Advisory Opinions - Rahimi Is Here and It Is Glorious

Episode Date: June 22, 2024

The Supreme Court has decided 8-1 in favor of the government in United States v. Rahimi. Sarah and David break down the decision before getting to a few sleeper cases from the day.The Agenda: —“Y’all misunderstood Bruen” —History is instructive, not binding —18th-century policy vs. 21st-century problems —The future of gun control —“Bad man stays in jail” doctrine —Trump’s SCOTUS nominees in a second term —“SCOTUS should have never taken Rahimi” —Sleeper cases Show Notes: —Sarah’s “bad man stays in jail” tweet —Chris Hayes’ tweet 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

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we've got Rahimi, David. We have Rahimi. We have Rahimi. And I missed it earlier because I was looking at the court and I saw all of the earlier cases which were not as exciting as Rahimi.

And then I thought, well, we're done because I saw that R number come up that indicates you're done. And I just missed Rahimi. I just didn't see it. But it was there and it was glorious. So I can't wait to talk about it. So we'll talk about the other cases as well and just run through them.

One of them turned out to be a case that we did not talk about after the oral argument and is kind of a sleeper important decision as it turned out. That's the Munoz case. So we'll get to that. All right, Rahimi 8-1 with Justice Thomas as the lone dissenter, the chief justice writing the opinion. And for those just tuning into advisory opinions, Rahimi is a case about the Second Amendment, about guns. It's sort of the follow-on in a lot

of ways to the lineage of Heller, individual right to bear arms, McDonald, it incorporates the Second Amendment against the states, Bruin, you have an individual right to bear those arms. That was about May issue licenses versus shall issue licenses striking down New York's May issue. And that's where the text history and tradition thing really came up. And that takes us to Rahimi. Mr. Rahimi, very fond of shooting his guns at people at water burger drive-thrus and threatening girlfriends as well. He had two restraining orders taken out against him and then continued to possess a gun and he was charged under 922G. And if that sounds familiar to you, it's because that is actually the same

statute that Hunter Biden was charged under. Hunter Biden was charged under 922G3, which was possession of a gun while being a user of a controlled substance. This is another part of 922G, possessing a gun while being the subject of a domestic violence restraining order where you posed a danger to someone or their child, etc. Okay, so the question was, does that violate the Second Amendment? The Fifth Circuit said yes, that it did. This was a facial challenge, meaning the law in all of its applications would be unconstitutional. You had this concurrence from Judge Ho that had a few examples of,

one, just the due process problems with domestic violence restraining orders, that they were not criminal process with all of the other sort of Bill of Rights criminal process stuff that you would get if you had been charged with a crime and found guilty beyond a reasonable doubt and of course, there was a lot of walking through the history of gun laws regulations and prohibitions at the time of the founding and they weren't able to find what they believed was an appropriate historical analog because obviously there weren't

domestic violence laws at the founding. There certainly weren't restraining orders, but perhaps more to the point there weren't disarming laws that they felt like were based on similar public threat issues. You and I talked about this extensively after oral argument and several times since. So eight-one, Justice Thomas dissenting, but like everyone gets a concurrence. So the chief wrote the opinion, we have a concurrence from Sotomayor, a concurrence from Gorsuch, a concurrence from Kavanaugh, a concurrence from Barrett, a concurrence from Jackson. It's the most concurrency decision of the term and of the last several terms really. So what'd you think, David?

Well, first I just wanna say there's an amusing element to this, which is you read through the majority opinion and the concurrences, and you've got a lot of opinions there by people who are in the majority in Bruin. Gorsuch was in the majority, Barrett was in the majority, Roberts was in the majority, Kavanaugh was in the majority.

They were all in that Bruin majority and they're all saying some version of, wait, y'all misunderstood Bruin a little bit. And then the guy who actually wrote Bruin, Thomas, brewing, Thomas is sitting there going, nope, Fifth Circuit got it exactly right. So I can't remember the last time I've seen something like this, where you sort of have multiple members of a majority bailing on the actual author of the majority's interpretation of his own opinion. And it's really interesting. But overall, there were two things about this that I thought were very important. Item number one was, it provided more clarity to text history and tradition.

And I need to absorb this more, Sarah. And I feel like I need to like have the weekend and think about it and reread the opinion. But it feels like what Roberts and some combination of Gorsuch and Les Kavanaugh and Barrett were doing was basically saying, wait, wait, wait, when we said text history and tradition with Bruin, we weren't actually being that revolutionary at all. That was not actually a really big break.

What we're talking about is actually using traditional judicial methods of using past legislation, past historical practice to help inform our present principles. And so it feel when you read through the Roberts and the explanations from others, Bruin suddenly becomes a lot less radical. It's just that they're not doing tiers of scrutiny, they're doing something else,

but the something else that they're doing is really not all that different from what you would think of as conventional legal interpretation, where past practice might establish some general principles. Whereas Thomas comes in and is basically like, yeah, no. What I mean is, if we're gonna look at text history and tradition,

we gotta look at past practice. And past practice sets current practice. So for example, he talks about surety laws. And it's really, here's the perfect illustration of the difference between the majority opinion and the dissent. They both talk a lot about surety laws, but Robert says that surety laws show that there is a general principle that you can use legal process to deprive

someone of weapons if they're proven to be a danger to themselves or others. And Thomas looks at that and says, no, what surety laws show is the way to deal with someone who is a danger, a future danger, is through surety laws. And so you can see the pretty stark difference in the way they talk about the surety laws. And then the second thing is the court didn't just sort of reach a ruling in this case. It actually articulated a principle, a rule going forward that is,

has got a lot of, I couldn't well have ramifications. It says, rather we conclude only this, although the word only doesn't really fit here. We conclude only this, an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. Sarah, that's a principle that resonates beyond domestic violence restraining orders. It resonates into red flag laws, for example.

