Advisory Opinions - Guns. Ho.

Episode Date: November 10, 2022

Yes, David and Sarah share their post-election thoughts (including the Trump question), but they also talk some law! From Judge James Ho (the scourge of Yale Law School) nudging SCOTUS to recognize an unenumerated right to make a living, to New York state’s gun laws hitting a wall in court… the takes are a-flowing. But none more shocking than David’s all-time top two songs. Plus: David ruefully performs a post-mortem to his midterm pre-mortem. Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore ready i was born ready so Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And whoa, wow.

We've got lots to talk about. We're going to do a little more politics than we normally do. So we're going to start with the midterms, beginning with a rather dramatic revision of my premortem from Tuesday morning, our Tuesday morning premortem, which we said we weren't going to do premortems. And then I did a premortem that turned out to be exactly wrong. Okay, so we'll clarify that. We're also going to talk about an interesting wrong. Okay, so we'll clarify that. We're also going to talk about an interesting tanning bed case out of the Fifth Circuit with a sidebar on economic rights. Sarah's got a short clarification on something. And then we're going to talk a little bit about an injunction in New York against New York's new gun laws. So let's start though, Sarah, with the midterms. This is your arena.

What are you thinking? What are your thoughts the morning after? And there's still a lot we don't know. The House is still up for grabs. The Senate is still up for grabs, which is the shocker. But anyway, go ahead. Yeah, so certainly overall, I would say that election night 2016 was more surprising. However, and I don't know how I'm going to distinguish these two words. I am very tired.

Please forgive me for this entire podcast. We were on set for ABC until about 3am. And then you have to take off all the hair and makeup and stuff before you go to bed. And then a toddler with a poop filled diaper climbed directly on top of me just a few hours after that. Okay. So 2016 was more surprising in its outcome, obviously. Right. But all of the fundamentals were there. And frankly, it was quite easy to explain as soon as you saw results start coming in,

in terms of Wisconsin, Michigan, and Pennsylvania. I think last night, David, was the most shocking election results of my lifetime. Yeah. Yeah. I mean, the thing that was shocking... Because I don't think there's... There's a whole lot we have to discuss

and a whole lot of theories of what we watched last night, but there's no obvious narrative, I think, of what we saw slash are continuing to look at. Carrie Lake looks like she's about to pull ahead in Arizona. Lauren Boebert, I think,

will hold on to her seat in Colorado, but barely. Right. It just, is it a cross-wave election? Is it a January 6th referendum? Is it abortion? Is it, anyway, plenty to talk about. But I I will be digesting this election for weeks and months. Yeah, I think that's a very fair assessment. And again, on 2016, I think the thing that was shocking is that it was Donald Trump. If you remove from that, which is like the elephant in the room, but if you remove from that, the Midwest had been trending towards Republicans. Romney had done a lot better in the end. And I did not, I simply was unable to imagine a world in which Donald Trump, the human could be elected president of the United States. But I was at Harvard Institute of Politics that fall in residence. And there was a woman whose husband was running Michigan for Hillary Clinton. And she was making the point that like Michigan was a done deal. And so there was no path. And this was on the Friday before election day. And I remember saying like my operative instinct kicked in.

And I said, Hillary Clinton just announced that she's flying to Michigan on Monday. You don't do that unless your polling shows something dramatic has happened. Because even if your polling shows that it's tight, you're not going to believe that because it's Michigan, which means their polling showed that she was down in Michigan, which is why the only reason your most valuable asset in those last 72, 96 hours is your candidate's time. And they flew her to Michigan. They didn't go to Wisconsin. And so I remember saying in that room, I was like, something is going horribly wrong in the Midwest. Donald Trump is pulling ahead, but there's no way he can win. You know, it was like, yeah, it was the dumbest thing I think I ever said out loud.

Well, because it's like I saw it, I knew it, but I just couldn't possibly accept the then conclusion you would draw from that. Well, it was the fundamentals were pro GOP. Well, it was the fundamentals were pro-GOP, and I just couldn't wrap my mind around the idea that Donald Trump was going to ride those fundamentals into the White House. But 2022, the fundamentals should have been really pro-GOP. I mean, you've got a midterm. So think just putting this in historical context. Putting this in historical context, the last time in a generation where the out-of-power party didn't do pretty darn well in a midterm was 2002. And that was when Bush was sitting still at about a 63% approval rate after 9-11. I mean, there's a lot of reasons why 2002 was an outlier. And here you have.

But the approval ratings alone explain it. It's not an outlier. If you include the approval ratings, you don't need to know about 9-11 or the mood of the country. All you need is a 63% approval rating that can overcome it being your first midterm election. Right. Yeah. Very well said. And in this case, if you're looking at Biden's approval rating, it was exactly in line with the approval ratings of multiple presidents who got swamped, whose party got swamped in the midterms. The thumpings. Thumpings. And then you had a lot of polling data sort of towards the end. Everything was arcing red and arcing red rather dramatically. And so you had a lot of the people kind of weigh this more subjectively, really adjusting the odds towards in the Republican favor. There was a lot of triumphalist pre-morteming for Republicans. And my goodness, I mean, and the interesting thing was so the DeSantis walloping happens early in the night.

