Advisory Opinions - Prosecuting the Parent of a School Shooter

Episode Date: September 10, 2024

Sarah and David discuss the recent school shooting in Georgia, which is raising questions about parental responsibility and the limits of legal liability. The Agenda: —Georgia school shooting —6th Circuit punts campaign finance question to Supreme Court —Body cam footage hasn't done everything we wanted it to —Debating the scope of the Second Amendment Show Notes: —Buckley v. Valeo —McConnell v. FEC —Cruz v. FEC Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get Uber One for students. With deals this good, everyone wants to be a student. Join for just $4.99 a month. Savings may vary. Eligibility and member terms apply. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French.

And David, this is part two of our action packed pod, but in the course of waiting to tape part two, more things have happened. So we're actually going to start with the school shooting in Georgia that resulted in the death of four people, two students, two teachers. Within hours, the father of the school shooter was also charged with involuntary manslaughter, as well as second degree murder. This is very interesting. It follows, of course, on the heels of the case in Michigan, where the parents in that case were charged and convicted. They were recently sentenced, I

believe, 10 years was the sentence that they received. In that case, the school called the parents to the school the day that the school shooting is going to happen, they meet with the parents, tell them their concerns, the parents sort of nod along, yes, understand. They did not take their son home after that meeting. And then within an hour or two after that meeting, the son had a gun in his backpack. The parents were not aware of that fact, or at least there's no evidence that they were aware

that he had the gun in his backpack that day and he killed several people at his school. And again, they were charged. That was really its first of its kind. Here, the facts are slightly different. Here, there's threats to the school related to there being a school shooting. The FBI gets involved, visits the home

and talks to what will be the school shooter's father, tells the father, like, here's why we're concerned, here are the things that are being said. Does your son have access to a gun? And the dad says, no. Well, yes, but it's not loaded. I'm not happy about this. It makes me angry, frankly, et cetera, et cetera. That's sort of where the conversation moves on, trails off. A few months later, it's Christmas, he buys his son an AR-15. Few months after that, from Christmas to now, the son uses that gun for a school shooting. Dad is now charged, as I said, with involuntary manslaughter and second degree murder.

Now, in Georgia, second degree murder is a little bit, well, second degree murder in every state is a little bit different. This is often called depraved heart murder, et cetera. So let's just do Georgia's before we, you know, we don't need to go into every other state, second degree murder. But in Georgia, a person commits the offense of murder in the second degree when

in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice. And he was charged with cruelty to children in the second degree. Now, David, before I turn this over to you, I was curious about all of the other cases in which someone can be charged for murder when a third party did the murdering, if that makes sense. Right, right. Yeah. So I just wanted to run through those so that you can play around.

A third party who is being charged as an adult. So this is a 14 year old being charged as an adult. Yeah. I just want to run through those examples so that when you talk about this, you can sort of maybe, you know, lead us to where you think this is most similar, et cetera. Okay. Felony murder. Right. So you're committing a felony with someone else. That person does the shooting. You know, you go to rob a bank, you're all having guns, but the other person's actually the trigger

purler. Felony murder. No problem. Right. Drug overdose case. This one's gonna, I think, be very interesting to our example here. If you're the drug dealer and give eight people these, you know, drugs laced with fentanyl and two of them die, you can be charged with murder, even though they did the shooting up of the drugs. Right. DUI manslaughter, a person driving under the influence of alcohol or drugs, causes an accident that causes a third party to kill someone else. So this isn't so hard to imagine.

Imagine a pile up on the freeway, right? You hit one car, that car then jumps the sidewalk or hits another car that results in the death of someone, you're gonna get charged. Child endangerment leading to death. And I wanna give the paradigmatic example of this. A parent or guardian leaves a child in a dangerous situation and a third party's action result in the child's death.

For instance, if a parent leaves a child unattended in a car and another driver accidentally hits the car causing the child's death, the parent can be charged with, you know, manslaughter, second-degree murder in that case. Accomplice liability and gang-related violence, that's very similar to felony murder. Okay, so David, that's the law, roughly speaking, again, as we're sort of moving into uncharted territory of charging parents for these school shootings. A, do you think this holds up from like a legal principle on appeal? Because I don't think there's much question

these guys are getting convicted at trial. Yeah. The the Michigan parents did. I think this dad will as well. The question is on appeal to does this help? Is this preventing anything? Are future parents going gonna be like, well, I was gonna get my kid an AR-15 and hope that they didn't shoot up their school,

but now that I know this, maybe I won't. Yeah, let me go with two first. I really don't see this having a deterrent effect for a really pretty specific reason. A lot of these, you know, we always over read criminals' knowledge of the law and the news and all of this. And one thing that was really interesting to me is back when we were having a lot of debates and discussions about police reform and things like that in the in 2020, you know,

we were looking at this the way we've constructed a carceral state and how we have very, very long prison sentences in the United States. And one of the reasons for the very long prison sentences is allegedly deterrence. And there was interesting data showing that criminals didn't know the penalties. It's not like they knew, well, okay, I was going to rob someone when the maximum penalty was two to three years, but now that I know that it's 10 to 15, I'm not going to do this. That's not the way it works, that there was very, very limited knowledge of the law. And so a lot of these school shooter families, I mean, the story of this family, for example, the mother is estranged from the father,

the mother has been in and out of trouble with the law, there's a weird custody kinds of battles and arrangements, this family is in a crisis, it's in a mess. These are not the families that are up on legal developments, right? And so I do not think this is a deterrent. The question really is, is it justice? You know, something doesn't have to be a deterrent

for it to be right to prosecute it. There's also just the pure question of justice. And that moves us into the first question. And here would be where I would say, as a general matter, I would say, yes, if you give an AR-15 to a 14-year-old when you know that the 14-year-old when you know that the 14-year-old has had enough violent ideation that the FBI has showed up at your

door, that is a really grotesquely irresponsible thing to do. From a conceptual standpoint, Sarah, here's where I kind of, I'm very interested to hear your thoughts. You charge him as an adult, okay? You charge the kid as an adult. So, you're saying that this kid formed adult-level intent. They had adult-level responsibility. But the counts here really are not that the father was a co-conspirator, that the father, there's no allegation the father knew what he was going to do with the hour, or that the father, you know, supplied it with the intention of him using the hour 15 in this way.

