B.L.U.F.This case is before Judge Benitez. I believe he has a hearing scheduled for mid-September on the merits of the case. In response to the defendants (bad guys/state) whining that the case should be evaluated through the eyes of an expert or historian. Judge Benitez ordered the defendants to declare their experts and to allow the plaintiffs (good guys) the opportunity to dispose them.

The state went back to the well of Spitzer and Vorenberg for another set of declarations. They added Jennifer M McCutchen to the list of infringement loving experts as well.

(2300 words)

Who Are the Players

Jennifer M McCutchen is an Assistant Professor at the university of St. Thomas, Minnesota.

Dr. McCutchen specializes in Early American History and Native History, with a focus on the themes of gender, power, exchange, and diplomacy. Her current project is an ethnohistorical study of gunpowder in the late eighteenth-century Creek Confederacy.
Jennifer Monroe McCutchen | History, (last visited Aug. 19, 2023)

Michael Vorenberg, associate professor of history at Brown University. In his words:

Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, was published by Cambridge University Press in 2001. The book was a Finalist for the Gilder Lehrman Lincoln Prize. I am also the author of The Emancipation Proclamation: A Brief History with Documents, published by Bedford/St. Martin’s in 2010. I am the author of a number of articles and essays on Reconstruction and the law. These include: “The 1866 Civil Rights Act and the Beginning of Military Reconstruction,” in Christian Samito, ed., The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today (Southern Illinois University Press, 2018); Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence,” in Alexander Tsesis, ed., The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Columbia University Press, 2010); “Reconstruction as a Constitutional Crisis,” in Thomas J. Brown, ed., Reconstructions: New Directions in the History of Postbellum America (Oxford University Press, 2006); and “Imagining a Different Reconstruction Constitution,” Civil War History, 51 (Dec. 2005), 416-26.
Declaration of Micchael Vorenberg, Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)

We round out our merry band of word weasels with Robert Spitzer, in his words:

I am a Distinguished Service Professor of Political Science Emeritus at the State University of New York at Cortland. I was also a visiting professor at Cornell University for thirty years. I am currently an adjunct professor at the College of William and Mary School of Law. I earned my Ph.D. in Government from Cornell University. I reside in Williamsburg, Virginia.

I have been studying and writing about gun policy for over thirty years. My first publication on the subject appeared in 1985. Since then, I have published six books and over one hundred articles, papers, and essays on gun policy. My expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues. My book, The Politics of Gun Control, has been in print since its initial publication in 1995. It examines firearms policy in the United States through the lenses of history, law, politics, and criminology. The eighth edition of the book was published in 2021 by Routledge Publishers. My two most recent books on gun policy, Guns across America (Oxford University Press, 2015) and The Gun Dilemma (Oxford University Press, 2023), both deal extensively with the study of historical gun laws. I am frequently interviewed and quoted in the national and international media on gun-related matters. For over twenty years, I have been a member of the National Rifle Association and of Brady (formerly, the Brady Campaign to Prevent Gun Violence).
Declaration of Robert Spitzer, Rhode v. Becerra, No. 3:18-cv-00802, slip op. ¶ 2,3 (S.D. Cal.)

Robert’s Attempt at Matching

From the Bruen opinion, affirming the Heller methodology of text, history, and tradition, we know that when the plain text of the proposed conduct touches fingers with the Second Amendment, that conduct is presumptively constitutional.

Once the conduct is shown by the plaintiffs to be protected under the Second Amendment, the burden shifts to the state (bad guys) to find analogous regulations from the founding era, possibly supported by regulations from the antebellum period.

In Rhode v. Becerra, it is pretty obvious that the state isn’t arguing that the conduct isn’t protected. Either Judge Benitez has put that to rest already, or the state expects that to be a non-starter. That means they have to find “history and tradition” to support their infringement.

This Declaration examines the history of background checks for firearms purchases and permits, as well as two types of historical weapons regulations that are similar to the modern regulatory technique of background checks: licensing laws and laws relating to weapons confiscation.
id. ¶ 8

The history and tradition he is attempting to use is licensing laws and weapons confiscation. That is not a good match to background checks. He will try to make his case shortly.