It has wider currency. So that's my short breakdown on it. I agree with some of what you said. Well, that's we can build from that. From this we build. Okay, so obviously you're just general summary of the case. I of course agree with. I do want to run through each concurrence because there's a reason there's so many concurrences. There's a lot of different reads on not what the

court decided, that sentence that you read, the eight justices agree on. But how they got there and the sort of strong and weak forms of text history and tradition, we're gonna be reading this opinion over and over and over again as sort of each justice's individual judicial philosophy. So let's just start with the chief. This is going to be a quote that is used a lot. Nevertheless, some courts have misunderstood the mythology. Methodology. Although mythology is fun too. Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases.

These precedents were not meant to suggest a law trapped in amber. You're going to hear a lot about laws trapped in amber. It's the new Congress doesn't hide elephants in mouse holes. And in fact, most of the concurrences cite this from the Chief Justice's opinion. The point is about those surety laws, David, where you have, I mean, really all eight justices saying analog enough. But as someone who wrote into me as soon as they read this, a listener of the pod, I'll just quote from it, if anything, I think this opinion undermines history and tradition and will make lower

court struggle even more. It was clear in Bruin that three actual codified pieces of legislation at the time of the founding was insufficient to justify regulation. Those analogues were directly on point. And certainly we do not need a historical twin. Yet, now even surety laws hold a close enough analysis. I think this is a big problem with marrying Bruin and Rahimi. And it's a big problem as you say, because the guy who wrote Bruin is in the dissent this time. So our listener here is correct.

There were three analogs for the New York law that was struck down in Bruin and Thomas and the majority in that court said, yeah, that's three, but that's not many. It's not nearly enough and it doesn't sort of speak to the history at the time. And then they looked at, I believe it was eight states that had similar May issue licensing laws for the last hundred or so years. Well, that's only eight states, though as Justice Breyer pointed out in dissent, those eight states made up a lot higher percentage of population of the United States and of course made up most of the urban areas of the United States. So maybe, of course, they would have different gun laws.

So the chief definitely trying to expand the world of history to be as, you know, he said not an amber, but I would say more principles and high level analogies and less actual laws. And Bruin seemed to be more about actual laws and that three actual laws weren't even enough. There's also this part in the chief's majority opinion where he discusses the Fifth Circuit. And I've been waiting for this. We've talked about all of these cases that the Fifth Circuit has at the court this time, the bump stocks one potentially being the only case where the Fifth Circuit is affirmed. The CFPB, Rahimi, now the list, Mifeprestone, the list is going to go on and on. And I've been wondering when we're going to get sort

of a, hey, Fifth Circuit, let us explain in very small words what you did wrong here. And the chief did not disappoint. For its part, the Fifth Circuit made two errors. First, like the dissent, it reads Bruin to require a historical twin rather than a historical analog. Second, it did not correctly apply our precedents governing facial challenges. As we have said in other contexts, when legislation and the Constitution

brush up against each other, a court's task is to seek harmony, not to manufacture conflict. Rather than consider the circumstances in which Section 922-G8 was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922-G8 might raise constitutional concerns, citing Judge Ho's concurrence. That error left the panel slaying a straw man. Okay, so that's the chief. It's actually a very short opinion from the chief. Now let's run through everyone else's because while they all signed on to this opinion, didn't they? Okay, so first up, Justice Sotomayor is going to basically

echo Justice Breyer's dissent in Bruin. And she's going to say, I hate text history and tradition. I would overturn Bruin, but this passes strict scrutiny. So under whatever version of constitutional interpretation you want to use, and remember, strict scrutiny, strict in theory, fatal in fact, that's about a compelling government interest with narrowly tailored means, she's saying yes, because when you look at the statistics on domestic violence, the government has a compelling interest in disarming people who have already been found to probably have engaged in domestic violence. No huge surprises in Sotomayor's concurrence. Then you get to

Justice Gorsuch. I'm going to just say Justice Gorsuch's concurrence to me, David, was the lady doth protest too much on text, history, and tradition. And how really when you read the chief's opinion, it's totally text, history, and tradition, and how really when you read the chief's opinion, it's totally text, history, and tradition, you guys. There's no daylight between this and Bruin. Believe me. Okay. So I'll read just some seconds of this. Great. If changes are to be made to the Constitution's direction, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history

when seeking to discern the meaning and scope of a constitutional provision. Consider just one example. We have recognized that the Sixth Amendment enshrines another preexisting right, the right of a defendant to confront his accusers at trial. Just as here, we have recognized that in placing this right in the constitution,

the people set its scope, admitting only those exceptions established at the Constitution, the people set its scope, admitting only those exceptions established at the time of the founding. And justice here, when a party asks us to sustain some modern exceptions to the confrontation right, we require them to point to a close historic analog to justify it. Justice here too, we have expressly rejected arguments

that courts should proceed differently, such as by trying to glean from historical exceptions, overarching policies, purposes, or values to glean from historical exceptions, overarching policies, purposes, or values to guide them in such future cases. We have rejected those paths because the Constitution enshrines the people's choice to achieve certain policies, purposes, and values through very specific means. The right of confrontation has originally understood the time of the founding. I appreciate that one of our colleagues see things differently," citing Justice Thomas in dissent. But if reasonable minds can disagree whether 922 G8 is analogous

to past practices originally understood to fall outside the Second Amendment's scope, we at least agree that this is the only proper question a court may ask. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution's original meaning in modern disputes, that path offers sure footing than any other this Court has attempted from time to time.

Come to this court with arguments from text and history, and we are bound to reason through them as best we can, as we have today. Allow judges to reign unbounded by those materials or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule except the judges themselves. Faithful adherence to the Constitution's original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow. The court reinforces the focus on text, history,

and tradition following exactly the path we described in Bruin. XOXO. So two things on that. He lost me a little bit at the end on the text history and tradition stuff, but this part of it is almost like he's channeling what we've said on AO for a long time. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult.

