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Hurwitz asks Rupp if Heller says that any firearm that's within the 2nd Amendment can't be banned. Says he can'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'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're a felon. Doesn'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're not saying they can't be regulated (and already are), but that they can'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: Semi-auto rifles didn't exist in the 1920's, did they?
Rupp: Yes they did.
Rupp: Yes they did.
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Rupp: Laws Everytown mentioned were about machine guns, most repealed or amended.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.
Hurwitz: What common semi-auto rifles aren't covered by the ban?
CA: They do exist.
CA: They do exist.
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't know."
CA: No evidence to show that.
Bumatay: Are there millions?
CA: "We don'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's a ton of these out there". Can'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's the difference bewteen those?
CA: Only difference betwen M-16 and AR-15 is semi vs full-auto.
Bumatay: What'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're just washing it away.
Bumatay: Semi vs full auto is big distinction to me, but you'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't this a complete ban on type of arms at home? Why not strict scrutiny?
Bumatay: Isn't this a complete ban on type of arms at home? Why not strict scrutiny?
Bumatay: If we're in scrutiny land, we are already assuming they'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't think you can use history of regulating dangerous things to say all dangerous things can be banned. Circular argument.
Hurwitz: I don'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's a different issue.
Hurwitz: That'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'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'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's a ban on category. Most popular rifles.
Hurwitz: How do we figure out what a category, if it'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.
