Advisory Opinions - Let’s Pretend We’re Justices | Interview: Chris Scalia

Episode Date: August 20, 2026

David French and Sarah Isgur steelman Justice John Paul Stevens and Justice Stephen Breyers’s dissents in the Heller case through a one-act play produced by ChatGPT. The two also invite Chris Scalia to play the majority opinion writer (and his late father) Justice Antonin Scalia.  The Agenda: –One act, three justices –What AI got right and wrong –Justice Breyer, fully vindicated –Shul is Yiddish and Friends of the Earth is SCOTUS precedent Show Notes: –Originalism and Stare Decisis Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. Back is hosting. I have taken a shower. Many things have been put away in the house. And David, we just can't let that continue.

That is frequent guest of the pod and sometimes host. David French. David, because of the break that you gave me, I had an epiphany. And this whole episode. will be dedicated to this idea. We're not going to do any news of the day. This will be maybe the weirdest advisory opinions that we've ever done.

No, maybe, no maybe. It is absolutely the weirdest. Okay, so different format. We do have a guest. I don't even know how to tease this for you guys, except that we are answering a listener question and we're dedicating the whole episode to it. hold on to your hats and get the popcorn.

Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. answer. Register today at pmcf walk.ca.ca. All right, David, a couple weeks ago, we promised listeners to answer this question that came in. I will read you the question. Sarah mentioned on a recent podcast that she found the Heller Majority's Prefetory Clause, Operative Clause argument convincing. My

absolute favorite AOs are the ones where you work through the majority and dissents on a tough case and in doing so, change my mind. I've read through each opinion in Heller a few times now, I find the Stevens dissent most compelling. Quote, such texts should not be treated as mere surplice, for it cannot be presumed that any clause in the Constitution is intended to be without effect. That brings true to me, and it feels like a quite textualist argument, which is interesting given the lineup in the case. So, an a.o retrospective on Heller would be fascinating for me, but also timely given

Brahimi and Viramantes. And David, you and I were like, that's a great idea. We should steal man the Stevens and Breyer dissents in the Heller case. But David, yesterday, as I started to need to prepare for this podcast, I wasn't as enthusiastic as I thought I would be. I was sort of putting it off because I have a thousand things I can do around the house. And then I started reading Breyer's dissent and I just heard his voice. And I was like, no, David, we can't just steal man, the Heller dissents.

we need to act out a one-act play on the entire Heller opinion. I mean, the exact logical thing to think in that moment. I mean, from Steelman to one-act play is, I guess, a very short trip. Well, David, I worked with ChatGPT. I gave it the opinions and the oral argument and was like, make a one-act play of this. Now, obviously, you and I are two people, but there's three involved here. We have Justice Scalia's majority opinion. We have the Breyer dissent and we have the Stevens descent.

You and I were asked to steal man. So you have been assigned to play the role of John Paul Stevens, who served on the Supreme Court from 1975 until his retirement in 2010. I have assigned myself the role of Justice Stephen Breyer because of course you would. Of course you would. Because of course I would, because I love his voice so much. And I'm going to try to do my best impression. But we were left with a problem. Who should play Antonin Scalia?

I thought about just us, like, switching off the voices, but that seemed confusing. Obviously thought of Jonah because he would have a cigar handy at 1030 a.m. Justice Scalia famously brought a cigar to his confirmation hearing. But David, you had a better idea. I did. I did. Christopher Scalia. My goodness, we're not just talking Scalia. We're talking AEI Scholar Scalia here. And so I could think of no better person to stand in. And he agreed. He agreed.

It's the role I was born to play. And I do have some experience in this. I read a couple of audio books for books I edited. I'm happy to reprise the role again. Thank you very much for inviting me. Now, while I started this with ChatGBT, GBT, the three of us have all edited the heck out of this document, not just for accuracy. That goes without saying. But we pulled a lot more quotes in, a lot more things that they actually said word for word. And of course, we have Chris Scalia here to make the Nino side really, really accurate. But we'll talk at the end about what we thought AI did well, who we thought it represented. presented best some of the little, you know, arguments we were having about the script. We'll have this transcript in the advisory opinions newsletter, which if you haven't signed up for,

you get the video and the transcript and little summaries of the chapters. You can skip ahead or go back. You can sign up for that at scotusblog.com. But without further ado, let us pull the curtain back on our 25 minute or so one-act play, Heller, a one-act play for three justices, characters, Antonin and Scalia, Associate Justice of the Supreme Court, certain that words mean things. John Paul Stevens, Associate Justice, equally certain that Scalia has selected the wrong things for the words to mean. Stephen Breyer, Associate Justice, would like everyone to consider what actually happens in the world. Three justices, three chairs, an enormous number of bucks. Only one cigar, though. Only one cigar. Gentlemen, the question is actually fairly straightforward.

The District of Columbia has essentially banned handguns in the home and requires other firearms kept there to be rendered inoperable. Mr. Heller is a licensed special police officer for the District of Columbia. He is required to carry a gun in federal office buildings, including around us, when we are at the Thurgood Marshall Federal Judicial Center. Yet, at the end of the day, he has to turn in his gun and bullets and go home defenseless, as he put it just like Barney Fife. But he didn't live in Mayberry.

