Rupp v. Becerra

“We needed to destroy the town in order to save it.”

This singular statement made during the Vietnam Conflict did more to alter the course of western civilization than any other.  For most of our national history we had a healthy distrust of government, but a general acquiescence to the idea that laws developed by the government and subject to judicial review were facially valid.

That one line, though, “jumped the shark.”

Now people began viewing the military application force in Vietnam as suspect, and with it, the politicians that advocated continued military action.  That began a steamrolling effect, culminating in an antagonism to entrenched self-serving political elite, and in many respects, the very political system itself.

Unfortunately, the judiciary has played directly into this.  Often times there have been legal cases in which a determined outcome is more important to the court than the legal rationale associated with achieving that outcome.  We saw this in Kolbe, where the Fourth Circuit essentially said that the AR-15 is not in “common use,” and thus, not “deserving” of Second Amendment protections.

We have now seen this manifest again in Rupp v. Becerra.  In Rupp, Judge Stanton was asked to decide if the registration process for the California Assault Weapons Control Act violated the plaintiffs’ Second Amendment rights, as well as their due process rights, specifically, as it related to the act of registering an “assault weapon.”  One of the requirements before registering is that applicants must state (under penalty of perjury) the name, address, and date of acquisition of their firearm in their application to DOJ for registration of their rifle.  Many individuals legally own their weapons, but failed to retain their original DROS paperwork, and thus, could not complete the form without guessing as to the date or location of purchase.

Not wanting to overturn a gun control measure that her fellow anti-gun friends in Sacramento advocated, Judge Stanton essentially said, “tough,” and, ironically, set the stage for a method of compliance that is completely at odds with what the legislature intended as it relates to their stated objective.  The funny thing about it… (if anything about this could be construed as “funny”)… is that Judge Stanton more likely than not has absolutely no idea that she just encouraged people to take off their “bullet buttons,” and thus enjoy the ability to quickly and more efficiently reload their weapons.

Great job, Judge!

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In her decision, Judge Stanton went into great detail to explain that the plaintiffs were not in a position to sue for relief since, essentially, none of them had actually committed perjury yet and attempted to apply.

If that sounds like a ludicrous standard that needs to be met for ripeness, you are correct.

The real interesting part of the analysis, though, is her application of the Second Amendment challenge.

She notes that in Heller, the Second Amendment is to be construed as a core fundamental right.

She then states, “Assuming, without deciding, that individual ownership of semi-automatic weapons implicates a core Second Amendment right, the Court must determine the appropriate level of scrutiny. Every circuit to have encountered statewide bans on semi-automatic weapons designated as assault weapons, has applied intermediate scrutiny.”

Ok… so what is “intermediate scrutiny”?

Well… in her decision she articulates it:

“(1) the government’s stated objective must be significant, substantial, or important; and (2) there must be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” Silvester, 843 F.3d at 821-22 (quoting Chovan, 735 F.3d at 1139). The state need not “show that [the regulation] is the least restrictive means of achieving its interest.” Fyock, 779 F.3d at 1000 (citation omitted). Rather, the state is “required to show only that [the regulation] promotes a ‘substantial government interest that would be achieved less effectively absent the regulation.’”

She then goes on to say that the registration furthers a significant government interest, and that there is, in fact, a reasonable fit between the challenged regulation and the asserted objective.

So… what was the objective?

Simple…. the State does not like detachable magazines.

That was the whole point!

The bullet button was a device that stuck in the craw of the legislature.  Legislators did not like the fact that industry had developed a “work around” of the idea of a detachable magazine.  SB 880 was written to make the bullet button ineffectual in establishing the rifle as a fixed-magazine rifle.  Rather than implicate a “takings” issue, they essentially said that a weapon with a detachable magazine can be registered as an “assault rifle” during a statutorily-defined time period.  Alternatively, the owner can affix the magazine in place with a device that requires the action be “cracked” prior to removal of the magazine.

What they forgot was that the definition of an “assault weapon” is a centerfire rifle, with a detachable magazine AND one or more “evil features” (a pistol grip, telescoping stock, etc.).

Many individuals have elected to go featureless… meaning they have removed those “one or more evil features,” effectively opting out of the legislative scheme.

This also means… and here is the kicker… they are allowed to have traditional magazine releases on these rifles!

So, Judge Stanton… by upholding the registration scheme, you have effectively driven thousands of law-abiding gun owners to alter their weapons into featureless weapons and, thus, take advantage of traditional magazine releases.

The exact opposite of what the legislature intended.

Not what you had hoped for, Judge… and frankly, surprising that the DOJ did not realize this inevitable result itself… but there you go.

Well done, your honor.