Judge Benitez is hearing this case. I believe there are a few other cases he is hearing as well. Earlier this month there was a hearing. He has now set the schedule for the trial on the merits.

This is the point at which he will hear all the evidence, decide which are “facts” and from there he will issue his opinion.

On June 30, 2023, judge Benitez set a hearing date of July 17, 2023, at 1400. He issued the following order:

Pursuant to F.R.C.P. 65(a)(2), the Court intends to consolidate the hearing on the motion for preliminary injunction with a trial on the merits. At or prior to the hearing, the parties should be prepared to address, among other things:

  1. The Plaintiffs’ continuing Article III standing;
  2. Whether Plaintiffs’ conduct is covered by the text of the Second Amendment;
  3. Relevant historical analogues;
  4. Applicability of footnote 9 in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022);

  5. The Dormant Commerce Clause (First Claim for Relief);
  6. Preemption by 18 U.S.C. § 926A (Ninth Claim for Relief);
  7. Whether judicial deference is owed to laws produced by ballot measure Proposition 63;

Whether additional discovery is necessary, and if so, the specific discovery needed.
Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)

The state responded with:

First, Defendant intends to request at the hearing an opportunity to engage in discovery, which has not yet occurred in this case. See Dkt. No. 81 at 9. Defendant will request an opportunity to depose Plaintiffs and declarants, particularly with respect to Article III standing. Defendant will also propose that the parties be afforded an opportunity to engage in expert discovery concerning relevant history to inform the Court’s evaluation of Plaintiffs’ Second Amendment claim under New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).

Second, Defendant may submit additional documentary evidence at the hearing in support of his arguments that the challenged Ammunition Laws, enacted by Proposition 63, as amended by Senate Bill 1235, are constitutional. Defendant intends to mark and introduce any such exhibits at the hearing.
Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)

The state isn’t willing to tell the court, in writing, before the hearing what their arguments and evidence are. They are reserving that for the day of the hearing.

The state is going to attack the plaintiffs (good guys) on standing. If they can get the case dismissed on standing, then they do not have to show their work in regard to finding a historical tradition of this type of firearm regulation.

The state earlier argued that they didn’t have enough time to do the historical research required. I call Bull Shit. They have known since July 2022 that they were going to need to be able to present the historical regulations to support their current infringements.

They also argue that the plaintiffs don’t have standing because the ammunition background check hasn’t stopped them from purchasing ammunition. What the state is asking for is a person to be denied the ability to purchase ammunition while not being legally prohibited from purchasing ammunition. I.e., a false positive. They feel it is acceptable to put a series of obstacles in front of The People, as long as people make it through the obstacle course.

Plaintiffs cannot carry their burden of showing that the Second Amendment’s text covers their intended conduct, which is essentially to purchase ammunition without any kind of verification of whether they may lawfully do so. To determine whether the plain text covers an individual’s conduct, the Court “must first identify and delineate the specific course of conduct at issue.” Defense Distributed, 2022 WL 15524977, at *4 (quoting Nat’l Ass’n for Gun Rights, Inc. v. City of San Jose, 2022 WL 3083715, at *8 (N.D. Cal. Aug. 3, 2022))). The proposed course of conduct must be defined with specificity—not simply “purchasing ammunition”—for the textual stage of the analysis to have any meaning. For example, in United States v. Reyna, the district court characterized the proposed course of conduct as “possession of a firearm with an obliterated serial number” and not more generally as “mere possession [of a firearm],” because if the conduct was “mere possession,” any number of other challenged regulations would similarly boil down to mere possession, then promptly and automatically proceed to” the historical stage of the analysis. 2022 WL 17714376, at *4 (N.D. Ind. Dec. 15, 2022) (emphasis added).
ECF 81 - Rhode v. Becerra, No. 3:18-cv-00802, slip op. at 15–16 (S.D. Cal.)

This is actual good for us. The state is telling the court that the court must require a level of specificity in the proposed conduct. The state says that the plaintiffs have to say “walking down main street bearing arms” and not “walking in town bearing arms”. If that level of specificity isn’t required, then “walking down Pine Ave. bearing arms” would be treated just like “walking in town” and the state would always have to prove history and tradition.

