Advisory Opinions - God and Guns, Once Again

Episode Date: November 5, 2024

Sarah and David kick off the podcast with (boring?) questions the Supreme Court will seek to answer this term before turning to two very American cases about education, religious schools, and guns. The Agenda: —Last week's AO episode —David Lat, we do this podcast with joy —Questions before SCOTUS —Loffman v. California Department of Education —Hanson v. District of Columbia Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to Advisory Opinions. I'm Sarah Isger and that's David French. And if you're listening to this right when we drop it, it's election day. And so to celebrate election day, you have decided to listen to a legal podcast instead of the infinite number of political podcasts that are going to walk through polling with you today and early votes and absentee ballots. We're not going to do any of that, David. No, and your mental health is going to be better as a result. And you'll be just as informed about what's going to happen tonight also.

That's exactly what I was going to say because all of that stuff they're walking through right now on polling, et cetera, you're getting results in a few hours. Information, not wisdom. Exactly, just wait, just wait. And now bask in the glow of legal knowledge. All right, so first, David, you wanted to take a victory lap on our coverage from the last episode about Pennsylvania.

And to refresh people, we had talked about two cases that were pending at the Supreme Court, one out of Virginia, which actually was decided while we were recording, in which the Supreme Court did, in fact, reverse the Federal Circuit Court in Virginia about voter rolls. And we talked a little bit about why we thought they did that, even though three justices noted their dissent, but there were no writings on that. And so, in covering Pennsylvania, which was about whether you could cure a mail-in ballot with provisional ballots, despite the statute not saying that, the Pennsylvania Supreme Court had said, yes, of course you can. And we said, David, we think that the Pennsylvania Supreme Court got this wrong.

And we also think the US Supreme Court will not do a damn thing about it. And we were correct. This US Supreme Court unanimously did not do anything about it. There was the three conservative justices where there was a short statement where they explained their reasons for rejecting the request. They said it's a matter of considerable importance, but even if they agreed with the applicants, we could not prevent the consequences they fear because the only state election officials who are parties in this case are the members of the board of elections in one small county. We cannot order other election boards to sequester affected ballots. So this was, as we said, Sarah, they're leaving this one alone. And this does not mean, by the way, it does not

mean that the Pennsylvania Supreme Court properly interpreted Pennsylvania law. What it means is this is not really the court of last resort for Pennsylvania law is the core issue. And there's certainly no indication that any substantial that that a majority of the court thought that this would rise to that level and more V Harper of the final emergency sort of backstop level of review. So I thought this was very, very, very predictable. David Latt in his original jurisdiction newsletter, by the way, this week, he hurt my feelings

and I just wanna call him out for that because here's what he wrote, David. For those of you who really do wanna get into the weeds of the past week of election related litigation, listen to Thursday's episode of advisory opinions. Sarah Isger and David French dutifully marched through cases relating to Pennsylvania, Virginia, Nevada, Michigan, and Mississippi. But keep in mind that some of their discussion has already been overtaken by subsequent events, which only reinforces my original point about pointlessness.

How dare you, David Latt. Of course, all of this is largely pointless, but we didn't march through dutifully, we marched through joyfully. That is, I know I love that term dutifully, like it was a march of grim determination. So yeah, that's how that goes. All right. So we're pleased to put a bow on all of that. All future litigation, David, will be either election day related at this point,

or post-election, of course, as we go through these various contests potentially. And my spreadsheets are ready and waiting, everyone. And again, I just want to remind you that this was my job in 2012, was to be ready for a recount in all of these swing states for the Romney campaign. And I had binders and spreadsheets and lawyers on speed dial, hundreds of them across the country. And on election night, I went to bed,

I think it was just after midnight. Oh man. Oh man. I will never forget. I will never forget that evening, Sarah, as long as I live. But I've been waiting basically, you know, it's like to finally use my spreadsheets. I'm not rooting for it. I'm just saying I'm very, very ready. Well, let me, let me just say this. You don't normally say this when you're like in the game. you don't want to be in the Superbowl. So last last in 2020, all of these election challenges was like the advisory opinion Superbowl. We had to be on top of every last twist and turn of some of the craziest legal theories you'll ever hear. And I don't want that.

I don't want that. I think in many ways, we're at peak performance when we were going through't want that. I don't want that. I think in many ways we were at peak performance when we were going through all of that. But that meant that we were dealing with a weeks, weeks of continued controversy after the election. And that would be really bad for us as a country. A country, yes. As a podcast, no. As a podcast, no.

But I love the country more than the podcast, Sarah. Oh, fine's a podcast. No, but I love the country more than the podcast, Sarah. Oh, fine. Me too. Okay, let's talk equal time. Vice President Harris was on Saturday Night Live for about three minutes with Maya Rudolph looking in the mirror and Kamala Harris looking back at her. And the Internet exploded with comments on equal time. Now, this is not the same as the fairness doctrine. The fairness doctrine is over and done with and that's been decades.

But the equal time doctrine actually is still very much in existence because of broadcast networks using basically a government, monopoly is not quite the right word, but the government gives them these airwaves. In exchange, they have to provide, equal time, but I want to tell you some of the words of equal time and explain why in our Slack channel, I said bottom line up front,

no, not an equal time violation. However, this walks closer to the line than what I'd seen in the past. And it was interesting to me. This is reading now from the FCC's website. FCC rules seek to ensure that no legally qualified candidate for office is unfairly given less access to the airwaves outside of bona fide news exemptions than their opponent.

Equal opportunities generally means providing comparable time and placement to opposing candidates. It does not require a station to provide opposing candidates with programs identical to the initiating candidate. Alright, so there's a whole lot of terms in there that you can really pull apart. Legally qualified candidate is one of them, not an issue here since Donald Trump is obviously a legally qualified candidate. But as you're thinking about equal time in the future, just know that that has endless definitions and permutations. Really what this was sort of meant to prevent David was Tom Brokaw running for president and being able to, you know, sit there on the evening news every night, you know, for the whole year.

And then someone who was running against him wouldn't have that opportunity. So they even give that example in the FCC, not Tom Brokaw. God bless you, Tom Brokaw. I was a Tom Brokaw household, David. What were you? Peter Jennings. How interesting. Yeah, yeah.

