Advisory Opinions - California's Assault Weapons Ban Overturned

Episode Date: June 7, 2021

Today on the podcast, our hosts walk us through a bit of Supreme Court drama involving Sonia Sotomayor and some historical revision of a 1987 Supreme Court immigration case. They then dive into last week’s 94-page ruling from a federal judge striking down California’s assault weapons ban, a decision that includes references to COVID vaccines and the Swiss Army knife in its robust defense of gun rights in America. Finally, David and Sarah discuss whether civic education can reduce negative partisanship in America. Show Notes: -United States v. Palomar-Santiago -United States v. Mendoza-Lopez -Sotomayor’s statement on the Draft -California assault weapons ban ruling Learn more about your ad choices. Visit megaphone.fm/adchoices

Deflated and underwhelmed, Sarah. Those are the exact words of a commenter on SCOTUSblog live on the live blog this morning when the much-anticipated Opinion Day turned into a bit of a fizzle, a bit of a fizzle, one case, an immigration-related case. How many immigration cases can there be in one term, Sarah? A lot. The answer is clearly a lot,

and there's more to come, actually. But look, listeners, if you feel deflated, disappointed, angry, just imagine what it's going to feel like. We have a limited number of days left, so all that's happening is that we're packing better and better cases into single days to come. You will be feasting on pheasants and fish and bison and all sorts of all the meats will come in a single meal and it will be delicious. So delayed gratification. It's the marshmallow test, David. Supreme Court marshmallow test. This is like when you know you're going to have a really great meal and you decide, I'm not having the afternoon snack.

That's right. Yes. Yeah. But okay, so we're going to talk about the one case very briefly that was decided. But you know, that's not all there is to talk about. The Supreme Court isn't the only court in the land, and it's not the only court that creates controversial opinions. So let me just give you the run of show in the lingo.

So we're going to talk about the immigration case. We're going to note a little interesting edit that Justice Sotomayor made. I'm going to relate how Sarah was right once again. You'll have to see about what. There was a cert grant in a mildly interesting case that we'll talk about a little bit. Then we're going to dive into a case that lit up the online world over the weekend. And this was a California case. Federal District Court judge strikes down California's so-called assault weapons ban,

struck it down with a long opinion that just sort of really walks through Second Amendment jurisprudence. It's going to be fascinating to see what happens to that case on appeal. At some point, the Supreme Court is going to take up an assault weapons case. I feel pretty confident at some point. And this case was an interesting roadmap as to all the ways in which the court could possibly analyze the case. So it's a very interesting case. Totally worth talking about it.

We're going to break it down. Sarah went to a very interesting speech. I know that doesn't sound interesting, but it was given by an interesting person, our friend Judge Willett. And so she's going to talk about that. We're going to talk about the tiger mom a little bit. Yeah, Amy Chua, who's in a midst of controversy. Then we'll end with a dash of Shakespeare, then sine die, y'all. So that's where we're going. Sarah, do you want to kick us off with the one Supreme Court case of the day?

You bet. We had Sanchez v. Mayorkas. This was a case on temporary protected status. So basically, if you're in the country and then something bad happens in your home country, a hurricane, an earthquake, things like that, the government can pass something called temporary protected status, letting you stay here longer than your visa would otherwise allow until things in your home country are settled out. This time, it's the temporary protected status

in El Salvador after a series of earthquakes back in the 90s. All right, so petitioner Sanchez came to the country unlawfully from El Salvador. Then years later, the earthquake happens and the temporary protected status would entitle him to stay and work in the US as long as those conditions persist. Sanchez then applied for lawful permanent resident status. And the question is whether the temporary protected status allows him, basically undoes his unlawful entry into the country to allow him to apply for lawful permanent resident. If you came unlawfully, you can't get lawful permanent resident status. Does the TPS status intersect that and undo his lawful entry? It was a unanimous court, Kagan writing. The answer is no.

Admission to the country is part of what is required to apply for lawful permanent resident status. He was never admitted into the country. It doesn't matter whether he got TPS status because of conditions back in El Salvador. Not surprising. This was a pretty known outcome. What was sort of interesting about it is that last month, there was another opinion that we talked about kind of briefly called United States v. Palomar Santiago. Another immigration case, this one written by Justice Sotomayor, also unanimous. In that case, every time the word alien would have been used, that's the term in the statute, by the way, for someone who is not a citizen of the country, she changed it to non-citizen. Fair enough. But here was sort of the odd thing. She's quoting a 1987 case

from written by Justice Thurgood Marshall. And in quoting it, she uses, quote, imposes a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the non-citizen the deportation proceeding may have been, end quote. two brackets. One, in the original, imposes was either impose or imposed, and she puts an S there to make her sentence work. So the S is in brackets, very normal to change a quote so that the verbs match with what you were saying. But then there is a bracket around non-citizen, and that's because Justice Marshall used the term alien in his 1987 opinion, and Justice Sotomayor changed it to non-citizen, her preferred term. Kind of fascinating. And note today, in Justice Kagan's unanimous opinion, the word alien is in there five times. And interestingly, they are not all quotes. Four of them are. But the one non-quote, there could scarcely be a plainer statement of the daylight between non-immigrant status and admission, except

maybe for the alien crewman provision. So I just found that interesting david you have two of the justices that are on the liberal side of the bench so to speak uh and it's pretty noticeable so to my work clearly is going to not only use non-citizen when it's up to her to pick the word she is going to go back and change justice marshall's opinions to include her updated preferred language. And Justice Kagan is not. I wonder if there was any little notes passed back and forth, or if this is an unstated thing. Yeah, it's interesting to me. I mean, look, we've talked a lot about the similarities and differences between the different justices. This is just another example that the three Democratic-nominated justices are not the same. They're not interchangeable.

