The Golden State continues to tempt judicial fate with the administration of its handgun roster law. Before too long, it could wind up costing them in court.
Last Friday, the California Department of Justice announced it is removing all previously approved models of the popular Heckler and Koch (H&K) USP pistols from its handgun roster. It did so without warning or elaboration on the rationale behind the decision.
Gun owners were simply left to speculate as to why a well-established gun maker’s popular handgun, used safely across the country and around the world, could no longer legally be sold in the country’s most populous state.
While this latest move was unexpected, it was not an aberration. Different handgun makes and models have been unceremoniously dropped from the list of state-approved pistols many times since the Unsafe Handgun Act became California law in 2001. There have been 33 models decertified so far this year alone, and that number will only grow as the year goes on.
That’s because ever-increasing requirements for a handgun to meet approval have charted a gradual course toward a total ban on handgun sales in the state.
When the law was signed, a handgun needed to have a manual safety, a loaded chamber indicator, a magazine disconnect mechanism, and pass a drop test to meet approval. In 2007, the California legislature passed a law declaring that a semi-automatic handgun could not be approved unless it was equipped with microstamping technology once such technology was declared feasible.
In 2013, then-Attorney General Kamala Harris (D.) declared that the technology had arrived, despite evidence to the contrary, and the microstamping requirement officially went into effect. Since then, there have been zero new handguns approved to the roster due to the inability of gunmakers to comply with an as-of-yet infeasible technology. Meanwhile, handguns have continued to be removed from the roster for various reasons, resulting in an ever-diminishing supply of legal handguns for civilians to purchase.
A comparison between the California DOJ’s list of recently de-certified handguns to its list of newly approved handguns starkly reveals the trend at hand.
As of the writing of this piece, there are 788 handguns listed as “certified for sale” on the state’s approved handgun list, all of which were manufactured and released at least a decade ago. For context, despite being the second-most restrictive state to utilize a roster system, the Massachusetts approved handgun roster contains roughly 1,100 different options and includes most modern generations of common civilian pistols (including H&K USPs). In states without roster limitations, the options available for civilian buyers number well into the thousands.
When different color offerings are factored in—that’s right, each cosmetic feature offered in a particular model must be individually approved—the number of unique handgun makes and models still legal to buy in California is actually far more limited than the 788 figure would suggest.
Exacerbating this issue is the recently passed Assembly Bill 2847. Set to go into effect in July, the law will automatically remove three previously approved handguns from the roster for every new model the state approves—if it ever does approve another gun.
The addition of this latest roster requirement, a three-for-one swap intentionally meant to further diminish the options for legal handgun purchasing, could finally be the straw that breaks the camel’s back in court.
Previous challenges against the roster regime have proved fruitless for gun-rights advocates. In 2018, the California Supreme Court upheld the microstamping requirement in a challenge brought by the National Shooting Sports Foundation. That same year, the Ninth Circuit upheld both the handgun roster and the microstamping requirement, specifically in Pena v. Horan. The Supreme Court declined to hear the case on appeal in 2020.
Since then, however, the court has added an additional originalist justice and has already taken up another Second Amendment case where it looks poised to strike down restrictive laws around gun carry.
It has also inadvertently signaled its willingness to make bold rulings on controversial matters if the leaked Dobbs opinion is any indication.
Add in the new additional three-for-one requirement, and it would seem California’s roster system is due for renewed judicial scrutiny. A legal challenge in federal court against this new requirement is already underway, and it could provide just the vehicle for this to happen.
A more conservative court newly motivated to take on gun-rights cases could view California’s slow-motion ban on handgun purchasing the same way it has viewed previous attempts at outright handgun bans.
2 Responses
As with all things that have come out of the Ninth Circuit — as highlighted in McDougall v. County of Ventura — the 50-to-0 record of upholding any and all bans using dubious logic is unlikely to change. This is due to bad-faith politics, and I intentionally use that word and not jurisprudence, overwhelmingly by Democrat-appointed justices on the Ninth Circuit. If the random 3-judge panel had been sampled any different, we wouldn’t be reading this. That isn’t how logical legal analysis by consummate professionals should work.
You briefly touched on the Dobbs opinion; I think this is the real issue. Roberts is concerned about the legacy of “his” court and “eroding faith”. However this series of cases related to microstamping/roster/”whitelists” (or “allow lists” depending on company) in particular highlight the fallacy at play.
I find it situationally ironic you cited that as “willingness to make bold rulings”, Mr. Fogleman, as in my mind it is actually supporting evidence /to the contrary/. Bad faith laws and actions by the Legislative, going unchallenged by the Judicial, and abetted by subterfuge by Executive.
In conclusion: I argue that determination letter by then-CA AG K. D. Harris (2013-BOF-03, signed release viewable online) is akin to /intentionally/ falsified data signed off in chemist’s professional laboratory notebook — and looking at /likely/ Judicial response is inappropriate.
At best, it a red herring to distract, when we should be looking at Executive repercussions. The fact there have been none is telling, considering it should ordinarily be a excommunicable breach of professional licensing. (Looking past the principle of Sovereign Immunity, and merely looking at ‘doing a job correctly and accurately’). The roster (in general) is the poster child of this.
These are good points. California and the Ninth Circuit are highly outcome based when it comes to guns and the outcome they want is fewer guns in the state.