Here's how he described his neighborhood. Quote, across the street from my front door every night for a month there until this guy got killed or jailed, he'd fire a gun right at 2 a.m. to signal the end of the drug trade for the day. Kick-and-enter robberies were popular among the drug trade. So the guys from the neighborhood would know everyone in the household is 60 years old,

so they would just kick in the door and clean out the place. Every citizen concerned about their safety should have been thinking, gee, they're coming in with guns killing people. We should be able to defend ourselves. Unquote. Those are the facts. Now, let's turn to the law. The Second Amendment says, a well-regulated militia being necessary to the security of a free state,

the right of the people to keep and bear arms shall not be infringed. Start with the words. Yes, Nino, all of the words. You have an unfortunate tendency to begin halfway through the sentence. Okay, okay, all the words. The first part is a prefatory. clause. The second is the operative clause. The prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. Interesting. The framers mention exactly one

purpose for protecting the right to keep and bear arms, the preservation of a well-regulated militia. And you conclude that the purpose doesn't actually tell us what the right protects? It tells us why the right was codified. That's different. Imagine a law saying, because a well-educated citizenry is necessary to a free republic, the right of the people to read books shall not be infringed. Would you say people may read books only while educating themselves about the duties of citizenship in our government?

Well, except that bare arms had a particular meaning at the founding. it was commonly used to mean military service. Sometimes. Quite often. But not exclusively. And the amendment doesn't merely say bear arms. It says keep and bear arms. Now, arms means weapons.

What does keep arms mean, John? Well, in this context. Ah, we're going to need context, aren't we? Samuel Johnson defined keep as to retain or not to lose. While the phrase keep arms was not common in founding era documents, the few examples all favor viewing the right to keep arms as an individual right unconnected with malicious service. And the people is the same phrase the Constitution uses when protecting other individual rights. So the First Amendment, the right of the people peaceably to assemble.

The Fourth Amendment, the right of the people to be secure against unreasonable searches. Nobody thinks those rights belong only to state organized organizations. But assembly rather obviously involves a group, Nino. Of course, but the right belongs to individuals, and it is not conditioned upon membership in some defined assembly. And there's an even bigger problem with your interpretation. The amendment said, the right belongs to the people, while the militia in colonial America was only a subset of the people? Uh, stop calling my position a collective right. Of course, an individual can invoke the Second Amendment. The question is what right that individual may invoke? The text tells us, a right connected to

the preservation of a well-regulated militia. Which is just an elaborate way of saying, you don't think Heller has a right. I don't think this is the right the Second Amendment protects. Bear arms was a familiar military expression. And it could also mean carrying weapons for confrontation, including individual self-defense. Founding era constitutions expressly spoke of bearing arms in defense of oneself and the state. Exactly. Those state constitutions said, quote, in defense of themselves, unquote.

the Second Amendment does not. If the framers wanted to protect an individual right to possess weapons for private self-defense, they knew perfectly well how to say so. Or those provisions demonstrate that bare arms was understood to describe individual use, not only in the service of an organized militia. When modified by words indicating individual use. John, the meaning you propose requires arms, to mean one thing after keep

and become half a military idiom after bear. It's like saying someone filled and kicked the bucket, meaning he filled a bucket and then died. Grotesque. I had wondered how long it would take you to get to the bucket. Could I perhaps save both of you several hundred pages of dictionaries? No. Absolutely not.

Why a militia? Let's remember what people were actually worried about when the amendment was adopted. The Constitution gave the federal government substantial power over the militia. There was genuine fear that Congress might neglect the state militias, disarm them, or replace them with a standing army. The Second Amendment responded to that concern. Agreed. Wonderful. We're finished. Not remotely. Inconceivable. How did tyrants destroy militias in the past? They didn't pass a law saying, no more militia. they took away the people's weapons.

The militia wasn't some separate organization with a government armory. It consisted broadly of ordinary citizens who were expected to appear bearing weapons they already possessed and knew how to use. So of course, there's a militia purpose. That's precisely my point. No, John, the two clauses go together beautifully. Since a militia is necessary, the people's right to keep and bear arms cannot be infringed. You preserve the citizens' militia by preventing the government from disarming the citizens who constitute it.

Beautifully? Beautifully. That establishes why individuals might possess arms for militia purposes. It does not follow that the amendment protected every individual's private possession of firearms for purposes wholly unrelated. to militia service. Except the operative clause says the right of the people. And the prefatory clause tells you what right we're talking about. And now we're back where we started.

Which is why I was hoping we might move on. And now Blackstone enters the room. Here's the historical problem with your argument. When Americans debated the Second Amendment, the concern was militia preservation. What you don't find is a comparable decision. of a constitutional right to use weapons for purely personal purposes. Blackstone thought it was important. He understood self-defense as an inherent right.

And the framers were devoted to Blackstone. And Blackstone also described the right to bear arms as subject to law. Thank you, John. I haven't gotten to you yet, Steve. I know. I'm just marking the page. And since we're visiting England, let's remember that the English Bill of Rights protected the right of Protestants do have arms, arms suitable to their conditions and allowed by law.

And the laws against Scottish Highlanders and Roman Catholics prohibited them from keeping and bearing arms. Nobody thought those laws merely meant Catholics couldn't join the militia. You've now managed to make persecution of Catholics evidence for your interpretation of the Second Amendment. We also aren't writing on a blank slate. And United States v. Miller, this court considered the Second Amendment and focused on whether the weapon had a reasonable relationship to the preservation or efficiency of a well-regulated militia. For decades, courts have understood Miller as confirming that the amendment protects militia-related interests rather than a general constitutional right of private gun ownership. They misunderstood it. Hundreds of judges

misunderstood it. Numbers don't improve a bad reading. Miller involved, a short-barreled shotgun. The court didn't say, these men aren't currently serving in a militia case over. It asked whether the weapon was eligible for Second Amendment protection. That makes perfect sense under our reading. The amendment protects weapons of the sort commonly possessed for lawful purposes, the kinds of weapons citizens could bring when called to militia service. That turns Miller on its head. No, it reads what Miller actually said instead of what subsequent courts wished it had said. And let's not forget, there wasn't even an appearance on the other side in Miller.