Sotomayor comes from a particular wing of the left, and Kagan comes from a different wing of the left, one that is much more moderate than Sotomayor's. I mean, Sotomayor is very much seems to be coming from sort of the more, a further left, more cultural left place that is among the interests of that wing of the cultural left is changing language to be more inclusive and less stigmatizing. And so this is something that I'm not remotely surprised about to see who changed the language, including quotes, and who did not. Right. If I told you one justice

changed Justice Thurgood Marshall's quote from alien to non-citizen, and one justice uses alien, and one is Sotomayor and one is Kagan, you would have had a 100% chance of getting that quiz right. Yes, exactly. 100%. Well, let's stick with Justice Sotomayor for a minute, Sarah. And let's just note for the record, you were right. You were right. Many months ago, long-time advisory opinions listeners will remember that we talked about a case that was winding its way through the federalist system to see that if it was going to continue to be unlawful to require only men to register for selective service, register for the draft. to register for selective service, register for the draft, especially now that even ground combat roles have been opened up to women in the United States military. And so the question is,

is the all-male draft constitutional? And Sarah said, you know what? They're not going to take that case. Even though it's interesting, even though it could make some interesting headlines, they're not taking it. And you know what, Sarah? You were right.

Not surprised you're right. The only thing that was interesting to me, though, and I want to see if this is interesting to you, three justices with Sotomayor writing with Justice Breyer and, drumroll please, Justice Kavanaugh, Justice Breyer and, drumroll please, Justice Kavanaugh, they had a brief statement respecting the denial of certiorari, not dissenting from the denial of certiorari, but basically saying, well, for now, we're not looking at it. For now, the court's longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the court's decision to deny the petition for writ of certiorari. So Congress is looking at it. And so therefore, these three justices won't grant. But it's very interesting that Sotomayor also chose to

highlight a quote, a highlighted quote from a commission tasked with studying whether selective service registration should be conducted regardless of sex. And this was the contention of the commission. Not sure I agree here, Sarah. Commission found that, quote, male-only registration sends a message to women not only that they are not vital to the defense of the country, but also that they are not expected to participate in defending it. I think that might be a little, sweeping a little broadly on the effect of what is a bureaucratic checkmark that people, that guys check early in their adulthood

and then forget about it forever. But interesting. Were you surprised that three justices had a little statement here or just, you know, whatever, we won't talk about this again. So backing up, I remember when Re reader first sent this cert petition to us. And if you remember, David, I said, it's not going to get granted. So we're not going to talk about it. There's no point. Sometimes y'all send in emails and they're like,

this is such an interesting case. And they applied for cert. And I'm like, yeah, we'll wait until it gets cert. I was very, very confident that they wouldn't. But then a whole bunch of other reporters started covering it. It was getting a lot of mainstream. The New York Times wrote this whole thing on it. I was like, well, I guess now we need to talk about it, understanding that wishing doesn't make it so. So I've broken my policy of not talking about cases that I don't think are going to get granted cert for this case. I don't love that. I almost would have rather have been wrong and had it granted cert rather than break that. But here we are. On the concurrence, I am now very glad we talked about

it because of that concurrence. What I found interesting about it was that normally there's like a legal angle to a concurrence. This was not. This was simply having something written down to explain why they denied cert. And it was basically for policy reasons, not legal reasons. It wasn't that the case had some procedural problems or it wasn't ripe enough or anything else. They were like, look, this seems to be working itself out in the political branches. No need for us to step in. Hat tip to all you ladies out there serving in uniform. Thanks. Bye-bye. But David, to your point, I think I do disagree about the...

What did you just refer to it as? That it was a meaningless box check? Bureaucratic check. Yeah. I disagree with that for the same reason that I disagree that even when they zeroed out the penalty in the individual mandate, that there is no moral component to complying with a law, regardless of whether there is a financial or criminal penalty to complying with the law, that if the government says something is against the law, then there is a reason you may want to comply with the law, even if they say, but we're not going to do anything about it if you decide not to comply with it. In the same way, I think there is a moral component to registering for the draft,

regardless of whether we ever have a draft again. And I think it is something about a reminder, even if it's a one-time reminder, even if you don't think about it, however many hundreds of years later you are from registering for the draft, David, that men are the ones charged with protecting our country and not women. Well, I mean, I think, you know, a part of this is the circumstances under which we would reinstate the draft. Because part of me is always thinking about under what circumstances would we reinstate the draft? And is this, you know, I would be much more interested in just revoking the Selective Service registration in general. I mean, it isn't as if the government doesn't know who you are. You know, you're filing tax returns.