Asking that question, however, at least keeps judges in their proper lane. I think that is just a wonderful way of expressing both the limits and the promise of originalism. Because as we've said, originalists have often done sort of a poor public service in casting the approach to the Constitution is this is how we can kind of dig through the historical record and find the box of buried treasure. And that's it. That's the answer. End of discussion. When the reality is it's creating the lanes, the channel for the debate. And that's what Gorsuch said so beautifully there. This is essentially

the rules of the road for how we debate as opposed to this is the mechanism for discovering indisputable historical truth. And I think that there's a big distinction between those two concepts. And I thought he explained that beautifully. This is how you articulate and distinguish what the role of the judge is from the role of a legislator, from the role of a president. There is a limit. There is a philosophical and conceptual framework that confines how we look at the law. And I thought that was really well done. And I know Barrett had a lot to say about originalism as well, but that's worth highlighting.

We'll get there. So I totally agree with you on Justice Gorsuch's beautiful summary of originalism, but then there's this slight of hand that the way to do originalism is text history and tradition, and that text history and tradition, as we did in Bruin is

the same as we did here. And those are two different leaps from originalism that I don't think were born out the rest of the concurrence. So let's go to Justice Kavanaugh. Because as I've said before, Justice Gorsuch and Justice Kavanaugh were sort of created in a twin study of Supreme Court justices and yet their jurisprudential philosophies are often at odds, far more than you would ever think in a twin study. So let me read some pieces of this. The court interprets and applies the Constitution by examining text, pre-ratification, and post-ratification

history and precedent. I add this concurring opinion to review the proper role of text, history, and precedent in constitutional interpretation. So first of all, right off the bat there, we're using different terms. Text history and tradition morphed into text, pre-ratification, and post-ratification history and precedent. Trad tradition has disappeared. So in describing pre-ratification American history, he says, that is, pre-ratification laws, practices, and understandings can inform interpretation of vague constitutional provisions

in the original Constitution and Bill of Rights. The same principle of looking to relevant pre-ratification history applies when interpreting broadly worded language in the latter amendments, including the 14th Amendment, ratified in 1868. But in using pre-ratification history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind. Oh, well, as long as that's easy. He said, that's his summary paragraph at the end of the Constitution left behind. Oh, well, as long as that's easy. He said that's his summary paragraph at the end of the pre-ratification history part of his concurrence.

And I was like, but that's the problem. Uh-huh. What? Yes. Okay. So now let's get to his new definition of tradition. As the framers made clear, and as this court has stated time and again for more than two centuries, post-ratification history, sometimes referred to as tradition,

can also be important for interpreting vague constitutional text and determining exceptions to individual constitutional rights. When the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important. Indeed, absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation unless the judge simply defaults to his or her own policy preferences." Okay. But there's really not much discussion on how long after ratification do we look, and do they become less persuasive the further away we get. And we're still in the same problem of how many analogs, how close are the analogs. And as we move into the future, into that post-ratification

timeframe, I'm just a little confused if this is supposed to be guidance for lower courts. Aside from saying you can look at post-ratification history, not a lot of help there. Okay, so now precedent. When determining how broadly or narrowly to read a precedent, when determining whether to extend, limit, or narrow a precedent, or in relatively infrequent cases, when determining whether to overrule a precedent,

a court often will consider how the precedent squares with the Constitution's text and history. Therefore, the text as well as pre-ratification and post-ratification history may appropriately function as a gravitational pull on the court's interpretation of precedent. Okay, I like the gravitational analogy there. That's working for me, that metaphor.

But again, these are very broad brushes that we're painting with in terms of trying to help these lower courts that have been struggling, especially in the Second Amendment context. Okay, so continuing. But the first stop in this court's constitutional decision-making is the court's precedents, the accumulated wisdom of jurists, from Marshall and Story to Harlan and Taft, from Hughes and Black to Jackson and White, from Rehnquist and O'Connor to Kennedy and Scalia,

and so on. I don't know whether this was supposed to be examples of justices he likes, or examples of justices that are on different sides of issues, or what. I'm very confused about how that list came together and there's no explanation. Okay, and then the last part of his concurrence is going to be saying why Tears of Scrutiny is bad.

This is going to be really important in interpreting backward to when I said that one sentence from the chief in Kavanaugh I thought were more agreeing with Barrett's criticisms of text history and tradition. I take it back. I take it all back. Okay. So more Justice Kavanaugh. These tiers of scrutiny, variously known as means and scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite or strict and intermediate or intermediate plus or rigorous or skeptical scrutiny. Whatever the label of the day, that balancing approach is policy by another name. It requires judges to weigh the benefits against the burdens of a law and to uphold the law

as constitutional if, in the judge's view, the law is sufficiently reasonable or important." So here he's rejecting, this was in Bruin, right? That two-step approach is having one step too many. Yeah. Very fun. And then he ends, of course, difficult subsidiary questions can arise about how to apply those tools both generally and in particular cases. And in some cases, text history and precedent may point in somewhat different directions. In law as in life, nothing is perfect.

But in Second Amendment cases, as in other constitutional cases, text history and precedent must remain paramount. Okay, this answered some of my questions. It definitely left open a lot of my questions. I'm glad I'm not a lower court judge. And also when he talks about the tiers of scrutiny and that those are policy by another name,

as in you're never gonna hear about tiers of scrutiny from Justice Kavanaugh in any decision he's making, I take it. He also says though that they shouldn't revisit previous cases that were decided under tiers of scrutiny. Right. So David, talk to me about your take on Justice Kavanaugh. The way I take it is Justice Kavanaugh would never have implemented tears of scrutiny in

a million years. He does not want to unwind vast amounts of constitutional law. But he also, when the court is going into blue ocean, it's going into waters, it has not swum in very much, he's going to want to do things differently. He's going to want to sort of treat it, this is how it should be. But doesn't that just sort of either, that is the correct way of interpreting the constitution, text, history and precedent as he describes it.

Or it's not. It's not, in which case we should probably revisit those cases that, as he says, were decided basically as a policy matter. Now, maybe you add in because they're precedent, they're part of text history and precedent, and that you're now just dealing with sort of the gravitational pull of text history and... Again, I'm so glad I'm not a lower court judge right now. Right. And the thing though is, you look at this concurrence, and I'm with you, I don't think, I think it is helpful to have more emphasis on pre-ratification history,

that is a little bit more clarifying, because when we get to Barrett, we'll notice that she talked a lot about, hey, Bruin went far and wide. I mean, it was far and wide on its history. So he does help. He's having Bruin remorse. He was, definite Bruin remorse in Barrett's Concurrence.