I do wonder about this notion of charging the son as an adult who is doing this as an adult with adult intent, and then turning around and saying to the father, well, what are you doing supplying it to a child? What are you doing supplying the gun to a troubled child? Because I think the stronger you make the case with the father, ironically enough, the weaker you make it with the son as charging him as an adult, and the stronger you make it with the son charging him as an adult of his own independent will and volition,

the weaker you make the case against the father. Sort of conceptually is where I am on it, Sarah. Well, look, the good news is, as long as you try them separately, that's fine in the law, right? You can have mutually contradictory theories of a crime and go to trial with those. I think it gets to your underlying point about justice, perhaps. Yeah. But legally, there's nothing wrong with that. Look, here's why I'm interested in the drug overdose example, because the principle behind the idea of charging the drug dealer

is the reckless disregard for the safety of others and some amount of foreseeability, right? Right. And I think it's not that hard to then draw a line to this crime. You were reckless, reckless disregard for other safety when you gave your son who had had violent ideation a gun. And it was reasonably foreseeable given the FBI's meeting with you that if you did all those things, death would result. But that's not actually what he's charged with so much. As I mentioned, that second degree murder statute is actually

about endangering, sorry, cruelty to children resulting in death. So I think normally, I mean, not just normally, like in nearly every case, that's going to be resulting in the death of the child. And that's why it says without regard to malice and things like that. So this is different than the drug dealer liability idea and the cruelty to children saying that providing your son a gun, presumably when you knew he had violent ideation, it's not just gonna be providing your son a gun, although I think there's gonna be people who are gonna argue

that it's hard to differentiate the two perhaps. Let's give this the strongest version. Providing your son a gun, when you know your son has violent ideation that has risen to the level of an FBI visit to your home, is giving that child a gun cruelty to the child. Yeah, the other statute in play here, one of the other statutes is involuntary manslaughter.

And that- Easier. Much easier, much easier. So here is what involuntary manslaughter is in Georgia law. A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. This is section B. So lawful act, purchasing a gun, and in an unlawful manner when he causes the death of another human being without any intention to do so

by the commission of a lawful act in an unlawful manner, likely to cause death or great bodily harm. That is, but that's a mere misdemeanor. Much closer to the drug dealer. Yeah. Yeah. But that's a mere misdemeanor. Then the other one becomes when you commit an unlawful act when he causes the death of another human being.

And that's punished by one year or more and not more than 10 years. I think that one's also sitting on the cruelty to children idea here. Exactly. That basically they need to convict them of cruelty to children under Georgia law, which I'll just read that section. Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.

So is this actually like when you get down to sort of the key legal principles, they're charging them with having a really bad custody dispute and that that rate rises to the level of cruelty to children under Georgia law. And then that sits as the foundation for these other charges. I even wonder, Sarah, if the cruelty to children is him coming because he's, he's charged with more counts of cruelty to children than, you know, than related to. So the cruelty to children could be, uh, that those who are injured, you know, those who were, you know, that the

so you're you're actually talking about there's more than the shooting then near back to the shooting everything is bootstrapping itself he caused the shooting which caused the shooting yeah yeah okay well that's the Georgia case I think all of these cases are very interesting because as I said, like we've just not done this at the appellate level. And so as these move their way through the courts, you can bet we'll be watching them. And let's hear from our sponsor today, the state of Utah, about a lawsuit that they are asking the Supreme Court to hear.

No doubt we will be talking about this lawsuit on the podcast, but this is an advertisement that is paid for and written by the state of Utah. Did you know that in Utah, nearly 70% of the state's land is controlled by the federal government? In fact, 34% of Utah's total territory is unappropriated land that the U.S. government is simply holding without reserving it for any designated purpose. The federal government's expansive land holdings deprive Utah of a significant amount of sovereignty compared to other states, where Utah is unable to actively manage more than two-thirds of its land.

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Next up David my favorite topic, you know how much I love this topic and now I'm going to love it even more That's right. It's campaign finance reform I'm just seeding this conversation to you sir. No Okay, so I'm just ceding this conversation to you, Sarah. No way. No, I'm not. Not a lot. Okay. So under the Federal Election Campaign Act, parties and candidates are limited in how much they can coordinate their expenditures.

I worked in the legal department of the National Republican Senatorial Committee, and there were certain things that we could call up the campaign and talk about what we were going to do or how we were going to do it or what message we were going to use, et cetera. And then there was a whole separate thing that we had called the independent expenditure unit where we were going to run ads on behalf of candidates and not tell them, not tell them what the ads would be about, not tell them we were running the ads, not tell them how much, not tell them when. Totally independent.

This is how super PACs run, by the way. Super PACs are basically outside independent expenditure units. These are internal to the party. Now here you have the National Republican Senatorial Committee and the National Republican Congressional Committee arguing that these limits on coordination that force the parties to do independent expenditures are unconstitutional. The Sixth Circuit, sitting on Bonk, said no but, holding that in fact, there was an on-point Supreme Court opinion, Colorado 2, we call it. And like literally Colorado too is about coordinated expenditures

from parties and candidates and like, blah, sorry, welcome to the world. So David, I wanted to quickly run through just a quick summary of campaign finance cases at the Supreme Court, fit in Colorado too into there. And then talk about what the different Sixth Circuit opinion said, cause there's a lot of them and they're fun.

And David, I don't know if you saw the little Easter egg hidden in the descent, we'll get to that. Okay, so 1976 Buckley v. Vallejo. This is the one you all have heard of. This is about the constitutionality of the Federal Election Campaign Act of 1971, which had limits on campaign contributions. That's the part that we're all familiar with, right?

How much you can give. But it also had limits on campaign expenditures. How much candidates could spend, et cetera. Buckley's going to uphold the contribution limits and strike down most of the expenditure limits saying independent expenditures, candidates candidates expenditures from personal funds, total campaign expenditures, that those violated the First Amendment. Okay, so then fast forward two years

to First National Bank of Boston versus Bellotti. Massachusetts law prohibited corporations from making contributions or expenditures to influence the outcome of a referendum unless the issue materially affected their business. Supreme Court gnawed off that one, saying they have a First Amendment right to make contributions and expenditures in referenda.

