How I write analysis posts
B.L.U.F. Fluff piece because I can’t stand reading another word of Bonta’s so called “experts”
Through one of my feeds I get a notice of some case that is happening and interesting. If I’m very lucky there will be a link to that case in some way. Most of the time there is not.
If the source is a news article it is highly likely that not only have they failed to link to the case or legislation, they have likely miss named it as well. For example the “Don’t say gay” Florida bill that didn’t have those words in the bill. All searches for “don’t say gay” will take you to propaganda pieces telling you how bad the “Don’t say gay” bill is but with no links and no text.
Once I find some official documentation I next attempt to find the case number.
This has been a learning curve for me. It turns out that case names and numbers change as cases move through the courts. So what was filed as “Steven Rupp; Steven Dumber; Cheryl Johnson; Michael Jones; Christopher Seifert; Alfonso Valenceia; Troy Willis; and California Rifle & Pistol Association, Incorporated vs. Xavier Becerra, in his official capacity as Attorney General of the State of California; and DOES 1-10” had a case number of 8:17-cv-00746 assigned to it.
This became “Steven Rupp, et al v. Xavier Becerra” with a case number of “8:17-cv-00746-JLS-JDE” when it got to the ninth circuit court. The turned into “Steven Rupp; et al v. Rob Bonta, in his official capacity as Attorney General of the State of California” case number 19-56004.
When the case was vacated and remanded back to the district court the case number became 8:17-cv-00746-JLS-JDE and became known as “Steven Rupp, et al. v. Xavier Becerra, in his official capacity as Attorney General of State of California”.
And the case is known as “Rupp v. Bonta” for the most part. It is all the same case.
Really? AMA?
Ok, but I have conditions: You can ask but it ain’t guarantee I will answer. It depends on how private or possibly security compromising the reply would be. And some shit simply is not for public consumption.
Send your questions to miguel@ and the obvious rest of the address. Subject: Ask Miguel Anything.
When is that I have to post the answers? I forget… because I am a grumpy old asshole!
PS: Boxers or Briefs gets you an automatic ban.
Friday Feedback
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.
More pitbulls needing yeeting
Two stories today:
Dogs put down after ‘horrific’ attack that killed one, injured three others
Two American Staffordshire terriers were put down after killing an elderly man and injuring three others in a Friday west-side attack that San Antonio authorities called “horrific.”
San Antonio Animal Care Services is investigating the incident, which unfolded along the 2800 block of Depla Street shortly before 2 p.m. The victim who died was identified as 81-year-old Ramon Najera, who was visiting a relative with his wife when the dogs rushed at them while they exited their vehicle, ACS officials said.
San Antonio Fire Department crews responding to the scene observed the man “being dragged by a dog (and) completely bloody before they got off the fire truck,” Chief Charles Hood said.
Firefighters began to fight off the dogs with pike poles and pick axes as the emergency evolved into a rescue situation, Hood added.
ACS Director Shannon Sims said the dogs were previously impounded in 2021 for a “mild bite.” An affidavit detailed that the dogs had previously attacked two people on two separate occasions, and ACS had received several calls in the past about the dogs violent behavior.
As a result of past occurrences, ACS required Moreno to use a harness on the dogs due to their behavior. According to a video taken by someone who witnessed the attack, the dogs didn’t have harnesses on.
Second story:
Girl, 6, needs 1,000 stitches, ‘won’t be able to smile again’ after vicious dog attack
A 6-year-old Maine girl’s face was mauled by a pit bull in an attack causing such profound injuries that she’ll never be able to smile again.
Lily Norton needed 1,000 stitches to close wounds extending from under her eyes to the top of her throat, The Sun Journal reported — and was flown to Boston for emergency surgery that lasted 11 hours.
Family friend CJ Pitcher, who created a fundraiser for the little girl, told the outlet Lily’s doctors said she wouldn’t be able to smile again because of the damage.
“Her salivary glands aren’t working … and doctors said she won’t be able to smile again,” Pitcher told the outlet. “Muscles are too damaged.”
Lily will be sedated for at least a week to prevent her from scratching at her face, according to Pitcher. The little girl’s mom, Dorothy Norton, told News Center Maine while Lily is sedated, she’ll need a breathing tube.
When the Feb. 18 attack occurred, Lily was at a friend’s house for a playdate, and the friend’s mom was reportedly dog-sitting the pit bull.
“They were going to play cards at the table, so she sat down at the table, the friend went and got the cards, and then as soon as the friend walked back in the room, she screamed to her mom because the dog had Lily in her mouth,” Norton said.
We have a dead elderly man, a little girl whose face is damaged for life, and a few other people who got bitten.
It seems that a lot of human carnage could have been avoided with a prophylactic course of heavy metal to some pitbulls.
Never say die
This post is the antithesis of Miguel’s post You cannot afford to be passive.
Repairman on roof fends off robbers trying to steal his truck
A Texas repairman confronted by three armed men looking to steal his truck was able to get the best of the would-be robbers, forcing them to run away.
Donald Burns, 69, was working Feb. 7 on top of the roof of a Houston convenience store, trying to repair a cooler overnight. Surveillance video shows three men approach about 2 a.m. Burns says one of the suspects had a gun and held it in a ready position.
“I heard them holler, ‘Throw down the keys,’” Burns said.
The suspects wanted Burns’ truck. But the repairman says the vehicle is an integral part of his business, and he could not afford to let them have it.
The man with the gun started climbing the ladder to the roof, as seen in surveillance video.
“About two steps up that ladder, and I grabbed my tool bag. I said, ‘I’m going to smash your brains out, and I’m going to cut you up with this knife. You better go,’” Burns said. “I said, ‘I’m going to get you. I don’t care if you shoot me, but I’m going to get you.’”
Here is the video:
That old man wasn’t going to be passive. Dude was about to fuck up three guys with guns with a hammer and a utility knife to save his business.
It’s not the size of the dog in the fight, it’s the size of the fight in the dog.
I hope he gets a gun and starts carrying it on the job.
Fuck knows that if my job had me outside at 2:00 am, I’d have a 9mm hanging on my tool belt.
Rupp v. Bonta AWCA Part 2 of 3
— 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.
— 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:
— 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”.
— 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:
- 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.
- 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.
— 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.
— 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.
— 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.
— 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:
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.
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.
Part III will cover the case now that it is back at the District Leve.