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Second Amendment Foundation petitioned U.S. Supreme Court review their challenge to California’s “Unsafe Handgun Act"


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BELLEVUE, WA The Second Amendment Foundation and Calguns Foundation have petitioned the U.S. Supreme Court for a review of their challenge to Californias Unsafe Handgun Act, a part of that states penal code that violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes.


SAF and Calguns are joined by private citizens Ivan Pena, Dona Croston, Roy Vargas and Brett Thomas. They are represented by attorneys Donald Kilmer of California and Alan Gura of Virginia. The case is known as Pena v. Horan.


Our challenge of the California Unsafe Handgun Act (UHA), if the high court accepts it for review, could be a critical wake-up call to lower federal courts that continue to employ what they call an interest-balancing approach to deciding gun control cases because that strategy is forbidden by the 2008 Heller decision, noted SAF founder and Executive Vice President Alan M. Gottlieb. It is time to bring a halt to what is essentially a revolt by the lower courts against the landmark Heller opinion, and the Pena case could provide that vehicle.


Californias Unsafe Handgun Act generally prohibits the manufacture, import or distribution of handguns that do not meet the states extremely restrictive design requirements under the state penal code. The result, as the plaintiffs contend in their petition for high court review, is that the state is gradually achieving a handgun ban because they cannot meet the impossible requirements, which include microstamping. That technology is not offered by any handgun manufacturer because it cannot be practically implemented, the petition notes.


The landmark Heller ruling cannot become just a footnote in history, Gottlieb observed, but that appears to be the ultimate goal if such laws as Californias are allowed to stand. We are hopeful that the Supreme Court, with the benefit of fresh perspectives from two recently-seated associate justices, agrees that it is time to once again visit the Second Amendment and further restore its rightful place as a cornerstone of the Bill of Rights.


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I hope this, Mance v. Whitaker or even another petition focusing on the level of scrutiny that shall be applied to 2nd cases is accepted this coming year resulting in the SCOTUS putting some serious bite into their previous Heller (combined with Wilson) ruling(s) that many lower courts willfully choose to ignore still to this day.

The dissent on Highland Park v Friedman by Scalia and Thomas when it was denied certori is a blatant of a callout of the lower courts for ignoring established constitutional law. Worse, they twist around words of rulings to mean the exact opposite of what their intended meaning is. My favorite part is where they state you can't adjudicate on feels. Highlighted important pieces in bold.






on petition for writ of certiorari to the united states court of appeals for the seventh circuit

No. 15133. Decided December 7, 2015

The petition for a writ of certiorari is denied.


Justice Thomas, with whom Justice Scalia joins, dissenting from the denial of certiorari.


[O]ur central holding in District of Columbia v. Heller, 554 U. S. 570 (2008), was that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (Thomas, J. , concurring in part and concurring in judgment).


Despite these holdings, several Courts of Appealsincluding the Court of Appeals for the Seventh Circuit in the decision belowhave upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410412 (2015). Because noncompliance with our Second Amendment precedents warrants this Courts attention as much as any of our precedents, I would grant certiorari in this case.




The City of Highland Park, Illinois, bans manufacturing, selling, giving, lending, acquiring, or possessing many of the most commonly owned semiautomatic firearms, which the City branded Assault Weapons. See Highland Park, Ill., City Code §§136.001©, 136.005 (2015), App. to Pet. for Cert. 65a, 71a. For instance, the ordinance criminalizes modern sporting rifles (e.g., AR-style semiautomatic rifles), which many Americans own for lawful purposes like self-defense, hunting, and target shooting. The City also prohibited Large Capacity Magazines, a term the City used to refer to nearly all ammunition feeding devices that accept more than ten rounds. §136.001(G), id.,at 70a.


The City gave anyone who legally possessed an Assault Weapon or Large Capacity Magazine 60 days to move these items outside city limits, disable them, or surrender them for destruction. §136.020, id., at 73a. Anyone who violates the ordinance can be imprisoned for up to six months, fined up to $1,000, or both. §136.999, id., at 74a.


Petitionersa Highland Park resident who sought to keep now-prohibited firearms and magazines to defend his home, and an advocacy organizationbrought a suit to enjoin the ordinance on the ground that it violates the Second Amendment. The District Court for the Northern District of Illinois granted summary judgment to the City.


A divided panel of the Seventh Circuit affirmed. The panel majority acknowledged that the prohibited weapons can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than larger-caliber pistols or revolvers, and thus [h]ouseholders too frightened or infirm to aim carefully may be able to wield them more effectively. 784 F. 3d, at 411.


The majority nonetheless found no constitutional problem with the ordinance. It recognized that Heller holds that a law banning the possession of handguns in the home . . . violates the Second Amendment. 784 F. 3d, at 407. But beyond Hellers rejection of banning handguns in the home, the majority believed, Heller and McDonald leave matters open on the scope of the Second Amendment. 784 F. 3d, at 412. The majority thus adopted a new test for gauging the constitutionality of bans on firearms: [W]e [will] ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, . . . and whether law-abiding citizens retain adequate means of self-defense. Id., at 410 (internal quotation marks omitted).


Judge Manion dissented, reasoning that both the ordinance and this courts opinion upholding it are directly at odds with the central holdings of Heller and McDonald. Id., at 412.