And in a weird way, it was sort of the reverse of the 2016 dynamic where everything was coming up roses for the Democrats very early in the night in 2016. And then by 9 or 10 p.m. Eastern, you realized, oh, man, this is changing. Eastern, you realized, oh man, this is changing. DeSantis wallops Charlie Crist, Rubio wallops his opponent. And early in the night, everyone is thinking this is the Republican night. And then it turned out that the red wave was in one state. So strange state. So David, I think we, I think that this will be the definitive take on why the results are what they are, but it doesn't explain why this happened, which is for the first time that I've ever seen, for people who said that they disapproved of the president, but somewhat disapproved. Instead of strongly disapprove, the somewhat disapproved of the president's job performance favored the president's party. That's what we don't see in those other first midterms. If you disapprove of the president, you don't vote for his political party. That wasn't true this time. And so that's where you have to pull apart. Okay,

so you didn't like Biden. You don't approve of the direction he's taking the country, but you voted for Democrats anyway. Now explain that. And I have a few options, David. I'm going to give you some grab bags. Look, one is that this is a cross-wave election, that you did have a big red wave because of the economy, because of inflation, because of gas prices.

But you had a cross-wave that hurt Republicans, and that was Trump, abortion, January 6th, this overall feeling that the country was careening, that Republicans were too extreme as well. Republicans were too extreme as well. And so the two waves canceled each other out, which is why what you are seeing actually looks like a referendum on the status quo. That everyone was like, you know what? Let's just stick exactly where we are. Incumbents did incredibly well last night. It's these open seats that we're really talking about

that maybe switched, Pennsylvania being an example of that. But the status quo, I think, misses the turbulence under the water. And so that would be the cross-wave election theory. You know, the other theory is abortion, David, and I wanted to get your take on that. I had said heading into this, I'd written about it, that it was going to be hard for me to know what data to look at that would actually persuade me one way or the other on the role abortion played in this election because of my known hatred, visceral hatred of issue polling. I don't care what the exit polls really say because it turns into a chicken and egg problem.

If Democrats ran all their ads on abortion, then people are simply more likely to say abortion is an important part of their vote, when in fact it's a reflection of them being a partisan Democrat. That all being said, David, I certainly think there's a lot of smoke there on abortion. Maybe it's not a raging fire, but it's hard to say. I certainly, absolutely cannot rule out the possibility that abortion played a large role in this election. Yeah. And this goes to my correction on the premortem. So yesterday I was pretty confident as we were seeing all of the data sort of pointing red, that abortion wasn't going to be a dispositive issue. And I don't think it's proven that abortion was dispositive. There were a lot of things going on at the same time here where you had some weird candidates that the Republicans ran.

You know, you had a lot of candidate quality issues in some races. You know, you had a lot of candidate quality issues in some races. But in places where you can start to isolate it, you definitely saw a pro-choice lean. So here's one area that says maybe Dobbs mattered more than you might think. There are a bunch of abortion referenda on the ballot. And it looks like in every single one, either the pro-choice side has won or is winning. So California had a pro-choice referendum. That's going to win.

Michigan had a very closely watched pro-choice proposition. And the pro-choice side is winning there. Vermont. And outperformed Gretchen Whitmer, and they flipped the state legislature. So it is, again, that chicken and egg problem. Did abortion drive turnout or did Democratic turnout drive the abortion referendum? But that's where that gap between Gretchen Whitmer and that abortion ballot measure is really meaningful to me and is at least some evidence that abortion turnout actually drove that train because some of those people then didn't vote for Gretchen Whitmer. Now here's where it gets interesting.

Kentucky, red state, a pro-life amendment looks like it's failing. Montana. With a Democratic governor in Kentucky, similar to Kansas, we're seeing very similar Kentucky vibes to those Kansas vibes. Yep. Montana, pro-life state as of now, the pro-life referendum is failing. You know, look,

let me put it this way. There is a lot of ammunition for the argument that Dobbs made a difference for the Democrats, and there's not much ammunition for Republicans that it wasn't, was anything but a net negative for them. to think about here is, as we talked about, had this really fun internal discussion on our Slack channel at the Dispatch, what else did the Democrats have to run on? You know, Dobbs and democracy were kind of it because inflation was very high. Crime was very high. There was a lot of arguments about, you know, everything's down in violent crime except murder. Well, you know, when the except is murder, that's, you know, not a great argument. So this was in many ways, if you look at a lot of the fundamentals, whereas the fundamentals were things that should have given Republicans hope in 2016. the fundamentals from Biden's low approval rating to a lot of the condition of the country and economic anxiety and decline of real wages everything appeared set up for a you know a strong red showing and I think it's a combination of Dobbs the combination added together with some

crazy candidates you know that the MAGA movement really. Really, here's, I want to get your thoughts on this. What if, Sarah, the real effect of the election denial movement wasn't so much that a bunch of voters voted against sort of the party of January 6th. In other words, they were voting against insurrection. It's that the party of January 6th, because it was in the grips of election denial, didn't take the lessons that it needed to take from its losses in 2020, believed that it was still on the right track, even after voters had told them no, and then went back to the same playbook that lost them the election in 2020.

And now they've lost again a bunch of winnable races. And maybe that's the actual effect of election denial. Oh, let's definitely move to the, is this Trump's fault portion of the post-mortem. Because there's the high level, is this Trump's fault portion of the post-mortem. Because there's the high level, is this Trump's fault? Candidates that he backed were very weak. But I will say, Republicans have a long track record of picking candidates in primaries that are incredibly weak. C.E.G. Todd Akin, right? Like Sharon Engel, Christine O'Donnell, the witch. The not a witch, sorry.

