Advisory Opinions - God, Guns, and Trump

Episode Date: June 8, 2023

After a brief trademark SCOTUS update, Guest Host David French and Perennial Guest David Lat break down the trickiness of vouchers for religious charter schools. Plus: -Text history and tradition versus strict scrutiny in 2nd Amendment cases -Top profits for law firm partners Show Notes: "Trump too small" Religious Charters in Oklahoma Some felons can possess firearms David Lat’s Substack Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. Don't touch your iPhone. I know this is not Sarah. This is special guest David French. Guest hosting for Sarah with perennial special guest of the special guest. I don't know how we're going to say it.

But anyway, I'm David French, joined by David Latt. You've got the Davids today while Sarah is on vacation. And we have a really great podcast lineup for you today. All issues that are really interesting and which I can't say was true for the last podcast where I spent way too long, David, talking about post-trial motions. Not our most exciting moment, but one I was kind of strangely interested in because of my own practice. But we're going to be talking about the nation's first religious charter school. How does that work? We're going to be talking about the text history and tradition test involving the Second Amendment and some new cases,

including a district court talking about a ruling on an assault weapons ban. We're going to talk about the richest partners in the United States of America. But first, David, let's start with a little bit of a SCOTUS grant here on a First Amendment issue that is interesting. Not earth shattering, but interesting. So first, welcome, David. Thanks for coming back to Advisory Opinions. And second, fill us in on the new SCOTUS grant. It's always a pleasure to be here. Thanks so much, David, for having me. I feel a little guilty here cheating on Sarah, who's my usual partner here, but I'm always delighted to be here. Monday, the Supreme Court granted one new case. It is the case of Vidal v. Elster. Vidal being Kathy Vidal, who's the head of the U.S. Patent and Trademark Office.

Elster is actually an attorney, but in this case, he is a would-be t-shirt hawker. He wants to sell t-shirts with the slogan on them, Trump too small, referring, of course, to that infamous moment a number of years ago when Trump, at one of the presidential debates, got into that jousting with Marco Rubio about Trump having small hands. And Elster, I think, wants to argue that Trump's policies make all of us smaller, make our nation smaller. And so he wants to hawk these t-shirts. But there is a provision of the trademark law that requires the refusal of registering a trademark when the mark references a person without their permission, essentially, to kind of sum it up. essentially to kind of sum it up. And there is, however, a First Amendment issue because here, Elster wants to make an argument against a public official, a former public official,

a public figure, Donald Trump. And so the question that the court's going to tackle or that is teed up is whether the refusal to register this trademark under the relevant provision 15 USC 1052C violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure. Interesting case. And it's always these little First Amendment trademark type cases always end up with some pretty cruddy speech attached to them. We had a previous case dealing with a trademark regarding an Asian band that listeners might recall contained the name, contained a racial slur. And one of the issues was, well, was that going to be something that could be protected or not protected? Here we have a crude joke because I think people might remember the issue wasn't just

whether Trump's hands were small. So that was one of the moments in 2016 that foreshadowed everything that was to follow. And so here we have Trump too small. And I've got to say, David, I was thinking through this and the initial, here was my blink. And then I rethought my blink response. So my blink response was, okay, I get it. This sort of default idea that I own my name, that you can't trademark my name.

If I saw a t-shirt that said, Aquaman is bad, David French. Not only is that completely wrong, but you're profiting off of my name. So don't I have some ownership? But my initial blink was, but what about, I mean, this is a former president of the United States. I mean, this is sort of core, you don't want to say political speech necessarily because

he's trying to sell something, but the commercial nature of it doesn't completely change also the political nature of it. So I don't know. It seems to me that a public figure of office holder carve out makes some sense, but then I started to do my internal line drawing. Okay. Is it only if you hold or held public office? But those aren't the only people who are worthy of critique or sort of satire or mockery or whatever in the public square. Where are you drawing the lines? How is it that you're going to end? What's your sensible line as to when I'm going to actually own my name versus I'm too famous anymore to own my name? And the bright line distinction started to make a little bit more sense to me the more I thought about it. But this is a case I'm really open. I'm ready to read the papers.

I'm ready to hear the oral argument. What's your first reaction to it? I think I'm with you on this, David. I'm very torn on it. On the one hand, I'm super pro-free speech. On the other hand, I do think it is a tricky line-drawing issue here because there is the right of publicity. There is the right to protect your name and to profit from your own name and not to have other people profit from your name. And so I think this is a very tricky issue. The Biden administration actually did request cert in this case. The Federal Circuit said that the registration is okay, basically, saying that he should be allowed to register this because of his First Amendment rights. But the Solicitor General's office said that the federal circuit is wrong, and it should not have struck down this federal statute. And so, they are actually saying that it is okay. And one of

the issues that the government is raising is whether or not this is a restriction on speech or whether or not it is a condition on a government benefit. So, for those of us who are very pro-free speech, we can maybe sleep a little bit better if we think of it the way the SG's office is thinking of it, saying, well, this isn't a restraint on speech, but if you're going to have the government benefit of a trademark, then you have to comply with this rule about not referencing some living person without their consent. Yeah, and that does comfort me. This is not a prohibition on saying Trump too small.

You can say Trump too small all you want what this is is dealing with is your what this is dealing with your ability to trademark the phrase to have some exclusive some commercial exclusivity attached to it which does absolutely change the now it's the only thing that makes me have some pause about it um or it's the only thing that that um makes me have to be it makes me be torn if this was any kind of prohibition on saying the words of course that would be completely unconstitutional to restrict saying those words absolutely unconstitutional now here comes the government benefit but it's an important government benefit one that's established for a lot of good reasons

but yeah so the more i think about the line drawing the more convinced i am that there is some sensibility in the original rule but at at the same time, you are talking about a regulation that's relevant to what in any other circumstance would be considered kind of core political speech. So yeah, I'm open. Yeah, it's a tricky case. And I have a hard time predicting where the court will go on it. So you mentioned the one case that is part of this series of cases about the Asian American band. And then there was another case involving the prohibition on basically registering obscene trademarks where I think somebody had a brand that wanted to spell out, well, it's F-U-C-T.

