Amicus Brief: Peña v. Lindley

September 28, 2015

Everytown for Gun Safety filed this amicus brief in the Ninth Circuit in litigation challenging California’s Unsafe Handgun Act. The case involved a challenge to provisions of the Act that require firearm makers to incorporate two safety features — a chamber-load indicator and a magazine-disconnect mechanism — as well as microstamping technology. Everytown’s brief demonstrated that the Unsafe Handgun Act does not burden the challengers’ Second Amendment self-defense right and should be upheld.

Open PDF

No. 15-15449
In the United States Court of Appeals
for the Ninth Circuit ____________________________
IVAN PEÑA, ROY VARGAS, DOÑA CROSTON, BRETT THOMAS,
SECOND AMENDMENT FOUNDATION, INC., AND THE CALGUNS FOUNDATION, INC.
Plaintiffs-Appellants,
v.
STEPHEN LINDLEY, CHIEF OF THE CALIFORNIA DEPARTMENT OF JUSTICE
BUREAU OF FIREARMS,
Defendant-Appellee.
_____________________________
On Appeal from the United States District Court
for the Eastern District of California
No. 2:09-cv-01185-KJM-CKD
(The Honorable Kimberly J. Mueller, United States District Judge)
____________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY
IN SUPPORT OF APPELLEE AND AFFIRMANCE
____________________________
J. ADAM SKAGGS
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
September 28, 2015
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
[email protected]
Counsel for Amicus Curiae
Everytown for Gun Safety
i
CORPORATE DISCLOSURE STATEMENT
Amicus Curiae Everytown for Gun Safety has no parent corporations. It has no
stock, and therefore, no publicly held company owns 10% or more of its stock.
/s/ Deepak Gupta
Deepak Gupta
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
ii
TABLE OF CONTENTS
Corporate disclosure statement ……………………………………………………………………… i
Table of Authorities……………………………………………………………………………………. iii
Introduction and interest of amicus curiae…………………………………………………………. 1
Statement…………………………………………………………………………………………………… 3
A. Safety-based firearm regulations……………………………………………………….. 3
1. In the Founding Era, colonies and States regulate gunpowder
manufacturing to ensure public safety. ………………………………………… 3
2. From the early 19th century onwards, States regulate firearm
quality and performance to ensure public safety……………………………. 4
3. States require that new firearm models pass design and
manufacturing tests before sale. ………………………………………………….. 5
4. Between the 1980s and early 2000s, States implement
regulations requiring firearms to possess specific safety features—
including chamber-load indicators and magazine disconnects………… 7
5. Starting with Maryland in 1988, States create rosters of guns
approved for sale. ……………………………………………………………………… 9
B. Registration and serialization to facilitate law enforcement………………… 12
1. Firearm registration begins in the colonial period. ………………………. 12
2. Serialization becomes popular in the late 19th century,
facilitating widespread registration laws in the early 20th
century…………………………………………………………………………………… 12
3. States seek to facilitate law enforcement based on information
from shell casings. …………………………………………………………………… 15
Argument…………………………………………………………………………………………………. 19
Because the plaintiffs have not shown that California’s Unsafe Handgun
Act burdens their right of self-defense, the district court’s decision should
be affirmed……………………………………………………………………………………………. 19
A. The plaintiffs have not shown that the Unsafe Handgun Act
burdens their right of self-defense……………………………………………………. 20
B. Plaintiffs’ extreme “common use” theory conflicts with Supreme
Court and Ninth Circuit precedent, rests on flawed constitutional
analogies, and would lead to absurd results………………………………………. 23
Conclusion ……………………………………………………………………………………………….. 30
Appendix of state firearms statutes
iii
TABLE OF AUTHORITIES
Cases
Carey v. Population Services International,
431 U.S. 678 (1977) ………………………………………………………………………………. 26
Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) ………………………………………………………………………………. 21
District of Columbia v. Heller,
554 U.S. 570 (2008) …………………………………………………………………………..passim
Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015)……………………………………………………………… 24, 27
Fyock v. City of Sunnyvale,
799 F.3d 991 (9th Cir. 2015)…………………………………………………………………… 24
Glossip v. Gross,
135 S. Ct. 2726 (2015) …………………………………………………………………………… 29
Griswold v. Connecticut,
381 U.S. 479 (1965) ………………………………………………………………………………. 26
Heller v. District of Columbia,
— F.3d —, 2015 WL 5472555 (D.C. Cir. Sept. 18, 2015)……………….. 20, 22, 23
Jackson v. City & County of San Francisco,
746 F.3d 953 (9th Cir. 2014)…………………………………………………… 21, 24, 25, 27
Kampfer v. Cuomo,
993 F. Supp. 2d 188 (N.D.N.Y. 2014) ……………………………………………………… 24
Lim v. City of Long Beach,
217 F.3d 1050 (9th Cir. 2000)…………………………………………………………………. 21
McDonald v. City of Chicago, 561 U.S. 742 (2010)…………………………………… 19, 24, 27
People ex rel. Darling v. Warden,
139 N.Y.S. 277 (N.Y. App. Div. 1913) …………………………………………………….. 13
iv
Peruta v. San Diego,
No. 10-56971 (9th Cir.)……………………………………………………………………………. 1
Silvester v. Harris,
No. 14-16840 (9th Cir.)……………………………………………………………………………. 1
United States v. Marzzarella,
614 F.3d 85 (3d Cir. 2010)………………………………………………………………… 22, 25
Voting for America, Inc. v. Steen,
732 F.3d 382 (5th Cir. 2013)…………………………………………………………………… 21
Legislative and Regulatory Materials
18 U.S.C. § 921(a)(34)………………………………………………………………………………….. 8
18 U.S.C. § 922(z)(1) ……………………………………………………………………………………. 8
18 U.S.C. § 923…………………………………………………………………………………………. 15
1917 Cal. Stat. 222-23, § 7 …………………………………………………………………………. 14
Cal. Penal Code § 16380 ……………………………………………………………………………. 11
Cal. Penal Code § 31910 ……………………………………………………………………………… 3
Cal. Penal Code § 31910(b)(4) ………………………………………………………………………. 9
Cal. Penal Code § 31910(b)(7)(A)…………………………………………………………………. 16
Cal. Penal Code § 32000 ……………………………………………………………………………. 11
Cal. Penal Code § 32010(d) ………………………………………………………………………… 11
Cal. Penal Code § 32015(a)…………………………………………………………………………. 11
Cal. Penal Code § 32030 ……………………………………………………………………………. 11
Senate Bill Analysis: S.B. 489 (Cal. 2003)……………………………………………………… 11
Senate Bill Analysis: S.B. 510 (Cal. 2001)……………………………………………………… 12
1911 Colo. Sess. Laws 408-09, § 3……………………………………………………………….. 14
v
1923 Conn. Acts 3709, § 11………………………………………………………………………… 15
26 Del. Laws 28 (1911) ………………………………………………………………………………. 14
26 Del. Laws 29 (1911) ………………………………………………………………………………. 14
26 Del. Laws 29, § 4 (1911)…………………………………………………………………………. 14
D.C. Act. § 17-651 (2009) …………………………………………………………………………… 16
1893 Fla. Acts 71 ………………………………………………………………………………………. 13
1925 Haw. Sess. Laws 790-91, § 2136………………………………………………………….. 14
1975 Haw. Sess. Laws 281……………………………………………………………………………. 7
1925 Ill. Laws 340, § 2 ……………………………………………………………………………….. 14
1973 Ill. Laws 1130, § 1 ……………………………………………………………………………….. 7
