There are three methods for people that are not members of GunFreeZone to give feedback on normal articles.
They can create a WordPress.org account and click the “like” button on a post. This attaches their wordpress avatar and name to the like.
They can click the thumbs up button on a comment. This is completely anonymous.
They can click the thumbs down button on a comment. This is completely anonymous.
I hope this clears up any confusion I created.
Original
I have noticed and a couple of readers have noticed that there are more thumbs down on the blog than theirthere use to be. This leads me and some of our readers to wonder Whiskey Tango Foxtrot?
I’ll start with Never attribute to malice that which can be adequately explained by stupidity You can replace “stupidity” with all sorts of other words but the gist stays the same.
First, when you use the like button at the bottom of a post you need to have a WordPress.org account and your handle and avatar are attached to that. So for example I notice when “OldNFO” likes my post. He made a decision not to become a paying member at the blog but continues to read and continues to give feedback whichwhat he can.
Thank you for still being a read OldNFO. Makes me feel good. There are a couple of other regular “Likers” of the same sort. Thank you to all of our readers.
So next we look at those thumbs up and thumbs down buttons. In the past people used them as an acknowledgement tool. You post a comment and I post a reply and instead of posting a reply to my reply you just click the “Likey” thumbs up button.
If you don’t agree but not enough you just leave it be. No thumbs up, no thumbs down.
If you disagree you will likely reply and a conversation takes place.
We almost never used the thumbs down button. As was observed.
Today there are many more people that read but don’t comment. So when they disagree with you they can’t reply, instead they give it a thumbs down.
So at first flush, I think that the increase in thumbs down is a direct result in us trying to monetize the blog.
Unfortunately, the thumbs up/thumbs down buttons are completely anonymous. There is code to make sure that they can’t be mass mashed but that is it.
So for the time being let’s just see where it takes us. Maybe we figure out something to let people do a one time comment or something like that. All it takes is a small bit of code… (That’s an inside joke for developers/coders)
Awa, you’re correct about Fink’s manner of writing, but the context and conclusions of that writing are completely misplaced because he doesn’t fully understand Use-of-Force Law in the U.S. I’ll post an example and my take on it.
Example:
To illustrate the real-world impact of this honest-belief-only standard, recall embattled Rittenhouse prosecutor Thomas Binger. In his closing arguments, Binger asked the jury repeatedly what a “reasonable person” would have done in Rittenhouse’s position: “Would you have gone out after curfew with an AR-15 looking for trouble? Would you have aimed at other people? Would you have tried to use the gun to protect an empty car lot? No reasonable person would’ve done these things!”
Prosecutor Binger’s near-singular focus on the alleged unreasonableness of Rittenhouse’s conduct serves to highlight how game-changing England’s honest-belief standard is. In England, the jury would not need to be persuaded of the objective reasonableness of Rittenhouse’s asserted belief that deadly force was required to ward off an imminent attack. Instead, Rittenhouse would be entitled to an acquittal if the jury merely concluded that he honestly held his belief. Suffice it to say that it does not take a practitioner with years of in-the-trenches experience to recognize that this honest-belief-only standard imposes significant additional burdens on prosecutors. It removes the objective reasonableness safeguard and requires prosecutors to focus their entire energy on the difficult task of disproving defendants’ claims about what they were thinking when they, say, pulled the trigger.
Example: In Germany, on the other hand, Rittenhouse would have merely had to persuade the fact finder that his exercise of deadly force was necessary to prevent the attackers from, among other things, robbing, assaulting, or battering him. Prosecutor Binger argued that “Joseph Rosenbaum was chasing after the defendant because he wanted to do some physical harm to him, but you don’t bring a gun to a fist fight.” Such a contention could carry weight in the United States. But if prosecutor Binger made this argument in Germany, he would be conceding that a non-trial attack was in Rittenhouse’s future, thereby all but guaranteed a speedy acquittal.
My Take:
Fink has misapplied Rittenhouse case by presenting prosecutor Binger’s distorted interpretation of Rittenhouse’s use of force as if it is a true representation of the application of US Use of Force Law, which it is not. And as the end result of the case played out, it turns-out the Rittenhouse case was completely in agreement with Germany’s laws, proving that US Law accurately applied as intended, actually produces the same end result—justified use of force. Fink uses the grossly distorted leftist liberal interpretations of US LAW as presented by Binger as if it is an example of the legal intent of US LAW. Just because a liberal leftist prosecutor grossly distorts the law as written and applied it deceptively, using outright lies, doesn’t mean it’s a credible example of how US Law regarding Use of Force should be upheld by prosecution in a court of US Law. Only a liberal leftist mindset would believe Binger was “embattled”, meaning the prosecutor here was bond by law and doing his legal duty and was therefore credibly representing the law as written i.e., Rittenhouse had no right to, use-o -force law protection. This is not a good example of the point Fink believes should be considered to prove his assertion. But he believes it is. He therefore gives the liberal leftist mindset on Use of Force, credence by using an incorrect interpretation of Use of Force Law. Fink doesn’t make a distinction of, nor separate, social activism from actual law.