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. We explained in Heller and McDonald that the Second Amendment guarantee the individual right to possess and carry weapons in case of confrontation. Heller, supra, at 592; see also McDonald, supra, at 767769. We excluded from protection only those weapons not typically possessed by law-abiding citizens for lawful purposes. Heller, 554 U. S., at 625. And we stressed that [t]he very enumeration of the right takes out of the hands of government even the Third Branch of Governmentthe power to decide on a case-by-case basis whether the right is really worth insisting upon. Id., at 634 (emphasis deleted).


Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. See 784 F. 3d, at 407, 412. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by the political process and scholarly debate. Id., at 412. But Heller repudiates that approach. We explained in Heller that since th[e] case represent[ed] this Courts first in-depth examination ofthe Second Amendment, one should not expect it to clarify the entire field. 554 U. S., at 635. We cautioned courts against leaving the rest of the field to the legislative process: Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. Id., at 634635.


Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms were common at the time of ratification in 1791. 784 F. 3d, at 410. But we said in Heller that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. 554 U. S., at 582.


The Seventh Circuit alternatively asked whether the banned firearms relate to the preservation or efficiency of a well regulated militia. 784 F. 3d, at 410 (internal quotation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms. Ibid. But that ignores Hellers fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. 554 U. S., at 592, 627629. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. We explained that Congress retains plenary authority to organize the militia, not States. Id., at 600 (emphasis added). Because the Second Amendment confers rights upon individual citizens not state governments it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.


Lastly, the Seventh Circuit considered whether law-abiding citizens retain adequate means of self-defense, and reasoned that the Citys ban was permissible because f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners. 784 F. 3d, at 410, 411. Although the court recognized that Heller held that the availability of long guns does not save a ban on handgun ownership, it thought that Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers . . . gives householders adequate means of defense. Id., at 411.


That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purposeregardless of whether alternatives exist. 554 U. S., at 627629. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624625. The Citys ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767768; Heller, supra, at 628629.


The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the laws potential policy benefits. See 784 F. 3d, at 411412. The court conceded that handgunsnot assault weaponsare responsible for the vast majority of gun violence in the United States. Id., at 409. Still, the court concluded, the ordinance may increase the publics sense of safety, which alone is a substantial benefit. Id.,at 412. Heller, however, forbids subjecting the Second Amendments core protection . . . to a freestanding interest-balancing approach. Heller, supra, at 634. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.




The Courts refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Courts willingness to summarily reverse courts that disregard our other constitutional decisions. E.g., Maryland v. Kulbicki, ante, at 1 (per curiam) (summarily reversing because the court below applied Strickland v. Washington, 466 U. S. 668 (1984), in name only); Grady v. North Carolina, 575 U. S. ___ (2015) (per curiam) (summarily reversing a judgment inconsistent with this Courts recent Fourth Amendment precedents); Martinez v. Illinois, 572 U. S. ___, ___ (2014) (per curiam) (slip op., at 10) (summarily reversing judgment that rested on an understandable double jeopardy holding that nonetheless r[an] directly counter to our precedents).


There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

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  • 2 months later...

For those interested, the state filed their response in Pena v Horan a week ago:




While you're at it, read the other amici:



I believe Pena has 30 days to respond to the state before it's distributed for conference. Alan Gura (of DC v Heller and McDonald v Chicago fame) is the lead counsel.


Also of note, Gura is lead counsel for Frederic Russell Mance v William P Barr. This is in regards to the prohibition on interstate handgun sales without the involvement of an FFL. It has been distributed for conference on 3/29. Unless it's delayed, we'll know whether or not the Supreme Court takes up another Second Amendment case very soon.

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  • 2 weeks later...


I believe Pena has 30 days to respond to the state before it's distributed for conference. Alan Gura (of DC v Heller and McDonald v Chicago fame) is the lead counsel.


Also of note, Gura is lead counsel for Frederic Russell Mance v William P Barr. This is in regards to the prohibition on interstate handgun sales without the involvement of an FFL. It has been distributed for conference on 3/29. Unless it's delayed, we'll know whether or not the Supreme Court takes up another Second Amendment case very soon.

Cases are often distributed for conference before a response (Brief In Opposition) is filed. This is a somewhat unusual case in that all three cert stage briefs were filed before it was distributed for a conference (currently 4/20). Supreme Court Rules can be found here -> https://www.supremecourt.gov/filingandrules/2017RulesoftheCourt.pdf

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  • 3 weeks later...
Two Second Amendment cert petitions are to be considered in this Friday's #SCOTUS private conference:

Fredric Russell Mance, Jr., et al v. Matthew G. Whitaker, Acting Attorney General, et al. – Federal ban on the interstate sale of handguns – The Fifth Circuit denied the petition for rehearing en banc by a vote of 8-7 – Cert petition filed on November 19, 2018. Response due on February 21, 2019. Rescheduled on 3/27/2019. DISTRIBUTED for Conference of 4/12/2019.

Ivan Pena, et al., v. Stephen Lindley – Cert Filed December 28, 2018. The court of appeals decision upheld the California “safe handgun” roster, loaded chamber indicator, and microstamping. Response due March 6, 2019. DISTRIBUTED for Conference of 4/12/2019.

Links to the SCOTUS dockets at the bottom of this page at my website -> https://californiaopencarry.com/status-of-my-federal-open-carry-lawsuit/

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