Rupp v. Bonta — Part 3 – Revised

This article is a revision of Rupp v. Bonta — Part 3 – UPDATED

I got Duncan v. Bonta mixed up with Rupp v. Bonta and wrote about magazine bans in this case when in fact this case is about semi-auto rifle bans.

You can follow the link to read the original. The only changes made were the announcement at the top. Hopefully this is a little easier to read and has fewer errors in it.

B.L.U.F. Final article analyzing the Rupp v. Bonta case currently before Judge Josephine L. Staton, U.S. District Court for the Central District of California. If this case is appealed, it will go up to the Ninth Circuit court, again.

Status of Case

This case was opened, argued in district court, the district court found for the defendants under intermediate scrutiny, the case was then appealed to the Ninth Circuit. The Appellants(good guys) asked that the case be held pending the outcome of Duncan v. Bonta before the en banc Ninth Circuit court. The Ninth Circuit court then told the parties that they felt this case would be impacted by NYSR&PA v. Bruen and “requested” either of the parties to submit a letter asking the case be held pending Bruen. Both parties responded and the case was held until Bruen was decided.

On 2022-06-28 the Ninth Circuit court vacated and remanded the case back to the district. Judge J Bumatay dissenting: For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. With a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along. … Order Vacating and Remanding P.2 Internal citations omitted.

The case is expected to be heard some time after 2023-05-26. This is not set in stone. The date might move due to other reasons or either party might coincide.

The state is going to have to run a serious calculus on whether to appeal this case. If the district court rules for the plaintiffs then the “assault weapon” ban for the state of California, as currently written into law, is over but the opinion would have no real weight outside of California.

The state could then pass a different “assault weapon” ban and that ban would have to be challenged. This could go on for an extend period of time. As those cases were heard in district courts, those courts that were anti-gun would cite back to this case and then rule the same way.

If the state thinks the Ninth Circuit will rule for them, they know that the plaintiffs will appeal to the Supreme Court and if the Supreme Court grants cert. they will lose and all “assault weapon” bans around the country are gone. If the Supreme Court does not grant cert. then the California “assault weapons” ban will stay in place and the opinion of the Ninth Circuit court regarding the constitutionality of “assault weapon” bans will apply to 15 different districts across 11 states and territories.

The Question

The case restarts within the district court with a statement of the question to be answered as understood by the plaintiffs and the defendants.

Plaintiffs:
Plaintiffs are California residents who filed suit alleging that California’s Assault Weapon Control Act (“AWCA”) violates their Second Amendment right to bear arms for self-defense because it prohibits the possession of arms that they contend fall squarely within the Second Amendment’s text, being arms typically possessed by law-abiding citizens for lawful purposes and are thus protected under the Second Amendment, and there is no relevant historical tradition that would justify the AWCA’s banning of such arms.
— Revised Joint Rule 26(f) Report

Defendant:
Defendant Rob Bonta, in his official capacity as the California Attorney General, contends that the AWCA does not violate the Second Amendment. Under Bruen’s text-and-history standard, the AWCA does not burden conduct protected by the plain text of the Second Amendment, because the firearms and features regulated under the AWCA are not protected “Arms,” and the AWCA’s restrictions are historically justified.
— Id.

The State’s Argument

The state’s position is that “assault weapons” are not “arms” within the scope of the Second Amendment and even if they were within the scope of the Second Amendment that there are “relevantly similar” ranges within the history and tradition of gun regulations during the period of the ratification of the Second and Fourteenth Amendments.

One of the things said in Heller is that it is the history and tradition around the ratification of the Second Amendment. Regulations from that time period can be supported by regulations from the time of the ratification of the Fourteenth Amendment but not new regulations.

This means that if they were to find a law banning “unicorn muskets” in 1795 and then found a law in 1870 that also banned “unicorn rifles” that the “unicorn rifles” law would support the longstanding tradition of banning “unicorn muskets”. This could be found analogous to a modern law banning “minotaur shotguns”. If on the other hand they found only the law in 1870 banning “unicorn rifles” that would not be long standing tradition. It is a one way ratchet, the 1870 law against “unicorn rifles” could not be used to support a modern law banning “minotaur shotguns”.

