Excerpts from a transcript of one of St. Benitez's recent hearings:
THE COURT: All right. Have I missed anyone?
Okay. Well, thank you so much for being here this morning. The reason why I called the status conference -- and I called all these cases at the same time -- is because, you know, a great deal of my life over the last few years has been devoted to dealing with these Second Amendment cases.
And I would like that survey, if you would. I mean, I'm sure you all have access to Excel spreadsheets and so on. But I'd like to see a survey that does the following for me: First of all, on a chronological bases, starting with date, the date of any law, regulation, ordinance, restriction. And I'm going to refer to those from now on as "restrictions." Okay. Generically, okay, restriction or regulation. Okay.
So if you could start out chronologically, if you would give me the date, and then if you would tell me what was it that was restricted. So, for example, in many of those regulations, they regulate dirks, daggers, metal knuckles. In some cases, it might be storage of gunpowder or cartridges. Some of them, some of these, are "use" regulations. In other words, you cannot use these while committing a crime. You cannot use them while breaking and entering into somebody's property. You cannot display them in anger.
So what is it exactly that the law or the regulation restricted? What type of weapon? What was the weapon that was being restricted? Was it a knife? a Bowie knife? a stiletto? metal knuckles? pistols? rifles? Then I would like to know whether or not that statute was repealed and, if it was repealed, what was repealed by, and was it replaced by something else? And if so, if you would do the same analysis?
Again, continuing a chronological order. Right?
And then, finally, whether or not that regulation or restriction was reviewed by court or courts? And if so, what was the -- what was the outcome? For example, was it found to be unconstitutional, or was it found to be constitutional? And if you'll give me a citation so that I can then go and look at the cases and see what the cases say.
So the cases have been sent back to me, given the Bruen opinion, and I'm now going to attempt to deal with them, but I don't want to have to deal and read the same stuff over and over and over again, because I've already read some of it twice. And, frankly, there's a lot of material there. I don't know how many boxes of five-inch binders I have, but it's a lot, and I have only so much time.
So I would suggest both sides, if you can, please do that for me. Okay. And I think that would be very helpful.
MR. KELLY: Your Honor, could I be heard?
THE COURT: No. Sorry. I've heard all I need to hear.
No. Go ahead.
MR. KELLY: So the State would like to renew its request for an addition discovery period, not a lengthy discovery period in this action. Just a three-month is all we would ask for.
THE COURT: Tell me why.
MR. KELLY: Sorry, Your Honor?
THE COURT: Tell me why.
MR. KELLY: So I will give -- one moment, Your Honor. So the Plaintiffs brought or included a declaration from Ashley Hlebinsky, who claimed that "repeating rifles were not commonly owned in the nineteenth century," presumably in response to our declaration from Professor Vorenberg.
THE COURT: I'm sorry. They said "they were not"?
MR. KELLY: They were not commonly owned in the nineteenth century.
THE COURT: She says they were not.
MR. DILLON: No.
THE COURT: No. I think you're wrong. I think you're opposite. I think she says --
MR. KELLY: Opposing counsel will correct me if I'm wrong.
THE COURT: Yeah, I think you're wrong. I think she said the opposite.
THE COURT: Okay. So two miners were mining for borax. And I can't recall whether it was Montana or Wyoming or Nebraska, or whatever. These are just two miners, two common folks that were miners for miners -- I mean, mining for borax, and they're attacked by a band of 40 Indians. And these two miners happen to have Henry rifles, and they were able to defeat the 40 Indians that were attacking them.
So the point -- the point was, if you look at Mr. -- Professor Cornell's -- if you look at Professor Vorenberg's materials, which I have looked at, you see that the statement that they were not commonly owned is just not true.
For example, there's a statement in there about how after the Civil War many of the -- of the soldiers, when they were released from duty, were, in fact, allowed to buy the repeating rifles and took the repeating rifles home.
And you can do the statistical analysis, by the way, which I sat down and did because maybe I have too much time on my hands. But there was an awful lot of those weapons that wound up in civilian hands.
So, I mean, the evidence is there. You can call, I suppose, this person for a deposition and take her deposition. But I don't think, no matter what she says, it's not going to contradict her own experts' declarations and the materials that they themselves refer to.
THE COURT: Well, before I get to that issue, let me point out something, Mr. Kelly. I don't know how long you've been in this case. But you said something about -- going back to the reason why you needed three months; that you needed -- that this was a new area and so on and so forth.
Did I get you right?
MR. KELLY: That's correct, Your Honor.
THE COURT: Yeah. How long you have been in this case, Mr. Kelly?
