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

[taperxz]

You mean Judge Staton

Originally Posted by RickD427

That's probably a wise move by Judge JOSEPHINE STATON. It may add to the workload in terms of hearing the testimony, and addressing it in his decision.

But by doing so, he removes a potentially problematic issue from the inevitable appeal. It would suck to have the Ninth Circuit send the case back to the District Court because the court failed to hear argument.

[RickD427]

Originally Posted by SpudmanWP

Rupp is not a Benitez case.

Originally Posted by taperxz

You mean Judge Staton

Gents,

Thanks for the correction. I'm having a hard time keeping the plethora of current cases straight in my overloaded mind.

[taperxz]

Originally Posted by RickD427

Gents,

Thanks for the correction. I'm having a hard time keeping the plethora of current cases straight in my overloaded mind.

Its OK we all do it.

[Drivedabizness]

I was like "Oh!!! An update un Rupp!!!!"

[abinsinia]

Originally Posted by RickD427

That's probably a wise move by Judge Staton. It may add to the workload in terms of hearing the testimony, and addressing it in his decision.

But by doing so, he removes a potentially problematic issue from the inevitable appeal. It would suck to have the Ninth Circuit send the case back to the District Court because the court failed to hear argument.

It's a she actually, but the judge already decided once before Bruen, and it was not a good decision. I'm expecting more of the same this time.

[JiuJitsu]

You know what would be nice for damn change? A majority of judges on 2A cases in the 9th Circuit correctly following the case law and legal precedent. I just don?t understand how we can still get these garbage judges ignoring several Supreme Court rulings.

Maybe decades from now this will all be settled but right now it?s still an absolute sh1t show for 2A rights.

[curtisfong]

The problem is we will absolutely lose everything in front of Staton. She's not a Judge, she's a ninny.

[Sgt Raven]

Originally Posted by RickD427

Gents,

Thanks for the correction. I'm having a hard time keeping the plethora of current cases straight in my overloaded mind.

As we age, CRS is a real thing...

[RickD427]

Originally Posted by abinsinia

It's a she actually, but the judge already decided once before Bruen, and it was not a good decision. I'm expecting more of the same this time.

Touche,

I'm having a really bad day here. Originally, I quite mistakenly referred to the handling judge as being Roger Benetiz, then I got appropriately corrected, and I changed the name in my posting to reflect Josephine Staton, but failed to correct the gender pronoun. Now you have appropriately bagged me on the pronoun. I'll re-edit the edit on my posting, and will probably take the rest of the night off.

[abinsinia]

Originally Posted by RickD427

Touche,

I'm having a really bad day here. Originally, I quite mistakenly referred to the handling judge as being Roger Benetiz, then I got appropriately corrected, and I changed the name in my posting to reflect Josephine Staton, but failed to correct the gender pronoun. Now you have appropriately bagged me on the pronoun. I'll re-edit the edit on my posting, and will probably take the rest of the night off.

No big deal, we all make mistakes.

[wchutt]

Originally Posted by RickD427

Touche,

I'm having a really bad day here. Originally, I quite mistakenly referred to the handling judge as being Roger Benetiz, then I got appropriately corrected, and I changed the name in my posting to reflect Josephine Staton, but failed to correct the gender pronoun. Now you have appropriately bagged me on the pronoun. I'll re-edit the edit on my posting, and will probably take the rest of the night off.

I just assumed I hadn?t heard Benetiz was transitioning?

[rplaw]

Originally Posted by RickD427

Touche,

I'm having a really bad day here. Originally, I quite mistakenly referred to the handling judge as being Roger Benetiz, then I got appropriately corrected, and I changed the name in my posting to reflect Josephine Staton, but failed to correct the gender pronoun. Now you have appropriately bagged me on the pronoun. I'll re-edit the edit on my posting, and will probably take the rest of the night off.

After all that extra work the board put you through, I suggest a cold one and two nights off.

Be careful though if you do, you wouldn't want anyone accusing you of being a lazy slacker.

[RickD427]

Originally Posted by rplaw

After all that extra work the board put you through, I suggest a cold one and two nights off.

Be careful though if you do, you wouldn't want anyone accusing you of being a lazy slacker.

Thanks for the thought. I did enjoy at least one "Cold One." I did a ladder load test on a new benchrest barrel yesterday and stopped by the local brewery on the way home. I got a couple of stouts that were brewed with an espresso flavor.