From here the state argues that the “new” standard under Bruen requires the use of experts to determine what cases are “relevantly similar” to the AWCA.

This is a nasty argument for a few reasons.

In my opinion there is a difference between saying A is similar to B vs. B is similar to A. I can’t find the words I want to describe how that applies here, but I believe it does. They are looking for B similar to A when they should be looking for A similar to B. With that, I say “words is hard” and let go of that thought.

Lawyers and judges are expected to be able to do research into case law. Case law IS historical research within the context of the law. They are trained in how to apply case law and how to argue case law. They are the experts in this.

If the state can manage to get the court to agree that there needs to be “expert opinions” heard then this case, and future cases, devolve into dueling experts. The state will always have the backing of all the standard gun infringing groups with all of their experts on tap. Each time one of those experts testifies in court their reputation goes up.

If the state is lucky, or good, they will be able to get to the point where the plaintiffs(good guys) will have to prove a negative.

This is part of what Bruen accomplished. Once an arm is deemed to be implicated by the plain text Second Amendment, it is the state’s task to prove there is history and tradition that matches their modern infringement.

The Court, having agreed to allow experts to give their opinion, the state gives the statements of their experts.

The State’s Experts

Brennan Rivas

Short version …the proliferation of nineteenth-century firearms restrictions…, …demonstrate a robust governmental response to the scourge of gun violence…, and …instead targeted only those weapons that posed a significant risk to public safety….

So he starts his history in 1836 with Colt’s first revolver patent. He then moves to the 1870’s when the revolver started using metallic cartridges. He claims this [introduced] the United States to its first experience with rampant gun violence. He never bothers to define “gun violence” much less what made it “rampant”. He just says that there were a lot of revolvers out there that could be rapidly reloaded.

His opinion was that the violence that was happening was made all the more deadly by the proliferation of deadly weapons.

He claims that the Government enacted laws restricting carry. He doesn’t list any laws by reference and instead says that the Duke Center for Firearms Law has large numbers of laws listed relating to “carrying weapons”. His first actual law discussed is one from 1894 in Georgia which was a tax on gun dealers.

It is interesting to note that he acknowledges that at the time “military-grade weapons” were protected and self-defense weapons were not. From his reasoning, the fact that self-defense weapons had limits on how they could be carried translates to total bans on classes of “military-grade weapons”.

Many times the idea of a concealed carry ban was to allow the local law to lockup people that were carrying “openly”. If you were carrying in a standard belt rig and your duster happened to cover it, that would be enough to get you locked up. In addition these laws allowed a great deal of opinion to be placed on if the firearm was actually concealed or not, and the courts would back the law officer in most cases. These laws were often implemented in very racist ways, with undesirables being disarmed and locked up much more often than those the law officer favored.

It is worth noting that even the exempted army/navy pistols could not be carried concealed, or even visible within a waistband or hip holster; the only way to carry legally exempted pistols was to hold them in one’s hand. is how Brennan puts it.

Previous scholarship addressing these statutes has cast them as racially motivated. Those articles did not investigate deeply the primary sources of the time. My research shows that these accounts have misrepresented the Tennessee and Arkansas statutes, which were enacted as a public safety measure rather than an attempt to disarm Black residents. The argument made by other scholars, again based on little more than inference, has been that most white men served in the Civil War or had the means to purchase an “army/navy” pistol, and that the army/navy exception was tantamount to a whites-only exception to this policy. Civil War soldiers on both sides of the conflict were unlikely to be issued a revolver unless they were officers, cavalry, or artillery; a great number of enlisted soldiers who possessed revolvers during the conflict had purchased them on their own, and at times their carrying of the weapons caused sufficient trouble within the ranks that officers confiscated them. Others discarded heavy and seemingly unnecessary pistols on long, grueling marches. Confederate service did not automatically correlate to white possession of an exempted pistol.
— Id. at header

This is a huge hand wave. The fact that he immediately focuses in on the Tennessee and Arkansas statutes has implications. Could it be that these are the only two states where he could find anything defending his position that gun control was not racist?

