Advisory Opinions - Supreme Court Strikes Down New York Gun Law

Episode Date: June 24, 2022

The Supreme Court struck down a New York law that placed strict limits on carrying a gun outside the home, ruling that Americans have a broad right to carry a handgun in public for self-defense. David and Sarah are together in DC, at The Fund for American Studies, to break it all down. Plus, we have a Supreme Court decision dealing with Miranda violations, and questions from law students from around the country.   Show Notes: -Vega v. Tekoh -New York State Rifle & Pistol Assn., Inc. v. Bruen Learn more about your ad choices. Visit megaphone.fm/adchoices

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To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to a live Advisory Opinions podcast. For those who are listening, we are at the Fund for American Studies in the heart of this, would you call this Embassy Row? No, this is not Embassy Row.

We are two doors from the Embassy of Eritrea. Eritrea, that's true. And Rwanda. That is also true. Okay. But it is not Embassy Row nevertheless. Okay. Well, it looked like it to me.

We are right off DuPont Circle. Okay. That's a famous thing. It's in the American President. Remember, she We are right off DuPont Circle. Okay. That's a famous thing. It's in The American President. Remember, she goes around and around DuPont Circle and says he should declare it a national disaster zone. That's like they're flirting. That's a good pull right there.

I haven't thought about The American President in a long time. I have the entire movie memorized. All of it. What did you like better of 90s era presidential movies? The American President or Dave? Oh, The American President is so clearly the answer to that. Really? And that bending in that dress and the dancing, for sure.

Well, nobody came to listen to that. Wrong. So we are here at a live podcast, and we've got a really fascinating Supreme Court day to talk about. So there's four cases decided. Berger v. North Carolina State Conference and the NAACP. We're not talking about that. But we will.

We will. It's an important case. It's interesting. Yes. It's just not today. Not today. Nance v. Ward, which is a Supreme Court death penalty case. Also, we will talk about it.

Not today. Not today. Vega v. Tico. I've been saying Teco. Definitely talking about it today. Talking about it today. It's Miranda Wright's interesting case. You have to say the word prophylactic over and over again. Yes. Yeah. We're actually going to start with Vega versus Tico. Oh, we are? Okay. Yeah. Yeah. And then we're, because you got to, you know, in true broadcasting fashion, you can't front load your best stuff. New York State Rifle and Pistol Association versus Bruin.

It's a little bitty case no one cares about. Huge case that has melted Twitter today. I have stayed off Twitter today. A very smart move. Very smart move. Twitter is at nearly its worst on a controversial SCOTUS day. That's when you realize that Twitter is wildly unrepresentative of American sentiment. It's like walking down Main Street in Berkeley.

In other news, though, I did find out that you read my newsletter because I had found this data that said that 80% of political tweets are done by people over 50, even though they only make up 24% of adults on Twitter. So I titled the section of my newsletter, This is Why David French Tweets. And I got a WTF from David. Yeah. I'm a very reasonable tweeter.

Like, reasonable amount. But you are over 50. That's true. Barely. Barely. All right. That's true. Barely. Barely. All right, let's start with Miranda. All right, yeah. Vega versus Tico.

And Sarah, do you want to walk through this one? Sure. We covered the oral argument on this. This is the nurse who is accused of sexual assault. They obviously don't Mirandize him. Kind of cool that we turned that into a verb. Is that a verb? Yeah. Yeah, that's a verb. Okay. I'm terrible at sentence mapping. So then he wants to sue under 1983 after his case is done. 1983, of course, just as the little refresher, this lets you sue to get monetary damages from a state official if your constitutional rights have been violated.

Except let's actually read what 1983 says. law a person who is subjected, quote, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. So the question in this case is going to be, okay, but Miranda isn't actually in the Constitution. Miranda is created by the Supreme Court as a prophylactic. Again, we're going to say that word so many times. I just want to see if David like blushes at any point. A prophylactic for your Fifth Amendment rights, among them self-incrimination. We all know Miranda, right? But the big one is self-incrimination, this idea that you do not have to testify against yourself. No surprise on how this one comes out, although I was surprised a little bit by a secondary argument that I didn't think really came out very much at oral argument.