1925 Ind. Acts 497-98, § 9 ………………………………………………………………………….. 15
1913 Iowa Acts 308-09, § 3…………………………………………………………………………. 14
1913 Iowa Acts 308-09, § 9-10 ……………………………………………………………………. 14
1821 Me. Laws 685, ch. 162 § 1 ……………………………………………………………………. 4
1988 Md. Laws 3494 …………………………………………………………………………………… 9
1988 Md. Laws 3495 …………………………………………………………………………………… 9
1988 Md. Laws 3496 …………………………………………………………………………………… 9
2003 Md. Laws 246 …………………………………………………………………………………….. 8
Md. Code Ann., Pub. Safety § 5-131……………………………………………………………. 16
Md. Code Ann., Pub. Safety §§ 5-403-06……………………………………………………….. 9
1809 Mass. Acts 444, ch. 52 …………………………………………………………………………. 3
1814 Mass. Acts 464-65, § 2 …………………………………………………………………………. 4
vi
1881 Mass. Acts 333-34, ch. 60 § 18………………………………………………………………. 4
1998 Mass. Acts 364 § 19……………………………………………………………………………… 7
1998 Mass. Acts 379-80 § 41 ………………………………………………………………………. 10
501 Mass. Code Regs. § 7.03………………………………………………………………………. 10
501 Mass. Code Regs. § 7.04(2) …………………………………………………………………… 10
940 Mass. Code Regs. § 16.05(1) …………………………………………………………………… 8
940 Mass. Code Regs. § 16.05(3) …………………………………………………………………… 8
Mass. Gen. Laws ch. 140, § 123 ………………………………………………………………….. 10
1925 Mich. Acts 475, § 11 ………………………………………………………………………….. 14
1927 Mich. Acts 891, § 9 ……………………………………………………………………………. 15
1975 Minn. Laws 1279 ………………………………………………………………………………… 7
1975 Minn. Laws 1283 ………………………………………………………………………………… 7
1921 Mo. Laws 692, § 1………………………………………………………………………… 14, 15
1921 Mo. Laws 692, § 2……………………………………………………………………………… 15
1921 Mo. Laws 692, § 3……………………………………………………………………………… 15
1918 Mont. Laws 6, § 1 ……………………………………………………………………………… 14
1918 Mont. Laws 6, § 3 ……………………………………………………………………………… 15
1786 N.H. Laws 10, ch. 22 …………………………………………………………………………… 3
1820 N.H. Laws 274, ch. 15 §§ 1-9………………………………………………………………… 3
1820 N.H. Laws 274-75, ch. 15 § 3 ……………………………………………………………….. 3
1923 N.H. Laws 140, § 12 ………………………………………………………………………….. 15
1776-77 N.J. Laws 6-7, ch. 6, § 1…………………………………………………………………… 3
vii
1911 N.Y. Laws 443, § 1……………………………………………………………………….. 13, 14
1913 N.Y. Laws 1628, § 1…………………………………………………………………………… 13
1974 N.Y. Laws 2665-66, § 1 ……………………………………………………………………….. 5
N.Y. Gen. Bus. Law § 396-ff……………………………………………………………………….. 16
N.Y. Penal Law § 400.12(a) ………………………………………………………………………….. 6
N.Y.C.R.R. 9, § 482.2 …………………………………………………………………………………. 6
N.Y.C.R.R. 9, § 482.5 …………………………………………………………………………………. 6
N.Y.C.R.R. 9, § 482.5(a) (1980)…………………………………………………………………….. 7
N.Y.C.R.R. 9, § 482.5(f) ………………………………………………………………………………. 8
N.Y.C.R.R. 9, § 482.6 …………………………………………………………………………………. 6
N.Y.C.R.R. 9, § 482.6(c)………………………………………………………………………………. 7
1919 N.C. Sess. Laws 397, § 1 …………………………………………………………………….. 15
1919 N.C. Sess. Laws 398-399, § 5………………………………………………………………. 14
1923 N.D. Laws 383, § 14 ………………………………………………………………………….. 15
1795 Pa. Laws 240, § 2 ………………………………………………………………………………… 4
1795 Pa. Laws 242, § 6. ……………………………………………………………………………….. 4
1776 R.I. Laws 18-19 (Oct. Sess.)………………………………………………………………….. 3
1973 S.C. Acts 733, § 1………………………………………………………………………………… 7
1631 Va. Acts 155, Acts of Feb. 24, 1631, Act LVI ……………………………………….. 12
1926 Va. Acts 285, § 1 ……………………………………………………………………………….. 14
12 Geo. 3, c. 61 (1764) (Eng.) ……………………………………………………………………….. 3
viii
Miscellaneous
William Blackstone, Commentaries on the Laws of England (1769)……………………………. 3
California Department of Justice, Roster of Handguns Certified for Sale,
http://certguns.doj.ca.gov/ (last visited Sept. 23, 2015) ……………………………… 20
Perry Chiaramonte, Gun fight: Smith & Wesson, Ruger quit California over
stamping requirement, Fox News, Jan. 26, 2014 ……………………………………………… 18
Sarah Childress, What Happened When a Major Gun Company Crossed the
NRA, PBS Frontline, Jan. 16, 2015…………………………………………………………… 18
Daniel L. Cork, Some Forensic Aspects of Ballistic Imaging, 38 Fordham
Urban L. J. 473 (2011) ……………………………………………………………………………. 17
Saul Cornell, A Well-Regulated Militia (2006)…………………………………………………… 12
Everytown, Not Your Grandparents’ NRA (Apr. 24, 2014)……………………………………. 17
Monica Fennell, Missing the Mark in Maryland, 13 Hamline J. Pub. L. &
Pol’y 37 (1992) ………………………………………………………………………………………… 7
Erica Goode, Method to Track Firearm Use is Stalled by Foes, N.Y. Times,
June 12, 2012 ………………………………………………………………………………………… 17
Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment
“Type of Weapon” Analysis, 84 Tenn. L. Rev. ___ (forthcoming 2016)……….. 26, 28
Emily Miller, Smith & Wesson to stop selling guns in California due to
microstamping law, Washington Times, Jan. 4, 2014……………………………………… 18
National Rifle Association, Serialization, NRA National Firearms
Museum ……………………………………………………………………………………………….. 12
Roger Pauly, Firearms: The Life Story of a Technology (2004) ………………………………….. 5
Paul A. Shackel, Culture Change and the New Technology: An Archaeology of the
Early American Industrial Era (1996) ………………………………………………………………. 5
Tom W. Smith, 1997-98 National Gun Policy Survey of the National Opinion
Research Center (1998)……………………………………………………………………………….. 11
ix
Smithsonian Institution, Firearms: An Illustrated History (2014)……………………………… 8
Sam B. Warner, Uniform Pistol Act, 29 Am. Inst. Crim. L. & Criminology
529 (1938)……………………………………………………………………………………………… 14
U.S. Government Accountability Office, Accidental Shootings: Many Deaths
and Injuries Caused by Firearms Could Be Prevented (1991)…………………………………… 12
U.S. Patent No. 891,438 (1908)…………………………………………………………………….. 9
U.S. Patent No. 984,519 (1911)…………………………………………………………………….. 9
1
INTRODUCTION AND INTEREST OF AMICUS CURIAE
Everytown for Gun Safety is the largest gun-violence-prevention
organization in the nation, with over three million supporters, including the mayors
of over 40 California cities. Everytown has drawn on its expertise to file briefs in
several Second Amendment cases, offering historical and doctrinal analysis that
might otherwise be overlooked. See, e.g., Peruta v. San Diego, No. 10-56971 (9th Cir.);
Silvester v. Harris, No. 14-16840 (9th Cir.). It seeks to do the same here.
1
California’s Unsafe Handgun Act requires handguns to include safety
features—including chamber-load indicators and magazine-disconnect
mechanisms—as well as microstamping, a technology to help law enforcement
solve and prevent crimes. The plaintiffs here, all of whom already own handguns,
claim that this Act “destroys” their Second Amendment right of self-defense
because it allows “only 817 total handgun models” to be sold in the State.
Everytown files this brief to show that the Act does not burden the plaintiffs’
Second Amendment rights and is constitutional under District of Columbia v. Heller,
554 U.S. 570 (2008). Heller casts no doubt on laws that “do not remotely burden
the right of self-defense as much as an absolute ban on handguns,” such as “laws
imposing conditions and qualifications on the commercial sale of arms,” which

