Advisory Opinions - Solicitor General 9000

Episode Date: November 9, 2023

Two gun cases that aren’t gun cases take over today’s episode as Sarah and David analyze two cert grants from the Supreme Court. Sarah also breaks down new reporting on clerk hiring in the judicial world. Stay tuned for: -nerd prom -Campus culture around Israel and Palestine (PS Sarah’s DMs are open) -Sarah’s bump stocks hobby horse -The perfect case of why everything is wrong with the political system -State actors having strong feelings about gun control -Having conversations about word choice and tone -HasTheSupremeCourtFixedQualifiedImmunityDoctrineYet.com -Banning books never goes out of style -Rahimi oral argument not looking good -Solicitor General Elizabeth Prelogger as SGBot9000 Show Notes: -Matthew Wright's podcast interview Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And this is going to be one of my favorite podcasts of the year. We haven't actually taped it yet. I just feel it. I know it's coming. First off, David, yep, I played a lot of Floor is Lava last night in my basement with a three and a half year old. Yes. And I've lost my voice a little bit.

So I've got my Naught Dog mug here filled with some mint tea and, you know, my NPR voice. Yes. So Floor is Lava, is that self-explanatory as far as... I should hope so. But if the floor is lava where is the safe what is the safe zone well we had couch pillows we had um various like you know those little tubes that are made of cloth that like kids like play like that was yeah um also fair the babies play mat was an island there were lots of islands but every now and then you had to go,

the floor is lava. Well, that is a very good reason to have NPR voice this morning. I think so. All right. For topics today, we also have, by the way, Nerd Prom is around the corner here. The Federalist Society National Convention dinner is this week. So a lot of conservative lawyers have descended upon DC. But I need my voice back. You do. I talk to people. You do.

I am moderating the Harvard FedSoc Breakfast, alumni breakfast with judges Boumete and Van Dyke. I'm very, very excited about that because when they appeared together at their confirmation hearings, there were tears. So I'm really hoping that I can make some tears happen here. You want to make them cry? I want grown men to cry, literally. David, topics abound today, especially because we took a day off. So David, topics abound today, especially because we took a day off. Yes. Oh, this is going to be great.

So we've got two cert grants from the Supreme Court. We've got the Rahimi oral argument. We've got the Trump too small oral argument and a little new reporting that I can break here on the podcast related to clerk hiring and judicial world and the ongoing campus culture around Israel and Palestinian, you know, thoughts that students may have. Oh, interesting. Should we start with that? Or do you want to leave that for the end? Yeah, let's start with it. Because I don't know what the reporting is. So I'm curious. Well, as you know, there have been a few judges out there. Well, as you know, there have been a few judges out there. So Judge Roy Altman, who is a federal district judge in Florida, wrote an op ed for National Review. Now, let's be clear at the end, you know, it says, the views expressed in this article are the authors alone, they are not offered in his capacity as a judge, and they do not represent

the opinions of the federal judiciary. And yet everyone was like, this is clearly an interesting thing for a judge to write this op-ed. The headline was, the Israelis slaughtered by Hamas were not settlers. Subhead, under international law, they had just as much right to be where they were as an American does in New York City. In a more private statement, kind of, Judge Solomson of the U.S. Court of Federal Claims also put on a LinkedIn post, to me, it's a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to in writing Hamas should not be hired.

And David, here's a little bit of newsiness. It appears that Judge Rudofsky, friend of the pod down in Arkansas, is also circulating something to future clerks and future interns that he's already given offers to, but that haven't started working for him. And here's the email that they received. I am very much looking forward to having you in chambers in the near to medium future. However, recent global events have weighed on

me heavily and in my view, raise an issue that I have not in the past had to delve into with potential clerks and interns. If either you or an organization of which you are a current member has done anything that could be construed as one, celebrating or condoning the October 7th massacre perpetrated by Hamas in Israel. Two, engaging in anti-Semitism or Islamophobia. Three, advocating for the intentional targeting of civilians by Hamas or Israel. Four, ripping down pictures of the hostages taken by Hamas on October 7th. I need to know about it right away and we need to have a serious discussion about the specifics of your actions or the actions of the organization to which you belong. I want to be very clear. I don't care about you or your organization's policy views, expressed or otherwise, on things like the

viability of a two-state solution, the merits and demerits of a ceasefire or humanitarian pause in the current war, or the relative strengths of the Palestinians' claim to Israel versus the Jewish people's claim to Israel. There is wide room for disagreement on such questions. But the four actions I mentioned above are, in my view, a qualitatively different thing. And if you or an organization in which you remain a member engaged in those actions, it is hard for me to believe that I will conclude that you have the judgment, the compassion, the integrity, or the moral compass necessary to fulfill your contemplated role in my chambers. David, I wonder how many other judges are sending similar emails

or getting the word out, etc. Yeah, interesting. I would imagine that this is not the full universe of judges. And, you know, look, we've talked about this. And we've talked about this in the what is, we all know there's a line. What is, we all know there's a line. Absolutely. We know all know there's a line. And the question is, does that kind of conduct pass the line? And I like what judge, how judge Rudofsky phrased it. There are a lot of issues that are extremely contentious for which there's no problem one way or the other.

But there are some things for which there is, it is certainly a problem. And, you know, we compared this, if somebody walks in with a swastika tattooed on their face, what's the equivalent here? And I, you know, I tend to fall where Judge Yardofsky falls on this, quite honestly, Sarah. I, you know, if I had been writing the email myself

and we and I, you and I talked about this, it would have been focused on the judgment issue. But when I read it, I actually was struck that he included, you know, I will conclude that you don't have the judgment, but he also included the compassion, the integrity or the moral compass necessary to do the contemplated work. And there is something about that

that I found actually very meaningful as well. It's not just a judgment issue. Right. Right, of course. And the fact that so very many people around the globe have been celebrating Hamas, have been engaged in anti-Semitic activity, shouldn't make us normalize it. In other words, the fact that it is common, the fact that we have seen so many different incidents of it shouldn't make us mainstream it and somehow treat it in the way that you would treat mainstream commentary, even if you strongly, strongly disagree and in the other front. So I think that I like that distinction. strongly disagree and in the other front. So I think that I like that distinction.