It was a 6-3 case, and it's straight down the lines, the normal 6-3 split. Alito spending most of the time in a relatively short opinion, short compared to what we're going to talk about next, by the way, you know, goes through and talks about like, look, it's a prophylactic. We've said it's a prophylactic over and over again in case after case. We've said that Miranda is not in and of itself a constitutional right. And we've held that in any number of contexts. In fact, we have held that the distinction between being able to use someone's un-Mirandai statement in different parts of a trial would be different because Miranda is not in and of itself a constitutional right. But the question raised by the dissent, which in this case is written by Kagan, so it's extra bitey

in all the fun ways, and smart. I mean, it's Kagan at her best in the sense that it is short and it punches holes in the majority, I think, relatively effectively in a case that is otherwise really cut and dry, frankly. And she says, yes, but that's not what 1983 says. 1983 isn't limited to constitutional rights, although she would say that this still is one, rights, privileges, or immunities. It's not that it needs to be in the Constitution itself. It's something protected by the Constitution.

In this case, your Fifth Amendment rights, and Miranda protects those. What else is Miranda but a judicially created rule that comes from the Constitution? And the majority's answer to that, Alito's answer to that is, yeah, for all the reasons that it's just not. Don't worry about it. Don't worry about it. That sort of was his answer. And, you know, again, Kagan is so persuasive and bitey. She's like, she runs through all the case law. She's like, the majority agrees with me on all of this.

So why is their conclusion different than mine? I love her rhetorical questions. And look, I think in the end, for me, Justice Gorsuch is one of the most protective of criminal defendant rights. And what's going to be different about this case is it's not a criminal defendant issue. This doesn't affect your liberty. This is about getting a financial compensation for violation of your rights. And so Gorsuch isn't going to join them in this at all. And as Alito points out, look, that all sounds nice.

But at that point, we're just weighing whether to extend Miranda. And then it's a prudential question. And there's lots of reasons not to extend Miranda into the 1983 realm because it would cause all of these downstream problems. And it would not further deter Fifth Amendment violations because we already exclude evidence. We already have a deterrence. That's what Miranda's about in some ways. It's both a prophylactic and a deterrence. So, David, did you find Kagan persuasive, or was this a cut and dry case that just happened to be? It's not going to surprise anybody that I found Kagan

persuasive on 42 U.S.C. section 1983. Because you want 1983 everywhere. I just like people to read a statute and apply the words of the statute. So 42 U.S.C. section 1983 says, for example, you shall be compensated if you violate your rights. But the court has said for years it's generally shall not. Generally shall not. Oh, no, we're going to get the qualified immunity rant. Rights, privileges, or immunities, that's broad language. Yeah, it is. That's broad language. What is a privilege? I mean, is a judicially created prophylactic rule that a police officer

has to provide in the context of an arrest, where does that fall in the language in the world between rights, privileges, and immunities? I mean, that's something that is designed and created from the ground up to protect a core constitutional right, the deprivation of which can result immediately and directly in the deprivation of the underlying constitutional right. So, and I get, there's this sort of, when you look at old school conservative law and order jurisprudence, old school conservative law and order oriented jurisprudence was very anti-plaintiff. So back, back in my day, Sarah, when I was litigating, we didn't always love being in

front of a Republican-appointed appellate panel when we were plaintiffs in civil rights lawsuits. So even though we might have a conservative client and might be a conservative client who'd lost their free speech rights, maybe it was a conservative student group who'd been shut down on campus. There was a strong anti-plaintiff sort of undercurrent to a lot of old school Republican judging. And every now and then you just feel like that underlying crankiness against plaintiff's law and sort of the whole concept of civil litigation against state officials comes through. I mean, one of the examples where some of that underlying crankiness came through is in one of my favorite, least favorite, but favorite as far as the craziness, the weirdness