Fink later states again, the Binger’s argument could ‘carry weight’ in the USA but not in Germany. This is again conflating Use of Force Law regarding objective reasonableness by disregarding or omitting subjective reasonableness as a key determiner in judging objective reasonableness. To be “Objective” one must understand the defendant’s subjective reasoning, in error or not.
.
Fink’s final statement: Ultimately, such impactful misconceptions distract us from having a more fully informed debate about the appropriate role of, and justification for, self-preferential deadly force in a modern, democratic nation. Correcting such fallacies, then, is a vital first step towards a more balanced and promising conversation about criminal justice reform in a pluralistic society like ours.
.
I believe he does not realize that he in fact has added to ironically, ‘misconceptions which distract us from having a more fully informed debate…..’ by using bad cases upon which to base his premise. But perhaps he knows exactly what he’s doing. After all, prosecutors across this nation cringed at the legal arguments presented by Binger on Use-of-Force Law in the Rittenhouse Case.
— Why are they arguing outside of Bruen comment section
David, what you are saying is interesting but I do not read it the same way.
Self-Defense is an affirmative defense. At that point the state, represented by Binger, has to prove that it was not self defense. There are certain requirements for an action to be considered self-defense.
Innocence. You can’t start the fight
Imminence. The threat is either happening or about to happen very soon
Proportionality. The response has to match the level of threat. You don’t get to shoot somebody because they spit at you.
Avoidance. Could you have avoided the fight?
Reasonableness. Were your actions reasonable as perceived by an outside source
You can’t say “I was scared for my life” because somebody is across the street yelling towards you. That same person rushing across the street towards you could be reasonable.
For example:
Miguel! Miguel! It’s been ages!
Woman rushes across the street towards Miguel who shoots her dead because that’s what a reasonable person does when an old acquaintance crosses the road to meet you.
The other side of that example is that it isn’t a woman from his past, instead it is a beefy angry looking bald dude a big hammer and sickle tattoo who is yelling in anger before making a bull rush across the street after dark.
One is reasonable, one is not.
Binger was attempting to get the jury to determine that Kyle’s actions were not reasonable. The aspects of self-defense will be given to the jury as jury instructions before they go to deliberate. The word “reasonableness” will be in those instructions.
If Binger can convince the Jury that Kyle had not acted in a reasonable manner then the Jury might find Kyle guilty. The defense would have and did make the argument that “reasonableness” is in regards to the act at the time of the act.
Was it smart for 17 year old Kyle to be in that location, at that time, carrying an AR-15? Not for me to say. I would not have wanted my 17 year olds anywhere near that location, armed or unarmed.
Regardless, there was nothing that was happening at that moment in time when Kyle was at the car lot that has any bearing on the case.
Dr Funk is comparing English Law to US Law. He is saying that since “reasonableness” is not part of the requirements for a self-defense claim in English Law, Binger’s argument would make not difference at all.
I didn’t see anything I really found wrong in Funk’s paper. I think he did an Okay job of showing that US self-defense law is reasonable in its limits and freedoms.
Regardless, thanks for bringing the paper to my attention.
Last week, as I was digging through the filings in Rupp v. Bonta this song popped up in my music queue. I think I had heard it way back when, but certainly nothing more recent than a decade or two.
There is one thing I have learned about lawyers in my many years, my lawyers have all been good people, their lawyers have all been assholes.
My lawyer wayback when hired a new secretary. When I came into see my lawyer she recognized me. She use to work at a different lawyer’s firm. That firm had represented my wife during our divorce. I had a terrible hatred for that dude because of the way he helped my wife get one over on me.
Anyway this secretary, when she recognized me, told me that she remembered me from coming into her office. How she had appreciated how I had treated her and the rest of the staff. Then she shocked me by telling me that my ex-wife’s lawyer liked me better than he liked his client and thought I had done a good job of representing myself in the end.
Lawyers are like the pitbulls that J.Kb. talks about. They are vicious and nasty and evil, but when they are protecting you, that is exactly what you want. You just have to be careful they don’t get off their leash.
Lawyer Jokes in bad taste
Q: What do you call 25 attorneys buried up to their chins in cement?
A: Not enough cement.