We just cannot be mainstreaming the idea that anything about those October 7th attacks was acceptable. Just that's a swastika on the face as far as I'm concerned. Well, look, clerks, my DMs are open. If you have other little nuggets about your chambers or things your judge might be thinking on this or any other topic. Again, we actually don't want confidences of your judge, to be clear. But yeah, let us know. All right, David. Cert grants. Two big ones. Yes.

Let's start with bump stocks because this is like my hobby horse, right? Now, at the end of my hobby horse, this is really about forcing Congress to do its job, but there's a part of the Supreme Court's reputation and integrity that's wrapped up in this as well. So to back up everyone, when I was at the Department of Justice during the Trump administration,

the massacre in Las Vegas happened. Hundreds and hundreds of people shot, killed, hurt. And the man who killed himself, and we do not know why, we'll never know why, the FBI released a report about that over a year later, used a bump stock to do it. And we talked about what bump stocks are before. You know, there's a thing called bumping, meaning that you basically use the recoil of the gun itself so that a one trigger pull will result in multiple bullets coming out.

But if you don't want to spend the time to actually learn how to do that and have that sort of high level of technique, you can buy something called a bump stock. And it creates a similar physical movement of the gun. So that even though a machine gun where one trigger pull sprays bullets is illegal, it has the same effect. One trigger pull puts out many, many bullets without having to pull the trigger more than one time. So under the 1968 Machine Gun Act, it just says machine guns are banned. Basically, the ATF had long said that bump stocks were not banned under that 1968

Machine Gun Act. But after Las Vegas, there were multiple bills proposed in the House and the Senate to ban bump stocks. It would have been a hard vote, I think, for Republicans. You know, they could have gotten primaried from the right over, you know, being insufficiently Second Amendment-y. So President Trump steps in and says, we're going to ban bump stocks in the executive. So you, members of Congress, don't have to take hard votes. We don't have to actually compromise on anything.

We don't have to open up a larger debate on gun control, for instance. Well, immediately, of course, all of that legislation dies. The ATF changes course after whatever that was, 40 plus years of saying bump stocks aren't banned to saying bump stocks are now considered part of the ban in that 1968 Machine Gun Act

and punishable by up to 10 years in prison. Right. Starting tomorrow, more or less. I'm being facetious on that part. So there have been multiple lawsuits about this. The Fifth Circuit and the Sixth Circuit struck down the ATF's rulemaking, or not even rulemaking, actually, just reimagining. The D.C. Circuit upheld it. So perfect circuit split. The Supreme Court has taken the case, which David, you and I have said just over and over again, of course, they were always going

to have to take this. Yeah. But the headline when they say that it's not up to the ATF, that the ATF doesn't have the authority to do this is going to be Supreme Court strikes down gunstock ban. It's not going to be Congress failed to do its job. Right. Or voters didn't put enough political pressure on their congressmen to do their job. And so I find this whole case to be the perfect example of everything wrong with the political system and then how the courts get dragged into these fights and then blamed because of the way that the media covers the courts on the outcome rather than the process and how our system is supposed to work. Also worth noting, David, of course, that just to focus on the Fifth Circuit decision, because that's what we had spent most of our time on,

it was sort of the original one out of the gate. There was the ATF didn't have power to do this argument, but there was also the lenity argument, which is coming up more and more, it seems like at the court. Which is, yeah, of course, how can you actually interpret the statute in this way to suddenly imprison somebody when, as you were saying, for many, many years, it has not been interpreted that way? And how is that consistent with any concept of lenity? I think is a really good question, to be quite honest. But you're exactly right.

This is a case that it's about administrative processes. It is not about the worth of bump stocks. And it's going to be covered as if it's about bump stocks, as opposed to about the administrative processes. Except on this podcast, my God. Except on this podcast, because this is an administrative law case. That's what it is. It is not as much of a gun case. Rahimi is a gun case. Rahimi is the standards applicable to gun cases that we'll be discussing the oral argument.

This is an administrative law case. So speaking of things that aren't gun cases, but are being covered as gun cases, our next cert grant. Oh, yes. Which is NRA v. Vulo. I'll just tell you, listeners, the facts of this. So basically in the wake of the Parkland school shooting that killed 17 students and staff,

Maria Vulo, who is the superintendent of the New York State Department of Financial Services, or actually she just was at the time, had strong feelings about gun control issues. And so she wanted to speak out against gun violence. She did so through industry-directed guidance letters and a press statement issued by the New York State Governor's Office.

She called upon banks and insurance companies doing business in New York to consider the risks, including, quote, reputational risks that might arise from doing business with the NRA or similar gun promotion organizations. And she urged the banks and insurance companies to, quote, join other companies that had discontinued their association with the NRA. Multiple entities that she regulates then indeed did sever their ties and determined not to do business with the nra so the nra sues her um arguing that this was coercive state action that violated their first amendment rights it's actually it's not the other side of the coin but we have a few cases like this of where that line between coercion

to state action is a little bit in that blocking on Twitter case. That was a state action case, of course. But we have this Biden social media case that is making its way up to the court, not slowly, quickly, but surely. Yeah. And same idea, right? When the Biden administration was reaching out to social media companies and saying, take these tweets down or this is disinformation or misinformation, etc. Did that cross the line into turning the social media companies actions into state action? So that's three state action cases that we've got this term. I mean, we called it the tech term or maybe the gun term. Is it the state action term? I mean, we called it the tech term or maybe the gun term. Is it the state action term? Yeah, and I'm starting to wonder about that. And this is a case not to pat us on the back,

but to pat us on the back. We've been talking about this case for a while precisely because it's not about the NRA really. It's really about one of the most interesting issues and not sufficiently sort of outlined issues at the Supreme Court right now, which is this line between convincing a private party, the government convincing a private party to do or not do something,

