLI but that the DOJ decided it was inadequate.7 Id. ¶ 53.
Defendant’s undisputed evidence shows that the XD9623 was
never submitted for rostering, whether as a similar gun or for
testing in its own right. McGovern Decl. ¶ 5.

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Plaintiff Thomas seeks to purchase an unlisted High Standard
Buntline style revolver, the handgun at issue in Heller. SAC
¶¶ 54–55. This model of revolver has never been submitted for
DOJ testing. McGovern Decl. ¶ 7.

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Plaintiffs assert the UHA violates the Equal Protection Clause because it bars

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individual plaintiffs from possessing handguns that it permits other people to possess. SAC

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¶ 65. In plaintiffs’ estimation, the UHA “arbitrarily distinguishes between otherwise identical

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firearms, inherently making arbitrary distinctions among the people who would possess them,

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and arbitrarily bars people from possessing handguns deemed safe for others.” Pls.’ Mot. at 9.

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Thus, they conclude, it is unconstitutional. Id.

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D.

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PROCEDURAL HISTORY
Plaintiffs filed suit in April 2009. Compl. at 10, ECF No. 1. Due to the Ninth

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Circuit’s then-pending decision in Nordyke v. King, the previously assigned district judge

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stayed the action in October 2009. October 2, 2009 Order at 5, ECF No. 24. In part to permit

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reconsideration in light of McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3026

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(2010), the Nordyke opinion was delayed. It ultimately issued, after rehearing en banc, in June

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There is no evidence in the record indicating why the DOJ considered model number
XD9623’s CLI inadequate. There is, however, a letter from the DOJ to Debra Else at
Springfield Armory stating that models XD9611, XD9660, and XD9665 were not listed
because their CLIs did not comply with DOJ regulations for CLIs, codified at title 11
section 4060(d)(1) of the California Code of Regulations. Pls.’ Mot. for Summ. J., Ex. A at 4,
ECF No. 61-8. These models’ CLIs did not comply because they did not inform a “reasonably
foreseeable adult user of the pistol,” without consulting a user’s manual, that there was a round
in the chamber. Id. at 5. The DOJ made this determination by asking six randomly selected
“non-sworn” employees of the Firearms Division whether they could tell these models were
loaded by looking at the CLIs; only one employee of the six could in fact tell. Id. Defendant
provides a declaration from Leslie McGovern, Associate Governmental Program Analyst at the
DOJ, which states that the XD9623 has never been submitted for testing, an assertion plaintiffs’
evidence does not contradict. McGovern Decl. ¶ 5.
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2012. Nordyke v. King, 681 F.3d 1041, 1043 (9th Cir. 2012) (en banc).8 This court

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subsequently lifted the stay in this case in August 2012. Minute Order, ECF No. 42.

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After the court lifted the stay, plaintiffs amended the complaint to account for

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the microstamping provision, which had since taken effect, making other amendments as well.

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See, e.g., SAC ¶¶ 7, 19. Plaintiffs filed the operative Second Amended Complaint in June

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2013, id. at 12, and defendants answered the following month, Def.’s Answer at 5, ECF No. 54.

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The parties simultaneously filed the instant cross-motions in October 2013, and plaintiffs filed

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a corrected memorandum in support of their motion in November 2013. Following the hearing

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in December 2013, the court ordered supplemental briefing, June 5, 2014 Order at 1–2, ECF

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No. 89, and both parties filed briefs, Def.’s Supp. Br. at 1, ECF No. 90; Pls.’ Supp. Br. at 1,

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ECF No. 91. Plaintiffs filed notices of supplemental authority on February 14, 2014, October

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2, 2014, and February 12, 2015. ECF Nos. 83, 92, 93.

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II.

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STANDING
A.

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INDIVIDUAL STANDING
Article III’s “case or controversy” language imposes on “the party invoking

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federal jurisdiction” the burden of establishing constitutional standing. Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992); Clapper v. Amnesty Int’l, __ U.S. __, 133 S. Ct. 1138, 1146

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(2013). To meet this burden, a plaintiff must show injury that is “[1] concrete, particularized,

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and actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable by a

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favorable ruling.” Id. (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149

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(2010)). “[T]he irreducible constitutional minimum” requires that “the plaintiff suffer[] . . .

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invasion of a legally protected interest.” Lujan, 504 U.S. at 560; Jackson v. City & Cnty. of

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San Francisco, 746 F.3d 953, 967 (9th Cir. 2014). Further, when seeking injunctive relief, a

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plaintiff must show “a very significant possibility of future harm.” Mortensen v. Cnty. of

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Sacramento, 368 F.3d 1082, 1086 (9th Cir. 2004) (internal quotation marks omitted). On

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Nordyke emphasizes “the crucial difference, with respect to constitutional analysis,
between the government exercising the power to regulate . . . as lawmaker, and the government
acting as proprietor . . . .” 681 F.3d at 1044–45 (citation and internal quotation marks omitted).
Those facts are not before the court; thus, Nordyke is of limited utility here. See id.
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summary judgment, a “plaintiff can no longer rest on . . . mere allegations, but must set forth by

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affidavit or other evidence specific facts, which for purposes of the . . . motion will be taken to

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be true.” Lujan, 504 U.S. at 561 (citations and internal quotation marks omitted).

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Here, the individual plaintiffs claim that because the UHA “constitute[s] a

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massive ban on handguns,” Pls.’ Mot. at 9, including the handguns plaintiffs seek to purchase,

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they are injured in several ways. Plaintiffs say they suffer: (1) “fear [of] arrest, prosecution,

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fine and incarceration if [they] complete[] th[ese] purchases,” id. at 6–7; (2) “increased costs in

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transporting and transferring . . . firearms from out-of-state dealers that they would not suffer if

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the firearms were available for sale in California,” id. at 13; (3) “a significant loss of . . . price

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competition,” id.; and (4) “a significant loss of choice,” id.