1 All parties consent to this brief’s filing, and no counsel for a party authored it in
whole or part. Apart from amicus, no person contributed money to fund its
preparation or submission.
2
carry “historical justifications.” Id. at 626-27, 632, 635. That describes this Act.
The plaintiffs have shown no burden on their self-defense right. And although they
say that “there is no persuasive historical evidence” supporting the Act, there is in
fact a rich history of laws regulating gun safety and assisting law enforcement.
Unable to demonstrate any burden, the plaintiffs instead advance a novel
legal theory that no judge anywhere has accepted and that is incompatible with this
Court’s precedents: that the Second Amendment confers an absolute right to
acquire any handgun model—in any style or color—so long as it is commonly sold
in some States. They ground this theory in an analogy to the First Amendment’s
protection of the right to purchase particular books. But the Second Amendment
under Heller does not guarantee “a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.” Id. at 626. It protects the
right of self-defense, not self-expression.
If the plaintiffs’ theory were accepted, it would also lead to absurd results.
Any time firearm technology changed, all States would have to ban that technology
immediately, without knowing how it works or what the consequences would be, or
else forever forfeit their ability to do so. And no State could require new technology
to make guns safer. The upshot would be to freeze regulation in place nationwide,
ending our long historical tradition of allowing gun laws to promote public safety
and keep pace with technology. The theory is as dangerous as it is unprecedented.
3
STATEMENT
California’s Unsafe Handgun Act has two key features: It requires handguns
sold in the State to meet certain safety standards. Cal. Penal Code § 31910. And it
requires the implementation of microstamping technology to help solve and
prevent crimes. Id. In both respects, the Act carries forward a historical tradition of
regulating firearms to achieve these goals in light of the latest technology.
A. Safety-Based Firearm Regulations
1. In the Founding Era, colonies and States regulate gunpowder
manufacturing to ensure public safety. Anglo-American regulation of
ammunition dates to before the American Revolution. See 12 Geo. 3, c. 61 (1764);
4 Blackstone, Commentaries on the Laws of England 168 (1769); 1786 N.H. Laws 10, ch.
22. Once reliable testing methods became available, States began implementing
regulations requiring inspection and pre-market approval of all gunpowder
intended for sale.2 Inspectors gave casks of approved gunpowder a distinguishing
mark (e.g., “New-Hampshire inspected proof”) to signal to the purchaser that they
were safe for use; they labeled gunpowder of inferior quality “condemned” and
forbade its sale. 1820 N.H. Laws 274-75, ch. 15 § 3.
Other States went further, prescribing specific procedures and technology
for gunpowder inspections. A 1795 Pennsylvania statute, for example, mandated

2 See, e.g., 1776 R.I. Laws 18-19 (Oct. Sess.); 1776-77 N.J. Laws 6-7, ch. 6, § 1; 1809
Mass. Laws 444, ch. 52; 1820 N.H. Laws 274, ch. 15 §§ 1-9.
4
use of a then-recent invention—a “pendulum powder proof, with a graduated arch
and catch-pall”—to “prove” the strength of the gunpowder, and required
inspectors to label gunpowder casks the “lowest,” “middle,” or “highest” proof.
1795 Pa. Laws 240, § 2. Once tested, each cask was stamped with this grade and
the mark “S.P.” (“State of Pennsylvania”). Id. at 242, § 6.
2. From the early 19th century onwards, States regulate firearm
quality and performance to ensure public safety. In the early 19th century,
States began to require that firearms themselves pass pre-market safety and quality
inspections. These laws provided for the appointment of “provers of gun barrels,”
who would “try the strength” of firearms and mark those that passed inspection.
E.g., 1821 Me. Laws 685, ch. 162 § 1. Some statutes also charged “provers” with
numbering firearms—making possible a registry of approved guns, owners, and
manufacturers. Id. This was later supplemented by procedures for stamping
approved gun barrels. 1881 Mass. Acts 333-34, ch. 60 § 18. Those who attempted
to sell new, unproved firearms or tamper with the markings could be fined, as
could those who “knowingly purchase[d]” unapproved firearms. 1814 Mass. Acts
464-65, § 2.
3. States require that new firearm models pass design and
manufacturing tests before sale. In addition to expanding the types of guns
available, the Industrial Revolution enabled firearm manufacturers to efficiently
5
vary the price and quality of weapons. See Paul A. Shackel, Culture Change and the
New Technology: An Archaeology of the Early American Industrial Era 160 (1996). By driving
down costs and transferring the savings to customers, manufacturers found that
they could capture previously untapped markets. Price competition was especially
fierce during the Civil War and the two World Wars, as manufacturers scrambled
to produce low-cost, reasonably reliable firearms for standard military issue. See
Roger Pauly, Firearms: The Life Story of a Technology 107, 112-13 (2004). Some
manufacturers, however, sacrificed safety to maximize economies of scale. By the
second half of the 20th century, as one state legislature observed, cost savings were
often achieved by manufacturing guns “without the normal safety features and with
inferior materials and poor workmanship.” 1974 N.Y. Laws 2665-66, § 1.
In response, States beginning with New York in 1974 enacted regulations to
prohibit the manufacture and sale of certain low-quality, unreliable firearms known
as “junk guns” or “Saturday Night Specials.” These regulations—which required
new models to undergo a series of quality-assurance tests before sale—were 20thcentury
precursors to California’s handgun law. Legislatures determined that these
“inaccurate and unsafe” firearms “pos[ed] a danger to both the user and the public
at large” and were “of no interest to persons who have a lawful right to possess a
handgun for a legitimate purpose.” Id. These laws also gave the state authority to
promulgate regulations “establish[ing] safety standards” for “the manufacture and
6
assembly of firearms,” “including specifications as to the materials and parts used”
and “minimum standards of quality control.” N.Y. Penal Law § 400.12(a). The
regulations apply to all licensed gunsmiths and require licensees to obtain approval
before assembling new firearms. N.Y.C.R.R. 9, § 482.2. Only firearms that satisfy a
set of materials-and-design stipulations, as verified by inspection, are approved. Id.
“Firing tests,” for example, are a primary method by which regulators
confirm the durability and reliability of firearms. These tests—reminiscent of the
Founding-era procedures for proving gun barrels—involve firing the gun for a
specified number of rounds, then assessing whether it withstands successive
discharges without cracking or malfunctioning. New York’s testing typically
consists of two parts. First, the experimenter fires “one proof cartridge in each
chamber” and inspects the cartridge case, barrel, cylinder, slide, and cylinderframe
or receiver for “cracks, bulges, or splits.” Id. § 482.5-6. Second, the
experimenter “fire[s] 1,000 rounds of commercial ammunition” to test the
weapon’s endurance. Id. § 482.6.
“Melting point tests” are another method to ensure the safe use of firearms
that became a regulatory tool during the 1970s. Because cheap metals melt at
relatively low temperatures—and guns made out of low-quality materials tend to
be unreliable, inaccurate, and unsafe—melting points were used a proxy for the
gun’s safety. See Monica Fennell, Missing the Mark in Maryland, 13 Hamline J. Pub. L.
7
& Pol’y 37, 65-67 (1992). By 1975, at least four States had laws requiring that
firearm components not melt at less than 800 or 1,000 degrees Fahrenheit, and
other States followed suit over the next few decades.
3 Illinois, for instance, passed a
law in 1973 prohibiting the sale of firearms containing parts that are “a die casting
of zinc alloy or any other nonhomogeneous metal which will melt or deform at a
temperature of less than 800 degrees Fahrenheit.” 1973 Ill. Laws 1130, § 1.
In the 1980s, States began requiring a third test: dropping the firearm from
various heights and angles to ensure that it is not prone to accidental discharge.
The exact procedures for conducting this “drop testing” are often quite detailed.
For example, one State requires a test in which the handgun is dropped “36 inches
in a line parallel to the barrel upon the rear of the hammer spur, a total of five
times,” to ensure that it is safe. N.Y.C.R.R. 9, § 482.6(c) (1980). Another State
requires that the tester drop the gun onto a solid slab of concrete from six different
positions. 1998 Mass. Laws 364, § 19.
4. Between the 1980s and early 2000s, States implement
regulations requiring firearms to possess specific safety features—
including chamber-load indicators and magazine disconnects. At the
same time that States required firearms to pass firing, melting-point, and drop