The court heard only the government. You are nevertheless overturning a remarkably settled understanding. Let's flag this remark. A mistaken precedent that incorrectly interprets the Constitution doesn't become correct through repetition. Following bad precedent isn't part of my originalist philosophy. It is a pragmatic exception to it, an exception that need not apply here. Fine. There is a right for people to understand weapons, to know how to use them, to practice with them, and they can do that, you see, with their rifles. They may register and thus possess in their homes weapons other than handguns, such as rifles and shotguns.

And for the handguns, the district law prevents citizens from training with handguns within the district. The district consists of only 61.4 square miles of urban area. The adjacent states do permit the use of handguns for target practice, and those states are only a brief subway right away. Is that a burden? Yes, but not such a burdensome burden that it necessarily outweighs the public safety concerns of the legislature. Nino, you're saying that this is unreasonable, and that really is my question, because I'd like you both to assume two things with me,

which you probably don't agree with, and I may not agree with them either. I knew you'd come around eventually. I haven't. Assume John is right that the amendment is concerned with militia-related interests, but also assume you're right that it also protects an individual interest in possessing a firearm for self-defense. That doesn't answer this case. It answers quite a lot of it. No, constitutional rights are routinely subject to regulation. So the real question is whether this particular regulation impermissibly burdens the protected interest.

On one side, an individual's interest in possessing a handgun for self-defense. On the other, the district's interest in preventing hundreds killed, perhaps 1,500 or 2,000 wounded, crimes, accidents, suicides. The district is a densely populated urban area with an extraordinarily serious crime problem. So, why isn't a ban on handguns? while leaving other weapons available, a reasonable or proportionate response. And there it is. What? Interest balancing.

Yes. Conducted by judges. That's a rather good description of constitutional law. Not like this. The Constitution has already done the balancing. Once the people put a right in the Constitution, a judge doesn't get to say, well, yes, you technically have this right. but I've reviewed some statistics and decided that government's policy objectives are more important.

Of course, judges balance competing interests. Even fundamental rights have limits. Limits rooted in the historical scope of the right. Yes, but you're proposing a freestanding test under which judges decide whether exercising an enumerated right is worth its social cost. Imagine applying that to speech. We do balance interest in speech. cases. Within established constitutional doctrines. We don't ask whether a particular unpopular speaker's contribution to public debate outweighs the government's interest in avoiding unrest. If we did that,

the right would depend upon whether five judges thought it's socially useful. But you haven't given us an alternative test? We don't need to resolve every future case to resolve this one. That's a remarkably cheerful approach to constitutional adjudication. You say, there's an individual right. You say the right isn't unlimited. You say felons can be prohibited from possessing guns. You say guns can be prohibited in sensitive places. You say there can be restrictions on commercial sales. You say dangerous and unusual weapons aren't protected. Why? History and tradition. Then why not D.C.'s law? Cities regulated firearms historically too. Not remotely like this. Actually, there was quite a bit of regulation.

The Second Amendment protects the right to both keep and bear arms. It's common sense that you can't ban handguns. When you say keep and bear, I think you're on to something, because you say let's use our common sense and see what would be the equivalent today. Fine. Boston, Philadelphia, New York City, the three largest cities in America during the constitutional adoption, all restricted the firing of guns within city limits to at least some degree. Massachusetts had a law that said you cannot keep loaded firearms in the house, right?

And you have to keep all of the bullets and everything and all of the powder upstairs. New York and Pennsylvania regulated gunpowder storage too. Why did they have that law? To stop fires because it's dangerous. They didn't have fire departments. Now we do. And we also now have police departments. And the crime wave might be said to be similar to what fires were then.

And therefore, applying the similar kind of thing. you say, fine. Just as you could keep pistols, but not loaded, you had to keep powder upstairs because of the risk of fire. So today, roughly, you can say no handguns in the city because of the risk of crime. In other words, for reasons of domestic safety, they said you can't store the gunpowder anywhere but on the top floor. Why isn't the modern trigger lock provision similar to those? Things change, but we give in both instances then and now leeway to the city and states to work out what's reasonable in light of their problems. Regardless, the idea that public safety regulations of guns in some modern invention is simply wrong. I didn't say governments couldn't regulate guns.

I said they couldn't destroy the core right. A fine for recklessly firing a gun in town is not equivalent to telling every law-abiding resident of Washington, D.C., that he cannot possess the most commonly chosen firearm for self-defense in his own home. But the decision. But the decision sanction your drawing requires a judgment about degree. Yes. Which sounds suspiciously like... Don't say it. Balancing.

It is not your balancing test. Historical regulations can establish the traditional boundaries of the right. That's different from saying the right extends to conduct and then allowing government to prohibit it whenever judges decide the prohibition produces enough benefits. And who will determine whether all these modern regulations fit your historical boundaries? Judges. Exactly. We're in less of a disagreement about the Second Amendment's original meeting than about the role of courts. Do you really want thousands of judges all over the United States deciding

whether a trigger lock is good enough, whether this firearm is dangerous enough, whether that restriction has enough historical pedigree instead of city councils and legislatures? When a constitutional right is at stake, Steve, that's what judges are for. And let's talk about this trigger lock provision. The district says the law permits a gun to be rendered operable when necessary for self-defense. That's right. D.C. hasn't prohibited all firearms. Residents can possess certain long guns.