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Plaintiffs have not established injury on the first asserted basis. Where “persons

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hav[e] no fears of state prosecution except those that are imaginary or speculative, [they] are

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not to be accepted as appropriate plaintiffs . . . .” Younger v. Harris, 401 U.S. 37, 42 (1971).

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Here, although each plaintiff claims to “fear arrest, prosecution, fine and incarceration” for

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purchase of an unlisted weapon, the UHA criminalizes only those who “manufacture[] or

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cause[] to be manufactured, import[] into the state for sale, keep[] for sale, offer[] or expose[]

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for sale, give[] or lend[]” such weapons. Cal. Penal Code § 32000. The statute does not

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criminalize the purchase or mere possession of an unlisted weapon. Id. Because this alleged

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injury is therefore “imaginary or speculative,” it is insufficient to confer standing. Younger,

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401 U.S. at 42.

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Plaintiffs have also failed to establish injury on the second and third asserted

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bases. Although “palpable economic injuries have long been recognized as sufficient to lay the

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basis for standing,” Sierra Club v. Morton, 405 U.S. 727, 733 (1972), here, plaintiffs have

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adduced no “specific facts” to support their “mere allegations” as required under Lujan,

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504 U.S. at 561. The record is devoid of affidavit testimony or other evidence indicating the

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actual “costs [of] transporting and transferring . . . firearms from out-of-state,” or plaintiffs’

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likelihood of incurring such costs. Pls.’ Mot. at 9. Similarly, plaintiffs have not directed the

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court’s attention to data evincing loss of price competition in California resulting from the

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UHA. Plaintiffs have not established injury sufficient to confer standing on these bases.

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Plaintiffs’ fourth and final asserted basis presents a closer question. Plaintiffs

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claim injury because the UHA causes “a significant loss of choice” in plaintiffs’ selection of

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“handguns whose possession and use is secured by the Second Amendment.” Pls.’ Mot. at 9.

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Injury requires “‘invasion of a legally protected interest.’” United States v. Windsor, ___ U.S.

7

___, 133 S. Ct. 2675, 2685 (2013) (quoting Lujan, 504 U.S. at 560); see also Jackson, 746 F.3d

8

at 967. To determine whether an invasion has occurred, the court must first define the right at

9

issue. Thus, determining whether prosecution of third-party gun sellers and manufacturers,

10

who are not before the court, invades plaintiffs’ Second Amendment rights is necessary to

11

resolution of both standing and the merits of plaintiffs’ claims. Accordingly, “standing and the

12

merits are inextricably intertwined.” Holtzman v. Schlesinger, 414 U.S. 1316, 1319 (1973).

13

In such cases, the court must address the merits, as it does below. See City of

14

Revere v. Mass. Gen. Hosp., 463 U.S. 239, 243 n.5 (1983) (addressing merits where Court

15

“could not resolve the question [of] . . . standing without addressing the constitutional issue”);

16

Holtzman, 414 U.S. at 1319 (“If applicants are correct on the merits they have standing . . . .

17

The case in that posture is in the class of those where standing and the merits are inextricably

18

intertwined.”). But see Baker v. Carr, 369 U.S. 186, 208 (1962) (“It would not be necessary to

19

decide whether appellants’ allegations of impairment of their [constitutional rights] . . . will,

20

ultimately, entitle them to relief, in order to hold that they have standing to seek it. If such

21

impairment does produce a legally cognizable injury, they are among those who have sustained

22

it.”). In so doing, however, the court does not assume injury has occurred. Cf. Lujan, 504 U.S.

23

at 560 (holding injury may not be “hypothetical”).

24

B.

ORGANIZATIONAL STANDING

25

An organization may sue in its own or in a representative capacity. See United

26

Food & Commercial Workers v. Brown Group, 517 U.S. 544, 556 (1996). If suing in its own

27

capacity, it must establish the same elements as an individual plaintiff. Lujan, 504 U.S. at 560.

28

In a representative capacity, however, “an association has standing to bring suit on behalf of its
12

1

members when: (a) its members would otherwise have standing to sue in their own right;

2

(b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the

3

claim asserted nor the relief requested requires the participation of individual members in the

4

lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

5

Here, organizational plaintiffs CGF and SAF join the five individual plaintiffs in

6

the action. As noted, CGF’s purposes “include supporting the California firearms community

7

by promoting education for all stakeholders about California and federal firearm laws, rights

8

and privileges, and securing, defending and protecting the civil rights of California gun owners,

9

who are its members and supporters.” Decl. of Gene Hoffman, Jr. (“Hoffman Decl.”) ¶ 3, ECF

10

No. 61-7. SAF’s purposes “include education, research, publishing and legal action focusing

11

on the Constitutional right to privately own and possess firearms, and the consequences of gun

12

control.” Decl. of Alan Gottlieb ¶ 4, ECF No. 61-6. Both organizations attest that the UHA

13

“regularly cause[s] the expenditure of resources . . . as people turn to [the] organization[s] for

14

advice and information.” Id. ¶ 6; Hoffman Decl. ¶ 5. Also as noted, plaintiffs Peña, Croston

15

and Thomas are members of both CGF and SAF. Decl. of Ivan Peña ¶¶ 2–3, ECF No. 61-2;

16

Decl. of Doña Croston ¶¶ 2–3, ECF No. 61-3; Decl. of Brett Thomas ¶¶ 2–3, ECF No. 61-5.

17

Vargas is a member of SAF and a “participant in CGF activities.” Decl. of Roy Vargas ¶¶ 2–3,

18

ECF No. 61-4.