versus coercing a private party. And this has been an issue with social media. Of course, this is going to be part of a, you know, this is going to be part of the Biden case in the social media case in the Supreme Court. So this is a social media issue. This is outside of social media. And I'm glad they took in R.A.V. Vulo because in some ways this was the leading case or had emerged sort of as the leading case. And we had identified it as the leading case for some time about whether or not coercion has actually occurred. And it outlined a set of a test, one word choice and tone, which is a, Sarah, that's an interesting judicial element there, word choice and tone. I've been having that conversation with my three and a half year old

about word choice and tone. It's not sinking in very well, I'll tell you. But word choice and tone, very subjective. Are you mean enough to be coercive? Number two, the existence of regulatory authority. Number three, whether the speech was perceived as a threat. And most importantly, whether the speech refers to adverse consequences. That has been the framework that's used in NRA v. Volo. And the way it was used in NRA v. Volo really does grant the state a wide degree of latitude. I think we've talked about this and have kind of thought too much latitude,

but I'm very glad to see them take this case specifically because it articulated this standard. It has been applied. The Fifth Circuit applied it into the social media context. So this is a good, this is a good cert grant. Very happy to see this. Interesting on this, by the way, because it is important to remember, I think you can, I can feel very caught up in like, obviously, this was coercive. And it was state action and all of these things. But at the same time, of course, state officials do have every right to

speak out in the wake of a shooting, especially elected ones, for instance, we would expect them to and express their views. So a member of Congress comes out and says, nobody should be doing business with the NRA. Did they just violate the First Amendment? No, of course not. And members of Congress, of course, have regulatory authority as well,

maybe not on their own. And so it does get really complicated when you're telling public officials that they can't say stuff. Now, these were guidance letters and the threat issue that you raised, David. I mean, that's what makes this case interesting. Worth noting, by the way, this case was relisted four times before they actually granted cert on it. The Second Circuit, of course, held that it was not a state action, not a First Amendment problem. But the Second Circuit also held that even if they had, even if Vulo had violated the First Amendment, that it was not

clearly established at the time that she did it, and therefore she was entitled to qualified immunity. So in the cert petition to the court, there were actually two questions presented. Does the First Amendment allow government regulator to threaten regulatory, regulated entities with adverse regulatory actions if they do business with a controversial speaker as a consequence of a the government's own hostility to the speaker's viewpoint or be a perceived general backlash against the speaker's advocacy, sort of that heckler's veto a little bit built into that one. And B, does such coercion violate a clearly established First Amendment right? So the court relists this four times. And I don't think anyone will be surprised who has listened to this podcast when I tell you that the court did not grant cert on

both questions. And David, do you want to just check the website one more time? Well, I'm looking at SCOTUS blog right now. No, sorry. I mean, has the Supreme Court fixed qualifiedimmunitydoctor.com? No. No, they haven't. They declined to take the qualified immunity question presented. They are only looking at that First Amendment one,

which, David, means this case actually won't get resolved because even if they say, yes, it violated the First Amendment, the Second Circuit already said she's entitled to qualified immunity. So I don't even understand. Huh? I know. That's interesting, Sarah. It feels maybe a little bit like an advisory opinion. Well, there's no remedy. Yeah. Like or rather, the remedy has already been decided, as in you don't get a remedy. Yeah. Like or rather the remedy has already been decided as in you don't get a remedy.

It's very strange to me. I'm I'm happy in the sense that one of our beasts with qualified immunity doctrine, David, you know, there's two steps. One, did you violate the constitutional right? And two, was it clearly established at the time? And too often courts skip to number two and say, you never know. Let's even assume that it was violated. You know, it wasn't clearly established and that it's never clearly established because you never have ever said whether it was violated. So at least the court is going to say what it is and clearly establish it one way or the other now. So I don't want to like poo poo it too much, but it does. It does seem odd that the outcome of the case doesn't won't change, actually, regardless of what the Supreme Court does here, it seems to me. Well, and just to let everyone know that on this podcast, we dot our I's and cross our T's. I did go to has the Supreme Court fixed qualifiedimmunity.com

just to make sure. Thank goodness. And the answer is still no. Interestingly, David, the case that this is all sort of turning on is a 1963 case called Bantam Books v. Sullivan. We'll spend more time on this as we get closer to oral argument. But this in 1963, basically, Rhode Island created a commission, quote, to educate the public concerning any book or other thing containing obscene and decent or impure language or manifestly tending to the corruption of the youth as defined in other sections and to investigate and recommend the prosecution of all violations in said sections. Now, they themselves couldn't prosecute anything. They couldn't regulate anything really, but the commission could recommend to the prosecutors, to the district attorneys, what, you know, that they found such thing objectionable. And in short, the court found that the effect of the commission's notices was to

intimidate distributors and retailers, that they had resulted in the suppression of the sale of the books listed, and that they were granted that injunctive and declaratory relief that that commission and its practices were unconstitutional. So, and this is more removed than the actual regulator, right? This commission wasn't regulating itself. So we'll be spending a lot of time on Bantam Books v. Sullivan.

Fun. Yes. And also, by the way, isn't it interesting how there's never, or rarely is there a new issue under the sun because Bantam Books v. Sullivan trying to ban them books. It's we've honestly, when I was going back and first learning First Amendment case law, I remember looking back at some of these book banning cases and thinking, wow, people really got worked up back then, didn't they? And David, I don't know if you followed this school district out and I believe it was Washington that's trying to ban To Kill a Mockingbird from curriculum. And look, I actually don't like the

word ban when it comes to libraries. Libraries cannot carry all the books that have ever been printed. So by definition, libraries have to choose which books to carry and which books not to carry. And just because they don't choose to carry your book doesn't make it a ban, yada, yada, yada. But look, bottom line,

I now feel like I'm being asked to choose between two political parties, not which one is for or against banning books, but simply which books I'm now in favor of banning. And I'm having to choose between, you know, Tango makes three on one side and To Kill a Mockingbird on the other side.