Q: What do you call 25 skydiving lawyers?
A: Skeet.
Q: How can you tell when a lawyer is lying?
A: Their lips are moving.
Q: Why did New Jersey get all the toxic waste and California all the lawyers?
A: New Jersey got to pick first.
Q: What do you call 5000 dead lawyers at the bottom of the ocean?
A: A good start!
The first thing we do, let’s kill all the lawyers.Henry VII, William Shakespeare
It seems that my long articles aren’t scaring you all off to much. On Sunday’s post I made some changes to add section headers to make it easier to read and used the “read more” option let you decide if you are truly interested in reading more about that subject.
People don’t seem to have an issue with my pull quotes, so for the time being I’ll continue to do them as I have been.
I have started to do a few more short quotes with links back to the sources to make somethings shorter.
I’ve written about how certain phrases in the Supreme Court opinions seem to leave an opening for the gun infringers to attack. I noted, shortly after Bruen that Justice Kavanaugh concurring opinion mentioned “sensitive places” and as such I thought it would lead to the gun infringers attempting to make as many places “sensitive” as possible.
I did not understand how we ended up with means-end after Heller.
Heller was notoriously opaque about the standard of review it was applying, which was curious given the amount of time the parties spent sparring over the issue in their briefs and at oral argument. Perhaps anticipating that his opinion would be
criticized for not being explicit about the standard of review, Justice Scalia said, in essence, “hey, Rome wasn’t built in a day.” Early on, a consensus began to emerge, based on Justice Scalia’s explicit rejection of some form of rational basis review, the refusal of the Court explicitly to embrace strict scrutiny and the Heller safe harbor listing presumptively lawful regulations, that some form of intermediate scrutiny was appropriate. Lower courts then began to apply that test in various forms and upheld all the major regulations that came before them. In just a few paragraphs, however, Bruen essentially overruled a decade’s worth of Second Amendment jurisprudence and reopened previously-settled questions about the constitutionality of laws ranging from the prohibition of possession by individuals under a protective order to assault weapons bans to bans on high-capacity magazines.
— Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen
Note that I disagree with large parts of the article cited above. They are arguing that Bruen was a huge departure from Heller and that when Justice Thomas said that the lower courts got it wrong it was in fact the Supreme Court that was wrong.
They argue that the Supreme Court was wrong in that they did not explicitly tell the courts how to adjudicate Second Amendment cases and that even though they mentioned text, history, and tradition, the Heller Court didn’t actually say that was the standard to be used plus the discussion by Justice Scalia of levels of scrutiny meant that the Heller Court intended inferior courts to use means-end levels of scrutiny.
Heller introduced two major changes to the gun rights litigation landscape, first it defined the scope of the Second Amendment to be individuals, not the militia and second it told the inferior courts that second amendment cases had to be analyzed using text, history and tradition.
What did this mean to us? It was the first time in decades that some of the worse laws in the land could be challenged.
Consider bringing a case saying the 1989 AWCA of CA was unconstitutional under the Second Amendment in the early 2000’s. At that time the Ninth Circuit court had issued their opinion that the Second Amendment only applied to militias. Furthermore, the states were allowed to regulated militias.
Because of this, the only entities that the Ninth Circuit court said had standing was the State in regards to the State’s militia.
In order to win your lawsuit you would have to win at the district level, unlikely, appeal to the circuit court and be granted a hearing and win, or you could lose at the circuit court level or be denied a hearing at the circuit court level and appeal to the Supreme Court.
The Supreme Court at that time wasn’t looking to hear a second amendment case.
In addition, the rules on appealing to the supreme court if the circuit court did not grant certiorari. Normally we speak of certiorari in regards to the Supreme Court but according to Cornell Law School web page it also happens at the appellate court level.
It is unclear from a brief bit of research when, if ever, a case denied a hearing at the circuit court level is allowed to appeal to the Supreme Court. It might just be that the Supreme Court just doesn’t hear those cases, in general.
In this instance the courts are stacked against us. The state legislature has created a law that they hope the state can defend in court, the population of the area might lean anti-gun, the district court and lower state courts all lean anti-gun, the appeals court (or state appeals court) lean anti-gun and the state supreme court likely leans anti-gun.
The ability to get past this bulwark of infringement is nearly impossible.
While this particular situation is based on the Ninth Circuit court and California, the same situation existed in the other anti-gun states. Those states that were huge infringers were also the states that existed within circuit courts that supported the concept that the second amendment only applied to the militia.
On the other hand, there were states and circuits that understood that the second amendment applied to The People. …,The Right of The People to keep and bear arms shall not be infringed.