It is amazing to me that “All People Matter” can be called racist today but a law passed to disarm the newly freed slaves isn’t. What level of reality disconnect does this person have?

The Supreme Court has ruled that laws that are discriminatory are illegal. Thus all the “slave” laws and “black codes” are unconstitutional on the face. For these laws to be considered as analogous they would have to be considered constitutional.

On top of all of the above, the laws that he is discussing are all past the time of the ratification of the Second Amendment.

He attempts to get to the correct time period by getting the 1836 date into the record as soon as possible. That date is a patent date, not the date of any law supporting a tradition of gun regulation.

Col. USMC(Ret) Craig Tucker

Craig testifies that he has professional qualifications but at no point does he actually testify as to why he should be considered an expert at anything. He was in the Marines and was shot at.

He testifies that an AR-15 is an assault weapon under the definition of the law.

He testifies that because he never saw an M-16 or M-4 used in full-automatic that they are the same as AR-15s and since the military doctrine he is testifying to required military personal to use semi-automatic that an AR-15 is the same as a M-16/M-4.

I am familiar with the features, accessories, and capabilities of rifles regulated by Penal Code § 30515(a). The AR-15, like the M4, is an offensive combat weapon system. The only difference is the AR-15 cannot fire on full-auto (continual shots fired in succession so long as the trigger is pulled) or burst (several shots fired in succession with a single pull of the trigger)—a picayune difference that cannot serve to support a non-combat role for the AR-15. In my experience, soldiers are trained to set select-fire weapons to semi-auto mode, so that a single round is fired with each pull of the trigger. An M4 or M16 on full-automatic is an area fire weapon: the auto rate of fire makes the weapon too difficult to control on a point target. Rifle fire on full automatic is not aimed fire, uses an excessive amount of ammunition and will damage the weapon if used too often. In fact, in my 14 months of combat, I did not once see an M4 or M16 fired on full auto. Semi-auto function is used almost exclusively in combat. When operated in semi-auto mode, the AR-15 and M4 share the same rates of fire, the same maximum effective range, the same maximum range, use the same magazines designed for combat and the same ammunition. The AR-15 and M4 are both designed to fire a .223 round that tumbles upon hitting flesh and rips thru the human body. A single round is capable of severing the upper body from the lower body, or decapitation. The round is designed to kill, not wound, and both the AR-15 and M4 contain barrel rifling to make the round tumble upon impact and cause more severe injury. The combination of automatic rifle and .223 round is a very efficient killing system. The same can be said of the AR-15.
— Id. at header

His opinion about the lethality and wound ballistics of the 5.56×45 is utterly bullshit. On top of that, he gets the basic fact that the M-16/M-4 were designed to fire the 5.56×45 and not the Remington .223.

I hope this guy is the laughingstock of his next military reunion, if they will have him.

Dennis Baron

Dennis is an English and Linguistics professor who believes he is qualified to have an expert opinion linguistics of the Founding Era through Ratification.

He testifies that the Supreme Court got it wrong when they said “arms” means “arms” as defined by Webster. And that “bear” means “bear” as defined by Webster in the late 1700s.

The reason for this argument is that the state is attempting to get this court to use their expert’s opinion rather than the definitions given by the Supreme Court. While we might consider this to be wrong, remember that Judge Benitez did a similar thing when he ruled that the Ninth Circuit court got it wrong in regards to text, history and tradition.

Because he was studying language as a whole, and not language of the law, he feels he is better suited to determine what a word in the law means.

Reading these briefies and opinions it quickly becomes apparent that the language of the law is different from the language of the people.

This guys opinion isn’t worth the electrons spilled to create it.

John J. Donohue

John testifies that there is a growing problem of “public mass shootings” in the United States and that mass shootings with scary rifles causes increased injury and death.

He testifies that foreign countries passed gun bans and that those bans “helped” but, in my opinion, has nothing to really back that up.

Ok, here he goes to the extreme:

Threats to Civil Peace and to Democracy Itself

There is also a larger issue at stake with the proliferation of assault weapons: their capacity to facilitate political violence and threaten American democracy. The concern is heightened by the sharp rise in the percentage of Americans who think that violence against the government could be appropriate which doubled from 16 percent in 2010 to 34 percent in 2021 (over 40 percent of Republicans and independents and 23 percent of Democrats agreed).
— Id. at header

“Democracy Itself”??? Good thing we live in a representative republic and not a democracy.