You see what that spells. And the court said, no, you should be allowed to trademark that basically, or that you can't refuse the registration on the grounds of obscenity. And so the last two cases have been sort of on the pro speech side, but this may be a little bit different. And it is interesting that the Solicitor General is weighing in in favor of defending this statute. Right, right. And, you know, there is an argument here that is distinct from the case involving the band, in case involving the F-U-C-T, which because this is a family podcast, we won't do what Sarah does,

attest to the beeper. I think we had our live podcast at the university of Kentucky where I think the count was Sarah dropped about 19 F bombs and our beeper caught 18 of the 19. you know, anyway, so I won't test it, but the,

the obscene trademarks, the race racist trademark or the race racial slur trademark, both of those are a little bit different in that you can't other than sort of a general offense to the public in other words sort of the these words inflame people in general there isn't sort of an individual injury aspect to this where there's potentially sort of an individual injury aspect of this. If I'm a public figure, someone's profiting off of my name, image, likeness. Where are we on that? That's a little bit of a different.

It's not necessarily a purely victimless crime, so to speak. But do we care about the quote unquote victim? And I'm using that word extremely loosely, victim. Do we care about the victim in this context? Interesting case, interesting case. One of those lower stakes Supreme Court cases that is nevertheless fascinating. In some ways, I find these cases even more interesting. It doesn't necessarily have this political tinge or valence to it. And again, of course, I think whenever the former guy is involved, we just have to remember

that we might kind of want to have these t-shirts, but we have to think about, well, what if the t-shirt or the trademark involves somebody we actually like? So we just kind of have to think about the rule for everybody, not just that guy. Yeah, absolutely. Absolutely. All right. Well, that's our brief SCOTUS update. There will be more.

There will be much more. It's pretty stunning, David. It's June 7th, and we have so many more opinions to come in three weeks. I mean, a little over three weeks, it's going to be a wild ride. Are you expecting just a giant dump right at the end? Yeah, I know. What's your rank speculation on how this turns out? So it's interesting. Earlier in the term, I was thinking that, oh, maybe they're going to have to blow or get really

close to their usual deadline. They like to be done by the end of June or July 4th, but they have been doing a little bit of catching up. So I think that they maybe will make their deadline. Earlier in the term, they were historically slow. I think the slowest they've been since the term started in October. Adam Feldman at Imperial SCOTUS has been tracking this. They've done a little catch up. So I think now they are kind of where they were last term. So they might finish up in time, but we will see.

They may have to dismiss a couple of things like Morvey Harper, perhaps. So the independent state legislature theory case. So we will see what happens there. But no, it is going to be a busy, busy month for SCOTUS watchers. Yeah, I'm absolutely fascinated, not just by the outcome of some of these cases, but how this is all going to play out.

Because as a journalist, I'm going to be not just podcasting, but writing about some of these major cases. And if they all just land at once, it's going to be a nightmarish few days. Great for the podcast audience. Not so great for us. All right. So let's move on, David. That's our short SCOTUS update. Let's move on to a really interesting new development in the world of education and the Constitution. So a number of listeners, and I know a number of you saw this because you sent me messages about it, but a number of listeners have brought this to my attention. I've seen now a lot of news about it. And it is a decision in the state of Oklahoma to approve the nation's first religious

charter school in the United States. And so here's a little bit of the facts. to be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa with religious teachings embedded throughout the curriculum. So this is a charter school that has been approved to be run. And it's a, so it's a charter school that is religious that has now been approved as a charter school. Okay. Why is this important? Haven't we, some of you longtime advisory opinions listeners, you might be asking, why is this important? Because haven't we kind of gone over the availability of public funds for

private religious education before? In other words, in the voucher context, there's now a number of cases that say if you establish a voucher program or something similar to a voucher program that allows parents to direct tuition dollars towards private schools, it's now very clear if you set up that system, which you can, it's now very clear that you cannot embed religious discrimination in that program. In other words, you cannot say to parents, you're going to be able to get a voucher for every kind of school except a religious school. There's going to be a religious non-discrimination requirement. And so you might be thinking, well, okay, doesn't that straight line apply to a charter school? After all, aren't charter schools run by private corporations, for example?

Don't charter schools have widely varying philosophies? So why wouldn't you have a religious charter school? Doesn't that make sense? But there's a key distinction. And this is a distinction that I think is going to be very interesting because when you think it through, you start to wonder how can this work? So the key distinction is that charter schools have always been considered sort of in the vernacular of the movement as public schools. They're a unique kind of public school. They're a creation of state statute.

They're funded by the state. Individuals go to them for free. There is not a tuition payment the way there is in a private school. I'll just use the language from the Oklahoma City Public School website. It says, charter schools are innovative, non-sectarian public schools

which provide educational choices tailored to the community needs and which provide greater accountability for results. Charter schools are open to all children, do not charge tuition, and do not have special entrance requirements. In other words, this is generally considered a public school. Now, to put an emphasis on that,

there is a Fourth Circuit case that is currently before the Supreme Court of the United States called Pelletier v versus Charter Day School, in which Charter Day School was defending from legal challenge its dress code. And David, I am super happy you're here. So do not interpret anything that I say as any next, as any disappointment at all that you're here but i do have some regret that sarah isn't here to hear me read part of the justification for this policy that exists um so the fourth circuit this pelt this day school um created a dress created a dress code for its female students.