of the fact pattern, bong hits for Jesus case. I love me some bong hits for Jesus. Bong hits for Jesus. What does it mean? Nobody knows what it means, but it's provocative. It gets the people going. In that one, there was a lot of, you know, when you read the opinion, it was pretty clear that there seemed to be some exasperation. There was a lawsuit brought over this. Why are you suing? You know, and why are you harassing administrators

and suing good-hearted school officials? So a part of this Section 1983 case law really, I think, reaches back to a lot of the anti, reaches back to this era of the court that, quite frankly, seemed to always be somewhat suspicious of Section 1983, looking for ways to narrow it versus ways to apply it. And consider me with Kagan on this, but not the next one. And a lot of this turns on a case called Dickerson, which is just worth another couple seconds to explain the Dickerson case, because the question here was sort of like, do you expand Dickerson?

Do you shrink Dickerson? case because the question here was sort of like, do you expand Dickerson? Do you shrink Dickerson? Dickerson is where the federal government passes a statute to try to overrule Miranda. Actually, it's in this parlance superseded by statute. And so the Supreme Court in Dickerson and Kagan quotes quite liberally. The Supreme Court's like, no, dog, you can't overrule Miranda. So I want to read a little bit of what she says about Dickerson. So here's Kagan quoting Dickerson. Dickerson tells us again and again that Miranda is a constitutional rule. It is a constitutional decision that sets forth concrete constitutional guidelines. Miranda is constitutionally based, or again, it has a constitutional basis. It is of constitutional origin. It has

constitutional underpinnings. And one more, Miranda sets a constitutional minimum. Over and over, Dickerson labels Miranda a rule stemming from the Constitution. Dickerson also makes plain that Miranda has all the substance of a constitutional rule, including that it cannot be abrogated by any legislation. Dickerson held that Miranda is a constitutional decision that cannot be overruled by any act of Congress. And so her point is, if it can't be taken away by Congress, how is that not a right privilege or immunity protected by the Constitution? And I'll admit, Alito does try to answer this several times. But again, in the end, I think it does come down to that prudential question of simply not wanting to extend 1983 any further, which is why we have

these fights over qualified immunity. Because frankly, the courts want fewer 1983 claims because they're messy. And so at the end of the day, this was never going anywhere because it would mean more 1983 claims. Or cops could Mirandize. It's not as easy as that. That makes it sound like they put handcuffs on him, put him in the good Mirandas. So, the, shall we? It's not as easy as that. That makes it sound like they like put handcuffs on him, put him in the back

of the squad car where he's like, ha ha, we forgot what Miranda was. Like, the facts are a little messier here. True.

They're talking to him at the hospital. I apologize. There's like a janitor's closet involved, yada yada, what's custodial. It's decided that this

was a custodial interrogation and therefore they should have Mirandized him. But again, it's not like the cops are like, you know what we're definitely not going to do is give this guy his Miranda warnings because F him. I mean, maybe it was a little of that, but there's a problem. Maybe a hint of it, maybe a whisper. There's a problem about when to Mirandize someone because we all have this intuitive, like if someone starts reading you your Miranda rights, you're like, rut row. And so police officers want to talk to you before they have to Mirandize you. And so, I don't know.

Again, there are really good prudential reasons not to create 1983 claims around this because there are questions, and this would go to the clearly established problem, about what is custodial. And those questions are not going away. Agree. All right.

But it's also a cool Vega v. Teco. I don't know. I go to that cool restaurant. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month.

Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. All right. The main event. The entree. That was the amuse-bouche of Miranda prophylactic.

Yeah. This is one of the big ones. This is tier one, five alarm, Twitter meltdown, SCOTUS case law right here. Although in fairness, there was a lot of Twitter meltdown over KCV Macon, case law right here. Although in fairness, there was a lot of Twitter meltdown over Casey v. Macon, the main case over whether you need to provide tuition vouchers, which by the way, I do want to issue a correction. One of the attorneys reached out. Those tuition vouchers actually are only for high school. So when I was giving the example of sending five-year-olds off to boarding school, I sounded stupid, not Chief Justice Roberts. That will surprise no one.

