Tyranny does not always march with pomp and brass bands. Sometimes it approaches in the ridiculous, because the heart of tyranny is irrational willfulness. California’s ongoing attempts to override the Second Amendment to our Constitution are a great example.

California has an unusual statute called the Unsafe Handgun Act, California Penal Code section 31910. The law limits handguns sold in California to those on a list. Some are grandfathered in but new guns must comply with the statute’s provisions.

Since 2013 the law requires non-revolver handguns to mark cartridges at the moment of firing with data unique to the gun being fired, in at least two different places. One of these cannot be the part of the cartridge normally hit by the firing pin. This appears to be a physical impossibility under current technology. The dynamic movement of a cartridge in the working of a semi-automatic handgun prevents simultaneous two-location impression. Perhaps only new technologies, not using cartridges, will satisfy the statute.

Naturally, Second Amendment guardians have contested the statute. California ruled this year against one of the challenges in National Shooting Sports Foundation, Inc. v. California.

The National Shooting Sports Foundation, Inc. (NSSF) argues that these impossible requirements were invalid under California Civil Code section 3531. This states “[t]he law never requires impossibilities.” The California Supreme Court reviewed the case on narrow grounds: could the statute be invalidated for requiring the impossible. The court said no, the Civil Code provision is only a maxim for interpretive guidance, not for invalidation.

But why does the maxim exist? Reason and deference to reality are not optional for a legal system.

The Court did cite cases where exceptions were made to laws, but the laws were not invalidated. In those cases, the nature of the impossibility was contextual, based on individual circumstances. In the case of cartridge stamping, the law requires something impossible by nature based on our current understanding of the laws of physics and the technology of modern machines. By upholding the statute the court upholds California’s rejection of reality.

Legislatures used to be concerned to avoid impossibilities. The maxim, then, usually applied to contracts. Contractual impossibility is commonly said to have been established in Common Law in Taylor v. Caldwell, In the Queen’s Bench, 1863, Best & S. 826. In Taylor, two parties contracted for a music performance, but the hall burned down. The court held the contract was invalid because the hall’s existence was necessary to fulfill the contract.

One could argue that a contract is not a statute, which is true. The contract, however, makes a stronger point. Contract Law enforces the law the parties create for themselves by their agreement. If a law created by voluntary agreement between two parties can be set aside for impossibility, how much more should the law be set aside which is imposed on innocent citizens by a distant legislature. Two people might adjust their contracted rights voluntarily on the basis of impossibility. The legislature should not be allowed to nullify a citizen’s rights unilaterally by imposing an impossibility.

Common law courts mentioned impossibility long before Taylor. One of the most controversial judicial opinions ever written was Justice Coke’s opinion in Bonham’s case. The controversy was two-fold. First, Coke claimed the power of judicial review long before it was clearly accepted in either English or American law. Second, his appeal to a “higher law” than a legislature required that laws must be performable to be valid. Coke wrote:

“when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.”[1]

 

Judicial appeal to a “higher law” is genuinely controversial. The American Bar Association’s ABA Division for Public Education, however, recognizes laws requiring impossible acts undermine the very notion of the rule of law. They quote famous women’s suffragist Elizabeth Cady Stanton:

“To make laws that man can not and will not obey, serves to bring all law into contempt. It is very important in a republic, that the people should respect the laws, for if we throw them to the winds, what becomes of civil government?” —Elizabeth Cady Stanton (1860)[2]

Why would a legislature write a law requiring the impossible? The first option is simple ignorance, once discovered, quickly repealed and never enforced. The second is intentional. For example, allowing a parade only by permit granted on February 30. By requiring the impossible, a perverse legislature might seek to do the illegal by a roundabout method.

The second seems the most likely motive in California. They wish to circumvent a Second Amendment right by restricting the definition of “safe” to impossibility. Statutes with unconstitutional intended results are unconstitutional regardless of the byzantine approach used. The Unsafe Handgun Act should be seen for what it is and overturned.

Of course, isn’t this what Jim Crow laws (e.g. poll tax, literacy, character tests, etc.) did for post 15th amendment African American voting rights? – They did not deny the right to vote, but did raise obstacles to make voting practically impossible.

Basing law on make-believe or a deliberate rejection of reality in favor of will, is tyranny. It is tyranny because the very definition of tyranny is the substitution of will for reason by human governors.

[1] Bonham’s Case 8 Co. Rep. 113b, 118a, 77 Eng. Rep. 646, 652 (C.P. 1610).

[2] ABA Division for Public Education, Part 1, What is the Rule of Law? At https://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.authcheckdam.pdf

 

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