And a mother objected because the female students had to wear skirts or skorts. It was more limiting in what they could do. A student writes in with an objection to the skirts requirement. And here is the response. with an objection to the skirts requirement, and here is the response. The trustees, parents, and other community supporters were determined to preserve chivalry and respect young women and men in the school. For example, young men were told to hold the door open for the young ladies to carry an umbrella should it be needed. Ma'am and sir were to be the preferred forms of address. There was felt to be a need to restore and then preserve traditional regard for peers

and later elaborated that chivalry is a code of conduct where women are treated, they're regarded as a fragile vessel that men are supposed to take care of and honor. And I'm going to end this filibustering in a minute. Essentially what the parent argues is this violates equal protection, 14th Amendment. This is a state school that is imposing a gendered code that lacks sufficient justification, violates equal protection. Fourth Circuit en banc says,

you're right. You're right. this is a public school it is not a private school therefore it is subject to constitutional limitations and restrictions and this is the leading case it has been appealed to the supreme court the supreme court has asked for the views of the solicitor general theicitor General agrees that this is a public school. We don't know what's going to happen to this case. But if this stands, if the Supreme Court affirms, then barring really radically meaningful distinctions between the Oklahoma situation and the North Carolina situation,

Oklahoma will have approved a Catholic public school, David. So, this is interesting. I know you've got thoughts. Fascinating case. What did you think as you saw this unfold? So, this would be a huge, huge development, as you note. And it is interesting here that two Republican officials in Oklahoma are going the opposite way on this. The Republican governor, Kevin Stitt, is in favor of the Catholic Charter School, but the attorney general, also a Republican, Gettner Drummond, who has joined lawsuits, for example, attacking various Biden administration policies, basically said that this is unconstitutional under the Oklahoma Constitution. And it's kind of funny that he has said that publicly because he's going to be the person

who presumably has to defend this thing in court. And he has basically said it's unconstitutional. So it's going to be very, very interesting in the Pelletier case, which I guess we'll see whether the court grants. The Solicitor General, as you mentioned, has come out against it. But it's a tricky issue. The argument basically against the charter school is, look, when you have some entity that has been given this state function, you could get around

all kinds of requirements if you somehow allow for this. Basically, to quote the SG's brief, holding that CDS, Charter Day School, is not a state actor would allow states to evade constitutional constraints by delegating core governmental functions to private entities. And so, I think that is the tricky part. On the one hand, we have this line of cases which has been growing stronger and stronger over the years that if you have some kind of benefit, for instance, you can't deny it to a religious group or entity that is similarly situated to a private one. And I think we're going to talk about that a little more in

just a sec. But on the other hand, there are various other provisions, including here, a state constitutional one that may limit the ability to send money in the direction of religious entities. So this will be very, very interesting. We'll see how, first of all, how this Oklahoma litigation goes, or I'm sure it'll turn into litigation, and we'll see whether the court agrees to hear that Fourth Circuit case. The Fourth Circuit, as you mentioned, went en banc. There were some vigorous dissents from Judge Quattlebaum and Judge Wilkinson, conservative judges on the Fourth Circuit. So it's possible

the conservatives on the Supreme Court might side with the conservatives from the Fourth Circuit and grant this case. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame.

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That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. And it's worth diving a little bit more into some of the facts in the North Carolina case. So it's not all that exceptional from what charter schools are generally. It was a general educational program open to all students in the district. It received 95% of its funding from government sources. It's directly overseen by the North Carolina State Board of Education. The public charter schools are defined in the North Carolina laws as, quote, public schools. The charter is granted and revocable by the state. The charter requires compliance with the North Carolina state constitution

and the federal constitution. Now, all of that should have, if you're hearing all of that, you're thinking, how is this a close case? I mean, that's a public school. But on a day-to-day basis, it is run by a private corporation called Roger Bacon Academy, Inc. It's a privately owned corporation. A lot of charter schools are run by privately owned corporations. And part of the purpose of allowing these privately owned corporations is to not be like the typical public school. like the typical public school. In other words, one of the whole reasons why you have the charter system is so that they are not bound by or limited or constrained by

a lot of the regulations that apply to conventional public schools, which has made them quite controversial within the public school establishment. There is an interesting degree of backlash, especially in progressive school reform circles, against charter schools, which are seen as something outside of, different from, interlopers in the public school system. So it is not, in fact, just a complete lay down hand that these are public schools because of the private ownership, I mean, or the private management, and because of the very intentional way in which they've been carved out from the public school system. And so the dissent, I think, accurately points out that you have different people

running it than you do have in the public school system writ large. But here's two things, okay? than you do have in the public school system writ large. But here's two things, okay? So David, number one, here's easy. And number two, here's hard. So here's the easy part. It seems to me that if you have a charter school that is deemed a state actor, there is no way on earth

you can have a Catholic public charter school or a Jewish public charter school or any of any faith at all, because it then becomes a religious, the religious entity is a state entity. And that, I don't see how that can constitutionally work. Let's leave aside the state constitution for men on a federal basis i do not see how that can constitutionally work am i missing something no i i don't think you are i think that is really the the tricky part here and that's the easy part or that's the easy like i do i'm just doing a sanity check you can't have a public catholic school school. Now, here's the harder question.

Let's say it's not a public school. It's a private school, the funding mechanism here is very different. This is not a voucher-based funding mechanism. This is just pure, straight public funding transfers to a religious school that members of the public can go to for free. That is a different order of funding, of public funding of a religious institution, than we have seen from other programs.

