McKEOWN, Circuit Judge:
Unsurprisingly, the Second Amendment says nothing about modern technology adopted to prevent accidental firearm discharges or trace handguns via serial numbers microstamped onto fired shell casings. The question before us is whether making specific commercial gun sales contingent on incorporating these innovations violates the constitution. This appeal stems from a challenge to three provisions of Californias Unsafe Handgun Act (UHA). For safety reasons, California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handguns make, model, and serial number onto each fired shell casing.
Ivan Pena, along with several other individuals and two nonprofit organizations, the Second Amendment Foundation, Inc. and the Calguns Foundation, Inc. (collectively, Purchasers), challenge the constitutionality of the UHA. Purchasers argue that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment. We do not need to reach the question of whether these limitations fall within the scope of the Second Amendments right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers. We reject Purchasers claim that they have a constitutional right to purchase a particular handgun. Nor do the provisions violate the Equal Protection Clause. We affirm the district courts grant of summary judgment in favor of California.
BACKGROUND
I. The Unsafe Handgun Act
As its name implies, Californias Unsafe Handgun Act (UHA) seeks to reduce the number of firearm deaths in the state. The primary enforcement clause reads:
A person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends an unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.
CAL. PENAL CODE § 32000(a). An unsafe handgun is defined as any pistol, revolver, or other firearm capable of being concealed upon the person and that does not have certain safety devices, meet firing requirements, or satisfy drop safety requirements. Id. § 31910.
The UHA charges the California Department of Justice (CDOJ) with maintaining a roster of all handgun models that have been tested by a certified testing laboratory, have been determined not to be unsafe handguns, and may be sold in the state. Id. § 32015(a). Effectively, the Act presumes all handguns are unsafe unless the CDOJ determines them not to be unsafe. Handguns with purely cosmetic differences (including a difference in finish, grip material, and shape or texture of the grip) from a handgun already on the roster need not meet these criteria. See id. § 32030.
Over time, California has added new requirements for inclusion on the roster. Since 2007, new models of semiautomatic pistols must be equipped with both a chamber load indicator (CLI) and a magazine detachment mechanism (MDM)-safety features designed to limit accidental discharges that occur when someone mistakenly believes no round is in the chamber. Id. § 31910(b)(5). A CLI is a device that plainly indicates that a cartridge is in the firing chamber. Id. § 16380. An MDM is a mechanism that prevents a semiautomatic pistol that has a detachable magazine from operating to strike the primer of ammunition in the firing chamber when a detachable magazine is not inserted in the semiautomatic pistol. Id. § 16900.
Since 2013, new models of semiautomatic pistols need to include a feature called microstamping: each such pistol must imprint two sets of microscopic arrays of characters that identify the make, model, and serial number of the pistol onto the cartridge or shell casing of each fired round. Id. § 31910(b)(7). Designed to help solve crimes, microstamping provides law enforcement with identifying information about a handgun fired at a crime scene. See Fiscal v. City & Cty. of S.F. , 158 Cal.App.4th 895, 70 Cal.Rptr.3d 324, 337 (2008).
There are exceptions to these requirements. Most significant, the required features are inapplicable to models of semiautomatic pistols that were already listed on the roster when such requirements became effective. CAL. PENAL CODE § 31910(b)(5), (7). In addition, firearms sold to law enforcement officials and certain curios or relics (as defined in the Code of Federal Regulations ) are exempt. CAL. PENAL CODE § 32000(b)(3), (4). Pistols used in Olympic target shooting are exempt, see id. § 32105, as are certain single action revolvers and single shot pistols of either a certain age (a curio or relic made before 1900) or a certain size (greater than seven-and-a-half inches), see id. §§ 32000(b)(3), 32100. Other exemptions include firearms transferred between private parties, see id. § 32110(a), firearms delivered for consignment sale or as collateral for a pawnbroker loan, see id. § 32110(f), and firearms used solely as props for video production, see id. § 32110(h).
II. District Court Proceedings
Seeking to enjoin the state from enforcing the UHA, in 2009 Purchasers sued the Chief of the CDOJ Bureau of Firearms Stephen Lindley on two constitutional theories. Purchasers claimed that the CLI, MDM, and microstamping requirements restricted access to the firearms of their choice, in violation of the Second Amendment. Purchasers also claimed that the UHAs roster scheme transgressed the Equal Protection Clause of the Fourteenth Amendment by making irrational exceptions.
After cross-motions, briefing, and a hearing, the district court granted summary judgment to California. Citing the Supreme Courts landmark decision in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the district court characterized the UHA provisions as laws imposing conditions or qualifications on the commercial sale of firearms, and thus concluded that the laws presumptively did not violate the Second Amendment. The district court observed that the provisions were conditions on the sale of firearms, not prohibitions, and that Purchasers maintained access to nearly 1,000 types of firearms on the roster, all of which were approved for sale in California. Purchasers [i]nsistence upon ... particular handguns, the court concluded, simply f[e]ll outside the scope of the right to bear arms.