Like those are not good electoral choices. Right, right, exactly. Well, and that's one of the things that we've seen is we've talked about this before, this horseshoe theory concept that as the two sides grow more extreme, they just start to mimic each other.

They'll seek to remove different books, but they're seeking to remove books. Gavin Newsom and Ron DeSantis are the same person in many ways. They just seek to ban different things. Well, it's this idea that if the other side's going to abuse their power, we need to also use our power.

Like if they're going to use their power to shut us down, we're going to use our power to shut them down. Right. And that's horseshoe theory in a nutshell. Yeah. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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All right, let's go to Rahimi, the long-awaited Rahimi case. Okay, David, we have talked about this case several times. This is, in many ways, the quintessential bad man stays in jail case. Yeah. To go briefly through some of the history here. I mean, I think in one of the somewhat not funny, ha ha, but kind of,

you know, the Whataburger drive through won't take his credit card. So he gets his gun out and shoots it into the air in anger about not getting his water burger and i love water burger as much as anyone david and i would feel outraged if i also was not able to get my water burger but it gives you some idea of the care with which rahimi brandishes his weapon um in the incident really in question here he threatens his girlfriend also the mother of their child with a gun says that if she tells anyone that he threatened her with the gun he'll

kill her he agrees to the protective order the domestic violence protective order which says that he cannot have a gun when the police by way, go to his house to investigate this whole like Whataburger anger incident, they find the guns, obviously, they also find the protective order. So there's not really a question that he wasn't aware of it, for instance. Right. He challenges it on Second Amendment grounds at the time, loses, pleads out at that point. But post Bruin, this then gets reinvigorated. And so he has now made it all the way to the Supreme Court. We've talked extensively about the Fifth Circuit opinion on this, the text history and tradition Bruin-ness sitting over all this. But now we finally have the oral argument. It was, well, David, what were your thoughts?

Well, at this point, going to the bottom line, I'm not certain that Rahimi is going to get even one vote. So just to cut to the chase on the outcome of this case, I'm not sure that Rahimi is going to get one vote. Number two, I thought Solicitor General Prelogger really dominated the oral argument in this sense, and that she outlined a way of approaching text history and tradition. She didn't swing for the fences. She wasn't like, okay, court, text history and tradition is already a chaotic mess. Can you please overrule this? What she essentially did

is say, okay, the really operative language, she must've been listening to this podcast, Sarah, is and should be responsible law abiding citizen, responsible law abiding citizen. And her oral argument really spent, most of the time was spent on this, what is a responsible law abiding citizen? That was language used in Heller, in McDonald, in Bruin. And we've talked about it as sort of a way of cutting through a lot of the noise on text history and tradition, instead of saying text history and tradition, decide responsible or law abiding. And so the way I thought Solicitor General Prelogar did it that was, I thought really pretty smart was to say, look, we're filtering all of

this through the responsible law abiding frame. And the justices seemed to really buy into it. And she had very good answers for what it meant to be responsible. It's not just, you know, as was it Justice Roberts saying, well, what if I go, you know, 40 in a 35 mile an hour? Does that mean I'm not law abiding anymore? What if I don't put out my recycling? Does that mean I'm not responsible anymore? And her answer was, no, responsibility really turns on responsibility with a weapon.

Are you somebody who'd be dangerous with a weapon? So I thought that she did an excellent job putting this into her frame and sticking with it. On the other side, the argument was just all over the place. It was just all over the place. And part of it is, you know, look, when you're dealt a bad hand on the case

and it's pretty obvious to you early on that this Fifth Circuit opinion is not holding much weight with the justices, you're behind the eight ball. And he was behind the eight ball from the beginning, but I never got the same sense from him that I got from General Prelogger of here's my frame. Here's how we decide this. Here is how I'm answering your strongest objections. It just seemed all over the place. So I think from now on, we have to refer to Solicitor General Elizabeth Prelogger as SG Bot 9000. Like if you built a robot for the purpose of making oral arguments that was flawless, it would be Elizabeth Prelogger. It was like too good. She speaks in sentences that look like they were written and memorized, except they couldn't have been. It was it was stunning to me. And the thing that I thought she did so effectively,

and this is just a point about oral argument, not about this case really, is David, you and I have talked about this case so many times. And you're right. We circled around the exact same issues that she ends up in. But she was able to so logically and clearly explain the nut of the case. It made it sound so easy.

How had we not already done that? And it is, she makes it sound so easy that I felt bad about myself. But it's actually because she is SGBOT9000 and she's exceptionally good at this. And she has a wonderful team around her. She boots this a million times. All of that's true.

But I do think she might have been built in a lab for this job. So I want to draw out her buckets even though I'm jealous that she did it and not me. So you're exactly right, David. It was that law-abiding, responsible citizen because Scalia said, of course, you can restrict gun ownership to law abiding responsible citizens. And she says,

all three of those are different buckets. Now, she didn't use the term buckets, much to my disappointment, but I'm going to. So law abiding, she says, isn't an issue here, because Rahimi was not charged. But she says, look, we would define that as basically a felony, a serious felony. You are no longer law abiding. So a misdemeanor jaywalking, for instance, ain't going to count. Right. And that bucket's gone at that point. And so when the chief then asked his question about going 40 and a 35, she's like, no, that

first of all, it wouldn't offend the law abiding thing. But also, it's not what we're doing in this case. Yeah. It wouldn't offend the law by anything, but also it's not what we're doing in this case. Yeah. Second is that citizen bucket, because the Solicitor General's office had abandoned some of those historical analog arguments around, for instance, Native Americans who were banned from owning weapons or slaves. And she said they were not considered part of the people encompassed by the Second Amendment. So it wasn't that their rights were being taken from them.