And this is where the new post-Lemon world gets really interesting. So, if it's a state actor no way this is constitutional if it's not a state actor it's still funded substantially differently from a normal private school and this is a free school that anyone can go to it's direct funding by the state. Post-Lemon, David, I'm not sure where that comes out. It is interesting, though, because you could argue it doesn't all kind of wash out the same way in the sense that if you had a lot of students who were going there and taking government money

in the form of vouchers or some other funding scheme, is that really that different? At the end of the day, you have government money that is winding up in the coffers of some religious or religiously tinged entity, and that's been held acceptable. You mentioned the main case from last term, Carson v. Macon. On the one hand, you see the challenge with having a religious charter school. But on the other hand, why can't you do directly what you can already do kind of indirectly? The other thing I would kind of mention or kind of flag is I do wonder whether,

on the one hand, you might think, well, if you're a strong proponent of religious freedom, well, maybe this is great. But on the other hand, it is starting to blur the line between the state and religious entities. And sometimes maybe it's better to have a cleaner line. We have had also a line of cases about the ability of religious organizations to organize their own affairs free of secular interference. And, you know, if you blur the line for one purpose, are you blurring it for another? That's the next step. That's the next question in my mind,

because it's not just funding. If you look at charter schools more broadly, they're a heavily regulated entity. They're a very heavily regulated entity because they've always been perceived as public schools they've been they've been advertised as public schools i mean this is the this is what a charter school is it is a unique kind of public school so even beyond the funding you're talking about a level of entanglement that do you want if you're a religious entity are we at the point where you're merging church

instead the authority of the state is intruding on the autonomy of the church and so are we getting too entangled in the sense that by availing myself of the charter school program i get the benefits of being able to have free tuition where people can come in from all over the community. Great. That's fantastic. But I also have heavy state regulation, which starts to, as you were saying, blur these lines. And David, I think it's very interesting to me because this echoes, and this was I'm actually writing about from my newsletter, kind of the conflict you see on the right now between liberty and authority. So, especially in the education context, sort of the traditional conservative education reform effort has always been, or for the last 20 or 30 years,

has been about more liberty. In other words, more school choice, more freedom for students to speak, academic freedom for professors, more liberty, less state control. But we've seen in the last two, three, four years, greater exertion of authority over schooling on the part of the right. So the passage of the anti-CRT laws, the Florida, you know, HB 1557 restricting instruction on sexuality and gender. You've seen much more effort to sort of exert the state authority, the library book restrictions to kind of control much more what students see. And I see this commissioning of a Catholic public charter school as part of that authority prong more than

the liberty prong, if that makes sense, because it is a public school by the Oklahoma City School District's own definition. So, I see it more on that authority prong than the liberty prong, although the language of religious liberty was used with that level of state control it's hard for me to see it as truly religious liberty and much more state authority manifesting itself through religious entity is where i am on it now uh i'm not sure you know what what are your what are you what do you see is the best sort of argument against me on this where are you on this well where where do you are you in favor or against saint isidore of a civil virtual charter school oh i would be again i would be

voted against it i would have voted against having that as a charter school. Now, if you have a voucher program in Oklahoma and they want to use it for St. Isidore, more power to you, right? It's not a, if St. Isidore is a normal Catholic school, which by the way, my oldest daughter is going to a Catholic school for high school here in Nashville, huge supporter of religious education.

I am long supporter of vouchers. So if St. Isidore was a truly private school and this was a voucher set up where the money was sort of given to the parents or guided by the parents, I'm all in. But if it's a public charter school, I'm pretty sure I'm all out on that because it's just too entangling, even putting aside the funding. That's kind of where I am. I think at the risk of not having enough exciting conflict here, I think I probably come down with you the same way. And I'm also a big fan of religious education. I went to a Catholic high school run by the Jesuits. I think there are many values and virtues to religious education, but if you are going to have a public

charter school, I think having it with religious content, affiliation, instruction, what have you, can present some serious difficulties. And I do think it's the entanglement issue. I think for people who do support religious freedom, there is sort of be careful what you wish for quality to this. And here's an example. You mentioned, of course, how schools are very heavily regulated, public schools, charter schools are very heavily regulated. So there have been or there was a Supreme Court case about the right of a religious organization to dismiss a teacher if the teacher, say, had views that were different from the religious organization or expressed views or engaged in conduct that was different. I'm forgetting the exact particulars, but the ability of the religious organization to make these personnel decisions that reflect its religious beliefs was upheld by the court. Well, what if you have one of these religious charter schools and they want to get rid of a teacher, but there are all sorts of rules and regulations about when and under what circumstances a public school can get rid of a teacher.

So it gets really, really messy. Yeah, it does. It gets very messy. really really messy yeah it does it gets very messy and the you know the way i've articulated it is you know over the last few generations our jurisprudence the combination of establishment clause jurisprudence and free exercise clause jurisprudence have kind of have created a system in which there is absolutely a disestablishment in other words the state cannot wrap its arms around a particular church and use state authority to advance a particular church but at the same time in exchange for sort of this loss of the level of church state authority that churches used to enjoy say in europe

for example they get a degree of autonomy from the state that churches never enjoyed in previous regimes in Western civilization. So this ministerial exemption that you're talking about, this sort of absolute freedom to hire and fire ministerial employees without regard to state or federal non-discrimination statutes, that's a pretty big deal. That's a pretty big deal. non-discrimination statutes it's a pretty big deal that's a pretty big deal and are we in a position where a public charter school is going to enjoy that same autonomy uh if it's religious but it not if it's not religious again this is gets very very very dicey and in a way it going back to my authority versus liberty construct it really does implicate this concern that I have that if you begin to erode and tear away at some of these separations between church and state, that the entanglement, historically speaking, between church and state has not been good for either entity the church or the state and i think it's no accident that the united states of america has a far healthier

religious practice than exists in thelement of church and state. So, it strikes me that on that authority versus liberty access, the more you're exerting the authority at the expense of the liberty, the more you're going to end up harming perhaps many of the same institutions you're seeking to empower. One last point I would just make is also, how do we go about deciding which religions can have charter schools? So, I think Catholic organizations have been very active in education. There are a lot of big Catholic schools. People say, okay, fine, but what about a less sort of numerically popular religion? What if I wanted to have an Islamic charter school or a Jewish charter school or a Protestant charter school or what have you?