But it feels to me like what's happening here is that the Roberts opinion essentially takes text history and tradition and turns it into something that is more like, history can be instructive, not history as binding, much more than history is instructive. And then you come along with- So his is text, history, precedent.

And Gorsuch is text, history, tradition. Yes, yeah. And there, I mean, yeah, this is all going to get interesting. Basically, we don't have a majority opinion on how to decide this case. Yeah, exactly. It is. That's why, you know, when I was talking about it, one of the things that the lower courts will take away from it is, okay, I can easily see legislators going forward talking about gun control measures,

circling around the core holding and saying, if this is targeting a person who is dangerous, unless we screw it up, this is going to be constitutional. Now. Well, and we've seen this in other parts of other laws that basically where there's individual assessments, that's far more likely to survive any type of legal scrutiny than group decisions. May issue laws, oddly, are also individual determinations though, in their own kind of

way, even though the law said that you needed a specific reason that you needed a gun. So it was sort of a opt in, if you will, instead of opt out. But it was looking at individual determinations, as is this. Well, you know, and one thing that is interesting about this, so when you're talking about lower courts, I feel like when it comes to the individualized determination, we have lots of guidance now, lots. When it comes to large capacity magazine bands, when it comes to AR-15 or so-called assault weapons bands,

I'm not so sure where we are, because if you read the Roberts majority without the concurrences, I would feel like AR-15, or I'm sorry, assault weapons bands, or AR-style rifle I'm sorry, assault weapons bands or, you know, AR style rifle bands, large capacity magazine bands are probably going to pass constitutional muster because you would say, look, history shows there have been a number of measures to try to deal with weapons that are deemed unusually dangerous. And so because we have this blanket principle that history shows of a history of trying to deal

with weapons that are deemed unusually dangerous, then the AR-15, or I'm sorry, assault weapon ban prevails. Or if you say, wait a minute, history here, really we have to really plug in which weapons were deemed unreasonably dangerous and why, and what is the analog between those weapons that were deemed unreasonably dangerous and why to a modern weapon. That still seems open a little bit when you read Kavanaugh and Gorsuch.

It doesn't seem open when you read Roberts and the majority. That's what's interesting to me about it. So totally, right? Because the New York in Bruin, it's struck down because the individual assessment is whether the government is going to allow you to have your gun. And here the individual assessment is whether the government is going to take away your gun. So, OK, fine. We sort of have the the waterfront on this.

But as you say, I find the whole a gun in common use at the time to be a weird way to define the historical analog because that just like, how would the gun get in common possession if it's been banned? And if it hasn't been banned, then you can never ban it down the road. Why would that be a historical analog at all? I actually like yours, David, of what types of guns were banned from individual possession, what were considered unusual, and why were those considered different than the guns that were allowed?

But I don't think AR-15 owners are gonna like that assessment. Because it's gonna be their deadliness. And well, all of these are going to be all of the guns that we're talking about, the high capacity magazines or the assault weapon style are going to be more deadly than other types of weapons. Yeah. You know, it's interesting when you look back at the historical record some, and by the way, can I just go ahead and say this?

I know for sure there are listeners right now who are, anytime you wait into second amendment issues, you are going to have listeners who know Jot, every I dotted every T crossed about the historical record. So feel free to correct, critique, whatever I say now. But there's been some interesting, since the text history and tradition test has become more prevalent,

there's been briefing and discussions about, wait a minute, the actual analogy is not how did the founding era, how did early Americans regulate a musket, which is a single shot weapon. But there are other weapons that were sort of more potentially nefarious and concealable, like bowie knives or certain kinds of knives that wears a musket, you fire your one shot

and it's like, hold on a second guys, I gotta tear off this cartridge. I gotta, you know, with a knife, you can just go on a spree, right? You can stab a lot of people in a very short amount of time. And so- Well, and I believe one of the Bruin laws that they said was not analogous enough

was banning people from concealing and carrying around little pistols. Right, right, exactly. So you look at some things, and the early American examples are gonna be kinda tougher because some of the more dangerous arms might not have been a musket. And so it gets really difficult,

which is why I think the Roberts majority opinion is not good news for people who are trying to overturn assault weapons bans. But the Gorsuch concurrence, I think, is good news for people who are resisting assault weapons bans. And so I'm with you. I think you read the majority opinion alone, and I feel like you've got some guidance that the concurrences tend to chip away at. and I feel like you've got some guidance that the concurrences tend to chip away at.

Okay, let's go to Barrett. Here she is, building on her last opinion that we went into a deep dive for. So for an originalist, the history that matters most is the history surrounding the ratification of the text. That backdrop illuminates the meaning of the enacted law. History, or tradition, that long post-dates ratification does not serve that function. To be sure, post-enactment history can be an important tool. For example, it can reinforce our understanding of the Constitution's original meaning, liquidate ambiguous constitutional provisions,

provide persuasive evidence of the original meaning, and, if stare decisis applies, control the outcome. But, generally speaking, the use of post-enactment history original meaning and, if stare decisis applies, control the outcome. But generally speaking, the use of post-enactment history requires some justification other than originalism's simplicity. Besides, imposing a test that demands overly specific analog has serious problems. To name two, it forces 21st century regulations to follow late 18th century policy choices, giving us a law trapped in amber.

And it assumes that founding era legislatures maximally exercise their power to regulate, thereby adopting a use it or lose it view of legislative authority. Such assumptions are flawed and originalism does not require them. So look, you've got the chief, I think kind of out there on his,

what if I just write this as short as possible island to get as many votes as possible? And that works, and he gets eight votes. And then you've got all three Trump appointees, Gorsuch, Kavanaugh, and Barrett with, depending on how you want to look at it, very similar or very, very different ways of doing originalism as a judicial philosophy. And they're trying to tell us how they're different and how they're the same. And I think it's hard when they come out the same way in a case. It's going to be much easier when they're on other sides, sort of like Bostock, right? We learned a lot more about Gorsuch's

views on text in Bostock and how he differed a lot more about Gorsuch's views on text in Bostock and how he differed from Kavanaugh and Alito and Thomas on that. Okay, last one. I'll just do Jackson and then we can do some wrapping thoughts on Rahimi. Jackson, I write separately because we now have two years worth of post-Bruin cases under our belts and the experiences of courts applying its history and tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake, today's effort to clear up misunderstandings is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them. And the unresolved questions hardly end.