You have a Social Security card. You, I mean, your ability, the government can virtually instantaneously say, okay, what is the pool of adults aged 18 to 25 in the event that we get into some sort of grinding land war in Asia where, you know, our almost 2 million person total active and reserve force is being taxed to its very limits. You know, so I think that the registration for selective service is a bit antiquated in our information age. And I do think it's just totally forgotten. I mean, it's just I've registered for selective service and I'd totally forgotten that I had registered for selective service until I saw this cert petition. I was like, oh, yeah, I did that. And the obligation for defense or the sense that you're obligated to defend this country,

in reality, comes a heck of a lot more from family, from history, and to be honest, from military marketing as they relentlessly reach out to men and women to fill the ranks of all-volunteer military. relentlessly reach out to men and women to fill the ranks of all volunteer military, I guess I would be much more in favor of eliminating the selective service requirement as superfluous than I would be continuing to litigate over the scope of the requirement. Because the bottom line is, Sarah, the bottom line is, if we do need people in a new vast land war, which by golly, I hope we don't, because that would be an emergency unlike anything we have experienced in our lifetimes, then there's going to be a very different

calculus going on than equal protection under the law at that point. It's going to be a military emergency with certain specific military requirements that are going to bulldoze through everything, everything in that moment. And so this is just kind of like a law school hypo, and you know how much I hate litigating law school hypos. Indeed. Yeah. So interesting. Okay. So there was a cert grant also. Um, and the cert grant is in a case called federal Bureau of investigation versus the Zaga. And here's the issue presented whether section one eight Oh six F of the foreign intelligence surveillance act of 1978 displaces the state's secret privilege and authorizes a district court to resolve in camera and ex parte the merits of a lawsuit challenging the lawfulness of government surveillance by considering privileged evidence.

So I would say the interest in this case is going to be a little narrow. Civil libertarians, people who for whatever reason wonder through paranoia or reality that they might be subject to surveillance from the government. But essentially what it means is how much are you going to be able to allow a court when you have the words in camera and ex parte, essentially what that means is the judge looking at the evidence, how much will a court be allowed to look at the evidence that establishes the grounds for surveilling you. So it's going to be in a civil lawsuit challenging the government surveillance. So it's going to be one of these very interesting cases. I'm actually looking forward to seeing this that determines how much does a citizen

have the ability to challenge their own surveillance and how much can the government rely on classified information to form the foundation of that surveillance without disclosing it even to the judge? Sarah, any thoughts? Yeah, I doubt that this will be getting anyone out of bed in the middle of the night. But, you know But FISA received so much scrutiny in the 2018-ish era. I think if the cert grant had been, again, like three years ago, everyone would be like, oh my God, FISA, FISA, FISA, FISA, FISA. And amazing what three years will do. Everyone's like, huh, yeah, FISA, shrug. Exactly. It is fascinating what issues, how issues change in their salience depending on the politics

of the moment. But thus endeth our Supreme Court conversation. So I wouldn't quite, I think it's a little much to say underwhelmed and deflated because there was a little.

I was just... I was whelmed. Were you flated though? I don't know. I guess not. I think I was deflated. Yeah. I was whelmed and deflated.

Whelmed. All right. So, shall we move on to california um this is a really interesting case and there was a couple of things that were interesting about it one was sort of the the reaction to it online as contrast with the actual opinion contrasted with the actual opinion itself, the substance of the opinion, the substance of the arguments. So that was one issue that was interesting to me. And then number two, interesting, was just the raw reasoning itself, Sarah. So this is a case involving California's ban on so-called assault weapons. And I use a term, if you notice when I talk about these cases, I usually preface the phrase

assault weapon with the phrase so-called or the word so-called or whatever, whatever you call a word that has a hyphen in it. And the reason is, it's kind of a made-up category of weapon. it's kind of a made-up category of weapon. Essentially what you're talking about when you use the term assault weapon is a military style. In other words, it's going to look almost identical and have many of the same features as a military weapon,

but it is not the military weapon because it is not fully automatic. It does not. So your AR-15, like an AR-15 like I have in my house, has a safe and a semi-auto mode. The M4 that I carried in Iraq had safe semi-three-round burst, where it would fire in fully automatic mode three rounds when you pulled the trigger.

So they're military-style weapons. And they are also... So if you're carrying one, it's going to look indistinguishable from a military weapon from the outside, but it is distinguishable in some pretty important ways. So anyway, that's why I use the phrase so-called assault weapon. pretty important ways. So anyway, that's why I use this sort of the phrase so-called assault weapon. And in this case, plaintiffs were challenging California's ban. And the case was very interesting because it really went to the heart of what's kind of uncertain about Second Amendment jurisprudence right now. What kind of test are you going to apply? And this is something that we have talked about a ton on this case, I mean, on this issue.

And the court walked us through a couple of things that I thought were quite useful. He took a look at, the judge took a look at, how deadly are these assault weapons in real life? And we've seen them used in these horrific, horrible, these just terrible mass killings. But how many people are killed by AR-15s in California, broadly in the United States? How popular are they? How does that fit within what he calls the Heller test or versus the Ninth Circuit's two-step levels of scrutiny test? And what he noted, and this is not, you know, this is not unknown information if you're somebody who follows the Second Amendment, is that the AR-15 is very, very, very popular. It is probably the single most popular rifle sold in the United States. So there are millions, millions of these things in circulation.

Number two, they are not used very much for crime. Now, with the exception of these awful incidents that we've talked about, but even when you include the numbers, the deaths from these mass shootings where AR-15s have been used, people are killed far more often by fists than they are by rifles, these AR-15 rifles or rifles of any kind. They're killed far, far more by knives than any kind of rifle. And the vast majority of murder in the United States is committed by handguns. It's their handgun murders. Rifles are relatively rarely used. Rifles are relatively rarely used.

So essentially what he said was, look, under this Heller test, if you have a rifle that is commonly owned by a law-abiding citizen for a lawful purpose, that's the Heller test, they are 15 by any measure. The answer to that for they are 15 for any measure, the answer to that for the AR-15, for any measure, is yes. As he says, the overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home. Under Heller, that is all that is needed. Using the easy-to-understand Heller test, it is obvious that the California assault weapon ban is unconstitutional. Under the Heller test, judicial review can end right here. Pause, stop, Sarah.