3 1973 Ill. Laws 1130, § 1; 1973 S.C. Acts 733, § 1; 1975 Minn. Laws 1279, 1283;
1975 Haw. Sess. Laws 281; see also N.Y.C.R.R. 9, § 482.5(a) (1980); 1998 Mass.
Acts 364 § 19.
8
testing, they also enacted laws requiring manufacturers to incorporate certain
safety-oriented design features into firearms. These include safety mechanisms,
which have existed for centuries but have become far more ubiquitous because of
regulation. See Smithsonian Institution, Firearms: An Illustrated History 34 (2014)
(noting that a German gun invented circa 1560 included a “simple safety catch”).
A New York regulation enacted in 1980 mandated “manual or automatically
operated safety device[s]” in all pistols, and similar features for other firearms.
N.Y.C.R.R. 9, § 482.5(f). Massachusetts similarly prohibits “sell[ing] a gun without
a safety device.” 940 Mass. Code Regs. § 16.05(1) (1997). Designed to “effectively
preclude a five year old child from operating the handgun when it is ready to fire,”
that regulation provides a non-exhaustive list of design adjustments. Id.
4
Another provision of the same Massachusetts regulation made it illegal to sell
or transfer “any handgun which does not contain a load indictor or a magazine
safety disconnect.” Id. 16.05(3). In the early 1900s, inventors had filed patents for
simple versions of both of these technologies, and several manufacturers later
adopted them voluntarily as a design element of specific weapons. As described by
the initial patents, a chamber-load indicator “provide[s] a positive and reliable

4 Maryland prohibits dealers from selling, renting, or transferring new handguns
“unless the handgun has an integrated mechanical safety device.” 2003 Md. Laws
246. And federal law prohibits gun makers or dealers from selling or transferring
guns without “a secure gun storage or safety device.” 18 U.S.C. § 922(z)(1); see also
id. § 921(a)(34).
9
device for indicating whether … a cartridge is contained in the chamber of the
barrel,” U.S. Patent No. 891,438 (1908), while magazine disconnects “insure
absolutely against the dangerous accidental firing sometimes liable to occur if the
trigger is pulled after the magazine is withdrawn.” U.S. Patent No. 984,519 (1911).
As discussed further below, California’s Unsafe Handgun Act requires that certain
handguns incorporate both century-old technologies: chamber-load indicators and
magazine-disconnect mechanisms. Cal. Penal Code § 31910(b)(4).
5. Starting with Maryland in 1988, States create rosters of
handguns approved for sale. Firearms testing and mandatory safety features
cleared the path for comprehensive regulatory regimes directed toward creating
rosters of handguns certified for sale. Maryland began implementing the first of
these regimes in the 1980s, instituting a “Handgun Roster Board.” See 1988 Md.
Laws 3495. In deciding which guns to include on its roster, the Board was directed
to consider “concealability; ballistic accuracy; weight; quality of materials; quality
of manufacture; reliability as to safety; and caliber.” Id. at 3496. Producing or
distributing for sale a handgun manufactured after a certain date and not included
in the roster was a misdemeanor punishable by $10,000 per violation. Id. at 3494.
These provisions remain in effect. See Md. Code Ann., Pub. Safety §§ 5-403-06
(2003).
10
A decade later, Massachusetts established a handgun roster concurrently
with firearms-testing requirements. Under this regulation, the Office of Public
Safety must publish a list of “approved” handguns three times each year.5 New
guns may be added to the roster without testing by a Massachusetts-based
“approved independent testing laboratory” if they are the “functional equivalent”
of an approved firearm, or have undergone “identical” testing by a lab in another
State. 501 Mass. Code Regs. § 7.04(2).
California’s Unsafe Handgun Act is part of this generation of regulations.
Enacted in 1998, it is a “narrower version” of a bill introduced the year before.
ER4. The bill was motivated by concern that gun violence was the “leading cause
of death[s] among young people ages 10 to 17 in California” in 1996, “[t]he
overwhelming majority of [which] were caused by the cheaply manufactured
Saturday Night Special.” Id. It was also aimed at ensuring that “handguns fire
when they are supposed to and that they do not fire when dropped.” Id. As the
bill’s author put it, “[i]f a weapon is not reliable for self-defense it has no business
being sold in California.” Id.
To accomplish these objectives, the legislature implemented a pre-marketapproval
process including drop and firing testing and required that pistols and
revolvers incorporate safety devices. Handguns meeting these requirements and

5 Mass. Gen. Laws ch. 140, § 123; 501 Mass. Code Regs. § 7.03 (2007); 1998 Mass.
Laws ch. 379-80 § 41.
11
determined “not to be unsafe” are listed on the approved-handgun roster. See Cal.
Penal Code § 32015(a). With certain exceptions, the statute prohibits transfer of a
handgun not listed. Id. § 32000. Like Massachusetts, California also allows
sufficiently similar handguns to be listed without testing. Id. § 32030.
In 2003, California amended the Act to require two century-old safety
technologies: magazine-disconnect mechanisms and chamber-load indicators
“designed and intended to indicate to a reasonably foreseeable adult user of the
pistol … whether a cartridge is in the firing chamber.” Cal. Penal Code § 16380; id.
§ 32010(d). The bill’s author, Senator Scott, observed that many gun-related deaths
are caused by unintentional shootings that occur because the user thought the gun
was incapable of firing. Senate Bill Analysis: S.B. 489, at 7 (Cal. 2003). He also
cited a national survey showing that almost 35% of adults “either did not know that
a gun could be fired, or believed that a gun could not be fired with the magazine
removed.” Id.; see Tom W. Smith, 1997-98 Nat’l Gun Policy Survey of the Nat’l Opinion
Research Center 17 (1998). The legislature was guided as well by a Johns Hopkins
study concluding that magazine-disconnect mechanisms “are inexpensive and
effective safety devices,” and a 1991 GAO study estimating that “23% of accidental
12
shootings could … [be] prevented by chamber load indicators.” Senate Bill
Analysis: S.B. 510, at 5-6 (Cal. 2001).
6
B. Registration and Serialization to Facilitate Law Enforcement
1. Firearm registration begins in the colonial period. From the
earliest period, colonial “government kept close tabs on the weapons citizens
owned”: the colonies routinely conducted censuses and inspections of colonists’
guns to verify their quantity and quality. Saul Cornell, A Well-Regulated Militia 3
(2006). Under Virginia’s 1631 census requirements, for example, “the commanders
of all the severall plantations” would “take a muster” of the “armes and munition”
owned by the plantations’ inhabitants and submit it to the colony’s government.
1631 Va. Acts 155, Acts of Feb. 24, 1631, Act LVI.
2. Serialization becomes popular in the late 19th century,
facilitating widespread registration laws in the early 20th century.
During the 1800s, prominent American gun manufacturers—including Colt and
Winchester—began serializing firearms to track production and sales. See
Serialization, NRA Nat’l Firearms Museum, 2364, 2390, http://bit.ly/1WrYZgk.
Over time, serialization became enough of an industry standard that it was
incorporated into state firearms laws, particularly licensing regimes. One of the
earliest licensing requirements—enacted in 1893—provided that, in issuing licenses