Louis Klarevas

Mass shootings are a growing threat to public safety
The Use of Assault Weapons Is a Major Factor in the Rise of Mass Shooting Violence
Double-Digit Fatality Mass Shootings Are a Post-World War II Phenomenon in American History And They Often Involve Assault Weapons
Restrictions on Assault Weapons Reduce the Incidence of Gun Massacres, Resulting in Lives Saved

Emotional blackmail is not grounds for infringing on core civil rights though the state could be attempting to get use this to create a perception of a new societal issue.

Lucy P. Allen

You don’t need more than 10 rounds in a magazine because we did a study and found that …it is rare for a person, when using a firearm in self-defense, to fire more than ten rounds.

I wonder if she would be willing to walk through the darker parts of New York City wearing a short skirt because it is rare for a woman to be raped…

I will submit that needing to defend yourself in a physical situation is rare. I will submit that it is even rarer that deadly force is legal in those cases. I will submit that it is even rarer still to need more than 10 rounds.

You don’t get to tell me how many rounds is reasonable. If I feel that 18 rounds in the gun and three magazines is reasonable for me, you don’t get to say that 72 rounds is to much and I should have less than 40.

Her second argument is that rifles aren’t used very often for self-defense.

Ms. Allen is the Chair of the Product Liability and Mass Torts Practice. In the area of tort economics, she has estimated the number and value of claims likely to arise from allegedly defective or harmful products, including asbestos, talc, medical products, consumer goods, chemical and pest control, and building materials. She has provided consulting services and expert testimony in a variety of settings, including forecasts for financial reserves and regulatory disclosure, bankruptcy hearings, M&A due diligence, fraudulent conveyance actions, and insurance allocation disputes.
— Lucy P. Allen Profile at NERA

So her expertise is in how much people should get in tort cases. I don’t see anything in there about how much of an expert she is in self-defense.

The state is putting forth her opinion because they will argue that rifles and “assault weapons” are not within the core right of self-defense. They will refer back to Heller to say that only the core right of self-defense is fully covered by the Second Amendment.

Michael Vorenberg

I’ll just give you his summary of opinions. The gist is that only the Military used lever action rifles and they were very uncommon in civilian hands.

This Report 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.
— Id. in header

So there you have it, because of his opinion of who owned guns post-Civil War you should be banned from owning “high capacity semi-auto rifles”.

Randolph Roth

He gives his expert opinion on the history of homicides and mass murders in the United States. He is going to focus on the role that technologies have played in shaping the character and incidence of such murders.

It is a good thing that the history of murders has nothing to do with the text, history and tradition of the Second Amendment.

Robert Spitzer

This is one of the most polished opinions given. His Supplemental Expert Report runs to 255 pages.

He gives the history of regulation of machine guns including bans on magazine sizes starting in 1920s.

He then opines that the existence of repeating arms in 1791 doesn’t mean anything because they were not adopted for military use. Except that they were, per his own testimony, but they weren’t reliable enough so the military stopped using them.

He misses that the entire rebuttal argument of these repeating weapons wasn’t to say they were popular, common, or in military use. The rebuttal argument is that the founding fathers knew about them when the Second Amendment was ratified.

Having established that there is a history of machine gun regulation and magazine regulation in the 20th-century, he then tries to tie that back to restrictions on the way certain knives, clubs and pistols were carried and restrictions on the use of booby-traps with guns.

So he can’t point to laws restricting the possession of classes of arms prior to the 20th-century. He can’t point to laws restricting the possession of arms. The closest he can come is restrictions on how to carry arms of certain classes of arms and setting booby-traps.

Ryan Busse

Paraphrase:

I use to work for Kimber doing my best to sell guns, then I had a come to Jesus moment and since then I’ve been doing my best to sell gun-right infringements for Giffords.