Right, right, not a witch. Let's be clear, not a witch. And you look at Yunkin's win in Virginia. We'll sort of pull in the 2021 stuff a little bit. Add that to Kemp and De and dewine it gets really interesting and then of course add in desantis those are the people who overperformed expectations and then everyone else underperformed none of those people i mean desantis you could argue was a trump pick at one point he certainly isn't now no trump moved against kemp in the primary doesn't

like dewine yunkin held him at arm's length and if i assure you if yunkin hadn't won trump would have attacked him um so it was a great night for those republican governors which would you would think would just be an easy thing for tea leaves to read here of who did well and who did poorly and what's the through line there. But, and I want you to be able to talk about that. But before we do, I want to mention just some other maybe less notable things that Trump created for the party. The one you just hit on, I think is exactly right. This idea that when you lose elections, you don't need to learn anything from them because you didn't really lose. So you learn nothing and you just hit your head against that same wall again. Cool plan. That is

definitely a gift of Donald Trump. Two, moving Republican voters to election day instead of early vote. Actually, you know, pre-2016, Republicans had a slight advantage in mail ballots because of the olds. The old people would vote absentee. Now, overall, we're talking much smaller numbers than we're talking in a post-2020 environment, but this really helped Republicans because on election day, you've got X number of people. Those man hours are all on get out the vote efforts. And you know, basically, who has voted during the day. And so you're dwindling down and you get really concentrated man hours per vote there at the end, if you've been able to bank a lot of early votes, which Democrats

in spades now have been able to do that. And so on election day, they've got, you know, a hundred people for a thousand voters and they're just rage dialing those people showing up at their home. Let me walk you to the poll. Do you know where it is? It's just down the street. Yeah. Republicans now don't vote absentee at all. And so on election day, those hundred Republican GOTV volunteers are trying to turn out 10,000 voters. Now, obviously my numbers are made up, but the point is it gets a lot more diluted. It's a lot harder to know where you are on election day. And just, it's, it's a difficult thing that he has handed the Republican party, just an unnecessary handicap. And then of course, David, it's, it's a difficult thing that he has handed the Republican party, just an

unnecessary handicap. And then of course, David, there's the last one, which I think is least impactful, but telling nevertheless, which is the money. Donald Trump is still sucking up an enormous amount of the fundraising dollars on the right, and then not spending any of it to help the candidates that he pushed through these primaries. The reason I say that that one's not very impactful to me is because all of these campaigns, I think, had more than sufficient money and the marginal value of additional dollars was very low, actually. When we're talking about the Senate races, there might be some congressional races that you could point me to that I would be persuaded that maybe money could have made more of a difference, but probably even probably not. Nevertheless, huge handicap for the Republicans that all of their money is being

siphoned off. And those are just some of the, again, like operational side handicaps. And it doesn't even get to the vibes of Trump the night before, you know, giving this, this rally. I mean, did you watch that with the music in the background? It was sort of like Enya spa music slash Death Star music as he announces that he's going to announce. And I was like, are we, is that what we do now? We do sort of movie style music behind speeches. Maybe that works for someone. I don't know. Maybe. Well, it's interesting because if you want to rewind the clock a bit, the Democrats had a lot of reason to believe that the Obama coalition was their ticket to future

victory. Because for a couple of reasons, one, primarily it was a majority coalition. Now, the Obama coalition was a majority coalition. Turns out the Obama coalition was a majority coalition. Turns out that it needed Obama a lot more than they knew it did. They thought that Obama may have assembled a Democratic majority coalition, but Obama was also a gifted politician, a gifted, you know, a gifted campaigner. And so he was really important to the success of his coalition. The Republicans' Trump coalition was never a majority coalition, never. And so there were a lot of folks who said,

well, the Trump coalition is a winning coalition. Well, Trump kind of drew the inside straight in the electoral college by around 50,000 votes. And a lot of people, if the Democrats overinterpreted actual majority wins with Obama, the Republicans way overinterpret, loss of the presidency by almost 8 million in the popular vote, loss of the Senate. And still, in large part because that Trump coalition kind of bullied dissenters into silence, said, this is the way, this is the way. And it's not the way. This is the way. And it's not the way. I began to see some folks finally saying last night, some smart folks, can we have a conversation about whether the Trump coalition is actually a winning coalition? And there seemed to be this sort of unshakable conviction in spite of the fact that he never got a percentage of the vote, even as high as Mitt Romney's, that they cracked the code to lasting electoral success.

And again, this goes back to my argument about the election denial aspect. One of the reasons why Republicans lost, I think, is because of election denial, because they were in denial that they had not formed a winning coalition, if that makes sense. So looking forward, I think there's three things we have to talk about that are in the future. One, the Schumer strategy worked. Chuck Schumer spent $53 million in Republican primaries boosting the more extreme Republican candidate. He funded 13 Republican candidates in primariesaries six of those candidates won their primaries democrats won in all six of those races um i think that's really important and i think it's really bad and we've talked about all the reasons that it's bad before this idea that now parties will try to game the system and run the risk that the terrible person or even democracy shaking person will win in order to give their side a boost. The fact that Schumer's strategy worked last night will only make that way more likely on the right and the left moving forward.

And I don't like that. Number two, Georgia's going to a runoff again. Sorry, folks living in Georgia, that's going to suck for you. It's not that far off. You got less than a month. So, but like barely less than a month. And David, I just thought it was very funny what someone pointed out that if Trump moves forward and announces for president a week from now, he could cost Republicans that Georgia Senate seat twice. Again. So much fun. The same seat to the same candidate.