Here's my question for you. Do you think the Supreme Court of the United States, if it ever evaluates an AR-15, an assault weapon ban, I'm presuming maybe wrongly that it will, do you think it will use the Heller test or will it apply a different test? Your thoughts. I think it'll use the Heller test. Yeah. I do. I think that even with the new members of the court, I think they can get to what they want

through the Heller test. Now, is the Heller test big enough to encompass all the things that they'll need to do from here on out? Will it need little Heller additions? You know, if Heller maybe is black and white, will they need to add in some color? Yes, for sure. But I think it will still be the Heller additions. You know, if Heller maybe is black and white, will they need to add in some color? Yes, for sure.

But I think it will still be the Heller drawing just with some paint added. And when you say the Heller test, I think the Heller test is mainly going to apply to gun bans or to, so, or bans on particular kinds of weapons or particular kinds of of magazines i was gonna say large capacity magazines um uh what was the thing that they just banned that atf finally banned bump stocks bump stocks so accessories and specific types of weapons right right the heller

test is pretty easy to apply in that circumstance so for example uh for those who who don't know much about these weapons you hear the word large capacity magazine and that word's being thrown around a lot and uh it often means and i've said this before standard capacity so if you buy a glock for example, the magazine that comes with the gun in states that don't have limitations on large capacity magazines might have anywhere from, depending on the pistol, it might have 15 rounds, 17 rounds. My Ruger pistol has a 17-round magazine that just came with the gun. And so that's just the normal magazine. But now then there are other kinds of magazines that you can buy that are a lot bigger than that. And they're not common. They're not in common use. So these big drum magazines

that you've seen for AR-15s, Very rare. Not very many people have those. The very extended magazines that you sometimes see put into pistols. Very rare. So I could easily see a Heller test applied to these very large magazines that are not standard capacity with the weapon, permitting them to be heavily regulated and or banned. But the standard capacity magazine, them to be heavily regulated and or banned. But the standard capacity magazine, it's a little harder to see. Same with a weapon like an AR-15 that is in standard use. It is something that millions and millions of people have. And so a ban on something that is in common use for a lawful purpose, it's hard for me to see how you ban that consistent with Heller, especially when one of the common uses is home defense. But that's just my speculation.

So just to add some things that I found interesting about this opinion. One, this was a 2003 W. Bush appointee to the court. He just went senior in 2017. So it's a senior status district judge. It's a 94-page opinion after a trial. This is unusual in Second Amendment cases. And if you are at all interested in this topic and where the law is going on it, this is an opinion worth reading or at least skimming some of the trial portions because you're not going to see this very many places slash ever. The tone of the opinion is really unusual. It will not survive the Ninth Circuit. In fact, I believe that no second, no pro-Second Amendment district court

decision has ever survived the Ninth Circuit. This will not be the one that does, in part because of its tone. It was, again, incredibly thorough. The fact that there was all this trial evidence, I think, made for a compelling opinion. And I mean compelling in the sense that it was, um, thorough, thoughtful. This wasn't just some sort of like knee jerk one way or the other. Um,

at the same time, uh, it was, there was some weird parts, David. So I don't know if you noticed this sentence. Um, he's talking about intermediate scrutiny,

uh, about halfway through page 47. and i i bet we have the same brain sarah yeah i'm just gonna read you the paragraph and you tell me where things get weird and it is worth noting that there are no footnotes in what i am about to read yeah recall that to pass intermediate scrutiny, the California assault weapons ban must have at least been designed to address a real harm and alleviate the harm in a material way. The evidence described so far proves that the quote harm of an assault rifle being used in a mass shooting is infinitesimally rare event. More people have died from the COVID-19 vaccine than mass shootings in

California. Even if a mass... Oh, you found it. Oh, you found the sentence that maybe needed a footnote, something. Wait, what? More people have died from the COVID-19 vaccine than mass shootings in California. Also fascinating, by the way, Slate, NPR, Washington Post, New York Times, I read all of their write-ups of this opinion and nobody mentions this sentence. Yeah. Yeah. Well, they didn't mention it because there was another sentence that stood out to everybody in the opinion, and it was the very first one. So if you're a reporter and you're reading this and you're thinking,

and you're already maybe upset by the outcome, and you're reading this with a skeptical eye, the first sentence was like, it should have begun with trigger warning because what does he do? He says, like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Sarah, the AR-15 is not like the swiss army knife no it's not it's it's not and it was a weird choice of i mean i get what he's saying that it's versatile it's versatile

but the air 15 is versatile which I agree with. However, you know, if you just read the sentence, he says the Swiss Army knife is a perfect combination of home defense weapon and homeland defense equipment. Oh, interesting.

Good point. It's not that. No, it's not that. What he's trying to say is the AR-15 is versatile like a Swiss Army knife is versatile.

But, you know, the sentence is self that's a that's bad writing that's a different complaint i think than what some of the reporters seem to have in mind true poor simile metaphor usage true so here's another quote the second amendment is about america's freedom colon the freedom to protect oneself, family, home and homeland. California's assault weapon ban disrespects that freedom. There's sentences like this, I would say sprinkled throughout, but it's more like a deluge throughout. Like they are generously it is like it is salt to the mashed potatoes here.