I know that sometimes you and Sarah talk about, well, what about the Satanists? Because they always show up. So no one's going to have maybe a Satanist. They always show up. This is why we can't have nice things. So maybe not a Satanist charter school, but whatever principle you apply to defend Saint Isidore, presumably it would apply to other religions as well. So that I think is also something to think about. Yeah, absolutely. Absolutely. Well, should we move on from, we've hit Trump, religion, and guns. We're moving on

to guns, which remind, we're like a walking remind we're like a walking we're like a walking maga hat it's like god guns and trump that could be the name of the podcast god guns and trump so really interesting and advisory opinions listeners will uh know that you that this is sort of an old riff for you guys. But text history and tradition as the test that is the test applied to firearms regulation post-Bruin is now working its way through the federal courts. We've talked about it in the context of the Fifth Circuit.

Now, the Fifth Circuit struck down a limitation on firearms ownership by people subject to domestic violence restraining orders. Sarah and I, I don't know, I think we might have competed with each other in the level to which we were appalled by that particular decision. But at the same time, understanding that the text history and tradition test creates challenges. And there was, and one of the first questions I have under text,

had under text history and tradition was what about assault weapons bans? Because no one disputes that the AR-15 did not exist in the 18th century. It did not exist in the mid-19th century when the 14th Amendment was passed. The AR-15, semi-automatic rifles more generally, much more recent invention than... But at the same time, nobody who's credible argues that all the Second Amendment does is protect the kinds of weapons the firearms

that were in existence at the time that the first way to find out that somebody doesn't is not steeped in second amendment jurisprudence is when they try to make that argument so we know that it's not i second the second amendment is not limited to the weapons that existed when the second amendment was ratified or when the 14th Amendment, which ultimately incorporated the Second Amendment, was ratified. We know that. We also know from previous precedent that not all weapons are protected by the Second Amendment. Heller makes that quite clear. So what is, under Texas history and tradition, pretty sure machine guns are not? Pretty sure machine guns are not pretty sure machine guns

are not pretty sure a six shooter revolver is or a pump action shotgun is but what about a semi-automatic rifle with a pretty hefty magazine is that protected under text history and tradition analysis and this washington court was very interesting uh because it what it essentially said is that no under text history and tradition the assault weapons ban actually fits a pattern so here's what the the district court upholds a washington district court upholds a assault weapons ban and basically makes this argument. The argument is, in fact, the history and tradition of the United States shows that the development of new weapons has always been accompanied by regulation of new weapons as soon as those new weapons prove to be unusually dangerous. So it what the court does is not go and look for text history and tradition

regulating semi-automatic rifles. What it does do, it goes to look at text history and tradition on regulating new weapons that prove to be dangerous. And here uh the court quoting a an expert opinion um an early example of these regulations concerned the bowie knife now david i did not expect a bowie knife discussion concerned the bowie knife originally defined as a single edge straight blade between nine and ten inches long and one and a half inches wide. In the early 19th century, the Bowie knife gained notoriety as a fighting knife after it was supposedly used in the Vidalia Sandbar Fight, a violent brawl that occurred in central Louisiana. Shortly afterwards, many Southerners began carrying the knife in public because it offered a better chance to stop an assailant than the more cumbersome guns of the era, which were unreliable and inaccurate. This is the single shot musket pistol. They're also popular in fights and duels over the single shot pistols.

Responding to the growing prevalence and danger posed by Bowie knives, states quickly enacted laws regulating them. And this goes on to talk about the laws regulating. Also talks about laws regulating trap guns, which is a gun rigged to fire if somebody comes into a certain place they're not allowed to go into and then goes into the regulation of machine guns and tommy guns uh during the prohibition era with a pattern that says new weapon proves dangerous subject to regulation very Very interesting, very interesting use of text history and tradition. And it also shows the malleability of the standard. I'm super curious what you think about this. So, Gabe Malour had a good Twitter thread about this. And he points out that what is interesting here with this approach as a Bruin alternative is

it's not focusing on the time period of the ratification of the Second Amendment or of the time period when the 14th Amendment was ratified. Those are typically regarded as the relevant time periods for Second Amendment analysis, but it sort of reframes the issue. And Judge Ryan, the Washington District Court judge in this case, Hartford v. Ferguson, reframes the issue, as you described, in this other way of, well, maybe we're not going to look at it at a weapon-specific level, but more at a level of a pattern of weapon emerges, is used by law-abiding people, then is used by criminals and is found to be dangerous, and then it's regulated. And I will confess, I think the second, I try to be somebody who doesn't let my priors and my

policy preferences affect my legal analysis. But Second Amendment is one of those areas where I think it's a little bit harder than usual to separate them. And personally, I'm not really a gun person. This is sort of an ongoing disagreement I have with my husband, Zach, who is a big fan of guns. And over my sort of grumbling, has some guns in this house. They're in a safe. They're kept away. But we moved out to the suburbs, but I'm still sort of like an effete New Yorker at heart, like guns, scary. I don't like guns.