Analysis
I. SECOND AMENDMENT
A. The Supreme Courts Heller Framework
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. U.S. CONST . amend. II. In Heller , the Supreme Court held that the Second Amendment protects an individual right to possess a lawful firearm in the home operable for the purpose of immediate self-defense. 554 U.S. at 635, 128 S.Ct. 2783.
Whether the UHA violates Purchasers Second Amendment rights is framed by a two-step inquiry established in Heller . We first consider whether the Act burdens conduct protected by the Second Amendment, and if it does, we apply an appropriate level of scrutiny. Jackson v. City & Cty. of S.F. , 746 F.3d 953, 960 (9th Cir. 2014).
Whether a challenged law burdens conduct protected by the Second Amendment depends on the historical understanding of the scope of the right, including whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected. Jackson , 746 F.3d at 960. In Heller , the Supreme Court set forth non-exhaustive categories of presumptively lawful regulatory measures that are presumed to be consistent with the historical scope of the Second Amendment:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27 & n.26, 128 S.Ct. 2783. The Court, however, did not define the contours of these presumptively lawful categories. See id. at 635, 128 S.Ct. 2783 ([T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when these exceptions come before us.).
In the decade since Heller , the courts of appeals have spilled considerable ink in trying to navigate the Supreme Courts framework. Perhaps that is why the Seventh Circuit observed, [w]e do not think it profitable to parse these passages of Heller as if they contained an answer. UnitedStates v. Skoien , 614 F.3d 638, 640 (7th Cir. 2010) (en banc). Our sister circuits have struggled to unpack the different meanings of presumptively lawful. See United States v. Marzzarella , 614 F.3d 85, 91 (3d Cir. 2010) (On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny.); United States v. Chester , 628 F.3d 673, 679 (4th Cir. 2010) (It is unclear to us whether Heller was suggesting that longstanding prohibitions such as these were historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for some other reason.); Heller v. District of Columbia (Heller II ), 670 F.3d 1244, 1253 (D.C. Cir. 2011) (citations omitted) ( Heller tells us longstanding regulations are presumptively lawful, that is, they are presumed not to burden conduct within the scope of the Second Amendment.).
Our circuit similarly has strained to interpret the phrase conditions and qualifications on the commercial sale of arms. Viewing that language as sufficiently opaque to rely[ ] on it alone, we instead conducted a full textual and historical review of the scope of the Second Amendment in a recent challenge. Teixeira v. Cty. of Alameda , 873 F.3d 670, 683 (9th Cir. 2017) (en banc).
The opaqueness of the presumption of legality for conditions and qualifications on the commercial sale of arms likely explains why we and other courts often have assumed without deciding that a regulation does burden conduct protected by the Second Amendment rather than parse whether the law falls into that exception. In these cases, the court avoided having to define the contours of the commercial sales category because it assumed the Second Amendment applied and upheld the restriction under the appropriate level of constitutional scrutiny.
We, too, follow this well-trodden and judicious course. Woollard v. Gallagher , 712 F.3d 865, 876 (4th Cir. 2013). We assume without deciding that the challenged UHA provisions burden conduct protected by the Second Amendment because we conclude that the statute is constitutional irrespective of that determination. By making this assumption, we bypass the constitutional obstacle course of defining the parameters of the Second Amendments individual right in the context of commercial sales. Thus, we have no occasion to engage with the dissents extensive exegesis on this point.
B. Determination of the Appropriate Level of Scrutiny
Because we assume that the UHA implicates Purchasers right to bear arms, our next task is to determine the appropriate level of scrutiny for review of the California requirements. Purchasers stump for strict scrutiny while California invites intermediate, at most.
Our post- Heller decisions generally have applied intermediate scrutiny to firearms regulations. See Silvester , 843 F.3d at 822 (upholding a ten-day waiting period on the sale of firearms to those who already own one); Wilson , 835 F.3d at 1092 (upholding ban on possession by holders of state medical marijuana cards); Fyock , 779 F.3d at 1000-01 (refusing to preliminarily enjoin an ordinance banning possession of high-capacity magazines); Jackson , 746 F.3d at 966, 970 (upholding ordinances requiring firearms to be stored in a locked container when not carried on the person and forbidding the purchase of hollow-point ammunition); United States v. Chovan , 735 F.3d 1127, 1139 (9th Cir. 2013) (upholding a ban on firearm possession by people convicted of domestic violence).
Which level of scrutiny to apply depends on how close the law comes to the core of the Second Amendment right and the severity of the laws burden on the right. Id. at 1138. We strictly scrutinize a law that implicates the core of the Second Amendment right and severely burdens that right. Silvester , 843 F.3d at 821. Otherwise, we apply intermediate scrutiny if the law does not implicate the core Second Amendment right or does not place a substantial burden on that right. Fyock , 779 F.3d at 998-99.
Consistent with our threshold decision not to assess whether the California restrictions fall within the Second Amendment, we need not answer conclusively whether the UHAs restrictions implicate the core Second Amendment right of self defense of the home. Silvester , 843 F.3d at 821 (citing Heller , 554 U.S. at 628-29, 128 S.Ct. 2783 ). Because the restrictions do not substantially burden any such right, intermediate scrutiny is appropriate.
