Duncan v. Becerra (Bonta) Plaintiffs Response – Updated

B.L.U.F. The plaintiffs response to the State is very good. Short and to the point. The state is attempting to bury the court and plaintiffs in box after box of paper. When talking experts, the State has some pretty poor ones, the Plaintiff has much better exprtsexperts.

Updated to include links to references plus insert/deletes as marked

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I’m going to be quoting the Plaintiffs'(good guys) Response to Defendant’s(bad guys) Supplemental Briefs RE: Chart of Historical Laws. To that end I’m going to give credit to those writers

C.D. Michel, Sean A. Brady, Anna M. Barvir, Matthew D. Cubeiro of Michel & Associates, P.C. These are all lawyers working for Virginia Duncan et all on this case. Having read some of the filings of the state my hat goes off to them. They have done an amazing job of just reading the piles of paper the state is attempting to bury this case in.

To give you some idea of the pure amount of paper reading involved with this, let me give you a brief outline of just one document:

Compendium of Works Cited In Declaration of Michael Vorenberg Volume 1 of 11. This is a 58 page document. Now most of the legal documents I read are 8.5×11 double spaced with 1.5 in left margin and 0.5 inch right margin. Lots of room to take notes. There are normally 28 lines per page, there are about 10 words per line. 280 words per page if full, most are not.

Example:

California Penal Code section 32310 (“Section 32310”), which restricts large-
capacity magazines capable of holding more than ten rounds (“LCMs”), fully
comports with the Second Amendment under the standard announced in New York
State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Plaintiffs have
failed to satisfy Bruen’s threshold requirement to show that the “plain text” of the
Second Amendment contemplates a right to possess LCMs. But even if they had
made that threshold showing, Plaintiffs’ challenge to Section 32310 nevertheless
fails under Bruen’s historical analysis. Section 32310 is consistent with a long
tradition of restrictions on items that are uniquely dangerous and especially prone to
criminal misuse. Under the “more nuanced” analytical approach that this case
requires, these historical laws are “relevantly similar” to Section 32310—that is,
they are comparable in the minimal burdens they impose on the Second
Amendment right to armed self-defense and in the justifications underlying them.

— Bonta Defendant’s Brief in Response to Plaintiffs’ Supplemental Briefs

That is about half of a page. The line breaks are as is in the original. I normally remove those extra line breaks in order to make it easier to read on multiple devices.

On 2022-11-10 the AG of California filed the declaration of Michael Vorenberg after the case had been GVR by the Supreme Court and then VRed from the ninth circuit court back to Judge Benitez.

Michael is an associate history professor at Brown University. He was asked by the CA AG to give his opinion regarding the History and Tradition of firearm regulation. The Supreme Court has told the inferior courts that in order for a current infringement to stand, they must show a history and tradition of that type of regulation at the time of the founding.

In addition, the laws must have similar how and why. So if the “why” was to keep guns out of the hands of slaves and the state wants to use that law to justify banning a class of firearms the “whys” don’t match. In addition, such laws have not stood the test of time and can’t be used as they are part of the “slave” and “racist” laws that are no longer legal in the United States.

So Michael starts his opinion with a summary:

This declaration provides results of an investigation into the existence, usage, and regulation of high-capacity firearms (guns capable of firing more than 10 rounds without re-loading) during the Reconstruction period of U.S. History (1863-1877), with special focus on the period during Reconstruction when the Fourteenth Amendment to the U.S. Constitution was created, ratified, and enforced (1866-1876). The result of the investigation can be summarized as follows: There were high-capacity firearms during Reconstruction, and all of them, including those that could easily be carried by a single individual, were regarded in all the states at the time as weapons suitable only for law enforcement officers, not for ordinary citizens. With very few exceptions, almost all of which were in the Western Territories, high-capacity firearms during the era were understood to be weapons of war or anti-insurrection, not weapons of individual self-defense.

This doesn’t sound good for us. He seems to be saying that repeating firearms, like the Winchester and Henry lever action rifles were just for the military. Not for self-defense. All the states and territories understood this.

Ok, let’s see the proof

Evidence for these assertions does not necessarily take the form of statutes or court decisions, and that is entirely unsurprising: explicit legal text prohibiting civilian possession of the most dangerous weapons of war was not commonly the means by which such weapons were regulated in the United States during the Civil War and Reconstruction. Rather, prohibitions existed in the policies and practices of the U.S. army and its auxiliary or allied units, such as the state-wide militias that operated as law enforcement bodies during Reconstruction. No statutes or court opinions can be found during the period that banned civilian possession of artillery pieces, hundreds of which existed unused after the Civil War, but of course the absence of such express prohibitions cannot be read as evidence that civilians were allowed to possess such pieces. Rather, policy and practice dictated that only the U.S. army and its allied military units could possess such weapons. High-capacity firearms, which like artillery pieces were created as weapons of war, were regulated in the same way, through policy and practice limiting possession of such firearms to the U.S. army and its allied military units. Unlike artillery pieces, however, high-capacity firearms during Reconstruction did come to be regarded by their manufacturers as having a potential market among U.S. civilians.

