Gun Free Zone

Where a Redneck Jew, a Hispanic Catholic, and a Computer Geek write about Gun Rights, Self Defense and whatever else we can think about.

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Friday Feedback

Mar 3, 2023 awa 4 comments

So Miguel, when are you going to do your “Ask me anything?”

I can’t make him do an AMA but he is the winner of that poll.

There are enough cases going on out there that it should be possible to write a different case analysis everyday for the next ten years. I can’t handle it and I don’t think you can either.

One of the things that I despise is when quotes are taken out of context. The number of times I’ve read some media shill string four 3 word quotes together in order to make somebody look bad (or good) is in the tens of thousands. It is just wrong.

The liars seem to do this all the time. Listening to Bonta’s people say … The Second Amendment isn’t a “regulatory straightjacket”… and leave of the blank check part of the clause is infuriating to me.

Since I’m now writing for the public, you all, I decided that I wasn’t going to provide out of context quotes. These leads to huge pull quotes. The quotes were getting so out of hand I wrote CSS to support my tendency to create such quotes.

It is very difficult when I’m writing to keep my articles short. I know that for “best engagement” blog postings should be in the 500 word range. My articles run 1500 to 3000 or more words.

The article I am writing about Rupp v. Bonta is about 7000 words long. I broke that into three different postings but each of those three are still long.

I’ve added B.L.U.F. to try and help and I’ve started adding “asides” to help break up that word wall, but they are still long.

I am also going to try and remember to take advantage of the “read more” feature so that the home page is less of a wall of text.

Anything else you want to say, please add it down below. Thank you to all our wonderful readers.

Case Analysis Legal

Rupp v. Bonta AWCA Part 2 of 3

Mar 2, 2023 awa 2 comments
The Second Amendment prohibits the government from banning bearable arms that are typically possessed by law-abiding, responsible citizens for lawful purposes. California bans a class of firearms that are typically possessed by millions of Americans for lawful purposes, including self-defense, hunting, and target shooting. Is California’s ban unconstitutional under the Second Amendment?
— Appellants’ Opening Brief

The goal of the appellee(bad guys) is to get the Ninth Circuit Court to decide that case at hand is not a violation of a “fundamental” right but instead something less. Any violation of a fundamental right triggers strict scrutiny. Because of this the state, the appellee, tries very hard to hand wave away anything that could be a violation of a fundamental right.

California regulates the possession and transfer of assault rifles—a category of military-style weapons marketed to civilians that are unusually dangerous and not well suited for civilian self-defense. Assault rifles are “virtually indistinguishable in practical effect from machine guns.” ER 14. They “fire almost as rapidly”; inflict “greater and more complex damage”; and have enhanced “capability for lethality—more wounds, more serious, in more victims.” They are, like the M-16 machinegun, “dangerous and unusual” weapons of modern warfare. Assault rifles are also not a type of weapon traditionally used for lawful, self-defense purposes. California’s restrictions therefore do not burden conduct protected by the Second Amendment. In any event, the State’s restrictions pass the appropriate level of scrutiny—intermediate scrutiny—because they reasonably fit the State’s important public-safety interest in reducing the number of gun deaths and injuries.
— Answering Brief of Appellee-Defendant Xavier Becerra, California Attorney General

The state is playing an interesting game here. The text uses the term “assault rifle”, which is well defined and does not encompass rifles like the AR-15. They go on to say that they are “virtually indistinguishable” from machine guns. They rely on expert testimony to reach “virtually indistinguishable”, but the kicker here is that they are letting the reader insert “AR-15” in to the paragraph by using “assault rifle” and “like the M-16 machinegun[sic]”. Many of the rifles banned have very little, if anything, in common with the M-16/AR-15.

In Heller, Justice Scalia describes the carve out for the states to continue to infringe:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.
— District of Columbia v. Heller

Double emphasis added.

This language of “dangerous and unusual weapons” is what the state is using to justify its ban on scary semi-automatic rifles. By ignoring the “and” and turning it into an “or” they are now in a position of arguing that something is unusually dangerous. Being unusually dangerous the ban should fall within the carve out given in Heller.

The issue is that the Supreme Court has already defined, in 2016, what the lower limit on “common weapons”.