19

The organizational plaintiffs have established direct standing. “An organization

20

may establish a sufficient injury in fact if it substantiates by affidavit . . . that a challenged

21

statute or policy frustrates the organization’s goals and requires the organization to expend

22

resources in representing clients they otherwise would spend in other ways.” Comite de

23

Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011)

24

(citation and internal quotation marks omitted). However, “[a]n organization cannot

25

manufacture . . . injury by incurring litigation costs or . . . choosing to spend money fixing a

26

problem that otherwise would not affect the organization . . . . It must instead show that it

27

would have suffered some other injury if it had not diverted resources to counteracting the

28

problem.” Valle del Sol, Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (internal
13

1

quotation marks omitted). As the UHA imposes a number of regulations on firearms, it

2

adversely affects the missions of CGF and SAF, both of which endeavor to protect the right of

3

Californians to possess firearms. Further, the organizations attest to expending resources

4

addressing the UHA that, in its absence, they could conserve or expend in other ways. Finally,

5

there is no indication the injury is “manufacture[d],” as the UHA would increase the

6

organizations’ expenditures, even barring direct involvement in the instant litigation.

7

Having found direct standing, the court declines to address representational

8

standing.

9

III.

10

STANDARD
Summary judgment is proper where “there is no genuine dispute as to any

11

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

12

“Material” facts are those that “might affect the outcome of the suit under the governing law,”

13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and an “issue of fact [is] . . .

14

‘genuine’” where established by the presence or absence of “specific facts,” not mere

15

“metaphysical doubt,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

16

(1986). A moving party is entitled to judgment as a matter of law “[w]here the record taken as

17

a whole could not lead a rational trier of fact to find for the non-moving party . . . .” Id. at 587

18

(citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)); accord Fed. R.

19

Civ. P. 50(a) (“If a party has been fully heard on an issue . . . and the court finds that a

20

reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that

21

issue, the court may . . . grant a motion for judgment as a matter of law . . . .”).

22

The moving party bears the initial burden of showing “that there is an absence of

23

evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325

24

(1986). If the moving party does so successfully, the burden shifts to the nonmoving party,

25

who “must establish that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus.

26

Co., 475 U.S. at 585. In carrying their burdens, both parties must “cit[e] to particular parts of

27

materials in the record . . . or show[] that the materials cited do not establish the absence or

28

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
14

1

support the fact.” Fed. R. Civ. P. 56(c)(1). On summary judgment, the court views all

2

evidence and draws all inferences therefrom in the light most favorable to the nonmoving party.

3

Matsushita Elec. Indus. Co., 475 U.S. at 587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th

4

Cir. 2008).

5

IV.

6
7

ANALYSIS
A.

SECOND AMENDMENT
The Second Amendment provides: “A well regulated Militia, being necessary to

8

the security of a free State, the right of the people to keep and bear Arms shall not be

9

infringed.” U.S. Const. amend. II. This language “confers an individual right to keep and bear

10

arms,” Heller, 554 U.S. at 622, “the core lawful purpose of [which] is self-defense,” id. at 630;

11

Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1166 (9th Cir. 2014). The right, however, “is not

12

unlimited.” Heller, 554 U.S. at 626. Instead, it is tempered by “presumptively lawful

13

regulatory measures,” id. at 627 n.26, including “longstanding prohibitions on the possession of

14

firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive

15

places such as schools and government buildings,” and “laws imposing conditions and

16

qualifications on the commercial sale of arms,” id. at 626–27.

17

To determine whether a statute violates the Second Amendment, the Ninth

18

Circuit has adopted a two-step approach “bear[ing] strong analogies to the Supreme Court’s

19

free-speech caselaw.” Jackson, 746 F.3d at 960; United States v. Chovan, 735 F.3d 1127, 1136

20

(9th Cir. 2013). Under this framework, the court “(1) asks whether the challenged law burdens

21

conduct protected by the Second Amendment and (2) if so, . . . appl[ies] an appropriate level of

22

[heightened] scrutiny.” Chovan, 735 F.3d at 1136. “[T]he rare law that ‘destroys’ the [Second

23

Amendment] right[] requir[es] . . . per se invalidation.” Peruta, 742 F.3d at 1170.

24

In this case, defendant contends the UHA does not burden the Second

25

Amendment at step one because it is “presumptively lawful.” Def.’s Opp’n to Pls.’ Mot.

26

(“Def.’s Opp’n”) at 6, ECF No. 74. Alternatively, if the court reaches step two, defendant

27

argues the UHA withstands even intermediate scrutiny. Id. at 10. For different reasons,

28

plaintiffs also maintain the court need not apply means-ends scrutiny; because the UHA
15

1

prohibits protected arms, they argue it is per se invalid. Pls.’ Opp’n to Def.’s Mot. Summ. J.

2

(“Pls.’ Opp’n”) at 12, ECF No. 73. Relying on Chovan, plaintiffs argue in the alternative that

3

the UHA imposes a substantial burden on the Second Amendment and the statute fails under

4

either strict or intermediate scrutiny. Id. at 12–15.

5

Amicus Glock, Inc. asserts that the UHA burdens the Second Amendment

6

because it bans handguns “that are in ‘common use’ by ‘law-abiding citizens for lawful

7

purposes.’” Glock Amicus Curiae Br. at 5 (quoting Heller, 554 U.S. at 625, 627), ECF No. 66.

8

Accordingly, Glock advocates the application of heightened scrutiny: “The proper

9

constitutional test for analyzing the challenged portions of California’s roster requirements as

10

applied to commercial sales is intermediate scrutiny analogous to that used when considering

11

restrictions on commercial speech protected by the First Amendment.” Id. at 2. Additionally,

12

Glock contends the UHA does not survive intermediate scrutiny because its various exceptions

13

and exemptions render it underinclusive. Id. at 8–9.