As for the "ladder load", the theory holds that you should should see a progression toward a tight group as you vary the load. Out of ten progressive loads at 100 yards, my worst group was about .610" and it was only 1/10 of a grain from my best group of about .185". So much for the theory.

Sgt. Raven is probably right on point with CRS. My biggest gaffes on this forum are when I write something from memory. I caught myself on one the other day in the "Martial Law" thread. For more that 150 years the "Posse Comitatus" statute only applied to the Army (and was amended in the 1950's to include the Air Force). The Navy and Marine Corps were not included. I drafted a response to that effect, but decided it would be good to check the statute. I'm glad that bit of paranoia struck me because I learned that the Navy and Marine Corps were added to the PCA in 2022.

But all of this further convinces me that this forum is a very useful tool for each of us to help sharpen the others, and that it's not necessary for us to always agree with each other.

[taperxz]

Originally Posted by RickD427

Thanks for the thought. I did enjoy at least one "Cold One." I did a ladder load test on a new benchrest barrel yesterday and stopped by the local brewery on the way home. I got a couple of stouts that were brewed with an espresso flavor.

As for the "ladder load", the theory holds that you should should see a progression toward a tight group as you vary the load. Out of ten progressive loads at 100 yards, my worst group was about .610" and it was only 1/10 of a grain from my best group of about .185". So much for the theory.

Sgt. Raven is probably right on point with CRS. My biggest gaffes on this forum are when I write something from memory. I caught myself on one the other day in the "Martial Law" thread. For more that 150 years the "Posse Comitatus" statute only applied to the Army (and was amended in the 1950's to include the Air Force). The Navy and Marine Corps were not included. I drafted a response to that effect, but decided it would be good to check the statute. I'm glad that bit of paranoia struck me because I learned that the Navy and Marine Corps were added to the PCA in 2022.

But all of this further convinces me that this forum is a very useful tool for each of us to help sharpen the others, and that it's not necessary for us to always agree with each other.

Your posts are usually pretty accurate so i just couldn't pass up the correction

[Sgt Raven]

Originally Posted by RickD427

Sgt. Raven is probably right on point with CRS. My biggest gaffes on this forum are when I write something from memory.


... snip...



But all of this further convinces me that this forum is a very useful tool for each of us to help sharpen the others, and that it's not necessary for us to always agree with each other.

I can't count the number of times I was going to post something on a forum, but decided to do an internet search first. A difference of opinion is one thing, incorrect on the facts is another...



"Facts don't care about your/my feelings".

[marcusrn]

RickD427, .185MOA? Tell us the recipe! Dose not make sense that 1/10 gr would have that much of a difference. Good shooting, I used to love benchrest shooting but at 71 I've lost my mojo.

[RickD427]

Originally Posted by marcusrn

RickD427, .185MOA? Tell us the recipe! Dose not make sense that 1/10 gr would have that much of a difference. Good shooting, I used to love benchrest shooting but at 71 I've lost my mojo.

I think the best explanation is just "Dumb Luck." It's a new barrel and I'm trying to find the "Sweet Spot" for a load.

I'm pretty conservative with my loads, but most of my fellow shooters commented that my last match loads were too light. That tight group was the hottest of my loads. I'll try it in next week's match, then back to the bench for more tests.

At 71 you'd be a "youngster" in the group that I shoot with.

But I should behave with my postings and stay focused on Rupp v Becerra.....

[abinsinia]

STIPULATION for Order to Set Hearing and Briefing Schedule on Motions for Summary Judgment and to Continue Pretrial Deadlines filed by Defendant Xavier Becerra. (Attachments: # 1 Proposed Order Setting Hearing and Briefing Schedule on Motions for Summary Judgment and Continuing Pretrial Deadlines)(Echeverria, John) (Entered: 05/12/2023)

Scheduling request from CADOJ,
https://storage.courtlistener.com/re...6380.147.0.pdf

[Ishooter]

It drags on forever.

[abinsinia]

ORDER Setting Haring and Briefing Schedule on Motions for Summary Judgment and Continuing Pretrial Deadlines (Doc. 147 ) by Judge Josephine L. Staton as follows: The deadline to file motions in limine currently set for 8/4/2023 shall be continued to 9/29/2023. The Final Pretrial Conference currently set for 9/1/2023 shall be continued to 10/27/2023 at 10:30 AM. (See document for further information). (jp) (Entered: 05/16/2023)

Looks like the judge went with the proposed schedule.