And so I've always been, and again, I probably am letting my legal analysis be affected by my priors, but I kind of lean towards Justice Stevens's opinion in Heller. And I am now, I have to admit, somewhat sympathetic to this project of reframing the historical inquiry away from a weapon-by-weapon analysis, because as you mentioned, nobody's going to say, well, only muskets or I don't know anything about guns, so whatever, only whatever was allowed at the founding is allowed, muskets, or I don't know what they had back then. The weapon by weapon analysis, it should really be more of a holistic analysis in terms of patterns and trends. And so I'm actually kind of sympathetic to this project, but I actually agree with Gabe Malour that I think that if this goes up to the Supreme Court, Justice Thomas will not be so sympathetic. the Supreme Court, Justice Thomas will not be so sympathetic. Oh, I completely agree that Justice Thomas will not be sympathetic. I'm much more interested in Roberts and Kavanaugh. Yes. And remember that Justice Kavanaugh, I believe, in Bruin had that concurrence where he basically,

it was a classic Kavanaugh concurrence, going along with the conservative result, but saying, hey, here are some future issues that I've not made up my mind on, or maybe I've made up my mind on in the quote, unquote, liberal way, if you think about his jobs concurrence. But anyway, it's very interesting. And we could, you know, the trend in recent decades, Heller, McDonald has been to go in favor of or pro the Second Amendment, but at a certain point, it may hit a wall. And all these recent cases, which present somewhat unsympathetic propositions. So, for example, you mentioned Rahimi, the Fifth Circuit case involving letting people under orders of domestic violence have guns.

And then bump stocks also out of the Fifth Circuit. Who really likes bump stocks, which were involved in the horrific las vegas massacre so you're now starting to you may start to bump up against resistance yeah so that brings me to some cases that you sent to me when we were kind of doing our pre-show prep involving, okay, felon in possession. Felon in possession, which would, on the one hand, seems like an extremely unsympathetic person to approach the court, but what is the felony? What is the felony? So, I think it's pretty clear. It's hard for me to imagine a case in which a court is going to say if my felony was armed robbery then i have a right to a gun under any possible uh notion of

sort of responsible law-abiding citizen a convicted armed robber is not that. But what if it is something different? What if it is, say, you have to take a real-life example? The issue wasn't you're an armed robber. The issue was you made a false statement to obtain food stamps years and years and years ago does that mean that you shouldn't have the ability to own a gun to defend yourself um what if it's something between a false a false statement to to get a food stamps is pretty much the very definition of a nonviolent crime. What if it's getting more where you weren't actually violent,

but you're in a dangerous business? You were convicted of sale of a controlled substance. What then? Does that forfeit your rights to self-defense under the Second Amendment? And courts are coming out in different places. And from your non-gun standpoint, what are your thoughts on some of these felon in possession analyses? I tend to lean in favor of the courts and the judges that have upheld these restrictions. So the cases you alluded to, a week or two ago, we had the Eighth Circuit uphold one of these statutes where the underlying felony was a drug offense. And Judge Colleton, who's a George W. Bush appointee, wrote an opinion joined by two other Republican appointees, basically upholding the provision as applied to the defendant in that case.

And as Judge Colleton noted in his opinion, Heller did say, to quote the famous language from Heller, that nothing in Heller, quote, should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, close quote. So that was the Jackson case out of the Eighth Circuit. But then you mentioned the food stamp fraud felony, and that is the more recent case of Range v. Garland out of the Third Circuit, where the Third Circuit actually went en banc and went the other way as the original three-judge panel, and there they said that Mr. Range, who had committed the food stamp fraud, did not forfeit his Second Amendment rights, that he was within the group of,

quote-unquote, the people who enjoy his Second Amendment rights. And then, engaging in the Bruin analysis, found that in this particular case, he actually, again, took quote from Judge Hardiman's opinion, because the government did not carry its burden of showing that our nation's history and tradition of firearm regulation support disarming range, Mr. Food Stamp fraud, we will reverse and remand, close quote. So that was the range case. And there were some vigorous, vigorous dissents, including a very interesting dissent by Judge Krause, Cheryl Krause, who's an Obama appointee, former Kennedy clerk. And she goes through an extremely exhaustive historical analysis, defending felon in possession prohibitions when it comes to firearms. So this is going to be a

super interesting issue. And I could see either the Washington case or the Third Circuit case coming to the Supreme Court in some way or other cases out of the Fifth Circuit or other cases presenting these issues. So after a long period of not so much activity on the Second Amendment, then we had some activity, Heller, McDonald, Bruin. I think now, who knows, maybe we'll see one of these cases, I don't know, every term, every other term.

I think we're in for a lot. Yeah, I would agree with you completely because it strikes me that this is not a situation where the Supreme Court can really sort of say, well, we're going to let this case law mature for a while. Like the gap between Heller and Bruin was a long gap. And things matured quite a bit, as I've said before. They matured enough to where the second the jurisprudence was shaving

and got his driver's license. It was really maturing, overdue for some Supreme Court intervention. I don't see how they can let this just continue to percolate because you're going to have different circuits with different provisions regarding felon in possession, different circuits with different provisions regarding domestic violence. You're going to have different circuits, almost certainly different circuits with different rulings under text history and tradition regarding assault weapons. That kaleidoscope of different rulings is going to have to be resolved by the Supreme Court. And I got to say, David, I got to say, here's my prediction.

So I'm, here's my prediction. My prediction is that text history and tradition is going to act, second amendment advocates are going to end up unhappy with the test. Huh? and the reason why they're going to end up unhappy with this test is that the text is that the history and tradition is so much messier than sort of the top line understanding that a lot of people had going into discussing american firearm regulation and because it is so much messier it is malleable and therefore text history and tradition is actually going to end up being less protective in some ways than strict scrutiny would have been. And people might end up, gun rights advocates might end up 10 years from now less pleased with text history and tradition than they would have been with conventional levels of scrutiny. Could be completely wrong.

