B.L.U.F. An analysis of court battles pre-Bruen

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.

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.

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.

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.

“Winny 303” sounds interesting, I’ve just never seen it a Winchester in .303 British, there might be one.

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.

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.

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.

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:

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:

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]

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.

Order Granting Attorney General’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgement

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.

This text is so offensive that it can’t be read in public. Reading this text in a YouTube video or other podcast is likely to get you multiple strikes.

But this book is important to our history. This book is a propaganda work that was used to stir up Yankee feelings against slave owners and slavery. It worked.

This book helped lead to the end of slavery in these United States.

How could you talk about this book today? You can’t even read it outloud. It would be verboten in most schools. All because it used the language of the day.

Again, text that would be (is?) suppressed today. Mark Twain uses the N-word nine times in this one book. If that isn’t enough to get the book removed from polite company, read the nearly undecipherable words of Jim, above. I remember Jim as being a slave but that isn’t found in this work.

The left is judging this work by what is “acceptable” speech today. It hurts that great literature is so maligned.

What was the sin of Hester that was so great that some women of the town were demanding she be branded and another felt should should be executed?

She was an unwed mother. What 20 years ago was “Brave and courageous” is today a common occurrence. To suggest that a woman be punished for the inability of society to provide her with free birth control and “health care” is unacceptable.

Aunt Sponge was terrifically fat / And tremendously flabby at that, Aunt Spiker was thin as a wire / And dry as a bone, only drier, most formidable female, and hundreds of other words and phrases were recently removed from Roald Dahl’s beloved books.

He is known for writing James and the Giant Peach, Charlie and the Chocolate Factory, Matilda, and many others. His publisher feels that it is “for the good of the children” to put their words in place of his.

I despise editors stealth editing anything. I want to know what the author said, not what you think I should be reading. If I have hit the publish button on one of my articles and I feel I must edit it, I will mark the title and mark deletions and insertions. It is the right thing to do.

I do not want to live in the world of 1984. It isn’t “big brother is watching” it is history being erased and rewritten in real time. It is having my words stripped away until the only thing left to say is “double plus ungood”

My wife is a teacher. When she read about these edits to Dahl’s book she had a fit. It just wasn’t acceptable.

But just like we now have “Coke Classic”, a pale imitation of real Coke-a-Cola, we are now going to have “classic” editions of Dahl’s works.

Many many years ago I read what I though was Call of the Wild by Jack London. It was boring. It was dry. It was written for young readers. It was abridged. Instead of reading the words of Jack London, I was being told what London said.

In doing so, the soul of the story was stripped away, leaving nothing but a hollow husk of what was once a great story.

In high school we were reading Romeo and Juliet. It was one of a number of shorter works in our text book. That text book was 8.5×11 and weighted way to much to lug around. I picked up a copy of the play at the local bookstore.

We were reading out loud in class when it came to my part. I read it from the book and there was the response. My words next.

There was something strange going on, Mrs Trout was nodding along, enjoying the reading. My classmates were looking confused. My words were not in their book. Mrs. Trout figured it out when the next door teacher came over and closed our door because her class was paying more attention to our reading than her.

I was reading the unabridged version of Shakespeare’s work, the textbook had a version suitable for high school students. In other words, all the juicy parts had been ripped out. Mrs. Trout figured it out. She didn’t notice because I was reading what she expected to hear. She was a good English teacher.

By the end of the week, everybody in class was reading from the unabridged version.

Words have meaning, we shouldn’t allow the left to redefine words. If words can be redefined at will they soon mean nothing.

When I use a word it means what we agree it means. That is how we communicate and will continue to communicate.

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

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

I’m reading the transcript of Judge Benitez’s conference meeting with the 2A cases out in California.

He has four 2A cases in front of him right now. He told the state: Put together a spreadsheet like summary of all the laws, regulations, and ordinances that you feel support your case. I want just one for all four cases. You will meet with the plaintiffs to go over those laws and they can object are not.

MR. DILLON(GG): It will just be a straight list of the laws. We will have a chance to review it as Plaintiffs. And like a summary judgment, if we have a contested issue of the summary of the law that they present, we can note that contest in the — you know, a joint document? Is that what you’re —

THE COURT(St. B): Sounds reasonable. Sounds reasonable to me.

MR. DILLON: No problem. Thank you, Your Honor.

MR. KELLY(BG): Your Honor, I think we would object to that as well. I think we would want, if we need to, to introduce experts to interpret some of the laws and the standards —

THE COURT: No.