So apologies, Chief Justice Roberts. Nevertheless, I do think that mandatory boarding school is a weird idea for most parents. Yeah, Casey v. Macon, the Twitter meltdown. Carson v. Macon. Carson, you're right. Carson v. Macon, the Twitter meltdown over that was weird, given how few people this affects.

And you don't have to send your kid to a religious school. And Maine doesn't even have to have this tuition program if they want. And the total number of people impacted tiny. Itty bitty. And it was so consistent with prior case law, it would have been shocking had it come out the other way. And yet I had people like really telling me this was the prime example of judicial activism at the Supreme Court. And I was

like, rut row the next week is going to be rough. We only had had multiple prior cases where Kagan and Breyer had joined with the conservative appointed majority on almost identical issues. But we're not talking about that now. We're talking about guns. Yeah, we are talking about guns. So, New York State Rifle and Pistol Association versus Bruin. Okay. I'm going to do this. I'm going to give a top line on what this case is. I'm going to talk in some more detail about the Thomas majority opinion, and then briefly through the concurrences. And that sounds like a lot. I'm going to try to make this as concise as possible. But let me give you the top line of

this. Okay. Oh, wait, can I give my bumper sticker version of the Thomas opinion? Yeah, give your bumper sticker. I'm right and you're dumb. That's pretty good shorthand. Yeah. It's pretty good shorthand. Okay. For me to give you the top line of this opinion, I have to tell you what District of Columbia versus Heller was. So this is the case from 2008 where the Supreme Court said, and we have to be really precise about what the Supreme Court said, is that you have a right to keep a handgun in your home for self-defense. A personal right to keep a handgun in your home for self-defense. Now, there was a lot of dicta around it, a lot of rhetoric around it that people kept trying to read the tea leaves as to what does this mean about everything from assault weapons bans to the right

to carry a gun outside the home for self-defense? The top line is that this case, New York State Rifle and Pistol Association versus Bruin, is Heller outside the home. So in other words, you have the right you had in Heller to keep a handgun in the home for self-defense is a right you have outside the home to bear a gun outside the home for self-defense, but not unlimited, not unlimited. And that's the narrow, this is what was actually decided here. But there's another part, but there's more. So the, but there's more is during all of the years between Heller and now, there were tests created at the lower courts. Text history and tradition followed by balancing tests. So what would happen is lower courts, to just overly simplify perhaps, lower courts would say, hey,

is this the kind of use of a gun that the text history and tradition or the kind of regulation the text history and tradition of the Second Amendment would say implicates the Second Amendment, implicates the right to keep and bear arms? And if the answer to that is yes, then we apply a balancing test. We apply, you know, some of the courts, it was some version of something like intermediate scrutiny, which is essentially a shorthand way of saying, if the judge likes it, it wins. If the judge doesn't like it, it loses. Rational basis review is the state wins. Strict scrutiny is the state almost always loses. Intermediate scrutiny is whatever the judge wants. That's the, Scrutiny is whatever the judge wants.

That's the, and so what Thomas was doing was he tried to say, okay, it's really only one step. It really is only one step. Text, history, and tradition. And let me tell you the two parts of that one step. It really is one step. Now, what really got interesting about this was, okay, text, text, we got you. Keep and bear. keep and bear. Those are words that are not super ambiguous. You know, bear is carry. You don't talk about bearing arms when you're talking about the gun that is in your house. That's an arm that is kept and is only born like instantaneously and

momentarily if you have an actual intruder or something. You're really bearing arms outside. So, but he didn't stop with, he didn't stop with text. He didn't just say, look, bear means bear. Let's move on. It was, okay, what's the history and tradition? And this is where this got, we got in the weeds, including almost a 1,000-year-long look at the history of regulation of gun ownership and bearing of arms in the English-speaking world. But don't worry. He says this will be really easy for all judges to do in the future. Yes. He says the history—

