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Pena v. Lindley

United States Court of Appeals, Ninth Circuit

August 3, 2018

Ivan Pena; Roy Vargas; Dona Croston; Brett Thomas; Second Amendment Foundation, Inc.; Calguns Foundation, Inc., Plaintiffs-Appellants,
v.
Stephen Lindley, Chief of the California Department of Justice Bureau of Firearms, Defendant-Appellee.

          Argued and Submitted March 16, 2017 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding D.C. No. 2:09-cv-01185-KJM-CKD

          Alan Gura (argued), Gura & Possessky PLLC, Alexandria, Virginia; Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer, San Jose, California; for Plaintiffs-Appellants.

          Anthony R. Hakl (argued), Deputy Attorney General; Stepan A. Haytayan, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellee.

          C.D. Michel and Clinton B. Monfort, Michel & Associates P.C., Long Beach, California, for Amici Curiae National Rifle Association of America Inc. and California Rifle and Pistol Association.

          Lance A. Selfridge and Daniel C. DeCarl, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California, for Amici Curiae National Shooting Sports Foundation Inc. and Sporting Arms and Ammunition Manufacturers' Institute Inc.

          Grace R. DiLaura and David H. Fry, Munger Tolles & Olson LLP, San Francisco, California, for Amicus Curiae Law Center to Prevent Gun Violence.

          Eric A. Krause, White & Case LLP, Palo Alto, California; Daniel Levin, White & Case LLP, Washington, D.C.; Jonathan Lowy, Brady Center to Prevent Gun Violence, Washington, D.C.; for Amicus Curiae Brady Center to Prevent Gun Violence.

          Andrew Esbenshade, Amy E. Pomerantz, and Michael R. Leslie, Caldwell Leslie & Proctor PC, Los Angeles, California, for Amicus Curiae Office of the Los Angeles City Attorney.

          Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC, Washington, D.C.; J. Adam Skaggs and Mark Anthony Frassetto, Everytown for Gun Safety, New York, New York; for Amicus Curiae Everytown for Gun Safety.

          Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's summary judgment in favor of California in an action challenging three provisions of California's Unsafe Handgun Act.

         California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun's make, model, and serial number onto each fired shell casing. Plaintiffs asserted that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment.

         The panel held that it did not need to reach the question of whether the challenged provisions fell within the scope of the Second Amendment's right to bear arms because, even assuming coverage, the provisions passed constitutional muster. Applying intermediate scrutiny, the panel held that the Act only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on purchasers. The panel held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with California's interest in public safety. The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. The panel rejected plaintiffs' claim that they have a constitutional right to purchase a particular handgun and their claim that the provisions violate the Equal Protection Clause.

         Concurring in part and dissenting in part, Judge Bybee agreed that intermediate scrutiny applied to plaintiffs' Second Amendment challenge. Judge Bybee also agreed that there was a reasonable fit between the chamber load indicator and magazine detachment mechanism requirements and the State's substantial interest in enhancing public safety. Judge Bybee could not conclude, however, that the State was entitled to summary judgment on plaintiff's challenge to the microstamping requirement given the state's demanding testing protocol, which plaintiffs alleged acts as a prohibition on the commercial sale of new handguns in California. He would reverse the district court and remand for further proceedings.

          OPINION

          McKEOWN, CIRCUIT JUDGE

         Unsurprisingly, the Second Amendment says nothing about modern technology adopted to prevent accidental firearm discharges or trace handguns via serial numbers microstamped onto fired shell casings. The question before us is whether making specific commercial gun sales contingent on incorporating these innovations violates the constitution. This appeal stems from a challenge to three provisions of California's Unsafe Handgun Act ("UHA"). For safety reasons, California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun's make, model, and serial number onto each fired shell casing.

         Ivan Pena, along with several other individuals and two nonprofit organizations, the Second Amendment Foundation, Inc. and the Calguns Foundation, Inc. (collectively, "Purchasers"), challenge the constitutionality of the UHA. Purchasers argue that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment. We do not need to reach the question of whether these limitations fall within the scope of the Second Amendment's right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers. We reject Purchasers' claim that they have a constitutional right to purchase a particular handgun. Nor do the provisions violate the Equal Protection Clause. We affirm the district court's grant of summary judgment in favor of California.