6 U.S. Gov’t Accountability Office, Accidental Shootings: Many Deaths and Injuries Caused
by Firearms Could Be Prevented 3-4 (1991).
13
to own “a Winchester or other repeating rifle,” the county would record the “name
of the person … , the name of the maker of the firearm so licensed to be carried
and the caliber and number of the same.” 1893 Fla. Acts 71 (emphasis added).
The majority of early licensing laws, however, pertained to handguns. In
1911, New York broke ground by enacting the Sullivan Act, criminalizing
ownership of a concealable weapon without a license. See 1911 N.Y. Laws 443, § 1;
1913 N.Y. Laws 1628, § 1. This was an extension of a longstanding regulation
limiting the carrying of concealed guns, and was intended as an “effective
preventive to the possession of [concealable handguns] by the criminal classes.”
People ex rel. Darling v. Warden, 139 N.Y.S. 277, 423 (N.Y. App. Div. 1913). Another
provision made it a misdemeanor for dealers to sell concealable guns to permit-less
customers or to fail to document, for each gun sold, the sale’s time and date and
the “name, age, occupation and residence of every [firearms] purchaser …
together with the caliber, make, model, manufacturer’s number or other mark of
identification on [the] pistol, revolver, or other firearm.” 1911 N.Y. Laws 444, § 1
(emphasis added). Failing to maintain these records (which had to be signed by
buyer and seller) or to show them to law enforcement was punishable by a fine,
14
imprisonment, or both. Id. Within twenty years, 24 other States and the District of
Columbia had enacted similar registration requirements.7
Of the States that adopted regulations of this kind, seventeen (plus the
District of Columbia) made maintaining sales records a condition of obtaining a
permit to sell firearms, and criminalized sale without a permit.8 The Uniform
Firearms Act—promoted by the National Rifle Association in the early 20th
century and adopted in several States—supported this method of ensuring that
dealers thoroughly documented handgun sales. Sam B. Warner, Uniform Pistol Act,
29 Am. Inst. Crim. L. & Criminology 529, 531-32, n. 13 (1938). Although five
States only required sales records to be made available for inspection by law
enforcement upon request, 9 the vast majority enforced their record-keeping
regulations by compelling firearms dealers to submit regular (or even daily) sales
reports to local officials.10 In addition to requiring firearms dealers to record sales,
some States implemented mandatory firearm registration,11 or forbade individuals

7 E.g., 1911 Colo. Sess. Laws 408-09, § 3; 26 Del. Laws 29, § 4 (1911); see the
appendix to this brief for a complete list of statutes.
8 E.g., 26 Del. Laws 28 (1991)-29; 1913 Iowa Acts 308-09, § 9-10; see appendix.
9 1911 Colo. Sess. Laws 408-09, § 3; 26 Del. Laws 29, § 4 (1911); 1919 N.C. Sess.
Laws 398-399, § 5; 1921 Mo. Laws 692, § 1; 1925 Ill. Laws 340, § 2.
10 E.g., 1913 Iowa Acts 308-09, § 3; 1917 Cal. Stat. 222-23, § 7; see appendix.
11 1918 Mont. Laws 6, § 1; 1925 Haw. Sess. Laws 790-91, § 2136; 1925 Mich. Acts
475, § 11; 1926 Va. Acts 285, § 1.
15
from buying guns without first acquiring a permit.
12 Michigan’s process, among the
most rigorous, required firearms owners to present their weapons for safety
certification.13
Serial numbers were typically an important part of the registration process.
See, e.g., 1925 Ind. Acts 497-98, § 9 (specifying that firearms sellers “shall … [record
the] manufacturer’s number of the [transferred] weapon”). In addition, some
registration statutes prohibited the sale or purchase of concealable weapons that
were not “plainly and permanently marked” with the maker’s trademark, the
weapon’s model, and a unique serial number. 1921 Mo. Laws 692, § 1, 3. Even
States that did not require serialization recognized serial numbers’ central role in
facilitating firearms identification and criminalized their alteration.14 Decades later,
in 1968, Congress imposed a federal serialization requirement. 18 U.S.C. § 923
(mandating that all importers and manufacturers “identify” each gun by means of a
“serial number engraved or cast on the [weapon’s] receiver or frame”).
3. States seek to facilitate law enforcement based on information
from shell casings. Over the past two decades, States have attempted to solve a
problem left unaddressed by registration laws. Registration allows law enforcement

12 1918 Mont. Laws 6, § 3; 1919 N.C. Sess. Laws 397, § 1; 1921 Mo. Laws 692, § 2.
13 1927 Mich. Acts 891, § 9.
14 E.g., 1923 Conn. Acts 3709, § 11; 1923 N.D. Laws 383, § 14; 1923 N.H. Laws
140, § 12; see appendix.
16
to find a gun’s owner when that gun is recovered at a crime scene, but not to track
a crime to a gun owner in the far more common situation in which police recover
shell casings but not the gun itself.
A few jurisdictions tackled this problem by requiring dealers to provide law
enforcement with samples of bullets or shell casings actually fired from any gun
sold, which include distinctive markings unique to the gun that fired them.
15 In
theory, a database containing these “ballistic fingerprints” would allow law
enforcement to track casings recovered at a crime scene to the owner of the gun.
The databases, however, proved unworkable given available technology.
In the wake of this failed first-generation strategy, California sought to
accomplish the same goal through a less burdensome and more narrowly tailored
approach: microstamping. California’s approved firearms roster excludes any nongrandfathered
pistol that is “not designed and equipped with a microscopic array
of characters that identify the make, model, and serial number of the pistol.” Cal.
Penal Code § 31910(b)(7)(A). These “microstamped” characters must be etched on
the pistol itself and must be “transferred by imprinting on each cartridge case when
the firearm is fired.” Id. Any shell casings recovered at a crime scene will thus lead
law enforcement directly to the gun’s owner.

