B.L.U.F. This is the California case challenging California’s assault weapons ban. This case was first heard in federal district court. It was then appealed to the Ninth Circuit Court of Appeals. This case worked its way through the appeals process until 2021 where it was put on hold pending the Supreme Court hearing Duncan v. Bonta. After Bruen the Supreme court GVRed Duncan v. Bonta and the Ninth Circuit then vacated and remanded Duncan v. Bonta back to the district court as well as vacating and remanding Rupp v. Bonta to be re-adjudicated at the district level.

This is a history and break down of the case.

In 1989 California passed the Roberti-Roos Assault Weapons Control Act of 1989, known as the AWCA. It defines an assault weapon in the general way, a semi-automatic centerfire rifle that is scary looking. Fill in the blanks. Of course they add on a bunch of firearms by name, just in case their description wasn’t inclusive enough.

Part of the law restricts all transfers of “assault weapons”. This means that if a rifle is registered when the person the registered owner dies there is no way for the owner to transfer the firearm to their heirs. A grandfather clause that pushes a total ban a generation or so down the road.

In 2017 California passed an amendment which made it more difficult to have a neutered AR-15. Because the original definition of an “assault weapon” included a detachable magazine and the definition of a detachable magazine was one that could be removed without a tool people developed the “bullet button.”

In short it was a replacement for the magazine release that required a small sturdy pin to be pressed into the magazine release in order to activate the mag release. It was called a bullet button as the most common “tool” used was the tip of a 5.56 round. There were rings sold that had a small stud on them that fit the bullet button hole to allow people to easily carry the tool in a useful way.

When the people analyze a law they look for what is legal and not legal. If they decide to remain legal they will follow the letter of the law. If that violates the spirit of the law, the left calls that a “loophole”.

Thus, the fact that I can sell you a firearm in the parking lot of a gun show is perfectly legal if we are both residences of the the state is called a “loophole” or “gun show loophole” by the left. The fact that I can pick up my firearm after a short period of time if the government doesn’t deny me permission is perfectly legal. According to the left, this is the “Charleston loophole”. Donald Trump paying the taxes he owes and not more is a “loophole”. Exxon paying more than required in tax withholding over the course of the year and then getting their money back is a “loophole”.

Bullet buttons allowed people to use their own property the way they wanted to use it. The left was extremely unhappy and yelled that this was illegal, it wasn’t. So the left labeled it a “loophole” and set about closing the loophole.

On 2017-04-24 Steven Rupp et all filed a complaint for declaratory and injunctive relief from this infringement. This is nearly 10 years after the Heller decision. The plaintiffs(good guys) are being represented by Michel & Associates, P.C., the same people representing Virginia Duncan in Duncan v. Bonta.

The short of it is that they want to overturn California’s AWCA and stop California from infringing on the rights of their citizens. The plaintiffs attack the AWCA on multiple fronts including Second Amendment infringements, Due Process violations and violation of the Takings Clause.

The case was assigned to Federal District Judge Josephine L. Staton, not Judge Benitez.

The state immediately attempts to get the Takings Clause and Due Process Clause dismissed. Well, immediately when talking court proceedings pace.

The short of the defendants(bad guys) argument is that banning the transfer of certain rifles causes no economic loss to the plaintiffs. And because the plaintiffs are allowed to keep those rifles until they die nobody took them.

Now we get to the first interesting bit. The “Due Process Clause” is part of the Forth Amendment. The state does not argue that they didn’t violate due process, instead they claim California’s prohibition on assault weapons is rationally related to its objective of promoting public safety in California.

That sounds very familiar. The state arguing that they don’t have to follow the constitution because they have a laudable goal.

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
U.S.A. v. Rahimi – United States Court of Appeals for the Fifth Circuit

It seems that at least in the Fifth Circuit, laudable policy goal[s] do not override the Constitution. Maybe the Ninth Circuit Court and the AG of California might decide the same thing at some point in the future.

This law suit seeks to vindicate the right of law-abiding Californians to possess firearms that for years have been among the most popular choices of Americans for self-defense. Not only does California’s sweeping Assault Weapon Control Act violate the Second Amendment, it results in the taking of private property by the government without just compensation. The law both eliminates the ability of Californians to pass certain firearms on to their heirs—a long-recognized property right—and, in many cases, forces current gun owners who are unable to register their firearms to forfeit them. Under the regime, property rights are diminished retroactively based on a wholly irrational classification system, in violation of due process.

The State argues that there are few limits to their regulatory authority. Perhaps most egregiously, the State contends that the state enjoys a blanket police power through which it may evade the constraints the Constitution places on the exercise of government power. Fortunately, the State’s argument has been thoroughly rejected by the Supreme Court. There are substantial limits to state authority—limits the State of California has crossed.
Plaintiffs’ Opposition to Defendant’s Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims

Part of the plaintiffs argument for a TRO is that the law requires people to register their rifles. The form that they are required to use has required fields. One of those required fields is “firearm acquisition date”. Many people have no idea the date they aquirried anything. Unless there is a particular reason to keep those records, people don’t.

