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Reporting on this case is Gene Hoffman, a founder and the Chairman of The Calguns Foundation, who attended the hearing.

CalGuns Foundation

CalGuns Foundation

California  --( Monday, oral arguments were held for our Second Amendment challenge to California handgun “roster” laws (that limit access to Constitutionally-protected handguns by law-abiding people) before United States District Court Judge Kimberly J. Mueller on cross motions for summary judgment.

The lawsuit, Ivan Peña et. al v. Stephen Lindley (Wilfredo Cid was previously named as defendant), was filed by The Calguns Foundation, Second Amendment Foundation, and a number of individual 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 attorney Alan Gura with assistance from Don Kilmer. California Department of Justice 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 proceedings to an hour duration and that she had questions for both sides, so the format was a bit different than many summary judgement arguments.

The Court spent the first 20% of the oral arguments on whether the parties had standing — even though California DOJ had not argued that in their briefings. As a threshold matter, Federal courts do have an independent 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, a United States Supreme Court that held individuals had a right to challenge regulations on sellers that limited the market in contraceptives from which individuals could buy. The Court was also made aware of NRA v. BATFE, where the 5th Circuit Court of Appeals clearly said that 18-20 year old individuals had standing to challenge a government ban on handgun purchases by them at firearms dealers (while still ruling against those individuals as a constitutional matter; that case is awaiting a cert decision at SCOTUS).

The Court continued to ask if there was any risk of prosecution of the individual plaintiff; Mr. Kilmer pointed out to the court that, in fact, there is. In the Eastern District of California, a Calgunner stands indicted by the United States for conspiracy to straw purchase an off-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 intermediate scrutiny 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, even a temporary violation of a fundamental right remains nothing less than a violation of the Constitution. In testing California’s theory, California argued that even under intermediate scrutiny, the State could give everyone a handgun and mandate it is the only gun you could use for self-defense in the home….and that would be enough.

The Court seemed troubled by the logical extension of California’s argument that only one handgun was enough to allow the full and unencumbered exercise of Second Amendment rights. Peña counsel made it clear that the Constitutional analysis the State wanted to implement would logically allow them to restrict all handguns by caliber to only .22lr, or even to ban all handguns and only allow Tasers — an argument the District of Columbia 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, that standing is utterly divorced from the analysis of a constitutional violation and that not being able to buy the guns they want to buy meets the 3 prongs of standing requirements.

The Court probed to see if there were other facts and even speculated about 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 the court had a full picture of the briefing and the record as well as a clear 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.

The Calguns Foundation (CGF) ( is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights. Supporters may visit to join or donate to CGF.

  • 2 User comments to “Peña v. Cid Case Update (Challenge to California’s Handgun Roster)”

    1. Diamondback on December 19, 2013 at 11:26 AM said:

      Do these arsewipes apply “intermediate scrutiny” to the fundamental, individual, civil rights protected by the First Amendment; the Fourth; the 5th?


      These corrupt judges/courts need to be held accountable by the people.

      Noose therapy seems most appropriate to me.

    2. Tom Schlossin on April 15, 2014 at 12:00 AM said:

      I won’t go into all the details required to get on California’s handgun roster. Ruger arms had one of their guns pass the test. Later Ruger arms recalled the same gun that was passed by California’s Handgun test. Ruger did say there was a very slim chance any problems would happen with that gun nonetheless Ruger did recall the gun and fixed the problem. The point here is I feel gun manufacturers feel a responsibility to their customers to give them a safe product.
      My problem with California DOJ’s gun roster list is if the manufacture changes one thing they have to relist again retested and pay all the fees and bring the handgun up to the there new standards. One gun manufacturer added a safety keylock to make the gun safe around children doing so got them thrown off roster. Another A custom gun Manufacturing changed the letter style on the slide of their handgun they also were kicked off the list. Now really don’t you think that’s just going a bit overboard.

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