15 See N.Y. Gen. Bus. Law § 396-ff; D.C. Act. § 17-651 (2009); Md. Code Ann., Pub.
Safety § 5-131.
17
One “distinct advantage” of this strategy is that it enables non-experts to
assess forensic matches at the scene of a crime using “equipment no more
sophisticated than a magnifying glass.” Daniel L. Cork, Some Forensic Aspects of
Ballistic Imaging, 38 Fordham Urban L. J. 473, 475 (2011). As former Baltimore
Police Commissioner Frederick Bealefeld III put it: Microstamping “is one of these
things in law enforcement that would just take us from the Stone Age to the jet age
in an instant. I just can’t comprehend the opposition to it.” Erica Goode, Method to
Track Firearm Use is Stalled by Foes, N.Y. Times, June 12, 2012,
http://nyti.ms/1FyxNbq.
Governor Arnold Schwarzenegger signed the microstamping bill into law in
2007. To ensure that the technology would be available and feasible, the law did
not take effect until May 2013, when the California Justice Department certified
that the technology was available to more than one manufacturer. ER7-8.
Despite the technology’s feasibility and capacity to solve violent crimes, the
National Rifle Association and its allies—including members of one of the
organizational plaintiffs here—have vigorously opposed microstramping and
sought to thwart its implementation. See, e.g., Everytown, Not Your Grandparents’ NRA
(Apr. 24, 2014), http://every.tw/1KUJg5L (chronicling the NRA’s opposition
efforts); Calguns, http://bit.ly/1KzhHNY (poll of Calguns members showing
intent of more than 82% of respondents to “boycott” any “manufacturer [that]
18
caved in and implemented micro-stamping”). Their efforts have thus far paid off:
Last year, Smith & Wesson, a leading gun maker, announced that it would pull its
guns from the California market rather than equip them with microstamping.
Perry Chiaramonte, Gun fight: Smith & Wesson, Ruger quit California over stamping
requirement, Fox News, Jan. 26, 2014, http://fxn.ws/1e7BXHd.
Smith & Wesson’s decision should have come as no surprise. It knew full well
the consequences of crossing the NRA. Fourteen years earlier, the company had
been the target of a devastatingly effective boycott after agreeing to adopt basic
firearm-safety features (like child locks) in response to a wave of litigation. See Sarah
Childress, What Happened When a Major Gun Company Crossed the NRA, PBS Frontline,
Jan. 16, 2015, http://to.pbs.org/1sVVQuu. This time, rather than subject itself to
another boycott, Smith & Wesson’s CEO publicly declared that the company
would “continue to work with the NRA” to oppose microstamping. Emily Miller,
Smith & Wesson to stop selling guns in California due to microstamping law, Washington
Times, Jan. 4, 2014, http://bit.ly/1askXMx.
19
ARGUMENT
BECAUSE THE PLAINTIFFS HAVE NOT SHOWN THAT CALIFORNIA’S UNSAFE
HANDGUN ACT BURDENS THEIR RIGHT OF SELF-DEFENSE, THE DISTRICT
COURT’S DECISION SHOULD BE AFFIRMED.
In District of Columbia v. Heller, the Supreme Court held that the Second
Amendment protects “the right of law-abiding, responsible citizens to use arms in
defense of hearth and home,” and struck down as unconstitutional a law “totally
ban[ning] handgun possession in the home.” 554 U.S. 570, 629, 635 (2008). The
Court made clear, however, that its analysis does not “suggest the invalidity of laws”
that “do not remotely burden the right of self-defense as much as an absolute ban
on handguns.” Id. at 632. And it specifically identified several “examples” of laws—
including “laws imposing conditions and qualifications on the commercial sale of
arms”—that are considered “exceptions” to the self-defense right by virtue of their
“historical justifications,” and thus deemed constitutional. Id. at 626-27 n.26, 635.
16
Applying that precedent here, California’s Unsafe Handgun Act must be
upheld. The plaintiffs have not shown that the Act—a commercial-sales restriction
with historical antecedents that have advanced similar interests since the nation’s
Founding—imposes any burden on their ability to defend themselves, let alone