14

1. Step 1: Burden on Conduct Protected by Second Amendment

15

The court asks first whether, “based on a ‘historical understanding of the scope

16

of the right,’” “the challenged law burdens conduct protected by the Second Amendment . . . .”

17

Jackson, 746 F.3d at 960 (quoting Heller, 554 U.S. at 625). “[A] challenged law falls outside

18

the historical scope,” and thus does not burden protected conduct, where: (1) “the regulation is

19

one of [several] ‘presumptively lawful regulatory measures’”;9 or (2) “the record includes

20
21
22
23
24
25

9

The Supreme Court provided a non-exhaustive list of “presumptively lawful
regulatory measures,” stating:
Although we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in
[Heller] 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 or government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.

26
27
28

554 U.S. at 626–27. The language itself is ambiguous as to whether the Court here deems all
regulatory measures falling within these categories “longstanding” and therefore presumptively
lawful, or whether only “longstanding” regulatory measures within these categories are
presumptively lawful. However, the Ninth Circuit has suggested the former reading is correct:
16

1

persuasive historical evidence establishing “that the regulation . . . imposes prohibitions that

2

fall outside the historical scope of the Second Amendment.” Id. (citing Heller, 554 U.S. at 627

3

n.26; Chovan, 735 F.3d at 1137). Additionally, as the test does not qualify the term “burdens,”

4

the question is not one of degree. See id.; Chovan, 735 F.3d at 1136. Thus, if the regulated

5

conduct burdens the Second Amendment, even minimally, and the government cannot show

6

that the regulation is a “presumptively lawful regulatory measure[]” or “fall[s] outside the

7

historical scope of the Second Amendment,” review proceeds to the second step. Jackson,

8

746 F.3d at 960.

9

Defendant argues the UHA does not burden plaintiffs’ Second Amendment

10

rights for two reasons. Def.’s Opp’n at 5–7. Defendant points out handguns remain widely

11

available in California: over one million handgun transactions, a figure that grows by the

12

hundreds of thousands annually, have occurred in California since plaintiffs filed suit, and the

13

current handgun roster includes more than one thousand models. Id. at 5. Moreover, plaintiffs,

14

who already own guns suitable for self-defense, are able to acquire more through alternate,

15

legal avenues, id., a factor which has led courts to uphold regulations akin to the UHA, id. at 6

16

(citing serial-number statute in United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010)

17

and gun-registration law in Heller II, 670 F.3d at 1251–58).

18

Second, defendant contends the UHA is a law “imposing conditions and

19

qualifications on the commercial sale of arms” and is, therefore, “presumptively lawful.” Id. at

20

5–6 (quoting Heller, 554 U.S. at 626–27 & n.26). Likening the UHA’s safety-feature

21

requirements to founding-era gunpowder-storage laws, defendant insists the statute does not

22
23
24
25

In the first step, we ask whether the challenged law burdens
conduct protected by the Second Amendment, based on a
historical understanding of the scope of the [Second Amendment]
right, or whether the challenged law falls within a well-defined
and narrowly limited category of prohibitions that have been
historically unprotected.

26
27
28

Jackson, 746 F.3d at 960 (alteration in original) (citations and internal quotation marks
omitted); see also United States v. Dugan, 657 F.3d 998, 999 (9th Cir. 2011) (equating
“habitual drug users” with “felons and mentally ill people” and rejecting Second Amendment
challenge without undertaking historical analysis).
17

1

burden the right of self-defense even “remotely.” Id. at 6 (quoting Heller, 554 U.S. at 632).

2

Therefore, defendant concludes, the UHA does not infringe the core Second Amendment right

3

of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id.

4

Plaintiffs respond that because there is a right to keep and bear arms, there must

5

be a corresponding right to acquire them. Pls.’ Mot. at 10 (citing, inter alia, Marzzarella,

6

614 F.3d at 92 n.8). Although conceding the State may ban “dangerous and unusual” arms, id.

7

(citing Heller, 554 U.S. at 627), plaintiffs argue “the acquisition of handguns of the kind in

8

common use for lawful purposes, the sort of handguns that law-abiding citizens would expect

9

to keep,” “cannot be prohibited—even if the state would prefer people use different (or no)

10

firearms,” id. at 11. Relying on Heller, they assert handguns are protected by the Second

11

Amendment because the guns are “in common use” and that the UHA not only burdens but

12

bans them. See Pls.’ Mot. at 9 (quoting 554 U.S. at 627).

13

Plaintiffs accordingly contend that this court need determine only whether the

14

unlisted handguns, effectively banned in California because they are deemed “unsafe,” are arms

15

“in common use” within the meaning of the Second Amendment. Pls.’ Opp’n at 12. If they are

16

not, then plaintiffs’ challenge ends because the arms are not protected; if they are, then an

17

injunction must issue because the arms may not be banned. Id. In plaintiffs’ estimation, the

18

UHA amounts to a ban of new handguns that do not have microstamping, CLI, or MDM

19

technology; have not been submitted by the manufacturer for testing; or for which no annual

20

listing fee has been paid. Pls.’ Mot. at 13. Plaintiffs analogize to First Amendment doctrine

21

and assert that permitting California to ban these types of handguns is akin to permitting it to

22

ban entire categories of books. Pls.’ Opp’n at 1.