You need more than you think, I guess. I don't think that those sentences help the legal reasoning at all. Yeah. Similar to your point about the Swiss Army knife. The Second Amendment is about America's freedom, the freedom to protect oneself, family, home, and homeland. I think overstates the case unnecessarily. The Second Amendment is what the Second Amendment says it is. Yep. And you can uphold or strike down this law using the Second Amendment as the Second Amendment.

You don't need to puff up the Second Amendment into its own metaphor for freedom. Or whether California disrespects that freedom is also not totally relevant to whether it's constitutional. They can disrespect whatever they want as long as they don't violate the Constitution. They can say the Second Amendment is stupid, put it on their state flag and fly that state flag that will be disrespectful of the second amendment and not unconstitutional so whether their their assault weapon ban was disrespectful i guess that sentence bothered me a little yeah i would say that this is an opinion and it's interesting because this is the flip side of the sotomayor

language choice you're sending a cultural signal with your language choice not a legal signal so what sotomayor is doing by changing non-citizen from alien is she's following along with a particular strain cultural strain of the left that is wanting to elevate the status using language as well as law, but elevate the status of illegal immigrants and immigrants in general by shunning language they believe to be demeaning. So that's much more of a cultural choice than a legal choice. There are cultural choices here in this decision. It's sort of sprinkled with a bit of hashtag America, Sarah, which is, I think, not necessarily calculated to persuade the Ninth Circuit at all that this is

the kind of opinion that it is. And it's a shame because it's a general rule. What I like about this case is it's the result of a very developed factual record, which I do wish we had more cases like that rocketing up through the system. So what a lot of listeners may not realize is that a heck of a lot of the very contentious cases that you see decided in court are on injunction practice. In other words, they're the result of a preliminary proceeding. And so one of the quirks of the rules of appellate procedure is that you can appeal. Normally, you have to wait for a final judgment in a case to appeal.

But if you're denied an injunction, which is a preliminary procedure, you can appeal that. And so what you often have are cases decided on quite incomplete factual records. And so what he's done here is he's put together a pretty impressive factual record that sort of cuts through a lot of the rhetoric and noise about assault weapons. And so in that circumstance, I'm very impressed with how carefully he did this. I could have done without the hashtag America seasoning, because this is already a major cultural clash in the U.S. And it's interesting, the fact, so, you know, listeners, just do this mental check. Ask yourself this question. If I hear that a person owns an AR-15, what do I think about that person?

And for a lot of people... Wait, can I answer that question? Yeah, go for it. I think of David French. Well, a lot of people... So if you say that around here, most people would say either, okay, it would just not register at all. It would either be, okay, fine, okay, it would just not register at all. It would either be, okay, fine, whatever.

Or mild surprise maybe if a guy in this area did not. Oh, you don't? Really? I'm kind of surprised by that. It's just not a thing. It is not a thing. But if I walked into, and this has happened, you know, sort of spaces where folks just don't own weapons. They just don't, they don't have them. And I say I have an AR-15. The look of shock followed by horror that crosses the face of the person I'm talking to

is pretty, can be pretty amazing. Can be pretty amazing. And part of it is I think that a lot of the folks who live in those spaces and work in those spaces where people don't really own guns, when they think of an AR-15, they think of, they think, why would you have that? There's no reason to have that. Whereas when I think of it, I think I can't think of a better weapon to defend yourself in your house than this. But it's a very interesting cultural divide, Sarah. And we're going to get mail on this. We are going to get email. And I look forward to it. We are going to get email and I look forward to it. So going to the conclusion of the opinion.

So the first paragraph of the conclusion, these statutes are hereby enjoined. Next paragraph. This is really how it starts. You might not know it, but this case is about what should be a muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment. It should be an easy question and answer. Government is not free to impose its own policy choices on American citizens where constitutional rights are concerned. He goes on to explain Heller, the second amendment takes certain policy choices and removes them beyond the realm

of permissible state action. Actually, I would say that was McDonald, but okay. Heller didn't actually remove anything beyond the permissible realm of state action. California may certainly conceive of a policy that a modern rifle is dangerous in the hands of a criminal and that therefore it is good policy to keep modern rifles out of the hands of every citizen. The Second Amendment stands as a shield from government imposition of that policy. There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants, and terrorists are dangerous.

Guns in the hand of law-abiding, responsible citizens are better. To give full life to the core right of self-defense, every law-abiding, responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. It continues along those lines. Last paragraph, the court does not lightly enjoin a state statute however while the court is mindful the government has a legitimate interest in protecting the public from gun violence it is equally mindful that the constitution remains a shield from the tyranny of the majority as senator edward kennedy said quote the judiciary is and is often the only protector of individual rights that are at the heart of our democracy end end quote. Law-abiding citizens are imbued with the unalienable right to keep and bear modern

firearms. And that is the end of the substantive part of the decision, which I want to discuss with you. But right after, we go to the temporary stay, and he stays his order for 30 days in the public interest, quote unquote. It is a strangely written opinion at different portions. I think that the you might not know it is one of the weirdest rhetorical things I have seen in a district court opinion in a very long time. It is totally unnecessary to the writing. The sentence could have easily started, this case is about what should be a muscular constitutional right. But instead, it's you might not know it, but this case is about what should be a

muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment. It muddles the sentence. It's weird. It uses the second person familiar. We don't have a second person formal in English, but I think that would have maybe been better while still bad. Anyway, it felt hastily written and not edited, David, entire conclusion and as i said like he says heller puts things beyond the permissible realm of state action no it doesn't um it talks about like the second amendment imbues citizens with the unalienable right to keep and bear modern firearms. I don't think that's the unalienable right, really, that's in the declaration. Yeah. Anyway, thoughts on the conclusion.

