Rupp v Becerra (AWCA): 6-28-22 9th Vacates and remands to TC/DC

[Weezard]

It's less about the gun being easier to control and more about how he is arguing having a stock where the length can be customized to fit the shooter makes it so much more controllable we have to ban it.

[abinsinia]

From an interview with Swalwell in 2018

https://townhall.com/columnists/scot...racks-n2536153

Rifles. They’re more powerful and cause more carnage when used with a pistol-grip.

They have to attack the features, because ultimately that's the only difference between the rifles they are banning and they rifles they aren't banning. I wouldn't think I'd see this coming from a judge tho, because it's ridiculous.

[Sputnik]

Originally Posted by abinsinia

From an interview with Swalwell in 2018

https://townhall.com/columnists/scot...racks-n2536153



They have to attack the features, because ultimately that's the only difference between the rifles they are banning and they rifles they aren't banning. I wouldn't think I'd see this coming from a judge tho, because it's ridiculous.

When the judges are just as political as the politicians I can believe almost any garbage logic will be be presented as reasonable. Now who says there are no Obama judges and no Trump judges, etc?

[SlimBlundt]

Originally Posted by Sputnik

Now who says there are no Obama judges and no Trump judges, etc?

That’s a great question. Who is saying that? I don’t think I’ve ever heard anyone say “there are no Obama judges” or “there are no Trump judges.”

[AlienHobo]

Originally Posted by SlimBlundt

That’s a great question. Who is saying that? I don’t think I’ve ever heard anyone say “there are no Obama judges” or “there are no Trump judges.”

Chief Justice Roberts...

https://www.nytimes.com/2018/11/21/u...ts-rebuke.html

[ajb78]

Originally Posted by SlimBlundt

That’s a great question. Who is saying that? I don’t think I’ve ever heard anyone say “there are no Obama judges” or “there are no Trump judges.”

That would be the Chief Justice John Roberts....

https://duckduckgo.com/?q=there+are+...t=fpas&ia=news

[SlimBlundt]

Originally Posted by AlienHobo

Chief Justice Roberts...

https://www.nytimes.com/2018/11/21/u...ts-rebuke.html

Holy hell...

We’re doomed.

[hoystory]

Does anyone know/have a link to the judge's decision in this case? None of the news articles link to it (hell, most don't even use the case's name), and Michel & Associates webpage on the case hasn't been updated with new docs since May.

[ajb78]

Originally Posted by hoystory

Does anyone know/have a link to the judge's decision in this case? None of the news articles link to it (hell, most don't even use the case's name), and Michel & Associates webpage on the case hasn't been updated with new docs since May.

https://www.calguns.net/calgunforum/...&postcount=139

[sbrady@Michel&Associates]

The Rupp backpage is up to date: http://michellawyers.com/rupp-v-becerra/

[hoystory]

Originally Posted by sbrady@Michel&Associates

The Rupp backpage is up to date: http://michellawyers.com/rupp-v-becerra/

Thank you!

[Bhobbs]

Originally Posted by Sousuke

Okay so now the argument is that semi-automatics aren't common....this should be infinitely easier to win now...

That’s not true. The fact is this cases are losers the second they are filed in the 9th circuit. All the judges have to do is some mental gymnastics to come up with their ruling.

[Sousuke]

Originally Posted by Bhobbs

That’s not true. The fact is this cases are losers the second they are filed in the 9th circuit. All the judges have to do is some mental gymnastics to come up with their ruling.

Don't shoot the messenger, its what the latest ruling says.....

[hoystory]

I read that ruling and my takeaway is here.

Short version: It's tough to read the judge's ruling and not see it as extending an invitation to the gun control zealots in the California legislature to pass a law banning all semi-automatic firearms as inherently "unusual and dangerous."

[pnkssbtz]

So, how do we deal with constitutional violations with a judge that is clearly mis-interpreting Heller v. DC and legislating from the bench?

The judge seemed to dismiss the 2A claim upon the premise that American citizens do not possess "assault weapons" for lawful purposes, and that assault weapons are "dangerous and unusual".