Now let's go to 1990, Austin versus Michigan Chamber of Commerce. Michigan prohibited corporations from using treasury money for independent expenditures in support of or opposition to a candidate in elections. The Supreme Court upheld this law. But you're right, not for long. We'll get to that. Okay. So then we're going to have Colorado one and two, the cases at issue here. Then we're going to have the bipartisan campaign Reform Act

pass in 2002. That's McCain-Feingold, the one that I've sort of railed about as being an original sin when it comes to our current problems with populism, Congress not doing anything, weak parties, all of that I trace to this 2002 law. Okay, so 2003 McConnell's going to challenge this. McConnell, the FEC, he challenges Bicra and their soft money and issue advocacy prohibitions. Soft money, remember, was money like, basically, you can't give the money to the candidate, but you can give it all to the political party and they can spend it. And Bicra, that's the loophole that Bicra was trying to close. The court upheld most provisions of Bicra, including restrictions

on soft money contributions to political party and limits on electioneering communications within windows of the election. Again, that soft money is what's going to kill off political parties. Cool, cool. Then you though, you get to 2010, that's Citizens United. So Bicra also had restrictions on independent political expenditures by corporations and unions. Worth just remembering David, this was about a movie that they were trying to put out, a documentary on Hillary Clinton. And under Bicra, you couldn't do that unless a single person or a PAC basically paid for that movie. If you tried to do it in the corporate form like Disney or Netflix or Paramount or anything else, you couldn't make movies that could influence an election.

And for people who hate Citizens United, I mean, my question always is like, do you, you don't see a problem with that? Like bringing down the house couldn't be made. Any number of documentaries that you like or hate implicate the First Amendment, surely, when they're criticizing a candidate for office. And what Citizens United says is, yeah, you can create that type of political speech in a corporate form as well. This, of course, gives rise to super PACs, which are terrible.

Most people giving to super PACs would be much happier giving that to parties or to candidates who could coordinate the expenditure of that money. It didn't get money out of politics. FICA didn't, Bicra didn't. All Citizens United did was push that money into somewhere else it was going to go anyway. Okay, but I don't like it. 2014, you have McCutcheon v. FEC.

This was on aggregate limits on contributions to national parties and federal candidate committees over a two-year period. So you still can't give more than X amount to an individual candidate. But there was a part of the law that said, and overall, you can't give more than $120,000 to anyone. If you add them all together in a two-year period, the Supreme Court said that did not further a government interest in preventing corruption or its appearance, which is the only reason that you can limit contributions. Therefore it violated the First Amendment. And then most recently, David,

the case that this podcast was in existence for was Cruz v. FEC, and that was about paying back loans. So again, the law said a candidate could only be paid back $250,000 after the campaign. And the Supreme Court said, once again, there's just no real corruption or appearance of corruption interest in that number or in paying back loans to candidates

that doesn't already exist on limiting the amount of the contribution to begin with. Okay, sorry for that lengthy go-through, but now we get to the Sixth Circuit. Judge Sutton, Chief Judge Sutton and friend of the pod, writing for the majority basically said, look, 2001, the Supreme Court spoke to this. Yep, basically every opinion they've had since then undermines that decision,

and there's lots of reasons that it should have been undermined but not my job, not my problem, not my monkeys, not my circus. If you've got a problem, go to the Supreme Court. You then have a concurrence by Judge Thapar who just straight-on attacks tears of scrutiny, David, and I can't wait for your take on the judge, the par, concurrence, tears of scrutiny are the worst. Then you have a concurrence by Judge Bush. These are all friends of the pod. We just love the Sixth Circuit.

Judge Bush also concurs that Colorado too is, you know, presidential and they must do it. But he says, yeah, but check out text history and tradition. Like if you now that we've convinced you the tiers of scrutiny are stupid, text history and tradition is the way to go. And let's apply it to campaign finance reform. And clearly, limiting coordinated expenditures between parties and their candidates is dumb dumb then

You've got Two more concurrences by two of the more liberal justices one Basically saying everything that you've already read so far is wrong except for the fact that Colorado to is controlling And here's why and the other concurrence is all that matters is that Colorado 2 is controlling. Would you guys stop fighting? It's very short. And then you get to the dissent by Judge Radler, again, friend of the pod and former work colleague of mine. Love the Sixth Circuit. Love the Sixth Circuit. He basically says, yeah, look, Colorado too is on such an island

that so much has changed since 2001, both in terms of the facts on the ground, the actual law and regulations put out by the FEC. Remember, BICRA didn't exist for Colorado too. These various FEC regulations that have changed didn't exist. And Supreme Court precedent has changed dramatically, including the very reasoning for why campaign contribution limits can exist in the first place. All three of those, maybe any one of them wouldn't be enough, but the three of them combined. Facts on the ground, the law and Supreme Court precedent is enough that we should be able to revisit Colorado too. And David, while he's talking about those facts

on the ground, I just wasn't sure if you noticed a little something on page 95. I confess I did not. Oh, I'll read it to you. Oh, please. Number three, nor can we overlook that the factual foundations underlying Colorado too hardly resemble current realities.

Colorado too rested on the premise that political parties are dominant players in federal elections. However true that may have been, at the turn of the century it is far from true today. We have that on good authority. The current mix of statutes, regulations, and court decisions has left a campaign finance system that reduces the power of political parties as compared to outside groups. One reason for the decline in party power is the passage of the Bipartisan Campaign Reform Act of 2002, BICRA. Enacted just one year after Colorado II, BICRA prohibited

national political party committees from receiving and spending soft money, that is, money raised at the state and local levels that could nevertheless be used for generic party advertising to influence federal elections. That ban, upheld by the Supreme Court in McConnell, resulted in political contributions being directed away from parties and into super PACs. See Sarah Isger et al. restoring the guardrails of democracy project report by team conservative national constitution center, July, 2022. David. Yes, that's us.

That's us. That's us. Our report is cited one more time lower in his dissent, where we noted that candidates are incentivized to build support with the most extreme factions of voters. All true. Yep. David, I think it's our first citation.

It could be, it could be. That's fantastic. Especially together. I know, I know that's fantastic. I love it. I'm actually proud of that report, our team conservative report. It's good. I'm actually proud of that report, our team conservative report. It's good.