It was that they never had the rights in the first place. Right. So also not an issue here. And so those historical analogs went out the window as well. And so citizens as a bucket, not an issue. OK, so then she focuses on responsible. The word responsible in the SG's argument is synonymous with dangerousness. Yeah. And I thought it was really effective because it crushed all sorts of the other arguments on the other side that we'll get to those not really being presented. But for instance, there's that due process argument

that Judge Ho makes in his concurrence which david i told you i found actually pretty persuasive at various points but this is where the dangerousness argument for law for responsible became really effective because responsible doesn't mean law abiding obviously it means something else and as the chief justice pointed out, yeah, but like lots of things can be irresponsible, not recycling. Right. He's like, no, no, it's in the context of the guns. It was about dangerousness. So, for instance, we, of course, believe that we can restrict minors from owning guns or people with mental health or mental disabilities, for instance, from owning guns because they would be dangerous, not because they are culpable, not because they intend to be dangerous, but because of characteristics of them

that make them dangerous. Well, if your problem is that this was a civil order and not a criminal order and all of that, what was so good is those two then become de-conflated, if you will. Yeah. You don't get like a criminal order about you're under the age of 18 or a criminal order, even that you're mentally disabled, for instance. But we bar those people from owning guns and we don't think it violates their Second Amendment rights. Yeah.

And so you could not ask the Solicitor General a question that the answer was not had the words responsible in it. Yep. in it, and history and tradition. I counted, I believe, 28 times that she used that term. But David, I do have a disagreement with you. You think it's going to be 9-0 and I think it's going to be 8-1. You think Thomas? Nope. Alito?

Nope. Gorsuch? Nope. Okay. Kavanaugh? Nope. Barrett? No. Okay. I'm stumped now. I think Justice Jackson's going to dissent. Really? Yeah. Okay. Explain that. Explain that. I'm so excited for my big reveal here. So Justice Jackson is repeatedly asking both the Solicitor General and Rahimi's public defender why, for instance, domestic violence, you know, obviously wasn't considered dangerous at the time of the founding. And if you're looking through text history and tradition, how that history and tradition can come out any other way. And she's talking about how that citizen's part, the very people who were deciding what dangerousness was or what laws were around there weren't even the people that we're talking about today.

She was collaterally attacking the entire concept behind originalism and specifically behind history and tradition. So her point being, Bruin itself, obviously she thinks is flawed. She dissented from it. But if that's the court standard, then yes, 922G8 here is unconstitutional. And to try to like have it both ways, you know, have this history and tradition test, and then not accept the negative outcomes, she was basically arguing, it should illuminate the flaws in the test. And so if you want to be principled, you have to

accept the flaws, we don't then work around them. And I think she's going to have a dissent, which we've seen from some, you remember, district judges, David, where they like liberal, very liberal district judges saying, look, if this is the test, then basically all gun laws are unconstitutional. How do you like them apples? I think there's a really decent chance you're going to get that dissent from Jackson. Now, of course, if she were the fifth vote, do I think she would decide that way? No, but I think it's going to be a one. Now, she was not on Bruin. Oh, you're right.

Sorry. Sorry. That was Briar was. But I I interpreted her as essentially trolling the heck out of text history and tradition. She was. Oh, my gosh. Just like this is that she did what. Like, this is that she did what I was worried that Solicitor General Prelogar would do, although I shouldn't have been worried.

I was worried that there would be a frontal attack on text history and tradition when I don't think the court's going to back away from that explicitly. I think it will do it in the way that Prelogar urged, which is essentially to say, well, you know what textistry and tradition teaches us all sort of all taken together? Dangerous people don't get guns. That seems to be, she cuts through all of this. Well, here, look, I'm going to draw a direct line between this 2023 regulation of a gun that did not exist in 1874, but I'm going to draw an analogy to a different kind of weapon that existed in 1874. That was not like this, really, truly, but maybe kind of sort of was, that's the kind of the worst kind of text history and tradition analysis that

we've seen. And she just sort of says, look, the way to interpret all of this is through responsible law abiding language, which I thought was great. I want to read some of what Justice Jackson asked of Solicitor General Prelogar, because I think it is illuminating. Just to clarify in response to what you said to Justice Barrett, the determination of dangerousness would be evaluated based on what modern legislators think counts as dangerous. We're not bound to what qualified as dangerous back in the day. Prelogar, that's correct. We think that once the court recognizes the principle that history and

tradition support this durable principle that you can disarm dangerous people, then the question becomes for any follow on challenge, whether the legislature with respect to a particular category has appropriately deemed these individuals dangerous and therefore fitting within that historical tradition. I want to point out again that she didn't write this down. That's actually the transcript of what she said. It's amazing. She continues, and I think the inquiry there would not be confined to how the founders thought about dangerousness. Instead, it would turn on some of the factors that I was discussing earlier with Justice Barrett about the breadth of the law, the evidence that supports the legislative judgment, and the consensus. Justice Jackson, the kind of things we used to look at

with the tears of scrutiny. What's the justification for this? Is that what you're saying? So they go on to have this, this back and forth. Justice Jackson. So let me just ask you about your first methodology, methodological error that you identified in response to Justice Hagan. You said that the courts are focusing too much on just regulation, legislation and not on other indicia of what the historical tradition is. But then when you were talking with Justice Thomas at the beginning, you seem to suggest that the tradition with respect to slaves and Native Americans would not be subject to consideration for this. In other words, only the regulation as it relates to certain segments of society, I guess, count underneath the history tradition test. Yep. I mean, that's why I think you're going to get a dissent there. Interesting. Interesting. See, I interpreted all of that as essentially saying a concurrence, a concurrence, but urging the elimination of the text history and tradition test, like just a frontal attack where Justices Thomas and Alito are coming out. I do feel very confident, I think, about the others.

Of course, you're going to have concurrences with different emphases. But for instance, Justice Gorsuch, I thought actually was pretty clear. So here's one of his questions. So Justice Gorsuch is asking about the historical twin versus analog and how that analyzing works. He gets Justice Prelogger to agree, for instance, that you don't need the gun itself in a different case, for instance, to be a historical twin on weaponry. So he seems satisfied with sort of what analog means versus historical twin. But here's the part where I was like, aha, I think you've got your vote. Just solicitor general prelogger or SG bot 9000.