What exactly does that mean? You hear someone crawling in your bedroom window? Fine. We're told the trigger lock takes only three seconds. Okay. So you turn on the lamp next to your bed so you can turn the knob. but 3, 22, 95. And so somebody...

Well... Is it like that? Is it a numerical code? Yes, you can have one with a numerical code. Ah, in that case, you turn on the lamp, you pick up your reading glasses. Counsel told us it takes three seconds. In daylight. The point is, this is why we ask whether the regulation is reasonable.

That's why I ask whether the gun works. The district says it can. Eventually. I don't know how well-trigger locks work or not, but do you want thousands of judges all over the United States to be deciding that kind of question rather than city councils and legislatures that have decided it in the context of passing laws?

The right is still protected, like Blackstone said, under law, subject to reasonable regulations set by the fact-finding of the legislature. Subject to that rather leisurely self-defense procedure we just discussed. More importantly, the government doesn't get to choose, which constitutionally protected arm citizens may possess when it bans an entire class overwhelmingly chosen by Americans for lawful self-defense. Handguns are easier to handle,

easier to store, easier for some people to use, and they are extraordinarily common. You can't ban them and say, don't worry, you can have something else. They're also extraordinarily common in homicides and the overwhelming favorite weapon of armed criminals. may be true. It doesn't eliminate the constitutional protection. It surely matters when determining whether a regulation is reasonable. Insofar as we look to history to discover how we can constitutionally regulate a right to self-defense, we must look not to what 18th century legislatures actually did enact, but to what they would have thought they could enact. There are innumerable policy-related reasons why a legislature might not act on a particular matter despite having the power to do so.

Suppose a city concluded that inflammatory political speech caused violence and disorder. It assembled mountains of studies, experts testified, the legislature made detailed findings. If judges balanced the value of speech against its social costs every time a legislature produced enough studies, the First Amendment would be little more than a suggestion. Guns aren't speech. Correct. they are arms. That's why they're protected by the Second Amendment rather than the first. The point isn't that guns are the same as speech. The point is that the method of constitutional adjudication should be the same even when the rights are different.

All of this illustrates my basic objection. Nino, you've taken an amendment adopted to address a particular concern, the preservation of the militia, and transformed it into a constitutional limitation on a local government's regulation of civilian gun ownership. And you've done so despite the text's explicit reference to a well-regulated militia, the drafting history, our precedent, and generations of judicial understanding. And I think you've done the opposite. You've taken a right expressly given to the people and converted it into a right whose scope is determined by the very governmental purpose the amendment was designed.

to protect against interference. The government calls you into malicious service, and then the Constitution protects your right to possess the weapon? What kind of constitutional right is that? As Clarence might say, the Second Amendment is not a second-class right. Again, the concern was federal interference with state militias. Which explains the prefatory clause.

Which informs the operative clause. which announces the reason for protecting a pre-existing right, which you know because? Text and history. Your history. The dictionaries are available to everyone, John. We know. While you two are reenacting the 18th century,

a modern city is trying to address a modern problem. There are empirical questions here. Does handgun ownership deter crime? Does it increase accidental death? Does it increase suicide? Does it make debilable? domestic disputes, more lethal, how effective is a handgun for self-defense? Legislatures are institutionally better equipped to weigh those questions than courts. Deference to legislative

judgment seems particularly appropriate here, where the judgment has been made by a local legislature with particular knowledge of local problems and insight into appropriate, local solutions. That's an argument against judicial enforcement of constitutional rights. Whenever the legislature has evidence supporting its policy. No, it's an argument for asking whether the legislature has imposed a disproportionate burden on the right. And you conclude it hasn't. Correct.

Because you find the district's evidence persuasive. Among other things. Which is precisely why your test is so dangerous. The constitutional right lasts only until a legislature assembles sufficiently impressive statistics. And your test has the opposite problem. It freezes a particular historical understanding while giving courts remarkably little guidance about what governments may do now. You assure everyone that many existing gun laws remain

permissible. Felon prohibitions, fine, sensitive places, fine, concealed carry restrictions, potentially fine. But where does any of that come from under the methodology you insist upon? The historical understanding of the right. Which means every future gun case becomes a historical scavenger hunt. Better historical scavenger hunt. then five judges deciding whether a constitutional right is socially beneficial. Well, let's at least be clear about what you're announcing. Happily. The Second Amendment protects an individual right to possess arms, independent of service,

in an organized militia. That right includes using commonly possessed arms for lawful purposes, most importantly, self-defense in the home. The right is not unlimited. It does not guarantee a right to carry any weapon, in any manner for any purpose. Longstanding prohibitions and regulations remain presumptively lawful. But D.C. has banned an entire class of arms overwhelmingly chosen by Americans for lawful self-defense.

And it has required lawful firearms in the home to be kept in a condition that prevents their immediate use for that core purpose. That goes too far. Under what level of scrutiny? It doesn't matter here. It very much matters. Not when the law fails under any standard ordinarily used to evaluate an enumerated constitutional right. That's not a standard.

It's enough to decide this case. Until the next case. Then we'll decide the next case. I find this deeply unsatisfying. Steve, I've noticed. My position is simple. The Second Amendment was adopted to protect the people's ability to protect the people's ability to maintain an effective militia against federal interference.