At the outset, it is important to understand what the statute does and does not do vis-à-vis handguns, the quintessential self-defense weapon. Heller , 554 U.S. at 629, 128 S.Ct. 2783. Moving forward, the statute limits commercial sales of new models of semiautomatic pistols to those with the CLI, MDM, and microstamping protections. Importantly, the UHA grandfathers hundreds of handgun models on the approved guns roster that do not meet the new requirements. The statute does not restrict possession of handguns in the home or elsewhere (with or without CLI, MDM, and microstamping features). The statute also includes a number of exemptions. For example, the statute does not affect the sale of off-roster existing handguns in private sales transactions. Nor are out-of-state sales regulated.
In weighing the severity of the burden, we are guided by a longstanding distinction between laws that regulate the manner in which individuals may exercise their Second Amendment right, and laws that amount to a total prohibition of the right. See Chovan , 735 F.3d at 1138 ; accord Heller II , 670 F.3d at 1251-58 (reasoning that gun-registration requirements do not severely burden the Second Amendment because they do not prevent[ ] an individual from possessing a firearm in his home or elsewhere); Marzzarella , 614 F.3d at 97 (distinguishing between a law requiring handguns to bear original serial numbers, and Heller s law prohibiting the possession of handguns). The UHA is of the former variety-regulation of the manner of use, not possession-and thus affects Second Amendment rights less severely. See Silvester , 843 F.3d at 827 ([L]aws which regulate only the manner in which persons may exercise their Second Amendment rights are less burdensome than those which bar firearm possession completely. (citation omitted) ).
The CLI, MDM, and microstamping requirements place almost no burden on the physical exercise of Second Amendment rights. There is no evidence that CLIs or microstamping interferes with the functioning of any arms. Although MDMs might prevent a gun from firing at will, it is likely a rare occurrence when someone has time to put a round from outside a magazine in the chamber without inserting the magazine itself. CLIs and MDMs are designed to make the handgun owner aware of when there is ammunition in the chamber. That feature not only prevents accidental discharges-which itself protects hearth and home-but also informs the owner when the gun is loaded so that the weapon may be fired in self-defense.
Perhaps recognizing the absence of a physical burden, Purchasers assert a substantial burden because the UHA precludes them from buying in California the majority of Smith & Wessons handguns, two of Rugers most popular models, and the fourth generation of Glocks. But being unable to purchase a subset of semiautomatic weapons, without more, does not significantly burden the right to self-defense in the home. See Heller , 554 U.S. at 626, 128 S.Ct. 2783 ([T]he Second Amendment right is not unlimited. ... [T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.).
Indeed, all of the plaintiffs admit that they are able to buy an operable handgun suitable for self-defense-just not the exact gun they want. Purchasers have adduced little evidence that the handguns unavailable for purchase in California are materially more effective for self-defense than handguns currently for sale in the state. See Jackson , 746 F.3d at 968 (looking at self-defense effectiveness during this inquiry). Contrary to Purchasers assertion, the severity of the burden is not obvious[ ].
Any burden on the right is lessened by the UHAs exceptions, which allow for the purchase of firearms that do not have the CLI, MDM, and microstamping features. See Chovan , 735 F.3d at 1138 (holding that a substantial[ ] burden[ ] ... is lightened by ... exceptions). For example, Purchasers may buy handguns without the three features if such firearms are grandfathered on the roster, and may buy off-roster handguns in private transactions. There is no evidence in the record that the hundreds of firearms available for purchase are inadequate for self-defense. See Decastro , 682 F.3d at 168 ([A] law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.).
Because the UHA does not effect a substantial burden, we conclude that intermediate scrutiny is adequate to protect the claimed Second Amendment rights at issue here.
C. Application of Intermediate Scrutiny to the UHA Provisions
Intermediate scrutiny requires (1) a significant, substantial, or important government objective, and (2) a reasonable fit between the challenged law and the asserted objective. Jackson v. City & Cty. of San Francisco , 746 F.3d 953, 965 (9th Cir. 2014). The government must show that the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, but not necessarily that the chosen regulation is the least restrictive means of achieving the governments interest. Fyock , 779 F.3d at 1000 (quoting Chovan , 735 F.3d at 1139 ).
When considering Californias justifications for the statute, we do not impose an unnecessarily rigid burden of proof, and we allow California to rely on any material reasonably believed to be relevant to substantiate its interests in gun safety and crime prevention. Mahoney v.Sessions , 871 F.3d 873, 881 (9th Cir. 2017). Hence, our analysis of whether there is a reasonable fit between the governments stated objective and the regulation considers the legislative history of the enactment as well as studies in the record or cited in pertinent case law. Fyock , 779 F.3d at 1000 (9th Cir. 2015) (internal citations marks omitted).
It is important to note that we are weighing a legislative judgment, not evidence in a criminal trial. Because legislatures are not obligated, when enacting [their] statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review, we should not conflate legislative findings with evidence in the technical sense. Minority Television Project, Inc. v. F.C.C. , 736 F.3d 1192, 1199 (9th Cir. 2013) (en banc) (internal citations and quotation marks omitted).