Modern background checks for firearms purchases as we understand them did not begin until the 20th century. However, the absence of modern background check technologies in early America did not mean that evaluations of those entitled to have weapons did not occur or exist.
id. ¶ 9

Double emphasis added.

Ok, this means that there is NO history or tradition of background checks of any sort. Robert will now spend the next 30 pages trying to convince the court that these other laws over here are similar enough to count.

… Indeed, rapid, convenient gun-sale processes did not exist in the U.S. until the end of the nineteenth century, when mass production techniques, improved technology and materials, and escalating marketing campaigns all made guns relatively cheap, prolific, reliable, and easy to get.
id. ¶ 15

What utter bullshit. Until the gun control act of 1968, anybody who wanted to purchase a gun, the gun-sale process, walked into any store that sold guns, put his money down, walked out with the gun. The process couldn’t be simpler. He is intentionally conflating production, purchase, and background checks.

When the adverse consequences of the spread of cheap handguns began to be felt, states enacted numerous gun-carry restrictions in the late 1800s and early 1900sid. ¶ 16 is used to say that the state has always regulated new guns when the state becomes fearful. Sears ended handgun catalog sales in 1924, and other companies followed as pressure for government intervention rose.id. n. 3 showing that the state has always cheated.

The state knew that they couldn’t ban catalog sales of handguns. Instead, they pressured the companies to self censor.

Back in the last century, when I was in high school, I was assigned a writing assignment by my social studies teacher. I worked diligently on it. My final product was huge, almost 700 words.

My opus came back marked up with a gallon of red ink. The primary comment being something similar to: You’ve made a claim, how do you support it? I had no citations. I expressed my opinion as if it were fact.

Robert writes the same way. He might have support in the exhibits, but not in his footnotes/citations

Again, he admits that background checks are very modern: Modern background checks are generally traced to an “innovative provision” of the New York State Sullivan Law of 1911,7 which established a system of permitting for those wishing to possess a handgun, extending to their sale, possession, and carrying.id. ¶ 18

In the “you learn something new” category, I just discovered the Federal Firearms Act of 1938.

The Federal Firearms Act of 1938 (FFA) imposed a federal license requirement on gun manufacturers, importers, and persons in the business of selling firearms. The term federal firearms licensee (FFL) is used to refer to those on whom the license requirement is imposed.[1] “FFL” is also used to refer to the license itself.[2]

In addition to the licensing component of the FFA, the law required licensees to maintain customer records, and it made illegal the transfer of firearms to certain classes of persons, such as convicted felons. These classes of persons are commonly referred to as “prohibited persons.” The circumstances resulting in the prohibition (such as a felony conviction) are often referred to as “disabilities.” The FFA was repealed by the Gun Control Act of 1968 (GCA), though many of its provisions were reenacted as part of the GCA, which revised the FFA and its predecessor, the National Firearms Act of 1934 (NFA).[1]
Wikipedia: Federal Firearms Act of 1938 (Apr. 2023)

Robert’s primary argument is that in order for the state to issue a license to carry, they had to investigate the individual. This investigation was a “background check”. The process of doing a background check of somebody begging the government for permission to exercise their rights, in Robert’s mind, justifies background checks today.

He uses hunting licenses requirements to imply that those wishing to hunt had to have “background checks.”

“When the facts are on your side, pound the facts. When the law is on your side, pound the law. If neither, pound the table.”

Robert does a lot of hand waving about the long history of gun regulation. Interestingly, his citations are in footnotes with very little detail in the text. Generally, just statements that there were regulations that did this thing, trust him. Many of his citations are to his books. “Trust me! I wrote a book!”

Once he gets past that early history, he then starts into the post civil war period. Then he is much freer with his citations.

We have all agreed that there was a period of gun control after the civil war. Most of it for racist reasons, to disarm the newly freed slaves and other blacks.