But these courts didn’t have states attempting the huge infringements. At most they were minor infringements and the circuit courts struck them down and the states didn’t push to the Supreme Court.
It required good people living in anti-gun territories to stand up over and over again trying to get just one case through the infringement allowing circuits to the Supreme Court. This is expensive. Often when the plaintiffs (good guys) lost they were punished by having to pay attorney fees to the state.
Yet people did this over and over again. These were unsung heroes of the battle for the Second Amendment.
One of those heroes was Mr. Dick Heller. In 2003 he filed suit in the U.S. District Court for the District of Columbia. The district court dismissed the case for lack of standing. Heller et all appealed to the U.S. Circuit Court of Appeals for the D.C. They determined that only Heller had standing.
The United States Government then filed for certiorari and it was granted. Finally in March of 2008, 5 years after the case was first filed, the Supreme Court heard Oral Arguments. They decided in June of 2008 and the Heller decision came into existence.
Why was this such a big deal? It was a big deal because it meant that for the first time in decades the people could actually fight for their rights under the Second Amendment in court. The arguments presented by the state, prior to Heller were all about denying standing to the plaintiffs.
There was no need for the Government to defend their law(s). The plaintiffs were always arguing at a disadvantage to just get their cases heard. The arguments were all about standing, not about the infringement of any right. In most cases, the Due Process Clause and the Takings Clause were about getting standing.
Post Heller in 2008 we quickly saw the McDonald case which told the states that the Second Amendment applies to them as well. It wasn’t just the Federal Government that couldn’t infringe, it was the states as well.
This started the next stage of court battles.
While Heller said that the courts had to use text, history, and tradition of firearms regulation the inferior courts did not stick with just that.
Judges are human and quickly succumbed to the emotional blackmail of the state.
We might joke about If it saves just one child/life the blunt truth is that the claim of saving the life of a child is very very powerful.
While my wife really really didn’t get the problem with giving our younger children balloons to play with she looked at the Homer buckets with their warnings about it might kill small children and all of the plastic bags with the same types of warnings and shook her head in disbelief that this sort of warning was required. The reason it was required was that it took the death of only one child to turn the hearts of a jury against some corporation and suddenly a parent that killed their child was getting a huge payout from a corporation.
The courts were asked by the state to look at the good of the people vs the burden imposed on the individual. To see that the good of the many over weighed the good of the one.
Again, a powerful argument. The courts then looked at the issue and the earlier cases seemed to decide on a case by case basis.
The arguments then devolved into:
Was the the “core” right of self-defense implicated?
How much was the individual burdened by the law
Did the state have a compelling interest to pass the law
If there was a compelling interest and if there was a burden on the individual, was it better that the individual suffer or society as a whole
This was premised on the concept of the end justifies the means. Since there is common understanding that the end justifying the end isn’t really a good argument this was shortened to means-end.
Once there was case law at the circuit court level we find that second amendment cases quickly became pretty standardized.
The plaintiffs(good guys) would point out that their right to keep and bear arms was being infringed. The state would then grant that there was an infringement and immediately move to creating a situation where means-end could be applied.
That process normally consisted of the state explaining that the plaintiffs had other means of self-defense so that the infringement in question did not remove the core purpose of the second amendment. Because the Supreme Court in Heller used core lawful purpose of self-defense the state then argued that self-defense was the only core lawful purpose of self-defense.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
— Heller v. DC @2787
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel …, each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D.C.Code § 7-2507.02. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A.2d 744, 755-756 (1978).
— Heller @2819
These are the places where Justice Scalia used the term. Because he used this term the state and lower courts determined that there were levels of infringements, which they called burden. “What is the burden on the core right of self-defense under the Second Amendment?” is the question the courts were asked to answer.
This leads to the primary use of the courts, to answer questions of fact. If everybody agrees on the facts there is no conflict. The court might then be asked if the law violates the rights of the individual.
When analyzing Rupp v. Bonta it quickly became apparent that under the means-end of post Heller that the state wasn’t interested in denying that their laws were infringements.
Plaintiffs’ due process claim is without merit. Their contention that the date and source registration requirements arbitrarily deprive owners who do not have that information of their assault weapons fails. The AWCA and its registration requirements are rationally related to the Legislature’s public-safety objectives, which are not just legitimate, but compelling. See Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015).
While a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause, the AWCA’s date and source registration requirements survive a due process challenge as a matter of law. Regulations “survive a substantive due process challenge if they were designed to accomplish an objective within the government’s police power, and if a rational relationship existed between the provisions and purposes” of the regulation. Levald, 998 F.2d at 690 (emphasis in original and quotation omitted). The “threshold for a rationality review challenge asks only ‘whether the enacting body could have rationally believed at the time of enactment that the law would promote its objective.’” MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1130-31 (9th Cir. 2013) (emphasis added and quotation omitted).