         BACKGROUND

         I. The Unsafe Handgun Act

         As its name implies, California's Unsafe Handgun Act (UHA) seeks to reduce the number of firearm deaths in the state. The primary enforcement clause reads:

A person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends an unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.

         Cal. Penal Code § 32000(a).[1] An "unsafe handgun" is defined as "any pistol, revolver, or other firearm capable of being concealed upon the person" and that does not have certain safety devices, meet firing requirements, or satisfy drop safety requirements. Id. § 31910.

         The UHA charges the California Department of Justice ("CDOJ") with maintaining a roster of all handgun models that have been tested by a certified testing laboratory, "have been determined not to be unsafe handguns," and may be sold in the state. Id. § 32015(a).[2] Effectively, the Act presumes all handguns are unsafe unless the CDOJ determines them "not to be unsafe." Handguns with purely cosmetic differences (including a difference in finish, grip material, and shape or texture of the grip) from a handgun already on the roster need not meet these criteria. See id. § 32030.

         Over time, California has added new requirements for inclusion on the roster. Since 2007, new models of semiautomatic pistols must be equipped with both a chamber load indicator (CLI) and a magazine detachment mechanism (MDM)-safety features designed to limit accidental discharges that occur when someone mistakenly believes no round is in the chamber. Id. § 31910(b)(5). A CLI is a "device that plainly indicates that a cartridge is in the firing chamber." Id. § 16380. An MDM is "a mechanism that prevents a semiautomatic pistol that has a detachable magazine from operating to strike the primer of ammunition in the firing chamber when a detachable magazine is not inserted in the semiautomatic pistol." Id. § 16900.

         Since 2013, new models of semiautomatic pistols need to include a feature called "microstamping": each such pistol must imprint two sets of microscopic arrays of characters that identify the make, model, and serial number of the pistol onto the cartridge or shell casing of each fired round. Id. § 31910(b)(7).[3] Designed to help solve crimes, microstamping provides law enforcement with identifying information about a handgun fired at a crime scene. See Fiscal v. City & Cty. of S.F., 70 Cal.Rptr.3d 324, 337 (Ct. App. 2008).

         There are exceptions to these requirements. Most significant, the required features are inapplicable to models of semiautomatic pistols that were "already listed on the roster" when such requirements became effective. Cal. Penal Code § 31910(b)(5), (7). In addition, firearms sold to law enforcement officials and certain curios or relics (as defined in the Code of Federal Regulations) are exempt. Cal. Penal Code § 32000(b)(3), (4). Pistols used in Olympic target shooting are exempt, see id. § 32105, as are certain single action revolvers and single shot pistols of either a certain age (a curio or relic made before 1900) or a certain size (greater than seven-and-a-half inches), see id. §§ 32000(b)(3), 32100. Other exemptions include firearms transferred between private parties, see id. § 32110(a), firearms delivered for consignment sale or as collateral for a pawnbroker loan, see id. § 32110(f), and firearms used solely as props for video production, see id. § 32110(h).

         II. District Court Proceedings

         Seeking to enjoin the state from enforcing the UHA, in 2009 Purchasers sued the Chief of the CDOJ Bureau of Firearms Stephen Lindley on two constitutional theories. Purchasers claimed that the CLI, MDM, and microstamping requirements restricted access to the firearms of their choice, in violation of the Second Amendment.[4] Purchasers also claimed that the UHA's roster scheme transgressed the Equal Protection Clause of the Fourteenth Amendment by making irrational exceptions.

         After cross-motions, briefing, and a hearing, the district court granted summary judgment to California. Citing the Supreme Court's landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the district court characterized the UHA provisions as "laws imposing conditions or qualifications on the commercial sale of firearms," and thus concluded that the laws presumptively did not violate the Second Amendment. The district court observed that the provisions were conditions on the sale of firearms, not prohibitions, and that Purchasers maintained access to nearly 1, 000 types of firearms on the roster, all of which were approved for sale in California. Purchasers' "[i]nsistence upon . . . particular" handguns, the court concluded, simply "f[e]ll outside the scope of the right to bear arms."