And you were one of the three. I mean, there was rather broke-aw Jennings and you were one of the three. And yeah, people were loyal. That's just the way it went. I was not only a broke-aw household, but then when he came out with his greatest generation book and I was, I don't know, 17 to 19, somewhere in there,

I like ate it all up. Cause I was like, oh my gosh, it's Tom Brokaw. He's incredible. Anyway, the FCC mentions the possibility of a TV or radio personality running for office and notes that the station is not required to seek out opposing legally qualified candidates and offer them equal opportunities.

In such a situation where an honor personality decides to run for office, this could lead to requests for equal opportunity by opposing legally qualified candidates. In that case, a station may also opt to ask that individual to take a leave of absence from his or her on-air duties until such time that she or he is no longer a legally qualified candidate. Doing so is not a requirement, but is a business decision that is totally within the discretion of the station. Okay, so David, a few notes as this applies to our world. After an appearance by one candidate, other candidates must request equal time within seven days. Stations do not need to inform other candidates that they are entitled to equal time. So this is why, by the way, the immediate, this was an equal time violation was simply false.

Because you don't have to tell them in advance, you don't have to offer it to them in advance. They have seven days to then come to you to request equal time. Right. That you don't have to seek them out, they have to seek you out, the candidates. But this is why I was saying like,

ooh, kind of close to the line, the Saturday before the election, when there is no other Saturday coming up, could look like you were trying to skirt the equal time because the seven days, obviously, if a candidate used all of that would fall outside the election. Let me read a little bit more here.

Equal opportunity usually means that a station must make the same amount of time available to opposing candidates, but the term can mean more than just the same amount of time. A station might also be required to provide opposing candidates with the time during a portion of the day when there is a comparable audience. A station does not need to provide opposing candidates with time during the same program. For example, need to provide opposing candidates with time during the same program. For example, in November 2015, then presidential candidate Donald Trump was the guest host of NBC's Saturday Night Live. I remember it. I remember it. Trump appeared on the program for just over 12 minutes. After the broadcast, the campaigns of

four rival Republican candidates were provided free 12-minute prime time slots on NBC affiliated stations in Iowa, New Hampshire, and South Carolina during a subsequent weekend. The rival candidates were not, however, invited to host Saturday Night Live. That, to me, actually is fascinating because that's not a comparable audience. No. Saturday night primetime, but only in three markets that's not Saturday night live? Yeah. So that's interesting. But David, as it turns out, this was all for naught.

It turns out NBC already had this well handled. Trump ran a video during NASCAR and also Sunday Night Football post-game show as part of their equal time provision in comparison to Kamala Harris appealing on SNL. What's funny about that is not actually the same audience, a better audience. Bigger, I was just about to say, are you kidding me?

If I were the Harris team, I'd be like, wait, what? We want equal time. I was gonna say Sunday Night Football, if you look at the list of most watched shows in the United States, like just normally, I'm not talking playoff football, but Sunday Night Football is always up there and Saturday Night Live is not.

Yeah, if I were the Harris team, I'd be like, no, I want equal time. Exactly. You got 10 times the audience. Are you kidding me? Yeah, that is wild. Cause now the post game show, the audience obviously drops off, but not that much. And it is actually the kind of audience

he really wants to hit. Cause a big part of his audiences or big part of his strategy is turning out those guy voters, male voters who generally are not reliable voters. And that's going to be a lot of your post-game NFL audience. Yeah. And interestingly, you know, the only other part of equal opportunity that I thought we should mention are the news exemptions.

Because before I knew about the Sunday Night Football, I was like, well, that's really interesting because the exemptions, i.e. it does not trigger equal opportunity rules, bonafide newscasts, interview programs, certain types of news documentaries, and on the spot coverage of a bonafide news event. So I was reading that and was like, so if they had had her on Weekend Update,

is it the sort of time, like can we just look at Weekend Update and be like, look, that is a news program. Or do we have to look at all of Saturday Night Live and say like, well, I wouldn't say all of Saturday Night Live would qualify like Saturday Night Live is not a news program, even if a portion of it probably is.

I was like, well, that would be an interesting lawsuit if she went on just Weekend Update and they argued that that was a bona fide newscast. Yeah, yeah that that would have been a fun conversation to have. Is this an actual newscast? Why does no one tee up the interesting legal conversation? I mean seriously. Speaking of which we did have lots of lawyer jokes in the comments David I thought I would pick out just a few. Okay. The first one, not so much a lawyer joke as sound legal advice. Dance like no one is watching. Email like it may one day be read aloud in a deposition.

That is the most I would add email, text, message, post, all of it, all of it. And if you're going to be criming, I would add Google search. That's true. Do not Google search how to dispose of 106 pound body. Oh, I wonder how many chat GPT questions have already been asked. All right, here's another one.

A Brit goes into a lawyer's office and asks, how much do you charge? 90 pounds for three questions. That's rather steep, isn't it? Yes, now what is your third question? Ha ha ha. Ah, okay, okay, that's good. And then this one I enjoyed.

I stopped telling lawyer jokes. Lawyers didn't think they were funny and other people didn't think they were jokes. Ha ha ha ha, I like that. All right, so David, we have two circuit opinions to get to. The Supreme Court is coming back into oral arguments this week, Monday, Tuesday, Wednesday, and then just Tuesday and Wednesday for next week because of Veterans Day. Boy, David, even for our podcast, this leaves something to be desired once again for oral arguments. I'll just read you some of the

questions presented. Okay. Whether reimbursement requests submitted to the E-Rate program are claims under the False Claims Act. Sorry, no. Does the phrase entitled to benefits used twice in the same sentence of the Medicare Act mean that the same thing for Medicare Part A and SSI

such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received? People will riot over the answer to that question. Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence as Six Circuits hold, or clear and convincing evidence as the Fourth Circuit alone holds. I'm going to be up all night with that one. Our risk disclosures, actually,

this one is an interesting case. We'll talk about the opinion. We may talk about the oral argument. This is about Facebook's hack in the Cambridge Analytica situation. And then afterwards in their 10K filing, when they list risk factors, they don't mention that the thing already happened.

They just list it as a risk factor instead of like. Yeah. So are risk disclosures false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm? So, you know. That's actually interesting.

I'm actually into that. Yeah. When a non-citizen's voluntary departure period ends on a weekend or public holiday is a motion to reopen, file the next business day sufficient to avoid the penalties for failure to depart. This is the case, David, where I think the Supreme Court is trolling us. They're taking so few cases for cert any given year. And then we're like, but there's all these circuit splits and what about qualified immunity? And they're like, ha ha, let's take one that's just a question about whether you have to file on a Friday or a Monday.