[Steve1968LS2]

Originally Posted by Ishooter

It drags on forever.

Ha.. don't I know it.. lol

[Steve1968LS2]

My latest communication.. long process but they keep pushing forward.

Hello Mr. Rupp,

We will be filing a Motion for Summary Judgment in the case regarding the California “assault weapons” ban, Rupp v. Bonta.

[abinsinia]

There was dueling summary judgement motions filed last night,

NOTICE OF MOTION AND MOTION for Summary Judgment filed by Defendant Xavier Becerra. Motion set for hearing on 7/28/2023 at 10:30 AM before Judge Josephine L. Staton. (Attachments: # 1 Defendant's Memorandum of Points and Authorities, # 2 Defendant's Statement of Uncontroverted Facts and Conclusions of Law, # 3 Appendix 1 - Defendant's Survey of Relevant Statutes (Pre-Founding to 1930s), # 4 Proposed Judgment) (Echeverria, John) (Entered: 05/26/2023)

NOTICE OF MOTION AND MOTION for Summary Judgment as to each claim asserted in Plaintiffs' Third Amended Complaint 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. Motion set for hearing on 7/28/2023 at 10:30 AM before Judge Josephine L. Staton. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Statement of Uncontroverted Facts, # 3 Request for Judicial Notice, # 4 Declaration of Alfonso Valencia, # 5 Declaration of Cheryl Johnson, # 6 Declaration of Christopher Seifert, # 7 Declaration of Dennis Martin, # 8 Declaration of Richard Minnich, # 9 Declaration of Steven Dember, # 10 Declaration of Steven Rupp, # 11 Declaration of Troy Willis, # 12 Declaration of Sean A. Brady, # 13 Exhibit 1-10, # 14 Exhibit 11, # 15 Exhibit 12-21, # 16 Exhibit 22.1, # 17 Exhibit 22.2, # 18 Exhibit 22.3, # 19 Exhibit 22.4, # 20 Exhibit 23, # 21 Exhibit 24.1, # 22 Exhibit 24.2-26, # 23 Exhibit 27, # 24 Exhibit 28-51, # 25 Exhibit 52.1, # 26 Exhibit 52.2, # 27 Exhibit 52.3, # 28 Exhibit 53-64, # 29 Proposed Judgment) (Brady, Sean) (Entered: 05/26/2023)

Here the docket link,
https://www.courtlistener.com/docket...avier-becerra/

[Drivedabizness]

A heaping steaming pile of "so what"??

Despite the stuff from the 50's - the 80's - there is a reason the armed forces are abandoning 5.56 for a heavier round. Why? BECAUSE 5.56 IS NOT AN EFFECTIVE COMBAT ROUND. And if you tried to deploy with an AR-15 they'd lock you up.

ProTip: AR-15's are in common use. Also, the militia role - since we are (unlawfully) denied access to fully auto arms (while our servants, criminals and foreign & domestic enemiescarry whatever the hell they want) modern sporting rifles are the best we can hope for. IN any case we have a right to them. Full stop.

[darkwater34]

Back before the M-16 was standard issue during the Vietnam times when our special were deployed as the first military advisors there were a few that actually deployed with AR-15.s. the 1960's before Vietnam became a flown blown so-called military police action. I know of people who were deployed around this time. One person brought a long with him a 357mag because you could drop a elephant at 50 paces,sawed off 12ga, a civilian store bought AR-15, among the standard army issued small arms M14, 1911 45 CAL., But yes today if you deployed with an AR-15 you probably be headed or a section 8 as one someone with a mental disorder would deploy with a Semiautomatic AR-15 that is better used as a rifle for sport shooting and self defense, The 5.56x40 round is a pretty good round for military use it won't stop a tank but the theory is a good one if you wound one adversary you take two more combatants off the field if not three with one shot two or three maybe 4 birds with one 5.56 40 round. Because it takes a couple of people to render aid to a wounded person.

[tenemae]

I've seen enough police BWC video to see what 5.56 does to people. Where is all this "iTs NoT eFFecTiVe!" Stuff coming from?

[bwiese]

Originally Posted by tenemae

I've seen enough police BWC video to see what 5.56 does to people. Where is all this "iTs NoT eFFecTiVe!" Stuff coming from?

We actually lost general effectiveness when transitioning from VN-era
5.56mm M193 55gr FMJ @ 3300 FPS MV to 62gr M855 62gr FMJ
@ ~3100 fps.