The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich.App. 137, 144, 824 N.W.2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. § 941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment
— Caetano v. Massachusetts, 136 S. Ct. 1027 – Supreme Court 2016

“hundreds of thousands” has at its lower limit 200,000. This means that we know, from Caetano that if there are more than 200,000 arms of that class in common use for lawful purposes it is not an “unusual weapon”. If it is not “unusual” then no matter how dangerous the state claims it is, it is still covered within the scope of the Second Amendment.

One of the things that the Supreme Court has said is that the state cannot claim that something is unusual if they have banned that item. If the state bans “blue marbles” and somebody goes to court to claim that “blue marbles are common” the state is not allowed to argue that they are not because the state has created that shortage.

In Rupp v. Bonta the state argues that all of the Circuit Courts that have heard AWB cases have agreed that AWB are constitutional. What they leave out is that only those states that are infringing passed AWBs and all of those are in circuits that are pro infringements.

“Four out of five dentists [surveyed] agree that…” Ummm, how many were surveyed? 5? 10? How were they selected. Consensus does not make it right.

Here is the question presented to the court as the state wants it to be:

  1. Whether assault rifles fall outside the protection of the Second Amendment because they are virtually identical to the M-16 rifle, where the Supreme Court has confirmed that “M-16 rifles and the like” may be banned.
  2. Assuming assault rifles come under the scope of the Second Amendment, whether challenged law withstands intermediate scrutiny by restricting a particularly dangerous subset of semiautomatic rifles with militaristic features that are used disproportionately in mass shootings and murders of police officers, thereby furthering California’s interest in public safety.

— Bonta, “Answering Brief”

There is a nasty type of question where the question has an assumption of fact within. The classic version of this is “When did you stop beating your wife?” The correct answer is “I never beat my wife.” To many people fall for the linguistic trap and answer with a time. “Over 10 years ago!” “So you admit that you beat your wife!?!” “huh?”

In the case of the state’s restatement of The Question, they put this little assumption of fact: The appropriate level of scrutiny is intermediate scrutiny.

They state has deftly sidestepped the important question of “Is this a violation of a fundamental right triggering strict scrutiny?” and if it is not a violation of a fundamental right “What is the correct level of scrutiny to apply?”

The state has, of course, iterated their claim/opinion that AR-15s are virtually identical to M-16s as reason to exclude them from the scope of the Second Amendment.

We have been arguing for years that trying to define “assault rifle” and “assault weapon” based on cosmetic differences is moronic. The gun infringers have ignored that argument.

After the AWCA was enacted, some gun manufacturers began to produce weapons that were “substantially similar to weapons on the prohibited list but differed in some insignificant way, perhaps only the name of the weapon, thereby defeating the intent of the ban.” ER 4198 (S.B. 880 Rpt.); Silveira, 312 F.3d at 1058 n.5. To address the proliferation of these “copycat” weapons, the Legislature enacted Senate Bill 23 (S.B. 23), 1999 Cal. Stat. ch. 129, to amend the AWCA’s definition of assault weapons to include weapons with certain militaristic features similar to those listed as prohibited Category 1 and 2 weapons. ER 4415-50. In amending the AWCA, the Legislature sought “to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons.” Silveira, 312 F.3d at 1058; see ER 4415
— Id.

Here the state is arguing that because gun manufacturers made “insignificant” changes to the cosmetic differences to the weapon they needed to “improve” the AWCA. They are admitting here that the militaristic features of a rifle are insignificant.

The district court assessed the constitutionality of the AWCA under this Court’s “two-step inquiry to Second Amendment challenges”: (1) does the challenged regulation burden conduct protected by the Second Amendment; and (2) if so, does it satisfy the applicable level of scrutiny. ER 7. At the first step, the district court determined that assault rifles are not protected by the Second Amendment because they are “virtually indistinguishable from M-16s,” and can be banned as “dangerous and unusual weapons.” ER 13, 16. The district court reasoned, “[i]t is undisputed that the M-16 is outside the scope of the Second Amendment—thus, if a weapon is essentially the same as the M-16, it is not protected by the Second Amendment merely because gun manufacturers have given it a different model number and dubbed it a ‘civilian rifle.’” ER 13-14. The district court concluded that the sole difference between the M-16 and assault rifles—that the M-16 allows the shooter to fire in either semiautomatic or automatic mode, while assault rifles fire only in semiautomatic mode—“is a distinction without a difference.” Id. at 16. The district court noted that other circuit courts have likewise determined that a semiautomatic rifle’s rate of fire is almost the same as that of the M-16. Id. (citing Kolbe, 849 F.3d at 136 (finding that the rates of fire of automatic and semiautomatic rifles “are nearly identical”) and Heller II, 670 F.3d at 1263 (“[S]emi-automatics still fire almost as rapidly as automatics.”)). Indeed, in many situations, “the semi-automatic fire of an AR-15 is more accurate and lethal than the automatic fire of an M16.” Id. at 15 (citing Kolbe, 849 F.3d at 136).
— Id.