Nor do we substitute our own policy judgment for that of the legislature. Id. When policy disagreements exist in the form of conflicting legislative evidence, we owe [the legislatures] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions. Turner Broad. Sys., Inc. v. F.C.C. , 520 U.S. 180, 195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (internal citations and quotation marks omitted); see also id. (In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress. (internal quotation marks omitted) ). It is not our function to appraise the wisdom of [Californias] decision to require new semiautomatic gun models manufactured in-state to incorporate new technology; instead, the state must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). These principles apply equally to benchmarking the efficacy as well as the technological feasibility of the regulations. Therefore, in the face of policy disagreements, or even conflicting legislative evidence, we must allow the government to select among reasonable alternatives in its policy decisions. Peruta v. Cty. of San Diego , 824 F.3d 919, 944 (9th Cir. 2016) (en banc) (Graber, J., concurring), cert. denied , --- U.S. ----, 137 S.Ct. 1995, 198 L.Ed.2d 746 (2017) ; accord Kachalsky v. Cty. of Westchester , 701 F.3d 81, 99 (2d Cir. 2012) (It is the legislatures job, not ours, to weigh conflicting evidence and make policy judgments.).
Our role is not to re-litigate a policy disagreement that the California legislature already settled, and we lack the means to resolve that dispute. Fortunately, that is not our task. See City of Renton , 475 U.S. at 51-52, 106 S.Ct. 925. And, as required by precedent, Californias evidence fairly support[ed] its conclusions. Jackson , 746 F.3d at 969.
1. The CLI and MDM Requirements
There is no doubt that the governmental safety interests identified for the CLI and MDM requirements are substantial. California represents that the legislatures goal in requiring CLIs and MDMs was targeting the connection between cheaply made, unsafe handguns and injuries to firearms operators and crime. These interests are undoubtedly adequate. See , e.g. , Schenck v. Pro-Choice Network of W. N.Y. , 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) ; Jackson , 746 F.3d at 965-66 ; see also Silvester , 843 F.3d at 827 ([The statute at issue] has ... the objective of promoting safety and reducing gun violence. The parties agree that these objectives are important. The first step is undisputedly satisfied.). The CLI and MDM requirements also reasonably fit with Californias interest in public safety. A CLI lets someone know that a gun is loaded without even having to pick it up to check; it acts as a red flag for those handling the gun who may have forgotten that it was loaded. An MDM prevents a firearm from shooting unless a magazine is inserted. Without an MDM, a magazine-equipped pistol can be fired if there is a bullet in the chamber, even if the magazine has not been inserted.
In one sense then, an MDM disables a gun capable of providing self-defense. But the practical effect strikes us as a rare instance. Because it is more likely that people will associate firearms that have magazines with loaded firearms and firearms that do not have magazines with unloaded firearms, the legislature could reasonably predict that the MDM could prevent accidental discharges of the weapon. The legislative judgment that preventing cases of accidental discharge outweighs the need for discharging a gun without the magazine in place is reasonable. The legislative history cites studies confirming this common-sense conclusion. Purchasers do not provide any reliable evidence that these studies are incorrect or that CLIs or MDMs will clearly thwart, rather than advance, Californias goal of saving lives by preventing accidental discharges. The fit between the prevention of accidental discharges and the requiring of CLIs and MDMs on not-yet-rostered handguns is a reasonable one.
Purchasers argue that the UHAs requirements have nothing to do with consumer safety because the UHA exempts specially-favored individuals whose safety is no less important[ ] [and] mandates alleged safety features that California instructs consumers to ignore as unreliable. Purchasers point to exemptions in the UHA for law enforcement, entertainment industry-related props, intra-family transfers, and private-party transfers. See , e.g. , CAL. PENAL CODE §§ 32000(b)(4) (law enforcement), 32110(a) (private party transfer), 32110(h) (entertainment industry props), 27875 (intra-family transfers). Although Purchasers are correct that these groups are exempt from the UHA, that underinclusiveness does not doom the MDM and CLI requirements under intermediate scrutiny. See Minority Television Project , 736 F.3d at 1204 (Unlike strict scrutiny, intermediate scrutiny does not require that the means ... be the least restrictive.). The exceptions are not so pervasive or without basis as to make the fit unreasonable.
Purchasers further fault the UHA because not every aspect of the roster obviously advances the states regulatory interest. Purchasers argue that once a gun has been deemed safe and put on the roster and then falls off the roster for administrative reasons, California has no interest in deeming it unsafe. We do not agree. Although purely administrative reasons may not have anything to do with a weapons performance and safety-just as not having a current drivers license is not proof that the driver is not a safe driver-we will not interfere with the orderly administration of Californias roster. We are not here to order California to re-list weapons where the manufacturers or importers have otherwise failed to comply with California law.