I'm going to push back on you on that. I think I'm going to go the other way. I think that the so-called means end scrutiny, which was the old test, the tiers of scrutiny, what have you, I think that was very malleable because you would look at the means that was being employed, the nature of the restriction, and then you would look at the public interest on the other side. And that was very malleable. That's a classic critique of just the tiers of scrutiny more generally. It's kind of like, well, the outcome is whatever the judge thinks it is. And I think that text history and

tradition, so far at least, has been wielded or applied in ways that Second Amendment supporters or advocates should like. And so, even though both standards have a degree of malleability, I think that Second Amendment fans, super fans of whom I'm not one, will end up happier with the new test. And I think partly they'll end up happier because the Supreme Court has the last word. And I think the Supreme Court is probably more pro Second Amendment than either a the lower federal courts and be the American public. not just because you're going to have this patchwork quilt of regulations and federal and state laws being struck down here and upheld there, but also as the epidemic of horrific gun violence continues to spread throughout this country, I feel like it just gets worse and worse. You can't expect the branches to just stand idly by while this happens.

Right. So, well, let me, I agree with you that text history and tradition is more protective than say intermediate scrutiny with i think no question the question i have is is it more protective of second amendment rights than strict scrutiny or another word maybe another way of protecting of saying it is it is it more understandably and rationally protective of second amendment rights than strict scrutiny so strict scrutiny is where a government regulation is going to fall unless it advances a compelling governmental interest through least restrictive means and that's you know what we've called strict in theory fatal in fact, but in fact, there are cases that do survive strict scrutiny. And my assessment and my thought of it was that you would have under a strict scrutiny regime, a regime that was quite broadly protective of both the kinds of weapons you could own and the rights of law abiding citizens to own them.

kinds of weapons you could own and the rights of law-abiding citizens to own them, but much more subject to limitation and situations of extreme danger or what's seen as extreme danger, such as someone who's been subject to a domestic violence restraining order, for example. That would be a classic example of how strict scrutiny would apply. There's a compelling governmental interest in keeping the gun out of the hands of people who commit domestic abuse, limiting the application of the regulation to people who've actually been adjudicated as guilty of domestic abuse or in an imminent threat of inflicting domestic abuse. That's a classic strict scrutiny kind of formulation that would meet that test.

Whereas with text history and tradition, there wasn't even a category really of domestic violence in years past. And so you end up with something that is in the Fifth Circuit analysis is tied to text history and tradition. is tied to text history and tradition, but in many ways is an utterly irrational kind of ruling that absolutely would collapse sort of public support for gun rights in that context. Very difficult sort of to sustain over the long term, but also deeply contestable. I went back, you know, I read, you read the case and you end up saying, I'm not sure how they get to text history and tradition specifically protects the domestic abuser in this case.

It's quite arguable. And so that's my issue is text history and tradition is so much less certain and so much more in many ways subject to judicially influenced sort of preference than strict scrutiny. Not an intermediate scrutiny, but then strict scrutiny. And I think my prediction is you'll see that in cavanaugh roberts not in thomas but you'll see it in cavanaugh roberts but i could be completely wrong about that that text history and tradition ultimately the supreme court ends to ends up being every bit as if not more protective than strict scrutiny i that could be the outcome but i'm

a little bit dubious given the kavanaugh concurrence and what we know about roberts well what we had before bruin though was not really strict scrutiny though right it was you had the lower courts developing this sort of two-step analysis, which Justice Thomas said was one step too many, basically. I do think that one significant thing about the Bruin slash text history tradition analysis is I do think it has shifted the burden a little bit because I think post-Bruin, it's very clear that the government now bears the burden of showing why, once you've established this person as part of the people who enjoy Second Amendment rights, the government bears the burden of showing why this person or member of the people is not entitled to them. And so, I think to that extent,

this new Bruin framework is more protective of gun rights. Yeah. No, I think that's 100% correct i think the the reason why i highlight strict scrutiny is because if text history and tradition wasn't the test gun rights advocates wanted strict scrutiny they were united that intermediate scrutiny was too too lax like that was my position as well intermediate scrutiny just it's whatever the judge wants. I mean, we've talked about it before. Rational basis, the government wins. Strict scrutiny, the plaintiff usually wins. Intermediate scrutiny, the judge wins. It's what the judge wants. And I thought that that was unsustainable. But the question then was, well, what should the test be? well, what should the test be? And in my view, the argument, if intermediate scrutiny wasn't the test, it was going to be between strict scrutiny or this text history and tradition formulation. And I fully and fully admit to being text history and tradition curious. I have just found it to be more of a mess than I thought it would be. More of a mess that's

going to require more immediate Supreme Court intervention than perhaps applying more conventional and understandable layer, you know, layer levels of scrutiny or strict scrutiny would have been. Well, in an example of how messy this is, the Third Circuit in the Range case was emphasizing the narrowness of its opinion. And it, when you read Judge Hardiman's opinion, it almost sounds like one of those ticket good for this right only sort of opinions. But then I've been reading some media commentary on it. And some media commentators have saying,

oh, this court just held that nonviolent felonies are exempted from felon in possession firearms restrictions. And I don't think that's actually what the Third Circuit held. I think that is overreading it. But what the Third Circuit did hold was, well, this particular guy with this particular nonviolent felony still enjoys Second Amendment rights. But now even in the Third Circuit, you're going to have to have, I think, more litigation because I don't think this clearly, I don't think it's cleared things up. I think it is

very, very messy. One interesting thing that was floated by Judge Krause in her dissent was, well, why couldn't, in this case then, the court just have said, issued a declaratory judgment or, you know, basically a declaration of rights saying that this particular guy going forward prospectively from this point in time onward gets the right to have a gun. But we're not going to say that the gun restriction on him after he became officially a felon was sort of void from the start or void ab initio. And so that was sort of an interesting alternative. Although even under Judge Krause's framework, you still would have had a lot of litigation because then

you're going to have all these one-off felons who want to have guns saying, well, what about my situation? So either way, you're going to have tons. This is a great, for lawyers who practice in the Second Amendment area, you're going to be very busy. This is great. This is a permanent employment act for you guys. Yeah, it really is a So, what are we going to have? We're going to have a litigation about gun rights and every nonviolent felony. I mean, it is just incredibly messy, just so messy. Well, we're already a little over time, but I wanted to get to something that you've been covering. And it's not really something that we've covered so much on advisory opinions, but I think it is interesting. And it's actually something that used to really focus my mind when I was in law school and I was considering my legal career.