An individual may invoke that right, certainly, but the amendment does not protect a freestanding individual right to possess and use firearms for purely private purposes unrelated to militia service. I agree with John, but even if Nino is correct that the amendment separately protects individual armed self-defense, D.C.'s law should still be upheld because the Constitution permits reasonable regulation and the city's exceptionally strong public safety interests justify the burden imposed here. And my position is that both of you manage by different routes to make the constitutional guarantee disappear. John says Heller is invoking the wrong right. Steve says the right exists,

but government may prohibit its exercise whenever judges conclude the government's reasons are sufficiently good. The text says otherwise, the right belongs to the people. people. It protects keeping and bearing arms. Its historical purpose was connected to preservation of the militia, but the right itself was an individual right that predated the Constitution and included lawful self-defense. And whatever regulations may exist at its edges, a government cannot prohibit law-abiding citizens from possessing the most common self-defense weapon in the place where the need for self-defense is most acute. The home. Well, I suppose we've reached the point where we're no longer trying to persuade one another. Nope, we're writing opinions. Indeed we are. Then I respectfully dissent.

As do I. Duly noted. Congratulations. On what? Five votes. And approximately 150 pages. Some questions require explanation. Some apparently require every day.

Dictionary published between 1769 and 1828? Only the good ones. Lunch? Yes. Agreed. Excellent. We finally have a unanimous court. Ah, but where are we going?

Blackout, curtain falls. Crowd roars. Yes, standing ovation. Yes, we'll wait for applause. I just, I think that right at this moment, countless listeners are wondering, why were we not actors? Yeah, I mean, what could have been. As seamless, as flawless as that was.

Why were we not? All right, when we come back from the break, we're going to break down our one-act play. And Sarah will describe her method for inhabiting Breyer so effectively. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar-raised matters.

On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcfwalk.ca.ca.

Okay, we're back. Chris, when we asked you to do this, you were so gracious to agree to play your father in this play, But you went through with a fine-tooth comb here and really worked to make sure it was, you know, as accurate as possible while understanding we couldn't have all just quotes back and forth. You know, what did you find was impressive, I guess, that Chat GPT had sort of done? And what were you like, oh, where did this come from? I thought that chat got the basic, not just the basic, got the nuts and bolts of his argument right.

And I think what his passages really capture is his interest both in in the history of these laws and the grammar really of the text itself. And both of those elements are crucial to Heller and I think our reason and to originalism generally. I think the way those details and those elements come together in Heller is one reason it's understood as certainly one of his best. opinions and one of the most important originalist opinions. But there were a couple of things I was not comfortable including just because he didn't say them. So there was, I think there was one passage that we ended up omitting, I believe. That was a clever analogy between other laws and the Second Amendment. And I wasn't sold enough on the analogy to think, yeah, dad would have liked this, especially since he hadn't said it. If you had invited somebody else to do it, they may have

and less persnickety about it, but I felt like I had to be a little bit more protective there. And then there was a line about stare decisis that made him sound more like Justice Thomas than himself. So I thought we should have changed that. And just to explain that one for a second, because I found that super interesting. Justice Thomas's position is, especially when it comes to the Constitution, stare decisis is at its weakest. because only judges can really change constitutional interpretation, and therefore, if a previous

court got it wrong about the Constitution, who cares if it's precedent? You should change it and get the Constitution right. This is exactly why Justice Scalia used the term faint-hearted originalists. It was in that context, meaning some outcomes would be outrageous, but also sometimes stability over time what precedent provides is worth maintaining even if it was incorrect. And there's funny, there's a great law review article about this. It is in the Notre Dame Law Review, written by a former clerk of Justice Scalia's, all about accusations that he is inconsistent in when precedent should be upheld. She is also a current justice on the Supreme Court. That's right. That's a great article. You can find it easily online. And in fact, I pulled a quote from it.

I was going to say, she quotes, I was in touch with Adam White, our friend, this morning about this a little bit. I'm actually borrowing his office, too. And he suggested that the best place to go to for my father's thoughts on precedent and originalism is the first essay in a collection of his called A Matter of Interpretation. and she quotes, and Sarah, you included passage she quotes from that particular work in her law review article. And the faint-hearted originalist line, I think he uses that line during his confirmation hearings 40 years ago this month, and a little back and forth with Senator Kennedy who is asking him his opinions about stare decisis. And some of what my dad said in 1986 made its way into these essays from the, well, late 80s and then again in the late 90s. You know, when I was looking at this, I thought, man, this perfectly illustrates the promise and peril of AI in its current incarnation.

Yeah. The promise part is very obvious. Like Sarah came up with this idea yesterday, yesterday in the afternoon. And there is no way. I mean, could you imagine like assigning this to an intern or. a collection of interns or younger associates at a law firm to create this, they would be working very, very late into the night just to generate what they, what ChatGPD did in moments. But at the same time, here is my question. Would you trust the initial work product of well-qualified

young associates more or less than the work product we got from ChatGBT. Because the way I thought about it as I was looking to it. And especially as I was, I was working on my newsletter late into the night, but I was checking in and I was watching in real time some of Chris's edits. And I was thinking, as these were happening, you know, it's so fun to like actually watch the mind at work in real time. I was thinking, oh, this is exactly why we had to go over this with a fine tooth comb before we're going to actually do this because it had that peril of chat chvety which is you can read it and if you just do that first read it can see good but if you really know the subject you'll sit there and go wait a minute yeah not quite right not quite right

not quite right and when you add up all the not quite rights it can become affirmatively misleading and so i felt of it as this was not possible without chat chbt but if we had just read chat chbt we would have people crawling all over us in the comment section going, wait, what? Hold on. This nuance, this nuance. So I thought it was a really interesting exercise from that perspective. I thought part of the fun that I hadn't thought a ton about before this, it captured Justice Breyer's positions very well. In my view, I didn't really need to change anything substantively. But Justice Breyer, I will, I will suggest to you, has the largest, gap between his speaking voice and his writing voice. So pulling from the opinions, you don't hear

Justice Breyer, but pulling from the oral argument transcript, you really do. So a lot of what I was doing for my Breyer edits was taking the same idea that he had in his opinion that, you know, chat had really relied on, but actually pulling what he had said at the oral argument, because you hear him so much more clearly in his actual speaking voice. Yeah, there, there were some moments, too, the dialogue made them sound a little bit more like, I don't know, Victorian Englishmen, like a scene from an Oscar Wildplay, like rather a lot. They said rather, rather a lot. Little ticks like that made it seem a little clunky. So we did some of those out. The not remotely, by the way, where Scalia says not remotely. And you're like inconceivable.