But you know what, Sarah, I have this sneaking suspicion. That we're going to care deeply? No, no, no, no. After all of the culture war stuff that the Supreme Court has been weighing into, and by the way, note how little culture war stuff there is this term so far compared to the previous terms. I feel like the end game for Justice Roberts is an entire term that is exclusively

these kinds of questions. Like he just, I just don't want anything but nitpicky procedural questions for a full term. Thank you. We all get to rest. Um, but yeah, I, I do feel like he's there. I do feel like the Supreme court is deescalating its culture war cert grants, maybe in part because it believes it's kind of settled a lot of it.

Well, see, I think that they're just front loading ahead of the election in case there's a Bush-Vigor type problem, so that way they're under the radar until then, perhaps. Okay, this one I actually am super interested in. It's not a culture war case, but I find it fun. Whether a crime that requires proof of bodily injury or death, but can be committed by failing

to take action has as an element the use, attempted use, or threatened use of physical force. That may not sound interesting, but this is the question of whether a felony in New York law, I think it's New York, it might be New Jersey, and you'll know why I'm not sure in a second, whether a felony qualifies as a crime of violence under federal law for enhancement purposes, if the state law is second degree murder or something. But you could qualify as second degree murder if you simply left a baby face down in a puddle. So it could be an omission. The facts in this case are a mob boss who killed someone.

Okay, so this is going to be a bad man stays in jail doctrine. It's you know, I don't even think it's being tested here. I think this is going to be a pretty funny oral argument, but I'm pumped. Wow. So just the most unsympathetic. argument, but I'm pumped. Wow. So just the most unsympathetic. Yeah. This may be a drug cartel lord would be more unsympathetic, but it's it's a contest. It's a famous mafia family.

I'm not going to remember the name, but like, you know. Yeah. Yeah. So we'll cover that oral argument, y'all. I'm pumped. And then last up, whether plaintiffs seeking to allege science under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents,

pleading requirements. Wow, Sarah. And that's it. It feels like you just went through a litany of reasons not to listen to this podcast in the weeks and months ahead. We're gonna cover one, maybe two of the oral arguments and one, maybe two of the opinions when they come out from that.

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Now we're moving on to the main course, and it is in our wheelhouse. If there were ever two cases in our wheelhouse, one is the Ninth Circuit decision about free exercise clause in California law and disabled children. The other is the DC Circuit and high capacity magazines. So it's guns and God, David. Yep. There are these cases. So the the night circuit religious liberty case, I think is actually, it's fun to talk

about but there's not a lot to talk about because after all of the precedent that we've already established this California law was, it was not going to stand. So let me read it. Yes, yes, go for it. At issue in this case is the California statutory requirement that a school eligible to receive, you know, if you have a disabled child, they're still entitled to a free public education. And if your public school can't provide that, you can still get that benefit at a private school under California law. So to qualify as one of the schools eligible to receive these disabled children, children with a disability, I should say, they have to be non-sectarian to even apply for certification. The state defines a non-sectarian entity as one which is not owned, operated, controlled

by or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility and whose articles of incorporation and or bylaws stipulate that the assets of such agency or corporation will not inure to the benefit of a religious group. So what's interesting about this definition, David, as I tried to highlight with my voice, is it doesn't matter if the school doesn't teach religion at all. Right. It only matters that it's being run by a religious group in any aspect. And I'll be curious when we

get to the end of this, whether you think that if they changed that definition to be about the character of the schooling itself, who does not provide or primarily provides non-religious education or any number of other options where it's actually about the education that the child would get and not about just the vibe of the school. Right.

Because think of how many Catholic schools aren't all that Catholic. And in this case, it's two Jewish schools. Yeah. Yeah, this is a unanimous opinion from the Ninth Circuit. And they walk through Trinity Lutheran, Espinosa. I thought I would just summarize that and then open you up, David. Sure. So Trinity Lutheran, Espinosa. I thought I would just summarize that and then open you up, David.

Sure. So Trinity Lutheran is 2017. The Supreme Court held that the Missouri Department of Natural Resources policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program violated the free exercise clause.

The Supreme Court rejected Missouri's argument that the policy did not meaningfully burden the Church's free exercise rights. The Court reaffirmed its decade-old conclusion that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. Because Trinity Lutheran Church was put to the choice between being a church and receiving a government benefit, even one as seemingly inconsequential as recycled rubber tire chips, the law at issue imposed a penalty on the free exercise of religion that must be subjected to the most rigorous scrutiny.

Then we've got Espinosa v. Montana Department of Revenue in 2020. There, the Montana legislature established a program to provide tuition assistance to parents who send their children to private schools, granting a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. Petitioners sought to use the scholarship at a religious school. The Montana Supreme Court struck down the whole program, relying on a clause in the state constitution which forbade aid to a school controlled by a church, sect, or denomination. This was one of the Blaine amendments,

David. The court reversed the judgment of the Montana Supreme Court, observing that placing such a condition on benefits or privileges inevitably deters or discourages the exercise of First Amendment rights. Further, the no-aid provision penalized parents' constitutionally protected choice to send their children to religious schools by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one. So, their summary was, just as Trinity Lutheran was put to the choice of participating in Missouri's playground resurfacing or retaining its religious affiliation. Any religiously affiliated school seeking to enter an NPS contract in California must choose whether to maintain its religious affiliation or to

serve as an NPS eligible school for consideration by the state in determining whether it may be in the best position to provide this student with a disability for an individual child. Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are owned, operated, or controlled or formerly affiliated with a religion. As a result, families like the parent plaintiffs who would otherwise advocate for placement in religiously affiliated schools are unable to do so solely because of the would-be ban

on religious affiliation, as we have previously recognized, a statutory scheme that requires a family to forego a sectarian education in order to receive a special education benefit otherwise available in private school setting, imposes a burden on their free exercise. And David, I think what is needed is an explanation then for why all public school money doesn't have to be equally distributed to private schools, right? At the point that we're saying various scholarship programs do, playground resurfacing does, and now, an IEP benefits basically to have free education

at a private school. So have the state pay for the entire tuition. Also has to be at a religiously affiliated school. Then why can't I, as just a parent without a child with a disability say, well, I would also like free tuition because you pay tuition for the students who go to public school, that is tuition.