23

“In order to uphold the constitutionality of a law imposing a condition on the

24

commercial sale of firearms, a court necessarily must examine the nature and extent of the

25

imposed condition.” Marzzarella, 614 F.3d at 92 n.8. Here, the UHA criminalizes the

26

manufacture and sale of new guns deemed “unsafe,” Cal. Penal Code § 32000, permitting

27

commercialization of only handguns that appear on a state roster, id. § 32015. To be added to

28

the roster, a new handgun must comply with specified requirements, depending on the type of
18

1

gun and listing date: inclusion of microstamping (as of May 2013), CLI (as of January 2006 or

2

2007), and MDM features (same), id. § 31910; firing and drop safety testing (as of 1999), id.;

3

and payment of a listing fee (as of 1999), id. § 32015(b)(1). The UHA thereby “impos[es]

4

conditions and qualifications on the commercial sale of arms . . . .” Heller, 554 U.S. at 626–27.

5

The law does not, however, “prohibit[] the commercial sale of firearms.”

6

Marzzarella, 614 F.3d at 92 n.8; see also United States v. Barton, 633 F.3d 168, 175 (3d Cir.

7

2011) (noting Heller’s distinction between “regulations” and “prohibitions”). Whereas the

8

“imposi[tion] of conditions and qualifications on the commercial sale of arms” is

9

“presumptively lawful,” Heller, 554 U.S. at 627 n.26, the prohibition of commercial sale

10

“would be untenable,” Marzzarella, 614 F.3d at 92 n.8, because it would “effect[] a

11

‘destruction of the [Second Amendment] right,’” Peruta, 742 F.3d at 1168 (quoting Heller,

12

554 U.S. at 629) (emphasis in original). As opposed to “conditions and qualifications,” Heller,

13

554 U.S. at 627, “[a] ‘prohibition’ does more than merely alter or restrain a person’s behavior;

14

it is an edict, decree, or order which forbids, prevents, or excludes,” Barton, 633 F.3d at 175

15

(internal quotation marks omitted); see also Jackson, 746 F.3d at 964 (“[A] ban is not merely

16

regulatory; it prohibits . . . .” (internal quotation marks omitted, emphasis in original)). Thus,

17

categorical prohibitions “go too far.”10 Peruta, 742 F.3d at 1170. In Heller, for example, the

18

Court invalidated the contested law, without subjecting it to constitutional scrutiny, because it

19

was a “complete ban on handguns in the home . . . .” Id. at 1170 (citing Heller, 554 U.S. at

20

629). Similarly, in Peruta, the court summarily struck down the law in question because it was

21

a “near-total prohibition on keeping [arms] . . . .” Id. In Silvester v. Harris, the subject of

22
10

23
24
25
26
27
28

The court notes, however, that “Heller said nothing about extending Second
Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that
firearms manufacturers and dealers are properly subject to regulation . . . .” Teixera v. Cnty. of
Alameda, No. 12-cv-03288-WHO, 2013 WL 4804756, at *6 (N.D. Cal. Sept. 9, 2013)
(alteration in original) (internal quotation marks omitted). Thus, “‘although the Second
Amendment protects an individual’s right to bear arms, it does not necessarily give rise to a
corresponding right to sell a firearm.’” Id. (quoting United States v. Chafin, 423 F. App’x 342,
344 (4th Cir. 2011) (unpublished)); cf. United States v. 12 200-Foot Reels of Super 8mm. Film,
413 U.S. 123, 128 (1973) (“[T]he protected right to possess obscene material in the privacy of
one’s home does not give rise to a correlative right to have someone sell or give it to others.”).
19

1

plaintiffs’ second notice of supplemental authority, a fellow district judge found a ten-day

2

waiting period to purchase a firearm an unconstitutional burden on the rights of those who

3

already owned firearms. 2014 WL 4209563, at *28 (E.D. Cal. Aug. 25, 2014) (discussing

4

longstanding presumptively lawful regulations as discussed in Heller, finding that waiting

5

periods do not qualify, but noting laws “prohibiting the sale of certain types of firearms” may

6

qualify).

7

The UHA is distinguishable from the the laws at issue in Heller and Peruta; the

8

UHA does not effectively ban firearms. Under the instant statutory scheme, the commercial

9

sale of firearms proceeds robustly: “[s]ince this lawsuit was filed, there have been

10

approximately 1.5 million legal handgun transactions in California,” Pls.’ Resp. to Def.’s

11

Undisputed Facts ¶ 25, and as of February 11, 2015, the handgun roster included 795 models,11

12

Roster of Handguns Certified for Sale, Cal. Dep’t of Justice, Office of the Attorney Gen.

13

(accessible at http://certguns.doj.ca.gov/). Plaintiffs concede “California’s handgun rostering

14

laws [do not] bar access to all handguns.” Pls.’ First Notice of Supplemental Authority at 4,

15

ECF No. 83 (emphasis in original). In other words, the UHA does not “amount[] to a

16

prohibition of an entire class of ‘arms’” requiring per se invalidation. Heller, 554 U.S. at 628.

17

Further, each individual plaintiff admits to both having obtained and being able to obtain

18

handguns capable of use for self-defense. Def.’s Opp’n at 5. Plaintiffs nonetheless say “[t]hat

19

[whether] some handguns are allowed is beside the point.” Pls.’ First Notice of Supplemental

20

Authority at 4 (emphasis in original). “Rather, [they] claim that particular unrostered handguns

21

are constitutionally-protected [sic], such that barring access to those handguns violates their

22
23
24
25
26
27
28

11

The court notes that in their proposed supplemental brief plaintiffs assert that the
number of listed handguns declined ten percent between October 2013 and January 2014 and
that “the number . . . will continue its steep decline.” Pls.’ Mot. to Supplement R. at 2, ECF
No. 82-1. “[A]bsent relief from the microstamping requirement,” they continue, “semiautomatic handguns will all but disappear from the California consumer market in due course.”
Id. Even if the court considered this argument, plaintiffs do not offer evidence sufficient to
support a finding of imminent disappearance and the court would have no reason to address
hypothetical facts not before it. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)
(“A justiciable controversy is . . . distinguished from a difference or dispute of a hypothetical or
abstract character . . . .”).
20

1

Second Amendment rights, in the precise way that Plaintiffs would exercise those rights.” Id.