And then saying this is like the most important, like, unalienable right declaration of independence style. I'm staying it for 30 days because it's in the public interest to do so. Right. So I'm staying it for 30 days because it's in the public interest to do so. Right. Well, and that's just because he knows if he didn't stay it, it would be stayed almost instantaneously in the Ninth Circuit. Correct. But, yeah, this is what I'm talking about.

There's a lot of, as I said, it's sprinkling hashtag America throughout. And I felt like, you know, the court does not lightly enjoin a statute. He should have edited it to say the court does not lightly enjoin a statute, though it does so gleefully in this circumstance. And in fairness, he didn't enjoin it lightly. There's 94 pages. He had a whole trial. He hears from experts. He goes through the history of mass shootings over the last 30 years. And he determines that this assault ban had no effect on mass shootings in the state for the last 30 years. I think you can argue that, but I think he presents both sides of that in the most substantive parts. But the salt, David, the seasoning. Yes. And this is not the first time we've talked about that.

Do you remember back early in the pandemic when there was a district court decision out of Kentucky, I believe, that was very little law and an awful lot of venting? Yes, that was Judge Justin Walker's opinion, and he then was elevated to the D.C. Circuit shortly thereafter. Correct. Correct. He was elevated to the DC circuit shortly thereafter. Correct. Correct. He was so didn't hurt him. But what's interesting about that, David, if you remember at the time we said like, okay, he was, you know, one of sort of three, four people being discussed for the DC circuit. And he didn't have a lot of opinions that were meaningful, relevant, interesting. And so then this landed in his lap and it's like big audition opportunity. You want to give that Hamlet soliloquy, you know,

with your big voice, your stage presence, throw in some flourishes to be or not to be. What's interesting here is that it's a senior status judge and so it's almost the opposite career issue this may well be his last or certainly one of his last major opinions that he ever does as a judge and so in that sense it's like your last time as Hamlet on the stage instead of your first. I find that far more meaningful in a lot of ways, that this is on his heart. This is something he thinks is incredibly important to him as a judge. His role as a judge is mentioned throughout this, right? The role of the judiciary to protect the rights of the minority, that he believes that it is his job in that black road to stand a thwart.

I take that very seriously, especially coming from a senior judge. Yeah. There were better ways to execute it. No, I agree completely. And the thing is that, again, this is something that is unfortunate is a lot of these rhetorical flourishes, the opinion will be remembered for rhetorical flourishes more than it will be remembered for the very careful factual analysis, which I think is something these weapons is so very important. Because one of the things that frustrates me, Sarah, about the gun violence debate is often the heat that is generated around any particular issue is inversely proportional to its actual prominence in ending or dealing with gun violence. So there's an enormous amount of heat around the AR-15. When the AR-15, aside again from these very rare mass shootings,

is not a good criming weapon. It's just not a good criming weapon. Why? You can't hide it. You can't hide it. It's kind of big. It's bulky. It's not big and bulky by the standards of a military weapon, but it's a bad criming weapon as a general matter. That's why it is not used much for crime. It's barely used at all for crime compared to other weapons. And so you have an enormous amount of tension on this kind of weapon that is a rounding error to a rounding error in our gun violence statistics. And so, you know, it's what is it that actually matters in gun violence? Well, you know, when you're talking about criminal gun violence, again, it's handguns. It's often about how do people, how do criminals get their handguns?

How do criminals get their handguns? This is where we get into straw purchasers and all kinds of, because an enormous number of people who have these handguns that they commit crime with enforced is a huge question in gun violence. And then the other one, the largest segment of gun deaths in this country are suicides. Again, rifles are not typically used for suicides. Again, it's handguns. What do we do about suicide prevention? Those are things that are critically important when we're talking about actually decreasing the number of deaths from guns. And yet the heat around the things that actually matter is much less than the heat around some things that often are just, like I said, rounding errors to rounding errors on the real problem. That's my policy aside. Fair enough. Last note, by the way, on Judge Benitez, he was born in 1950, Havana, Cuba,

and immigrated to the United States as a child, attended college here, etc. An interesting footnote, perhaps, on why the Second Amendment is more meaningful to him than some people in the country, and for me, meaningful about why it's important to have judges from different worldviews, experiences on the bench. Some people snarked at that when Justice Sotomayor was appointed, and she tried in her own words to say why that was important. It is important. It just is. We want diverse views, life experiences, et cetera, on the court. I think this is a good example of why, even if I don't love parts of the opinion. Yeah. So it is, we'll put it in the, we'll put it in the show notes.

It is both a, it's an interesting lesson in, in, in my view of what to do and what not to do. What to do, take a careful look at the actual evidence of the case and these extremely important and prominent public decisions. Yes, do that. What not to do, sprinkling in a little bit of, you know, as I said, the hashtag America or this sort of cultural commentary that doesn't do much except kind of act as a tribal signifier, honestly. And when a guy born in Havana in 1950 talks to me about tyranny, I listen.

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Terms and conditions apply. Speaking of listening to people, David. Yes. So I told you I was in Bastrop, Texas on Thursday, but I didn't tell you why. Um, I was there to go to a dinner speech by justice.

Oh my gosh. I keep calling him justice. Will it because he used to be on the Texas Supreme court. He is now fifth circuit judge. Will it kind of a demotion in some ways, frankly. Like, I still want to call him justice. First of all, David, friend of the pod, right? I mean, maybe no better friend than Judge Willett, though he has not been on the pod. And I did mention that to him at some length over the course of our dinner.