16 Two years later, the Supreme Court held that “the Second Amendment right
recognized in Heller”—of which “individual self-defense is the central component”—
applies to the States through the Fourteenth Amendment. McDonald v. City of
Chicago, 561 U.S. 742, 768, 791 (2010) (internal quotation marks omitted).
20
more than a “de minimis” burden. Heller v. District of Columbia, — F.3d —, 2015
WL 5472555, *6 (D.C. Cir. Sept. 18, 2015) (Heller III).
Unable to make the required showing, the plaintiffs instead ask this Court to
adopt a radical interpretation of the Second Amendment, under which each
handgun model—as soon as it is sold in some States—becomes sacrosanct and
exempt from regulation in any State. That extreme view cannot be reconciled with
Heller and has not been endorsed by a single judge. If accepted, it would allow the
gun industry (aided by the inaction of some state legislatures) to define the scope of
the Second Amendment, rendering other States powerless to require even the most
basic gun-safety features. This Court should reject that novel theory out of hand.
A. The plaintiffs have not shown that the Unsafe Handgun Act
burdens their right of self-defense.
The Unsafe Handgun Act does not prohibit the possession or ownership of
any handgun used for self-defense. Nor does it prohibit the commercial sale of all
handguns. Quite the contrary: The Act currently permits 822 different handgun
models to be sold in California, including nearly 600 semiautomatic models, and
requires only that handguns have certain safety features to be approved for sale.
California DOJ, Roster of Handguns Certified for Sale, http://certguns.doj.ca.gov/ (last
visited Sept. 23, 2015). The plaintiffs here, moreover, admit that they already own
handguns, which California law allows them to keep in their homes for self-defense.
See SER0006, SER0010, SER0014, SER0017. So the question in this case is
21
whether the plaintiffs’ “right of self-defense,” as protected by the Second
Amendment, Heller, 554 U.S. at 632, is infringed because “there are only [822]
total handgun models” available to the plaintiffs in selecting a firearm to add to
their arsenals. Appellants’ Br. 12.
In answering that question, this Court should place on the plaintiffs “the
initial burden of proving” that the law “restrict[s]” protected conduct. Lim v. City of
Long Beach, 217 F.3d 1050, 1054 n.4 (9th Cir. 2000); see also Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 n.5 (1984); Voting for Am., Inc. v. Steen, 732 F.3d 382,
388 (5th Cir. 2013). That is the rule in the First Amendment context, id., which this
Court has looked to in crafting its Second Amendment jurisprudence, Jackson v. City
& Cnty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014), and there is no reason
for a different rule here. The plaintiffs must therefore establish that California’s Act
burdens their ability to defend themselves.
They have not come close to doing so. Plaintiff Doña Croston, for example,
claims that her self-defense right has been infringed because her preferred handgun
(“a Springfield Armory XD-45 Tactical [5-inch] Bi-Tone stainless steel/black
handgun in .45 ACP, model number XD9623”) is available only “in different color
finishes.” Appellants’ Br. 16. But she has offered no evidence demonstrating that
her ability to defend herself is compromised by the fact that she must make do with
a black, green, or dark-earth version of the Springfield Armory handgun (plus the
22
handguns she already owns), rather than the black and stainless steel version she
covets. Nor could she possibly make this showing: How can her ability to defend
herself be burdened when she says that she may buy an “identical gun”? Id.
The other plaintiffs fare no better. Ivan Peña and Brett Thomas, two “gun
collectors” looking to add to their collections, have their eyes on “a Para USA (Para
Ordnance) P1345SR/Stainless Steel .45 ACP [4.25 inch]” handgun, and “a High
Standards 9-shot revolver in .22 with a [9.5-inch] Buntline-style barrel,”
respectively. Id. at 15, 17. Neither collector, however, even suggests that these
models are superior for self-defense to the hundreds that California makes available
to them, or even why they want those particular guns at all.
The last individual plaintiff, Roy Vargas, wants a Glock 21 SF with an
ambidextrous magazine release. Id. at 16. Unlike the others, he at least puts forth a
reason why. Id. Yet he does not claim that he is unable to choose another gun with
an ambidextrous release, that would be equally effective for self-defense, from
among the 822 models on California’s roster. To the contrary, he admits that he is
“able to purchase an operable handgun that is suitable for self-defense.” SER0014.
In short, none of the plaintiffs has shown that California’s Act burdens their
ability to defend themselves, much less that it imposes more than a “de minimis”
burden. Heller III, 2015 WL 5472555, at *6; see also United States v. Marzzarella, 614
F.3d 85, 94 (3d Cir. 2010) (remarking that, even though the federal serialization
23
law criminalizes possession of guns without a serial number, “the burden on [the
individual’s] ability to defend himself is arguably de minimis” because “the presence
of a serial number does not impair the use or functioning of a weapon in any way”).
California’s Act does not make it “considerably more difficult” for the plaintiffs “to
acquire and keep a firearm . . . for the purpose of self-defense in the home. Heller
III, 2015 WL 5472555, at *6. Although the plaintiffs assert (at 2) that the Act
“obliterat[es] the handgun market by commanding the use of non-existent
technology,” that is wrong as a factual matter. The district court found that the
plaintiffs failed to “offer evidence sufficient to support a finding of imminent
disappearance” of handguns—a conclusion they do not challenge on appeal. ER21.
B. Plaintiffs’ extreme “common use” theory conflicts with Supreme
Court and Ninth Circuit precedent, rests on flawed constitutional
analogies, and would lead to absurd results.
Because the plaintiffs cannot establish a burden on their “right of selfdefense,”
Heller, 554 U.S. at 632, they instead ask this Court to expand the Second
Amendment beyond the bounds of what any court has ever held, to include a new
right to acquire any gun model on the market. By their lights, if a model is in
“common use” in some States (and what that means, the plaintiffs do not say), then
the Second Amendment confers an absolute right to acquire it in every State.
But that radical view has not been adopted by any judge and cannot be
reconciled with Heller, which recognizes that the Second Amendment does not
24
guarantee “a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. Although Heller held that a total
ban on handgun possession in the home is unconstitutional because it “amount[s]
to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by
American society” for self-defense, the Court did not suggest that this analysis
applies to particular models within a class of arms. Id. at 628 (emphasis added). And
whereas “[t]he Justices took note of some of the reasons, including ease of
accessibility and use, that citizens might prefer handguns to long guns for selfdefense,”
the plaintiffs here have given no reason why the 822 handgun models for
sale in California do not provide “ample means to exercise the ‘inherent right of
self-defense’ that the Second Amendment protects.” Friedman v. City of Highland Park,
784 F.3d 406, 411 (7th Cir. 2015) (Easterbrook, J.); see also Kampfer v. Cuomo, 993 F.
Supp. 2d 188, 196 (N.D.N.Y. 2014) (upholding a law because it did “not create a
categorical ban on an entire class of weapons, and ample firearms remain[ed]
available to carry out the ‘central component’ of the Second Amendment right: selfdefense.”)
(quoting McDonald, 561 U.S. at 767).
Nor can the plaintiffs’ theory be reconciled with this Court’s recent
precedents upholding prohibitions on specific gun components in common use
elsewhere. See Fyock v. City of Sunnyvale, 799 F.3d 991 (9th Cir. 2015) (upholding
city’s ban on possession of all large-capacity magazines); Jackson, 746 F.3d 953
25
(upholding city’s ban on sale of all hollow-point bullets); see also id. at 967 (noting
that “Heller did not differentiate between regulations governing ammunition and
regulations governing firearms themselves”). If the plaintiffs’ view were the law,
these cases would necessarily have come out the other way.
On their theory, the Second Amendment creates a constitutional right to
acquire a particular handgun in a particular style and color. Invoking the First
Amendment, plaintiffs liken their inability to buy a gun with a silver-and-black
finish (as opposed to an identical black gun without the silver finish) to a ban on
Vladimir Nabokov’s Lolita. Appellants’ Br. 1-2. In this way, the plaintiffs claim, the
“rationing of handguns” is like the “rationing of books.” Id. at 48. But it “would
make little sense” for the Second Amendment to guarantee a right to acquire
“weapons bearing a certain characteristic wholly unrelated to their utility.”
Marzzarella, 614 F.3d at 94. Under Heller, the Second Amendment protects “the
right of law-abiding, responsible citizens to use arms in defense of hearth and
home,” 554 U.S. at 635—not of people to acquire them as fashion accessories or
collectibles. Self-defense is not the same as self-expression.
The plaintiffs fundamentally misunderstand this point. Contrary to their
repeated assertions, firearms are not “books or deities.” Appellants’ Br. 48. If
anything, they are more like contraceptives, id. at 1, in that they may be regulated
for safety reasons. If the Food and Drug Administration implemented new safety
26
requirements that removed some high-risk contraceptives from the market, while
leaving 822 different types available, would anyone say that the right to privacy has
been “destroy[ed]”? Id. at 44; see Griswold v. Connecticut, 381 U.S. 479 (1965). Just as
Heller holds that “laws imposing conditions and qualifications on the commercial
