On March 20, a judge in the Central District of California granted a motion to preliminary enjoin a California law requiring that handguns have certain features before becoming eligible for the roster of handguns permitted to be sold in the state. The plaintiffs in Boland v. Bonta challenged three specific provisions of California’s Unsafe Handgun Act (UHA): (1) the requirement that “certain handguns  have a chamber load indicator (‘CLI’), which is a device that indicates whether a handgun is loaded”; (2) the requirement that “certain handguns to have a magazine disconnect mechanism (‘MDM’), which prevents a handgun from being fired if the magazine is not fully inserted”; and (3) the requirement that “certain handguns  have the ability to transfer microscopic characters representing the handgun’s make, model, and serial number onto shell casings when the handgun is fired, commonly referred to as microstamping capability.” District Judge Cormac Carney applied the Bruen test and found that all three requirements violated the Second Amendment.
The judge first described the challenged handgun features and California’s approach of maintaining a list (known as the “Roster”) of specific “handgun models that have been tested by a certified testing laboratory and have been determined not to be ‘unsafe handguns’” as defined by statute. California periodically updates the list of features that newly manufactured handgun models must have in order to be “not unsafe”; at the same time, the state does not require older models to have features that are added to the definition after those guns were first manufactured (rather, those models are “grandfathered” and generally may remain on the Roster). According to the opinion, as of 2007 all newly manufactured handgun models were required to have CLIs and MDMs to be added to the Roster—during that time, “32 semiautomatic pistols [were] added to the Roster.” The microstamping requirement was added in 2013, yet “no firearm manufacturer in the world makes a firearm with this capability” and no new handgun models have been added to the Roster since 2013. Therefore, as the opinion notes, “[e]very single handgun on the Roster [today] is a grandfathered handgun.”
Judge Carney then proceeded to summarize and apply Bruen’s framework for Second Amendment challenges. The judge first found that the challenged provisions infringe (and therefore implicate) the Second Amendment right. Observing that “a law does not have to be a complete ban on possession to meet Bruen’s first step,” he defined the relevant course of conduct as “purchasing state-of-the-art handguns on the primary market” and found that conduct presumptively protected.
Next, Judge Carney considered whether the state had met its burden at step two to identify a historical tradition of analogous regulation. California argued that three different categories of historical laws could serve as analogues for the UHA’s new-model requirements. First, the state pointed to “proving” laws which required certain testing and inspection procedures to ensure that newly manufactured firearms were safe and not defective. Second, the state submitted evidence related to gunpowder storage laws prevalent in urban areas in the 18th and 19th centuries. Finally, California argued that serial-number mandates support the microstamping requirement. The judge found that these historical laws did not suggest a tradition of similar regulation, holding in each instance that the burden and justification were different for those laws than for the challenged provisions of California’s UHA.
Judge Carney first concluded that proving laws “focused only on confirming the basic operating features of a firearm” rather than requiring additional features be added, were aimed at protecting the user of the gun rather than bystanders, and required inspection of every gun that was manufactured. The judge also found that these laws were likely limited in their impact because they only prevented defective firearms from being sold, whereas California’s law has prevented any new model from being added to the Roster for some time. As to gunpowder storage laws, the court held that these laws were intended to prevent fires—rather than to prevent accidental discharge of a firearm. The judge found that serial-number requirements were not analogous to the state’s microstamping mandate because microstamping is far more difficult to implement on a mass scale. Because he determined that California had failed to meet its historical burden under Bruen, the judge held that the “[p]laintiffs have shown that they are likely to succeed on the merits of their claim that those requirements are unconstitutional” and granted a preliminary injunction of the challenged UHA provisions.
To me, Boland’s ultimate conclusion about California’s microstamping requirement seems correct. It’s certainly true, as Boland observes, that “a law does not have to be a complete ban on possession” to implicate the Second Amendment (Bruen itself, for example, did not deal with a complete prohibition on public carry). Courts have consistently held that the Second Amendment protects a right to acquire, as well as possess and carry, a covered firearm. Bruen gestured to the idea that, in the public carry licensing context, “exorbitant fees” might violate the Second Amendment. And it’s also possible to imagine a tax imposed on firearms that is so high it effectively prevents most citizens from buying certain guns—it would not be difficult to conclude that such a tax implicates the Second Amendment, even though it does not ban purchase or possession of the relevant firearms.