The original registration form is no longer easily located online. It is not unreasonable to assume that the original form had dire warnings about filling out the form incorrectly or “lying” on the form. Saying that you acquired a particular in 1995 when in fact you acquired in in 1996 is the sort of thing that gets you in trouble.

In addition, as a programmer, I know that many fields that ask for a date have no concept of “this is an estimate” so knowing you acquired a firearm sometime in 1995 you now have to pick a particular date within 1995. You are no testifying to the fact that you acquired a particular firearm on a particular date when you really have no idea.

The CSC[DoJ, Bureau of Firearms, Customer Support Center] has received calls from AWR[Assault Weapon Registration] applicants who asked how they should fill out the application if they did not have the exact date that they acquired the firearm they intend to register. I have directed the CSC to advise those callers that they may provide a best-estimated date for review in the required date field.
IRS CIRCULAR 230 DISCLOSURE: To comply with requirements imposed by the Department of the Treasury, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written by the practitioner to be used, and that it cannot be used by any taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer, and (ii) supporting the promotion or marketing of any transactions or matters addressed herein.

I wonder if the AWR form had a similar “disclosure”. The law is what it is. Petty bureaucrats do not have the power or authority to change law. While Patrick Plant might have done “the right thing” his direction to the CSC does not have the weight of law.

The defendants bring in an expert to tell the court:

Responsible gun owners keep records of their firearms purchases. This is a common sense matter of record keeping. It should be done to prove ownership in the event of theft and to document the legal purchase or acquisition of their firearms in the event of a criminal or civil dispute.

If a gun owner wants a list of their firearms records they can contact DOJ BOF Automated Firearms System (AFS) unit and get any firearms ownership information maintained by the DOJ after completing a copy of the form BOF 053, Automated Firearms System (AFS) Request for Firearms Records. This service provided by DOJ BOF is free. A true and correct copy of BOF 053 is attached as Exhibit 1.
Declaration of Blake Graham in Support of Defendant Xavier Becerra’s Opposition to Plaintiffs’ Moiton for Preliminary Injunction

So the CA DOJ considers you to be irresponsible if you don’t keep records of your firearm purchases. I keep records of the firearms I own. Those records are encrypted and secured. I have the ability to provide those records if needed but I certainly don’t have the purchase dates of all of my firearms.

It is not a legal requirement for you to keep purchase records on anything. If an item is lost or stolen your insurance company is going to want to know what was taken, as will the police.

Blake Graham then goes on to state that if you don’t know, just ask him. He has records of every firearm you have purchased. Well sort of. He only has records that have been given to the CA DOJ BOF. Since not everybody registers every firearm they own with the government, this is pretty much a null statement.

In addition, at a time when the AWR as failing under its own weight, Blake expects you to have the time to wait for him to do the research on your firearms records request. I’m sure that the AWR will be happy to wait an extra 60,90 or more days while you wait for Blake to get back to you.

Here is an actual good argument from the state:

Plaintiffs’ opposition fails to show how the allegations in the First Amended Complaint state plausible claims for relief under the Takings Clause and the Due Process Clause. In a prior challenge to the Roberti-Roos Assault Weapons Control Act (AWCA), the Ninth Circuit held that the AWCA does not violate the Takings Clause. See Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). Plaintiffs fail to address this controlling case. Instead, they simply argue that the AWCA effects a physical taking by requiring plaintiffs to forfeit their assault weapons because they can no longer bequeath those weapons to any heirs and because certain individuals do not have the required information to register their firearms. These contentions do not help plaintiffs, who in the context of a facial challenge, must establish that the AWCA is invalid in all circumstances. Furthermore, the AWCA does not appropriate plaintiffs’ assault weapons for public use. Plaintiffs may, after registering their assault weapons, continue to possess, use, and enjoy those weapons.
Defendant’s Reply in Support of Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims

This is an actual good argument back in 2017-12-01. It was a good argument because the opinions of the Ninth Circus Court controlled in this case.

The rest of the paragraph is pretty bogus. It doesn’t matter if the state physically takes something from you or forces you to destroy it under threat of violence, you no longer have the item. The state has removed the item from your possession, otherwise known as taking it from you.

If they had a sports car and the State suddenly decided for the safety of the public that they would no longer be allowed to use anything other than first, second, and reverse gears, that they were forbidden to use third, forth, and fifth gears, they would be very unhappy. I don’t think they would be satisfied with after registering their [sports car], continue to possess, use and enjoy those [cars]

If the law survives rationality review, then Plaintiffs cannot, as a matter of law, state a Due Process claim. Accordingly, the Court will determine whether the AWCA survives rationality review by determining whether the legislature had a legitimate government objective in enacting the AWCA, and whether the legislature could have believed at the time of enactment that the statute would promote that objective.
Legitimate Government Objective
The Court concludes that the legislature has articulated a legitimate government objective for the AWCA. It is beyond question that promoting public safety and reducing incidents of gun violence are legitimate government objectives, as the Ninth Circuit, like many other circuits, has found these interests not merely legitimate but substantial or compelling. See, e.g., Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015); Silvester v. Harris, 843 F.3d 816, 827 (9th Cir. 2016), cert. denied sub nom. Silvester v. Becerra, 138 S.Ct. 945 (2018); Kolbe v. Hogan, 849 F.3d 114, 139 (4th Cir. 2017); N.Y.S. Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (holding it “beyond cavil” that such interests are compelling).