Yeah. Another Sicilian, as you point out. That's right. Yeah. I put it out in the back and forth yesterday on the Google Doc that sometimes his rebuttals made him sound like Wallace Sean's character in The Princess Bride. My favorite part of the whole thing was this little thing where it got to balancing, don't, you know, don't say it, balancing. Yeah, yeah. And I jumped into the document after both of you, and I thought you'd added this. But Sarah said that that was actually a chat GPT exchange, which was kind of shockingly impressive

to me, to be honest. Yeah, it really does. I liked that element of it. It did make clear how much they went back and forth on this issue. And you could have done something similar with legislative history or something like that. It really underscored this recurring or international law, this recurring point of disagreement between those two. Okay. Substantively, I wanted to leave in this analogy, which Chris, as you note, Justice Scalia never used this analogy, but we do put it in Justice Scalia's voice. By the way, there's also some moments where I take things. things that the chief said during oral argument and gave them to Breyer. So you'll, if, you know, we'll provide this transcript to everyone, but you'll notice some of those. Okay, but here was the analogy. Because a well-educated citizenry is necessary to a free republic, the right of the people to read books shall not be infringed.

I was just sort of curious. The reason I wanted to leave it in was, I think it's like a whole debate you could have of, is that a good analogy? for the Second Amendment, because if it is, I think, the debate sort of over. But if it's not, then we should have taken it out. This goes back to what I was saying earlier. My reservation about it wasn't so much that it seems pretty good to me. But I wasn't comfortable putting it in my dad's voice because from what I could tell, he never used it.

nor did any of the amicus briefs. It wasn't an AI hallucination, but from what I could tell, it was used on just one website, something called, I think, gun sites in 2004. So, you know, and didn't make it an opinion, wasn't quoted in oral arguments or anything like that.

So I just don't know, yeah, it just seemed a little bit misleading to put it in my dad's voice. but on the face of it, it sounds like a pretty good analogy. I think another risk of it is it seems like it's trying to draw a parallel between the First Amendment and Second Amendment, but it doesn't quite do that. I think the first part of the line comes from a Jefferson, a Jefferson quotation, but it's just about books specifically and not about speech generally.

So the comparison, like the implicit comparison between arms and books isn't quite right. Arms and speech would be, I think, the more accurate analogy. And that listeners is why you ask an AEI scholar to do the reading and not just bring in somebody off the street, because that's the kind of research that actually makes this very interesting and the kind of historical knowledge that makes this very interesting. So I have a substantive question for you all about my position, the Stevens position. It seems very hard to imagine how it would work in practice as an enforceable individual right in any way, shape, or form. Because if you're going to be connecting the individual right to the militia service, let's think for five seconds what you actually carry as a member of the quote unquote militia now, as in the United States. States of America. And we don't really have a militia. We have a National Guard, for example,

that might be sort of the in the lineage of the militia, but it is not purely a militia because it can be federalized at any time. But if you're going to imagine arms keeping and bearing arms that are suitable for malicious service, and if the focus is going to be on the weapons, so for example, in the Miller case, it was a sawed-off shotgun, not really something suitable for military service in most contexts, although, you know, there were. there are times when shotguns have been very useful. But what do I mean as Justice Stevens when I'm connecting the military service to an individual right? Because in one way, would that mean that if I'm in the National Guard, I have some kind of right to the kinds of individual

weapons that I would carry in the Guard, which would be far more dangerous. The M4 I carried in Iraq is not the same as the AR-15s that I possess now. The M-4, that I'm not the four that. I've been, I carried in Iraq had a burst firing capacity. They were not purely semi-automatic. The weapons I have now are semi-automatic. Does that mean that because militia service now uses fully automatic weapons, that there's some individual right connected to my service, say, in the National Guard there? Right.

You can't possess a handgun, but you can possess an M-4. That would be a weird. Yeah. The conceptual reality of the Stevens position, is something that keeps stumping me. And I tried, I gave it my, you know, I gave it my passion at all. All of my acting chops were on display right there,

but I'm just curious substantively, what is the Stevens right? I mean, this is why I think the Justice Breyer's position is the best steel man, but its weaknesses are inherent in it, and Breyer would acknowledge that, does acknowledge it in our play. It's a balance,

and we're going to defer to legislature, unless it's too burdensome and how are we going to decide that? I don't know. We're judges. We're going to use judgment. We're going to think about it. There's no other way to do it. You, Justice Scalia, are pretending that you are restraining judges, but you're not.

You're just pretending to. And you, Justice Stevens, are also trying to come up with this bright line rule. But as David just pointed out, that doesn't even work in practice. You're not accomplishing either what the legislature thinks is necessary. or what the law requires. And so, you know, you guys can all pretend to be doing something else. But at the end of the day,

you're actually agreeing with me whether you like it or not. And time has proven me, Justice Breyer, right, as we go through Brahimi and all of these cases that are to come, we're on a scavenger hunt. You're actually doing a balancing test in Rahibi, whether you like it or not. So I think the steel man for Stevens is pretty hard.