2

(emphasis in original). In essence, plaintiffs’ position is that choosing the manner in which

3

their Second Amendment rights are to be exercised—specifically, their selection of particular

4

arms—is part and parcel of the right itself and the state’s imposition of “conditions and

5

qualifications” that deprive plaintiffs of their choices is unconstitutional. See id.

6

The court is not persuaded by plaintiffs’ argument. “Heller did not purport to

7

‘clarify the entire field’ of Second Amendment jurisprudence and does not provide explicit

8

guidance on the constitutionality of regulations which are less restrictive than . . . near-total

9

ban[s] . . . .” Jackson, 746 F.3d at 959 (quoting Heller, 554 U.S. at 635). The Court in Heller

10

addressed only a “handgun ban [that] amount[ed] to a prohibition of an entire class of ‘arms’

11

[handguns] that [was] overwhelmingly chosen by American society for [the] lawful purpose [of

12

self-defense].” Heller, 554 U.S. at 628. Because that “law totally ban[ned] handgun

13

possession,” it “amount[ed] to a destruction of the right,” and was “clearly unconstitutional.”

14

Id. at 628–29. As discussed above, however, the equivalent circumstance is not present here.

15

The UHA does not adversely impact the access to and sale of firearms generally; plaintiffs’

16

Second Amendment rights are satisfied by the scheme’s allowing the purchase of nearly 1000

17

types of rostered firearms. This degree of regulation is negligible and does not burden

18

plaintiffs’ rights under the Second Amendment.

19

Further, the Court noted in Heller that “the right [protected by the Second

20

Amendment is] not a right to keep and carry any weapon whatsoever in any manner whatsoever

21

and for whatever purpose.” 554 U.S. at 626. Rejecting reasoning analogous to plaintiffs’ here,

22

the Ninth Circuit held in Peruta that California “has the power to” decide the manner in which

23

Second Amendment rights may be exercised: “[A]s the historical sources have repeatedly

24

noted, the state has a right to prescribe a particular manner of carry, provided it does not cut[]

25

off the exercise of the citizen right altogether to bear arms, or, under the color of prescribing

26

the mode, render[] the right itself useless.” 742 F.3d at 1172 (alterations in original) (internal

27

quotation marks omitted). “California’s favoring [one mode of carry over another] . . . does not

28

offend the Constitution, so long as it allows one . . . .” Id. Consequently, “[i]nsistence upon a
21

1

particular mode of carry” “fall[s] outside the scope of the right to bear arms . . . .” Id.; see also

2

Heller, 554 U.S. at 626.

3

Here, plaintiffs insist they have the right to determine “the precise way [in which

4

they] . . . would exercise” their Second Amendment rights; they demand access to handguns of

5

their choosing. Pls.’ First Notice of Supplemental Authority at 4. California, however, has

6

“express[ed] a preference for” handguns it deems safe, just as it has for “concealed rather than

7

open carry” of arms. Peruta, 742 F.3d at 1172. The state “has the power to do so” subject to

8

the limiting principle that the regulation not “cut[ ] off the exercise of the right of the citizen

9

altogether to bear arms, or, under the color of prescribing the mode, render[ ] the right itself

10

useless.” Id. (internal quotation omitted, alteration in original); cf. Poe v. Ullman, 367 U.S.

11

497, 539 (1961) (“In reviewing state legislation, whether considered to be in the exercise of the

12

State’s police powers, or in the provision for the health, safety, morals or welfare of its people,

13

it is clear that what is concerned are the powers of government inherent in every sovereignty.”

14

(internal quotation marks omitted)). The court finds plaintiffs’ “[i]nsistence upon . . .

15

particular” handguns to “fall outside the scope of the right to bear arms.” Peruta, 742 F.3d at

16

1172; see also Heller, 554 U.S. at 626. It need pursue the inquiry no further. See Jackson, 746

17

F.3d at 960; Chovan, 735 F.3d at 1136. The court also rejects plaintiffs’ contention that

18

“particular unrostered handguns are constitutionally-protected [sic] . . . .” Pls.’ First Notice of

19

Supplemental Authority at 4. The Second Amendment does not protect guns, but rather

20

conduct. Chovan, 735 F.3d at 1136.

21

The UHA is “one of the ‘presumptively lawful regulatory measures’ identified

22

in Heller” and, as such, “falls outside the historical scope” of the Second Amendment.12

23

Jackson, 746 F.3d at 960. As the Jackson court employed the disjunctive in its articulation of

24
25
26
27
28

12

Because this court finds the UHA presumptively lawful, the court’s holding is
distinguishable from the holding in Mance v. Holder, 2015 U.S. Dist. LEXIS 16679 (N.D. Tex.
Feb. 11, 2015), which plaintiffs submitted with their third notice of supplemental authority.
ECF No. 93. In Mance, the court found a federal interstate handgun transfer ban was not
presumptively lawful, and that it burdened plaintiffs’ Second Amendment rights; the court
struck down the restriction after applying strict scrutiny, which is not the standard applicable
here.
22

1

the rule, no evaluation of “historical evidence” is required here. See id. (“To determine

2

whether a . . . law falls outside the historical scope of the Second Amendment,” the court

3

“ask[s] whether the regulation is one of the presumptively lawful regulatory measures

4

identified in Heller or whether the record includes persuasive historical evidence establishing

5

that the regulation . . . imposes prohibitions . . . fall[ing] outside” the Amendment’s scope.

6

(internal quotation marks omitted)); see also Dugan, 657 F.3d at 999.

7

The UHA does not burden plaintiffs’ Second Amendment rights.