What a minute there Hoss, “…these assertions [do] not necessarily take the form of statutes or court decisions…” Ok, so nothing Michael has to say is actually relevant post Bruen This declaration is sort of like saying that many schools don’t allow peanut products in the schools. This is exactly the same as a law banning peanut products on school grounds.

Yes, many schools ban peanut products within the school, especially when they have students with known peanut alergies.

Here is another quote by Michael:

…The primary, almost exclusive buyers of high-capacity weapons during Reconstruction were a small number of U.S. army units and state law enforcement bodies. Manufacturers of high-capacity firearms during Reconstruction thus looked outside the United States for buyers. The Winchester Repeating Rifle Company, the only company to produce such weapons during post-civil War Reconstruction, stayed afloat during Reconstruction only by selling high-capacity firearms to foreign armies.

We’ll come back to this little quote in a few.

This declaration runs to 71 pages. Not to bad given what was covered. And it includes about 10 pages of filler.

Which takes us back to the start, that “Compendium” for Micheal’s declaration.

Here is a sample page:

Now that is some dense text. There are 50 some pages of this.

The next Declaration is Robert Spitzeris the Declaration of Robert Spitzer. Robert Spitzer is an anti-gun rights professor with SUNY that has written multiple books. He has voiced his opinion that Heller was decided incorrectly and that there is no individual right to keep and bear arms.

Again, Bruen says that it is the history and tradition at the time of the ratification of the Bill of Rights that is where the state must find laws to support current gun infringements.

Bob starts his declaration by tell us that “mass shootings” are a new social problem. He then, just as the State does, they wantwants to justify their infringement by pointing over there and saying “They’re doing it too!” When doing so, they use population percentages rather than number of states. So while IIRC slightly more than half of the states are now constitutional carry, they point out that over a quarter of the population of the US are currently having their rights infringed so they should be allowed to as well.

His first reference to actual history:

A clear example of this historical pattern is provided by early twentieth-century restrictions related to fully automatic firearms. While weapons capable of firing rounds in rapid succession can be traced to guns of the late nineteenth and early twentieth centuries, like the hand-cranked, multi-barreled Gatling gun which could fire up to 200 rounds per minute,7 it and its successors were military weapons designed to be used in combat and fired from a tripod or similar supporting apparatus, owing to the Gatlin gun’s size and weight. Strictly speaking, guns like the Gatling gun were not fully automatic as they did not fire a continuous stream of bullets while depressing a gun trigger. The development of a fully automatic machine gun for battlefield use, capable of firing all of its rounds from a single barrel and with a single trigger pull, came to fruition during World War I, and to devastating effect, where tripod-mounted machine guns on the battlefield, like the Maxim, which initially fired 200-400 rounds per minute but later 400-600 rounds per minute from a gun weighing roughly 100 pounds.

So his starting point is the early 1900’s. When he actual gives us the first example of a weapons ban. In 1927! Yep, 136 years after the Bill of Rights was ratified. So outside the limits of Bruen

One of the standard arguments is that the founding fathers could not and did not anticipate modern repeating firearms. If they had, they would never have written the second amendment to be so broad. Remember, this is at a time when anybody could own any weapon including warships.

Bob takes this and twists it greatly.

Dinesh D’Souza in his speeches talks about his assertion that at the time of the civil war NO Republican owned a slave. All it takes is one example of this to disprove his assertion. They found something close. Prior to the Civil war, UUlysses .S. Grant’s wife inherited a slave when her parents(?) died.

The Grants freed that slave when they could. It is unclear to me if the Grants still owned that slave at the start of the Civil war or if they had indeed freed him prior.

Regardless, when there is a strong assertion it only takes a single example to disprove that assertion. The gun rights infringers make the assertion that our founding fathers didn’t know about repeating firearms and wrote the second amendment thinking there would never be anything better than muzzle loading rifles.

And we know this to be false. David Kopel writes extensively about many different multi-shoot or “repeating” firearms that were in existence either prior to the founding or at the same time.

Bob twists the assertion. Otherwise known as “moving the goalposts.” While citing Kopel he points out that most if not all of the repeating firearms were designed for the military and not for self-defense.