I think the steel man for Breyer is incredible. incredibly easy. And I think the pushback is he would fully acknowledge. Like, yep, and that's why we get paid the big bucks, guys. Like, somebody has to decide these things. There's nine of us, thank goodness. There's not one. There's not two. And we're trying to capture nine people's best judgment. And, you know, this one came out five, four, but in the end, me, Justice Breyer, fully vindicated. It's interesting that both Breyer and Stevens, it's interesting, but not surprising, are trying to show my father's inconsistencies, or let me, let me rephrase that, what they perceive to be my father's inconsistencies. Breyer by saying, you know, Nino, you, you don't

think judges should have so much power and you believe in judicial restraint, but look where this leads us, judges making these decisions. And my father's saying, well, this is exactly the kind of situation where judges should be the ones making the decisions. And then in the case of Stevens, he spoke about it a lot afterwards that he was writing an originalist opinion. He was fighting fire with fire. He knew the approach the majority opinion would take. And he sought to address or refute my father on my father's own terms. And, you know, that's a step in, you know, everybody becoming, everybody becoming textualist nowadays. But in this case, Stevens, who was.

not generally an originalist tried to undercut my father's approach by giving counter examples. I wonder, David, if Justice Stevens had not tried to be an originalist there, not taking an originalist approach and, you know, taking a more, an approach more characteristic to his own tendencies, whether he would have done a better job of addressing some of the practical issues that you bring up there. Yeah, I think obviously, I, if, if, when you're reading Stevens and Breyer, I absolutely know what a Breyer jurisprudence would look like in practical terms. You know, you would walk into the courtroom sort of knowing the rules of engagement.

The Stevens position, although effective for a very limited purpose of rebuttal, wasn't very effective doctrinally. In other words, what is it giving me at the end of the day? I thought by far the best point was when he needs. noted that there are state constitutions that include the self-defense element. So, you know, as he said, they knew how to do this. They knew how to include the self-defense element. And I thought that was by far the best point that he made. But then the problem is you still deal with the operative clause. It's, it is still an operative clause. It's, it is, it has some legal

force and effect. And what is that? And he, you know, as the, as the dialogue indicates, he, he, Stevens isn't willing to say there's no individual right there. There is an individual right. It's just I literally have no clue what it is. And when you're walking through it is a practical matter. So I felt it was a originalism as rebuttal, but not originalism as doctrine, if that makes sense. Well, also in Breyer's descent, to me,

and I tried to emphasize it in the script, you know, as much as I could, it's that Massachusetts law where you cannot have gunpowder, like all sorts of stuff. It can't be in the gun. It has to be on the highest floor. All these fire prevention things that they had. And Breyer's like, so their problem was fire. Our problem is crime. How is that different than restricting which guns you can have and whether they can be loaded?

And, you know, the trigger lock system. And I was like, boy, if we're doing text history and tradition, you know, in a Rahimi sense, which I, you know, I'm moving through time here. That Massachusetts law, if Rahimi's laws are analogous, that Massachusetts law sure has some rhyming to it. And that Massachusetts law is very relevant to the self-defense justification for the Second Amendment, because if your gunpowder is upstairs at that point in American history and gun technology. Yeah.

you've got a ways to go. You got three seconds. A trigger lock is a lot faster than running upstairs, pouring some powder from the, you know, pouring powder in. Well, in true Breyer fashion, because he is so intellectually honest, he notes that it's not clear whether you could have a single shot loaded in the gun for self-defense. And he's like, but nevertheless, fine, you get one shot off. You still got to run upstairs for that second shot.

And I was just, you know, in terms of AO-Vy, That was a very a-o-vibed thing for Breyer to concede that possibility and yet point out the like, yeah, but we still have a second-shot problem. But I freely admit as a, you know, I agree with Justice Scalia's opinion in Heller have long defended it. And I, you know, and I'm unchanged by my strenuous Stevens impersonation. But at the same time, I still, if somebody's going to pin me down, if somebody's going to sit there and really say, well, as a real world. matter, what does the prefatory clause, does it have any real world effect? Or are, are you sort of reading that out of it as kind of a historical artifact of a justification, but the operative clause is just the core element of the Second Amendment period into discussion? I admit that that is

where I do, that's where I feel like I'm the least convincing. That's where I'm the least convincing to myself. Is there some relevance to that as a opposed to some ongoing current relevance to that. Because Stevens is right. There was a lot of concern about federal standing armies, about over, you know, that there was that concern hovering in the background. What happens to these militias? And do we just sort of say, that's 18th century stuff? The 21st century stuff is the operative clause. Yeah, that's tough. I mean, I think part of it is, I think the fact that it is 18th century stuff is important. That doesn't render it irrelevant entirely.

It is an important reminder of what their, of what their priorities were then and what they were seeking to make sure wouldn't happen again with what King George III was up to. Even if it's not a problem we have to address or are particularly concerned about now, it is relevant insofar as it is a reminder of that principle, one of the principles undergirding that specific right. Your father liked the law and he also liked theater. What review do you think he would give our performance today?

Grim. He also liked Steve Breyer a lot. Yes. He would probably give me lukewarm reviews Sarah, I think he would have been impressed by how you inhabited the persona of his friend, Justice Breyer. Maybe if Breyer were ever sick when they did their routines before Congress together, he would have asked you to fill in for him. I will definitely be sending this episode to Justice Breyer.

