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.
Once I have the official name and maybe the case number I need to find the docket or the document. Finding the docket is the better option most of the time.
The docket contains an entry for every official communication made through the court. A complete docket will start with the first motion filed. This would be the “law suit” was filed stage. After that there will be a set of communications from the court telling the plaintiffs what to do next.
The requirements normal start with the rules of the court and then say that the plaintiffs have to inform the defendants.
From there the docket fills up with lots and lots of filings.
Here is where we get the question as it is first put to the court in Rupp v. Bonta it was: (extensive, paragraph after paragraph). At this point my task is to just figure out what the question is and to paraphrase it. In the case of Rupp v. Bonta the complaint is 32 pages long with about 20 pages of that being text that contains “the question”.
From there, in the docket, we’ll start to see responses from the defendant. There will be requests to delay when filings are required as well as many other request.
At this point there will be motions for “summary judgement” or “temporary restraining order and preliminary injunction”
A summary judgement means that the party asks the court (judge) to make a decision and issue their ruling right now before going any further. Prior to Heller this would be the place where the state would say “the plaintiffs are not part of the militia, they have no standing”.
To support their claim that the judge should rule for them, the parties will be ordered to file briefs. Briefs are not always brief. In general the brief will layout the arguments for both parties.
In Duncan v. Bonta and Rupp v. Bonta every brief seems to follow a pretty standard template. The state will restate their original argument over and over again with just minor tweaks to the language. This means that when quoting an argument it is very important to reference back to the correct version of that argument.
When I started this, I was looking mostly at the courts orders and such. This told me what the courts opinion was. I then started looking at the briefs. Having written, what I thought was a very good article on something the state presented, I read the plaintiffs(good guys in this instance) had written. I found that what they had written matched what I had found but their words were different and in some places more powerful.
This lead to reading more of the briefs. As I was reading the briefs and reading the arguments it became obvious to me that the briefs were including arguments from outside sources.
These sources are “Declarations” These are where an expert puts out what their “expert” opinion is on some subject.
As I started to read these declarations I started to find more of how the truth was being misrepresented.
When the state declared that an infringement was supported by being outside the scope of the second amendment and even if it was within the scope of the second amendment there was a history and tradition of said infringement, they were not just voicing their opinions.
On Wikipedia there is a very strong policy against being a primary source. It is against policy to publish an article that is the primary source. The proper way to do it is to publish an article elsewhere, then reference that article from Wikipedia and quote the article within Wikipedia. That makes Wikipedia a secondary source in all cases.
Primary sources are where you go when you want to remove interpretations. Thus the secondary and tertiary sources were all calling it the “Don’t say gay bill” but the primary source, the actual text of the bill, didn’t have those words in it nor did the bill do what the secondary and tertiary sources said it did.
In court cases there are the opinions of “experts” which are considered are then referenced by the different parties. In some cases those expert opinions are primary sources. In other cases they are not.
Col. USMC(Ret) Tucker presents himself as an expert. He is not an expert in terminal ballistics in tissue. He presents himself as having that expertise but he doesn’t. What he does is he reports what he heard but did not observe.
A different expert went looking for the source of those reports. That expert actually ran a lab on terminal balististics in tissue. His lab was never able to produce the types of devastating wounds described by Tucker. They were never able to get a 5.56 round to “tumble” The bullet would yaw and at most might yaw as much as 180 degrees but at no time were they able to get a bullet to tumble.
What he did find was back when the M-16 was being introduced to the troops in Vietnam they were issued to some of the South Vietnamese, ARVN troops. Those troops went out and when the came back they had tales of decapitation and body parts being blown off by the wonderful M-16.
Those results have never been reproduced.
Back on track, sorry for that digression.
The state makes an argument and uses as support exhibits and declarations. If you don’t read the declarations you don’t know what the subject matter expert is giving as their opinion and you don’t know how they got there.
So when the state characterizes an opinion as “our expert says there is a long history and tradition of arms regulation” you need to know what exactly their expert actually said. In one case what the expert said was more of “since the early 1900’s there have been lots of regulations of machine guns.”
The state then gets another expert to say that an AR-15 is just like an M-16 which is a machine gun. The state is then able to argue that the laws put into place in the early 1900’s regarding machine guns are similar to the infringement they are defending.