And yeah. That's right. Just once again. And then third, of course, everyone's focused on 2024 now and the Republican primary and what this all means. Does this mean Trump won't run? DeSantis is too strong. Would big fundraising numbers for DeSantis persuade Trump to hold off? No, none of that. I think the big question right now is whether you're going to have all these other people in the field. This will be a large Republican field in part because of last night. Nobody's getting scared off about running against Donald Trump based on the

results last night. Quite the opposite. You're looking at candidates like Greg Abbott, Ted Cruz, Asa Hutchison, the governor of Arkansas, Mike Pence, Glenn Youngkin, and obviously Ron DeSantis, Tim Scott. This is just like the ones on the top of my head. And either you're going to have the 2016 repeat where it's all of those people versus Donald Trump and they fight amongst themselves for who's going to get the head to head with Donald Trump, which strategically makes sense, except if you live through 2016,

when then nobody got the head-to-head against Donald Trump until it was way, way too late. Or will it be Trump versus DeSantis? And that will be the focus and everything will be seen through that lens. And all of those other people won't actually be able to get enough oxygen to even really make it to Iowa, for instance. David? Yeah, I was much more,

I'm interested in not in so much as to whether people are now scared off from taking on Trump, than did the sheer magnitude of the DeSantis victory, which was about 19 points margin by the time I went to bed last night, would that scare people off from taking on DeSantis? In other words, did DeSantis perhaps clear some of the field as saying, look, everyone else who's trying to be the Trump alternative, I've already got that lane.

I've already covered that corner and that's me. And I do think that there are people who are ambitious enough to say, I'm not really ready to concede this to DeSantis yet, but I do wonder if that will, you know, Tom Cotton has said he's not going to run. He was somebody that a lot of folks were saying was going to run, had laid a lot of groundwork for running, But I think that was a realistic decision for him to say no. But yeah, I was much more curious because as of right now, there is a wide open possibility that you might see Fox, for example, start to become the DeSantis News Network in some of the ways that it was sort of the Trump News Network for a while. And some of the ways that it was sort of the Trump News Network for a while, because there's a lot of cover on the right now to jump on the DeSantis train and not the Trump train.

And so I do wonder, and it's going to be very interesting, though, I think if the Democrats pull out Nevada, which it looks like they I mean, the Republicans pull out Nevada, which they very well might, then Senate control is likely going to come down to Georgia again in the Georgia runoff. And I'm just, are you convinced that Trump says I'm running on the 15th? Are you convinced he does? Is he, you're convinced. Okay. How can he back down? It's true. He's already saying that the reason that Baldock lost in New Hampshire is because he flipped on the election rigging, right? It's, it's your point that you made initially. You don't lose these races. They're taken from you. And therefore you don't need to learn anything from it. Right. Right. Exactly. So yeah, I think he announces, I think it hurts in Georgia. I think overall Republicans are feeling pretty depressed today and Democrats are feeling pretty emboldened. And that's not how you want to head into a runoff if you're the Republican side. work clearing the field. But I don't know, man. I feel like the type of people who run for president in the first place are not easily dissuaded by rational arguments. And by the way, when I listed

out all those names, I didn't even include the Larry Hogan, Liz Cheney. I throw maybe Chris Christie out there as well. I mean, there's a lot of names. Mike Pompeo and Nikki Haley, I think both are not going to run if Trump gets in at this point. They actually might be the ones most dissuaded by Ron DeSantis as well. But a lot of people are laying more than groundwork. Well, and also the other thing is they're going to look at the Democrats where on their side of things, the argument that Joe Biden should step aside as being a drag on the party just took a big hit. And their lack of alternative, which I've said all along. Yes. Replace Joe Biden with whom? Yes. And so you've got a lot of Republicans

looking at the Democratic side and saying they're kind of in a pickle. You know, they're if I can get past Trump, I'm going to be a favorite for the White House. That's what they're going to be thinking is I'm going to be the favorite to win the White House. My bigger challenge might ironically be getting past my the failed presidential candidate in my own party. presidential candidate in my own party. So I think that there's a lot of incentive for people to run just by looking at the democratic dilemma. And, you know, if I'm Joe Biden, I'm sitting there and I'm saying, why is everyone telling me to move aside? I won the presidency. I've had the best midterm showing since when Bush was at 63% approval rating, the Republican seems set to renominate the guy I beat. Why am I stepping aside? Apropos of nothing, David, Joe Biden's birthday is November 20th. He will be turning 80 years old.

Yeah. And this goes to something that you've been saying. He's running again. He's running again, barring major health issues. He's running again. he's running again barring major health issues he's he's running again i think he both wants to and feels that he has to and those might switch which one is the winning argument on any given day but either way you gotta go all right david let's do some law some law okay we had a really interesting case come out of the fifth circuit. Now it was interesting, not because of the outcome of the case. The outcome of the case was kind of a foregone conclusion. It was interesting because of the concurrence on two counts. So this case is called Golden Glow Tanning Salon Incorporated versus the city of Columbus, Mississippi.

And the case was surrounding the decision of the city of Columbus to shut down Golden Glow Tanning Salon for seven weeks at the outset of the COVID pandemic. So essentially what the tanning salon said was that this was an unconstitutional order in part because or because on a number of grounds, one of them equal protection that Golden Glow was saying that similarly situated businesses were given preferential treatment to that other commercial establishments were allowed to open before the tanning salon was allowed to open. So that's an equal protection violation. The court said no to that. The court applied rational basis review, which is the lightest level of review to the decision to shut down the tanning salon, said it easily passes rational basis review, said there wasn't a takings under the Fifth Amendment. The takings clause wasn't implicated because there was not a demolition of the economic productivity of the property. There was just a temporary deprivation of the use of the property for some productive purposes. So the case was not surprising at all in its outcome. What was interesting about the case was the concurrence. And I want to read, this is Judge Ho,

who we've talked about a number of times. And let's real quick just remind listeners who Judge Ho is. So this is Judge James Ho. He was appointed by Donald Trump. He had been Solicitor General of Texas, University of Chicago law grad, David, and clerked for Clarence Thomas. I think it's also relevant that he is part of one of the premier legal power couples. He's married to Alison Ho of Gibson Dunn,

who we've talked about for her work on some of these religious liberty cases. And remember, we had that associate right in who is touting the opportunities that Alison gives young associates and pro bono work at their firm. So that is the Jim and Alison duo. And of course, we've talked about Jim Ho

before on this podcast, because he is the judge who is boycotting future Yale law students based on the shenanigans at Yale. We've also talked about some of his opinions before. He wrote the concurrence in the Dobbs case when it was at the Fifth Circuit, for instance, and plenty of other concurrences and some major cases as well. So Jim Ho, no stranger to being mentioned on this podcast. Yeah, and he's also, so yeah, he's been in the news for his opinions. His opinions can be spicy.