One key element of this case is if I'm a parent with a kid with disabilities, I'm entitled to a free public education. And so if there is, in fact, a public education available that meets the needs of the child, then the private school element of this doesn't kick in at all. It's only if that free public education is not actually available to the parent of the child that they're then able to appeal to the private element of this.

So the private element kicks in only if the public school is not able to fulfill its obligation. Yeah, but back up with me a second. Sure. The state pays public schools per student that attends. Why can't we just say that that payment per student that they refuse to offer to private schools and religious schools that offer the same education also violates the free exercise clause?

I.e. why can they make the distinction between public and private schools and why doesn't that violate the First Amendment? Yeah, well, that's a really good question. And so the question typically has been, okay, if I'm a public, if I'm a state, I can operate a state-run public education system that entitles every resident of the state to free education.

I am not required to affirmatively fund private education. That has never been the legal obligation here. Now, if you then say to cover the gaps of the public education that we're fulfilling, so let's go with the Carson v. Macon, which is this is the case out of Maine, where we talked about this. This was an advisory opinion's favorite, where we talked about this, this was an advisory opinions favorite, where we learned in the course of that, that Maine is our most rural state,

which I would have said Alaska, but as far as you're talking about residents, percentage of residents who live in a rural setting, Maine is our most rural state. And so the public education system does not extend uniformly throughout Maine in a way that allows all students access to this equivalent education.

So they created a system where you could use money at private schools, but not religious schools. And so the argument has never really been that once the court funds a free public education, it also has to fund sort of the educational menu of the parents' choices. It's just that if it goes that extra step into funding private education,

then at that point, it cannot discriminate on a sectarian basis. And I just, Sarah, I just don't necessarily see a constitutional argument that says that if the state is going to fund free compulsory public education, it has to fund whatever school system, whatever private school that individuals want to attend. Now I'm fully on board with the idea that once you extend and say, we're providing vouchers, we're providing tuition assistance, we're providing tax credits.

Once you step out of that public school arena and say we're funding or providing resources for private schools, then you can't discriminate on the basis of religion. You gotta fund equally as long as it's meeting, that school meets the objectives, the secular objectives of the public program. Uh, I just, um, not necessarily seeing a constitutional avenue that says that

once the school, once a state creates a compulsory education program and provides public education, free public education that allows every family to meet the compulsory education requirements that has to fund any school, private or public, that wants to meet that compulsory education requirement. I'm just not seeing where that's going to be a constitutional requirement. This case, however, where you say, well, if we cannot provide that free public education for this child with disabilities, we're going to enable them to have an equivalent education to private school. As long as it's non-sectarian, this was not going to fly post-Parson v. Macon, post-Espinoza,

post-Trinity Lutheran. I mean, it's just not going to fly. And what it reminds me of, Sarah, is in sort of military language, you often talk about mop- up operations. And so you win a big victory. You win a big fight. And that doesn't mean all the fighting is over. It just means that everyone knows how this thing is going to turn out now. And so once you had Carson, once you had Espinosa, once you had once you had Trinity Lutheran, if you are a state legislator and you're creating a publicly funded program and you're adding this condition to it, non-sectarian, if you're adding that condition non-sectarian, you're gonna be in a world of hurt

if there are sectarian institutions that can fulfill the requirements of the public program. And that's a really important part of this, Sarah. It's not just that a institution gets free standing access. Do this find they have to show that they can provide the kind of education. That isn't that is required under this program and i think that's where. This sort of gets to the second half of your question which is okay wait a minute. What if they said we're just not funding the religious instruction, religious-oriented

instruction? That part of it, that's where you're going to get to, you know, Lock v. Davey, this case going back years and years. I still think that is going to be suspect as long as the private school that is seeking the funding is providing the kind of education necessary to treat the disability. So as long as they are providing the necessary education necessary to treat the disability, the viewpoint with which they do it, or sort of the religious versus sectarian versus

non-sectarian way in which they do it, I don't think is going to be or should be materially relevant. What is relevant is are they providing the education to treat the disability? So that makes perfect sense in the vast majority of cases where you're talking about, you know, one of your classes during the day will be religious instruction for an hour.

So you've got math, science, English, religious instruction, gym, yada yada. But one could imagine a school where the whole thing is religious. So we teach reading, but only by reading the Bible. We teach math, but only by, I don't know, adding up who begat who and counting number of generations. Right. I'm not sure. The number of plague. Begatting 101, begatting 201. Yeah, where it's like so religious.

It's different than a secular education. Would that make a difference? Because what I'm hearing you say is they're teaching reading. It doesn't really matter how, because that's what the disability requires is simply that they're willing to teach a child with a dyslexia, for instance, reading. So let's suppose, for example,

just I'm making this up listeners. So I'm sure we have special needs experts who are listening. We have experts of every stripe who are listening. So I'm making this up. I don't know if it's an effective learning method for people with various kinds of learning disabilities, but let's suppose that you had a course of instruction where it was very, very important to deal with a certain disability through memorization. For example, you had to improve short-term memory, for example, and you had to really work that muscle.

And in one school, a sectarian school, that memorization might be, they're going to memorize Presidents in order. Presidents in order, a series of Shakespearean sonnets. But at this school, you're going to memorize the first chapter of Leviticus. I think that would be fine. So what you're talking about is you're talking about the actual instruction is memorization. The fact that they use a ancient text, a scripture for the memorization, because remember, no one's being forced to go to this. This is not, hey guys, you can't get an equivalent public education, so you have to go to this

yeshiva. That's not the way this is working. These are people who are choosing this. And as long as... No, but yes, depending on the community, one could imagine that the public school can't accommodate your child. And the only school that can is the yeshiva. So you're not being forced to go there

unless you want your child to be able to read. Yeah, that's an interesting, to me that's an interesting kind of as applied challenge. That is an interesting question. If I have no public education available to me and the only equivalent education is a sectarian education that is- Which I don't want. Yeah.