I'm very proud of it. Yeah. Yeah. So David, that's the lay of the land. You basically have several judges teeing this up for the Supreme Court, telling them to take it because Colorado too is clearly not good law anymore, but with some disagreement on what exactly their role is

when we all kind of know that a Supreme Court precedent isn't good law. It reminds me a little of the Judge Eileen Cannon fight over the special counsel. In that case, it's not that she's saying though the decision of the Supreme Court has been cabined or changed by changing facts or changing law or anything else, just that she thought it was dicta. But nevertheless here, you have the majority of Sixth Circuit judges agreeing that they don't think that the current Supreme Court would uphold Colorado too,

but also the majority of Sixth Circuit judges saying, yeah, but it's not our job to anticipate what the Supreme Court would do. They're the ones who have to decide that Colorado too is no more. Right, right. You know, I have a lot of sympathy for Judge Radler's dissent. I mean, you know, the situation, it is a very interesting question if you have a lingering precedent that has been undermined, undermined, undermined, contradicted, undermined. Do you still apply it? And I definitely have sympathy for the idea that you don't, that once something has been

sufficiently undermined, is it, it's just not gonna be precedent at that point. I have sympathy for that idea, but at the same time, I think the majority is just right. Until it is just right until it is done, until the Supreme Court speaks, it is still controlling. And you know what it reminds me of is how many years, Sarah, we spent with Chevron zombie precedent, lemon test zombie precedent. I mean, these were precedents that were really dying out, but

the lower courts were still using them. Why? Because they had not yet been finally overruled. And I think the lower courts were right to still use them. So I have a lot of sympathy for the Raidler dissent, but I think the majority is right. But Sarah, taking shots at tears of scrutiny in First Amendment law, come on. I don't want to be hyperb Come on, I don't wanna be hyperbolic. I don't wanna be hyperbolic. But the first thought that went through my mind when I started to read was like, not today, Satan.

Okay, let me read some of the money paragraph here. Please do. This is from Judge DePar's concurrence in attacking tears of scrutiny. What's more, a tears of scrutiny approach strains court's institutional competence. Courts after all are creatures of precedent and legal history. We discern legal rules from the famous old cases of our past, be they judicial precedent or political episodes like King Charles II's effort to control the British press.

And then we apply those rules to the facts before us. By contrast, the tiers of scrutiny force courts to perform tasks for which were not institutionally suited. Federal judges lack the economic training and democratic legitimacy to make freewheeling policy judgments. Simply put, judges are not equipped to evaluate whether campaign finance regulations adequately reduce corruption.

Indeed, the Supreme Court has squarely rejected such a cost benefit balancing approach to the First Amendment. What say you, David? So that sentence, what's more, a tears of scrutiny approach strains courts' institutional competence. And then the following, courts, after all, are creatures of precedent and legal history. That first sentence is exactly wrong.

It's text history and tradition that strains courts' institutional competence, as we have seen from the Brahimi mess. And there's just one thing I do think is really important to note. There is a difference between the way in which courts have traditionally done history, which is precedent, which is common law, which is the way that that is the way courts have traditionally done history. It's been a very precedent focused inquiry versus what we saw with Bruin and then ultimately Rahimi, which was very different, very different from reading your normal court opinion applying

precedent. It was, let's look at statutes that are not controlling, town council resolutions that are not controlling, examples from other nations. Let's look at, I mean, it was a broad, wide ranging historical inquiry that as soon as you began to see this thing unfold, you're realizing this is not, these courts are not well positioned to make this decision on the basis of these historical, and I don't even like to say precedents, incidents, events. And so, and then with Bruin, you could see the obvious trouble.

And then with Rahimi, what you saw were the play and the joints. So you actually get to a point where, okay, well, wait a minute, text history and tradition, as I've talked about before, gets actually through the back door to tiers of scrutiny really fast. So strict scrutiny version of text history and tradition is, find me the exact match for the old law. That's your Clarence Thomas. Unless it's a surety law, then I'm going to be very skeptical of anything that blocks

people from owning a gun in the absence of unusual circumstances, sort of this blocking people from owning a gun. No colonial example is you make them pay surety if they are deemed to be dangerous. So he was, you got to have something much closer to the exact match, which seems an awful lot like a kind of version of strict scrutiny, which is different from the Rahimi actual majority,

which was no, no, no, no, what we need is really an analog. Well that, there's a lot of play in those joints there. Once you're moving to analog, you're kind of moving towards a version of intermediate scrutiny. Is there just something we can find in the historical record that is in the neighborhood or the ballpark of an acceptable regulation. And so I feel like that paragraph is kind of the opposite of the reality.

But I understand why at first glance you might think, no, no, no, no, history is kind of what we do. No, precedent is what judges do. History is not what judges do. And those are distinct concepts and so when you're talking about text history and tradition. The way it began to develop out of brewing. What is. Hey it was chaotic and it obviously it seemed to me transparently strained courts institutional which is why Rahimi comes along and sort of rolls it all back in to what Justice Gorsuch

calls, well, we just have to exercise judgment. Well, that sounds a lot like intermediate scrutiny to me. So it's very difficult as a practical matter to avoid something that is a lot like tiers of scrutiny, just as a matter of practical exercise of judgment. So I don't know, Sarah, I read that and I don't think we're heading towards tiers of scrutiny in First Amendment case law, because can you imagine what would happen

to all of the first, I mean, yeah, we're not gonna move towards text, history, and tradition on First Amendment case law, because imagine what would happen to all of the precedent before. David, it feels like the title of your law review article is intermediate scrutiny under another name. Would it smell just as sweet?

I like that, yeah, I like it. I do wanna read a couple of paragraphs from Judge Strasch's concurrence, which is sort of a concurrence that we're upholding Colorado too here, but a dissent on the reasoning of all you guys. I begin with the appeal to democratic legitimacy. Judge Sopar would define the contours of the First Amendment by looking to regulations that existed around the time of ratification. Those regulations are, however, an odd place to locate democratic values. When the First

Amendment was ratified in 1791, the franchise was generally limited to white and property-owning men. It took generations to extend political participation to black men, generations more to relinquish it to women. The history and tradition test would nevertheless constrict constitutional meaning to the understandings endorsed only by the most privileged white men of the founding generation, arrogating to that plutocratic minority, retroactive and everlasting authority to delimit the constitution's bounds today.