He's been in the news for his Yale boycott. He's one of the more, he's become one of the most prominent circuit judges in the United States. And unquestionably, he's on a Republican shortlist for a Supreme Court opening. Now, there's lots of other people on that shortlist. I think Amul Thapar, who we've talked about plenty, is leading that shortlist by sort of any whatever measure we're using here. But Judge Ho is absolutely on it.

And I would say he's on it almost no matter who wins a Republican. Yeah. Although worth noting that he's very close friends, personal friends with Ted Cruz. So if for some reason Ted Cruz became president, he would move up that list quite quickly. Quickly. Yeah, right. So Judge Ho did the thing that we've talked about quite a bit, which is file a concurring opinion, which is essentially asking the Supreme Court for stuff. In other words, saying, hey, I know that this is the way I've got to rule because of precedent, but shouldn't precedent be different here? And I'm going to say, Sarah, he's got a

point. Okay. He's got a point. Now, I don't know if it's as much of a point as he is arguing, but he's got a point. So here's how the opinion, his concurring opinion starts. The Supreme Court has recognized a number of fundamental rights that do not appear in the text of the Constitution. But the right to earn a living is not one of them. Despite its deep roots in our nation's history and tradition, one of them, despite its deep roots in our nation's history and tradition. Governing precedent thus requires us to rule against the countless small businesses, like plaintiff here, crippled by shutdown mandates imposed by public officials in response to the COVID-19 pandemic. Cases like this nevertheless raise the question, if we're going to recognize various unenumerated rights as fundamental, why not the right to earn a living?

And what he's referring to here is, as we've discussed mainly in the context of Dobbs, is that the Constitution, the Bill of Rights, Civil War amendments, etc., enumerate various rights, right to free speech, right to exercise religion, right to due process, right to be free of cruel and unusual punishment. All of the enumerated rights, equal protection, all of these rights are enumerated. But that is not the sum total of all of the rights that Americans enjoy. The Constitution explicitly notes that there are unenumerated rights.

And the court has held some of those unenumerated rights include the right to gay marriage, the right to interracial marriage, the right to contraception, the right to control and direct the upbringing and parenting of your child. These are all rights that are recognized as unenumerated, but nonetheless fundamental rights.

And what Judge Ho is saying is, shouldn't the right to earn a living fit in that list? Shouldn't the right to earn a living fit in that list? And now some constitutional history, going back to the Lockner decision, a 1905 decision, which turned out to be a really maligned decision, essentially said that the economic regulation was inhibiting workers' freedom of contract. And absent a truly compelling health and safety justification, economic regulation, which limited workers' freedom of contract, was going to fail.

Now, in the New Deal era, Lochner got shoved aside. In essence, Lochner gone that there is a wide, broad range of power for the court to regulate economic activity. And so since that, and one of the key cases is a 1955 case called Williamson v. Lee Optical. And the court's opinion says this, the day is gone when this court uses the due process clause of the 14th Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. And so what this did is it granted the government wide latitude to regulate economic activity. And Judge Ho is asking, I think, an interesting and good question about, is that latitude too broad? Yeah, David, I think this opinion is interesting on a few levels.

One, it tells you where that balance within the conservative legal movement has shifted. tells you where that balance within the conservative legal movement has shifted. This sort of economic liberty stuff used to be kind of left over to the libertarians at Institute for Justice and Cato and was seen as conservative judicial activism. And judicial activism was bad. So even if you put the word conservative in front of it, it didn't matter because once you start finding unenumerated rights, the thought was there will be more unenumerated rights that help the liberal legal movement than the conservative legal movement. And so they've been sort of shunted off to the corners of the Federalist Society conventions. I mean, sometimes literally. And here you not only have Judge Ho on the Fifth Circuit,

but frankly, Judge Willett, who's also on the Fifth Circuit, has been a longtime proponent of this sort of economic liberty, unenumerated rights type judicial, conservative judicial activism. So I found it really interesting just from a trend line. Um, second, of course, it's not a coincidence that we mentioned that Judge Ho is on the Supreme Court shortlist for any Republican president in the near term. Because, and I've talked about this a little before, with the end of the filibuster, how you audition for the Supreme Court has changed really dramatically. And I think this concurrence is a good example of that. Um, you know, again, we've talked about this, but pre filibuster or rather during the judicial filibuster era, if you wanted to be on the Supreme Court or wanted a circuit judgeship for that matter, you didn't want to write a lot. You didn't want to pin yourself down because you were going to need votes from the other party in order to get on any court you wanted to. And so Chief Justice John Roberts

becomes a model, if you will, of not saying much, not taking a lot of public stances, keeping your head down, being a charming human so that at your hearing, there's not a whole lot they can say to you other than like, you seem like the John Hamm of judges. then you seem like the Jon Hamm of judges. Now, post-filibuster, it's the exact opposite. You don't need to win anyone from the other party. You need to win over your own side and stave off threats from the right or the left, depending on which political party you think will nominate you.