While all of this is going on there are Amicus briefs being added. Each Amicus or friend of the court, puts forth their brief, puts forth a motion to allow them to file the brief, and writes a “Proposed Order” for the judge to sign granting them their motion.
It is important to read all of these Amicis filings because sometimes they hide their lineage.
In the Naperville AWB ban case you have to read to the last page of the briefings to find that the lawyers that are representing the plaintiffs (bad guys) all have email addresses at Everytown.
After wading through all of this I finally get to the court’s Order. These are often long but they are important to read.
These orders tell what the judgement will be and why the judge made that decision. Somewhere within that order will be a discussion of the reasons.
While they acknowledge that the Court is bound by the Ninth Circuit’s two-step inquiry (Plaintiffs’ Mem. at 17 n.10), Plaintiffs devote a significant portion of their briefing to arguing that the AWCA violates the Second Amendment under a “scope-based analysis” derived largely from then-Judge Kavanaugh’s dissent in Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1269–96 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). (See Plaintiffs’ Mem. at 11–17.) Essentially, Plaintiffs’ proposed test requires a “historical justification” for firearm regulations. (See id. at 11.) If there is no historical justification, the regulation is per se invalid. (Id.) The Court rejects Plaintiffs’ proposed test for two reasons. First, it does not find it persuasive for the reasons expressed by the majority opinion in Heller II. See 670 F.3d at 1265 (“If the Supreme Court truly intended to rule out any form of heightened scrutiny for all Second Amendment cases, then it surely would have said at least something to that effect.”); id. (“[T]he idea that Heller precludes heightened scrutiny has eluded every circuit to have addressed that question since Heller was issued.”); id. at 1267 (“Although Heller renders longstanding regulations presumptively constitutional, it nowhere suggests a law must be longstanding or rooted in text, history, and tradition to be constitutional.”). Second, and more simply, the Court is bound by the Ninth Circuit’s two-step inquiry.
&mash; Order Granting Attorney General’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment
And this is where the rubber meets the road. After all the arguments, after all of the briefs, after all that spilled electronic ink, the answer the court gives is
Second, and more simply, the Court is bound by the Ninth Circuit’s two-step inquiry
All of this lawyering to this point is to get one thing to happen, to have a case primed to go before the circuit court. There is no expectation that they will prevail at the circuit court level as it is the Ninth Circus Court, but they have to get through the Ninth before they can get to the Supreme Court.
At the appeals level and the Supreme Court level all facts need to be in evidence. If it is not in evidence then the case might be returned to the lower court for them to gather more evidence, to allow the parties to present more arguments.
In the Bruen decent Justice Breyer argued that the case should have been remanded back to the Second Circuit court for more fact finding. If that had happened the case would have been returned to the district court for more fact finding that would meet the needs of Justice Breyer.
So again, this case before the district court is there to punch through to the Supreme Court with as much evidence as required to win at the Supreme Court.
As far as research goes I now have a PACER account and can actually purchase court filings, all I have to do is find them.
So far I’ve purchased one paper. It cost $0.10. The search to get the docket cost a $1.00. The good news seems to be that I can download the search results and go back pull the documents I need.
There are other resources on the net that I do use as well. They are good sources for past rulings and the actual laws but they are often way behind current cases.
Regardless, I do enjoy doing the dives into the different cases.
5 thoughts on “How I write analysis posts”
It really is fun to go through these, I’ve been following the cases through several people on Twitter and what the states have been throwing out have been an absolute joke. IL just argued that the mere presence of a semi-auto rifle makes people go crazy and want to kill people.
You have a very interesting idea of what constitutes a fluff piece, AWA. 🙂
Thank you, both for the description of the process, and for going through it!
It was a “fluff piece” because the level of research was nill. All of the content came out of my head. The quotes came from documents I already had in hand.
I have photo postings where are just me having fun. Filler (link dump, Tuesday Tunes, Friday Feedback). I have researched pieces. In the research pieces I attempt to make sure that I back my opinion from primary sources. I have difficult to write opinion pieces and “fluff” which are easy to write opinion pieces.
It’s absolutely criminal that we need to pay for access to court filings.
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