I hope with some length and some vehemence. I mean, I threw my bread at his face. Is that acceptable? See, that's the kind of flourish that's good. So first of all, if you ever have the opportunity to attend a speech by Judge Willett, I want to state up front that you must go. You must hurry. You must get a front row seat. I hear speeches by judges, panels moderated by judges regularly, and judges often want to maintain their judicial demeanor. They want to avoid controversy at all costs. And so they opt for the boring,

like real boring, smart, but really, really boring. Even if Judge Willett were not a judge, he would be incredibly funny and engaging. But I think what most people were talking about after the speech was his, I mean, really rare, meaning like, I can't think of any time I've seen someone else be able to do this at all, let alone as well as he did it. He used a PowerPoint and was so seamless in his prepared remarks, his extemporaneous remarks, the PowerPoint that only added to never subtracted from his speech or, uh, ever broke his engagement directly with the audience.

It was really something, David, it was so fun. Everyone in the room was like just having a great time. Uh, it was, it was a roast in a way of the articles of confederation which cannot be roasted enough frankly i mean so one of the first powerpoint

slides you know that meme of the guy who's uh walking with his girlfriend and then turns around when he sees the hot girl and then the girlfriend catches him seeing the hot girl. Yes. And so it's like his face, like ogling hot girl walking by and her face outraged at his face. Yeah. So he is labeled as America. Hot girl is labeled as Constitution. And outraged girlfriend

is Articles of Confederation. Add in a couple glasses of wine, people were falling out of their chairs, David. It was so funny. Another great moment, he is talking about the beginning spirit of the Declaration of Independence. And his thesis, actually, is that the Declaration of Independence is the golden apple. that the Declaration of Independence is the golden apple and the Constitution is but the frame, the silver frame around the golden apple.

So a lot of the speech was dedicated to that. And he says, like the Beastie Boys said, you've got to fight for your right to pour tea. No, no, judge, judge, no. Judge, I know you're listening, judge. I know you're listening and no, no. Oh, David, I died. I died, that was it.

I don't even know what happened in the rest of the speech. It was so, it was so well delivered, that line. He did it far better than I could ever. Okay, but here's my question to you, David. His argument about the Constitution not being the center of the American experiment, but rather simply the frame around the Declaration. Also, he noted that one of his children has memorized the entire Declaration of Independence.

Impressive. I did not get to follow up asking like, did she memorize all the bullet points? I mean, there's a lot of them. The list of grievances is lengthy. I mean, it was the first Festivus. Oh, he used that too, David. Of course he did.

But so his solution at the end is about civic education, about how few high school students can pass the same test that new immigrants, new citizens to the country have to pass. Mandating things like that, for instance, in state education is happening in some states, not others. Mandating things like that, for instance, in state education is happening in some states, not others. And sort of focusing Americans on that level of civic education will make us, in his thesis, will reduce the negative partisanship. Hmm. i um i want that to happen i think that we should have better civic education i'm not sure that it's the hundred question citizenship test but it's a fine place to start as far as i'm concerned but do i think that it will reduce polarization in this country. I'm not sure that it will. All right, let me take the

Judge Willett position. I haven't listened to the speech, but let me steel man Judge Willett in this respect. I do think, and this is something I noticed in the Tea Party era and worried me. A lot of congressmen were running for office in 2010 and years following saying, we're going to repeal Obamacare, okay? With Obama still president. With Obama still president. Now, I'm sitting here knowing that even if you win the House and the Senate, there's a veto. And you can't override the veto without a supermajority. So Congress is not repealing Obamacare. It's not going to do it. And yet there was this immense frustration that began to build up in the grassroots that Congress wasn't fighting hard enough or they would have repealed

Obamacare. And so people were actually angry. And I talked to some of these folks. I mean, this is not fiction, guys. I talked to some of these folks. They were actually volcanically angry that Congress had not done what Congress could not do. It could not do it. And so if your frustration is located in the belief that Congress hasn't done something that it can't do, introducing a bit of reality, I don't know how much it would have turned down the temperature, but at least you would not have had volcanic anger that people aren't doing what they can't do. And this is something that I've seen quite a bit in politics in my adult lifetime, which is an enormous amount of anger that people are not accomplishing what they cannot accomplish.

And that a lot of the rage and frustration is due to a misunderstanding of our system and specifically checks and balances in our system and the difficulty in creating sustained change through legislation. And, and, um, and so that's something that I think is to, to his point, that lack of civic education, it leads people, it makes people vulnerable to deception. It makes people vulnerable to the puffery and hyperbole of the modern campaign. And so, yeah, I mean, how much anger did you hear at the Republicans in 2016? You've not done anything. Well, anything other than block Obama's entire legislative agenda.

They'd done that. They'd done what they could reasonably do. So anyway, I do see what he's saying there. There was just, there is an enormous amount of ignorance about our own system and what we can do and what we can accomplish within our own system. I will say that some of the percentages were depressing on the number of percentage of Americans who can name the three branches of government. Oh, yeah.

I'm curious, though, whether, in fact, when you dig into that, whether they're saying House, Senate, and presidency are the three branches, which is not correct, but is not quite the level of total ignorance. Like, you know, they're naming Popeye's fried chicken as the third branch of government. I think there is something a little bit more forgivable about House, Senate and presidency. Popeye fried chicken. Query. Yeah. Would American politics be better off if Popeye's was the third branch? You know what, David? I don't know if you saw this,

but over the weekend, Burger King said that for every chicken sandwich bought, they will donate money to an LGBTQ charity, quote, including on Sundays. Shots fired at Chick-fil-A. And I can't tell you, you want to talk about deflated? I felt so deflated when I saw that yesterday that we're going to turn what was such a joy for me in 2021, my chicken sandwich news coverage into just another political fight. But you don't have to do it, Sarah.