Which you do not want. I think that that's an interesting question, especially since there is an actual legal obligation imposed on the state to make sure that all of this education is available. So I do think that there is a hypo. There is a hypo here where I think, huh, and you just nailed the hypo. Also, I feel like a lot of people listening are imagining a Christian, a Catholic school,

a Christian school, or perhaps these yeshivas, maybe. But just to remind everyone, you know, this is what I wrote my law school note on. What about a school that is, you know, quote unquote teaching Sharia law? And just a note for our listeners who are like cheering on that you can go to the Catholic school with government money. Just know that also will equally apply to schools of religions that you don't ascribe to, that are minority religions. As long as they have a school, they are equally entitled to compete for these students, to show that they are also able to accommodate a child with disabilities, for instance, or these scholarships in Maine or Montana, et cetera. I just like noting that, David,

because some people forget the goose, the gander, all of that stuff. Well, you just outlined why the rights split in some interesting ways, because if you roll back the clock 30 years, jurisprudentially, religious speech was post-Smith second-class speech. Religious expression was second-class expression. And so there was just this enormous unity on the right that that's wrong. And then when after 25 years of litigation,

we got to a point or longer, 30 years of litigation, we got to a point where religious speech and secular speech are really treated equally, which was the argument I made for 20 plus years litigating. Religious speech isn't second class speech. Religious citizens aren't second class citizens. Legal equality. We got to a point where we hit legal equality by almost any conceivable measure, and now there's a bunch of Christian conservatives going, nope. That was the way station on the way to Superiority that was the way station. We had to get back to equality before we could get back to the rightful state of

Authority and a lot of us were like whoo, we got to equality great job Well done guys and so this was part of the I think part of the split on the right and you see it in the free speech arena where So this was part of the, I think part of the split on the right. And you see it in the free speech arena where in some of these super red states, you know, that good for the goose, good for the gander. Wait, you mean I've been advocating for the academic freedom of my conservative professors and then we have these like super woke people in CRT and well, they can't say it. Not that they can't say that.

And so it really is that good for the goose, good for the gander analysis. Lots of people fail that, Sarah. Well, and it's also, I think, the split in the legal right, as you sort of hinted at, but this is the difference between sort of legal conservatism, as originally understood as a process, to originalism and textualism and things like that versus the common good constitutionalism. So originalism as a process would say, ooh, free exercise of religion, that's going to include all religions. But the common good constitutionalists would say, no, because Sharia law is not sort of good for building the type of citizens that will contribute to our Judeo-Christian society. And therefore, we can subsidize Judeo-Christian education because that adds to good citizenship.

But we can not apply that to Muslim schools, for instance, Islamic schools in the country. I'm using a bit of a broad brush here, but that is some of the difference. Right, right. No, but it is very, very interesting. You can get a lot of consensus agreement on one side when you are being treated, when the treatment is inferior. But then once you achieve equality or parity in treatment, that's

when you often begin to see just a real diversion between what you might call sort of the right liberals, left liberals, and the far right and the far left. Because the far right and the far left have no interest in legal equality. These are movements and they have very little interest in process, quite frankly. Its outcome, its dominance, and they have very little interest in process, quite frankly. Its outcome, its dominance, and they will often use the constitutional argument to achieve a certain degree of parity and then push from there, you know, this is the common good constitutionalism, this is elements of critical theory where they just push from there into outright illiberalism.

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Reduced wait times, safer patients, advancements in technology, the end of hallway medicine. We're finding it all here at Humber River Health. Help us innovate to keep health care alive. Donate at healthcarelives.ca. All right, let's move on to this Second Amendment case. DC banned the possession of magazines that hold more than 10 rounds of ammunition.

Interesting panel opinion, David. I love a panel opinion that splits a Reagan appointee from a Trump appointee. Perhaps to the conversation we were just having, although not precisely here. Not precisely, yeah. that splits a Reagan appointee from a Trump appointee. Perhaps to the conversation we were just having, although not precisely here. Not precisely, yeah. Justin Walker is in dissent,

and senior judge Doug Ginsburg is in the majority. And you may remember Judge Ginsburg's name because he was nominated to the Supreme Court after Bork's nomination failed, and he had to withdraw his nomination because he admitted to smoking pot. How quaint the 80s were, David. Yes, how quaint.

All right, I'm going to read a little bit from Justice Walker's dissent to get us into this conversation. Americans have in their hands and homes an estimated 100 million plus 10 magazines. They likely account for about half of all magazines in circulation, and nearly half of gun owners have owned them. These magazines come standard with many of the nation's most popular firearms, including

millions of semi-automatic pistols, the quintessential defense weapon for the American people. I could say more, but if plus 10 magazines are half of America's magazines, owned by half of America's gun owners, and often standard on Americans' preferred weapon for self-defense, what else needs to be said that is more than enough to show common use for lawful purpose? In the context of a complete ban on a category of arms, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. Heller held that because handguns are in common use, DC's complete prohibition of their use is invalid. For the same reason, DC's ban on plus 10 magazines is unconstitutional.

And that could have been a very short dissent, David, but it goes on at some length because we're going to have that problem again with text history and tradition. Both the majority and the dissenter are trying to faithfully apply text history and tradition, but you're going to have that vertical problem about generality that I've talked about and that horizontal problem about when? Just post-ratification after 1791 and the Bill of Rights? How long for?

So David, let me go to just some of the analogs that the District of Columbia and their amici were putting forward. There were limits on the storage of gunpowder during that time. Here, even the majority says, those regulations are not relevantly similar because they were purely fire prevention measures that affected firearm capacity only incidentally, if at all. The suggestion that they limited the Second Amendment right to keep and bear arms is silly. So that was

pretty much shot down. Next, maybe this is just a time place and manner restriction? Take trap or spring guns. The district argues their tradition of banning the setting of guns as a trap indicates a tradition of regulating unacceptable levels of risk of harm to innocent bystanders. What about laws that prohibit discharging a firearm within a city after dark? Fair no better, they say. Unlike the burden the magazine cap imposes upon the right to bear arms, modest though it is, we doubt city and nighttime prohibitions burden the right to armed self-defense at all. Self-defense surely would be a complete defense to a charge under those statutes.