And that is how profitable is big law these days? What are the big law firms that are the most profitable firms? How much money can you make as a big law partner? I find all of that interesting, and it's really been kind of a hole in our coverage, but you're on it, David. Yes, I covered this at my Substack newsletter, original jurisdiction, based on the annual rankings put out by the American lawyer, the AMLAW 100 and also the AMLA 200 rankings. And the short answer to your question is, how much money can these partners make? A lot. The profits per equity partner at the top firm for fiscal year 2021 were $7.5 million at Kirkland

and Ellis, which was number two for a while, second only to Wachtel Lipton, which last year had 7.3 million in profits per partner. Full disclosure, I worked at Wachtel a long, long time ago. Wachtel, for many years, was the champ in profits per partner, but Wachtel is a very heavily mergers and acquisitions M&A transactional law-focused firm. And 2021, after two incredible years in 2020 and 2021 for deal, after two incredible years, the two prior years for deal work, 2022 was, I'm sorry, the statistics were for 2022. And 2022 was not a great year for transactional work. And so Kirkland, which has a more sort of balanced practice, I would say, overtook Wachtella for the first time, I think, in something like two decades. But

it's not just these two firms. The 20th ranked firm in profits per partner, Proskauer Rose, their profits per partner in 2022 were 3.7 million. So 3.7 million, it's not 7.5 million, but it's still significant. And one thing I should also mention just for people who are in the weeds of law firm economics, law firms generally do not retain much capital. They have the capital contributions or the so-called buy-in of partners. When you become a law firm partner, you invest or you are asked to put in some money, but generally they pay out pretty much most or if not all of what they earn. So when you hear a 7.5 or 3.7, generally the average or median partner at these firms is often taking home that much. Right. And it's of course not

evenly distributed across the partnership. You'll have one partner, it's at $25 million. You'll have another partner. I mean, that might be high, but maybe. You'll have another partner at $2.5 or $3 million. Now, the interesting thing about this is I remember there's this sort of sense in the practice of law that goes like this. Remember, there's this sort of sense in the practice of law that goes like this. You work for seven years or however long the partner track is. And then you enter an entirely sort of new category of life when you hit a partner. You leave behind the associate life.

You had a new category of life. And you do, in fact, get a big pay bump when you become a partner. But your life actually doesn't really change that much other than what that money can buy for you, you're still working really, really hard. I think that's one thing that is, I think, important for people who are walking into big law. They need to know is there are giant financial rewards that are there. And you're not suffering, quite frankly, as an associate either. But there isn't a commensurate necessarily lifestyle change that goes along with that transition from associate to partner. And that was a sobering thing for me to see when I was a law firm associate.

No, it's so true. I would say that if you turn back the clock much farther, there was this notion of, oh, once you become a partner, you do get more of a life of leisure. Not exactly leisure leisure, but things do let up and maybe you can play golf a little more or what have you. But today in big law, partners are very much working partners. And in some ways, many of them work harder than the associates because even if their billable hour requirements in terms of what they bill to clients might be lower, they have to spend A, lots of time on client development, and B, lots of time on firm administration. And so, it is not unusual for a

partner at one of these firms to work, not bill, but work 2,500, 3,000 hours when you count the administration and the client development. That is not unusual. So yeah, you're taking home millions of dollars. You may not be seeing your kids that much. Yeah. I have seen law firm partners who are able to maintain those tight connections with their family, even though they're working

these hours and they have to really work at it. They have to put together systems and use a lot of their money to hire help for things so that all of their time with the family really is time with the family versus sort of the household maintenance and everything that most of the rest of us do. But I've also seen the opposite, David. I've seen that when I was working in a Manhattan firm, a lot of the partners, they had an apartment in the city and they had what they called the country house or whatever, which was our house in the suburbs. And the family was there full time. And they were there in the apartment in the city quite a bit. And so they were just quite literally

spending half, two thirds time not even living with their family. It still happens. Right. Yeah. And, you know, just one funny, you know, note. And again, I know we're over. I kind of have been toying with this idea for a story,

but kind of the dirty secret of a lot of these two big law partner families is they have more than one nanny. I feel like before the idea of having two or more people to help run your household was this sort of Hollywood celebrity thing like, oh, whatever, Russell and Kimora Lee Simmons, they had a nanny for each child or whatever, Jay-Z and Beyonce or something like that. This is now a thing that is done routinely by couples where you have two big law partners or a big law partner and a GC or CLO, general counsel or chief legal officer of an in-house company. This is becoming increasingly common, but people don't like to talk about it because it just sounds so privileged to have two or more full-time employees to look after your kids and run your household. But this is how people make it work. And when you're making $7 million or $3 million a year, or maybe 3 million a piece or something like that,

you can make it work. Yeah, yeah, you can afford to do that. And that's how they use their resources, their huge resources, to make their family life more sustainable. But it is difficult. Yeah, you can't outsource the love your kids part. Exactly, Exactly. All right. Well, the time flew by and I'm so glad you joined us. And also,

please, folks, if you don't subscribe to Original Jurisdiction, if you've not checked it out, you must. Really, truly, Original Jurisdiction, David's substack is indispensable. It's fantastic. And it's not just analysis. You do a lot of original reporting. I mean, you've been absolutely, as we've discussed on this podcast before, you've been on top of the law school free speech controversies. This original jurisdiction is where you're going to get the first and best reporting on a lot of these law school controversies we've talked about. So please check out original jurisdiction. And of course, please like, subscribe, whatever, review positively, advisory opinions. I really appreciate your reviews.

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