Legal Court Dunce
(1100 words)

After Heller, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022). Justice Thomas went on Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that

If the plain text of the Second Amendment covers the individual’s conduct, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”id..

Applying the Bruen test in a manner consistent with Fyock and Alaniz, the Court asks, at Bruen’s first step, whether assault rifles are dangerous and unusual, with the burden on Plaintiffs to make a showing that would bring them within the ambit of Second Amendment protection. As discussed in detail below, the Court concludes that Plaintiffs have not shown that the assault rifles at issue fall within the Second Amendment’s plain text. (Infra part IV.A.)
Steven Rupp v. Xavier Becerra, No. 8:17-cv-00746, slip op. at 15 (C.D. Cal.)

It takes a certain amount of chutzpah to claim that the Bruen court said that the plain text portion needed the challengers to prove anything apart from their conduct being within the ambit of the Second Amendment. There is never a need for the challengers to prove that an arm is not unusual or not dangerous.

It is the burden of the government to prove that their modern regulation is consistent with this Nation’s historical tradition of firearm regulation.

This chairo judge claims she was just following the orders of her bosses at the Ninth Circuit. As she says, In addition to Bruen, this Court must adhere to Ninth Circuit precedent, including all pre-Bruen decisions that are not “clearly irreconcilable with the reasoning or theory” of Bruen. id. at 12

Ok, let’s try to wrap our heads around this one. This judge’s pseudo logic is this:

  1. Tiers of scrutiny is out
  2. Bruen described the old two-step shuffle as “broadly consistent” with Heller
  3. Before Bruen, the Ninth Circuit held that which types of weapons were protected by the Second Amendment’s text was part of the plain text analysis
  4. Bruen labeled the analysis done by the Courts of Appeals to be broadly consistent with Heller
  5. Therefore, the plain text analysis of the Second Amendment must include all the crap that the Ninth Circuit did before Bruen

She uses —Leonard Fyock V. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) to support her profound error. In Fyock, the Ninth Circuit found that the Heller court quoted Miller in saying only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.District of Columbia v. Heller, 467 U.S. 837, 625 (2008).

This is not part of the textual analysis, it is part of the historical analysis.

At page 576 of Heller, it starts at page 570, Justice Scalia wrote: We turn first to the meaning of the Second at 576.

This is followed by:

  1. Operative Clause
    1. “Right of the People”
    2. “Keep and Bear Arms.”
    3. Meaning of the Operative Clause.
  2. Prefatory Clause
    1. “Well-Regulated Militia.”
    2. “Security of a Free State.”
  3. Relationship Between Prefatory Clause and Operative Clause

Which takes us to page 600 of the Heller opinion. Having done a lexical analysis of the words of the Second Amendment, the Court then supports their interpretation of the words from historical references from the founding era. As well as rebutting Justice Steven’s dissent.

At the bottom of page 605, they start their historical analysis. That is to say, we are now 30 pages from the start of the plain text analysis and 5 pages past the end of the textual analysis.

Having finished their historical analysis at page 619, they then look to see if any of the Supreme Court’s prior opinions would put them at odds with themselves.

At page 625, where the Ninth Circus pulled their Heller quote, they are talking about how previous Supreme Court opinions might bind the Heller Court.

The quote is We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled at 625. In other words, if a weapon is in common use, it cannot be banned.

Regardless of everything else, Fyock v. Sunnyvale was decided in 2015. Seven years before the Bruen decision. The obvious twisting of Heller to claim that magazines are not protected by the Second Amendment is an affront to logic and reasoning.

This judge should have dismissed Fyock as being clearly irreconcilable with Bruen

She goes on:

After Bruen, the Ninth Circuit applied Bruen’s new framework in United States v. Alaniz, 69 F.4th 1124 (9th Cir. 2023). In Alaniz, the Ninth Circuit concluded that whether a weapon is protected by the Second Amendment is part of “Bruen step one.” Alaniz, 69 F.4th at 1128 (citations omitted). Alaniz added that, for a weapon to be protected by the Second Amendment, it must be “in common use today for self-defense.” Id. (quotation omitted). This test is closely related to Fyock’s “dangerous and unusual” test—if a weapon is in common use today for self-defense, then it cannot be unusual as Fyock defines the term. See Fyock, 779 F.3d at 997. Alaniz further explained that “[i]f the first step is satisfied, we proceed to Bruen step two, at which the ‘government must then justify its regulation.’” Alaniz, 69 F.4th at 1128 (quoting Bruen, 597 U.S. at 24).
Summary Judgment AND Summary Judgment – #173 in Steven Rupp v. Xavier Becerra (C.D. Cal., 8:17-cv-00746), No. 8:17-cv-00746, slip op. at 13

You know that the Ninth is a joke when you read some of their Second Amendment opinions.

The “first step” of Bruen is so simple, even a senior judge of the Ninth Circuit court should be able to do it. That they cannot implies that they should be retired. They say, for a weapon to be protected. A weapon is an arm. Is a bearable arm? In Alaniz it most definitely was. And in this case, rifles are arms.

What is the conduct? They wish to keep and bear those arms. That is being denied to them. Thus their right to keep and bear arms is being infringed.

That is the end of step one of the Bruen/Heller framework.

The case is Steven Rupp v. Xavier Becerra 8:17-cv-00746, (C.D. Cal.). I do not know if it will be appealed to the Ninth Circuit. They might try to jump the Ninth. The fact that a final Judgement has been issued means that this is another good case for the Supreme Court.

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By awa

One thought on “The Two Step Shuffle”
  1. Sigh. Sounds like a good swathe needs to retire. Or resign in disgust and protest, I’d be good with that too.

Only one rule: Don't be a dick.

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