Indeed, the purpose of these laws is akin to a prohibition on breach of the peace. All right, next up, prohibition error regulations. These are your Tommy gun type things. Many of those laws did not regulate magazine capacity itself. Rather, they address the combination of these high capacity magazines and automatic firing effectively and often explicitly directed at machine guns. Restrictions on weapons particularly capable of unprecedented lethality. Now, here's the rub, David. Here's where the majority is gonna differ substantially

from the dissenter. The majority is quite intrigued by a history of restrictions on bowie knives or similar blades and to a lesser extent pocket pistols. Together with Amoky states, the district recounts that in response to rising murder rates and an outpouring of public concern, nearly every state in the union restricted bowie or similar long blade knives in some manner, whether by outlawing

their possession, carry sale, enhancing criminal penalties, or taxing their ownership. Let's come back to that, David, because now I want to go back to the dissent. And the dissent does a nice job, I thought, of walking through the past cases. So let's just talk about the four things that he says Heller stood for. Heller's that 2008 case, actually about DC banning handguns. Yeah. Here are the things that stood for one, there is in general an individual right to keep and

bear arms. Two exceptions to that right depend on the history and tradition of gun regulations. Three, there is no history and tradition of banning arms in common use for lawful purposes. And four, handguns cannot be categorically banned precisely because they are in common use for lawful purposes. From there though, David, he notes that it felt like the circuit courts really started finding ways out of Heller. He notes that in the Ninth Circuit, for example, the government at one point enjoyed an undefeated 50 to 0 record against Second Amendment challenges.

Wow! So, he says, first, why and how the regulation burdens the right are central to this inquiry. The government must identify traditional laws that had a similar justification and imposed a similar burden when compared to the challenged modern law. If earlier generations addressed the same societal problems but did so through materially different means, that could be evidence that a modern regulation is unconstitutional. Spoiler alert!

This is in the dissent. This is a problem for the majority's two analogues. Second, to establish a historical tradition, the government needs analogues that represent the collective understanding of Americans. So outliers don't count. Spoiler alert! This is a problem for the majority's state law analogs. Third, when it comes to interpreting the Constitution, not all history is created equal. The Second Amendment codified a pre-existing right belonging to the American people,

one that carries the same scope today that it was understood to have when the people adopted it. So its scope is pegged to the public understanding of the right when the Bill of Rights was adopted. To be sure, post-ratification history can be important, especially when it's close in time to the founding. The constitutional text is vague. The founding era history is inconclusive. The post-founding tradition is well established, and just judicial precedents give no guidance.

Put differently, post-ratification history matters when the only alternative is policymaking from the bench. But evidence of tradition unmoored from the original meaning is not binding law, and scattered cases or regulations pulled from history may have little bearing on the meaning of the text. Now he gets to the majority. The majority invents a regulatory category, restrictions on weapons particularly capable of unprecedented lethality. Then it says such restrictions are consistent with two historical analogues. I agree with the majority that the history and tradition test allows for historical analogues less specific than say, bans on plus 10 magazines. After all, the Second

Amendment permits more than just those regulations identical to ones that could be found in 1791. But the history and tradition test demands a level of generality more specific than the majority's preferred category of restrictions on weapons particularly capable of unprecedented lethality. That's a lot, Sarah. Let's say you, David, because this seems once again to highlight the problems, right? It's the generality problem and the time problem. Once again, the Bowie knives and banning Bowie knives

in nearly every state on the one hand is easy to laugh off. It's a knife, but we're looking here at arms. And in that case that we looked at from the Massachusetts Supreme Court, they held that knives were arms. So that is a restriction on arms because of its particularly, you know, lethal nature.

Uh, huh. I'm also, I will tell you, concerned about this common use. Because of its in common use now, like, does that just mean that states or the federal government must regulate something as soon as it comes in the market? Because let me read this one part from The Descent. Because handguns are in common use today, law-abiding citizens have a Second Amendment right to keep them in their homes for self-defense.

It didn't matter whether DC residents could already keep other guns. It only mattered that handguns are in common use. Nor did it matter whether handguns were once unusual. It only mattered that they are common now. But doesn't that mean that a ban on handguns would have been constitutional when they were uncommon, but now it's not constitutional because they are common? Yeah, Sarah, this is why, however we end up with text history and tradition, we're not going to end up with it where it is now. I mean, because it just doesn't work here. So here you have a situation where you have a technology, the ability to fire semi-automatic rounds becoming cheap and easily available, easy to use, minimal jamming or, you know, gosh,

you can buy some firearms now, barely even clean them, and they'll fire hundreds and hundreds and hundreds of rounds without jamming. And this sort of idea that, okay, wait a minute, a technology that did not exist when the amendment was written, so pre-ratification, immediate post-ratification history is gonna be totally off point.

And so then you're doing this thing where you're going and saying, well, what about the Bowie knife? And some people might be saying, wait, why would you go to a Bowie knife or a Bowie knife, however you wanna pronounce it? You go to that because you're looking for something, was there anything that existed where people had the ability

to harm a lot of people in a short amount of time? Because it wasn't a flintlock pistol. It wasn't a flintlock musket. You couldn't do mass shooting with that. How would that work? You fire around and then you go, hold on, I've got to, let me pull out the ramrod here. I got to figure this out.

No, no, no, no, no. That is not how this would work. So the Bowie knife was something that would allow someone to hurt a lot of people in a short amount of time. That's why people go to that as an example. And so that's the only thing that I can think of because I'm completely with the majority that a storage of powder was, that was a fire hazard issue. That was not a mass murder issue.

So what are the mass murder issues that you could go back and look at? And then the other element here is, right, frankly, the spree killer, as the majority stated, didn't emerge until, I believe, the first one was maybe 1949. So you're talking about a criminal phenomenon that didn't even really exist at all,

applying a technology that didn't exist at all, not for a long time post-ratification, and then you're gonna tell the courts, well, you gotta look to immediate pre and post-ratification practice. How does this make, how does any of this make sense? You're starting to see the chest, they blew through Chesterton's fence

on tears of scrutiny here, just bulldozed it. And now we're left picking up the pieces. But the, you raise the really important issue Sarah, which is, okay, if the rule is common use for lawful purpose, and then that ends the inquiry. Once it's in common use for lawful purpose, that then that ends the inquiry. Once it's in common use for lawful purpose, that's just it, that's just over. That really does raise as soon as you have a new technology

and it becomes popular. How popular does it have to get before the window closes on regulation? Yeah, it's like a race to the courthouse, but here it's a race to the state house. Right, exactly. So you have the machine guns. And that can't be it. That cannot be it.

That cannot possibly be it. Because then it's also a race to get the new weapon. Right. It needs to be in common use so they can't ban it. But we can only ban it before it's in common use. So like both sides are then racing. One side's racing to arm themselves and the other side's racing to regulate it.