Not only are these assumptions demonstrably false, but they are contrary to the court opinion in Heller v. DC as the main argument the judge is following the arguments presented by the CA AG:

“[a]ssault rifles may be banned because they are, like the M-16, ‘weapons that are most useful in military service’”; and (2) “they are also not ‘in common use’ for lawful purposes like self-defense.”

I.E. that because assault weapons are so similiar to militar weapons, that they have no legitimate civilian purpose. Which is completely contrary to what Scalia posited in Heller v. DC:

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 machineguns (not challenged in Miller) might be unconstitutional, machineguns 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.”

[tenemae]

Originally Posted by pnkssbtz

So, how do we deal with constitutional violations with a judge that is clearly mis-interpreting Heller v. DC and legislating from the bench?

Appeal to a higher court. It's a little disheartening how often said "legislating from the bench" is occurring these days. Good thing we don't have partisan judges.

[Guninator]

Originally Posted by ajb78

That would be the Chief Justice John Roberts....

https://duckduckgo.com/?q=there+are+...t=fpas&ia=news

Yet another Bush family F-up. The Establishment Swamp Republicans who worship the Bushes will never admit that Trump is so much better with judge appointments than the Bushs' gross negligence. Souter?!?! WTF? Harriet Miers? And of course Judas Roberts.

Trump has outsourced his judge selection to the Federalist Society and Mitch McConnell. This is why 2020 is everything. Another 4 years of superlative judge appointments, possibly 2 on SCOTUS.

AP: GOP-controlled Senate confirms 13 more judges named by Trump

Washington Post weeps: As Democrats debated without mentioning federal judges, the Senate confirmed 13 more Trump nominees

The president’s ability to nominate judges to lifetime appointments on the federal courts never came up during the two nights of debate this week involving the Democratic candidates.

Over those same two days, the Senate confirmed 13 of President Trump’s judicial nominees, giving Republicans a remarkable 144 judicial appointments since his inauguration and allowing him to reshape the courts and their decisions for decades, filling them with conservative jurists.

Trump owes much of his success to Senate Majority Leader Mitch McConnell’s singular focus on confirming judicial nominees.

McConnell (R-Ky.) most notably refused to fill a Supreme Court vacancy during the final year of Barack Obama’s presidency, but he also stonewalled Obama’s lower bench appointments. And with a rule change in 2017, he sped up confirmations of Supreme Court nominees, requiring just a simple majority, clearing the way for Trump’s first high-court nominee, Neil M. Gorsuch. The push for confirmations continues.

Now let's just hope McConnell doesn't cave on red flag laws.

[FirearmFino]

Appeal filed:

NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Plaintiffs California Rifle and Pistol Association, Incorporated, Steven Dember, Cheryl Johnson, Michael Jones, Dennis Martin, Steven Rupp, Christopher Seifert, Alfonso Valencia, Troy Willis. Appeal of Judgment,111 . (Appeal Fee - $505 Fee Paid, Receipt No. 0973-24336061.) (Brady, Sean)

[FirearmFino]

New due dates:

Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 09/04/2019. Transcript ordered by 09/26/2019. Transcript due 10/28/2019. Appellants California Rifle & Pistol Association, Inc., Steven Dember, Cheryl Johnson, Michael Jones, Dennis Martin, Steven Rupp, Christopher Seifert, Alfonso Valencia and Troy Willis opening brief due 12/05/2019. Appellee Xavier Becerra answering brief due 01/06/2020. Appellant's optional reply brief is due 21 days after service of the answering brief. [11413225] (JBS) [Entered: 08/28/2019 10:24 AM]

The case number at the 9th Circuit is 19-56004.

[Steve1968LS2]

Thanks for that update!

[FirearmFino]

Streamlined request [16] by Appellants California Rifle & Pistol Association, Inc., Steven Dember, Cheryl Johnson, Michael Jones, Dennis Martin, Steven Rupp, Christopher Seifert, Alfonso Valencia and Troy Willis to extend time to file the brief is approved. Amended briefing schedule: Appellants California Rifle & Pistol Association, Inc., Steven Dember, Cheryl Johnson, Michael Jones, Dennis Martin, Steven Rupp, Christopher Seifert, Alfonso Valencia and Troy Willis opening brief due 01/06/2020. Appellee Xavier Becerra answering brief due 02/05/2020. The optional reply brief is due 21 days from the date of service of the answering brief.