Purchasers also argue that California teaches consumers to disregard [CLIs] and [MDMs], [so] requiring handguns to have these features actually impedes the states safety interests. Amicus briefs filed in support of Purchasers add that the regulations, by encouraging people to look for or rely on a CLI or a MDM, respectively, inevitably discourage[ ] individuals from actually checking to see whether a firearm is loaded. This, amici tell us, may increase the likelihood of an unintentional discharge. We disagree. California does not instruct consumers to disregard CLIs and MDMs. Instead, the regulations simply mean that consumers should not rely entirely on them or assume that just because a magazine is out or the CLI is not popped up, the weapon is incapable of being dangerous. Treat all guns as if they are loaded, California tells gun-owners. That is just good, old-fashioned common sense. Cf. United States v. Carona , 660 F.3d 360, 368-69 (9th Cir. 2011) (That some wear a belt and suspenders does not prove the inadequacy of either to hold up the pants, but only the cautious nature of the person wearing the pants. (citation omitted) ).
We conclude that the CLI and MDM regulations pass intermediate scrutiny. See Draper v. Healey , 98 F.Supp.3d 77, 85 (D. Mass. 2015) (holding that Massachusetts CLI and MDM regulations pass any standard of scrutiny), affd on other grounds , 827 F.3d 1 (1st Cir. 2016).
2. The Microstamping Requirement
The UHAs microstamping requirement also passes constitutional muster under intermediate scrutiny. Purchasers acknowledge that Californias two stated objectives for the microstamping requirement-public safety and crime prevention-are substantial government interests. Countless cases support this concession. See , e.g. , Schenck , 519 U.S. at 376, 117 S.Ct. 855 (public safety); United States v. Salerno , 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (crime prevention). More specifically, preserving the ability of law enforcement to conduct serial number tracing-effectuated by limiting the availability of untraceable firearms-constitutes a substantial or important interest. United States v. Marzzarella , 614 F.3d 85, 98 (3d Cir. 2010). Serial number tracing enabl[es] law enforcement to gather vital information about recovered firearms. Id. The same logic applies to recovered bullets, and counsels the conclusion that limiting the availability of untraceable bullets serves a substantial government interest.
California also has established a reasonable fit between these substantial interests and the microstamping requirement. The legislative history supporting the microstamping provision describes Californias enormous and diverse problem regarding unsolved homicides committed with handguns. In approximately 45 percent of all homicides in California, no arrests are made because police lack the needed evidence, and more than 60 percent of the homicides in California are committed with handguns. According to the legislative history, microstamping would provide rapid leads in the first crucial hours after a homicide because police could match a bullet found at a crime scene with the registered owner. This data is particularly critical in drive-by-shootings, the legislature observes, where the only evidence at the crime scene may be spent cartridges. California is dealing with a real-world problem and has crafted a real-world solution.
The California legislature considered and rejected other, more intrusive solutions to combat the unsolved homicide-by-handgun problem. The legislature found that microstamping technology improved the accuracy of ballistic identification without requiring the manpower and expense associated with the creation and maintenance of a ballistic image database containing millions of images. Purchasers do not suggest a less invasive approach to curbing unsolved handgun homicides.
Instead, Purchasers contest Californias evidence that microstamping will address the problem effectively . California presented evidence that existing microstamping technology is accurate 96 percent of the time. Purchasers caution that the microstamping technology is not as reliable as California claims. The standard does not demand that Californias solution be a perfect one. At the time it considered this provision, the California legislature weighed competing evidence on effectiveness before enacting the statute. Californias evidence need only fairly support[ ] its conclusions. Jackson , 746 F.3d at 969. California has gone well beyond this threshold requirement.
Purchasers also argue that microstamping is impracticable. Although this case involves the Purchasers, not the manufacturers, the Purchasers cloak their argument in the language of the producers. The reality is not that manufacturers cannot meet the standard but rather that they have chosen not to. Purchasers offered evidence that gun manufacturers have not produced a functioning, commercially available semiautomatic pistol equipped with the microstamping technology and they have no plans to attempt to do so. The declarations offered are lacking in details, as the dissent candidly notes, and rest on conclusory language, such as appears infeasible or cannot practically implement. Simply because no gun manufacturer is even considering trying to implement the technology, it does not follow that microstamping is technologically infeasible.
Notably, the parties agree that semiautomatic handguns are not subject to the microstamping requirement and are grandfathered as long as the manufacturer continues to pay a roster fee and the firearms do not fail a retest. We thus find it odd, indeed, that the manufacturers indirectly assert a right to sell new models of-modern-semiautomatic handguns, but refuse to modernize their firearms by installing microstamping features. We need not accept wholesale that manufacturers will decline to implement this new public safety technology in the face of Californias evidence that the technology is available and that compliance is feasible.
It is ironic that Purchasers filed a cross-motion for summary judgment, agreeing with California that [t]his cases essential facts are not in dispute. As Purchasers lay out in their cross-motion:
Defendant admits that no handguns for sale in the United States have the microstamping technology required by Californias roster law. No firearms manufacturer has submitted any microstamping-compliant handguns, and Defendant has no information as to whether any manufacturer will ever produce microstamping handguns. Accordingly, the microstamping requirement imposes a de facto ban on the sale of all new semiautomatic handgun models in California.
