Subdeacon Joe Posted December 17, 2013 Share Posted December 17, 2013 http://www.calgunsfoundation.org/2013/12/pena-v-cid-case-update-challenge-californias-handgun-roster/ on December 17, 2013 in Blog Reporting on this case is Gene Hoffman, a founder and the Chairman of The Calguns Foundation, who attended the hearing. Yesterday, oral arguments were held for our Second Amendmentchallenge to California handgun “roster” laws (that limit access toConstitutionally-protected handguns by law-abiding people) before UnitedStates District Court Judge Kimberly J. Mueller on cross motions forsummary judgment. The lawsuit, Ivan Peña et. al v. Stephen Lindley(Wilfredo Cid was previously named as defendant), was filed by TheCalguns Foundation, Second Amendment Foundation, and a number ofindividual plaintiffs in April 2009, during the period that Nordyke v. King incorporated the Second Amendment through the Fourteenth Amendment’s Due Process Clause. Arguing for Peña et. al, CGF, and SAF at the hearing was attorneyAlan Gura with assistance from Don Kilmer. California Department ofJustice attorney Anthony Hakl argued for defendant Stephen Lindley,Firearms Bureau Chief for the DOJ. At the outset, the Court stated that it hoped to hold the proceedingsto an hour duration and that she had questions for both sides, so theformat was a bit different than many summary judgement arguments. The Court spent the first 20% of the oral arguments on whether theparties had standing — even though California DOJ had not argued that intheir briefings. As a threshold matter, Federal courts do have anindependent need to be certain of their standing, but now that Heller and McDonald are the law of the land, individuals and organizations generally have standing. Counsel for Peña pointed the court to Carey v. Populations Services, aUnited States Supreme Court that held individuals had a right tochallenge regulations on sellers that limited the market incontraceptives from which individuals could buy. The Court was also madeaware of NRA v. BATFE, wherethe 5th Circuit Court of Appeals clearly said that 18-20 year oldindividuals had standing to challenge a government ban on handgunpurchases by them at firearms dealers (while still ruling against thoseindividuals as a constitutional matter; that case is awaiting a certdecision at SCOTUS). The Court continued to ask if there was any risk of prosecution ofthe individual plaintiff; Mr. Kilmer pointed out to the court that, infact, there is. In the Eastern District of California, a Calgunnerstands indicted by the United States for conspiracy to straw purchase anoff-roster handgun in US v. McGowan. However, we expect that the Supreme Court will clarify Federal law on straw purchases in the already-granted Abramski case by issuing a decision in favor of the accused. The Court moved on to ask both sides to assume that intermediatescrutiny applied and explore the constitutional violation. Counsel for Peña reminded the Court that the test need not be scrutiny-based since it was not in D.C. v. Heller. The Court continued to explore scrutiny with both sides and was particularly interested in California’s microstamping requirement –she wanted to know if the violation was only temporary. Of course, evena temporary violation of a fundamental right remains nothing less than aviolation of the Constitution. In testing California’s theory,California argued that even under intermediate scrutiny, the State couldgive everyone a handgun and mandate it is the only gun you could usefor self-defense in the home….and that would be enough. The Court seemedtroubled by the logical extension of California’s argument that onlyone handgun was enough to allow the full and unencumbered exercise ofSecond Amendment rights. Peña counsel made it clear that theConstitutional analysis the State wanted to implement would logicallyallow them to restrict all handguns by caliber to only .22lr, or even toban all handguns and only allow Tasers — an argument the District ofColumbia made and lost on in Heller. The Court returned to the matter of standing by asking if there was a standing difference for Peña’s facial versus as-applied challenge. Counsel for Peña reiterated the issues from NRA v. BATFE, thatstanding is utterly divorced from the analysis of a constitutionalviolation and that not being able to buy the guns they want to buy meetsthe 3 prongs of standing requirements. The Court probed to see if there were other facts and even speculatedabout denying both MSJs — though that seemed to be a bit off-the-cuff. In lingering a bit beyond the one-hour mark, it was clear that thecourt had a full picture of the briefing and the record as well as aclear understanding of the issues and gravity of the case. We expect we’ll see an opinion on the cross motions in the next 90 to 180 days. Link to comment
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