[mshill]

Originally Posted by Bhobbs

Which is why these types of cases will have a slim chance of winning, unless SCOTUS is blatantly pro 2a. The courts won't want to tear down long standing gun laws.

Checkers vs chess?

This is the perfect time to file considering the "expected slap down " coming in the NYSPRA case being heard next week. If we are lucky the high court will set the standard for review related to 2A cases making it harder for district and appellate courts to make it up as they go along.

Considering this the NYSRPCA case becomes more and more important If Trump does not get re-elected. We need one solid ruling before the election and it could open the flood gates.

[Uncivil Engineer]

Originally Posted by mshill

Checkers vs chess?



This is the perfect time to file considering the "expected slap down " coming in the NYSPRA case being heard next week. If we are lucky the high court will set the standard for review related to 2A cases making it harder for district and appellate courts to make it up as they go along.



Considering this the NYSRPCA case becomes more and more important If Trump does not get re-elected. We need one solid ruling before the election and it could open the flood gates.

With the age on the ninth and Trump ignoring blue slips we could see the ninth swing our way. Getting these in the pipeline now is good. We don't really need to worry about bad precedents as California won't stop passing bad laws unless forced so we will continue to have opportunity to challenge.

[foreppin916]

Semi auto rifle ban despite features coming in 3....2....1.....

[Uncivil Engineer]

Originally Posted by foreppin916

Semi auto rifle ban despite features coming in 3....2....1.....

I think we are much more likely to see a complete ban on home builds next. I know we already have a background check for 80s coming but given the "ghost gun" media hysteria I bet we see an attempt to ban them outright.

A semi auto rifle ban would be a treat test case. I strongly believe it wouldn't stand against the 2nd. We could see another Heller like till killing not only over turning there ban but explicit protecting all semi autos which might call into question current AW bans. I'm short it's might just be enough rope for the grabbers to hang themselves.

[Murder]

Originally Posted by Uncivil Engineer

I think we are much more likely to see a complete ban on home builds next. I know we already have a background check for 80s coming but given the "ghost gun" media hysteria I bet we see an attempt to ban them outright.

A semi auto rifle ban would be a treat test case. I strongly believe it wouldn't stand against the 2nd. We could see another Heller like till killing not only over turning there ban but explicit protecting all semi autos which might call into question current AW bans. I'm short it's might just be enough rope for the grabbers to hang themselves.

It's a damn good thing companies are already selling the deadly 0% lower now!

I **** you not, I would bet money they will start regulating aluminum.

[FirearmFino]

UNOPPOSED MOTION TO EXTEND TIME TO FILE APPELLANT’S OPENING BRIEF

Later that day, Mr. Chang responded with a phone call, confirming that the Attorney General would not oppose this motion to the extent it sought a 21-day extension, for the purpose of seeing what transpires at the Supreme Court’s January 10 conference concerning David Seth Worman, et al. v. Maura T. Healey, Attorney General Of Massachusetts, et al., Sup. Ct. Case No. 19-404.Mr. Chang review this motion on December 24, 2019, and confirmed the Attorney General does not oppose.

[Solidsnake87]

Looks like CA expects a favorable ruling in the 1st circuit. The first circuit is 4 D's to 2 R's. The question is, will they go for broke, or pull a New York and moot?

[FirearmFino]

APPELLANTS’ OPENING BRIEF

[aBrowningfan]

One question occurred to me after reading Appellant's opening brief: playing devils advocate for a moment, lets say the CA AWCA gets ruled unconstitutional. How/when does the 'in common use' loophole get triggered for new AWs? I am thinking about something like the LWRC SMG 45 - it is a new AW that is arguably not in 'common use'.