And so not only, I I think has that moved judges in their ideological wings further to their respective corners, but it also means that you benefit from sort of showcasing your work unlike in the filibuster era. And so concurrences like this, there's a reason we're seeing a lot more of them, whether it's on some of these gun cases or there's jokes in them. There was a real cost to that in the filibuster time. Not only is there not a cost, but I think there's a benefit now. And then substantively, David, of course, I think it's really interesting. There's a lot of these economic regulations that I think people would find abhorrent. A lot of them come in the licensing context, you know, that you have to spend a thousand hours and $8,000 to be a florist in Louisiana. Again, I want to be clear, I'm making up those numbers, but this idea that

there's community capture by the people already in an industry in order to keep competition from coming into their industry. Horse dentistry, florists, eyebrow threading, hair braiding, I know are all big regulated industries where you have to have licensing for something that most people would probably think you don't need the equivalent of an associate's degree, or sometimes even closing in on a bachelor's degree of separate licensing in order to do some of that work. This isn't quite that, but it's the same substantive legal theory, if you will, David. Those cases were often losers. It was like, well, you have the right to create these licensing schemes. And how are you going to differentiate the prudential considerations of a legislature who thinks that a florist needs to be licensed or an interior decorator? I remember that case. These have all been court cases, by the way, that I'm remembering. I'm not just remembering actual legislation. These are court cases that have been brought. These are court cases that have been brought. If the legislature says a florist needs to be licensed in our state and licensing regimes have become so draconian in in many jurisdictions that even with the more

permissive legal doctrines institute for justice and others have been able to win a lot of those cases and this is one of these areas where i've been much more on the libertarian side of the argument for a very long time. I've always thought of that if we do have unenumerated rights, and we do, we do have unenumerated rights, the fact that we have unenumerated rights is enumerated in the Constitution. It's a known, it's an unknown known. Wait, no, a known unknown. A known unknown. Exactly. And so the ability to earn a living, that ability to engage in productive economic activity, to me seems to be absolutely within the purview of one of those rights to use the phrase of from substitute due process law, which is implicit in the concept of ordered liberty. And so, absolutely, absolutely. Now, the question is, to what extent, to what sort of level of scrutiny

are you going to apply? But I think at a fundamental constitutional level, Judge Ho is right, and that we would recognize that he was right more readily if a lot of this case law, if this sort of the Lochner world wasn't swept away by the emergency of the Great Depression. That was a moment in American history where there was an enormous groundswell of support for economic regulation of governmental regulation and command and control of the economy and the question is did that go too far did the doctrine go too far and i think there's a good argument that it did yeah i mean yes but i think it's worth highlighting you know lochner and its progeny we're talking talking here, minimum wage laws, health and safety regulations, hours limits, child labor. Now, I think you can get to the child labor from a different direction. You know, a 12-year-old probably doesn't have the right to contract.

Right. The freedom of contract of a 12-year-old is a little doubtful. right the freedom of contract of a 12 year old's a little doubtful these were the these were the things happening as the industrial era really picked up steam and we moved from a more agrarian economy um and folks moved into the city and their labor i don't think it's that in dispute was being exploited and you weren't going to have a whole lot of other options and yeah maybe you had a freedom to contract but you didn't have a freedom to unionize. And so it was, you know, you saying that you didn't want to work 18 hour days, seven days a week, and then saying, great, we'll find someone else who will. Well, right. I mean, I, that's why I said Lochner, the response to Lochner was too far. Not that Lochner was.

David wants to bring back child labor. That's my point here. Nobody would forget that. No, of course, the bread flour and hailing and all of that stuff, I think you can also get to safety regulations separately from Lochner as well. Which brings me to the other aspect of Judge Ho's opinion

that even though he's correct, I think that economic though he's correct, I think that economic liberty should be recognized, that a degree of economic liberty is a right to earn a living is something that should be recognized as an unenumerated right. The COVID environment, a pandemic environment, is where state authority is going to actually then still be at its apex. is where state authority is going to actually then still be at its apex. That health and safety, public health is a traditional sphere of police power of the state governments and has been for a very, very, very long time, as we talked about, a ton during the early courses of the pandemic. And so stating that there is a right to earn a living does not get you necessarily

to, and that right persists in the face of an infectious disease pandemic. That's where state authority and state interest in health and safety regulations is really at its apex. So even under Ho's formulation of a right to earn a living, I'm not so sure that a sound constitutional doctrine would allow the tanning bed to win even in that circumstance. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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that the government needs to prove that he knew he was a felon, not that he therefore knew the implications of that. Of course, you don't need to, ignorance of the law is not a defense. You can't get pulled over and say, you didn't know the speed limit wasn't 90 miles an hour. And it's just a little interesting on how some of those work. So like an illegal immigrant would have to, the government would need to prove that they knew they were in the country illegally, but you wouldn't need to prove the person knew being in the country illegally meant they were prohibited from possessing a firearm. That's sort of the implications of this. In Rahoff itself, the defendant came to the country legally, maybe on like a student visa

or something. And then that visa was revoked or expired when they stopped being a student, presumably. And his argument was that the government didn't prove he knew he was in the country illegally after his visa was revoked or expired. They didn't get to the next question of whether you then needed to prove that he also knew that meant he couldn't possess a firearm because the court held that, well, you certainly need to prove that he knew he was in the country illegally, or in this case, knew he was a felon. And the argument at the Supreme Court is now more around that question of, yeah, but do you also need to show, in this case, you know, he had the 11 felonies that he says he thought was expunged. And how is that going to interact with his

