California argued that even under intermediate scrutiny, the State could give everyone a handgun and mandate it is the only gun you could use for self-defense in the home….and that would be enough. The Court seemed troubled by the logical extension of California’s argument that only one handgun was enough to allow the full and unencumbered exercise of Second Amendment rights. Peña counsel made it clear that the Constitutional analysis the State wanted to implement would logically allow them to restrict all handguns by caliber to only .22lr, or even to ban all handguns and only allow Tasers — an argument the District of Columbia made and lost on in Heller.
Can you imagine someone arguing that the 1st Amendment would not be infringed if the state gave everyone their one and only religious book and mandated it never leave your home or be replaced by some other book? Or that it doesn’t violate your freedom of association if the state were to assign you your job, social circle, and spouse? Or that it doesn’t violate your right to be represented in court by supplying your one and only defense lawyer? That would be crazy talk.
Okay, maybe the lawyer for California isn’t actually crazy. Maybe they were just doing the best they could while attempting to defend, as is their job, an indefensible law. I can buy that.