The state argues that banning an “assault rifle” is allowed because M-16s can be banned. Of interest is the fact that M-16s are not banned in most states. Some states have a ban on all NFA weapons, but most states do not.

The district court then determined the Act withstands intermediate scrutiny because the State provided “ample evidence to establish a reasonable fit between the AWCA and California’s public safety interest.” ER 20. Specifically, the court cited evidence that “in the public mass shootings where an assault rifle was utilized, there were twice as many fatalities (12 with assault rifles, 6 without any assault weapons), and six times as many injuries (30 with and 5 without).” Id. at 20-21. The increased casualty rate is likely due, at least in part, to the fact that “[g]unshot wounds from assault rifles, such as AR-15s and AK-47s, tend to be higher in complexity with higher complication rates than such injuries from non-assault weapons, including the likelihood of morbidity in patients that present injuries from assault rifles.” Id. at 21 (quoting ER 3188 (Expert Rpt.of Dr. Christopher B. Colwell)). …
— Id.

Notice how easy it is for the courts to find a “reasonable fit” and “public safety interest.” This is how come “scrutiny” tests are so bad in a second amendment context.

Michel & Associates comes out swinging in their reply.

The Supreme Court tells us that where there is a ban, as opposed to a mere regulation, on arms “ ‘in common use at the time’ for lawful purposes like self-defense,” there is no need to apply any scrutiny—the restriction fails per se. District of Columbia v. Heller, 554 U.S. 570, 627; see also id. at 624-25; Caetano v. Massachusetts, 136 S. Ct. 1027, 1027-28 (2016). This Court also asks whether an arm has historically been restricted; if it has, it may fall outside the Second Amendment’s scope. Fyock v. City of Sunnyvale, 779 F.3d 991, 996-97 (9th Cir. 2015). The Banned Rifles are in exceptionally common use for lawful purposes, including self-defense. And the State puts forth no argument that the Banned Rifles have historically been restricted. The AWCA’s ban on them is thus necessarily unconstitutional.
— Appellants’ Reply Brief

Here is where the court gets to decide. If they decided that the proper methodology is means-end this case will be found for the state. If they decided that the proper path is “in common use” then the ban will fail and result in a win for us.

This is how all of the infringing courts managed to upload infringements. They just claimed that it wasn’t too much of an infringement so all the state had to do was show a reasonable fit to public safety to prevail.

While this case was going on, the case of Duncan v. Bonta was also happening. Judge Benitez heard that case and ruled in favor of the Constitution. This resulted in “freedom week” out in California when thousands (millions?) of magazines were ordered and delivered while the magazine ban was enjoined. The state appealed Duncan to the Ninth Circuit Court, where in a rare case of fidelity to the second amendment the 3 judge panel found for the plaintiffs (good guys).

One of the judges on that panel wrote a concurring(?) opinion which said that as soon as the Ninth Circuit Court heard the case en banc they would rule against the plaintiffs and gave the reasons. He was poking fun at how anti-gun the Ninth Circuit Court is.

On 2020-09-10 the plaintiffs filed a notice with the court pointing out that the three judge panel had just made a huge decision that was favorable to the plaintiffs. The biggest point in favor of the plaintiffs was that the panel choose to use strict scrutiny instead of intermediate. Under strict scrutiny the plaintiffs prevailed.

This lead to the following:

In response to the Court’s order, dated December 6, 2021, defendant-appellee Rob Bonta, in his official capacity as the Attorney General of the Sate of California, and plaintiffs-appellants Steven Rupp, et al. write to inform the Court that the parties, having met and conferred, agree that this appeal should be held in further abeyance pending issuance of the U.S. Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen (NYSRPA), No. 20-843. While NYSRPA concerns the constitutionality under the Second Amendment of a different type of law than that challenged in this case, it is possible that the Supreme Court’s decision in NYSRPA could impact resolution of this appeal.