Who is protected by the Second Amendment from a historical perspective? To what conduct does the Second Amendment plain text apply? To what historical era or eras should courts look to divine a historical tradition of gun regulation? How many analogs add up to a tradition? Must there be evidence that those analogs were enforced or subject to judicial scrutiny? How much support can non-statutory sources lend?

I have all of these questions, Justice Jackson. I actually want to just walk through those a little bit. I mean, obviously, I think the least important one is who is protected by the Second Amendment from a historical perspective because that you do. I think her point is women, black people, like, no, no, no, it's going to be citizens with constitutional rights. And so now we hold all of these people are citizens with constitutional rights. I think it's different if we're talking about an illegal alien, for instance, who may not have full constitutional rights. But to what conduct does the Second Amendment plain text apply? Good question. But that question was going to happen anyway. To what historical eras

should courts look to define a historical tradition of gun regulation? That's the pre-enactment, post-enactment problem. And I don't feel like any of the justices concurrences answered that. They gave us their feelings, vibes. The vibes were sort of like on a scale of one to 10, I'm a 6.5 on post-enactment history, while I'm only a 4.3. How many analogs add up to a tradition? Yeah, no idea. Must there be evidence that those analogs were enforced or subject to judicial scrutiny? This is a problem, right? What if there was a law,

but no one ever sued to invalidate it? So no court ever ruled on it. Why are we assuming then that that was constitutional at the time? And another big problem with post-enactment analogs, the second amendment didn't apply to the states. And a lot of what we're looking at are state laws. So, huh?

That's like saying like we're looking at states that had established religions and saying, oh, well, that's our interpretation of the Establishment Clause. What? No, it's not. I don't get, now, some of them had second amendment-esque provisions in their constitutions, but I'm actually not convinced that that should matter, actually. A state's decision to basically ignore its own state constitution, I still don't think tells us a whole lot about what the federal second amendment was meant to protect the federal government from doing. And I'm just going to go back and reemphasize that when you're looking to the acts of legislatures

to interpret statutes or to, I'm sorry, to interpret a constitutional provision. You're looking at the wrong branch of government. Legislatures do not interpret the law. We want them, we want them to take the constitution into consideration when they pass laws, but there is a reason why their law isn't precedent. Their law isn't that they pass as not judicial precedent. That's not their job.

And so when we're looking back at these legislative acts as functionally treating them as if they're precedent, that's not the system. The system does not ask us to look to individual state legislatures in 1803 to interpret constitutional provisions. — Yep. And of course, Justice Barrett, to go back to her two problems, imposing a test that demands overly specific analogs. These were the two problems she highlighted. It forces 21st century regulations to follow late 18th century policy choices. Exactly the point you're sort of making there, David. Also, what if we just have more people getting killed by guns and so we have

different policy choices that we want to make now? And then two, of course, and this is the one I'm so like, you just can't fix it. There's no getting around this. It assumes that founding era legislatures maximally exercise their power. What if they thought the second amendment allowed them to ban whatever high capacity magazines or muskets for that matter. And they just didn't do it

because they didn't think it was necessary at the time. Now we're just saying that's the ratchet that we have. That makes no sense. I mean, it is not the case that our present policy choices are limited by the colonial imagination. But David, this also gets to another thing. The court decisions, I don't want to say they weren't meant to be important.

Of course, the Supreme Court decisions are meant to be important, but they were also meant to be fixable, not necessarily easily fixable, but you were meant to be able to amend the Constitution when you didn't like a Supreme Court decision. This goes back to the Moore opinion on the 16th Amendment, and then maybe we need to talk more about that. The Supreme Court said you couldn't have an income tax based on our reading of the Constitution, and everyone

was like, well, that? Nope, I don't like that reading, and or that shouldn't be the reading. So they ratified a new amendment to fix the problem. And nobody saw that as OMG, we have to end the Supreme Court. They're the last like, well, they've spoken and now we're just done. And I understand there's a lot of practical reality right now. But some of that's in our heads. Some of it's real. And some of it's in our heads that we just don't think amendments can happen. So we don't even know. Well, and also the current state, the current it's in our heads that we just don't think amendments can happen. So we don't even well. And also the current states, the current stagnation in our politics and the current close divisions in our politics, there is absolutely nothing written in granites that says that will continue.

And in fact, there's different choices primary voters could have made that might have been we might be on the cusp of a massive political realignment, like at the very moment. You know, we were we were talking the other day about given Biden's weaknesses and the obvious age issues that if you had a different Republican than Donald Trump, you could be looking at a 40 state win here given Biden's approval rating and things like that. But voters have maintained the stasis in many ways

in the stagnation by doubling down on sort of, you know, on base politics, etc., and things that are intentionally not really designed towards consensus building, but more designed towards control and domination. That's not necessarily going gonna last forever. I mean, it was in my lifetime that, you know, since I've been alive, I've seen two 49 state wins by president. One of them, I was a mere two and a half years old and totally unaware.