He testifies that the AR-15 qualifies at an assault weapon and that in his experience a firearm does not need any of the devices, accessories, or configurations listed in the AWCA to operate as intended, and they are not necessary to use a firearm effectively for self-defense or other sporting purpose, like hunting.

Good thing it is a bill of rights and not a bill of needs.

Saul Cornell

Saul is here to tell you that it requires a sophisticate grasp of historical context in order to understand the scope of the Second Amendment. In his opinion, the people of the founding era were well versed and educated and intended for American Law to include the English law that supports gun right infringements.

Thus, from its outset the Second Amendment recognizes both the right to keep and bear arms and the right of the people to regulate arms to promote the goals of preserving a free state. An exclusive focus on rights and a disparagement of regulation is thus antithetical to the plain meaning of the text of the Second Amendment. Although rights and regulation are often cast as antithetical in the modern gun debate, the Founding generation saw the two goals as complimentary.
— Id. from header

This is a new argument for me. Saul is arguing that shall not be infringed actually means that the government can place any regulations it wants on the right to keep and bear arms.

The Plaintiff’s Rebuttal Experts

Ashley Hlebinsky

Ms. Hlebinsky is the former Curator-in-Charge at the Cody Firearms Museum. This is the museum that took all of the Winchester reference collection when the Winchester company decided to donate it to a museum for a public display. Forgotten Weapons has a number of episodes filmed at the Cody Firearms Museum.

Her rebuttal talks extensively about the history of repeating firearms prior to 1791, iterating that the founding fathers were well aware of repeating firearms and that they were aware that there would be technical progress in firearm technology.

Then she blows Michael Vorenberg’s testimony about lever action rifles only being used by the military and being unusual. See previous quote.

It has been cited and challenged that the Winchester Model 1866 was the first magazine-fed repeater that held more than ten rounds to achieve commercial success. The Winchester Model 1866 lever action rifle was the first firearm sold using the Winchester name. Between 1866 and 1898, approximately 170,101 Model 1866s, in .44 Rimfire, were produced. Of that model alone, around ten variations existed. It was hoped that the Winchester Model 1866 would see successful adoption by the US military, however, it did not. Only a small percentage, roughly 1/3 of total production, were made ultimately for use by foreign militaries. According to another statistic, between 1861 and 1877, a total of 164,466 Henry and all models of Winchester were made, with approximately 56,000 going to foreign governments. This number, even with the inclusion of other models, still is only 1/3 of all sales. The Winchester factory records before 1900, show that only 3,835 musket configurations of the Model 1866 were produced, beginning after serial number 124,995. However, it should also be noted that while reference to this military contract exists in secondary source material, primary source evidence of foreign contracts are not well documented and in some cases, questionable. In reference to his Model 1866, Oliver Winchester referred to it as “one of [the company’s] best sporting guns” in a letter, dating 1871, to prominent gunmaker R.S. Lawrence. In a Winchester testimonial from 1865, W.C. Dodge, Late Examiner of the US Patent Office, boasted that Winchester’s “Magazine Rifle, with the recent improvement, is superior to any other arm ever presented to the public.” In the beginning, Winchester did lean into its previous involvement with the Henry rifle as a marketing tool because it was a known commodity, however, within a decade after the company’s founding, Winchester catalogs detailing their sporting models and diverse product lines were interspersed with testimonies from hunters and civilians about their love of the technology. The categories for their 1875 catalog reads: “Winchester’s Repeating Fire-Arms, Rifled Muskets, Carbines, Hunting and Target Rifles, &c…” One such testimonial was from famous performer, William F. Cody, proclaimed, “I have tried and used nearly every kind of gun made in the United States, and for general hunting or Indian fighting, I pronounce your improved Winchester the boss.” While it is true that Cody owned and used a Springfield Model 1866 Trapdoor that he named, Lucretia Borgia, he owned and used many firearms during this time and throughout his life. Firearms are designed with different purposes and needs in mind. The Springfield was chambered in .50-70, so it was a good option when hunting bison. This firearm was designed by Springfield Armory’s Erskine Allin and its first model was in 1866, the same year as Winchester’s first firearm. Within less than a decade, Cody’s name would become forever intertwined with Winchester. Despite the ways that Winchester chose to frame and market their firearms though, it should be noted that while advertising can influence a consumer, a consumer also has agency to purchase and use the product they want for their own purposes.
— Id. from header

Here she just evesorates Mike. Every one of her statements is footnoted with a link back to primary sources. The numbers she talks about for the 1800’s are nearly at the 200,000 that is the current lower limit of “in common use”.