         Analysis

         I. Second Amendment

         A. The Supreme Court's Heller Framework

         The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In Heller, the Supreme Court held that the Second Amendment protects an individual right to possess a "lawful firearm in the home operable for the purpose of immediate self-defense." 554 U.S. at 635.[5]

         Whether the UHA violates Purchasers' Second Amendment rights is framed by a two-step inquiry established in Heller. We first consider whether the Act "burdens conduct protected by the Second Amendment," and if it does, we "apply an appropriate level of scrutiny." Jackson v. City & Cty. of S.F., 746 F.3d 953, 960 (9th Cir. 2014).[6]

         Whether a challenged law burdens conduct protected by the Second Amendment depends on "the historical understanding of the scope of the right," including "whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected." Jackson, 746 F.3d at 960. In Heller, the Supreme Court set forth non-exhaustive categories of "presumptively lawful regulatory measures" that are presumed to be consistent with the historical scope of the Second Amendment:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 & n.26. The Court, however, did not define the contours of these "presumptively lawful" categories. See id. at 635 ("[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when these exceptions come before us.").

         In the decade since Heller, the courts of appeals have spilled considerable ink in trying to navigate the Supreme Court's framework. Perhaps that is why the Seventh Circuit observed, "[w]e do not think it profitable to parse these passages of Heller as if they contained an answer." United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc). Our sister circuits have struggled to unpack the different meanings of "presumptively lawful." See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010) ("On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny."); United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010) ("It is unclear to us whether Heller was suggesting that 'longstanding prohibitions' such as these were historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for some other reason."); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1253 (D.C. Cir. 2011) (citations omitted) ("Heller tells us 'longstanding' regulations are 'presumptively lawful,' that is, they are presumed not to burden conduct within the scope of the Second Amendment.").

         Our circuit similarly has strained to interpret the phrase "conditions and qualifications on the commercial sale of arms." Viewing that language as "sufficiently opaque" to "rely[] on it alone," we instead conducted a full textual and historical review of the scope of the Second Amendment in a recent challenge. Teixeira v. Cty. Of Alameda, 873 F.3d 670, 683 (9th Cir. 2017) (en banc).

         The opaqueness of the presumption of legality for "conditions and qualifications on the commercial sale of arms" likely explains why we and other courts often have assumed without deciding that a regulation does burden conduct protected by the Second Amendment rather than parse whether the law falls into that exception. In these cases, the court avoided having to define the contours of the commercial sales category because it assumed the Second Amendment applied and upheld the restriction under the appropriate level of constitutional scrutiny.[7]

         We, too, follow this well-trodden and "judicious course." Wollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013). We assume without deciding that the challenged UHA provisions burden conduct protected by the Second Amendment because we conclude that the statute is constitutional irrespective of that determination. By making this assumption, we bypass the constitutional obstacle course of defining the parameters of the Second Amendment's individual right in the context of commercial sales. Thus, we have no occasion to engage with the dissent's extensive exegesis on this point.

         B. Determination of the Appropriate Level of Scrutiny

         Because we assume that the UHA implicates Purchasers' right to bear arms, our next task is to determine the appropriate level of scrutiny for review of the California requirements. Purchasers stump for strict scrutiny while California invites intermediate, at most.

         Our post-Heller decisions generally have applied intermediate scrutiny to firearms regulations. See Silvester, 843 F.3d at 822 (upholding a ten-day waiting period on the sale of firearms to those who already own one); Wilson, 835 F.3d at 1092 (upholding ban on possession by holders of state medical marijuana cards); Fyock, 779 F.3d at 1000-01 (refusing to preliminarily enjoin an ordinance banning possession of high-capacity magazines); Jackson, 746 F.3d at 966, 970 (upholding ordinances requiring firearms to be stored in a locked container when not carried on the person and forbidding the purchase of hollow-point ammunition); United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013) (upholding a ban on firearm possession by people convicted of domestic violence).