We don’t care. You asserted the founding fathers were ignorant of the expected technological advancements in firearms so they wrote bad law. We proved they did know, so moving the goalposts is not flying.

And Bob’s Conclusion:

What does the law say, and what should the law be, regarding the regulation of firearms and other harmful or dangerous weapons and accessories, in the light of the Supreme Court’s ruling in the Bruen decision? Given the importance of history, especially, though not limited to, the founding era and the Reconstruction era, the lesson is abundantly clear. Firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, or contributed to criminality. This historical record from the 1600s through the early twentieth century, as seen in the examples examined here, is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. The historical record summarized here makes clear that contemporary restrictions among the states pertaining to assault weapons and large capacity ammunition magazines are merely the latest iteration of a centuries-long tradition of weapons regulations and restrictions. Gun ownership is as old as the country. But so are gun and other dangerous weapons laws, which have adapted to changes in threats to public safety.

And you can spot the cheat right there “though not limited to”. In the parts of his entire declaration I read he doesn’t mention any arms bans via the law until the 1900’s. They are attempting to conflate bans on how to carry with bans on weapons. They are attempting to conflate bans on “scary knives” with bans on “scary guns”

One of the things that Judge Benitez asked for in the survey was when the law was passed and when it was repealed or overturned. I’ve not seen the second part brought forth by the state. I think the plaintiffs might have done so in some of their filings.

Bob’s declaration runs to 37 pages of his opinion and then on to page 230 with references and copies of laws. Attached to that is 5 volumes of “Works Cited.”

Given everything I read, I didn’t find anything in the declarations of these two expert witnesses to be of any weight. So we’ll jump back to Mike’s statement about Winchester only staying afloat during the reconstruction era via sales to foreign militaries.

We’ll go to Judge Benitez’s words in Status Conference on December 12, 2022

THE COURT: All you got to do, if you look at Professor Cornell’s declarations and you look at the website that he refers to — to Winchester — to the Winchester company, if you look at that website, you see that, in fact, they were commonly owned. So, I mean, what are you going to do? You going to —
MR. KELLY: Your Honor, if —
THE COURT: How are you going to — I mean, if you look at Mr. Vorenberg’s declaration, and you look at — for example, as I sit here right now, I can recall one instance that he talks about where two miners were mining for borax.

Yeah, Mike’s declaration is pretty much laughable and Judge Benitez gets it.

So now I’m going to put up some of the response from the Plaintiff’s:

The State presented an overwhelming number of historical laws, and Plaintiffs painstakingly examined each of them. Not one 19th century or earlier law, not even an outlier, involved a restriction on the capacity of a firearm. Because of that inescapable fact, the State reached for anything it could grasp, including racist laws, laws restricting carry, fire-safety laws, “trap gun” laws, and more. Given that broad sweep, Plaintiffs wonder what the State would argue is not an analogue to its modern magazine ban. In any event, the State has failed to meet its burden under Bruen. This Court should again enter judgment for the Plaintiffs.

The State concedes this fact (as it must), but argues that as long as magazines of ten rounds or fewer are allowed, the law does not implicate the Second Amendment because people can defend themselves with these smaller magazines. Dkt.No.142 at 6-7. But because the test asks only whether the item is an “arm,” the State is apparently arguing that a magazine under ten rounds is an “arm,” but somehow one over ten rounds is not. This is not only absurd, but it also empowers the State to determine exactly where that line is to be drawn. The Heller Court, however, has rejected the idea that Second Amendment rights can be so easily manipulated. See, e.g., Heller, 554 U.S. at 629 (“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”) (emphasis added); id. at 634-35 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”)

To be clear, when the State claims the Second Amendment is not implicated because smaller magazines suffice, it is simply arguing that the burden placed on the right of armed self-defense is minimal. That is just interest-balancing disguised as a “plain text” argument. Asking if “the Second Amendment’s plain text covers an individual’s conduct” is far different from asking what burden a law imposes on the ability to exercise self-defense. Yet the State treats these questions as if they are the same. And, in doing so, it tries to short-circuit Bruen by arguing that the Second Amendment is irrelevant just because the ability to use some firearm for self-defense remains intact despite the State’s magazine restriction. But, as we know, “[t]he right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms.” Caetano v. Massachusetts, 577 U.S. 411, 421 (2016) (Alito, J., concurring).

