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.
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.
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).
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.
