A moderator said someone could start a thread about this even though the posts in another thread were tossed in the trash for not being related to the original topic, so I am doing that. I will try to summarize the entire thread to this point. Sorry for it being so long.
In effect CA has a requirement that for a pistol (semi-automatic handgun) to be sold in CA, it must make it on the approved list of "safe" guns. One new requirement is microstamping technology. The idea is that the cartridge, which is ejected by a pistol but not a revolver, be marked with a serial number of sorts that identifies the gun. It is microscopic, and read by police forensics to trace the gun back to the last registered owner using existing data already in the system.
Nobody is arguing that this information is conclusive proof of anything. It is simply a lead in the investigation. I agree that in a perfect world it could be useful for law enforcement to associate shell casings at a crime scene with the individual who last owned the gun. It's fundamentally not much different than finding a fingerprint on a casing that matches somebody in the system. It could meaning nothing or crack a case wide open.
This technology, to the best of my knowledge, is not used in any mass production of pistols. The technology to sometimes have the weapon imprint the microstamping has been demonstrated to exist.
At first the technology was on the firing pin. It was soon realized that firing pins could be swapped, replaced, or filed with ordinary equipment to render the microstamping ineffective. Therefore, CA decided to require the encoding be in two locations on the weapon. The law doesn't spell out where it would go. It only requires that it be in two places, and that both imprint the information on each shell casing with "every" round fired.
This requirement was set to go into effect when the patent ran out on the microstamping technology such that any company could use it. That time has arrived.
Only "new" pistols are affected. Old pistols can continue to be sold in CA. However, the way CA law works, anytime a model is changed by a gun maker beyond a nominal cosmetic change, it must pass the safety tests all over again (such as the drop test). The microstamping requirement is part of the safety test.
This means that any gun maker who refuses to adopt the microstamping technology cannot modify any of its current weapons and still sell them in CA. For example, suppose Smith and Wesson has been selling the fictional HTTR Model 27 pistol for 30 years in the international market, improving its safety and reliability every few years. With this new law it cannot update this model any longer and still sell it in CA unless it also implements microstamping. Lots of weapons are now dropping off the list because of this.
Gun makers took CA to court basically arguing that since they don't believe the technology exists to meets CA law (not that microstamping doesn't exist, but that the technology itself won't satisfy CA law) that this would in effect be a ban on pistols. Outright bans on pistols have been ruled unconstitutional. The court right now is arguing that this backhanded potential ban is not a violation of the constitution. This is being appealed.
One key element at the heart of the debate is whether the technology exists to meet CA's legal requirements that every shell casing be imprinted by each of the two encodings on the weapon. In my review of court documents, the very best evidence that CA has referenced is insufficient.
Their best evidence comes from the person who held the patent, so there's some possible bias. I could not find the actual data to see if it was peer reviewed, so I have to reserve judgment on my confidence level. When it comes to science like this, it should be peer reviewed and then duplicated by others and peer reviewed.
As I read the evidence, it doesn't pass muster for CA's requirements. The lawyers for CA said in court that the encoding worked 97% of the time with the firing pin and 96% time on the breach on just one weapon tested with just 5 brands of ammunition. This means that their best evidence shows that it only works 93% of the time (96% x 97% to get the odds of both of the required imprints).
The law indicates that the "Attorney General may also approve a method of equal or greater reliability and effectiveness..." to the one describing microstamping. Equal still means two imprints on the shell casings. Greater could be three or more.
The CA lawyers in their filing seemed to be arguing against a straw man, which was that the gun makers said the technology didn't exist. Obviously the gun makers know it exists because they tested it and found it not to be reliable enough to meet the requirements of the law.
I agree. If the law said that a gun must not go off when dropped from six feet, and it still went off 7% of the time, would it pass that test? Of course not. So if the law says it must put the imprint in two places with every round fired, and it doesn't do that 7% of the time (the state's very best claim), did it pass that requirement? No.
The AG is wrong to say the technology exists to meet the law. CA's lawyers even argued that the gun makers have had plenty of time to make it better. Why would that matter if it already worked well enough to meet the law?
Any citizen could challenge the AG's declaration in court and get it reversed. Another AG could reverse it (it's an elected position). Any AG, including the one who made the first declaration, could reverse it citing "further review of the evidence."
One person in the other thread challenged the notion of the AG being able to reverse an opinion asking for evidence that this is possible when in reality the evidence is a few hundred years of how the law works. There is nothing binding the AG from changing her mind, and we expect the AG to react to new evidence when it comes along. The DEA is in charge of deciding what drugs go on which schedules, making them go from extremely illegal to perfectly legal. Congress didn't make pot illegal - the DEA did. The DEA just recently moved hydrocodone from Schedule III to the much more restrictive Schedule II based on reviewing new evidence. Hydrocodone didn't change. That's just it works when a legislature sets up guidelines and allows the executive branch to implement those guidelines. Not only can they do reevaluate, they are expected to.