— Defendant’s Opposition to Plaintiffs’ Motion for Preliminary Injunction – Rupp v. Bonta
What this points out is that as late as 2017 the state was arguing that even due process was at the whim of the government. If the burden imposed on the individual of the state no allowing/following due process was not too much and it was for the common good, then the state could suspend your right of due process. The state argued similarly regarding the Takings Clause.
Having easily disposed of the Due Process and Takings Clauses the state moved on to the second amendment aspect.
Here the argument was that while the law might be an infringement, we don’t agree that it is, but that it might be and we, the state, will stipulate to that, it isn’t a burden on the core right of self-defense.
Once it is determined that it is not an infringement of the core right of self-defense the court is allowed to continue with means-end by choosing the level of scrutiny.
One useful way to think of a level of scrutiny is a way of expressing an overall balancing test, where what we’re balancing is the importance of what the government is trying to achieve by the alleged rights violation or classification (hereafter “government action”) and necessity of the government action to the government’s ends against the perniciousness of the kind of government action under consideration. Then the choice between the three levels of scrutiny, strict scrutiny, intermediate scrutiny, or rational basis scrutiny, is the doctrinal way of capturing the individual interest and perniciousness of the kind of government action. Race discrimination is really dangerous and nasty, so we’re going to apply strict scrutiny to it; violating a fundamental right like the right to vote, ditto. Regulating commercial speech (i.e., advertisement) under the 1st Amendment is probably less dangerous and nasty than regulating speech for its political content, so it only gets intermediate scrutiny, and so forth.
— 14th Amendment Course Note on levels of scrutiny by Paul Gowder
Strict Scrutiny is what the Court applies to fundamental rights violations (at least formally, in name—in practice it often applies something else) and suspect classifications under the Equal Protection Clause
— Id.
Intermediate Scrutiny
Like strict scrutiny, the burden of proof is on the government, and like strict scrutiny, you can’t use after-the-fact invented justifications.
The big difference, however, is in the actual level of scrutiny applied. Where for strict scrutiny, the government needs a compelling interest, in intermediate scrutiny the government merely needs an important interest. And where for strict scrutiny, the government action has to be narrowly tailored to the interest, in intermediate scrutiny the government action must only be substantially related to the interest.
— Id.
Rational Basis
As we know by now, rational basis is the default rule for if we don’t have some other standard of review that applies. And rational basis is extremely deferential. The court will uphold a government action under rational basis if it’s rationally related to a legitimate government interest.
Rational basis is easy. Basically, the government almost always wins. First, the government merely needs a “legitimate” interest, which can be something like administrative convenience or saving a little bit of money.
— Id.
The state and courts couldn’t get away with Rational Basis so they tried to get the courts to apply Intermediate Scrutiny. Under intermediate scrutiny they just had to prove that the state had an important interest and that the law was substantially related to that interest.
This is easy. The state just has to say “This law is for public safety.” The plaintiffs then have to argue that it isn’t for safety. This is an extremely difficult case to make. It is entirely possible to look at a ban and say but it will save a child! and that is both important and substantially related to that interest.
The thing the state did not want to happen is to have the courts decide to apply text, history, and tradition.
This is what Judge Benitez did. He looked at the case before him, a magazine ban, and applying the Supreme Courts opinion in Heller said that the Ninth Circuit Court of Appeals had misinterpreted the opinion. That he, at an inferior court, was doing it right.
The Ninth Circuit court than slapped him down. Just like they had done previous 2A cases.
In this case though, Virginia Duncan and her team didn’t stop with the Ninth Circuit court and applied for certiorari. The Supreme Court heard the request in conference and did not grant certiorari. They also did not deny it. The case sat in limbo until Bruen.
Well you guys really aren’t very interested in me. You were more interested in another Q&A with Hagar than me. You were more interested in nobody than me. You were more interested in J.Kb. than me.
You were mostly interested in Miguel. I shouldn’t be surprised. I’ll ask if he’ll do it. No promises. You don’t have to worry though, no AMA for me.
Hey guys, I’m not upset, this is why I put up the polls. It makes it easier to find out what you all want to hear about.
B.L.U.F. This is the California case challenging California’s assault weapons ban. This case was first heard in federal district court. It was then appealed to the Ninth Circuit Court of Appeals. This case worked its way through the appeals process until 2021 where it was put on hold pending the Supreme Court hearing Duncan v. Bonta. After Bruen the Supreme court GVRed Duncan v. Bonta and the Ninth Circuit then vacated and remanded Duncan v. Bonta back to the district court as well as vacating and remanding Rupp v. Bonta to be re-adjudicated at the district level.