         Which level of scrutiny to apply depends on "how close the law comes to the core of the Second Amendment right" and "the severity of the law's burden on the right." Id. at 1138. We strictly scrutinize a "law that implicates the core of the Second Amendment right and severely burdens that right." Silvester, 843 F.3d at 821. Otherwise, we apply intermediate scrutiny if the law "does not implicate the core Second Amendment right or does not place a substantial burden on that right." Fyock, 779 F.3d at 998-99.

         Consistent with our threshold decision not to assess whether the California restrictions fall within the Second Amendment, we need not answer conclusively whether the UHA's restrictions implicate the core Second Amendment right of "self defense of the home." Silvester, 843 F.3d at 821 (citing Heller, 554 U.S. at 628-29). Because the restrictions do not substantially burden any such right, intermediate scrutiny is appropriate.

         At the outset, it is important to understand what the statute does and does not do vis-à-vis handguns, the "quintessential self-defense weapon." Heller, 554 U.S. at 629. Moving forward, the statute limits commercial sales of new models of semiautomatic pistols to those with the CLI, MDM, and microstamping protections. Importantly, the UHA "grandfathers" hundreds of handgun models on the approved guns roster that do not meet the new requirements. The statute does not restrict possession of handguns in the home or elsewhere (with or without CLI, MDM, and microstamping features). The statute also includes a number of exemptions. For example, the statute does not affect the sale of off-roster existing handguns in private sales transactions. Nor are out-of-state sales regulated.

         In weighing the severity of the burden, we are guided by a longstanding distinction between laws that regulate the manner in which individuals may exercise their Second Amendment right, and laws that amount to a total prohibition of the right. See Chovan, 735 F.3d at 1138; accord Heller II, 670 F.3d at 1251-58 (reasoning that gun-registration requirements do not severely burden the Second Amendment because they do not "prevent[] an individual from possessing a firearm in his home or elsewhere"); Marzzarella, 614 F.3d at 97 (distinguishing between a law requiring handguns to bear original serial numbers, and Heller's law prohibiting the possession of handguns). The UHA is of the former variety-regulation of the manner of use, not possession-and thus affects Second Amendment rights less severely. See Silvester, 843 F.3d at 827 ("[L]aws which regulate only the 'manner in which persons may exercise their Second Amendment rights' are less burdensome than those which bar firearm possession completely." (citation omitted)).

         The CLI, MDM, and microstamping requirements place almost no burden on the physical exercise of Second Amendment rights. There is no evidence that CLIs or microstamping interferes with the functioning of any arms. Although MDMs might prevent a gun from firing at will, it is likely a rare occurrence when someone has time to put a round from outside a magazine in the chamber without inserting the magazine itself. CLIs and MDMs are designed to make the handgun owner aware of when there is ammunition in the chamber. That feature not only prevents accidental discharges-which itself protects "hearth and home"-but also informs the owner when the gun is loaded so that the weapon may be fired in self-defense.

         Perhaps recognizing the absence of a physical burden, Purchasers assert a substantial burden because the UHA precludes them from buying in California the majority of Smith & Wesson's handguns, two of Ruger's most popular models, and the fourth generation of Glocks. But being unable to purchase a subset of semiautomatic weapons, without more, does not significantly burden the right to self-defense in the home. See Heller, 554 U.S. at 626 ("[T]he Second Amendment right is not unlimited. . . . [T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.").

         Indeed, all of the plaintiffs admit that they are able to buy an operable handgun suitable for self-defense-just not the exact gun they want. Purchasers have adduced little evidence that the handguns unavailable for purchase in California are materially more effective for self-defense than handguns currently for sale in the state.[8] See Jackson, 746 F.3d at 968 (looking at self-defense effectiveness during this inquiry).[9]Contrary to Purchasers' assertion, the severity of the burden is not "obvious[]."

         Any burden on the right is lessened by the UHA's exceptions, which allow for the purchase of firearms that do not have the CLI, MDM, and microstamping features. See Chovan, 735 F.3d at 1138 (holding that a "substantial[] burden[] . . . is lightened by . . . exceptions"). For example, Purchasers may buy handguns without the three features if such firearms are grandfathered on the roster, and may buy off-roster handguns in private transactions. There is no evidence in the record that the hundreds of firearms available for purchase are inadequate for self-defense. See Decastro, 682 F.3d at 168 ("[A] law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.").