He's talking about the facial challenge and basically says, do we need to even get to these other parts that maybe he might find harder. The dangerousness argument solves some of, I think, his due process concern about adjudication under credible threat, for instance. Once she had answered that, I was like, okay, I think we're good. By the way, one other fun moment here, General Prelogger in answering some of that says, we ourselves have a pending petition where the Fifth Circuit has invalidated an application of the statute in this credible threat context. So unless you want to see me here again next term on this issue, I would say, Justice Korsuch interrupts, always delighted to see you, General. But yeah, so I do think it's 8-1. Interesting. Interesting. Okay. Can we talk a little bit about the federal public defender who argued on behalf of Rahimi?

Yes. Yes, absolutely. Because, and Linda Greenhouse, for instance, wrote this up, I think in the New York Times, And Linda Greenhouse, for instance, wrote this up, I think, in The New York Times, that so many people are focused on the who's on the side of the domestic abusers. Like nobody filed amicus briefs who was an elected official, for instance, unlike the Bruin case. Yeah, just he's not a very popular guy, even with the Second Amendment crowd. This is not the case you wanted to go to the Supreme Court, again, because of that bad man stays in jail doctrine. And so Linda Greenhouse, for instance, even highlights that Judge Ho due process argument in his concurrence, where he's noting that these can be issued pro forma almost. They can be issued against both parties as sort of, look, just everyone calm down, just everyone gets a protective order,

which means both people would have their constitutional rights suspended, at least temporarily. He says they can be used vindictively in divorce proceedings, etc. And all without the normal indicia of due process. You don't have a right to counsel, even if you do have a right to appear. Your appellate rights are, you know, zero or limited. It varies very much state by state over whether these could be permanent orders, whether they're time limited, how time limited they are. And even on sort of what the underlying basis for it is. Again, is it that credible threat basis? Is it dangerousness, past action, or is it future concern? And all of those, I thought,

were very strong due process arguments that Judge Ho was making. It would be very difficult for me to describe to you what Rahimi's lawyer's argument actually was, I'm afraid to say. was I'm afraid to say. So he was the public defender on this case. Normally, of course, these oral arguments, you have an opening statement where you're uninterrupted. I believe it's three minutes before the judges, the justices start asking you questions.

That's where you sort of lay out your argument as concisely your elevator pitch to the justices. We didn't even have that. Yeah. And that's in part why I think I'm very confused on where his argument actually was. If I were to try to guess, and I'll even say, David, it felt like the justices kind of gave up asking him questions as well, because they were confused about his argument, but they really couldn't pin him down on some of these. They would ask him questions. He would say yes, then they'd push him on it. Then he'd say no. I think his argument was that courts, for instance, could issue an order to bar you from

having a gun, but that legislatures couldn't ban you from having a gun with sort of a mandatory jail, a long jail sentence as the punishment. I will say that if that was his argument. Yeah. That it was impressive to me in one specific way. That it actually was focused on his client and not on sort of the philosophical debates over the Second Amendment. But like, what could actually get Rahimi out of jail? Right.

I'm not, of course you can take guns from domestic abusers. Courts can do that anytime they want. It's part of their equitable powers. It's just that 922G8, the thing my client was actually convicted of, is unconstitutional because there's no historical analog to a ban on guns.

You know, back in the day, courts could take your gun. These were, you know, the surety laws, et cetera, he was acknowledging. But legislatures never issued a ban on a type of person owning a gun. And therefore, 922 G8 is unconstitutional, but courts can still disarm domestic abusers. I think that was the argument, David. I think that's a fair summary. I think that's a fair summary. At one point, for instance, Justice Barrett says, I'm so confused because I thought your argument was that there was no history or tradition, as Justice Kagan just said, of this kind of disarmament in this circumstance. But now it kind of sounds like your objection is just to the process.

kind of disarmament in this circumstance. But now it kind of sounds like your objection is just to the process. Like, are you making Judge Ho's argument only? The lawyer, no, your honor, I'm not making Judge Ho's argument only. The law that's before us right now is a ban. It's a ban that's passed by a legislature. And it is, you know, you can't get around it. You can't even ask the state court to say, you know, I'll accept a protection order, a stay away order, just give me permission to keep firearms for my own self-defense. That will not prevent this ban from kicking in. And it has severe penalties that result from it. And it applies everywhere, even in the home. I think all of those things together make the statute unconstitutional. I understand the question to be, what about something else?

Would that be constitutional? I think so. But we would need to know we need to do a full workup on the history and tradition that supported that. You know, that's something that I don't think this court can answer in this case, because there's no such law before the court. Chief Justice Roberts, but this is a facial challenge. Lawyer, right? Chief Justice, and I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him lawyer yes roberts and why isn't that the end of this case all you need to do is show that there are circumstances in which the statute can be constitutionally applied lawyer because this

statute it doesn't take anyone's firearm from them. That's one way in which it would be different because there is a historical tradition of separating people from their firearms when there's an eminent threat of lawful violence on the way to do it. And again, I think it's consistent with the court's traditional equitable powers that if nothing short of surrender would protect life and limb, the court's going to be able to order surrender in the same way that if the police see someone that has you know suicidal thoughts justice barrett then says but the court's equitable power still has to be constitutional right then he kind of answers that his back and forth with kavanaugh and remember

kavanaugh isn't just another justice on the court. He is your fifth vote. Yeah. So he doesn't talk through actually a lot of this argument, which is worth noting. But he asked a question in the Siri Autumn questions at the very end of the public defender's argument. He says on page 21 of the government's reply brief, the government notes that background check system that Congress has created to prevent the sale of firearms to prohibited persons, it's resulted in more than 75,000 denials. The government says based on these protective orders in at least the last 25 years, according to the government, under your argument, that system could no longer stop persons subject to those domestic violence protective orders from buying firearms.