But one of them I was watching with bated breath in 1984. And this idea that we're always gonna to be so closely divided. When we do begin to break this logjam, it will be time to, I agree with you completely Sarah, think about some ways to deal with persistent problems through the amendment process. Okay, David, I have some more questions for you. One, someone who has paid no attention to any of the justices, their judicial philosophy, text history and tradition, originalism, none of it, could have predicted the outcome of this case based on our legal doctrine that has made it through the years. Bad man stays

in jail. It's true. And I think that cases like that are important to point out because you do have to wonder who is driving the cart, right? Is the judicial philosophy driving the cart or is the cart driving the judicial philosophy here? Because while I think that as Justice Barrett has very consistently now described her version of how to use text in history, I guess I don't see how Justice Gorsuch can say this is exactly the same as Bruin,

text history and tradition test, except for the bad man stays in jail. Nobody wants Rahimi to have a gun. He had, in a parking lot, started threatening, hitting his girlfriend, pulled a gun on her, her minor child, a bystand on her, her minor child. A bystander then comes to potentially help. He shoots. It's unclear whether he's shooting at the bystander or at her. She gets away at that point. He's shooting at a water burger

when they decline his buddy's credit card. There were five other shooting incidents, two domestic violence restraining orders. There's a reason the Supreme Court wanted to take this case. Maybe this shouldn't tell us anything about the law, David. You know, it's interesting. Had it not contained a very blanket, a holding that was pretty clear and with pretty clear implications beyond Rahimi. I'd be right with you.

This was a bad man stays in jail, but it turned into bad men don't get guns. Okay, very well. Next up, Chris Hayes said, one way to think about the stakes of a Trump second term is him having an opportunity to turn the Supreme Court into the Fifth Circuit. To which I said, except Rahimi was 8-1 and all three Trump appointees voted that it was legal to disarm Rahimi. To which he said, sure, but a lower Trump court full of his appointees were the ones who ruled the opposite way on this as well as on Miffl-Prestone and Moore.

Moore is the 16th Amendment case, not M-O-R-E, although also Moore. All it takes is personnel craven enough and you can change the law, to which I said, accept the details. Trump already picked one of his lower court appointees for the Supreme Court. Justice Barrett voted with the majority in both Rahimi and the Miffl-Prestone case. But David, it's not that Chris doesn't have, I think, a point, I think he's making his point badly. Is there reason to believe that the way and who Trump appointed in the first term will be really different

in the way he appoints judges in the second term? And is he more likely to appoint Supreme Court justices like or from the Fifth Circuit than he is to appoint the to appoint Supreme Court justices like or from the Fifth Circuit than he is to appoint the justices like the justices he appointed that voted bad man doesn't get gun and in the Miffa Preston case? So yeah, I think my issue with the Trump appointments in a second term, if we could be guaranteed that Trump was going to appoint similar judges and justices that he appointed

in his first term, and I didn't agree with all of them, but by and large, by and large, they were very good appointments, then I, that, then Chris's critique rings hollow to me. If, however, he follows through on what the MAGA legal movement, and there's an actual MAGA legal movement now, it did not exist in 2016. There was no coherent MAGA legal movement. There was sort of no coherent MAGA legal philosophy. There wasn't really

anything to compete with the Federalist Society, the traditional Federalist Society view. That's all changing. There is a MAGA legal movement. There have been strong critiques leveled against Trump's appointees by people in the larger new right. Trump himself has left the door open to thinking that he didn't select the right kind of justices in his first term. He was very upset when they ruled against him

in the election challenge. So, you know, I think that the Gorsuch, it is very likely that you would have a very similar thing. You know how when Trump arose, a lot of people who hated George W. Bush were like, okay, wait a minute, there can be so much worse than Bush or people who are furious about Romney. They start to have this strange new respect for Mitt Romney.

I have said this before. I'll say it again. My fear is that Trump would appoint judges so MAGA in their outlook that even the left would look back at Gorsuch and Barrett and Kavanaugh with a new respect. So that's my concern about the other Trump term. My concern is precisely that he would not select more Barrett's, Kavanaugh's, and Gorsuch's.

My take is I just don't think we have the evidence either way. I think many people in the run up to 2017 or Trump taking office could have said the exact same thing at that point. Maybe there's a little more evidence now in terms of there's louder voices now, but we have sort of loud voices versus a track record from his first term. I feel like it's a guess in anyone telling you they know that Trump will appoint so-and-so to the Supreme Court or people like so-and-so,

like, eh, I don't know that. Okay, I know that our longtime listeners know this, but I just, just for anyone new out there, this was a tweet by someone who's head of a gun control group. The Rahimi case should never have been taken up by SCOTUS. To even question whether domestic abusers should have access to guns shows just how extreme this court has become. So he wanted the Fifth Circuit case to be, to not be touched?

I'm concerned about someone who advocates for gun regulations in the country but doesn't understand how the lower courts and Supreme Court work. I actually don't want to dunk on this person because this is such a genuine misunderstanding. This isn't someone trying to trick people or this is someone who definitely doesn't know. The Fifth Circuit held that 922G8 was unconstitutional because it violated the Second Amendment. Then the Supreme Court took the case overturning the Fifth Circuit. If they hadn't taken the case, the Fifth Circuit decision would have been the law in Texas,

Louisiana, and Mississippi, as in people under domestic violence restraining orders would not have been barred from having a gun in those states. Another point worth making, because a lot of people are like, yeah, but the lower courts decide the majority of these cases, that's the extreme courts. Yes and no, right? Lower courts are charged with applying Supreme Court precedent, so they're not acting totally on their own. The Supreme Court doesn't take cases're not acting totally on their own. And the Supreme Court doesn't take cases randomly. They take circuit splits.

So when the Supreme Court takes a case like this and decides it, yes, they're deciding the Rahimi case that came from the Fifth Circuit. But many other circuits have had this case. And so really when the Supreme Court decides a case like this, they're deciding 10 cases or 100 cases across the country, and that's now precedent that has to be followed. So it's not quite the same as saying like, oh, you can point the crazies to the lower

courts and the Supreme Court can't overturn them all, which by the way, is a quote from the famous liberal judge, Reinhart. They can't overturn them all. Yeah, but either you're ignoring your job or the Supreme Court's ignoring theirs by not taking cases that are circuit outliers. So yes and no. Yes, the Fifth Circuit is clearly the more extreme court, whatever you want to call it right now as a lower court goes, but they're also going to follow the Supreme Court's precedent

on all of these cases as they get overturned and overturned and overturned all term law. Yeah. Yeah. The reality was, and I, you know, I'm not even really mad at the Fifth Circuit here on this case because Bruin, all of this is predictable from Bruin and their job is to follow Bruin. In Bruin, we talked about this. I vividly remember, because as I've said a million times in our 800 conversations about this, that I was long text history and tradition curious. And then when you saw it unfold as you read it in Bruin, the problem began to just really dawn on me, this problem with text history and tradition. And then all of everything that's flowed from it has been lower courts struggling to apply an opinion

that quite frankly was very difficult to apply. And so just sort of hang this on them as their gross extremism. No, they were trying to apply a new legal test without a lot of guidance with the one example to fall back on of being brewing itself really did seem to go with, you gotta have your matches, man.