MR. KELLY: — in the language —

THE COURT: No.

MR. KELLY: — and the statute —

THE COURT: No. Look — no, no.

Mr. Kelly, with all due respect, I don’t need — every one of these experts that you’ve put forth, I have read, just like experts that they have put forth, like Mr. Copill, for example. Your experts — these are people that have, you know, biased points of view. I mean, Mr. Bosey, for example — I hope I’m pronouncing his name. The fellow who worked for —

MR. MOROS: Kimber, Your Honor.

THE COURT: Kimber. Yeah. Who at some point in time had an epiphany and realized that all the work that he’d been doing for all these years, selling these weapons to the public was not good. And now he works — he’s a consultant for Everytown — I’m trying to remember.

Anyway, look. These people’s opinions of what these statutes say, right, means nothing. It means nothing. It’s like, I remember — I think it was Justice Brier in — I think it was Bruen, who talked about, “Well, we need to have this factual record,” and this and that, what have you.

No. 702 says that the admission of expert testimony is help — is possible if, because of the expert’s knowledge, skill, or experience, it will assist the trier of fact. Okay.

But there’s nothing. I mean, I’ve read these declarations. Every one of these folks come in here with a biased — it’s not like they’re really neutral experts, okay, or they’re not experts who’ve come up on these opinions as a result of these cases, okay, doing research for these cases. These are all people that already come with preconceived ideas and opinions, but their opinion is not worth any more than your opinion or her opinion. They’re going to tell me, “Well, in my opinion, if you look at this statute, this statute means that — you know, that the State of Wyoming regulated concealed carry of brass knuckles,” and so I can read that. I can figure that out by myself.

Damn…. This Judge Benitez gets it. He doesn’t need some opinion from an Everytown shill telling him, an actual legal expert, what a statue means.

Just wow.

More later.

B.L.U.F. Lighter content. I’m busy with client work and really want to read up on the filings and testimony for Duncan v. Bonta

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A number of years ago I was having a discussion with my kids principal at the elementary school. I think the issue was that my kindergarten or first grader had drawn flowers on his name for some in class work. The teacher had marked him down.

The principal kept using some offensive words and in the end I said something like “When you say X it makes me want to jump down your throat.” We finished our conversation, she didn’t seem to have any issues. As I was leaving she asked me why I didn’t become a teacher because she thought I would be great teacher.

Later that day my son came home and had a letter saying I wasn’t allowed on school grounds because I had threatened the principal. It seems that they thought that “jump down your throat” was a threat of physical violence. It isn’t.

So I made an appointment and when I showed up to talk to her to figure out what was going on she brought in the only male teacher in the school and 3 other people, it was all intended to be very intimidating. I don’t intimidate very well.

I tried to show them the actual meaning of the phrase they were upset about. The refused to read it. I was accused of threatening her multiple times and when I asked “If you feel I had threatened you, why did you ask me to join the school as a teacher?”

She replied that she hadn’t said that.

All in all it was very accusatory.

I finally had had enough, turned to her and asked “to you have a bad memory or are you just lying?”

Everybody in that room responded in shock over my statement. “How rude!” My response of “But you all have been accusing me of making death threats which didn’t happen. Why are you allowed to insult me and I can’t ask why she is getting it so wrong?”

They didn’t see it. I was forced to leave with the threat of them calling the cops on me.

This is the way of the left. They attack us over and over again and at the point where we respond, we are the bad people. The number of videos of some white kid attacking a black kid are pretty extensive. Nobody seems to capture the tormenting that happens prior to their response. But they are always the bad ones.

Which takes us back to the report from Enfield, CT. From the headline I assumed that they had made some sort of threat against school officials.

Nope:

Two people have been banned from school property after they mailed letters to the homes of school officials, spewing “gibberish” and appearing to promote a global constitution…

This is a chilling effect. If you communicate with a school official and they decide that your communication was “gibberish” or they think you are promoting wrong think, you could be banned from school property.

I wonder how they would have reacted if the had received letters supporting BLM and promoting systemic racism? I wouldn’t be surprised if they were invited to be guest speakers.

The letters, which were received Wednesday, do not contain threats and neither person who signed them is accused of committing a crime, Zoppo-Sassu said. But police have told the Enfield man and Somers woman they are not permitted on school property, including school board offices, she said.

The reasons that they are banned is because “…we have zero tolerance for attempts to distract our elected and appointed officials from their jobs.”