In enacting the AWCA, the legislature found that the firearms categorized as assault weapons have “such a high rate of fire and capacity for firepower that [their] function as . . . legitimate sports or recreational firearm[s] is substantially outweighed by the danger that [they] can be used to kill and injure human beings.” Cal. Penal Code section 30505(a). The AWCA’s legislative history shows that the 2016 amendments were directly motivated by the 2015 mass shooting in San Bernardino, where the shooters used weapons with “bullet buttons” intended to circumvent prior iterations of the AWCA. California Bill Analysis, S.B. 880 Assem. at 8. These legislative findings support that the legislature had a legitimate government objective to promote public safety when enacting and amending the AWCA.

Accordingly, as a matter of law, the requirement that the legislature have a legitimate government objective is met.
Order Granting Defendant’s Motion to Dismiss, Denying Plaintiffs’ Motion for Preliminary Injunction, and Denying Plaintiffs’ Motion for Leave to File Supplemental Declaration of Dennis Martin

This is “means-end” in play. The court initially looked to see if the state had legitimate government objectives in passing the law. This is a very low bar to reach. Having reached the conclusion that the state had legitimate government objectives, the court then defers to the legislature in their findings.

However, the legislature concluded that the accuracy and ease of use afforded by these features, far from making the weapons safer, made them more dangerous is what the court uses to discount the plaintiffs assertions. The plaintiffs have presented multiple statements from multiple sources showing that the features the state contends turns a rifle into an assault weapon actually make them safer.

The court instead presumes the legislature knew what they were doing when they banned certain rifles and thus the arguments of the plaintiffs are discounted.

The court finds from this reasoning that the plaintiffs have failed to show that the law is impermissibly irrational, and the Court concludes that, as a matter of law, the AWCA survives rationality review. The Due Process claim is dismissed.

One of the things the court did in this ruling is that they looked at the concept of retroactive laws. What they determined was that the requirements of the law were not retroactive because the plaintiffs had options on what to do if they could not locate time-date of acquisition of the firearm in question.

I’m sure all of you have somebody you trust to store and care for your firearms out of state if suddenly required to divest yourselves of some previously legal item.

For the takings clause the court reasons that since the government didn’t physically take the items in question but instead passed a regulation it is not a physical taking. True, as far as it goes. The court continues with reasoning about the “regulatory” taking. This is the difference discussed above, is it a taking if you are forced to destroy or divest yourself of some object by threat of state violence?

The court uses prior rulings from the Ninth Circuit Court ruling that the AWCA didn’t constitute a taking.

The court denied the claims against the Takings Clause.

The final claim made by the plaintiffs was that this was a violation of the Second Amendment. The court the decides to use intermediate scrutiny and as seems to always be the case, finds for the government. The court’s reasoning being that only the right to self-defense is covered under the second amendment and as long as you have other means of self-defense the state is allowed to ban these means.

This was the order from the court denying the TRO and injunctions was give on 2018-05-9, just over a year after the suit was filed.

In the NY CCIA cases we were to this stage in mere months and to the Supreme Court in less than a month afterwards.

Finally, on 2019-07-22, the court granted the defendant’s(bad guys) motion to dismiss. I.e. the state won the first round.

This happened because the district court reasoned it was required to apply means-end and as such gave the state the ability to claim a legitimate public need for the law and then the court assumed the legislature knew what it was doing when it made claims of fact.

Order Granting Attorney General’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgement

On 2019-08-27 the plaintiffs gave the district court notice of appeal. On 2019-08-28 they filed their appeal with the Ninth Circuit Court of Appeals.

Part II covers the case as it makes its way through the Ninth Circuit Court.

Geek speak: I attempted to make everything format a little better. I’ve updated how I do block quotes and made asides work. I’m sure there are going to be some issues with the aside on smaller displays but I hope it isn’t bad. I’ll “fix it” tomorrow if there are still issues.

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By awa

3 thoughts on “Rupp v. Bonta AWCA Part 1 of 3”
  1. The “Asides” work for me. They are acting like a BLUF for each section. Please keep doing them where you deem appropriate.
    I find BLUF an interesting concept. One I should like to steal… just saying.

    1. You don’t need to steel what is freely given. B.L.U.F. is a standard military briefing style. It might even be a requirement at this point. Thank you.

Only one rule: Don't be a dick.

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