So one very real danger here is to look at what happens if gun makers decided to implement the current unreliable technology. Any model they modify has to be recertified. They submit test results with a 94% success rate. The AG says, "Sorry, the law says every round fired. I don't know why you couldn't get the technology working on your guns and that brand of ammo with the thick lacquer, but it just doesn't work. One guy working by himself got it to 93%. Surely with your resources and knowing the law you could have gotten it working. Try again."
Each of these guns now falls off the list. They can't go back to the older model. They just spent money and lost the ability to sell a model.
Another scenario is simply a new AG reversing the opinion of the current AG. And, as I mentioned, any citizen could challenge it. And to be quite honest, I would have no issue with a citizen challenging the AG for allowing gun makers to "circumvent" what is really a pretty clear requirement of the law. CA could most certainly modify the law to be 50% of the rounds fired on the majority of brands of ammunition, but they are sticking to their guns (pardon the pun).
Suppose the AG and the courts accept the 93% success rate despite the letter of the law, are gun companies still at risk?
Yes. Suppose you have a rich and unscrupulous person wanting to use the law as a backdoor to ban a bunch of handguns. He could create pistol rounds with a special lacquer (I mention lacquer because tests have shown that lacquer inhibits transfer) that defeats the microstamping. He or she could put it on the market, point to it and say, "No pistol out there meets the requirement of the law because it doesn't work on this ammo. Period."
Or it could just be a rogue company wanting to make bucks with the criminal element that creates the ammo, and an honest citizen suing to force the gun companies to counter this new technology. The pistols still end up banned.
It was also mentioned in the other thread that the police are not subject to these requirements. They can buy whatever they want. I wonder why that is? Do police weapons not get stolen or "borrowed" without the officer's knowledge? Do LEOs not commit crimes? Don't we want to know if a shell casing found at a crime scene belongs to a cop versus simply being a shell casing from someone whose weapon doesn't have the microstamping?
I think from this exemption we an infer that CA lawmakers knew that this requirement was very likely to severely restrict pistol sales. They didn't want the police to be burdened, just citizens.
Anyway, I think this recaps the substance of the various posts tossed on the trash minus all the snark and bickering. Please feel free to quote individual parts as you see fit - no need to quote the whole damn thing since it covers several ideas presented by different members in different posts over probably a week's time.
I apologize if I did not paraphrase your ideas well. No need to get mad at my mischaracterization because it was done in good faith - just present your views in your own words and we can all go from there.
In effect CA has a requirement that for a pistol (semi-automatic handgun) to be sold in CA, it must make it on the approved list of "safe" guns. One new requirement is microstamping technology. The idea is that the cartridge, which is ejected by a pistol but not a revolver, be marked with a serial number of sorts that identifies the gun. It is microscopic, and read by police forensics to trace the gun back to the last registered owner using existing data already in the system.
Nobody is arguing that this information is conclusive proof of anything. It is simply a lead in the investigation. I agree that in a perfect world it could be useful for law enforcement to associate shell casings at a crime scene with the individual who last owned the gun. It's fundamentally not much different than finding a fingerprint on a casing that matches somebody in the system. It could meaning nothing or crack a case wide open.
This technology, to the best of my knowledge, is not used in any mass production of pistols. The technology to sometimes have the weapon imprint the microstamping has been demonstrated to exist.
At first the technology was on the firing pin. It was soon realized that firing pins could be swapped, replaced, or filed with ordinary equipment to render the microstamping ineffective. Therefore, CA decided to require the encoding be in two locations on the weapon. The law doesn't spell out where it would go. It only requires that it be in two places, and that both imprint the information on each shell casing with "every" round fired.
This requirement was set to go into effect when the patent ran out on the microstamping technology such that any company could use it. That time has arrived.
Only "new" pistols are affected. Old pistols can continue to be sold in CA. However, the way CA law works, anytime a model is changed by a gun maker beyond a nominal cosmetic change, it must pass the safety tests all over again (such as the drop test). The microstamping requirement is part of the safety test.
This means that any gun maker who refuses to adopt the microstamping technology cannot modify any of its current weapons and still sell them in CA. For example, suppose Smith and Wesson has been selling the fictional HTTR Model 27 pistol for 30 years in the international market, improving its safety and reliability every few years. With this new law it cannot update this model any longer and still sell it in CA unless it also implements microstamping. Lots of weapons are now dropping off the list because of this.
Gun makers took CA to court basically arguing that since they don't believe the technology exists to meets CA law (not that microstamping doesn't exist, but that the technology itself won't satisfy CA law) that this would in effect be a ban on pistols. Outright bans on pistols have been ruled unconstitutional. The court right now is arguing that this backhanded potential ban is not a violation of the constitution. This is being appealed.