         Because the UHA does not effect a substantial burden, we conclude that intermediate scrutiny is adequate to protect the claimed Second Amendment rights at issue here.

         C. Application of Intermediate Scrutiny to the UHA Provisions

         Intermediate scrutiny requires (1) a significant, substantial, or important government objective, and (2) a "reasonable fit" between the challenged law and the asserted objective. Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 965 (9th Cir. 2014). The government must show that the regulation "promotes a 'substantial government interest that would be achieved less effectively absent the regulation, '" but not necessarily that the chosen regulation is the "least restrictive means" of achieving the government's interest. Fyock, 779 F.3d at 1000 (quoting Chovan, 735 F.3d at 1139).

         When considering California's justifications for the statute, we do not impose an "unnecessarily rigid burden of proof," and we allow California to rely on any material "reasonably believed to be relevant" to substantiate its interests in gun safety and crime prevention. Mahoney v. Sessions, 871 F.3d 873, 881 (9th Cir. 2017). Hence, our analysis of whether there is a "reasonable fit between the government's stated objective and the regulation" considers "the legislative history of the enactment as well as studies in the record or cited in pertinent case law." Fyock, 779 F.3d at 1000 (9th Cir. 2015) (internal citations marks omitted).

         It is important to note that we are weighing a legislative judgment, not evidence in a criminal trial. Because legislatures are "not obligated, when enacting [their] statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review," we should not conflate legislative findings with "evidence" in the technical sense. Minority Television Project, Inc. v. F.C.C., 736 F.3d 1192, 1199 (9th Cir. 2013) (en banc) (internal citations and quotation marks omitted).

         Nor do we substitute our own policy judgment for that of the legislature. Id. When policy disagreements exist in the form of conflicting legislative "evidence," we "owe [the legislature's] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions." Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (internal citations and quotation marks omitted); see also id. ("In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress." (internal quotation marks omitted)). "It is not our function to appraise the wisdom of [California's] decision to require" new semiautomatic gun models manufactured in-state to incorporate new technology; instead, the state "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 52 (1986). These principles apply equally to benchmarking the efficacy as well as the technological feasibility of the regulations. Therefore, in the face of policy disagreements, or even conflicting legislative evidence, "we must allow the government to select among reasonable alternatives in its policy decisions." Peruta v. Cty. of San Diego, 824 F.3d 919, 944 (9th Cir. 2016) (en banc) (Graber, J., concurring), cert. denied, 137 S.Ct. 1995 (2017); accord Kachalsky v. Cty. of Westchester, 701 F.3d 81, 99 (2d Cir. 2012) ("It is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments.").

         Our role is not to re-litigate a policy disagreement that the California legislature already settled, and we lack the means to resolve that dispute. Fortunately, that is not our task. See City of Renton, 475 U.S. at 51-52. And, as required by precedent, California's evidence "fairly support[ed]" its conclusions. Jackson, 746 F.3d at 969.

         1. The CLI and MDM Requirements

         There is no doubt that the governmental safety interests identified for the CLI and MDM requirements are substantial. California represents that the legislature's goal in requiring CLIs and MDMs "was targeting the connection between cheaply made, unsafe handguns and injuries to firearms operators and crime." These interests are undoubtedly adequate. See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997); Jackson, 746 F.3d at 965-66; see also Silvester, 843 F.3d at 827 ("[The statute at issue] has . . . the objective of promoting safety and reducing gun violence. The parties agree that these objectives are important. The first step is undisputedly satisfied.").

         The CLI and MDM requirements also reasonably fit with California's interest in public safety. A CLI lets someone know that a gun is loaded without even having to pick it up to check; it acts as a red flag for those handling the gun who may have forgotten that it was loaded. An MDM prevents a firearm from shooting unless a magazine is inserted. Without an MDM, a magazine-equipped pistol can be fired if there is a bullet in the chamber, even if the magazine has not been inserted.