Whatever merits may attend, stopping constitutional time in that era, democratic legitimacy cannot be among them. Put a pen in that, David. I'll read the next part. I turn next to institutional competence. Judge the Parr's theory is that judges are creatures of precedent and legal history,

not policy and economic training. So the argument runs, blinkering consideration outside the historical record keeps us in our rightful lane. But how we get from that premise, that judges are creatures of precedent, to the conclusion that the judges should shirk that precedent in favor of becoming our chair historians is anyone's guess. Far from connecting these dots, the Supreme Court's latest exploration of history and tradition in Rahimi generated seven conflicting writings, leaving lower courts to guess, as Judge Bush's concurrence

does here, what, quote, perhaps a majority of the Supreme Court, quote, appears to think about using, quote, history and tradition to assess, quote, the constitutionality of a regulation in a particular case. So David, I think those are two frequently used criticisms of text history and tradition and more broadly, especially on that first point, just originalism as a whole. And I'm wondering if you have thoughts on that, setting aside your intra-conservative,

intra-originalism beef between tears of scrutiny and text history history introduction. Yeah, so part of that is persuasive to me and part of that is not as persuasive. What is persuasive is the idea that in this era where you had limited franchise, extremely limited franchise by modern standards, the idea that legislative enactments by individuals who are not democratically elected in the

way that we would recognize democracy today shouldn't really be that influential in how we interpret the Constitution of the United States. That's what I'm getting to when I'm talking about the difference between a legislative, a statute, or a town council, these are not traditionally deemed to be precedent for courts. That is what courts evaluate in light of precedent to determine their lawfulness. And so, I think that this idea that we're going to take these legislative enactments from 1790 or whatever, and now say that they are presidential in a meaningful way, which really seems to be the Bruin reading, the Bruin reading takes these statutes as

if they're almost precedent, legal precedent, I think that's just a conceptual fail, it's a crossing of the streams, that is not the role of the legislature. And so that, I think, is your conceptual fail. I do not think the fact that, for example, it was white property-owning males who wrote the Constitution means that the text of the Constitution doesn't mean what it says. Because again, what is originalism? Originalism- Or doesn't control.

You're saying it's still controlled. Or doesn't control. It doesn't control. And so the text, you know, when I hear text history and tradition, one of the things I don't like about it is that if you're going to take what is an originalist approach, text should be like an all caps, 36 point

font and history and tradition would be, you know, smaller case, aerial four point font by comparison. Text, text is what matters. And to say, for example, that that text doesn't control because of the identity of the lawmakers or that the lawmakers were, because again, the Constitution here is the controlling document. These other legislative enactments that are being used in the text history and tradition analysis are not controlling at all. So the only question is how influential should they be?

But the constitution is the controlling document. And Sarah, generations and generations and generations of Americans who have had opportunities to amend that constitution as we have gotten more and more and more democratic have chosen not to for a lot of really good reasons. And so it is still controlling. The question I have is where I find that dissent interesting is really on how influential should be, say, the Kentucky legislature in 1792. And I think not very influential at all. Yeah. And I think, look, the pushback to that is you're saying that the people who voted on those legislative enactments were a limited minority. The people who voted to ratify the Constitution were a limited minority, the same by and large

limited minority. I think I agree with you and the difference that I would make between those two is what else are you going to look to? Otherwise, it's just judge-made vibes in terms of what law we feel like we should have. The Constitution is the contract that everyone agreed to at the time. And by everyone, of course, I don't mean everyone. And it had an amendment provision. And yeah, it's hard to amend it, but also don't forget that the 14th Amendment

completely changed the entire meaning of the Constitution to how much the word completely you want to assign. Okay, we can argue over that, but there's really no debate that it fundamentally altered the constitutional order in the United States. It's called a second founding for a reason. And that's as the franchise expands. Otherwise though, it's like, okay, that's the worst form of government except for all the others. If we're not going to be tied down to the Constitution, then it's going to matter a except for all the others. If we're not gonna be tied down to the constitution, then it's gonna matter a whole lot who those judges are

because they're tied to nothing then. But I think I agree with you that what the legislative enactments mean is you can't amend those and you can't go back in time. So the problem though that they're trying to solve for David is there's a true ambiguity or lack of clarity in some constitutional provision. How are we supposed to know what they meant?

And that's why they're looking at the Kentucky law, not because we're somehow applying Kentucky's 1792 law, but because we're trying to discern what they meant when they wrote this other thing and we think that would be helpful in discerning, clarifying, et cetera. Right, exactly. And history has never been irrelevant, because I want to distinguish between when you say you're for tiers of scrutiny, that is not saying history is irrelevant. You can read tiers of scrutiny cases for now and the next 10 days straight, and you're going to find a lot of history in the tiers of scrutiny cases. So the history history in the tears of scrutiny cases.

So the history often informs the tears of scrutiny analysis. The difference between Bruin and a tears of scrutiny case is not that one discusses history and one does not. It is how they use it. How they use it. And for those non-lawyers listening along, if you're thinking, wait, are we maybe not arguing about very much at all? By and large, the answer to that question

is kind of yes, right? No, Sarah, no. I mean, this is a huge fight that doesn't amount to maybe as much as it would seem at first blush, right? You're both willing to look at the 1792 Kentucky law. Maybe why you're looking at it's different, how much you're relying on it or taking from it might be a little bit different. But as you say, history has always been a part of originalism.

Yeah. Oh, it's always informed the tiers of scrutiny. It has not been dispositive. And I think that that is a difference. And I do think- This is your four point font. Exactly. Exactly. Four point font versus 14 point font makes a difference. The other thing that I think is important about this is that when you're bringing in tiers of scrutiny, I mean, text history and tradition from the outset of your development of the case law, which is what we're doing in the Second Amendment. As much as I don't love it, post-Rahimi,

it makes a little bit more sense, and now they have something to build from. So the Second Amendment law is kind of a blue ocean sort of scenario. It's, there's not a lot of it. So what they're essentially doing is saying, text history and tradition is how we're going to build this thing. Well, the First Amendment, Sarah, is so different

from that. We have decades and not just dozens and dozens of really important Supreme Court cases, but hundreds and hundreds and hundreds, thousands of lower court decisions based on tiers of scrutiny. And to upset that in favor of text history and tradition, you think it's been confusing in the Second Amendment world? Oh, just wait. Oh, just wait. And because then all of a sudden what you're going to see is people sprinting to the state house to pass anti-blasphemy laws.