Moving to his section on permits to discharge firearms, he suddenly has dates and quotes. From the 1700s to 1860, …Declaration of Robert Spitzer, No. 3:18-cv-00802, slip op. ¶ 46 That sounds bad for the good guys. Except we see the dates: 1713, 1721, 1750, 1750 again, 1824. Those don’t exactly match 1791. More interesting, the term “fireworks” are often in these regulations.

Maybe it wasn’t so much a general prohibition but instead a safety regulation? Don’t go shooting off loud guns in celebration?

I’m not digging up those old laws to verify, his words damn him.

Charleston, South Carolina enacted an ordinance in 1802 similar to those of Philadelphia where Commissioners of the Streets would grant a license for gun firing and fireworks “at times of public rejoicing” and at specified locations. New Hampshire enacted a discharge permit system for Portsmouth in 1823. New York State enacted a law in 1824 that allowed the Schenectady mayor or other city officials to grant permission for discharge of any gun or various fireworks.
id. ¶ 47


The infringers were hurt badly by the Bruen opinion. The Bruen decision gave very explicit instructions to the inferior courts. We harp on “text, history, and tradition.” Any honest court knows a gun control law when they see it. If it is a gun control law, it is in violation of the plain text of the Second Amendment.

Arguing that a magazine isn’t covered under the Second because it isn’t really an arm is disingenuous. The fact that some courts choose to accept it is a declaration of that court going rogue.

That leaves “history and tradition.”.

Wrong. It is the history and tradition of regulations. This is vastly different.

When we discuss the history of the Vietnam War, there are multiple view points. It is possible to study the war from the perspective of a grunt. Those in the rice fields and on patrol. It is possible to study the strategic parts of the war. The generals moving pieces on the board. It is possible to study the politics of the war, watching politicians and agitators moving the generals and materials around the board.

Each of those perspectives is different. Different historians will see things differently. The people who were involved will see things differently. All that is left to do is to attempt to fit the different pieces together to create a cohesive view. Which might not reflect reality.

History is written by the winners.

On the other hand, studying the regulations surrounding the draft is much more concrete. We have the regulations. They were written down. We have the records of the people who passed those laws.

We even have an entire class of professionals whose job it is to be able to interpret those laws. Those people are called “Judges”.

The right to keep and bear arms is an individual right. It has always been an individual right. Until the late 1900s, nobody ever considered it to be a collective right. Once the question arose, it required the Supreme Court to answer the question, in 2008.

We say that it was the Heller decision that said that the Second Amendment was an individual right. True. But it didn’t give individuals that right. No more than the Second Amendment gives us any right. The Second protects our rights. The Heller opinion confirmed that protection.

Even if some judge down in Alabama whines that studying the history and tradition of regulations, going back to 1791, is too hard. He’s just whining. He is supposed to be able to do that study. It is what he trained to do.

What he is really whining about is being forced to do his job correctly. He would rather have a more current circuit court telling him what to do.

The state wants this to be a battle of historians. It isn’t. This is the evaluation of regulations. Regulations are things that can be cited. It is not somebody’s interpretation of a regulation that is important. It is the regulation, as written, understood as plain text, at the time it was passed.

If the state wants to hold up a law from the 1870s and claim it tells us it supports their current infringement, that’s ok. It does support their current infringement. That is not the question. The question is, “What did the people in the founding era think it meant?”


Declaration of Micchael Vorenberg, Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)
Declaration of Robert Spitzer, Rhode v. Becerra, No. 3:18-cv-00802 (S.D. Cal.)
Wikipedia: Federal Firearms Act of 1938 (Apr. 2023)
Wikipedia: Ethnohistory (Jul. 2023)
Jennifer Monroe McCutchen | History, (last visited Aug. 19, 2023)
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2 thoughts on “Rhode v. Becerra — Robert Spitzer’s Declaration”
  1. Oooh, 100+ articles published since 1985, says Spritzer; that’s a 38 year span.
    I work with a guy who’s got over 300 published. Since 1997. In the hard sciences. And he doesn’t care about the publishing for his career, he just wants to get the results out.

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