This is a history and break down of the case.
In 1989 California passed the Roberti-Roos Assault Weapons Control Act of 1989, known as the AWCA. It defines an assault weapon in the general way, a semi-automatic centerfire rifle that is scary looking. Fill in the blanks. Of course they add on a bunch of firearms by name, just in case their description wasn’t inclusive enough.
Part of the law restricts all transfers of “assault weapons”. This means that if a rifle is registered when the person the registered owner dies there is no way for the owner to transfer the firearm to their heirs. A grandfather clause that pushes a total ban a generation or so down the road.
In 2017 California passed an amendment which made it more difficult to have a neutered AR-15. Because the original definition of an “assault weapon” included a detachable magazine and the definition of a detachable magazine was one that could be removed without a tool people developed the “bullet button.”
In short it was a replacement for the magazine release that required a small sturdy pin to be pressed into the magazine release in order to activate the mag release. It was called a bullet button as the most common “tool” used was the tip of a 5.56 round. There were rings sold that had a small stud on them that fit the bullet button hole to allow people to easily carry the tool in a useful way.
When the people analyze a law they look for what is legal and not legal. If they decide to remain legal they will follow the letter of the law. If that violates the spirit of the law, the left calls that a “loophole”.
Thus, the fact that I can sell you a firearm in the parking lot of a gun show is perfectly legal if we are both residences of the the state is called a “loophole” or “gun show loophole” by the left. The fact that I can pick up my firearm after a short period of time if the government doesn’t deny me permission is perfectly legal. According to the left, this is the “Charleston loophole”. Donald Trump paying the taxes he owes and not more is a “loophole”. Exxon paying more than required in tax withholding over the course of the year and then getting their money back is a “loophole”.
Bullet buttons allowed people to use their own property the way they wanted to use it. The left was extremely unhappy and yelled that this was illegal, it wasn’t. So the left labeled it a “loophole” and set about closing the loophole.
On 2017-04-24 Steven Rupp et all filed a complaint for declaratory and injunctive relief from this infringement. This is nearly 10 years after the Heller decision. The plaintiffs(good guys) are being represented by Michel & Associates, P.C., the same people representing Virginia Duncan in Duncan v. Bonta.
The short of it is that they want to overturn California’s AWCA and stop California from infringing on the rights of their citizens. The plaintiffs attack the AWCA on multiple fronts including Second Amendment infringements, Due Process violations and violation of the Takings Clause.
The case was assigned to Federal District Judge Josephine L. Staton, not Judge Benitez.
The state immediately attempts to get the Takings Clause and Due Process Clause dismissed. Well, immediately when talking court proceedings pace.
The short of the defendants(bad guys) argument is that banning the transfer of certain rifles causes no economic loss to the plaintiffs. And because the plaintiffs are allowed to keep those rifles until they die nobody took them.
Now we get to the first interesting bit. The “Due Process Clause” is part of the Forth Amendment. The state does not argue that they didn’t violate due process, instead they claim California’s prohibition on assault weapons is rationally related to its objective of promoting public safety in California.
That sounds very familiar. The state arguing that they don’t have to follow the constitution because they have a laudable goal.
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
— U.S.A. v. Rahimi – United States Court of Appeals for the Fifth Circuit
It seems that at least in the Fifth Circuit, laudable policy goal[s] do not override the Constitution. Maybe the Ninth Circuit Court and the AG of California might decide the same thing at some point in the future.
This law suit seeks to vindicate the right of law-abiding Californians to possess firearms that for years have been among the most popular choices of Americans for self-defense. Not only does California’s sweeping Assault Weapon Control Act violate the Second Amendment, it results in the taking of private property by the government without just compensation. The law both eliminates the ability of Californians to pass certain firearms on to their heirs—a long-recognized property right—and, in many cases, forces current gun owners who are unable to register their firearms to forfeit them. Under the regime, property rights are diminished retroactively based on a wholly irrational classification system, in violation of due process.
The State argues that there are few limits to their regulatory authority. Perhaps most egregiously, the State contends that the state enjoys a blanket police power through which it may evade the constraints the Constitution places on the exercise of government power. Fortunately, the State’s argument has been thoroughly rejected by the Supreme Court. There are substantial limits to state authority—limits the State of California has crossed.
— Plaintiffs’ Opposition to Defendant’s Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims
Part of the plaintiffs argument for a TRO is that the law requires people to register their rifles. The form that they are required to use has required fields. One of those required fields is “firearm acquisition date”. Many people have no idea the date they aquirried anything. Unless there is a particular reason to keep those records, people don’t.