They're going to be sprinting. I mean, just because anything that they can find that was banned in the colonial era, they're gonna start banning now and say text history and tradition. And so it would be, in many areas, I'm gonna agree with you, Sarah, that you would say, well, what's the practical difference?

In the First Amendment, I'm gonna say, we would have a period of real chaos. All right, we're gonna move on to some of our other cases, but just a quick footnote, David. David, do you remember being a parent of children of the age that when you looked at your hand and you saw a little brown spot, you thought, I better smell that. I'm happy to inform you that I believe this is like rust from the table that I'm sitting at

and not something else, but I smelled it. I did want to make sure while we were recording that there wasn't actual human feces on my hand. Well, Sarah, I was in that age and then wasn't, and now I'm back in that age. But only when I'm in Chicago with the kids. Yeah. So we got an email from a 1L who asked about the Sixth Circuit case. And I wanted to use his question to actually move

to another case. He said, might using text history and tradition allow lower courts to overturn old Supreme Court precedent that doesn't accord with the text history and tradition analysis? And that's basically what you saw the Sixth Circuit judges arguing over by and large. Although it is just worth noting that the Sixth Circuit, I think, has such an interesting conglomeration of judges, Chief Judge Sutton, just his legal analysis. What, if we were to rank circuit judges, David, in terms of respected legal analysis, when he says

something, it's almost the equivalent of a Supreme Court justice saying something like, that's Chief Judge Sutton. And then you have FAPAR on everyone's shortlist, top of most shortlist, number one on most shortlist. You have Judge Bush, who is this just brilliant historian, as you can see from all the footnotes in this opinion, and Judge Radler, who clerked on the Sixth Circuit. And I just find his opinion so great because he is not afraid to say exactly what he thinks. He's not here to make friends. He's the politest person not here to make friends you could ever meet in a way. So the Sixth Circuit, I find their decisions

really interesting for that reason. So this question, might using Texas tradition allow lower courts to overturn old Supreme Court precedent? Well, clearly they didn't hear, right? They were saying Texas tradition cuts strongly a hundred percent against Colorado too, but there's Colorado too, so what can we do? There was also a Sixth Circuit decision from last week called Tennessee v. Becerra.

Now I'll just give the briefest of facts on this, but basically Title 10 of the Public Health Service Act 1970, Section 1008 says, none of the funds appropriated shall be used in programs where abortion is a method of family planning. So does that mean that you can refer people for abortions? That you must refer them for abortions or that you must not refer them for abortions? This question actually went to the Supreme Court in 1991 in Rust v. Sullivan. They said that Section 1008, that that language was ambiguous. They applied Chevron deference. They basically said, we don't even need to try to resolve the ambiguity. That's what Chevron is for. We defer to the agency. Then, of course, you apply our deference and other

stuff. Basically, HHS has flipped whether you must or must not refer people for abortions based on that language. So every four years, you're in a brand new world of whether you can get money for your state health clinics under Title X. So to your point, David, about conservatives kind of trying the same case again, frankly, right, the case that we just talked about. That is Colorado too. It's the same facts. It's the same case. You're just trying again. Here at Tennessee, V. Becerra is the same case as Rust v. Sullivan. They're trying again. But in this case, they're saying, look, it's not just that the Supreme Court decided this. They actually didn't decide it. What they said was they were deferring under Chevron. Well, Chevron's gone. So now we'd like you to actually decide it on the

facts of the text. There is an ambiguity. Fine. You're in charge of resolving the ambiguity, says the Supreme Court. And the Sixth Circuit said, no, thank you. That is also up to the Supreme Court. Even though Rust v. Sullivan relied on Chevron, we're not going to go back and redo that for them. And if you remember David, the Chief Justice's opinion on this was actually a little bit weird. What he says is that Loper-Brite overturning Chev Chevron, does not call into question prior cases that relied on Chevron framework. Okay, that would seem to resolve our case here, right? Right.

And that the holdings of those cases that specific agency actions are lawful are still subject to statutory stare decisis. But in this case, as I said, HHS has actually been flipping back and forth. So the actual statutory deference that they gave to HHS in 1991, HHS has since changed and flipped and changed and flipped many, many times, more times than I can count, between 1991 and now.

So what exactly are you giving statutory starry decisis to from Rust v. Sullivan. So this kind of gets to the question, if you will, David, and to our 1L's question of how exactly courts are gonna do this. I can't imagine that every court is gonna follow the Sixth Circuit's lead here in holding that. You have Gibbons, Kethledge, and Davis deciding this. Kethledge basically writes the dissent saying, hi, hi, we'd love some en banc review here or Supreme Court. I don't know. But what Roberts laid out makes a lot of sense, except in the vast majority of

these Chevron cases, where what ends up happening is they flip-flop back and forth as to what their statutory interpretation is. Do we give that deference? Yeah. It's a fascinating issue because there are areas where there has been an interpretation. It has been made. It has been upheld under Chevron deference, and that's been that. Those are sort of the cases that I feel like were in Justice Roberts' mind when he made that statement.