While case law on taxation in the Second Amendment context is scant, a district court in 2016 struck down a $1,000 excise tax on imported handguns imposed by the territorial government of the Northern Mariana Islands under the pre-Bruen Second Amendment framework. The court found that the law amounted to a 667% tax on the least expensive handguns, which “would come close to destroying the right to keep and bear a handgun for self-defense—particularly for the most vulnerable members of society.” The Supreme Court has struck down taxes under the First Amendment—holding, for example, in Minneapolis Star & Tribune Co. that a “Minnesota ink and paper tax violate[d] the First Amendment not only because it single[d] out the press, but also because it target[ed] a small group of newspapers.” The Court emphasized that the ink and paper tax was “without parallel in the State’s tax scheme.” Differential taxation of press organizations, the Court found, placed a heavier burden on the state to justify the tax (a burden that Minnesota could not carry). Though enacted for salutary policy reasons, a requirement that all new handgun models sold in the state have safety features not present in any currently manufactured model appears to burden the right in a similar way as a steep sales tax.
Although Boland’s holding on the microstamping requirement appears (to me) correct, some of the judge’s reasoning does not. At the first step of Bruen, Judge Carney held that the Second Amendment includes an “attendant right . . . to acquire state-of-the-art handguns for self-defense.” But that strikes me as a problematic way to conduct the textual inquiry. It’s not clear where the “state-of-the-art” element comes from, and it seems to overlook both that certain weapons are outside the scope of the Second Amendment entirely and that the Court has repeatedly suggested the core purpose of the Second Amendment is self-defense. While it’s not entirely clear to me what “state-of-the-art” means, as used in the Boland decision, there cannot be a presumptive right to acquire and possess any state-of-the-art firearm, no matter how dangerous and unusual, and such a right certainly wouldn’t be necessary for self-defense. On March 31, in an opinion striking down the same California regulations in Renna v. Bonta, a judge in the Southern District of California performed a similar analysis but explained in more detail why he believed that the regulated conduct implicated the Second Amendment:
[T]he Court rejects Defendants’ argument and finds these provisions of the UHA are not regulations that merely impose conditions and qualifications on the commercial sales of arms but operate collectively as an outright prohibition on commercial sales of a wide segment of modern arms in common use for self-defense and other lawful purposes.
I think the analysis in Renna is somewhat more convincing because it ties the inquiry to the “common use” test, rather than simply declaring that there is a presumptive right to acquire any state-of-the-art handgun. With that said, Renna also illustrates the challenge of the “common use” standard: if a state restricts the sale of a certain firearm that is not commonly used at the time of regulation, but later becomes commonly used through sales in other states, then at some unknowable point in time the regulation crosses the threshold from permissible to impermissible (even though nothing has changed within the regulating state).
A version of the analysis the Supreme Court used in Minneapolis Star seems like a more natural fit for the Bruen step-one inquiry, when dealing with challenges to regulations that require new firearm models sold within a state to have certain safety features. Under this standard, a court would consider whether the regulatory scheme departs from how the state regulates other products—the answer appears to be yes, in this case—and then consider the state’s justification for this differential treatment. The greater the impact of the differential regulatory treatment, the heavier the state’s burden would be to justify it. Under this approach, my guess would be that the microstamping requirement certainly implicates the Second Amendment (assuming it is not standard practice for California to require all new models of other products, like cars, to have safety features that no currently manufactured product actually implements). The CLI and MDM requirements may be a closer call.
As to the decision’s historical analysis, the judge’s comparison between California’s modern provisions and historical proving, gunpowder storage, and serial number requirements appears broadly consistent with the level of generality used in Bruen. Yet there is, notably, no discussion of Bruen’s reference to cases “implicating . . . dramatic technological changes.” This language seems to encompass both technological changes that make firearms more lethal and technological changes that might make firearms safer. The Court provided little guidance on when technological advances actually trigger a “more nuanced” inquiry, but I think a challenge such as this one would require at least some examination of whether the CLI and MDM technologies are, in fact, dramatic advances that trigger a nuanced analysis (if Bruen is the baseline, one would expect the nuanced approach to be conducted at a slightly higher level of generality when comparing historical and modern burdens and justifications). If a hypothetical technology rendered certain firearms significantly safer at no (or de minimis) added cost to manufacturers or burden to gunowners, Bruen seems to suggest that regulations requiring the technology to be adopted for new models at some future point in time likely would not violate the Second Amendment despite a lack of tight historical analogues.