You gotta have, it's a mold, it's amber, you gotta show us exactly where you can point to an exactly similar law. So yeah, I mean, it's very understandable why they reached the conclusion they did. Where are all the Jurassic Park memes holding up the mosquito and the amber? Because that's exactly what I thought of

when I read the laws in amber. Okay, we got four other cases this morning and three of them I just want to describe what they are but one of them actually is kind of a big deal. So real quick, we had an original jurisdiction case was very strange. It originally started as Texas versus New Mexico. Then Texas and New Mexico got on the same page, but the United States didn't want them to settle the case. Five-four Jackson writes for the majority, which is, by the way, tradition that the most junior justice gets the original jurisdiction cases because normally they're pretty boring,

holding that, yeah, no, the United States gets their way here and the case will not be resolved just because Texas and New Mexico want it to be resolved. This is a riparian rights case, so water dispute. Here's a weird thing though. It's five, four. So in dissent is Gorsuch, Thomas, Alito, and Barrett. But I got to tell you, there's really no political valence to this case. And so it's going to be funny because in like the stat packs, just remember this later, we're going to talk about five, four along ideological lines, six, three along ideological lines. Even when they're five, four or six, three sometimes along ideological lines, they're not. It's just how it turns out. There's no politics really involved in the

riparian rights issue between Texas and New Mexico. Next up was a 6-3 case. This one's interesting because it's Gorsuch writing the majority and Kavanaugh writing the dissent. It's Kavanaugh, Alito, and Jackson in dissent with Gorsuch writing this majority joined with the rest of the conservative justices and Sotomayor and Kagan. It's the Armed Career Criminal Act. And David, we avoid these cases like the plague. Basically the Armed Career Criminal Act increases the penalty for 922-G convictions. Y'all are going to know 922-G so well, like a freaking AUSA out there.

So remember, you're not supposed to have a gun charge. From a maximum sentence of 10 years to a mandatory minimum sentence of 15 years when the defendant has three or more qualifying convictions for offenses committed on different occasions. The Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant's past offenses were committed on separate occasions for a CCA purposes. So, this is a very pro-defendant case. No surprise that Justice Gorsuch writes it, but a little more surprising to see Kavanaugh and Jackson in dissent along with Alito. So again, we do some deep dive down the road,

David, into just criminal defendant law. We'll come back to this one. All right. Last one of the ones we're not going to spend a lot of time on, Smith v. Arizona. This is a Kagan opinion and it's unanimous-ish, but it's kind of 7-2 with Alito and the chief on the outs and maybe Thomas and Gorsuch kind of in the outs, but kind of concurring. Okay, so this, just to read the confrontation clause in the Sixth Amendment, in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. Well, what does that mean?

So Kagan writing again for a unanimous-ish court. When an expert witness conveys an absent analyst's statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. And that will mean that you need to be able to talk, you need to be able to confront the underlying analyst. So again, a very pro-criminal defendant opinion with the chief in Alito being like, no, come on. What?

Uh-uh. But a lot of history on confrontation clauses and we're getting so many confrontation clause cases of late David. I don't just mean this term, like the last several terms. Samia last term. So maybe we will have to do an armed career criminal act and confrontation clause pod down the road. Oh gosh, I hope not.

I want to get to this Munoz case because it is 6-3 along ideological lines and you read the top line and you're like, oh, it must be a non-ideological one that just happened to cut 6-3, but it's not. So this is an immigration case, but it's really about the unenumerated right to marriage. So a US citizen marries an illegal alien from El Salvador, and they want to get him status in the country. Well, in order to do that, you have

to go back to your home country and do all these interviews. And they denied him his application, citing 1182A3A2, a provision that renders inadmissible a non-citizen whom the officer knows or has reasonable ground to believe seeks to enter the United States to engage solely, principally, or incidentally in certain specified offenses or any other unlawful activity. So the husband and wife sued the Department of State, arguing that her, that the American citizen, the wife's constitutional liberty interest in her husband's visa application had been denied by failing to give a sufficient reason why

her husband was inadmissible under the unlawful activity bar. Okay. So, in short, husband's an illegal alien and can't come and they won't tell him why, even though he's married to a U.S. citizen. Then when they finally get into court, they're like, okay, fine, we'll tell you why. And it's the same reason that you thought, because you have MS-13 tattoos, and we have reason to believe that you're involved in MS-13. They provided some in-camera evidence to the judge. The judge found persuasive. And they're like, fine, fine, we told you the reason, and you're definitely still not admissible to the United States. And you can't

come back to the United States. You're stuck in El Salvador now, even though your wife and child are in the United States. So you have Justice Barrett writing for the 6-3 court, her finding, her holding, a citizen does not have a fundamental liberty interest in her non-citizen spouse being admitted to the country. The wife invokes the fundamental right of marriage, but the State Department does not deny that the wife,

her name's Munoz, so I'll say Munoz from now on, Munoz invokes the fundamental right of marriage, but the State Department does not deny that Munoz, who is already married, has a fundamental right to marriage. Munoz claims something distinct, the right to reside with her non-citizen spouse in the United States. That invokes more than marriage and more than spousal cohabitation.