All in all, very powerful testimony.

Clayton Cramer

Mr Cramer is here to rebut that guns increase violence, murder and homicides. His words are better than mine:

This Expert Declaration and Report analyzes Prof. Roth’s Supplemental Expert Report concerning the “history of homicides and mass murders.” There is much merit in Prof. Roth’s analysis of the history of murder in America. I take exception primarily to his interpretation of the influence of firearms technology on murder and mass murder in particular.
— Id. from Header

This seems to be a detailed take down of Roth’s opinion. Since Roth’s opinion is irrelevant to the question of constitutionality of a semi-auto rifle ban I don’t really care that his opinion is bogus.

Gary Kleck

Mr. Kleck’s rebuttal takes on Lucy Allen’s claim that banning magazines that hold more than 10 rounds will have substantial benefit.

He starts with a strong declarative that Few Mass Shootings Involve Large-Capacity Magazines

He attacks her claim that most self-defense uses of firearms use less than 10 rounds by pointing out that the number of self defense uses far out numbers the number of times “LCMs” have been used in mass shootings.

He rightfully points out that Lucy has no way of knowing what would have happened if a mass shooter used different weapons or magazines. She is guessing.

It has been stated that the asshole that shot up the Stoneman Douglas High School didn’t use any “LCMs” but instead magazines holding 10 or fewer. I have no primary source for this claim.

He goes on to attack Klareva’s expert report.

If a short description was required, Mr Kleck’s rebuttal takes on the unsupported assertions and hyperbole of the states’ experts.

J Buford Boone, III

This guy is an expert on terminal ballistics in flesh, i.e wound balistics. This take down of Col. USMC(Ret) Tucker is worth repeating

It is my opinion that Colonel (Ret.) Tucker’s report is plagued by inaccuracies and opinions that are contradicted by fact.

His claim that a single small arms projectile is capable of “severing the upper body from the lower body, or decapitation” is so ridiculous that it should, and actually does, cast doubt on his qualifications as an expert in the field of firearms, particularly as it relates to wound ballistics.

Additionally, there is an inconsistency in his opinion in that, at one point, he states that stabilizing attributes (pistol grips) are inappropriate for self-defense while in the next point he says an attribute (folding stock) is inappropriate for self-defense because it is destabilizing.
— Id. from header

In Mr Boone’s previous submission in his first rebuttal to Col. USMC(Ret.) Tucker he explained where he believes the myth of catastrophic injury from 5.56×45 rounds come from.

Mark Hanish

Here are his own words on what he is doing

In this document, I will provide a general statement on the popularity of AR-15 style and similar rifles and their standard features and use in the firearms market in regard to the California’s Assault Weapons Control Act (AWCA). I will then discuss the importance of particular features to the fundamental operation of a semi-automatic firearm, as well as address their extensive use before and after 1994 when they were first regulated federally, and the ways in which manufacturers have responded to the changing in legislation. I will conclude on a discussion surrounding the 1911 style semi-automatic pistol and its waning popularity in a defensive handgun market in favor of smaller caliber and higher capacity pistols that are far superior for the broadest spectrum of self-defense uses.
— Id. from header

State’s Rebuttal to the Rebuttals

This is just a bunch of “experts” arguing that the other expert is wrong.

This is exactly why we don’t want experts telling us what the Second Amendment means or opining on which laws are similar to the infringements the state wants to impose.

Most of this really should just be thrown out of court.

Conclusion

The state is attempting emotional blackmail in order to get the Court to include something outside of the bounds of the Bruen opinion.

Unlink Judge Benitez, who focused on history and tradition, this Judge is allowing huge amounts of spurious testimony to be entered. We’ll have to wait to see how she rules to know if she is going to obey the Supreme Court’s instructions to the inferior courts, including hers.