Judges aren't so good at balancing tests because they don't know much about weapons, They're not so good at balancing tests because they don't know much about weapons. But they're fine with this thousand-year history that I'm about to walk through in some detail. And the interesting thing about this was, so part of the issue with the history here is, quite frankly, it's all over the place to some degree. Okay. So depending on how far you go in one direction or how far you go in another direction, you're going to be able to find a lot of different things in the history. And even if the history is confined to some specific periods,

you're still going to be able to find a lot of different things in the history in these confined periods, but it might be one's an outlier law and another one is sort of mainstream. So what he basically does is says this. Look, there's all of this history, but not all of it matters equally. What really matters is the history. It's the history that agrees with me. It's the history right before and maybe a little bit right after the ratification of the Constitution and right around and maybe right after the ratification of the 14th Amendment.

And so that's when he'll say, and right around and maybe right after the ratification of the 14th Amendment, okay? And so that's when he'll say, look, some of these citations to medieval English history and laws governing the bearing of arms in medieval England, that doesn't really apply. English Bill of Rights in 1688, which largely granted Protestant citizens the ability to bear arms, that's much more relevant. Colonial era laws, much more relevant. If you're going to the late 1860s and the ratification of the 14th Amendment, what were the regulations then? More relevant. Now, where does the law sort of gray out of its relevance period is unclear.

But you can begin to see how this history analysis gets complicated fast. And if you read all of what he talks about, it's very complicated. But he basically makes it, he boils it down to this. If you are a law-abiding responsible, and I need to do a word search for how many times he says law abiding and responsible. Law abiding and responsible, you can carry in public a weapon for self-defense. And I would love to do a word search on self-defense, word search on self-defense, which is a- 28 for law-abiding, 13 for responsible. Self-defense clearly has a hyphen in it. 102. Yes. Okay. So law-abiding, responsible, self-defense. Justice Thomas, more into hyphens than I am. I'm going to be honest. Hyphens are disfavored

in Strunk and White. Well, I am a promiscuous hyphenator. Yeah, I find them very useful. Anyway, so essentially what he's saying is if you're talking about law-abiding, responsible self-defense, you're going to be able to publicly carry a weapon. Now, it doesn't mean that that can't be subject to reasonable time, place, manner, kinds of restrictions that are left undefined, but the general rule is, I don't have to, and it's not that it's upsetting all the licensing regulations that are in multiple states around the country where I have to pass a background check, I have to fingerprint, I have to take a class, like I have to fingerprint. I have to take a class like I did in Tennessee when I got my concealed carry permit in Tennessee.

Sarah, name of the company that I took my concealed carry class. Guns R Us. No. Those, Agape Tactical. And the, for those who know, so Agape is like, Love. Love, yes.

So Love Tactical. And the logo of the company at that time was a bullet with the shadow of the cross on it. I was going to say Cupid's arrow. That would be fun. No, so anyway, but it was a phenomenal class. Ken Alexandro, phenomenal teacher.

My wife took handgun one from him, handgun two from him, advanced tactical handgun one. Weird advertisement for Agape Tactical right now. I know. I'm saying he's amazing. I'm sorry. Anyway, I digress. Not that applicable to our current audience. I'm sorry.

But it's applicable to licensing. So anyway, he's not saying licensing is unconstitutional. You can have a licensing regime so long as the granting of the permit is not subjective on the, it's not discretionary on the basis of subjective criteria. So really this is a pretty narrow decision on the merits. And as they say, there's 43 states that have some version of shall issue regime. Only six states in the District of Columbia that don't. And one, Vermont, that's just a total outlier. They just issue you a weapon at the border. And interestingly enough, a majority of trifecta democratic states are, are may or shall issue regimes. Something we'll get to in a minute. Yeah. So this is not an outlier legal regime.

