Last week, as I was digging through the filings in Rupp v. Bonta this song popped up in my music queue. I think I had heard it way back when, but certainly nothing more recent than a decade or two.
There is one thing I have learned about lawyers in my many years, my lawyers have all been good people, their lawyers have all been assholes.
My lawyer wayback when hired a new secretary. When I came into see my lawyer she recognized me. She use to work at a different lawyer’s firm. That firm had represented my wife during our divorce. I had a terrible hatred for that dude because of the way he helped my wife get one over on me.
Anyway this secretary, when she recognized me, told me that she remembered me from coming into her office. How she had appreciated how I had treated her and the rest of the staff. Then she shocked me by telling me that my ex-wife’s lawyer liked me better than he liked his client and thought I had done a good job of representing myself in the end.
Lawyers are like the pitbulls that J.Kb. talks about. They are vicious and nasty and evil, but when they are protecting you, that is exactly what you want. You just have to be careful they don’t get off their leash.
Lawyer Jokes in bad taste
Q: What do you call 25 attorneys buried up to their chins in cement?
A: Not enough cement.
Q: What do you call 25 skydiving lawyers?
A: Skeet.
Q: How can you tell when a lawyer is lying?
A: Their lips are moving.
Q: Why did New Jersey get all the toxic waste and California all the lawyers?
A: New Jersey got to pick first.
Q: What do you call 5000 dead lawyers at the bottom of the ocean?
A: A good start!
The first thing we do, let’s kill all the lawyers.Henry VII, William Shakespeare
It seems that my long articles aren’t scaring you all off to much. On Sunday’s post I made some changes to add section headers to make it easier to read and used the “read more” option let you decide if you are truly interested in reading more about that subject.
People don’t seem to have an issue with my pull quotes, so for the time being I’ll continue to do them as I have been.
I have started to do a few more short quotes with links back to the sources to make somethings shorter.
B.L.U.F. The 2008 Heller case was a huge win for us. Yet somehow it didn’t result in the changes in infringements we expected. This is one of the cases we lost which was used to keep infringing regulations in place.
In this interlocutory appeal, Leonard Fyock, William Douglas, Scott Hochstetler, David Pearson, Brad Seifers, and Ron Swanson (collectively “Fyock”) challenge an order denying their request to preliminarily enjoin an ordinance recently enacted by the City of Sunnyvale, California (“Sunnyvale”), restricting the possession of “large-capacity magazines”—statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds. Fyock claims that Sunnyvale’s ordinance, part of a ballot measure known as Measure C, violates his Second Amendment right to keep and bear arms and will irreparably harm him if not immediately enjoined.
— Fyock v. Sunnyvale, 779 F. 3d 991 – Court of Appeals, 9th Circuit 2015
Why is this case important?
This case is important because this is one of the circuit level cases cited in multiple Second Amendment cases to support the use of intermediate scrutiny. The other commonly cited case is Kolbe v Hogan which was decided in the 4th circuit court.
These two cases came post Heller. As discussed multiple times in previous articles, when a case is decided that puts the brakes on for some sort of infringement, the infringers read through those opinions with a fine tooth comb looking for something to hang their infringements on.
Prior to Heller cases were heard and dismissed for lack of standing. Those same cases, post Heller came back through the courts and the state had new arguments to support their infringements that fit within the framework set out in Heller.
We’ve all had this type of argument. They say something you disagree with. You counter with your argument. They bring up supporting evidence and you counter. You win because you have a better grasp of the facts and reality. They immediately tell you that they didn’t have the position they had because of the reasons they just argued unsuccessfully with you, no it is this other reason.
I’m a numbers guy. My brain hears numbers and they just make sense. When we were dissolving a LLC the other people in the LLC were buying us out. They offered a sum. They justified it with a set of numbers. I pointed out their numbers were bogus. At the next arbitration they offered exactly the same sum but with an entirely different set of justification numbers.
Those were just as bogus. I shot them down. At the next arbitration they offered the same amount yet again with still a third set of numbers to justify. I showed how those numbers were bogus as well. I then asked “All you have for the buy out is that sum, right?” They looked at each other and nodded.
“Ok, then stop trying to justify that offer with bogus numbers. It is what you have and there isn’t any more.”
Sometimes these court cases feel like that. The state has but a single position and they will argue that position a dozen different ways, all as bogus as the last.
LCM in Sunnyvale California
After Heller the states didn’t have the same knee jerk reaction at the legislative level that they did after Bruen, instead the issues were fought in court. In court the state through plate after plate of spaghetti at the wall to see what would stick. As soon as one piece stuck, the rest of the infringing states incorporated that argument into their own building up case law to the point where the Heller opinion had been all but neutered.
Fyock v. Sunnyvale came about because the city of Sunnyvale decided to “do something” and passed an ordinance banning Large Capacity Magazines.
The history of LCM bans in California started with the federal “Crime Control Act” of 1994. Part of the CCA was the AWB. There was also a LCM ban as part of that. In 2000 California put into place a ban on the manufacture, sale, purchase, transfer, and receipt of LCMs. They did not ban the possession of LCMs.
They didn’t feel the need to for some reason.
In 2004, the CCA sunset ending the federal AWB and LCM ban.
The state and the Ninth Circus court declared that this created a “loophole” where people in California could possess LCMs even if they couldn’t get new ones.
In 2013, the city of Sunnyvale had a citizen driven initiative on the ballot to ban the possession of LCMs. It passed.
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.
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.
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:
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.
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.
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.