For Purchasers, it is enough that manufacturers say that they will not and cannot comply. But that begs the question of the deference we provide to Californias lawmakers, who made a considered judgment.
Californias evidence carries the day in the legislative context. The state produced evidence that compliance with the microstamping requirement is technologically possible and would cost an incremental $3.00 to $10.00 per gun. By 2008, the inventor of microstamping had publicly tested the technology with local police departments across the country. In those tests, he gave microstamping-equipped firearms and cartridges to local range officers so that they could observe the stamped cartridges and extract their codes. Overall, the technology was publicly tested seven times with seven different police departments, including in Sacramento and Los Angeles before the law was enacted. In addition to this critical evidence, the legislature considered studies showing that microstamping technology generally works.
Throughout the legislative process and in this litigation, the state has reasonably relied on Todd Lizotte, the inventor of microstamping. For over fifteen years, Lizotte has shared his expertise by testifying before state legislative committees, conducting public tests, and contributing to articles that appear in law enforcement periodicals, technical journals, and newspapers. During consideration of the UHA, Lizotte answered technical questions from the drafting committee, and the legislative history contains multiple references to Lizotte and his company, NanoMark Technologies. Given his extensive firsthand knowledge, it is significant that Lizotte concluded that 20 years of development, testing and public demonstrations show that microstamping can be implemented, that [p]rinting two separate codes on the firing pin is feasible, and that it is possible for firearm manufacturers to implement microstamping technology contemplated by the California legislation.
The judgment California made about technological feasibility is no less predictive than the judgment on efficacy. In both cases, the legislators reviewed the record, including conflicting testimony. We cannot countenance the dissents effort to draw an artificial distinction and hold California to a standard never before imposed. The dissent suggests that California must produce specific evidence of compliance with its own microstamping requirement in a laboratory. But the state need not don lab coats, equip semiautomatic firearms with microstamping technology, and test the technological feasibility results itself. That is far too exacting a standard of proof in the context of intermediate legislative scrutiny. See City of Renton , 475 U.S. at 52, 106 S.Ct. 925. In effect, the dissent would transform the state into a gun manufacturer. Instead, California may predict[ ] as a policy judgment that gun manufacturers are capable of outfitting firearms with available technology when experts state that compliance is technologically feasible. Turner , 520 U.S. at 195, 117 S.Ct. 1174. Reliance on experts is particularly understandable here, since a government considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because the solution would, by definition, not have been implemented previously. Alameda Books , 535 U.S. at 439-40, 122 S.Ct. 1728 (OConnor, J., announcing the judgment of the court).
Californias microstamping requirement is the first of its kind, an experimental solution to admittedly serious problems. City of Renton , 475 U.S. at 52, 106 S.Ct. 925. The microstamping requirement only became effective after the CDOJ certified that the technology is available to more than one manufacturer unencumbered by any patent restrictions. It bears noting that a second microstamping law became effective this year, in the District of Columbia. See D.C. Code Ann. §§ 7-2504.08 ; 7-2505.03. The District initially set its applicability date in order to incorporate best practices learned from Californias experience and to allow the model being developed in California to be refined. District of Columbia Committee Report, B. 18-963 (2010). As Justice Brandeis famously wrote, a single courageous state may, if its citizens choose, serve as a laboratory, and try novel [legislative] experiments. New State Ice Co. v. Liebmann , 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) (emphasis added). But we have never forced an experimenting state to prove its policymaking judgment with scientific precision, especially when expert opinion supports the decision.
Even if microstamping proves technologically infeasible or ineffective, the UHA authorizes an alternative process: The California Attorney General may also approve a method of equal or greater reliability and effectiveness in identifying the specific serial number of a firearm from spent cartridge casings discharged by that firearm than that which is set forth in this paragraph. CAL. PENAL CODE § 31910(b)(7)(B).
Microstamping or an authorized alternative may indeed represent[ ] an important advance in the techniques used by law enforcement to serve legitimate police concerns. See Maryland v. King , 569 U.S. 435, 133 S.Ct. 1958, 1975, 186 L.Ed.2d 1 (2013). In King , the Supreme Court justified additional Fourth Amendment intrusion because of DNA technologys promise in serving important identification interests:
DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestees privacy beyond that associated with fingerprinting is not significant ... and DNA is a markedly more accurate form of identifying arrestees.
Id. at 1976. The Court held that DNA identification secured by swabbing the inside of an arrestees cheek is no more than an extension of methods of identification long used in dealing with persons under arrest and so did not violate the Fourth Amendments protection against unreasonable searches. Id. at 1977 (internal citation omitted).
Similarly, microstamping is an extension of identification methods long used in imprinting serial numbers on guns. The Third Circuit upheld under heightened scrutiny a statute punishing receipt or possession of any firearm on which the manufacturers serial number was removed, obliterated, or altered. See Marzzarella , 614 F.3d at 98-99. The court held that [r]egulating the possession of unmarked firearms ... fits closely with the interest in ensuring the traceability of weapons, and so 18 U.S.C. § 922(k) survives intermediate scrutiny. Id. at 99.