It's the mainstream legal regime. So he walks through this history and says, look, the bottom line is you do have an ability to publicly carry a weapon. Now, what is the opinion silent on? The opinion's largely silent on the actual issues that really ignite a bunch of the gun control debate right now. What kind of weapon? There are some hints, though. There are some hints, though. And the hints lie in the words, in the phrase self-defense. Do you call it self-defense? Do you call that a phrase or a word? That's a word if you're adding a hyphen. That's what hyphens are.

Okay, sorry. In the word self-defense. Hyphen, endash, emdash. They have very specific uses. Yeah, sorry. Hyphens are for words. Endashes are for dates, times, length of, you know, it's temporal. Emdashes are for dates, times, length of, you know, it's temporal. M dashes are for clauses.

And if someone sends me a resume and they do not know those three things in their resume, you'd never hire me. No. So essentially what he's talking about is self-defense. All right. So are these, the centrality of self-defense is really interesting here because if you are on part of the gun rights world, you don't emphasize self-defense when you're talking about gun rights. What are you emphasizing?

You are talking about self-defense, but you're also talking about ability to confront and overthrow the government. And that's part of the purpose of the Second Amendment, is to sort of check on government tyranny. What's interesting about this is it really locates the core of the Second Amendment in self-defense. That's where it's located. So if you're a legislator and you're thinking about the regulation of weapons, what this is doing is it's telling you, wait a minute, if the weapon is not obviously useful for self-defense, then it might be subject to more regulation, such as, for example,

very few people carry long guns outside the home for self-defense. You know, when I carry a weapon, it's not my AR-15. When I'm going outside the house, It's a concealed handgun. And so that's an interesting part of this that people have not really talked about enough. All right. So he walks through the history. He does not say which weapons can be regulated and which weapons cannot. He does not say which magazine sizes are appropriate and which magazine sizes can be regulated away. He doesn't do any of that, but he says text history and tradition is the test. Judges are more capable of discerning the relevant history than they are capable of going through a means-ends balancing test. And when you walk through this, then the basic bottom line is you're going to have a right to

carry a gun outside the home for self-defense. That's the bottom line holding Heller traveling with you. All right. So we have this really interesting thing that happens next. We have several concurrences that are not disagreeing with Thomas at all. They're just kind of, I mean, yeah, with Thomas at all. They're just kind of further explaining Thomas. So they're saying, this is kind of what this doesn't say, and this is what this does say. And I'll walk through them just very briefly one by one, and then

Sarah and I were talking about this at lunch, and she had a lot of thoughts. I have feelings. Thoughts and feelings. So here comes Alito. Alito's dissent is basically, thoughts and feelings. So here comes Alito. Alito's dissent is basically Breyer's dissent is terrible, and I'm going to tell you why. And what Breyer's dissent does is it leads with a lot of really lurid details about gun violence. And, you know, there's these mass shootings, and 40,000 plus Americans have died to gun violence. And it's sort of like, look at all the gun violence. What are we doing?

And Alito is saying, well, those statistics, by and large, are completely not relevant to what we're talking about. So take mass shootings, for example. One of the most recent mass shootings happened in Buffalo, where this law applied. And it was totally irrelevant. This law is totally irrelevant to suicides, which are the vast majority of gun deaths in the U.S. Fact of the matter is this law is not that relevant to most common gun crime, where most common gun crime criminals are already possessing weapons that they

don't have the legal ability to possess. So Alito's saying, wait a minute, I think you're just demagoguing this gun violence issue. Then you get to Barrett, and Barrett has an interesting concurrence that, it's a very short little concurrence, and she's basically talking about, well, when is the history that matters, and when is the history that doesn't matter? And Barrett's basic position is something that we've talked about quite a bit on this against what we call the 19th century infallibility thesis, which is one way of doing originalism is you look at text and then look at what was happening in the 19th century around that time. Yeah, like the Alien and Sedition Acts.