These MVs are out of M16A2 20" barrels so when 14.5" M4 carbines
supplanted them the 150-200fps lower MV is WAY worse with shorty
barrels at longer ranges.

M855 just doesn't do as well in skinnies esp w reduced velocity [though
77gr SMK OTM bullets do well: lotsa hits in the sandbox at 400-600yds
with M4A1 HB and 4X ACOG.

The 'wound two' theory is merely urban legend. The transition from 308 to
5.56mm for VN war was so soldiers (esp lighter/smaller) could carry more ammo.
5.56 M193 had excellent terminal ballistic effects on VC given that (accidental
design feature!) the bullet broke apart (fully or partially) at the cannelure and
created one or two large temporary wound cavities with large shock wave trauma.
[Shoot a capped TidyCats cat litter jug full of water and you'll see the huge
high pressure colume of water blow the cap off.] 55gr FMJ was good enough
for 1 million VC/NVA enemies.

[Sgt Raven]

When I was on Active Duty in the US Army Infantry, 1973-1977. The theory that a wounded soldier tied up multiple support troops was taught at the time. Whether it was correct or not, it was not just a Urban Legend,



As for the other poster above. 5.56mm NATO is 5.56 x 45mm, not 5.56 x 40mm.



There is a 2 part video on YouTube of Eugene Stoner discussing the developement of the AR-15 and changes the US Army forced on them.



part 1

https://youtu.be/l5jtUS1kgt8


part 2
https://youtu.be/un0TLkuiDdM

[AlmostHeaven]

All this ballistics discussion is besides the point anyway.

The Second Amendment protects the right of ordinary people to possess "bearable arms", as held in Heller.

Even if 5.56x45mm were as powerful as .50 BMG and could blow people's limbs off with one hit, the State of California, any other state, or the Federal government still would have no legal authority to ban it.

All the panic-sowing and media sensationalism claiming the AR-15 shoots some exceptionally deadly bullet are nothing but propaganda to poison the masses with disinformation.

Whether it be via Miller, Rupp, or Bianchi, I hope the Supreme Court strikes down all assault weapons bans once and for all.

And speaking of .50 BMG, the California ban on that needs to be struck down too. One step at a time.

[RickD427]

Originally Posted by Sgt Raven

When I was on Active Duty in the US Army Infantry, 1973-1977. The theory that a wounded soldier tied up multiple support troops was taught at the time. Whether it was correct or not, it was not just a Urban Legend,

I was taught the same theory at the Naval War College in the 90's. It seems to be more solid than Urban Legend, and there is a lot of simple logic to the theory. You benefit the more the enemy's resources are depleted.

[SpudmanWP]

Originally Posted by AlmostHeaven

The Second Amendment protects the right of ordinary people to possess "bearable arms", as held in Heller.

So many people think that Heller was the first place where SCOTUS affirmed our rights as protected by the 2nd. While Heller was the 1st place it used the term "individual", SCOTUS clearly stated basically the same thing going back to the mid-1800s. Here are a few:

1857 - Dred Scott
it would give them the full liberty... to keep and carry arms wherever they went.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care.

Here is the best & most direct example

1876 - Cruikshank
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

This was quoted & reaffirmed in Presser

1886 - Presser
It was so held by this court in the case of United States v. Cruikshank, 92 U. S. 542, 553, in which the Chief Justice, in delivering the judgment of the court, said, that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes to what is called in The City of New York v. Miln, 11 Pet. [102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

Cruikshank was again quoted in Logan

1891 - Logan
In United States v. Cruikshank, 92 U. S. 542, at the same term, in which also the opinion was delivered by the Chief Justice, the indictment was on section 6 of the Enforcement Act of 1870, (reenacted in Rev. Stat. ? 5508, under which the present conviction was had,) and the points adjudged on the construction of the Constitution and the extent of the powers of Congress were as follows:

2d. It was held that the Second Amendment of the Constitution, declaring that "the right of the people to keep and bear arms shall not be infringed," was equally limited in its scope. 92 U. S. 553.

Heller's greatest contribution was to wrap it all up, in the current vernacular, and tie a bow on top.

[Sgt Raven]

When Congress was debating the 14th Amendment, one part was that the Freedmen would have the Right to Keep & Bear Arms.