During consideration of the UHA, the California legislature considered microstamping to be a modification on the federal serial number law upheld by the Third Circuit. As in King , any additional constitutional intrusion beyond requiring serial numbers is not significant and justified by scientific advancements. 133 S.Ct. at 1975-76. Indeed, new technology will only further improve microstampings effectiveness. Id. at 1977.
We are not convinced that the microstamping requirement impinges any further on Second Amendment rights than the serial number law approved in Marzzarella . That law punishes receipt or possession-in addition to sale or transfer-of any firearm on which the manufacturers serial number was removed, obliterated, or altered. 614 F.3d at 88 n.1 (citing 18 U.S.C. § 922(k) ). California law does not go so far-it does not ban possession or use of guns manufactured without microstamping features. Instead, the UHA sanctions only someone who manufactures, imports into the state for sale, keeps for sale, offers or exposes for sale, or gives or lends an unsafe handgun. CAL. PENAL CODE § 32000(a). The microstamping restrictions on commercial manufacture and sale implicate the rights of gun owners far less than laws directly punishing the possession of handguns. See D.C. v. Heller , 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; Teixeira v. Cty. of Alameda , 873 F.3d 670, 680 (9th Cir. 2017) (en banc) ([G]un buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained.). In addition, the law at issue in Marzzarella applies to any firearm that once had a serial number. The microstamping provision, however, regulates only new models of semiautomatic weapons offered for sale in California after May 2013.
California is entitled to a reasonable opportunity to experiment with solutions to admittedly serious problems. City of Renton , 475 U.S. at 52, 106 S.Ct. 925. The microstamping requirement need not be the least restrictive means of reducing the number of unsolved handgun homicides. Jackson , 746 F.3d at 966. California has met its burden to show that microstamping is reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. Accordingly, the requirement passes intermediate scrutiny.
II. EQUAL PROTECTION CLAUSE
Purchasers also claim that the UHAs three requirements violate the Equal Protection Clause of the Fourteenth Amendment. We disagree. To the extent that the Equal Protection challenge is based on the Second Amendments fundamental right to bear arms and the disparate treatment of groups in exercising that right, as recognized by McDonald , that challenge is subsumed in the Second Amendment inquiry above. See Orin v. Barclay , 272 F.3d 1207, 1213 (9th Cir. 2001) (treating an equal protection claim as subsumed by, and co-extensive with, his First Amendment claim).
Purchasers do not allege that they are part of any suspect or quasi-suspect class. [A] statutory classification [that treats similarly situated persons differently] that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commcns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ; see Freeman v. City of Santa Ana , 68 F.3d 1180, 1187 (9th Cir. 1995) (requiring, as a prerequisite, that there be a similarly situated class of persons (citation omitted) ). Thus, the regulations need do no more than bear[ ] a rational relation to some legitimate end. Romer v. Evans , 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Purchasers have the burden to negative every conceivable basis which might support it, and each basis will be afforded a strong presumption of validity. FCC , 508 U.S. at 314-15, 113 S.Ct. 2096. But Purchasers have failed to carry that burden and demonstrate that any of the differences in treatment by the UHA challenged here lack a rational basis.
Purchasers challenge the UHAs exceptions for sales to sworn members of law enforcement agencies, sales of curios and relics, and use in movie and television productions. See CAL. PENAL CODE §§ 32000(b)(3), (4), 32110(h). But we have already said that [i]t is manifestly rational for at least most categories of peace officers to possess and use firearms more potent than those available to the rest of the populace in order to maintain public safety. Silveira v. Lockyer , 312 F.3d 1052, 1089 (9th Cir. 2003), abrogated on other grounds by Heller , 554 U.S. 570, 128 S.Ct. 2783. Purchasers point out that the UHAs exception does not limit law enforcement officers to use of their weapons only during official duties. Even so, the legislature could rationally conclude that because law enforcement officers receive extensive training and are expected to respond to emergencies even when off duty, such safety provisions might not be necessary for them. That is a rational explanation.
Purchasers challenge to the exceptions for curios and relics and weapons used in film and television also have a rational justification. The curios-and-relics provision grandfathers [f]irearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. 27 C.F.R. § 478.11, para. Curios or Relics; see CAL. PENAL CODE § 32000(b)(3) (incorporating the federal definition found at 27 C.F.R. § 478.11 ). These include firearms more than fifty years old, curios or relics of museum interest, and firearms valuable because they are novel, rare, bizarre, [or associated with] some historical figure, period, or event. 27 C.F.R. § 478.11, para. Curios or Relics, subsec. (a)-(c). Because collectors hold these weapons for reasons other than as offensive or defensive weapons, the exemption is a rational one. Similarly, the video-production exemption is rational because those weapons, one anticipates, are not intended to be used for live fire. The fit of these exemptions may not be perfect-and we express no view how these exceptions might fare under more exacting standards of scrutiny-but it is sufficient to satisfy rational basis scrutiny.
For the foregoing reasons, we affirm the district courts grant of summary judgment in favor of California.
AFFIRMED.