Because there are a lot of situations like that where there was a ruling, it was upheld, the regulation hasn't changed, and everyone goes about their business. But there's a category of cases and a category of regulations often that just so happens, Sarah, for all of our mutual convenience and fun to be in the most culture worry areas of American life, where we have the flip-flop back and forth of the regulation every four to eight years when a new administration comes in. And if you've ratified the flip under Chevron, you haven't ratified the flop, right? So, if it's been flipping and flopping, but there's only a ratification of the flip under Chevron, not a ratification

of the flop under Chevron, how do you treat all this? And it is legitimately a little bit confusing because the question would be, how can a statute mean yes and no at the same time, which is what they've often been held to do? Like, go back to Cargill and bump stocks. So you have the exact same statutes. Under one president, it's bump stocks, yes. Under another president, it's bump stocks's no. Isn't there only one answer there? Can't it be yes, but it not no? Or can it be no and not yes? And that's exactly where these cases, it feels like the Supreme Court's going to have to kind of step in and say, here's what this statute actually means. The flipping and flopping has to end and it ends now. So I don't see

a way out of that necessarily, Sarah. And indeed Judge Kethledge, also one of those Supreme Court short-listers on the Sixth Circuit, agreed, he said, again, the department studiously overlooks the extent to which the lower courts remain bound by the courts prior cases that relied on the Chevron framework. In the very next sentence of Loper-Brite, the Chief Justice was surpassingly clear in defining that extent. The holdings of those cases, that specific agency actions are lawful, including the Clean Air Act holding of Chevron itself, are still subject to statutory stare decisis despite

our change in interpretive methodology. The specific agency action held lawful in rust was the 1988 rule, which has since been rescinded. Thus, in this appeal, we have no occasion to defer to that holding. Instead, we must exercise our independent judgment in deciding whether the agency has acted within its statutory authority as the APA requires, citing the chief's language in Loperbright. We would therefore contravene Loperbright if we defer to the agency's interpretation of section 1008 in the 2021 rule. And to say the agency actually interpreted section 1008

is generous since in the rule, the agency nowhere deigns to interpret it. So look, the Sixth Circuit is getting interesting cases. They've got their work cut out for them. I love reading you guys. Everyone is a special snowflake on the sixth circuit in the best sense, David. All of their thoughts are interesting. They're like, they are the mini Supreme Court to me right now. But we need to move on to an

interesting fifth circuit case. So this is a qualified immunity case, David, but not really. I mean, it is for the parties involved, David, but not really. I mean, it is for the parties involved and sorry for all of that. But basically a guy's girlfriend gets pulled over and he goes to where she's been pulled over to help out. There's body camera footage of what happens next. He's talking to the two officers there.

She's talking, everything seems good. The supervisor shows up though and things get testy. And at some point, the supervisor body slams the boyfriend by his neck to the hood of the car. More fighting ensues. The guy gets tased twice in the back. He sues, arguing excessive force. 1983, his rights were violated. And the Fifth Circuit holds that,

look, on the choke slam, he can go to trial because the facts are in dispute. And if the facts are, as the boyfriend alleges, it is clearly established that you're not allowed to use excessive force, and therefore the officer would not be entitled to qualified immunity. You've got three different opinions from this three-judge panel, David. They prove the point. So you have Dennis writing for the majority saying, look, clear fact dispute. The boyfriend is talking to the officer,

the officer lunges toward him. And then the boyfriend like tries to move away. Then the officer chokeslams him onto the hood of the car. Then they're tasing him. Obviously this should go to trial. You have Judge Jones in dissent saying, what body cam footage were you watching? What happens is that this guy, the boyfriend,

keeps trying to prevent the officers from doing their job. He keeps answering questions for her. They tell him not to, they tell him to stop, they tell him to leave, he won't. So yeah, the officer comes to tell him again to leave. Boyfriend elbows officer in the stomach. So yeah, then officer responds with force. That's not excessive force. That's

acceptable force. And by the way, right after that choke slam move or whatever, boyfriend punches officer in the face. Officer is thrown to the ground. He has a bloody lip. He has bloodied knuckles. He has to have medical attention when the ambulance shows up. So no, you like, of course, the officer gets qualified immunity here. And then you have Judge Willett in the concurrence, raising David a point that I thought you'd enjoy, which is, isn't it interesting that we were all watching the same body cam footage and that the majority and the dissent can have such totally different versions of events based on that? And I got to tell you, me,

Justice Willett, I don't quite know what happened, but that means that that's an issue for the jury, but also, ugh, body cam footage hasn't exactly done everything we hoped it would do. I thought that was fascinating. I loved that concurrence. And you know what it made me think of? Instant replay in sports.

It is, that is what this is. But not as good camera angles. Not as good camera angles, lower, you know, lower depth, you know, no independent expert to immediately, you know, be on the line to talk about it. But no, the, the, but it did, it did remind me of the sports instant replay in the sense that, yeah, the instant replay does resolve a lot of disputes.

It does not resolve all disputes, and fans will watch the same footage and come to different conclusions from it. And so none of that surprises me at all. And so I think from that standpoint, the reasoning of the court, which was essentially, wait, the rule is that if you make an allegation and a complaint and the body camera footage comes out at the summary judgment stage and

it decisively refutes the allegations and the complaint, that's not a dispute of fact. In other words, if I say the officer was white and the footage shows a black officer, well, then it can't be the officer, right? And so it can't be the white officer. And so if it decisively refutes the allegations, the complaint, there's no disputed material fact. And here they're saying this doesn't decisively refute. So you get to go to trial and offer your interpretations of the video.

And I think that's exactly right. That seems like to be exactly the right call here. But I was immediately thinking of past interference plays, Sarah, past interference plays. That's where the judgment comes in, even when there's, even when there is a replay. All right, I wanna zoom through a couple of these Second Amendment cases.

So, per curiam opinion from the Fifth Circuit, saying Brahimi, remember that's Brahimi and Bruin, per David Latt, and I'm gonna stop defining it pretty soon, so y'all better catch up on that Brahimi train. Fifth Circuit says Brahimi doesn't change 922g as applied to illegal alien prohibition on owning guns. Not surprising there. Fifth Circuit also an opinion. Uh, 922g as applied to a marijuana user who wasn't high at the time of the search and arrest? Nope. 922G struck down as applied to someone who admits

they smoke pot but was not at the time that they got the gun. That's the Hunter Biden trial, David, where the jury had to find that in fact he was using drugs at the time that he possessed the gun. Interesting because this is slightly different what they decided. They decided that she wasn't using drugs at the time the gun was seized, but not really during the hole in which she owned the gun, David, which is different. And I'm sure Hunter Biden would have liked

that rule applied to him, perhaps. We have an Eighth Circuit decision out of Missouri. And David, you and I talked about this Missouri law where Missouri basically said, we no longer enforce federal gun laws in Missouri because F them guys or something. John Ross over at Institute for Justice had the best write up, Missouri, various federal gun control laws shall be specifically rejected by this state and shall be invalid to this state. Eighth Circuit. You see, it's the supremacy part of the supremacy clause that doesn't let you do that. But it was a little bit more complicated than that. Basically, of course, states do not have to help enforce federal

law. And so if the state had said, we no longer have the resources to help the federal government enforce 922 G laws, for instance, in this state, basically the Eighth Circuit said like, then maybe that would have been fine. But you basically said you didn't want to enforce federal law because you want to nullify federal law. So your reasoning here matters. And that reason is trumped by the supremacy clause. Right, right.