The original registration form is no longer easily located online. It is not unreasonable to assume that the original form had dire warnings about filling out the form incorrectly or “lying” on the form. Saying that you acquired a particular in 1995 when in fact you acquired in in 1996 is the sort of thing that gets you in trouble.
In addition, as a programmer, I know that many fields that ask for a date have no concept of “this is an estimate” so knowing you acquired a firearm sometime in 1995 you now have to pick a particular date within 1995. You are no testifying to the fact that you acquired a particular firearm on a particular date when you really have no idea.
The CSC[DoJ, Bureau of Firearms, Customer Support Center] has received calls from AWR[Assault Weapon Registration] applicants who asked how they should fill out the application if they did not have the exact date that they acquired the firearm they intend to register. I have directed the CSC to advise those callers that they may provide a best-estimated date for review in the required date field.
— https://michellawyers.com/wp-content/uploads/2018/02/Dec-of-P.-Plant.pdf
IRS CIRCULAR 230 DISCLOSURE: To comply with requirements imposed by the Department of the Treasury, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written by the practitioner to be used, and that it cannot be used by any taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer, and (ii) supporting the promotion or marketing of any transactions or matters addressed herein.
— CIRCULAR 230 DISCLOSURE STATEMENT
I wonder if the AWR form had a similar “disclosure”. The law is what it is. Petty bureaucrats do not have the power or authority to change law. While Patrick Plant might have done “the right thing” his direction to the CSC does not have the weight of law.
The defendants bring in an expert to tell the court:
Responsible gun owners keep records of their firearms purchases. This is a common sense matter of record keeping. It should be done to prove ownership in the event of theft and to document the legal purchase or acquisition of their firearms in the event of a criminal or civil dispute.
If a gun owner wants a list of their firearms records they can contact DOJ BOF Automated Firearms System (AFS) unit and get any firearms ownership information maintained by the DOJ after completing a copy of the form BOF 053, Automated Firearms System (AFS) Request for Firearms Records. This service provided by DOJ BOF is free. A true and correct copy of BOF 053 is attached as Exhibit 1.
— Declaration of Blake Graham in Support of Defendant Xavier Becerra’s Opposition to Plaintiffs’ Moiton for Preliminary Injunction
So the CA DOJ considers you to be irresponsible if you don’t keep records of your firearm purchases. I keep records of the firearms I own. Those records are encrypted and secured. I have the ability to provide those records if needed but I certainly don’t have the purchase dates of all of my firearms.
It is not a legal requirement for you to keep purchase records on anything. If an item is lost or stolen your insurance company is going to want to know what was taken, as will the police.
Blake Graham then goes on to state that if you don’t know, just ask him. He has records of every firearm you have purchased. Well sort of. He only has records that have been given to the CA DOJ BOF. Since not everybody registers every firearm they own with the government, this is pretty much a null statement.
In addition, at a time when the AWR as failing under its own weight, Blake expects you to have the time to wait for him to do the research on your firearms records request. I’m sure that the AWR will be happy to wait an extra 60,90 or more days while you wait for Blake to get back to you.
Here is an actual good argument from the state:
Plaintiffs’ opposition fails to show how the allegations in the First Amended Complaint state plausible claims for relief under the Takings Clause and the Due Process Clause. In a prior challenge to the Roberti-Roos Assault Weapons Control Act (AWCA), the Ninth Circuit held that the AWCA does not violate the Takings Clause. See Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). Plaintiffs fail to address this controlling case. Instead, they simply argue that the AWCA effects a physical taking by requiring plaintiffs to forfeit their assault weapons because they can no longer bequeath those weapons to any heirs and because certain individuals do not have the required information to register their firearms. These contentions do not help plaintiffs, who in the context of a facial challenge, must establish that the AWCA is invalid in all circumstances. Furthermore, the AWCA does not appropriate plaintiffs’ assault weapons for public use. Plaintiffs may, after registering their assault weapons, continue to possess, use, and enjoy those weapons.
— Defendant’s Reply in Support of Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims
This is an actual good argument back in 2017-12-01. It was a good argument because the opinions of the Ninth Circus Court controlled in this case.
The rest of the paragraph is pretty bogus. It doesn’t matter if the state physically takes something from you or forces you to destroy it under threat of violence, you no longer have the item. The state has removed the item from your possession, otherwise known as taking it from you.