That's a weird incentive system. Like how does this work? I mean, as we were just talking about, I can easily imagine a situation where, and by the way, legislation often seriously lags innovation. I mean, that's just a normal reality of life is that legislation lags innovation. So let's imagine that you had drone swarm technology that could be in civilian hands and just like that, and then you have the ability to create dangerous drone swarms, et cetera, as we're seeing being developed on the battlefield, and then Congress doesn't wake up to it.

Well, we have 500,000 people who have purchased this technology, common use, lawful purpose. No, that's not gonna be the way this works. And so, it's hard to even know what to say anymore about this, Sarah, because this court's gonna have to take. And I will say this though. Here is the key, I think one of the key legal disputes here. So majority says if it's an arm

and it's in the lawful use for common purpose, that doesn't end the inquiry. You then go to an additional step of inquiry, which is starting to look a lot like the pre-Bruin two-step inquiry that was a lot of circuits were doing, which is, is this encompassed by the Second Amendment? Then, yes, intermediate scrutiny. We're kind of putting that back into place, except with a version of text history and tradition. Where's the minority? Where's the dissent? Is it going, wait, wait, wait, common use lawful purpose?

Is it an arm in common use for lawful purpose? That ends it. That's it. That is the inquiry. And I think that this is where the Supreme Court's just gonna have to jump in. Once again, I'm sorry, Justice Roberts, your goal to have nothing but boring cases is that it's gonna be postponed a bit longer because I just don't see how we're going to have a coherent Second Amendment jurisprudence going forward without that question settled.

And then a totally separate question of, well, what about all this new technology? How does a pre-ratification, immediate post-ratification analysis work with things that are brand, that are just new? How does that possibly work? And so that's, the go-to has just got to deal with that. So I think I'm a little more open

to the current trajectory of Second Amendment analysis than David, mostly because I like disagreeing with him. But maybe we're not so far off in the end. You might want to bring back means and scrutiny, but I think what you're really saying is we're gonna just end up in means and scrutiny. That's where we're headed, yeah. That's gonna be the only way this is gonna end up

being coherent at all. So let me read this other paragraph from Judge Walker's dissent. DC has offered no reason to doubt that throughout all of this history, no federal or state legislature enacted a blanket ban on a gun in common use for lawful purposes. Yes, there could be limits on who possesses a gun.

Yes, there could be limits on where and how you carry a gun. And yes, there could be limits on owning and carrying unusual guns. But DC has failed to identify any categorical ban on a gun in common use for lawful purposes in the first century of our nation's history. So I actually find that paragraph really helpful. And let me break it down a little bit. Okay. Yes, there could be limits on who possesses a gun. That's Rahimi, right? That you can at least temporarily disarm individuals deemed dangerous, including under sort of broad

definitions. And while Rahimi was only about that domestic violence restraining order in 922 G, that in some ways was the weakest part of 922 G. Maybe the drug thing is weaker, but you know, felon in possession, for instance. That's going to be your who limits. And I think we're in a good place on that, David. I think, yes, there can be limits on who possesses a gun. I think we're in good place there. Yes, there could be limits on where and how you carry a gun. The Supreme Court hasn't dealt with this yet. I'm sure they will. But frankly, the Circuit

Court seemed to be doing a decent job on that. You can have gun-free zones of sensitive places. You know, I'm not sure we've defined the outer limits of those. Is a football stadium sensitive? Why is it sensitive? Yes, a courthouse is sensitive. Things like that, fine. But I think by and large, we're going to come to quite a bit of agreement on where you can ban, and how. Where and how you can carry a gun. Check. This is the messy one. Yes, there could be limits on owning and carrying unusual guns.

This is where my problem is. When is it? Everything's unusual at the beginning. So this is where you get your assault weapons ban and your high capacity magazine ban. Neither are unusual now. In fact, they're arguably the most common now or at least half.

Oh, the AR-15 is the, I believe it is the most popular rifle purchased in the United States today. But it wasn't always. Nope. And so now of course, when I read that, I'm like, well, limits on owning and carrying unusual guns. Sure, there's really weird stuff,

but surely the second amendment wasn't allowing states to just ban something because it was weird. That's not really even a good government interest, let alone a compelling one of any kind. What you would want the state to be banning is a gun that is undermining public safety in some way, not because it's unusual. You can imagine a very unusual gun

that can only shoot one bullet at a slow rate of speed and a state's like, yeah, we'll ban that. And then the courts are like, sure, that's unusual. You can ban that, but what's the state's interest in banning a gun where the bullet shoots out one foot? It just rolls out of the barrel. Yeah, but it's unusual. You can ban that. But what's the state's interest in banning a gun where the bullet shoots out one foot? It just rolls out of the barrel. Yeah, but it's unusual. No, the state's interest is banning types of guns for some other purpose, presumably public safety, the same as they're banning who can possess the gun. And that's where I find the text history and tradition, again, I think it's a useful way to think about this, but as Judge Walker noted about post-ratification history,

you can kind of run out of stuff, right? So, you know, the constitutional text is vague. The founding era history is inconclusive. The post-founding tradition might be well established. Judicial precedents give no guidance, and otherwise you'd be left with policymaking. But this is the problem in 1791. Of course they're not banning types of guns.

I don't know the history as well as some, so forgive me if I'm just way off on this. There weren't that many types of guns that were markedly different from one another. So there was no need to ban those types of guns, even if the founding era Congress or state legislatures thought they had the power to do so, i.e. they did not legislate to their maximum power. Therefore, looking for those historical analogues will leave you empty, not because it wasn't constitutional, but because they didn't need to. And that's where

you get to Judge Wilkinson's Fourth Circuit opinion on that assault weapons ban that we talked about where he's like, you have to wait until the problem arises to see what they did about it. And then you can look immediately after that problem. And so this is the like machine gun era, David, as machine guns started popping up, you immediately see bans on machine guns.

And I think that's what Judge Walker's trying to get to. Machine guns started popping up and shooting a bunch of people and they immediately banned machine guns. We're upholding those, though he does not say that, although he does note the cases where those were upheld. Here, the guns were around for a long time. No one thought we needed to ban them, and only now they do.