And yeah, these cases, we've seen a number of states flirting to some degree with outright defiance, but often when you read the fine print, they kind of pull back from what they're actually, you know, what sort of the newspaper headlines would be. In this case, they obviously didn't pull back quite enough, but that is one thing. It is very interesting to me when you read

some of these red state laws that are trumpeted on the headlines as they do X. When you actually read the law, they don't quite do X. Now they're very happy for the headline because they broadcast to their constituents that they've taken some sort of big stand, but a lot of times they really don't and they don't go nearly as far as sort of the headline says.

But this is one of those cases where maybe it didn't go as far as the headline said, but they still went too far. I'll read here from the opinion. The supremacy clause states that federal law is the supreme law of the land, anything in the constitution or laws of any state, the contrary not withstanding. By this declaration, the states are prohibited

from passing any acts which shall be repugnant to a law of the United States, citing McCullough v. Maryland. The Second Amendment Preservation Act, that's Missouri's law, states that certain federal laws are invalid to this state, but a state cannot invalidate federal law to itself. Missouri does not seriously contest these bedrock principles of our constitutional structure. The state instead advances two arguments. First, the state argues that the United States cannot sue to enforce the supremacy clause because it lacks a cause of action. And David, you and I have tried to talk about causes of action versus standing. Because obviously the United States has an

injury, but what law did Missouri break? Here the Eighth Circuit says, you broke the supremacy clause. It is a cause of action for the federal government. Which I don't know that that necessarily follows, but here it is quickly dispensed with. Second, Missouri contends that the act is constitutional because the state may constitutionally withdraw the authority of state officers to enforce federal law. Totally fine. The state argues that the reason why it withdrew its authority, i.e. because the state declared federal law invalid, is immaterial. And that's where they go on to say, like, look, you can withdraw federal assistance.

That's called commandeering, right? When the federal government tries to commandeer state assistance enforcing federal law. But if the state prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearm laws, then it may do so by other means that are lawful and assume political accountability for that decision. Delightful. Last decision, David, and if you want to spend more time on this on a future pod, we absolutely can, but the Massachusetts Supreme Court, and I just want to emphasize here the Massachusetts Supreme Court struck down a

Massachusetts law prohibiting switchblades. It said it was inconsistent with the Second Amendment and applied basically its own text history and tradition and said, look, at the founding and different times that they looked to, there were particularly dangerous knives that were banned. For example, dirks, a long straight bladed dagger formerly carried especially by the Scottish Highlanders or a short sword formerly worn by British junior naval officers. Bowie knife, also banned, is defined as a large hunting knife adapted for knife fighting, having a guarded handle and a strong single-edged blade, typically 10 to 15 inches long. And they say, look, a switchblade is more like a pocket knife,

and there's no text history and tradition or whatever of banning pocket knives at the founding. So we're looking at dirks and bowie knives, and we're looking at pocket knives, and we're saying switchblades more like pocket knives, and therefore the law is invalid. I'm surprised on a few counts, David, but I got to say I'm mostly surprised because it seems to me that this is that vertical level of generality. Clearly at the founding, you were allowed to ban types of knives that were deemed particularly dangerous, like dirks and bowie knives. knives that were deemed particularly dangerous, like Dirks and Bowie knives. So Massachusetts now says, okay, we're just expanding the definition of the types of knives

that we now find dangerous. A switchblade with a spring action is particularly dangerous to us. And again, you have a court saying, nope, take that level of generality down. You've got to actually have a specific analogy to the knives themselves that were banned at the time of the founding. Also, of course, holding that knives are arms within the Second Amendment, which is maybe a little bit of a no-brainer to me, but I don't think we'd had a lot of case law on it. Yeah, it is an interesting case. And I agree with the outcome. But I do think there's an interesting discussion to be had about the difference between gun regulation and knife regulation in the sense that, okay, if you're wanting to get at sort

of, if you're analyzing the history, if this is going to be a text history and tradition world where history is going to be quite important, what is the meaning of all of the regulation of knives compared to guns. And one of the issues, Sarah, is, as we've talked about before, in many ways, knives were viewed as perhaps more dangerous for criminality, that the gun, that single-shot musket that would take even a most practiced soldier

quite some time to load, and that was also not terribly accurate, to be honest. You know, it was the massed musket fire that made, say, a formation of British regulars so deadly. It was that mass of fire. And it was combined, of course, with the bayonet and the bayonet charge. It was not that an individual person could, with a firearm, do a whole lot of course, with the bayonet and the bayonet charge, it was not that an individual person could, with a firearm, do a whole lot of damage. But with a knife, an individual person could do a whole lot of damage. And so it is interesting to me that you had these knife regulations. And what does that say for, if you are in the text history and tradition world, what does that say for the dangerousness analysis?

So I do think that that is a very interesting area of inquiry, especially when arguably guns as they become more easy to use may occupy sort of the place that knives occupied in some of the colonial imagination or the colonial legal imagination. So I think it's a very fascinating subject and very interesting to me. And with that, David, we will let this podcast come to a close, but I do have to tease our next podcast, which will be with Adam Feldman from Empirical SCOTUS. And there's a lot we can talk about with him, including his most recent piece about which justice issues

the most important opinions, quote unquote. But also, I'm hoping that he will come with his own maybe skeptical and data-driven take on the 333 court hypothesis. So I think it'll be a really fun podcast. Also, David, I am collecting some pushback on our criminal justice reform. I just got a wonderful one from a police officer who listens to our podcast. Oh, good. I'm working to Frankenstein together, some prosecutor takes,

and all in all, I think they will add a lot to our overall criminal justice ongoing discussion of reform. So next time on Advisory Opinions, data, statistics, empirical SCOTUS, Adam Feldman. It's like Bears Beats Battlestar Club.