[Uncivil Engineer]

Originally Posted by aBrowningfan

One question occurred to me after reading Appellant's opening brief: playing devils advocate for a moment, lets say the CA AWCA gets ruled unconstitutional. How/when does the 'in common use' loophole get triggered for new AWs? I am thinking about something like the LWRC SMG 45 - it is a new AW that is arguably not in 'common use'.

As saint Benitez said a ban it self isn't proof of a lack of common usage. For example mp5s are in common use in most other states that should be enough to meet that standard. The state can't say "well no one else on your block has a roller block pistol it isn't in common use and isn't protected on your block" .

[aBrowningfan]

Originally Posted by Uncivil Engineer

As saint Benitez said a ban it self isn't proof of a lack of common usage. For example mp5s are in common use in most other states that should be enough to meet that standard. The state can't say "well no one else on your block has a roller block pistol it isn't in common use and isn't protected on your block" .

I doubt that even in the other 49, the LWRC SMG 45 is making volume sales. It seems to be in short supply, and I am wondering what the trigger point for 'in common use' would be for new AWs.

[taperxz]

Originally Posted by aBrowningfan

I doubt that even in the other 49, the LWRC SMG 45 is making volume sales. It seems to be in short supply, and I am wondering what the trigger point for 'in common use' would be for new AWs.

“In common use” semi automatic rifle with detachable magazine.

[aBrowningfan]

Originally Posted by taperxz

“In common use” semi automatic rifle with detachable magazine.

That would cause certain folks hair to spontaneously combust if the CA AWCA were to be ruled unconstitutional by SCotUS.

[CandG]

Originally Posted by aBrowningfan

One question occurred to me after reading Appellant's opening brief: playing devils advocate for a moment, lets say the CA AWCA gets ruled unconstitutional. How/when does the 'in common use' loophole get triggered for new AWs? I am thinking about something like the LWRC SMG 45 - it is a new AW that is arguably not in 'common use'.

AW's aren't a thing anymore, if the AWCA gets overturned. It was a term fabricated by the authors of the law. No more law = no more fabricated term.

[aBrowningfan]

Originally Posted by cockedandglocked

AW's aren't a thing anymore, if the AWCA gets overturned. It was a term fabricated by the authors of the law. No more law = no more fabricated term.

So, where does the line get drawn? Anything with a barrel length < 16 inches (SBR, regulated pursuant to NFA)? Full automatic (NFA as well)? What about cartridge size? .50 BMG becomes unregulated again?

[CandG]

Originally Posted by aBrowningfan

So, where does the line get drawn? Anything with a barrel length < 16 inches (SBR, regulated pursuant to NFA)? Full automatic (NFA as well)?

Right, basically CA will still not allow anything that's controlled by the NFA, Hughes Amendment, etc. Those are specifically banned in CA by different laws which are not part of the AWCA, and which are not being challenged by this lawsuit. But anything else that got banned by the AWCA would be un-banned. That is, "named" assault weapons, and weapons deemed AW's due to their scary looking features.

Originally Posted by aBrowningfan

What about cartridge size? .50 BMG becomes unregulated again?

The .50BMG ban is separate from the AW law, and isn't being challenged by this lawsuit, so it would probably remain in effect unless the court decides to go above and beyond the call of duty.

[aBrowningfan]

Originally Posted by cockedandglocked

Right, basically CA will still not allow anything that's controlled by the NFA, Hughes Amendment, etc. Those are specifically banned in CA by laws which are not part of the AWCA, and which are not being challenged by this lawsuit. But anything else that got banned by the AWCA would be unbanned.

Makes my head spin that there might be a tiny chance of being able to own firearms that up to now have been 'out of reach'.

[CandG]

Originally Posted by aBrowningfan

Makes my head spin that there might be a tiny chance of being able to own firearms that up to now have been 'out of reach'.

A watched pot never boils chickens before they're hatched

[aBrowningfan]

Originally Posted by cockedandglocked

A watched pot never boils chickens before they're hatched

Which is why I haven't set funds aside for acquisition of any new AWs. At present, I am having more fun putting the hurt on clay targets with my O/Us.