You should send it to Hollywood, ma'am. Maybe you could do for Breyer's next book, you could volunteer to do the audiobook. Yes. I think the question is, David, do we do this for Citizens United and force husband of the pod to play Justice Kennedy? So first, I think this was a wonderful idea. I enjoyed the heck out of it. I'm waiting for the reviews from the audience. Yeah. I will say, I will say, I think at the beginning, just putting on my theater critic hat, we started off like, what are we doing here? and then by the end of it, we were all like in sync. So I feel like if we had had a rehearsal, this would have been a lot better. But I love the idea.

I love the concept. I thought this was a ton of fun and also something just totally different. I guarantee you that listeners joining the podcast this morning, this after, whenever you're listening, we're not expecting that. Well, Chris Scalia, we cannot thank you enough. for jumping in here and spending your evening editing a script, doing this for us substantively, performatively, all of the above, literally born for this role. You've got the pipe.

You guys were too focused on the script, but I had this when Breyers and Stevens were speaking. I pulled this out a few times. I loved it. It's so good. This is not the pipe he had during confirmation. hearings, but it just looks like it. But no, thank you. It was my pleasure.

It was a lot of fun and appreciate you guys inviting me on. And yeah, I hope audiences, I hope your listeners and viewers enjoy it. Thank you guys. Thank you so much. And David and I will have our last few moments together, suggested next cases, and a few corrections from the last episode right after this. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar raised matters.

On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcfwalk.ca.ca. Well, David, did we deliver on the most unusual AEO episode ever? Okay, so as I said, you know, when we were talking to Chris, I felt like we gained momentum as it went on to the point where I thought by the end of it, like this works. Like, now that's my own self-conception. I'm also quite optimistic about our podcast always, as you know, every single time we finish, I say, good pod.

But I was feeling like, oh, okay, this is actually working. And from my standpoint, I can just tell you it was a hoot. It was a ton of fun and a very interesting and creative way to sort of try to help people to understand these arguments, to actually have the argument in a quasi-quise realish sort of way. So Sarah, I thought this was a great idea. And I would, again, depending on what people say, if it's just like, guys, you cringe to me so hard that I just couldn't even keep listening. I was embarrassed for you. like watching Michael Scott in the office, then okay, maybe not. But I hope people liked it because I really did enjoy it.

I thought it was a great idea. You know, you talked about the, this showcasing the benefit and the downside of AI and like having in a bunch of associates trying to do this would have taken a long time. They would have had different things wrong, I think. But David, I think of this more in terms of like a high school class. I think this would be a great way for high schoolers to understand. Supreme Court arguments. And in that sense, there is no team of associates that are available to write the first draft for them. And so as a high school exercise, having people act out 10-minute

versions of these major cases and like do Brown versus Board of Education where you actually steal man the other side, like do some cases where we think the outcome now historically is preordained and morally obvious. But like, I don't know, that's a pretty good tool for that. So if we we're doing this again, I think Citizens United is number one on my list. What historical case would you want to have the debate, so to speak, the in-conference after the oral argument play? Oh, boy, that's a good question. I'm going to go with one obvious and one non-obvious. Okay. The obvious is sort of row slash dobs and doing it years from now, years from now, when a lot of the arguments that are so fresh to us are more obscure.

And so, you know, 15 years from, how long has it been since Heller? It's been a while. 2008 was Heller. Yeah. So that's 18 years. That's about a generation ago when you think about it. But here's another one. And this is just mainly going to tell you where my mind has been of late.

Youngstown Steel. Yep. Youngstown Steel. Presidential power. This is Truman seizing the. Yeah. Yeah. I mean, with executive authority being so central to our public conversation right now.

And that is arguably one of the most important executive. executive authority cases with the highest stakes in the middle of a war where we were confronting communist China and North Korea at the same time, I think that case is just endlessly fascinating. It's one of the five cases I'm teaching in my adult education course this semester, about five forgotten Supreme Court cases that changed America. I know that Youngstown Steel is not forgotten to us, but it just does not roll off the tongue of your average American. So that was one I thought of.

Oh man. Some of the Nixon executive power cases would be good to steal man too. Okay. Well, David, this was a treat. I really do feel like having one episode off of hosting and my like week of moving got my creative brain juices all in a different place. So it may or may not have been a success, but it was nice for my brain to do something a little bit different. Hope you guys enjoyed it. And if you didn't, it's just one episode and you can skip it. And like I said, if you want the transcript for this, high school teachers or otherwise, it's in the advisory opinions newsletter that we will send out. You can sign up for that at scotusblog.com.

Just go to the podcast, go to advisory opinions, and you'll see the little sign up on the side. Full transcript, video, everything else you want. We'll talk to you next time. Where we do have guests next time, David, this will be a really fun episode. embodying the AO ethos we have former judges, Griffith, and Tatele joining us for the next episode to talk all things that. Oh, super fast.

Can I make two corrections from last week? Oh, yes. Okay. So number one, I hear you. I said Shul was Hebrew for synagogue. My linguistic ability is lacking. It's Yiddish, Yiddish. And so my deep apologies for that one.

Also, I referred to one of the cases referenced in the ballroom case as D.C. Circuit precedent. It was not D.C. Circuit precedent. The Friends of the Earth standing case is SCOTUS precedent, not D.C. Circuit. Okay, so my apologies on that. And my thanks to the two or three scholars who reached out to me and said, what are you saying? Friends of the Earth is SCOTUS. I know, I should have known, I shouldn't have said that. I am very sorry. So those two corrections. Now we can end the podcast. Finae, the curtain falls. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21, kilometers in support of life-saving research.

Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcf walk.ca.ca.