It includes the right to have her non-citizen husband enter and remain in the United States. Could a wife challenge her husband's assignment to a remote prison or to an overseas military deployment even though prisoners and service members themselves cannot bring such challenges? Could a citizen assert procedural rights in the removal proceedings of her spouse? Munoz's position would usher in a new strain of constitutional law, for the constitution does not ordinarily prevent the government from taking actions that indirectly or incidentally burden a citizen's legal rights. Sotomayor writing in dissent. I mean, immediately. This is about Dobbs and this is about Obergefell. Munoz does not argue that her marriage gives her the right to

immigrate her husband. She instead advances the reasonable position that blocking her from living with her husband in the United States burdens her right to marry, establish a home, and bring up her children with him. burdens her right to marry, establish a home, and bring up her children with him. I don't totally understand then what Sotomayor's point is. If it's not her right to immigrate her husband, how can she establish a home and bring up children with him in the United States? But okay, she continues. Munoz may be able to live with her husband in El Salvador, but it will mean raising her U.S. citizen child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex

couples and others who lack the ability for legal or financial reasons to make a home in the non-citizen spouse's country of origin. For those couples, this court's vision of marriage as the assurance that while both still live, there will be someone to care for them rings hollow," citing Obergefell. So, David, this is all about how do we think about unenumerated rights? At what level of specificity do we define someone's claim for an unenumerated right? Is this the right to have a functional marriage? Because certainly your husband living in El Salvador and you living in the U.S. with your child is not functionally married, if your husband's not allowed to come visit you at all. Or is it the right to live with or near your spouse? Or is it the right to have your spouse get legal residency in the United States? Or is it simply the right to know

why your spouse isn't allowed in the United States, which is actually what Gorsuch's concurrent says? He's like, why are we arguing? He's like, fine, maybe there's a right to know why your spouse can't come in. They told her, so we're done. Why is this even still a case? Oddly, the dissent says they would have been happy to agree to that outcome that she had a right to know why her spouse couldn't come and that she's now been told why her spouse couldn't come and that would have ended the case. The only reason that they dissented was because the majority wanted this larger holding about there not being a fundamental liberty interest

in non-citizen spouses being admitted to the country, which is just all a little odd to me. Yeah, it's an interesting case. And, you know, it seems to me that if you're going to... This idea that you have a fundamental liberty interest in the admission of a non-citizen spouse... I mean, look, I'm a huge fan of marriage, Sarah. I'm a huge fan of marriage, Sarah. I'm a huge fan of marriage. But this idea, because unenumerated rights, if you're thinking about what are unenumerated rights,

and the standard is something that's implicit in the concept of ordered liberty. This is one of the standards under the, that was talked about in the Dobbs decision, for example, when Alito was talking about unenumerated rights. And this seems to be a little bit far afield from implicit in the concept of ordered liberty. And it seems much more like, from a policy standpoint, shouldn't we want American spouses to have, for spouses of Americans to have rights of entry into the United States?

That seems to be a policy question, more than an implicit in the concept of ordered liberty fundamental human rights question that really, I think, our unenumerated rights are addressing. But it's a fascinating question. And you're right, the case is a lot more interesting after reading it than after considering the, you know, a lot more fascinating on the back end than it was on the front end. Let's just put it that way. Yes. So much so that we didn't even talk about the oral argument at the front end. But who knew that there'd be four citations to Dobbs and 10 citations to Obergefell in this decision. Amazing.

So it just sort of keeps up this idea that I think there is a legitimate concern that Obergefell is on shaky ground. And while I think you and I don't share that concern, I think that originally I thought that concern was not in good faith, that it was being brought up by people who simply wanted to either fear monger, raise money or undermine the court. And now I think it's a good faith, but misplaced fear. Right, no, I think it's a good faith fear. And part of it is because I think people

who were supporting Roe and Obergefell had never really thought through the idea that Roe would actually fall. And then when it fell, there's a very good faith reason why someone would say, well idea that Roe would actually fall. And then when it fell, there's a very good faith reason why someone say, well, if Roe would fall, which is 50 years old, what about Obergefell, which is, you know, at the time seven years old? I did not think, and obviously Dobbs explicitly

did not call Obergefell into question, but I agree, this is hovering in the background. It is hanging over all of our heads. And with that, on Monday, you will finally get the interview that I did with Justice Breyer in lieu of our regular episode, because the Supreme Court is not coming back till Wednesday morning. So we will record Wednesday after we get those decisions. I will tell you David, that I have sort of thought to myself, we can't possibly get the Trump immunity case until we've gotten Rahimi because Rahimi started in November,

like it's so much longer of a case. Now that we have Rahimi, I think we can get Trump immunity any day now. The Supreme Court right now has said they're only issuing opinions on Wednesday and Thursday next week. They have quite a few to get through. We've got 12 opinions left for the term.

And remember the term usually ends before July 1st. And there's a lot of big ones left. So are they gonna be able to get them out on Wednesday and Thursday? Have they just not added Friday yet? Or is there some chance that we're heading into July this term, David? Maybe, and think about Thursday,

think about the news cycle Thursday. There's going to be major Supreme Court cases I try not to. In a presidential debate, oh my gosh. Think about Friday. Okay, so one last quick thing. I just want to, the last nine SCOTUS decisions released over the last two days,

I wanna list the dissenters. More VUS dissenters, Kavanaugh Thomas, Chiara Verini. I apologize for butchering that one. Thomas Alito Gorsuch, Diaz, Gorsuch, Sotomayor, Kagan, Texas versus, Gonzalez was nine zero, Texas versus New Mexico, Gorsuch, Thomas Alito Barrett, Munoz, this is the Sotomayor, Kagan, Jackson, that's the one that's the ideological lines,

Erlinger, Kavanaugh, Alito, Jackson, Smith v. Arizona, nine zero, Rahimi, eight1, Thomas. It's not an ideological monolith. It's not an ideological monolith. Just had to get that out there. Sorry. And for those keeping track at home, we've got Trump immunity, obviously, the January 6 obstruction case, grants passed, the homelessness case, net choice on social media. We've got Moody also on social media. Loperbright and relentless on Chevron's future. Jarkisy on administrative law judges,

Purdue Pharma on bankruptcy. That's not even naming them all. Ohio VEPA, we've still got Fisher. I'm not even naming them all. Ohio VEPA, we've still got Fisher. Yeah, so we've got a lot of big ones to go. Again, we hope you enjoy my conversation with Justice Breyer from last month, and we will talk to you all on Wednesday. You