For this reason, the parties agree with the panel’s unanimous view that a continued abeyance pending a decision in NYSRPA would be in the interests of judicial economy. If the Court continues the abeyance, the parties respectfully request an opportunity to provide additional briefing after the Supreme Court’s disposition in NYSRPA.
— Joint Letter regarding Abeyance Pending Resolution of New York State Rifle & Pistol Association v. Bruen

The court granted the abeyance which put this case on hold until after Bruen was decided.

On 2022-06-28 the Ninth Circuit Court sent the case back down to the District Court. This is another example of the Ninth Circuit court attempting to draw out this and other second amendment cases post Bruen.

Bumatay, J., dissenting:

For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, — S. Ct. —-, 2022 WL 2251305 (U.S. June 23, 2022). With a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along. Instead, we instinctively kick the can back to the district court. And we do so without the benefit of the parties’ position on whether our three-judge panel could have directly resolved this case based on Bruen. A remand here may just prolong the inevitable as we will eventually have to decide this case—adding unnecessary delays and expenses for the parties. At the very least, we should have given the parties a chance to let us know where they stand on the question of remand. I thus respectfully dissent from vacating and remanding this matter.

— Order Vacating and Remanding

Part III will cover the case now that it is back at the District Leve.

Case Analysis Legal

Hardaway v. Nigerelli NY CCIA update

Mar 1, 2023 awa 2 comments

B.L.U.F. The DA for the County of Niagara, NY who is a defendant (bad guys) in this case has filed a brief saying with the Second Circuit Court of Appeals saying that parts of the CCIA are unconstitutional and that the District Judge got it right when they issued a preliminary injunction against the state and the state’s agents.

On 2023-02-27 Brian D. Seaman, the District Attorney for the County of Niagara, New York filed a brief with the Second Circuit court.

Plaintiffs-Appellees moved for a temporary restraining order and then a preliminary injunction enjoining Superintendent Nigrelli, Niagara County District Attorney Seaman, and Erie County District Attorney Flynn and their officers, agents, servants, employees, and all persons in concert or participation with them, from enforcing all of New York Penal Law § 265.01-e(2)(c), and their regulations, policies, and practices implementing it. (J.A. 99-125). The district court granted both Plaintiffs-Appellees’ requests for injunctive relief. (J.A. 9-52). Superintendent Nigrelli now appeals from the interlocutory Decision and Order of Judge Sinatra granting the preliminary injunction. (J.A. 343).

As is set forth below, the district court properly granted the preliminary injunction for the purpose of furthering a judicial determination as to the constitutionality of New York Penal Law § 265.01-e(2)(c) and said decision should be affirmed.
— Brief for Defendant-Appellee Brian D. Seaman, in His Official Capacity as District Attorney for the County of Niagara, New York

This is the defendant in the case stating that in his opinion the Judge got it right when he granted the injunction against the defendants. He is arguing for the plaintiffs! This is great news.

As the question before the Second Circuit is whether or not the injunctions should be stayed. It is not if parts of the CCIA are constitutional. It is only if the injunction should be stayed. Currently it is stayed.

Antonyuk was appealed to the Supreme court when the Second Circuit court stayed the district court’s injunction issued by Judge Suddaby. They argued that the district court had given a thorough explanation of the courts reasoning in granting the injunction but the Second Circuit just said “nope” and stayed the injunction.

The Supreme Court heard the request and then denied the appeal but, and this is a huge but, Justice Alito with Justice Thomas concurring issued an opinion while joining with the denial. In the opinion they told the plaintiffs that this was being denied for procedural reasons and that they had to wait for the Second Circuit court to do their thing. If the Second Circuit Court did not provide a thorough explanation of the reason for the stay and in a timely fashion the plaintiffs should come back to the Supreme Court again.

This left the Second Circuit under a great deal of pressure. TheThey then scheduled the all the CCIA cases that had stays to be heard on 2023-03-20. The brief of DA Seaman is a response as ordered by the court.

It looks as if this DA and maybe the Erie DA were included as defendants because they needed to be. The plaintiffs reside in those counties so those DA are the people that would be prosecuting them. The actual target of the suit is the State of New York. While Seaman stands up for the second amendment, DA of Erie County, John Flynn, goes the easy route and says Hand me the popcorn and leave me out of this

My client takes no position on the Plaintiffs’ motion for preliminary injunction, except that he asserts, and respectfully submits, that no award of attorney fees, costs, or disbursements can properly be entered against him inasmuch as he had nothing to do with the New York Legislature’s enactment of the challenged gun control legislation.

