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Hurwitz asks Rupp if Heller says that any firearm that& #39;s within the 2nd Amendment can& #39;t be banned. Says he can& #39;t find language saying that.
Hurwitz asks Rupp why the ban is automatically invalid, instead of being subject to intermediate scrutiny.
Rupp says state or lower court didn& #39;t explain why the ban is sufficiently tailored.
Hurwitz: Intermediate or strict scrutiny?
Rupp: Strict, but we should still win under intermediate.
Rupp: Strict, but we should still win under intermediate.
Bumatay: What should the rule be for using strict or intermediate scrutiny when it comes to a ban on weapons?
Bumatay: Do we do that analysis feature-by-feature (pistol grip, adjustible stock), or as a whole?
Rupp: Features are absurd; if your stock moves an inch or two, you& #39;re a felon. Doesn& #39;t alter rate of fire, capacity.
Hurwitz says real question is if the state can ban the gun itself, and not the features.
Hurwitz: Other circuits upheld under intermediate scrutiny, why were they wrong?
Rupp: We& #39;re not saying they can& #39;t be regulated (and already are), but that they can& #39;t be banned.
Hurwitz: Would it be constitutional to ban taking the gun outside the home, but allow them otherwise?
Rupp: Would be tougher case, but need to take to range, store, etc.
Rupp: Would be tougher case, but need to take to range, store, etc.
Bress: What would be your take on a law that bans one particular make or model, instead of an otherwise lawful weapon?
Hurwitz: What if CA only banned AR-15s, but no other gun?
Rupp: Depends on if gun is typically possessed for lawful purposes.
Hurwitz: What if millions of people bought flamethrowers or claymore mines?
Bumatay: How do you respond to Everytown brief about the history of these laws?
Hurwitz: But they were banned by the machine gun ban?
Rupp: They were not.
Rupp: They were not.
Rupp: Laws Everytown mentioned were about machine guns, most repealed or amended.
Bumatay: Is it a circular argument because guns can not be common if they were banned?
Rupp: These are the most common guns in history.
Rupp: These are the most common guns in history.
CA up now
CA: Only retricts guns that were particularly lethal.
CA: Only bans features.
Hurwitz: What about guns banned by name, do they have the features?
CA: All but one.
Hurwitz: What about guns banned by name, do they have the features?
CA: All but one.
CA: Most semi-auto rifles in CA are not assault weapons. Most components of rifles can be replaced. Bad features can be removed.
Bumatay: Are these the most popular guns?
CA: No evidence to show that.
Bumatay: Are there millions?
CA: "We don& #39;t know."
CA: No evidence to show that.
Bumatay: Are there millions?
CA: "We don& #39;t know."
Bumatay: CA says there are 100,000+ of these, Alito in Caetano used a similar number to say stun guns are protected.
Hurwitz: Is the ubiquity in CA enough to establish commonality?
Hurwitz: Even if you can ban them, it seems that "there& #39;s a ton of these out there". Can& #39;t we agree on that?
"We know that a lot of people have these weapons."
"We know that a lot of people have these weapons."
CA says there are 166,000 registered assault weapons in CA.
Hurwitz: Can we use the US to establish commonality? If we do, you would be in trouble. I can walk out on the street in AZ and I see people carrying them.
CA talks about "M-16 and the like".
Bumatay: What& #39;s the difference bewteen those?
CA: Only difference betwen M-16 and AR-15 is semi vs full-auto.
Bumatay: What& #39;s the difference bewteen those?
CA: Only difference betwen M-16 and AR-15 is semi vs full-auto.
CA: US Military instructs soldiers to use semi-auto fire.
Bumatay: Semi vs full auto is big distinction to me, but you& #39;re just washing it away.
Bumatay: Semi vs full auto is big distinction to me, but you& #39;re just washing it away.
Bress: Besides M-16 argument, why are these weapons outside the 2A?
CA: Dangerous and unusual, etc.
CA: Dangerous and unusual, etc.
Hurwitz: Strict or intermediate scrutiny?
CA: Intermediate.
CA: Intermediate.
CA: Law is sight burden on 2A.
Bumatay: Isn& #39;t this a complete ban on type of arms at home? Why not strict scrutiny?
Bumatay: Isn& #39;t this a complete ban on type of arms at home? Why not strict scrutiny?
Bumatay: If we& #39;re in scrutiny land, we are already assuming they& #39;re protected to some extent.
CA talks about reasonable alternatives from Jackson v SF.
CA talks about reasonable alternatives from Jackson v SF.
Bumatay: Do we restrict any other rights becuase you have alternative rights?
CA: ***Literally uses fire in a crowded theater argument***
CA: ***Literally uses fire in a crowded theater argument***
Hurwitz: Asks about ease in which semi-autos can be converted to full auto.
Bumatay: Do CA police have access to these banned weapons?
CA: They do.
CA: They do.
Bumatay: If these are miltary weapons, why do police use them?
CA: Because police need offensive weapons, which these are.
CA: Because police need offensive weapons, which these are.
CA: History and tradition is not part of two-part test.
Hurwitz: I don& #39;t think you can use history of regulating dangerous things to say all dangerous things can be banned. Circular argument.
Hurwitz: I don& #39;t think you can use history of regulating dangerous things to say all dangerous things can be banned. Circular argument.
CA: Talks about laws banning guns firing certain number of rounds.
Hurwitz: That& #39;s a different issue.
Hurwitz: That& #39;s a different issue.
Bumatay: Does being more accurate make it more dangerous?
CA: Yes, if can be done quickly.
Bumatay: Does state have an interest in banning guns that are too accurate?
CA: Yes.
CA: Yes, if can be done quickly.
Bumatay: Does state have an interest in banning guns that are too accurate?
CA: Yes.
CA: Non-weapons are just as effective for self-defense as assualt weapons, based on ballistics expert.
CA: Home intruder can& #39;t tell if your gun has assualt weapon features.
Rupp back up
Rupp: Not arguing that ban means no semi-autos are available.
Hurwitz: So why is that a categorical ban in your view? Level of scrutiny?
Rupp: Still thinks it& #39;s a ban on category. Most popular rifles.
Hurwitz: So why is that a categorical ban in your view? Level of scrutiny?
Rupp: Still thinks it& #39;s a ban on category. Most popular rifles.
Hurwitz: How do we figure out what a category, if it& #39;s relevant?
Rupp: The state has already created a category for us.
Hurwitz: Still not sure how to define category.
Rupp: The state has already created a category for us.
Hurwitz: Still not sure how to define category.
Rupp: Category of rifles that the public is overwhelingly choosing. Non-features are the subset of modern rifles. The banned ones are the mainstream ones.
Bumatay: Do we even need to get into category?
Rupp: Not necessarily.
Rupp: Not necessarily.
Rupp: State says they can ban the most popular guns in the country because they are too accurate.
Oral arguments have ended.