knowledge of possessing a firearm, et cetera. So thank you to the federal prosecutor who sent me that nice clarification note. You're exactly right. I was talking too quickly and I skipped over some of the nuance there. All right. Well, speaking of guns, there was an injunction entered against New York's new gun law. Now, one of the things that's important to understand when you have a ruling like you had in New York State Rifle and Pistol Association versus Bruin, which says that there is a right to bear arms, but then does not actually specify sort of the, as court cases typically don't, but sort of specify what is the actual legal regime that's permissible. What New York did is it went back and tried to pass the most

restrictive concealed carry law that it could, that they thought could possibly still comply with that they thought could possibly still comply with Bruin. And this, it was called the Concealed Carry Improvement Act, which, and I'm reading from a district court opinion here, generally replaced the proper cause standard with a definition of the good moral character that's required to complete the license application or renewal, a requirement that the applicant provide a list of current and past social media accounts,

the names and contact information of family members, cohabitants, at least four character references, a requirement that applicants attend an in-person interview, a requirement of 18 hours of in-person and live fire firearm training in order to complete the license application or renewal, and a list of sensitive locations and restricted locations where carrying arms is prohibited. That was going to fail, Sarah. That's going to fail, and it did fail in the district court. The district court has enjoined a provision requiring good moral character, extremely subjective standard, enjoined a provision requiring names and contact information for spouse, domestic partner,

other adults, enjoined a provision requiring list of former and current social media accounts, enjoined a provision requiring such other information required by review and enjoined a number of sensitive locations as enjoined limiting the number of sensitive locations or specific sensitive locations that the court specifically enjoined the state from enforcing its new statute. And this was the most predictable thing ever, in part because if you're going to have a right under Rifle Pistol Association v. Bruin to bear, the more that the right to bear, it depends on any form of subjective governmental judgment

as opposed to an objective standard, such as everyone who passes a criminal background check or everyone who takes an eight-hour class, something that's far more objective, the more that you play something under subjective standards, it's not going to be deemed a right to bear. And so it was extremely predictable for this statute to be enjoined. I would be shocked if the statute was upheld on appeal. But it's also instructive because this is the way a lot of governments try to evade court rulings, is they'll remove the offending statute and try to replace it with a statute that does basically what the offending statute did originally, but in different words. And so a lot of these cases actually devolve into trench warfare waged over a period of years rather than a situation where you have kind of a clean

victory and it's over. And then all of a sudden, New York is like every other state. That's not the way it works. Yeah, David, I mean, I think this one's pretty straightforward. It made a bunch of headlines, but pretty good application of the Bruin decision. As you said, I think it comes down to the subjective versus objective criteria. But I do think there's some gray areas there of something akin to voter ID, right? This idea that with voter ID, for some people, you're going to then need to go get an ID. That's still an objective criteria

to vote, obviously. And I think certainly for gun possession, bearing arms cases, there's going to be objective criteria that are nevertheless onerous. I agree with that. And one be objective criteria that are nevertheless onerous. I agree with that. And one of the criteria that could be onerous is how long of a training requirement is there, for example, or how expensive is the permit? You know, so yeah, everyone who pays $20,000 can get a carry permit.

Look, it's objective. Yeah, it's right. It's, you know, just pay it and you get it. No, you're exactly right. There are objective criteria that can be so onerous that it constitutes a deprivation of rights. But you don't even get to that here because the objective criteria, there were, it was extremely subjective. What is good moral character? Now, the interesting question would be, could you do something where you say, here are the objective criteria.

You can get a gun if you pass a background check, if you pay a reasonable fee, if you attend a reasonably lengthy, if you attend a reasonable training session, but you cannot get it if you are subject to red flag criteria. So I think red flag laws are constitutional. Could you incorporate a red flag type analysis into the concealed carry permit process? That's an interesting question. And I think you probably could, but it is a real matter of how would you craft it? So I do think that is an interesting question. Sarah, can we end on some interesting numbers to put a sort of a period on how we started the

conversation? Okay. All right. So I was looking for this while we were talking, and this sort of puts in perspective what happened last night. These are approval ratings since 1994 of presidents with seats gained or lost. All right, so in the House, 1994, Bill Clinton approval rating 44%. He lost 54 seats. Democrats lost 54 seats. 2002, George W. Bush approval rating 63%. His party gained eight seats.

2010, Obama 45% approval rating. His party lost 63 seats. 2010, Obama, 45% approval rating. His party lost 63 seats. 2018, Donald Trump, 46% approval rating. His party lost 40 seats. 2022, Biden, 44% approval rating. So that is 1% below Biden, 44% approval rating. So that is 1% below Obama when he lost 63. The same approval rating as Clinton when he lost 54. And he ain't losing anywhere close to those numbers. So that's why this is so surprising. Before we go, David, I need a few of your top 10 songs that I asked you to prepare. Oh, okay. A few of them? 10 songs that I asked you to prepare. Oh, okay.

A few of them? All right. Okay. Well, I've got two from the same album. U2's 1987, The Joshua Tree, of course. Where the streets have no name and I still haven't found what I'm looking for. Phenomenal. Okay.

I really hate you too. Please continue. I will turn the radio off. Oh, you've got to be kidding me. All right. Another one. Now this is going to be complete, absolute, grotesque nerdery. But are you ready for this one?

It is the best song ever about the anxiety of the nuclear age. And it's called Manhattan Project, and it's by Rush. So again, this is like absolute incredible nerdery.

So here's another one. One of the most evocative songs about the South, Seven Bridges Road, The Eagles. You're noticing maybe an era. Yeah, a little bit. Little generational pull here. Yeah. Yeah.