The State’s only response is that defining common use based on mere popularity is not enough. Dkt.No.142 at n.12. The claim is unsupported, and it conflicts with Justice Alito’s guidance on what really matters: “[T]he more relevant statistic is that ‘hundreds of thousands of tasers and stun guns have been sold to private citizens,’ who it appears may lawfully possess them in 45 states.” Caetano, 577 U.S. at 420 (Alito, J., concurring). Given that the “relevant statistic” is popularity among private citizens, and that stun guns are protected because hundreds of thousands were sold, surely over 100 million magazines are entitled to the same protection. No matter what the State feels Californians need for self-defense, millions of Americans have chosen magazines over ten rounds for their firearms. They are protected and cannot be banned.

In a footnote, they take a pot shot at one of the so called “experts” that the state is attempting to use:

Even setting aside the procedural impropriety, it is obvious from even a cursory read that Tucker is not qualified as an expert on self-defense because his commentary is not based on sufficient facts or data, nor is it the product of reliable methods. Fed. R. Evid. 702. This Court should act as a “gatekeeper” to exclude this unreliable expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-91 (1993). As just one example of the outlandish claims he makes, Tucker writes that “[a] single round [of .223] is capable of severing the upper body from the lower body, or decapitation.” Dkt.No.142-1, Ex. 3 at ¶ 15. As the Rupp rebuttal expert put it, Tucker’s claim “is so ridiculous that it should, and actually does, cast doubt on his qualifications as an expert in the field of firearms.” Rebuttal Report of J. Buford Boone III, at 7, Rupp v. Bonta, No. 17-cv-00746 (C.D. Cal. Feb. 3, 2023). If Tucker is this wrong on very basic wound ballistics, his opinion that magazines over ten rounds are unnecessary for civilian self-defense is not worth a second look.

At the very least, the State must “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126, 2130. The State has come nowhere near meeting its burden. Instead, it contends the magazine ban addresses the “new” social problem of mass shootings, arguing that modern firearms with magazines over ten rounds empower individuals, acting alone, to commit such atrocities. Dkt.No.142 at 12-16. Because its magazine ban addresses this “unprecedented societal concern” and a “dramatic technological change,” the State claims it is entitled to a “more nuanced approach” for identifying a relevant historical tradition of arms regulation. But both the general social problem of mass killing and firearms able to fire multiple rounds before reloading predate the founding. And Bruen instructs that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” 142 S. Ct. at 2131

So the State makes its criteria even more specific, restricting its “unprecedented social problem” to mass shootings with ten or more fatalities committed by a single person. Dkt.No.142 at 14-15. With these arbitrary limitations, the State claims that historical mass killings were not as lethal as the mass public shootings of today. Certainly, every social problem can seem unprecedented if you force the criteria down to such specific facts. Even still, mass killings with ten or more victims committed by a single person did occur in the past. Cramer Decl. ¶¶ 32- 34. And though they often involved explosives or arson, such tragedies did at times involve firearms. Id.

In response to the undeniable commonality of repeating arms, the State essentially asks us to not believe our eyes, insisting that Henry and Winchester rifles were uncommon, and that any success was because of sales made to foreign armies. Dkt.No.142 at 14 (citing Vorenberg Decl. ¶¶ 51). But we know that “between 1861 and 1877, a total of 164,466 Henry and all models of Winchester were made, with [only about] 56,000 going to foreign governments.” Hlebinsky Decl. ¶ 31. And we know that it was mostly individuals that bought the remainder because the military did not adopt such rifles until much later. Vorenberg Decl. ¶¶ 25-29.

In short, the meaning of a constitutional provision is fixed according to the understanding at the Founding, so the laws of that laws period (not the Reconstruction) should guide this Court’s analysis. California’s charts identify hundreds of alleged analogues. But it turns out that only seven of these are from the relevant period. Dkt.No. 139-1 at 2-3. A handful were adopted too early. But most were adopted far too late, having been adopted during the Civil War period or later. Of the seven founding-era laws, one was British law confining the right to Protestants, two were local gunpowder laws, one restricted the setting of “trap guns,” and three restricted carry of certain arms while engaged in unlawful activities. Id. These can hardly be characterized as anything but irrelevant outliers; they are not evidence of the enduring tradition of regulation Bruen demands.

That was submitted over Anna M Barvir’s signature. She and her team did a great job on their response. The plaintiffs responses have all been short and to the point. They don’t ramble on like I do. In reading their experts you hear what my daughter calls “causal competency”. People that are so competent that they speak with knowledge and authority and can always go back to the facts that form their opinions.

It appears that the state is in the throw spaghetti mode. They are trying to get some level of balancing. They are trying to sway the court by tales of horrific events that they think might have been stopped if only there was one more law.

Quotes of plaintiffs from: Plaintiffs’ Response to Defendant’s Supplemental Briefs re Historical Laws