Rupp v. Becerra
Over the last week we had a Motion for Summary Judgment issued against us in the case of Rupp v. Becerra. This was, frankly, fully expected and, had we won, we would have been dragged into an appeal by the State, just as the State is about to be dragged into an appeal by us.
(For clarification, when I say “we” and “us” I am being somewhat global. The case is being litigated by Michel and Associates and they continue to do an excellent job. “We” is being used as reference to the gun community, and anyone interested in civil rights, and logic-based jurisprudence.)
The case was brought before Judge Josephine Stanton (an Obama appointee), and to say that her analysis thoroughly botched the established Second Amendment jurisprudence would be a disservice to the word “analysis”. The intellectual gymnastics required to arrive at the outcome she was seeking were not only completely devoid of rational Constitutional inquiry, they also lead to an outcome that violates all public policy when it comes to the safety of society.
In short, her desire to uphold California’s “assault weapons ban” has, in my opinion, gone so far as to create a legitimate damage to the bench.
Okay, so let’s start unpacking:
If you have a bottle of Pepto Bismol handy, you can access the judgment here: http://michellawyers.com/wp-content/uploads/2019/07/2019-07-22-Order-Granting-Defendants-MSJ-Denying-Plaintiffs-MSJ.pdf.
Plaintiffs (us) brought an action against the State claiming that the California Penal Code, as amended by SB 880, violates the Second Amendment to the US Constitution, as applied to the States via the 14th Amendment. The relevant code section is: Cal. Penal Code §30515(a)(1)(A)-(F).
The court rejected this claim based on an initial analysis that the Second Amendment does not apply to “Assault Weapons”. How the court reached this conclusion requires us, like Alice, to journey through the looking glass.
(If you have arrived here from our newsletter, continue reading here…)
Any discussion of the Second Amendment typically initiates with a discussion of Heller v. District of Columbia (554 U. S. ____ (2008). Yet, before we can understand the limitations of Heller, let us digress a moment to understand a very old case, US v. Miller (1939) 307 U.S. 174.
Miller involved the defendant transporting a short-barreled shotgun across state lines, as well as additional criminal offenses. As it related to the shotgun, defendant Miller claimed the law prohibiting short-barreled shotguns was a violation of his Second Amendment rights. The court disagreed, claiming that the Second Amendment protected only weapons that had a military application; thus, since a short-barreled shot gun has no military application, the weapon, not the individual, does not garner Second Amendment protections.
While we may debate the accuracy of the Court’s assertion that the weapon has no “military application,” it was correct in recognizing that the prefatory clause of the Second Amendment (“A well-regulated militia, being necessary to the security of a free State…”) presupposes that the people will be able to muster when called upon with weapons suitable for militia purposes.
For years the Miller decision stood as the central Second Amendment case in a world of jurisprudence that had a decidedly limited amount of common law from which to draw.
Then came the biggie: Heller v. DC. Decided in 2008, the late Justice Antonin Scalia recognized the Second Amendment is a fundamental enumerated individual right. He also explicitly stated that:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machine guns (not challenged in Miller) might be unconstitutional, machine guns being useful in warfare in 1939. We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ (307 U. S., at 179. (554 U. S. ____ (2008) at p. 52).
Judge Stanton does not like this. This is not surprising as other judges have also been flat out hostile to this line of thinking. Her comrades in the 4th circuit in Kolbe v. Hogan, Jr., No. 14-1945 (4th Cir. 2017) decided to turn Heller on its head. They reasoned (I use this word loosely) that the following paragraph explicitly takes AR-15s out of the protection of the Second Amendment:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons”. (554 U. S. ____ (2008) at p. 55 0).
Okay… fair enough… but you MUST continue reading the decision:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (554 U. S. ____ (2008) at p. 56).
Yeah… those of us reading this with all of our neurons firing can see this for exactly what it is: namely, some weapons that are “dangerous and unusual” fall outside the scope of the Second Amendment… but weapons that are in common use and suitable for militia service ARE PROTECTED by the Second Amendment. That is the whole friggen’ point of the Second Amendment!
Kolbe completely turned this on its head and stated… wait for it… ONLY WEAPONS NOT SUITABLE FOR MILITARY SERVICE ARE PROTECTED BY THE SECOND!
Judge Stanton, wanting to be a team player, glommed onto the Kolbe Court’s flat-out improper application of Heller and adopted it as her reasoning for granting the State its Motion for Summary Judgment.
Then she went further and offered this little gem (showing an utter lack of regard for her fellow citizens in the State of California):
More fundamentally, Plaintiffs argue that California is ‘depriving the public of more accurate rifles that are easier to control.’ (See, e.g., Plaintiffs’ Opp. at 15.) Plaintiffs miss the point. As discussed throughout, that the rifles are more accurate and easier to control is precisely why California has chosen to ban them. (CASE NO. 8:17-cv-00746-JLS-JDE p. 22).
Yes! You fools! If someone has an accurate rifle, he can be precise. If someone has an inaccurate rifle he can cause all sorts of mayhem! Wait… what were we talking about?
So, taking this to its logical conclusion, what are potential mass murderers to do? Well, since they now only have access to featureless rifles… (yeah, the ones that are harder to control)…they now have no need for a bullet button or fixed magazine. They can more quickly reload their rifles with a traditional magazine release, and since it is a traditional magazine release (read “non-fixed”), they can load those babies up with standard capacity magazines and not worry about running afoul of the assault weapons ban. (Of course, the fact that they are engaged is mass murder doesn’t seem to worry them, so I am confused as to how they will be assuaged by the assault weapons ban… but I digress.)
So, based on Judge Stanton’s pearl logic, we now have weapons in the marketplace that are decidedly less accurate, harder to control, quicker, and more easily reloaded with higher capacity magazines.
But as a warrior of the collective, I am sure she feels quite satisfied.
The next step, of course, is an appeal (where we will presumably lose) and then on to the U.S. Supreme Court. In the intervening time we are expecting a decision on New York Rifle and Pistol v. New York. We suspect… (and this is just a suspicion)… that the SCOTUS will create a new, a much better and stronger “test,” for the application of the Second Amendment. Unfortunately, I am concerned that the anti-gun jurists will either claim that a weapon (or individual) falls outside the scope of the Second Amendment, or they will do what Judge Stanton and the Kolbe court did: Just make [email protected]#t up.