Just want to get your response to that. I mean, that is Justice Kavanaugh saying, I'm deeply concerned about this thing. Are you at least going to say that, like, if we rule for you, these, you know, denials of getting guns in the first place based on these state protective orders, like, how is that going to work? Lawyer, I think that's wrong for a couple reasons, Justice Kavanaugh. First of all, the same system incorporates state prohibitions against firearms. And so if there is a lawful provision imposed by state law or by a judge in a court, it could be incorporated into the background check system. Second, I would have to concede that there is a historical tradition of limiting who citizens, people within the community could

provide weapons to outside of the community, if you will. And so it could be that historical tradition would support a restriction on commercial sale of arms. He goes on for a little bit. Justice Kavanaugh. So it's possible the government's correct? Mr. Wright. It's possible? No, I don't think. Justice Kavanaugh, isn't that what you just said? Lawyer. No, I don't think it's possible. It is possible that it would be unconstitutional to deny people the right to purchase a firearm for a licensed dealer. Yes, I think that is possible. But I suspect that both existing law and constitutional law would allow many of those same people to be denied if we worked our way through the relevant provisions that are keeping them from doing it. And Justice Kavanaugh just says, OK, thank you.

Yeah. So I thought we could have a brief aside, David, about federal public defenders because I actually was looking, he did this very long interview. His name is Matthew Wright. He is in the Amarillo office of the Federal Public Defender's Office. And I don't think a lot of people know

a lot about federal public defenders. So, and I'm just going to now quote from this other podcast that he did, but because it's a great interview. Yeah, we'll put the transcript in the show notes. So he's talking about what this is. So he says, we are part of the judicial branch. We're not part of the executive. We do not have the hierarchy that the Department of Justice does. Each of the U.S. attorneys is appointed by the president, confirmed by the Senate, but ultimately answers the attorney general. Whereas the federal public defender office, confirmed by the Senate, but ultimately answers the attorney general.

Whereas the Federal Public Defender Office, we can't even agree on when it's time for a coffee break. My boss is Jason Hawkins. He's appointed by the Fifth Circuit. He answers to them. And there's a branch of the Administrative Office of the U.S. Courts that oversees everything. But we are an independent organization for our district. We're federal employees, but the structure is the same in that my office is specific to this federal district. So just fun fact, they are actually

part of the judiciary branch. They are not part of the executive, but it kind of gets a little muddled there in the middle. Not every district has a federal public defender office, David. Some of them use the Criminal Justice Act panels, CGA panels, where you sign up as a private practice lawyer to get appointed in some of these cases. Now, of course, in some places, people are clamoring to do this. And I'm thinking major cities with big law, a lot of poor, sad associates who will do anything for a more interesting case that isn't doc review. But in other places, the judges basically call up, you know, the local tax attorney and say, your number's up, dude, time for you to come to the courthouse and represent this dude. Anyway, that's all to say for you lawyers listening out there, go find your CGA panels

and sign up because it's great opportunity to get into court, to have interesting cases. And it's actually your duty as a lawyer, I would argue, because our system and especially our criminal justice system requires that adversarial process. So if you think you're a good lawyer, go be a good lawyer for someone who needs one. And that that phone call from a judge is a real thing. Oh, absolutely. When I was practicing in, when I was at ADF and I had a little storefront office in Columbia, Tennessee, where a small group of ADF lawyers and I were practicing cases all around the country. And every now and then the phone would ring from the courthouse across the street and

it would be the judge's clerk saying, is anyone available to take a breaking and entering? Is anyone available to take a DUI? And I think a couple of our younger attorneys took advantage of that opportunity and it was really good for them to get in there and do that. But yeah, that phone call is absolutely a real thing. It can also happen at the Supreme Court, by the way. Occasionally,, one of the parties

will have said that they no longer want to defend that statute, you know, maybe there's a change in administration at the state level or whatever else. So the Supreme Court will appoint someone to defend the circuit court's opinion, it usually goes to a former Supreme Court clerk, usually a recent former Supreme Court clerk. But another great opportunity to get your first time, you know, arguing before nine justices. Yeah, you're 28, 30 years old. Now, usually you're going to lose that because usually there weren't a lot of people clamoring to represent rahimi the water burger you know rifle shooting domestic abusing dude at the same time i think

that this was the federal public defender's first supreme court argument he had sat second chair and two others he's argued before the en banc Circuit. I have heard from people that he worked incredibly hard to present this argument. Unfortunately, both, I think it was a very hard argument to make. I don't think he ever really focused in on what his argument was. This might have been a time where, I do know there were at least a few Supreme Court advocates who were willing to argue this case probably should have handed it off. It was, man, what a tough case to launch your Supreme Court career. What a tough case. But like, why wasn't there an opening statement, David? I know it's a hard case, but you got to make an opening statement. And instead,

he treated that as his rebuttal time against the solicitor general. You do that in your questions. You can even do that at the end, but it can't be your opening statement. Yes. No, I was starting with what a, what a hard case, comma, but dot, dot, dot. Yeah. So the but is exactly what you said, that I don't think he really did himself any favors in the argument. And yes, he had it tough. Absolutely. You particularly have it tough, by the way,

when your best argument is off the table. And his best argument was always going to be the due process argument. That's the best argument around this domestic violence restraining order prohibition. And Alito was getting at that. And I thought General Prelogger had a really effective response. She said, look, if you're saying this is a rubber stamp in this county, only about half of the requests get granted.

So right there, it doesn't look like a rubber stamp anymore, which is a very, very, very effective response. But we do know there are due process issues in domestic violence restraining orders. We have seen it happen around the country. And that in many ways was going to be the best argument. But this was an agreed protective order. So, you know, your best argument is really not on the table in an effective fashion. That actually moves us into the Trump too small case in an interesting way, because you've, it was a facial challenge with a Heartland case. You know, this was, this was the guy, this was the wrong person to bring the facial challenge, because you've got to basically show that in almost every application, the law is unconstitutional. And unfortunately, for all the reasons you point out, David, on sort of the more gun-ish facts, the history and tradition facts. It was a pretty, you know, hard case. And also even on that due process,

because in this case, it did appear that he had due process. Now he didn't have counsel when he agreed to that protective order. That is something that I was like, well, he didn't have a right to counsel. But... Can I make a prediction?