MR. KELLY: Several weeks, Your Honor.
THE COURT: It's not fair to dump you into a case like this. Mr. -- Professor Cornell has gone on record and stated -- in 2017, Professor Cornell stated that he had been researching and writing on the history and tradition of Second Amendment regulations for two decades. That's 20 years, 20 years before 2017. We're now in 2023. Add five years to that; that's 25 years. That's a quarter of a century that Professor Cornell has been writing, researching on the history of and tradition of the Second Amendment.
And I've read an awful lot of that material. Professor Cornell cites to Spitzer. Spitzer cites to Vorenberg. Vorenberg cites to Bazilli. Bazilli, I think it is, who cites to -- these folks have been working on this for a really, really long time.
In 2000- -- well, as you probably know in the Rhode -- Rhode case, I issued an opinion where I said that the State's regulation had no historical pedigree, and I was right. The Ninth Circuit asked the State to file a supplemental brief on the issue of the historical pedigree.
In response to that request from the Ninth Circuit, the State at Footnote 3, page 11 of its response, cites to Saul Cornell and Nathan DeNino, "A Well Regulated Right. The Early American Origins of Gun Control," 2004, surveying firearms regulations from Founding era through the nineteenth century.
Mr. Kelly, with all due respect, Mr. Cornell and all these other folks have been researching and writing on this issue for 25 years. We're not here, looking -- this is not a question for the missing link. We're not looking for truffles. If it's a history and tradition, 25 years of research and writing should have disclosed it by now.
And as you know, probably in Bruen -- I think it was in Bruen. It might have been in Heller, as well, where the Court said, "Look, 'a lot of' doesn't show a history and tradition." Right. So I don't think -- I mean, with all due respect, I understand what you're doing, and I appreciate that. And I'm sorry that you got dumped into this just a few -- just a few weeks ago.
But, realistically, you don't need more time. I might give you a little more time to depose the one expert, and that might be it, but that's about it. Okay.
THE COURT: No. I don't think we need another meet-and-confer conference after this. I think -- look, I don't want to slow-walk these cases. These are important cases both to the State and to the Plaintiffs and the people that insist that they have these rights, and I think we need to move these cases along.
So a meet-and-confer. Give me an agreed-upon historical analysis, and then what I will do is I will give you a time period for that to be filed. I'll give you a time period for additional briefs to be filed, and then we're going to have hearings, and we're going to put these cases to bed.
MR. MOROS: Your Honor, one question.
Is the State to be limited in the presentation of its laws to laws before the year 1900? Because I know in their supplemental briefing, they went into twentieth century laws, and our position is those aren't relevant. But if you want a comprehensive view, just to get everything.
THE COURT: You know, frankly, I don't see much point in those because I think that there would be so many laws. I mean, let's face it, after -- there came a point when -- when they began to grow exponentially.
I think in the Bruen opinion it talks about -- the way I see it, it places greater emphasis on those laws that were, essentially, in effect at the time the Second Amendment was adopted, and then with a secondary emphasis at the time that the Fourteenth Amendment incorporated the Second Amendment by reference. I think that's the time period.
In fact, I think the one -- if I'm not mistaken, the one statute that regulates -- that was submitted in the Fouts case, it talks about machine guns and automatic rifles, is a 1927 statute, if I'm not mistaken; which, frankly, I thought was irrelevant, anyway.
So why don't we limit it to -- how about this? How about, let's say, 20 years -- how about an arbitrary and capricious number that I'm going to give you? Twenty years after the Second Amendment was incorporated by the Fourteenth Amendment -- or the Fourteenth Amendment was adopted. How's that?
THE COURT: The problem with that, though, as I said -- how many -- how many laws have been enacted? I mean, just look at California. Let's just take, for example, the Miller case, right, the AR-15-type regulations.
How many of those laws have been enacted since 1927? Lots and lots and lots and lots. But how does that help me decide the history and tradition of regulation of rifles --
MR. KELLY: I think, Your Honor --
THE COURT: -- at the time the Second Amendment was adopted, or at the time the Fourteenth Amendment was adopted? All that tells me is -- has happened after the Civil War when states found out that, yes, they could restrict certain firearms. Right. That all of a sudden there was an explosion of restrictions because the states found out, "Hey, guess what? We can do this." So then they did it.
But how does that help me determine the history and tradition of these laws at the time the Second Amendment was adopted or at the time that the Nineteenth -- I mean the Fourteenth Amendment was adopted?
MR. KELLY: Your Honor, I'm only speculating that these laws are out there. I personally do not know. I think we would just want to reserve our right and not be barred from doing so should it come to that.