8

2. Step 2: Scrutiny Required?

9

Because the UHA does not burden the Second Amendment at the first step, the

10

court need not proceed to the second step. Heightened scrutiny is not triggered. See id. at 961

11

(“If a prohibition falls within the historical scope of the Second Amendment, [the court] . . .

12

proceed[s] to the second step . . . .”); accord NRA v. Bureau of Alcohol, Tobacco, Firearms &

13

Explosives, 700 F.3d 185, 195 (5th Cir. 2012) (“If a challenged law burdens conduct that falls

14

outside the Second Amendment’s scope, then the law passes constitutional muster.”); Ezell v.

15

City of Chicago, 651 F.3d 684, 702–03 (7th Cir. 2011) (“[I]f the government can establish that

16

a challenged firearms law regulates activity falling outside the scope of the Second Amendment

17

right . . . then the analysis can stop there; the regulated activity is categorically unprotected, and

18

the law is not subject to further Second Amendment review.”).

19

Rational basis review is likewise improper here as it “is a mode of analysis . . .

20

use[d] when evaluating laws under constitutional commands that are themselves prohibitions

21

on irrational laws.” Heller, 554 U.S. at 628 n.27. In such cases, “‘rational basis’ is not just the

22

standard of scrutiny, but the very substance of the constitutional guarantee.” Id. “[T]he same

23

test could not be used to evaluate the extent to which a legislature may regulate a specific,

24

enumerated right, be it the freedom of speech . . . or the right to keep and bear arms.” Id.

25

Otherwise, “the Second Amendment would be redundant with the separate constitutional

26

prohibitions on irrational laws[] and . . . have no effect.” Id.

27
28

Instead, “[w]here a challenged statute apparently falls into one of the categories
signaled by the Supreme Court as constitutional, courts have relied on the ‘presumptively
23

1

lawful’ language to uphold laws in relatively summary fashion.” Hall v. Garcia, No. C 10-

2

03799 RS, 2011 WL 995933, at *2 (N.D. Cal. Mar. 17, 2011) (citing United States v. Vongxay,

3

594 F.3d 1111, 1115 (9th Cir. 2010); United States v. Davis, 304 F. App’x 473, 474 (9th Cir.

4

2008); United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010)); see also Dugan, 657 F.3d

5

at 999 (equating “habitual drug users” with “felons and mentally ill people” for Second

6

Amendment purposes and summarily terminating analysis).

7

The court denies plaintiffs’ Second Amendment challenge, without the need for

8

further discussion.

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B.

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EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment provides: “No state

11

shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.

12

Const. amend. XIV, § 1. This directive requires “that all persons similarly situated . . . be

13

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing

14

Plyler v. Doe, 457 U.S. 202, 216 (1982)). Indeed, “to trigger equal protection review at all, [a

15

challenged law] must treat similarly situated persons disparately.” Barnes-Wallace v. City of

16

San Diego, 704 F.3d 1067, 1084 (9th Cir. 2012) (internal quotation marks omitted). Persons

17

are not similarly situated where they “are different in fact,” such that the “distinctions . . .

18

drawn [by the challenged law] have some relevance to the purpose for which classification is

19

made.” Rinaldi v. Yeager, 384 U.S. 305, 309 (1966) (internal quotation marks omitted).

20

To establish an equal protection violation, a plaintiff must “show that the

21

[challenged] law is applied in a discriminatory manner or imposes different burdens on

22

different classes of people.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995).

23

Accordingly, “‘[t]he first step in equal protection analysis is to identify the [challenged law’s]

24

classification of groups.’” Id. (quoting Country Classic Dairies, Inc. v. Mont. Dep’t of

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Commerce Milk Ctrl. Bureau, 847 F.2d 593, 596 (9th Cir. 1988)). “Once the plaintiff

26

establishes [the] classification, it is [then] necessary to identify a ‘similarly situated’ class

27

against which the plaintiff’s class can be compared.” Id. (citing Attorney Gen. v. Irish People,

28

Inc., 684 F.2d 928, 946 (D.C. Cir. 1982)).
24

1

Only after identification of a classification does the court proceed to “[t]he next

2

step [and] determine the level of scrutiny.” Id. (alterations and internal quotation marks

3

omitted). “[I]f a law neither burdens a fundamental right nor targets a suspect class,” it need

4

only “bear[] a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 632

5

(1996). Such review requires that a “classification . . . be upheld . . . if there is any reasonably

6

conceivable state of facts that could provide a rational basis for the classification.” Heller v.

7

Doe ex rel. Doe, 509 U.S. 312, 320 (1993).

8
9

Plaintiffs argue the UHA creates several privileged classes exempt from
compliance with the roster: (1) people who move into the state, (2) people who have out-of-

10

state family, (3) law enforcement personnel, (4) “curios” or “relics” as defined by statute,

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(5) people involved in movie or television production and (6) guns with certain CLIs. Pls.’

12

Mot. at 18–19. Because persons in these classifications, in contrast to the general population,

13

need not comply with the UHA, plaintiffs argue there is disparate treatment. Id. Plaintiffs do

14

not claim any classifications are suspect or quasi-suspect but assert the law infringes the

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fundamental Second Amendment right to keep and bear arms. Id. at 16–17. They thus argue

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strict scrutiny is proper and summary judgment on this claim warranted. Id. at 17–18.

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For his part, defendant contends as a threshold matter that plaintiffs have failed

18

to identify distinct classifications that the statute treats disparately. Def.’s Mot. Summ. J.