[Drivedabizness]

Originally Posted by darkwater34

Back before the M-16 was standard issue during the Vietnam times when our special were deployed as the first military advisors there were a few that actually deployed with AR-15.s. the 1960's before Vietnam became a flown blown so-called military police action. I know of people who were deployed around this time. One person brought a long with him a 357mag because you could drop a elephant at 50 paces,sawed off 12ga, a civilian store bought AR-15, among the standard army issued small arms M14, 1911 45 CAL., But yes today if you deployed with an AR-15 you probably be headed or a section 8 as one someone with a mental disorder would deploy with a Semiautomatic AR-15 that is better used as a rifle for sport shooting and self defense, The 5.56x40 round is a pretty good round for military use it won't stop a tank but the theory is a good one if you wound one adversary you take two more combatants off the field if not three with one shot two or three maybe 4 birds with one 5.56 40 round. Because it takes a couple of people to render aid to a wounded person.

Assuming you are fighting and enemy who cares about the wounded. I have handled a "XR15 E1" that was issued to a Philippine Marine. I had my brand new M16-A2.

5.56 has pven to be inadequate. When an Afghan goat herder is shooting at you from 300 meters with his Moisin Nagant and you return fire and hit him but do not take him out of the fight, you rightfully (in the case of the Navy SEALs) decide you need something more capable.

Yes 5.56 is good for all sorts of purposes. But my militia/SHTF rifle is chambered in 6.8 SPCII.

[Foothills]

Originally Posted by Drivedabizness

Assuming you are fighting and enemy who cares about the wounded. I have handled a "XR15 E1" that was issued to a Philippine Marine. I had my brand new M16-A2.

5.56 has pven to be inadequate. When an Afghan goat herder is shooting at you from 300 meters with his Moisin Nagant and you return fire and hit him but do not take him out of the fight, you rightfully (in the case of the Navy SEALs) decide you need something more capable.

Yes 5.56 is good for all sorts of purposes. But my militia/SHTF rifle is chambered in 6.8 SPCII.

I was thinking about how the Sheriff's department was using 5.56 in the San Bernardino terrorist attack. Then I remembered that the shootout at the end lasted a while. Maybe it would have been handy to have someone on scene with .308 that could punch through the van at the end there. One deputy was using slugs, which was probably a good choice for a barricaded adversary.

[SpudmanWP]

You don't even have to give up RoF or capacity as the AR-10 platform makes a great high-powered option to back up the AR-15.

[Steve1968LS2]

Latest Coms:

We would like to provide you with an update on our case against the State regarding the “assault weapons” ban, Rupp v. Bonta.

On Friday, May 26, we filed a Motion for Summary Judgment. The State also filed a Motion for Summary Judgment. The oppositions to the Motions are due on June 23rd and the replies will be due on July 14. The hearing has been scheduled for July 28.

All case documents can be accessed here: https://michellawyers.com/rupp-v-becerra/

Please feel free to contact us if you have any questions or concerns.

We will continue to keep you updated.

[WithinReason]

Thanks for the update.

[Chewy65]

I guess I am slow and getting slower, but the AG argues that you don't "need" a large capacity magazine because most self defense incidents only involve 2 or 3 shots. What is coming up are counter motions for summary judgment. One of the state's postitions seems to be thatfor self-defense you do not "need" a magazine that holds more than 10 rounds. Their proof is expert testimony stating that a review of data shows that axcept for a few instances, only 2 or 3 shots are fired in self-defense. So what?

Most people will never need to defend themselves with a firearm, but if **** hits the fan, do you want to risk being the outlier who is attacked by a gang. Why is it that law enforcement needs multiple magazines and they aren't limited to 10 rounds?

I would cross the expert and ask him if a person attacked ever needs more than 10 rounds and how they know they will the day they leave home.

Also, the purpose of looking for relevant analougues is to attempt to determine if the founders believed conduct was protectable keeping and bearing of arms. Of course you won't find a tradition prohibiting firarms fed by large capacity magazines, but that doesn't mean that a relevant similar problem didn't exist that was or was not confronted. e.g. what about highwaymen or bucaneers who wore several pistols, knives and swords? Back in the 1790' and earlier nothing kept law from being passed to regulate how many firearms and other weopons a singly individual might carry and none of these rogues were mass murderers. If so, does the dearth of such regulations due to the the early American's choosing not to enact any such regulation due to the overwhelming importance of protecing the rtkba

[rational_behavior]

Ah yes, the Second Amendment of the Bill of Needs.

Civics, California style.

[Sgt Raven]

As for Repeating Arms & LCM, Large Capacity Magazines in the Founding Era, there was the Girardoni Air Rifle...