If they had a sports car and the State suddenly decided for the safety of the public that they would no longer be allowed to use anything other than first, second, and reverse gears, that they were forbidden to use third, forth, and fifth gears, they would be very unhappy. I don’t think they would be satisfied with after registering their [sports car], continue to possess, use and enjoy those [cars]
If the law survives rationality review, then Plaintiffs cannot, as a matter of law, state a Due Process claim. Accordingly, the Court will determine whether the AWCA survives rationality review by determining whether the legislature had a legitimate government objective in enacting the AWCA, and whether the legislature could have believed at the time of enactment that the statute would promote that objective. Legitimate Government Objective
The Court concludes that the legislature has articulated a legitimate government objective for the AWCA. It is beyond question that promoting public safety and reducing incidents of gun violence are legitimate government objectives, as the Ninth Circuit, like many other circuits, has found these interests not merely legitimate but substantial or compelling. See, e.g., Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015); Silvester v. Harris, 843 F.3d 816, 827 (9th Cir. 2016), cert. denied sub nom. Silvester v. Becerra, 138 S.Ct. 945 (2018); Kolbe v. Hogan, 849 F.3d 114, 139 (4th Cir. 2017); N.Y.S. Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (holding it “beyond cavil” that such interests are compelling).
In enacting the AWCA, the legislature found that the firearms categorized as assault weapons have “such a high rate of fire and capacity for firepower that [their] function as . . . legitimate sports or recreational firearm[s] is substantially outweighed by the danger that [they] can be used to kill and injure human beings.” Cal. Penal Code section 30505(a). The AWCA’s legislative history shows that the 2016 amendments were directly motivated by the 2015 mass shooting in San Bernardino, where the shooters used weapons with “bullet buttons” intended to circumvent prior iterations of the AWCA. California Bill Analysis, S.B. 880 Assem. at 8. These legislative findings support that the legislature had a legitimate government objective to promote public safety when enacting and amending the AWCA.
This is “means-end” in play. The court initially looked to see if the state had legitimate government objectives in passing the law. This is a very low bar to reach. Having reached the conclusion that the state had legitimate government objectives, the court then defers to the legislature in their findings.
However, the legislature concluded that the accuracy and ease of use afforded by these features, far from making the weapons safer, made them more dangerous is what the court uses to discount the plaintiffs assertions. The plaintiffs have presented multiple statements from multiple sources showing that the features the state contends turns a rifle into an assault weapon actually make them safer.
The court instead presumes the legislature knew what they were doing when they banned certain rifles and thus the arguments of the plaintiffs are discounted.
The court finds from this reasoning that the plaintiffs have failed to show that the law is impermissibly irrational, and the Court concludes that, as a matter of law, the AWCA survives rationality review. The Due Process claim is dismissed.
One of the things the court did in this ruling is that they looked at the concept of retroactive laws. What they determined was that the requirements of the law were not retroactive because the plaintiffs had options on what to do if they could not locate time-date of acquisition of the firearm in question.
I’m sure all of you have somebody you trust to store and care for your firearms out of state if suddenly required to divest yourselves of some previously legal item.
For the takings clause the court reasons that since the government didn’t physically take the items in question but instead passed a regulation it is not a physical taking. True, as far as it goes. The court continues with reasoning about the “regulatory” taking. This is the difference discussed above, is it a taking if you are forced to destroy or divest yourself of some object by threat of state violence?
The court uses prior rulings from the Ninth Circuit Court ruling that the AWCA didn’t constitute a taking.
The court denied the claims against the Takings Clause.
The final claim made by the plaintiffs was that this was a violation of the Second Amendment. The court the decides to use intermediate scrutiny and as seems to always be the case, finds for the government. The court’s reasoning being that only the right to self-defense is covered under the second amendment and as long as you have other means of self-defense the state is allowed to ban these means.
This was the order from the court denying the TRO and injunctions was give on 2018-05-9, just over a year after the suit was filed.
In the NY CCIA cases we were to this stage in mere months and to the Supreme Court in less than a month afterwards.
Finally, on 2019-07-22, the court granted the defendant’s(bad guys) motion to dismiss. I.e. the state won the first round.
This happened because the district court reasoned it was required to apply means-end and as such gave the state the ability to claim a legitimate public need for the law and then the court assumed the legislature knew what it was doing when it made claims of fact.
On 2019-08-27 the plaintiffs gave the district court notice of appeal. On 2019-08-28 they filed their appeal with the Ninth Circuit Court of Appeals.
Part II covers the case as it makes its way through the Ninth Circuit Court.
Geek speak: I attempted to make everything format a little better. I’ve updated how I do block quotes and made asides work. I’m sure there are going to be some issues with the aside on smaller displays but I hope it isn’t bad. I’ll “fix it” tomorrow if there are still issues.