So those are a few of them. Run through the rest. Let's just see if you have any that aren't pure generational nostalgia. No surrender, Bruce Springsteen. Um, phenomenal song about friendship as he says in the, as he opens the song to, uh, but I haven't gotten all my 10 yet, Sarah. Okay. Yeah. I haven't gotten all my 10 cause I have a couple of hymns in there. Um, and yeah, so, but that, that, that of pop music, that's, that, that's this entire experiment was a trick question because the answer is there's only one song and it's Jeff Buckley's Hallelujah.

Really? Yeah. Hmm. I've never loved that song. That's weird. Really? Yeah. No, I mean, it's beautiful. Yeah. I mean, look, that's, it's just, it's haunting. It's beautiful. It's what, it's all the things that music is supposed to do. I actually do like the original lyrics by Leonard Cohen a little bit better, but performance is an integral part of any musical experience. But the lyrics that Jeff Buckley leaves out, I did my best. It wasn't much. I couldn't feel, so I learned to touch. I've told the truth. I didn't come all this way to fool you. touch. I've told the truth. I didn't come all this way to fool you. And even though it all went wrong, I'll stand right here before the Lord of song with nothing on my tongue, but hallelujah. Come on, David. That is good. Okay. That is good. That is good. That's not a song for AO. I don't know what it is. Well, my, so my favorite, I think it's my favorite hymn, which also happens to be my favorite, my favorite Christmas carol as well, is by Henry Wadsworth Longfellow. Really? Yes.

I don't even know what this is going to be. It's not an incredibly famous carol, but it's based on a poem called Christmas Bells that Longfellow wrote. And he wrote it on Christmas Day in 1863. And the aftermath of really incredible personal suffering, he'd lost his wife, Fanny, in an awful accident in July of 1861. Two years later, his son, Charlie, had suffered serious wounds in a skirmish in Virginia. He heard the news on December 1st and rushed to Washington to be with his son. And so he wrote this days later. And it's really powerful. And he says, you know, some of the lyrics are, I heard the bells on Christmas day. They're old familiar carols play and wild and sweet.

The words repeat of peace on earth, goodwill to men. And so the first three stanzas kind of are like that. And then the darkness comes. It says from then from each black accursed mouth, the cannon thundered in the south. And with the sound, the carols drowned of peace on earth, goodwill to men. And he says, And in despair, I bowed my head. There is no peace on earth, I said, for hate is strong and mocks the song of peace on earth. Goodwill to men. And then as the bells continue to ring, he ends with this expression of eternal hope and says, then peeled the bells more loud and deep.

God is not dead, nor doth he sleep. The wrong shall fail. The right prevail with peace on earth. Goodwill to men. And when you know the context for it and the expression of hope and faith at the end, it's just incredibly powerful. And the expression of hope and faith at the end is just incredibly powerful. The song that always gives me chills, from the moment you hear the first note, which is a mix of drums and a single trumpet, it evokes just this feeling of quiet and ominousness,

maybe of dawn a little bit. Uh, I'll just read you the lyrics that come toward the end, but you'll know it right away. In the beauty of the lilies, Christ was born across the sea with a glory in his bosom that transfigures you and me as he died to make men holy let us die to make men free oh while god is marching on that is man do i love those lyrics man do i love those lyrics i mean every time it gets me

oh my god i've gotten to hear the Marine Corps band play it several times and it just, ugh. Yeah. You know what, David? In the day after an election that is weird and as I said, status quo-y with turbulence under the water and unclear what comes next.

Such a good reminder. We live in an incredible country. Yeah. Yeah. And both of those songs are from the same era. From the same era. Yeah. So. It reminds me all, speaking of the same era, of this great line from Lincoln's second inaugural that I paraphrase from time to time with high hope for the future. No prediction in regard to it is ventured. I think I've said this before on this podcast, but if you're ever visiting DC and get the chance to go to the Lincoln Memorial at night, you can read the Lincoln's second inaugural. And not only do I think it will just move you as you look out across the

National Mall, and for some reason in the dark, it's all the more beautiful and meaningful. But as you look around, no matter what time of day you go, and no matter really the weather, you won't be alone. And you'll often see families with children. And I always think to myself, those families could have gone to Disney World. It's expensive to come visit DC. The flight's expensive. The hotels are expensive. The food's expensive. They could have gone to Disney World. They could have gone to Mall of America. They could have gone anywhere else. And they chose to take their children to the country's capital. And they chose to march their children over to the Lincoln Memorial.

and they chose to march their children over to the Lincoln Memorial. And in doing so, they're passing on that piece of our history and that heritage that all of us are responsible for protecting and carrying on. Yes, very well said. And I too, so strongly endorse the Lincoln Memorial and so strongly endorse it at night. And take the time

to say the words out loud. Like if you're there with your kids, read, read the words on the memorial and say them out loud. Cause there's just a power in vocalizing them. Um, so what is one of the most, one of the most memorable moments of my kids' education is we went, So one of the most memorable moments in my kids' education is we went, their eighth grade class trip was to Washington. And we always did it in fall, in October. And we always toured the memorials at night and never in the day, always in the night. And for both my son and my daughter, one of the fun things was having a small group of these eighth graders around me and reading out loud those words from the Lincoln Memorial. And some of them were a little bored, but some of them were captivated and that made it worth it. So

on that note, thank you guys for listening. As always, please rate us, please subscribe, listening. As always, please rate us, please subscribe, please check out thedispatch.com. And we'll be back next week with some more election analysis, perhaps, and of course, a lot of legal analysis. So we will see you next time. okay dom once again i'm going to redo what i said about my off i am a person who needs sleep to take sarah that's what i needs sleep to take Sarah. That's what I am today to take Sarah and David, before we get to the gun case, just a quick clarification on that other gun case that we talked about last week,

this week, seven takes Sarah. That's what they call me.