WHEREFORE, deponent respectfully asks that if the Plaintiffs’ motion for a preliminary injunction is granted, that any Order granting said motion not contain any provision for the award of attorney fees, disbursements, or costs as against Defendant, JOHN J. FLYNN, in his official capacity as District Attorney for the County of Erie
— Affidavit in response to plaintiffs’ motion for a temporary restraining order and preliminary injunction

This DA doesn’t seem to want any part of the CCIA. He likely sides with us, at least post Bruen.

As stated above, there is but a single question before the Circuit Court, here is how DA Seaman phrases that question:

Whether the district court abused its discretion in issuing a preliminary injunction enjoining enforcement of New York Penal Law § 265.01-e(2)(c) finding the Plaintiffs-Appellees met their burden of establishing irreparable harm, a likelihood of success on the merits, and a public interest in issuance of said injunction.

Niagara County District Attorney Seaman respectfully submits the district court did not abuse its discretion in awarding a preliminary injunction as Plaintiffs-Appellees met their burden of establishing an entitlement to a preliminary injunction.
— Seaman, “Brief for Defendant”

In his arguments in support of the plaintiffs, Seaman makes the following statement.

The Supreme Court has made clear that individuals have the right to carry handguns publicly for self-defense. (J.A. 36). As noted by the district court, “New York’s exclusion is valid only if the State ‘affirmatively prove[s]’ that the restriction is part of the Nation’s historical tradition of firearm regulation.” (J.A. 36 citing Bruen, 142 S.Ct. at 2127). Since the Second Amendment is the very product of an interest balancing, already conducted by “the People,” which “elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense”, the Court constructed a rigorous test in determining whether this restriction is part of the Nation’s historical tradition of firearm regulation. Id. at 1231 citing Heller, 554 U.S. at 635.
— Seaman, “Brief for Defendant”

The important part of that quote is “the very product of interest balancing.” In Heller the Supreme Court said that you don’t get to interest balance (means-end) the second amendment because that was already done when the people adopted the Bill of Rights.

When the gun grabbers scream that the people should have a say in the Second Amendment, what it means and how arms are regulated, they totally miss the fact that this has already happened. The fact that it was done 200+ years ago, or 50 years ago or yesterday doesn’t mean that they get a “do over”.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. 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. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people—which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
— District of Columbia v. Heller, 554 US 570 – Supreme Court 2008

Double emphasis added.

Here is an important part of the Bruen as was mentioned in Judge Sinatra, Jr.’s Decision and Order tradition” requires “continuity” as opposed to one-offs, outliers, or novel enactments, which Superintendent Nigrelli unsuccessfully attempts to cite in order to meet his burden of demonstrating a tradition of accepted prohibitions of firearms in places of worship or religious observation. (J.A. 42)

This is part of Judge Benitez’s order to the State. He ordered that the state present to him a list of laws that show history and tradition supporting the infringements the State wants. He also ordered that they report when the laws they are using were repealed or overturned.

That repealed or overturned is important as it shows continuity of that law. So if the State claims it can ban a class of magazines because there is a history of banning a class of knives (Bowie knives) then they must also show that there is continuity of those laws banning a class of knives.

One of the issues when asking for a TRO or preliminary injunction is that the plaintiffs must show that there will be harm done to them if the TRO or injunction is not granted. The state, in 2A cases, will often argue that it isn’t a big enough burden (interest balancing) to show irreparable harm and thus a TRO or preliminary injunction is not appropriate.

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Roman Cath. Diocese of Brooklyn v. Cuomo, 141S.Ct. 63, 67 (2020) quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). Seaman, “Brief for Defendant”

This means that any infringement on a core right is, by definition, a irreparable injury.

It is so nice to see state officials, even in such horrid anti-gun states as New York, stand up for the rights of The People. This is even more powerful when you consider that Buffalo New York is part of the Buffalo Niagara economic zone. I.e. it is part of both Erie and Niagara counties.

This brief from DA Seaman came after the Buffalo shooting.

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How we end up in poor positions after Supreme Court opinion

Feb 28, 2023 awa 3 comments

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.

.......

What was the legal landscape pre Bruen

Feb 28, 2023 awa 1 comment

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.

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.

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Ask Me Anything Poll Results

Feb 27, 2023 awa 8 comments

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.