You don't have to do it. You can resist it. Well, what does resisting mean? Does it mean that I do try the new Burger King chicken sandwich to add to my reporting? Or does it mean that I don't try the new Burger King

chicken sandwich? Because A, I doubt it's going to come anywhere near the top of the list. And B, I don't want to reward Burger King's politicizing my chicken sandwich. Which is it? What do I do? I know. Well, and here's the nightmare scenario, Sarah. What if you try it? Oh, legendary producer Caleb says, don't try it because it's going to be bad. Yeah, I mean, I think that's true. But here's the nightmare scenario. What if you try it and it's fantastic? I know.

And then being an honest and ethical journalist, you report the facts on Burger King. Yep. Thereby cementing yourself all time forever as the ultimate rhino. Yeah. I mean, it's almost as if I said that the constitution didn't allow you to prohibit drag queen happy hours. Story time. What was it? Whatever. Wait a minute. The drag queen happy hour is not yet a controversy. Sounds fun. I'm sure that's coming. Yeah. It's the story hour, it's the story hour. It's the story hour.

Yeah, you would join me. If you endorse the Burger King, the Burger King chicken sandwich after this unnecessary, gratuitous shot fired at Chick-fil-A, then you would join me

in the eternal torment of endless rhinoism. So, yeah, there's no good answer. Well, David, some final thoughts on a new topic. While we were on this podcast, I got a phone call that went to voicemail. I just want to read you the voicemail. Hi. Okay. This is Officer Sarah Schultz calling you from the legal department. The very second you receive this message, you need to leave your work aside so that we can discuss about your case and take necessary action on this matter. In order to connect federal agent, press one and you will be connected to the concerned department.

If we don't hear from you, then we will be forced to take action against you. Press one and you will be connected to the concerned department. This stuff makes my blood boil, David. It was hard to get a lot of media coverage for this, but when I was at the Department of Justice, we really emphasized these elder scams and elder abuse. And like, oh man, we can laugh because like this is absurd and you should probably be able to speak better English if you're going to threaten people with what's called the Department of Justice, not the legal department. But man, people fall for this stuff all the time. It scares them. And it's not just the money,

it's the terror that they put into people. And it makes me so angry. And fake officer Sarah Schultz, the Department of Justice will be looking for you. And I hope you spend a long time in prison. Yeah. You know, it's interesting. I mean, one part of the multi-generational obligation that we have within our families is becoming not just, you know, sort of making sure that your parents receive adequate elder care and, you know, that they're spending their golden years as, you know, joyfully as humanly possible, which is a very old and, you know, noble intergenerational family obligation. It's also protecting your parents from scams. And then one of the things that I vowed with Nancy, I said, you know what? I don't want to be the grandfather who can't work the tech.

That's my resolution. I want to be the grandfather who trains the grandkids in the tech and i don't know if it's going to be possible so yeah david let's set our sights on something realistic but i'm i'm tech support for the family still and i'm a grandfather yeah your granddaughter isn't quite ready to learn the tech yet soon no doubt soon but um but yeah i mean when i was there one of the counselors for the attorney general while we were in the meeting on elder fraud got a call from her grandmother that her grandmother was convinced that she was in prison and that she needed to pay five5,000 bail to get her out.

I mean, it was so horrible while we're in the meeting. That's how totally pervasive this stuff is. So my PSA today, folks, if your parents are still alive, if you have an elderly neighbor, anything like that, as David said, do it joyfully. You don't need to be shrill about it. You don't need to hector them. You don't need to make them feel stupid. Make fun of these people, but make sure that the message is getting through to be on alert for it. Yeah, absolutely. Well, I'm not sure that

we have time for our Amy Chua conversation. Let's save it. Yeah, because it is interesting. It's an interesting exploration in professor-student relationships, not just that, but also the ability of professors, because the story is also about her husband, how provocative setting aside, because setting aside there have been harassment allegations leveled at her husband, setting aside the adjudication of those. There is also a lot of conversation about, was he too provocative in the way he raised sensitive issues in the classroom? How provocative is too provocative? Which is an interesting question. So we're going to talk about that. We'll table that. We'll talk about it at another date because it is very interesting. It is. And it's not just a law school issue. It's a college issue. It's a grad school issue. It's very interesting.

And while the Supreme Court has not announced that they will release opinions on Thursday yet, dollars to donuts, David. I bet we'll have opinions on Thursday. Yeah, we'll get our one immigration opinion on Thursday. And Sarah, don't you have a Shakespeare closing? We'll save it. We'll save it. Yeah.

Okay. All right. Well, that's it, y'all. Thanks very much for listening. Please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Check out thedispatch.com. Check out Sarah's awesome newsletter, The Sweep.

Check out my newsletter, French Press. And let's end with our new sign-off. Footnote, boy, did the silent majority come roaring back after we had the flurry of emails from Latin teachers across America and internationally saying that I had mispronounced sine die. Then I mentioned that it's not in Latin. It's in Texan.

Tons of people emailing and saying, it's not just Texan. Many states pronounce it sine die. So thank you, silent majority, for speaking up. We've gotten a lot of emails over these seven letters. And it brings me great joy. So, signing out, y'all. Thank you.