sale of arms” are constitutional, 554 U.S. at 626-27, so too the Court has held that
“the business of manufacturing and selling contraceptives may be regulated”
consistent with the right to privacy. Carey v. Population Servs. Int’l, 431 U.S. 678, 686
(1977); see id. (“That the constitutionally protected right of privacy extends to an
individual’s liberty to make choices regarding contraception does not, however,
automatically invalidate every state regulation in this area.”).
The plaintiffs’ theory would also be unworkable in practice and lead to
absurd results. For starters, it is unclear what constitutes common use. See Cody J.
Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of Weapon”
Analysis, 84 Tenn. L. Rev. ___ (forthcoming 2016), at http://bit.ly/1gVsyGZ. If a
million people own a particular handgun model, is that enough? How about a few
hundred thousand? Is it a regional test or a national test? Does it look to ownership
numbers or manufacturing numbers? If a survey revealed that half a million people
own firearms without serial numbers, would the federal serialization requirement
suddenly become unconstitutional because unmarked firearms are in common use?
If not, why not? As Judge Easterbrook has explained, “it would be absurd to say
27
that the reason why a particular weapon can be banned is that there is a statute
banning it, so that it isn’t commonly owned. A law’s existence can’t be the source
of its own constitutional validity.” Friedman, 784 F.3d at 409.
Imagine what would happen if the plaintiffs’ theory became law. Whenever
a new, potentially dangerous firearm technology became available—as has
happened throughout this country’s history—States would either have to ban it
immediately, and in unison, or else forfeit their ability to do so in the future. But, as
shown above, regulation often takes time to catch up to technology, sometimes
decades or more. If some States chose to gather more information before
regulating, or if their citizens simply had a different position on gun policy, those
legislative decisions would change the meaning of the Second Amendment.
The decisions of some parts of the country, however, should not make laws
in other parts any “more or less open to challenge under the Second Amendment.”
Id. at 408. Federalism “is no less a part of the Constitution than is the Second
Amendment.” Id. at 412. The Supreme Court’s decision in Heller (as applied to the
States in McDonald) “does not foreclose all possibility of experimentation” by state
and local governments, id., but rather permits them to do what they have long
done in the realm of firearm legislation: “experiment with solutions to admittedly
serious problems,” Jackson, 746 F.3d at 970 (internal quotation marks omitted).
Sometimes that experimentation has taken the form of regulating firearm quality
28
and performance; other times it has taken the form of requiring particular safety or
serialization features as they become technologically feasible. But if the plaintiffs
have their way, it would bring this regulatory tradition to a halt nationwide,
freezing laws in place even as gun technology continues to evolve. That outcome is
inconsistent with our historical tradition of allowing regulation to adapt to, and
take advantage of, technological advancements.
Just as intolerable, the plaintiffs’ theory would require invalidation of many
sensible laws already on the books—like those prohibiting the sale of dangerous,
poorly made handguns. That includes California’s drop-testing and firing-testing
requirements, which the plaintiffs now claim they are not challenging in this case,
conceding (at 2) that “California can ban particular handguns on product safety
rationales.” But the logic of their own theory holds otherwise: Because many States
do not have such requirements, the plaintiffs’ theory would prohibit California
from restricting the sale of handguns that fail testing requirements because those
guns are commonly used in other States. So long as firearms manufacturers decide
to continue making enough of those guns, they will be constitutionally protected.
The plaintiffs’ theory thus “hinder[s] efforts to require consumer features on
guns,” while “putting a great deal of power”—constitutional power, no less—“into
the hands of gun manufacturers.” Jacobs, End the Popularity Contest, at 36. They
would have “the ability to unilaterally make” particular models “protected simply
29
by manufacturing and heavily marketing them” in States where they are not
prohibited. Id. at 33. This would create perverse incentives for manufacturers to
overproduce the very types of guns that most warrant regulatory attention, and to
flood the market, whenever new technology developed, with firearms possessing
that technology before regulators could assess their safety.
At bottom, the plaintiffs’ pitch is that, because the gun industry has not
implemented microstamping, California’s law is tantamount to a ban on the sale of
new handguns: They complain that it “command[s] the use of non-existent
technology,” akin to a “mandate that handguns read the operator’s mind and
refuse to fire when detecting criminal intent.” Appellants’ Br. 2, 43. But
microstamping is anything but “science fiction.” Id. at 2. It is a readily available
technology that gun manufacturers could easily implement. To the extent that their
refusal to do so is the result of concerted pressure by the NRA and its allies, that
boycott should be given no constitutional significance. Just a few months ago, in
upholding Oklahoma’s lethal-injection protocol in Glossip v. Gross, the Supreme
Court made clear that it was unwilling to allow the Eighth Amendment’s scope to
be dictated by “anti-death-penalty advocates [who] pressured pharmaceutical
companies to refuse to supply the drugs used to carry out death sentences.” 135 S.
Ct. 2726, 2733 (2015). Intense disagreement about constitutional controversies is
30
inevitable, but this Court should not allow the pressure tactics of powerful private
interests to define the meaning of the Constitution.
CONCLUSION
The district court’s judgment should be affirmed.
Respectfully submitted,
/s/ Deepak Gupta
J. ADAM SKAGGS DEEPAK GUPTA
MARK ANTHONY FRASSETTO JONATHAN E. TAYLOR
EVERYTOWN FOR GUN SAFETY GUPTA WESSLER PLLC
P.O. Box 4184 1735 20th Street, NW
New York, NY 10163 Washington, DC 20009
(202) 888-1741
September 28, 2015 Counsel for Amicus Curiae
Everytown for Gun Safety
i
APPENDIX OF STATE FIREARMS STATUTES
State laws requiring the registration of firearms:
• 1911 Colo. Laws 408-09, § 3;
• 26 Del. Laws 29, § 4 (1911);
• 1913 Iowa Acts 308-09;
• 1913 Or. Laws 497, amended by 1917 Or. Laws 805-07, § 5, 1925 Or. Laws
471-73;
• 1917 Cal. Laws 222-224, § 7, repealed and reenacted in substantive part by 1923
Cal. Laws 699-702;
• 1918 Mont. Laws 6-9
• 1919 Ill. Laws 432, § 3, repealed and reenacted in substantive part by 1925 Ill. Laws
340, § 3;
• 1919 N.C. Sess. Laws 397-98;
• 1921 Mo. Laws 692, § 2;
• 1923 Conn. Acts 3707-08;
• 1923 N.D. Laws 382-83;
• 1923 Haw. Sess. Laws 185-86, § 1, amended by 1925 Haw. Code 790-93, 1927
Haw. Sess. Laws 210-16;
• 1923 N.H. Laws 141, § 10;
• 1925 Ind. Acts 497-99;
• 1925 Mich. Laws 474-75, amended by 1927 Mich. Laws 887-88, § 2;
• 1925 N.J. Laws 187-88, § 3, amended by 1927 N.J. Laws 743-47;
• 1925 W. Va. Laws 32;
• 1926 Va. Acts 285;
• 1927 Mass. Acts 414-15, § 2;
• 1931 Pa. Laws 499-500;
• 1931 Tex. Laws 447-48;
• 1935 S.D. Laws 356-57;
• 1932 D.C. Laws 652-53;
• 1935 Wash. Laws 601-02;
• 1936 Ala. Laws 52-54.
ii
State laws making maintaining a record of sales a condition of
obtaining a permit to sell handguns or firearms, and criminalizing the
sale of such weapons without a permit:
• 26 Del. Laws 28-29 (1911);
• 1913 Iowa Acts 308-09, § 9-10;
• 1913 Or. Laws 497;
• 1919 N.C. Sess. Laws 397, 399;
• 1921 Mo. Laws 692-93;
• 1923 Conn. Acts 3707, 3710;
• 1923 N.D. Laws 382-83, § 11-12;
• 1923 N.H. Laws 140-41, § 9-10;
• 1925 Ind. Acts 497-99;
• 1925 W. Va. Laws 32;
• 1927 Haw. Sess. Laws 211-13;
• 1927 N.J. Laws 743-45;
• 1927 Mass. Acts 414, § 2;
• 1931 Pa. Laws 499-500;
• 1932 D.C. Laws 652-53;
• 1935 S.D. Laws 356-57;
• 1935 Wash. Laws 601-02, 604;
• 1936 Ala. Laws 52-54.
State laws enforcing recordkeeping requirements by compelling
firearms dealers to submit regular (and, in some cases, daily) sales
reports to local officials:
• 1913 Iowa Acts 308-09, § 3;
• 1917 Cal. Stat. 222-23, § 7;
• 1923 N.D. Laws 381-82, § 10;
• 1923 N.H. Acts 140, § 10;
• 1925 Ind. Laws 497-98, § 9;
• 1925 Mich. Laws 474, § 7;
• 1927 Haw. Sess. Laws 211, § 9;
• 1927 N.J. Laws 746-47, § 9;
iii
• 1925 W. Va. Laws 32; 1925 Or. Laws 471-72, § 9;
• 1926 Va. Laws 285, § 2;
• 1927 Mass. Acts 414, § 2;
• 1931 Pa. Laws 499, § 9;
• 1931 Tex. Laws 447, § 3;
• 1932 D.C. Laws 652-53, § 10;
• 1935 S.D. Laws 356, § 9;
• 1935 Wash. Laws 601-02, § 9;
• 1936 Ala. Laws 53-54, § 11.
State laws criminalizing the alteration of firearm serial numbers:
• 1923 Conn. Acts 3709, § 11;
• 1923 N.D. Acts 383, § 14;
• 1923 N.H. Acts 140, § 12;
• 1925 Ind. Acts 499-500, § 13;
• 1925 Mich. Acts 475, § 10;
• 1925 Or. Laws 474, § 13;
• 1927 Haw. Sess. Laws 212, § 13;
• 1927 N.J. Laws 749, § 15;
• 1931 Pa. Acts 501, § 15;
• 1935 S.D. Laws 357, § 14;
• 1935 Wash. Laws 603-04, § 14;
• 1932 D.C. Laws, § 12;
• 1936 Ala. Laws 54, § 14.
STATEMENT OF RELATED CASES
To the best of my knowledge, there are no related cases.
/s/ Deepak Gupta
Deepak Gupta
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)
I hereby certify that my word processing program, Microsoft Word, counted
6,999 words in the foregoing brief, exclusive of the portions excluded by Rule
32(a)(7)(B)(iii).
/s/ Deepak Gupta
Deepak Gupta
CERTIFICATE OF SERVICE
I hereby certify that on September 28, 2015, I electronically filed the
foregoing Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellee
with the Clerk of the Court of the U.S. Court of Appeals for the Ninth Circuit by
using the Appellate CM/ECF system. All participants are registered CM/ECF
users, and will be served by the Appellate CM/ECF system.
/s/ Deepak Gupta
Deepak Gupta

Pena vs. Lindley