One key element at the heart of the debate is whether the technology exists to meet CA's legal requirements that every shell casing be imprinted by each of the two encodings on the weapon. In my review of court documents, the very best evidence that CA has referenced is insufficient.
Their best evidence comes from the person who held the patent, so there's some possible bias. I could not find the actual data to see if it was peer reviewed, so I have to reserve judgment on my confidence level. When it comes to science like this, it should be peer reviewed and then duplicated by others and peer reviewed.
As I read the evidence, it doesn't pass muster for CA's requirements. The lawyers for CA said in court that the encoding worked 97% of the time with the firing pin and 96% time on the breach on just one weapon tested with just 5 brands of ammunition. This means that their best evidence shows that it only works 93% of the time (96% x 97% to get the odds of both of the required imprints).
The law indicates that the "Attorney General may also approve a method of equal or greater reliability and effectiveness..." to the one describing microstamping. Equal still means two imprints on the shell casings. Greater could be three or more.
The CA lawyers in their filing seemed to be arguing against a straw man, which was that the gun makers said the technology didn't exist. Obviously the gun makers know it exists because they tested it and found it not to be reliable enough to meet the requirements of the law.
I agree. If the law said that a gun must not go off when dropped from six feet, and it still went off 7% of the time, would it pass that test? Of course not. So if the law says it must put the imprint in two places with every round fired, and it doesn't do that 7% of the time (the state's very best claim), did it pass that requirement? No.
The AG is wrong to say the technology exists to meet the law. CA's lawyers even argued that the gun makers have had plenty of time to make it better. Why would that matter if it already worked well enough to meet the law?
Any citizen could challenge the AG's declaration in court and get it reversed. Another AG could reverse it (it's an elected position). Any AG, including the one who made the first declaration, could reverse it citing "further review of the evidence."
One person in the other thread challenged the notion of the AG being able to reverse an opinion asking for evidence that this is possible when in reality the evidence is a few hundred years of how the law works. There is nothing binding the AG from changing her mind, and we expect the AG to react to new evidence when it comes along. The DEA is in charge of deciding what drugs go on which schedules, making them go from extremely illegal to perfectly legal. Congress didn't make pot illegal - the DEA did. The DEA just recently moved hydrocodone from Schedule III to the much more restrictive Schedule II based on reviewing new evidence. Hydrocodone didn't change. That's just it works when a legislature sets up guidelines and allows the executive branch to implement those guidelines. Not only can they do reevaluate, they are expected to.
So one very real danger here is to look at what happens if gun makers decided to implement the current unreliable technology. Any model they modify has to be recertified. They submit test results with a 94% success rate. The AG says, "Sorry, the law says every round fired. I don't know why you couldn't get the technology working on your guns and that brand of ammo with the thick lacquer, but it just doesn't work. One guy working by himself got it to 93%. Surely with your resources and knowing the law you could have gotten it working. Try again."
Each of these guns now falls off the list. They can't go back to the older model. They just spent money and lost the ability to sell a model.
Another scenario is simply a new AG reversing the opinion of the current AG. And, as I mentioned, any citizen could challenge it. And to be quite honest, I would have no issue with a citizen challenging the AG for allowing gun makers to "circumvent" what is really a pretty clear requirement of the law. CA could most certainly modify the law to be 50% of the rounds fired on the majority of brands of ammunition, but they are sticking to their guns (pardon the pun).
Suppose the AG and the courts accept the 93% success rate despite the letter of the law, are gun companies still at risk?
Yes. Suppose you have a rich and unscrupulous person wanting to use the law as a backdoor to ban a bunch of handguns. He could create pistol rounds with a special lacquer (I mention lacquer because tests have shown that lacquer inhibits transfer) that defeats the microstamping. He or she could put it on the market, point to it and say, "No pistol out there meets the requirement of the law because it doesn't work on this ammo. Period."
Or it could just be a rogue company wanting to make bucks with the criminal element that creates the ammo, and an honest citizen suing to force the gun companies to counter this new technology. The pistols still end up banned.
It was also mentioned in the other thread that the police are not subject to these requirements. They can buy whatever they want. I wonder why that is? Do police weapons not get stolen or "borrowed" without the officer's knowledge? Do LEOs not commit crimes? Don't we want to know if a shell casing found at a crime scene belongs to a cop versus simply being a shell casing from someone whose weapon doesn't have the microstamping?
I think from this exemption we an infer that CA lawmakers knew that this requirement was very likely to severely restrict pistol sales. They didn't want the police to be burdened, just citizens.
Anyway, I think this recaps the substance of the various posts tossed on the trash minus all the snark and bickering. Please feel free to quote individual parts as you see fit - no need to quote the whole damn thing since it covers several ideas presented by different members in different posts over probably a week's time.
I apologize if I did not paraphrase your ideas well. No need to get mad at my mischaracterization because it was done in good faith - just present your views in your own words and we can all go from there.
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