         In one sense then, an MDM disables a gun capable of providing self-defense. But the practical effect strikes us as a rare instance. Because it is more likely that people will associate firearms that have magazines with loaded firearms and firearms that do not have magazines with unloaded firearms, the legislature could reasonably predict that the MDM could prevent accidental discharges of the weapon. The legislative judgment that preventing cases of accidental discharge outweighs the need for discharging a gun without the magazine in place is reasonable. The legislative history cites studies confirming this common-sense conclusion. Purchasers do not provide any reliable evidence that these studies are incorrect or that CLIs or MDMs will clearly thwart, rather than advance, California's goal of saving lives by preventing accidental discharges. The fit between the prevention of accidental discharges and the requiring of CLIs and MDMs on not-yet-rostered handguns is a reasonable one.

         Purchasers argue that the UHA's requirements have "nothing to do with consumer safety" because the UHA "exempts specially-favored individuals whose safety is no less important[] [and] mandates alleged 'safety' features that California instructs consumers to ignore as unreliable." Purchasers point to exemptions in the UHA for law enforcement, entertainment industry-related props, intra-family transfers, and private-party transfers. See, e.g., Cal. Penal Code §§ 32000(b)(4) (law enforcement), 32110(a) (private party transfer), 32110(h) (entertainment industry props), 27875 (intra-family transfers). Although Purchasers are correct that these groups are exempt from the UHA, that underinclusiveness does not doom the MDM and CLI requirements under intermediate scrutiny. See Minority Television Project, 736 F.3d at 1204 ("Unlike strict scrutiny, intermediate scrutiny does not require that the means . . . be the least restrictive."). The exceptions are not so pervasive or without basis as to make the fit unreasonable.

         Purchasers further fault the UHA because "not every aspect of the roster obviously advances the state's regulatory interest." Purchasers argue that once a gun has been deemed "safe" and put on the roster and then falls off the roster for administrative reasons, California has no interest in deeming it "unsafe." We do not agree. Although purely administrative reasons may not have anything to do with a weapon's performance and safety-just as not having a current driver's license is not proof that the driver is not a safe driver-we will not interfere with the orderly administration of California's roster. We are not here to order California to re-list weapons where the manufacturers or importers have otherwise failed to comply with California law.

         Purchasers also argue that California "teaches consumers to disregard [CLIs] and [MDMs], [so] requiring handguns to have these features actually impedes the state's safety interests." Amicus briefs filed in support of Purchasers add that the regulations, by encouraging people to look for or rely on a CLI or a MDM, respectively, "inevitably discourage[] individuals from actually checking to see whether a firearm is loaded." This, amici tell us, "may increase the likelihood of an unintentional discharge." We disagree. California does not instruct consumers to disregard CLIs and MDMs. Instead, the regulations simply mean that consumers should not rely entirely on them or assume that just because a magazine is out or the CLI is not popped up, the weapon is incapable of being dangerous. "Treat all guns as if they are loaded," California tells gun-owners. That is just good, old-fashioned common sense. Cf. United States v. Carona, 660 F.3d 360, 368-69 (9th Cir. 2011) ("That some wear a belt and suspenders does not prove the inadequacy of either to hold up the pants, but only the cautious nature of the person wearing the pants." (citation omitted)).

         We conclude that the CLI and MDM regulations pass intermediate scrutiny. See Draper v. Healey, 98 F.Supp.3d 77, 85 (D. Mass. 2015) (holding that Massachusetts' CLI and MDM regulations pass "any standard of scrutiny"), aff'd on other grounds, 827 F.3d 1 (1st Cir. 2016).

         2. The Microstamping Requirement

         The UHA's microstamping requirement also passes constitutional muster under intermediate scrutiny. Purchasers acknowledge that California's two stated objectives for the microstamping requirement-public safety and crime prevention-are substantial government interests. Countless cases support this concession. See, e.g., Schenck, 519 U.S. at 376 (public safety); United States v. Salerno, 481 U.S. 739, 750 (1987) (crime prevention). More specifically, "preserving the ability of law enforcement to conduct serial number tracing-effectuated by limiting the availability of untraceable firearms-constitutes a substantial or important interest." United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010). Serial number tracing "enabl[es] law enforcement to gather vital information ...


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