THE COURT: I'll tell you what I'll do. I'll let you file a separate one. You can file -- you can file a separate survey, and we'll call it "Post 20 years after" -- "20 Years After the Ratification of the Fourteenth Amendment."
How's that?
MR. KELLY: That sounds good, Your Honor.
THE COURT: And include as many as you want. In fact, the more the merrier.
MR. DILLON: It will just be a straight list of the laws. We will have a chance to review it as Plaintiffs. And like a summary judgment, if we have a contested issue of the summary of the law that they present, we can note that contest in the -- you know, a joint document? Is that what you're --
THE COURT: Sounds reasonable. Sounds reasonable to me.
MR. DILLON: No problem. Thank you, Your Honor.
MR. KELLY: Your Honor, I think we would object to that as well. I think we would want, if we need to, to introduce experts to interpret some of the laws and the standards --
THE COURT: No.
MR. KELLY: -- in the language --
THE COURT: No.
MR. KELLY: -- and the statute --
THE COURT: No. Look -- no, no.
Mr. Kelly, with all due respect, I don't need -- every one of these experts that you've put forth, I have read, just like experts that they have put forth, like Mr. Copill, for example. Your experts -- these are people that have, you know, biased points of view. I mean, Mr. Bosey, for example -- I hope I'm pronouncing his name. The fellow who worked for --
MR. MOROS: Kimber, Your Honor.
THE COURT: Kimber. Yeah. Who at some point in time had an epiphany and realized that all the work that he'd been doing for all these years, selling these weapons to the public was not good. And now he works -- he's a consultant for Everytown -- I'm trying to remember.
Anyway, look. These people's opinions of what these statutes say, right, means nothing. It means nothing. It's like, I remember -- I think it was Justice Brier in -- I think it was Bruen, who talked about, "Well, we need to have this factual record," and this and that, what have you.
No. 702 says that the admission of expert testimony is help -- is possible if, because of the expert's knowledge, skill, or experience, it will assist the trier of fact. Okay.
But there's nothing. I mean, I've read these declarations. Every one of these folks come in here with a biased -- it's not like they're really neutral experts, okay, or they're not experts who've come up on these opinions as a result of these cases, okay, doing research for these cases.
These are all people that already come with preconceived ideas and opinions, but their opinion is not worth any more than your opinion or her opinion. They're going to tell me, "Well, in my opinion, if you look at this statute, this statute means that -- you know, that the State of Wyoming regulated concealed carry of brass knuckles," and so I can read that. I can figure that out by myself.
THE COURT: Yeah. I noted that. I noted that. I found that to be rather distressing, even though in the -- in the past, they have referred to some instances as "dangerous or unusual." But as Justice Alito pointed out in his concurring opinion in Caetano, anyone with a ninth-grade education can read the Heller opinion and determine that, in fact, it is "dangerous and unusual," i.e., the conjunctive, not a disjunctive.
So I don't know why that keeps popping up. I mean, I heard some supposedly distinguished legal scholar make that same error, and I don't know whether that's intentional or not. I hope that's not intentional.
MR. STAMBOULIEH: Well, the Supreme Court said "dangerous and unusual," Your Honor, so we're going to go with what the Supreme Court --
THE COURT: That's a good thing to do.
MR. STAMBOULIEH: Right.
THE COURT: That's a really good thing to do.
MR. BECK: Alan Beck for the Plaintiffs Fouts, Your Honor.
Our briefing also indicates that the phrase "dangerous and unusual" doesn't actually refer to any sort of intrinsic property of an arm. Historically, in Heller, the Court references the tradition of prohibiting carrying "dangerous and unusual" weapons.
And after we took a look at what that actually was, that -- that typically refers to prohibitions on carrying in certain manners, that were actually what terrified people. So our position is that the possession of any weapon cannot be justified simply through this historical tradition of carrying dangerous and unusual weapons, because it doesn't refer to types of weapons; it refers to certain types of conduct with weapons.
And in light of the fact that the State's brief was 36 pages, we're just hoping to have an equal-length brief as the brief they filed so we can demonstrate that to the Court, Your Honor.
THE COURT: And you've already prepared this, you're telling me?
MR. BECK: Yes, Your Honor.
THE COURT: Okay. File it.
MR. BECK: Thank you.
THE COURT: File it. Thank you for making my life that much more difficult, but whatever. Okay. File it. I'm done.
Man, I don't think that "I'm done" in the last excerpt is just lighthearted banter. He genuinely seems really sick and tired of having to deal with these cases over and over again,
especially the anti-2A folks.