You may have read somewhere that there is some sort of restriction on handguns in California starting in 2010 that requires them to be microstamped. I hope this to be the first in a series of columns here in The Firing Line that will help dispel confusion about the politics, judicial and legal environment for gun owners in California. In today's episode, let's explore microstamping.

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First, microstamping is the concept of using semi-conductor engraving techniques to place either protrusions on the firing pin, or a recessed engraving in the chamber of a semiautomatic handgun. The operation of the firing pin version is pretty intuitive and is just like using an address stamp, as the firing pin would leave identifying marks on the primer. The chamber version of microstamping has the identifying information in recessed engraving in the chamber so that the number is stamped into the brass casing as the spent brass expands during firing and before being extracted.

Microstamping's chief proponent is an inventor named Todd Lizotte who, with his partner Orest Ohar, retains patents on the process after selling the semiconductor aspects of the technology to Hitachi. The concept is that microstamped shell casings will be left behind at crime scenes and will have the unique identifying information for the gun that fired them. It is left to the reader to think about the natural progression of criminals toward revolvers. Mr. Lizotte hopes to use public safety concerns to have state legislatures effectively grant him a monopoly both on the technology and on new firearms sales. Mr. Lizotte claims to be an NRA mem­ber and gun rights supporter but it seems to me that he's putting personal profit ahead of his purported beliefs.

In October 2007, the California Legislature passed AB 1471 (Feuer) and it was signed into law. The new law states that starting January 1, 2010, a new handgun would be considered an "unsafe handgun" if it was a semiautomatic and:

not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired ...

However, there are two very important caveats to this requirement. First, this new requirement is an add-on to the California Unsafe Handgun Act, more commonly known as the California Handgun Roster. That means that microstamping would only be required on new makes or models of semiautomatic handguns that are not already on the California roster. As long as manufacturers continue to pay the yearly fees for guns already on the list, you will still be able to buy any of them at California FFLs regardless of whether they have microstamping or not.

Second, your NRA-ILA representative in Sacramento, Ed Worley, had some very important language amend­ed into the bill. The technology required to be used to microstamp a firearm must be available from more than one source and the Attorney General has to certify to that using the processes outlined in the California Administrative Procedures Act. The language in AB 1471 is:

provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencum­bered by any patent restrictions. The Attorney General may also approve a method of equal or greater reliability and effectiveness ... where the Attorney General certifies that this new method is also unencumbered by any patent restrictions.  Approval by the Attorney General shall include notice of the fact via regulations adopted by the Attorney General for purposes of implementing that method for purposes of this paragraph.

What this means is that the California Department of Justice Bureau of Firearms will have to propose regulations and allow the firearms community to comment on those regulations—much like the definitions of features of semiautomatic centerfire rifles in 1999-2000.  At press time there is little likelihood that Bureau of Firearms will be attempting to adopt regulations anytime soon—mainly because the patents that Mr. Lizotte himself holds don’t allow other technology providers to also offer competing versions of microstamping and, thus the Bureau of Firearms can’t meet the requirements of the law.  Some have worried that Mr. Lizotte would just give way his patents, but I think California gun owners should take heart that the profit motive is alive and well in Mr. Lizotte.  In press reports, Mr. Lizotte has said that he would license the technology free for every firearm produced.  However, that ignores the fact that he’ll still require a per-manufacturer license cost for the machine tools that are necessary to manufacture microstamped firearms.  It appears at this point that he has written off California as an initial market and is attempting to use the fact that California has adopted a crippled version of microstamping to get other jurisdictions to adopt his technology without the caveats.

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Further, since microstamping relies upon the California roster for its implementation, it is vulnerable to the attacks on the California roster that The Calguns Foundation (CGF) has launched in the District of Columbia and California. In D.C., the city council adopted California's Handgun Roster. CGF, in partnership with Alan Gura and SAF filed a suit in D.C. entitled Hanson vs. D.C. challenging the constitutionality of California's hand­gun roster as adopted by D.C. D.C. responded by adopting significant changes to its roster scheme by allow­ing all pre-1985 firearms and any firearm on any state's roster, including those of Maryland and Massachusetts. The outcome is that D.C. residents can now purchase and own just about any handgun ever sold.

In parallel, CGF and Mr. Gura (assisted by Don Kilmer and Jason Davis) sued the California Bureau of Firearms in a case entitled Pena v Cid. Four California residents are barred from acquiring certain handguns for unconstitutional reasons including the firearm being a different color than the identical supposedly "safe" hand­gun or that the gun is somehow "unsafe" because the manufacturer didn't send a check to Sacramento to keep the gun "safe." In fact, the .22 revolver that the Supreme Court ordered D.C. to allow the possession of can't be acquired in California. When Mr. Gura and CGF win the Pena case, the underlying law for microstamping will be ruled an unconstitutional infringement of our Second Amendment rights as incorporated under the Fourteenth Amendment. That will lead to an outright mooting of the microstamping requirement in California.

Microstamping is certainly something to keep an eye on. But the reality of a post-Heller world is that both for specific licensing/regulation reasons in California, and more generally for constitutional reasons nationally, microstamping is unlikely to be required on handguns in our lifetime.

For more information:

AB 1471

Hanson vs. DC

Pena v. Cid

About the author: Gene Hoffman is the Chairmain of the Calguns Foundation, the co-inventor of the Bullet Button, a life member of the NRA, and a CRPA board member. When he's not using his C&R FFL, punching holes in paper, or punching holes in unconstitutional laws, he amuses two darling daughters and can sometimes be found shopping for his next boat.