In United States v. Reyna the charge was “possession of a firearm with an obliterated serial number”. The charge wasn’t “possession of a firearm”. Thus, the specificity of the issue.

The proposed conduct is purchasing ammunition. The state wants that tightened and then proven as protected conduct.

The Supreme Court has ruled:

Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2132 (U.S. 2022)

Ammunition, magazines, triggers, barrels all facilitate armed self-defense. This means those things are all “arms” as defined in the Second Amendment.

There is a quote, “A right delayed is a right denied”. The state claims that since none of the plaintiffs have been prohibited from purchasing ammunition, even though they were required to submit to a background check. A face-to-face transaction at an FFL and having a record made of their purchase, their proposed conduct has not been infringed.

The state also uses this wiggle wording … not a single plaintiff was even substantially delayed …Supplemental Briefing –  Rhode v. Becerra, No. 3:18-cv-00802, slip op. at 16 Who gets to decide “substantially delayed?” A year or so ago, I went to purchase a firearm at the nearly local gun store (NLGS). I waited for around two hours for the approval to come through. After two hours, I left.

The store called me on the drive home. I had to make the 1.5 hour round trip again, the next day. Was I “substantially delayed?” The state doesn’t think so. The state doesn’t think “weeks” is substantial.

In the same vain, I don’t buy ammunition at locations that record transactions.

The purchasing of ammunition “may be subjected to governmental restrictions.” Jackson, 746 F.3d at 970. Bruen did not change this.id. (the citation should be 746 F.3d 953, the state got it wrong). The quote is But we also recognize that the Second Amendment right, like the First Amendment right to freedom of speech, may be subjected to governmental restrictions which survive the appropriate level of scrutinyJackson v. City of S.F., 746 F.3d 953, 970 (9th Cir. 2014).

Isn’t it interesting that the state just happened to leave out survive the appropriate level of scrutiny which is what the Supreme Court said was NOT allowed. One step too many.

One of the things we are seeing is the state, in numerous instances, is using pre-Bruen cases in support of their position. These cases should all be considered “bad law” as they fail under Heller is affirmed in Bruen. Plain text, history, and tradition are the proper metrics to use. Nothing about the level of scrutiny. The state is hoping to require the good guys to have to get each of these foundational cases of bad Second Amendment laws overturned individually.

The 4th Circuit Court is currently looking at deciding if Kolbe is still good law. Kolbe being one of the foundational infringement cases for the East Coast.

I didn’t mean to dive into the state’s arguments. Just getting hot under the collar, as it were.

Minute Entry for proceedings held before Judge Roger T. Benitez: Preliminary Injunction Hearing held on 7/17/2023. No objections were heard as to combining the preliminary injunction hearing with a trial on the merits. Within 30 days of today, Plaintiffs shall file a declaration(s) regarding their Article III standing. Within 30 days of today, Defendant shall name and file an expert report(s) or declaration(s) regarding the American history and tradition of background checks. Within 15 days thereafter, Plaintiffs shall decide whether to depose said expert(s), and within 30 days after deciding, Plaintiffs shall file a brief or expert declaration(s) in response. Additionally, within 30 days of today, Defendant shall file an updated declaration regarding ammunition purchaser background check acceptance/rejection rates and processing times, as performed previously. Additionally, within 30 days of today, Defendant shall report to the extent ascertainable, on persons described in previous declarations as persons who underwent background checks and were identified as prohibited persons and indicate whether such persons were prosecuted and whether firearms were located and seized from such persons.(Court Reporter/ECR Juliet Eichenlaub). (Plaintiff Attorney Sean Brady, Konstadinas T. Morou). (Defendant Attorney Christina R. B. Lopez, John D. Echeverria). (no document attached) (gxr) (Entered: 07/18/2023)
— Rhode v. Becerra, 3:18-cv-00802, (S.D. Cal.)


New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)
Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)
ECF 81 - Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)
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  1. In addition to the possibility of denial, California’s ammo background check mandates also increase the financial burden on the citizen. The FFLs do not transfer ammo for free. And of course there’s the extra burden on time to go to the store, get backgrounded, etc., versus home delivery.

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