Okay, but again, are we looking at the gun itself or the problem that arose from the gun? And those are slightly different analyses. Yeah. Well, and also when you're looking at, it's not just the machine guns, it's sawed off shotguns, for example. So we do have this history when something emerges that people did not anticipate

that there has been an immediate regulation. And then it just seems like all that just has been grandfathered in. Like, oh, of course, of course, that's all fine. We don't want to bring back machine guns. We don't want to bring back sawed off shotguns. And the majority's point here is, wait a minute.

It's not till 1949, we had the first mass shooting. It's been, these suckers are accelerating at this horrifying rate in the United States of America. I honestly, so here's my prediction, Sarah. My prediction is that what we're going to ultimately end up with is a dangerousness analysis running towards individuals and objects that I think we're going to ultimately end up with is this kind of vaguely historically rooted, well,

what all the pre-ratification and post-ratification history tells us is just don't be too dangerous as a person or as an object. And I think that that's where we're gonna probably end up with, because as a matter of just logical coherence, this sort of idea that, well, once enough people have it, it's untouchable. Now, as a practical matter, if you said, everyone has to turn in their large capacity magazine

tomorrow, you're gonna, no, that's just not going to happen. So there are practicality issues. Sure, but these are the YOLO justices and judges. Yeah, but that's different from, that's very different from a conceptual issue. There is a practicality issue with banning large capacity magazines. To me, it's a different from saying, what is the constitutional analysis here? And I just want to be clear, I also am not at all sure where I fall applying Texas string

tradition on large capacity magazines. I may be totally fine with them. I am just enjoying the conceptual framework question and noting that there's some problems here, regardless of which way I might fall on it, or the assault weapons ban for that matter. But that is where I see the issue sticking. And so perhaps we're being a bit glass half empty.

Look at all of these Second Amendment regulations, David, and text history and tradition has solved 70% of them. The limits on who can have the gun and the limits on time, place and manner. Heck, maybe that's more like 90% of them for a lot of purposes. Now we're just left with this residual problem of high capacity magazines and assault

weapons vans. Because I can't think of anything else that falls into this last bucket of the unusual weapon problem. One other thing to point out here, and this is something that I think is interesting in the analysis. If something is in very, very common use, it is also in a common use for an unlawful purpose. I mean, I'm talking in the firearm world. So one of the interesting elements here is, okay, if the core of the right, as the Supreme Court has articulated, is a self-defense analysis, the foreseeable threat you're gonna face is a criminal with a Glock, with a large capacity magazine,

or a criminal with an AR-15 with a large capacity magazine. Can you within AR-15 with a large capacity magazine, can you then say to the law abiding community that you cannot possess the same weapon that the likely criminal will possess? In other words. Well, and I've messed this up, David, right? Because if the test is common use for a lawful purpose, then we should only be looking at the guns

for lawful purpose. But so often in these opinions, and I have done this as well, instead you look at the gun most commonly used by the criminals and say, so therefore you can ban that gun because it's most often used in crimes or it's used in this percentage of crimes when in fact it actually should be the other analysis. And this reminds me, our dear friend, Andy Smarik, over at Manhattan Institute, has this wonderful report out about where lawyers come from who are leaders in their state or in the nation.

And he was noting that the vast majority come from public law schools, the sort of premier public law school in their state, and therefore we should spend less time focused on the IVs. And I was like, but Andy, doesn't that raise an interesting question about percentages? Is it the percentage of leaders across the country come from public law schools? Or is it the percentage of graduates from the law schools? Because the percentage of graduates from public law schools that go on to leadership positions is going to be relatively small compared to the percentage of law school graduates from ivy league law schools, ivy league plus, blah, blah, blah, that go on to leadership positions is going to be relatively small compared to the percentage of law school graduates from Ivy League law schools, Ivy League plus,

blah, blah, blah, that go on to leadership positions will be higher. And it's just an interesting lens question, David. So same one here. Are you looking at the guns for a lawful purpose or are you looking at the guns for an unlawful purpose? Right, right. I am very much looking forward

to the Supreme Court wading into this because I do feel like we are getting clarity on the, I think we have clarity on things like Red Flag laws from Rahimi. I think we have clarity that all of the felon in possession or all the vast, vast, vast majority of felon in possession style limitations are going to be okay. This is the one area, this is the area that is. So, well then you agree with me that text history and tradition by and large is, has been useful because it's clarified, again, let's call it 80% of these cases.

And now we're just, we're trying to work out how exactly it's going to work in the 20%. I mean, text history and tradition became useful when Rahimi essentially said, it's intermediate scrutiny, guys. I don't think that's what Rahimi said. Oh, my gosh. It's like.

What level of particularity? Well, just in the in the ballpark, like in in the neighborhood, which what's in how do we determine what's in the neighborhood? Judgment, Sarah. I know, I know. Yeah, I hear you. All right, David, that brings us to the conclusion

of another exciting, not polling based episode of Advisory Opinions. Happy Election Day to all of you. There was this tradition in the country of baking election cakes and offering it to your neighbors and just being good neighborly spirit about the election. I wish we could bring that back, David, because I feel like so many people right now are convinced that if the other person wins, that it's an existential threat to who they are and their way of life or their family, et cetera. And I would like to be that voice of reassurance to say, like, yeah, it may not be your preferred candidate. Things are going to be okay.

Almost certainly. That's right. Almost certainly. That's right, almost certainly. Almost certainly. Yes, I think that's a proper note to end. Also, by the way, just for all of these conflicts and families and friends, your identity is not defined by who you voted for. There is a lot more to a human being than who they filled in that,

you know, what name they pressed on the touch screen or whatever. There's a lot more and few things make me more upset than the sort of idea that I'm going to determine whether I'm in a relationship with you or a friendship with you based on who you voted for. No, that is not how this should work. And I just feel like there's a lot of people out there genuinely fearful that if, you know, Vice President Harris wins, their churches will be banned or their children will be in trouble and that if former President Trump wins, that he is going to usher in this era of fascism or even Nazism.

And there's so much fear out there that again, is really genuinely felt. And I would just tell people, some of that fear you're feeling is because the campaigns wanted you to feel that. They wanted to motivate you to vote and to feel so scared of the other person that that's, you know, that on election night,

half of the country is going to be not just sad that their person didn't win, upset that their person didn't win, but scared that their person didn't win. And that's what I guess I want to push against. You're allowed to be upset. You're allowed to be mad, but scared. Try not try try to take a wider lens of American history. Well said. Bye, David. Bye, Sarah.