WUT? CA Supreme Court says the issue of the constitutionality of the law was not before it because no constitutional challenge was made.

This is a joke, right?

I thought there must be a misinterpretation when I saw this tweet from an AP reporter:

In ruling on bullet-stamping law, California Supreme Court says state laws cannot be invalidated on the grounds that complying with them is impossible.

I also thought people must be misunderstanding when I read this Mercury News story:

The California Supreme Court on Thursday threw out a lawsuit that sought to invalidate a state law requiring new models of semi-automatic handguns to stamp identifying information on bullet casings. The court ruled unanimously that gun rights groups could not overturn the law on the grounds that complying with it was impossible. The groups argued that technology did not exist to meet the stamping requirements, and a law couldn’t mandate something that was not possible…. The law requires new pistol models to have a microscopic array of characters in two spots that identify the gun’s make, model and serial number and that are transferred by imprinting on each cartridge case when the gun is fired. Gun rights groups say it is not possible to “microstamp” two areas of a gun. Only the tip of the firing pin can be microstamped, and current technology doesn’t allow the stamp to reliably, consistently and legibly imprint on the cartridge primer from that part of the gun, they say. Attorneys for the state acknowledged in court documents that microstamping technology is “emerging,” but they said lawmakers often enact laws to force industries to innovate. They warned a ruling in favor of gun makers could take away that power. The law, which took effect in 2013, doesn’t impact guns already on the state’s official firearm roster. Only new or modified semi-automatic handguns sold in California must be equipped with the technology.

No, No, surely you have it all wrong. There’s this thing called the 2nd Amendment, and the Heller case made clear you can’t make compliance so impossible that it effectively bans the ability to obtain handguns.

As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. * * * It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. * * * In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

The California law seems similar to the (now-changed) New York 7-bullet magazine law, which required use of a type of magazine that didn’t exist. Alan Gura, counsel in Heller, explained why this was unconstitutional:

“Well the 7-round limit to me is clearly unconstitutional, for the reasons mentioned, Americans have expectation to find in common use handguns that have more than 7-rounds, and so a 7-round limit is plainly unconstitutional.”

So everyone misunderstood the California Supreme Court, right?

WRONG.

From the Opinion (pdf.):

Civil Code section 3531 provides that “[t]he law never requires impossibilities.” In this case, plaintiff National Shooting Sports Foundation, Inc. (NSSF) argues that this provision authorizes a court to declare another statute, Penal Code section 31910, subdivision (b)(7)(A), unenforceable when a complainant alleges, and the court finds, that complying with the statute is impossible. The Court of Appeal agreed. Because such an interpretation of section 3531 is contrary to established principles of statutory interpretation, we reverse.

But, but the 2nd Amendment? The CA Supreme Court said the 2nd Amendment wasn’t before it on the appeal:

The sole dispute before us is whether a court can invalidate Penal Code section 31910(b)(7)(A) on the basis of Civil Code section 3531’s declaration that “[t]he law never requires impossibilities.” We are not asked to consider a constitutional challenge to Penal Code section 31910(b)(7)(A) or an administrative challenge to the Department of Justice’s 2013 certification (see Code Civ. Proc., §§ 1085, 1094.5)…. Where “ ‘[t]he purpose of the statute is plain[, i.e.,] to prevent avoidable delay for too long a period’ ” (id. at p. 374, quoting Christin v. Superior Court (1937) 9 Cal.2d 526, 532), we can adopt “a statutory construction recognizing an implicit . . . exception” in particular circumstances (Lewis, at p. 376). But impossibility does not authorize a court to go beyond interpreting the statute and simply invalidate it altogether. Impossibility, as an aid to statutory interpretation, is akin to the absurdity canon, which counsels courts to “avoid any [statutory] construction that would produce absurd consequences.” (Flannery v. Prentice (2001) 26 Cal.4th 572, 578; see Lewis, at p. 377 [“It would be absurd to attribute to the Legislature an intent to construe the language and underlying purpose . . . so narrowly.”].)… In sum, the case law recognizes that a statute may contain an implied exception for noncompliance based on impossibility where such an exception reflects a proper understanding of the legislative intent behind the statute. We are not aware of any appellate precedent in California that has invoked Civil Code section 3531 or impossibility of compliance to invalidate a statute itself…. NSSF has not brought a constitutional challenge to the statute, nor has it petitioned for a writ of mandate against the Department of Justice for improperly certifying the availability of dual placement microstamping technology (and we express no view on the merits of those possibilities). Instead, NSSF has invoked the impossibility of compliance as a basis for voiding the statute.

Assuming the CA Supreme Court correctly has state that there was no constitutional challenge to the law, then someone ****ed up big time. I don’t see how this would survive a 2nd Amendment challenge.