Enacted in 1999, the UHA became effective in 2001.
To add a handgun to the roster, a firearm manufacturer must pay a fee so that the state may test the firearm against the statutory and regulatory criteria. See Cal. Penal Code § 32015(b).
This requirement was set to begin in 2010, but did not become effective until 2013 because it was contingent on the CDOJ certifying that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. Id. § 31910(b)(7)(A).
Purchasers theory is that handguns lacking CLI, MDM, and microstamping technology are in common lawful use throughout the United States and that prohibiting their sale in California violates the Second Amendment. When the legislature amended the UHA to include these requirements, between eleven and fourteen percent of handguns in the United States were available with a CLI and MDM. According to Purchasers, no handguns were available in the United States that met the microstamping requirements. The record does not indicate whether and how these figures have changed over time.
The Second Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. See McDonald v. Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Once the district court answered no to the first question, it never reached the second part of the analysis.
See Silvester v. Harris , 843 F.3d 816, 827-29 (9th Cir. 2016) (assuming a ten-day waiting period on the purchase of a firearm burdened conduct protected by the Second Amendment and applying intermediate scrutiny); Wilson v. Lynch , 835 F.3d 1083, 1092 (9th Cir. 2016) (applying intermediate scrutiny to a regulation prohibiting possessors of medical marijuana card from buying firearms), cert. denied , --- U.S. ----, 137 S.Ct. 1396, 197 L.Ed.2d 555 (2017) ; cf. Jackson , 746 F.3d at 967-68 (applying intermediate scrutiny to a ban on the sale of hollow-point ammunition).
The evidence is slim. One Purchaser was born without a right arm and wishes to buy a Glock with an ambidextrous magazine release, which is better suited for left-handed people. A similar Glock model is listed on the CDOJ roster, except it does not include the ambidextrous release. Apparently, the CDOJ determined that the ambidextrous release was not purely a cosmetic change and declined to list the model without going through its testing and registration protocols. Two others wish to purchase handguns not on the roster. A fourth wishes to purchase a firearm that is on the roster, but in a different color. Apparently, the manufacturer has not yet paid the fee to submit that change to the CDOJ to see if the gun can be listed as cosmetically similar to the model already on the roster.
Purchasers point to the declining number of handguns listed on the roster. At the end of 2013, the CDOJs handgun roster contained 1,273 handguns and 883 semiautomatics. As of oral argument in March 2017, it contained 744 handguns and 496 semiautomatics. Roster of Handguns Certified for Sale , Cal. Dept Just ., http://certguns.doj.ca.gov (last visited Mar. 2, 2017). But simply showing that the number of entries on the roster has decreased does not tell us much about whether the availability of handguns has declined in a way relevant to the Second Amendment. It is not the number of handguns on the roster that matters, it is the impact on self-defense in the home. Some handguns might not be on the roster for the simple reason that they have not been submitted to DOJ for testing for reasons wholly unrelated to CLIs, MDMs, and microstamping. And, handguns could have fallen off the list simply because no one paid the fee to keep them on. The mere fact of a declining number of rostered handguns does not satisfy Purchasers obligation to show a substantial burden.
The California Supreme Court recently ordered judgment in favor of California in a challenge brought to invalidate the UHA as impossible to comply with under state law, observing that the plaintiffs had not petitioned for a writ of mandate against the [California] Department of Justice for improperly certifying the availability of dual placement microstamping technology. Natl Shooting Sports Found., Inc. v. State , 5 Cal.5th 428, 235 Cal.Rptr.3d 54, 59, 420 P.3d 870 (2018).
The argument here echoes a similar one made for decades about airbags. See Chrysler Corp. v. Dept of Transp. , 472 F.2d 659 (6th Cir. 1972) (The petitioners next contend that Standard 208 is not practicable because airbag technology is not, at present, developed to the point where airbags can be installed in all presently manufactured cars.); Frank Waters, Air Bag Litigation: Plaintiffs, Start Your Engines , 13 Pepp. L. Rev. 4 (1986) (There is mounting concern that because automobile manufacturers and governmental agencies have not been successful in paving the way toward air bag installation, consumers may never receive the benefit of this lifesaving device.); Natl Highway Traffic Safety Admin., Airbags , available at http://www.nhtsa.gov/equipment/air-bags (In 25 years-from 1987 to 2012-frontal air bags saved 39,976 lives.). As with that debate, it may be that protests about technical ability to comply reflect a reluctance to comply.
Such alternative method must also be unencumbered by any patent restrictions. Id.
18 U.S.C. § 922(k) makes it unlawful for any person knowingly to transport, ship, or receive ... any firearm which has had the importers or manufacturers serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importers or manufacturers serial number removed, obliterated, or altered.
Purchasers allege that the UHA discriminates on the basis of state residence and this normally triggers strict scrutiny. But because Purchasers pursue this line of reasoning no further-and, in fact, admit that strict scrutiny has not been used when laws discriminate against in-state residents as opposed to out-of-state residents-it is forfeited. See Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994) (refusing to manufacture arguments for an appellant who made bare assertions in an opening brief).