Yeah. So I have a prediction on gun rights law in general after this. So my prediction is at the end of the day, the two most relevant phrases are going to be responsible law abiding. That's going to be for regulations aimed at individuals. Is it keeping a is it keeping a gun out of the hands of a responsible law-abiding citizen? Or if you're not responsible and law-abiding, you're not going to have a right to have a gun. And then the other phrase is going to be common use or ordinary use for a lawful purpose. So when you're talking about regulating the gun itself, is the gun itself in ordinary use for a lawful purpose.

And the whole text history and tradition thing is going to be summed up like this, Sarah. Text history and tradition says that responsible and law-abiding citizens get to use guns. And text history and tradition says they get to use the guns that are in ordinary purpose, ordinary use for lawful purpose. That's where I feel like this is going to ultimately end up because it's kind of unworkable any other way. That's my prediction. Did you buy into what Justice Jackson was getting to that, like the sort of inherent problem with saying, you know, okay, if we're looking at dangerousness, like let's assume the animating principle of the Second Amendment ability to have restrictions

was on the responsible, so the dangerousness question. Do we look at what they thought was dangerous also? Is that also part of the historical or what the Solicitor General was arguing is once we've determined the principle of dangerousness as part of the history and tradition, then we get to use our modern sensibilities to decide what actually is dangerous now,

even if the thing that we're talking about also existed at the time of the founding. This isn't a technological problem. I think we're going to actually ultimately end up where Prelogger is. That's my prediction. I don't know if it will be as blatant as that, but I think that's my ultimate prediction.

In part because of the reasons why, so Justice Jackson was pointing out, wait, if we're going to use a dangerousness analysis and we're using text history and tradition. Well, part of the dangerousness analysis that was used was that entire categories of people were just deemed to be dangerous, you know, on the basis of their race or whatever. of their race or whatever. And so what Prelogger was saying was, no, no, no, no, no, that's not the way to look at it. The way to look at it is they were just not considered in the category of people. Right, right. It's totally different. And so, but that highlights some of the problems with text history and tradition, because we're going to say on the one hand, that they were so deficient in their analysis of the Constitution that they couldn't even grasp

that this was a right that applied to all the people. But on the other hand, when they're not being outright bigoted, they are constitutional scholars in other contexts. And we can analyze that. And I thought Justice Jackson, when I said she was virtually trolling text, history and tradition, that's that's how I, I saw it. I mean, there is a bit of a problem if you're going to say that, no, it was just that you could disarm dangerous people, again, without regard to their culpability on like, for instance, on the law abiding side, which is absolutely a culpability question, but just dangerousness because of their inherent characteristics. Like, they're six years old, or they think that, you know,

everyone else is an alien, that shouldn't we also look to what they thought was dangerous? And they did not clearly think domestic violence was dangerous. Now, Freelogger did say, no, like they did, I wouldn't assume that, you know, she did have some pushback to just the underlying thing there. But at the end of the day, she was like, but also it doesn't matter what they thought was dangerous. There is something to that, right? Like a staph infection,

they wouldn't have even known what it was and they would have thought it was wildly dangerous. And today we're like, we can actually set MRSA aside. But like most of the time, like we have antibiotics. So like not as dangerous now. And then domestic violence is the reverse. They did not understand

how dangerous domestic violence was. They didn't have statistics. They weren domestic violence is the reverse. They did not understand how dangerous domestic violence was. They didn't have statistics. They weren't able to keep track of the likelihood. I believe a woman is five times more likely to be killed in a domestic violence situation if there's a gun. Frankly, I'm surprised it's not higher. They're like, now we know how dangerous domestic violence is. So we look at current dangerousness, but we use the principle of dangerousness that we got from history and tradition. It's a little messy, but I think it's there. Okay, last question on this, David.

I have a theory that oral arguments don't usually change the outcome much, but they can in terms of how broad the opinion is or what's included and what's not included. You know, you may not change the vote count, but you can change sort of the internal workings of the opinion. I think that there might actually be an argument that because the Rahimi side wasn't a particularly coherent philosophical position, that it will actually have the effect of helping the Second Amendment side of the argument, because the justices are more likely to narrow their decision because

they did not have, in a sense, the full briefing and full oral argument on some of these other questions. Interesting. That's a very interesting question. I would think that they would tend to just sort of circle back to the Fifth Circuit opinion as sort of really the presentation of the other side. But you might be right about that, that there is kind of a narrowing that would happen because you don't want to use this case to say too much if this case is kind of an outlier in any sort of aspect. So that is possible. And if you don't feel like the other side was able to do the type of historical research, that frankly, the Solicitor General's office

had endless resources to do their historical research. Yeah, yeah. No, it's very interesting, but I'm so, I'm gonna, I have zero doubt. Well, zero is perhaps strong, but as close to zero as you can get on the ultimate outcome of this case, I don't have any meaningful doubt

that this case, the way this is coming out. But I'm gonna be very interested to see how they deal with responsible law abiding. And that is, because again, remember, from the beginning, we were like, that language responsible in law abiding seems to have been given short shrift by the Fifth Circuit. And it got all the shrift in this oral argument.

You know what? Let's save Trump too small for the next episode. There's actually some good little nuggets to dive into there, including the Christian Legal Society case, David, that you obviously have feelings about. It got into lots of little fun stuff. So we'll save it. We'll pocket that one. And I don't know. Fun episode, David. Good times.

Yeah, absolutely. No, this was a good one. Good pod, Sarah. Good pod. Oh, yeah. Great. And my gnaw dog mug has been really effective. I've only had to take one coughing break

that Adam has gloriously cut out for all of you listeners. So you know, you can thank him with muffin baskets at your will. And with that, thanks for joining another episode of Advisory Opinions. We'll talk to you soon. Thank you.