19

(“Def.’s Mot.”) at 19, ECF No. 55. Further, according to defendant, plaintiffs are neither

20

similarly situated to any properly identified class nor subject to disparate treatment. Id.; Def.’s

21

Opp’n at 10–11. Even were equal protection review proper, he continues, the UHA neither

22

burdens a fundamental right nor targets a suspect or quasi-suspect class. Def.’s Mot. at 19;

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Def.’s Opp’n at 11. Defendant thus concludes the law is subject to only rational basis review,

24

and summary judgment should be granted in his favor. Def.’s Mot. at 19; Def.’s Opp’n at 11.

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1. Curios, Relics, and CLIs

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The court first finds that “curios” or “relics” and guns with certain CLIs are not

27

subject to equal protection. The Equal Protection Clause guarantees only “that all persons

28

similarly situated . . . be treated alike,” City of Cleburne, 473 U.S. at 439; it “relates to equality
25

1

between persons as such,” McGowan v. Maryland, 366 U.S. 420, 427 (1961). Thus, as

2

plaintiffs here claim disparate treatment of objects, not persons, the argument fails. The

3

pertinent provisions do not treat persons disparately. They classify certain types of guns as

4

exempt or define guns with certain CLIs as “safe” but apply the exemptions and definitions

5

equally and identically to all persons. See Cal. Penal Code §§ 32000(b)(3), 32010(d)(1)–(2),

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16380.

7

2. Incoming Residents, Out-of-State Family, and Movie Production

8

The court also finds that the UHA does not treat (1) people who move into the

9

state, (2) people who have out-of-state family, or (3) people involved in movie or television

10

production differently from other persons. Plaintiffs argue that because “unrostered guns are

11

permitted by private importation or as intra-family gifts,” “[t]he roster . . . privileges people

12

who move into the state[] or who have family out-of-state [sic].” Pls.’ Mot. at 18. However,

13

California residents, including those who have no out-of-state family, are not prevented from

14

possessing unlisted guns, receiving them as intra-family gifts from in-state relatives, or

15

bringing them into the state for noncommercial purposes. The law thus exempts specific types

16

of transactions without regard to the persons involved. See Cal. Penal Code § 32000(a)

17

(punishing “any person in [California] who manufactures or causes to be manufactured,

18

imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any

19

unsafe handgun”); id. law revision commission comments (2010) (noting “exception for

20

infrequent transfer of handgun between members of same immediate family”).

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Similarly, plaintiffs protest the “exceptions for movie and television

22

production.” Pls.’ Mot. at 19. However, the law states only that it “shall not apply to . . . [t]he

23

sale loan or transfer of any semiautomatic pistol that is to be used solely as a prop during the

24

course of a motion picture, television or video production by an authorized participant therein,”

25

without dictating who may or may not be such a participant, Cal. Penal Code § 32110(h).

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Equal protection is concerned with “law [being] applied in a discriminatory manner or

27

impos[ing] different burdens on different classes of people,” Freeman, 68 F.3d at 1187;

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/////
26

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McGowan, 366 U.S. at 427, a condition that does not obtain here. Equal protection analysis is

2

not triggered by this provision either.

3

3. Law Enforcement

4

Plaintiffs’ assertion that the UHA treats law enforcement personnel differently,

5

is, however, persuasive. Whereas the law’s prohibitions apply to “any person in this state” who

6

engages in specified actions, see Cal. Penal Code § 32000(a), transactions involving “sworn

7

members” of law enforcement personnel “for use in the discharge of their official duties” are

8

exempt, id. § 32000(b)(4).13 This provision results in disparate treatment because exempting a

9

group of people from compliance with the UHA “imposes different burdens on different classes

10

of people.” Freeman, 68 F.3d at 1187. That said, active law enforcement personnel and

11

laymen are not similarly situated to plaintiffs.

12

“Differen[ces] in fact,” Rinaldi, 384 U.S. at 309, exist between law enforcement

13

personnel and laymen. Law enforcement personnel shoulder a duty to ensure public safety and

14

thus assume different responsibilities, risks, and rights. See Silveira v. Lockyer, 312 F.3d 1052,

15

1089 (9th Cir. 2002) (finding it “manifestly rational for . . . peace officers to possess and use

16

firearms more potent than those available to the rest of the populace in order to maintain public

17

safety”), abrogated on other grounds by Heller, 554 U.S. at 592. These differences are directly

18

“relevan[t] to the purpose for which classification is made” in the UHA, namely, public safety.

19

Rinaldi, 384 U.S. at 309. Accordingly, plaintiffs have not “identif[ied] a ‘similarly situated’

20

class against which the plaintiff[s]’ class can be compared.” Freeman, 68 F.3d at 1187. Equal

21
22
23
24
25
26
27
28

13

The UHA does not apply to:
The sale or purchase of a handgun, if the handgun is sold to, or
purchased by, the Department of Justice, a police department, a
sheriff’s official, a marshal’s office, the [California] Department
of Corrections and Rehabilitation, the California Highway Patrol,
any district attorney’s office, any federal law enforcement
agency, or the military or naval forces of this state or of the
United States for use in the discharge of their official duties.
This section does not prohibit the sale to, or purchase by, sworn
members of these agencies of a handgun.

Cal. Penal Code § 32000(b)(4).
27

1

protection analysis is, therefore, not triggered by the law enforcement exemption. Id. But see

2

Silveira, 312 F.3d at 1088–89 (rejecting, under rational basis review, equal protection challenge

3

to California gun law’s disparate treatment of off-duty and retired peace officers and laymen).

4

The court grants summary judgment on the equal protection claim in favor of

5

defendant.

6

V.

CONCLUSION

7

For the reasons set forth above:

8

1.

Plaintiffs’ motion for summary judgment, ECF No. 61, is DENIED; and

9

2.

Defendant’s motion for summary judgment, ECF No. 55, is GRANTED.

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11

IT IS SO ORDERED.
DATED: February 25, 2015.

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UNITED STATES DISTRICT JUDGE

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