That was super helpful to determine the scope of our First Amendment rights. Right, exactly. Paradigmatic example. You're not going to interpret the First Amendment by reference to the Alien and Sedition Acts because guess what? 19th century lawmakers could violate the Constitution they just ratified. And did. And did because you know what? Power corrupts. So she essentially takes aim at this 19th century infallibility thesis. And I think in a kind of a subtle way, it'd be really fascinating if she was right here and was felt free to speak, sort of saying, hey, it should have been more text than history. It's kind of the way I interpreted it. And then you had a really interesting Roberts-

Kavanaugh concurrence. And the Roberts, and why is that so interesting? Because those two justices are kind of swing justices. If they're together on this issue, if they're together on this issue, those two plus the three is a majority. And that's called math. Math. And the interesting thing about their concurrence was they were basically saying, look, there's a whole lot of regulation that is up in the air as a result of this case. There's a whole lot of regulation that Thomas did not in any real way shut down regulation of gun ownership and really sort of emphasizes more what the opinion doesn't say than what the opinion actually says, which is interesting

because I'm actually curious, and I'll just turn to you with this question. Sarah, you're a lawyer, and you are advising a state legislator about where, what is the state of gun control? Uh, what is the state of potential gun control legislation post this case? And he's coming to you and he says, I want to do, can I do an assault weapons ban and a large capacity magazine ban? Um, based on after this, under this test? What do you think? Well, let's talk about what the test is. Quoting from Thomas's majority, we reiterate that the standard for applying the Second Amendment is as follows. And I want to just remind you that he said that courts were failing by doing a two-part test, that it was one part

too many, that this was a one-part test. that it was one part too many, that this was a one-part test. And now I will read you both parts of it. When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the nation's historical tradition of firearm regulation. So it's basically a burden shifting analysis. If the text doesn't cover it, you're done. No problem. Similar, by the way, to the abortion question in some sense. If it's not an enumerated or unenumerated constitutional right, then you're kind of done with the analysis. If it is covered by the Constitution,

then it is the government's burden to show that the history, tradition, blah, blah, blah, firearms regulation covers what they were doing. So taking the large capacity magazines, totally impossible to apply this test to that. There were no magazines. And so I don't even know how I would begin. I tend to think that it is covered by the text because having bullets is part of what makes your gun work. Indispensable to the operation of the mechanism. That's not true. I can throw the gun at someone. Well, sure.

Some might argue I would be better off trying that. I'm good at getting those skeet out of the sky, but marksmanship is not my game. But what is the nation's historical tradition of firearm regulation at either the time of the founding or the passage of the 14th Amendment on magazine capacity? And what is then the analogous thing, if not magazine capacity? Because he does talk about how clearly in the Fourth Amendment, when we've done the heat sensing

case, for instance, we can apply it, a history and tradition analysis to apply to new technology. technology. But I don't know. Now, I think the assault weapons ban, easier, still pretty hard. So can I channel my Justice Thomas? Sure. I mean, I know what Justice Thomas would say, but that's not what you asked me. No, no. But if you know what Justice Thomas would say, you can advise your hypothetical legislator. No, because I think the Chief Justice in Kavanaugh, I think this is a very specific opinion on a very narrow question, actually. And that this new test actually is going to look a lot like the scrutiny balancing test that existed before it. And in fact, let me just read more of Justice Thomas's majority opinion. To be sure, historical analysis can be difficult. It sometimes requires resolving threshold questions and making nuanced judgments about which evidence to consult and how to interpret it. But reliance on history to inform the meaning of constitutional text, especially text meant

to codify a pre-existing right, is in our view more legitimate and more administrable than asking judges to make difficult empirical judgments about the costs and benefits of firearm restrictions, especially given their lack of expertise in the field. In the last decade of Second Amendment litigation has taught this court anything. It is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of intermediate scrutiny often defer to the determination of legislatures. But while that judicial deference to legislative interest balancing is understandable and elsewhere appropriate, it is not deference that the Constitution demands here. The Second Amendment

is the very product of an interest balancing by the people, and it surely elevates above all other interests the right of law-abiding responsible citizens to use arms for self-defense. It is of an interest balancing by the people, and it surely elevates above all other interests the right of law-abiding responsible citizens to use arms for self-defense. It is this balance, struck by the tradition of the American people that demands our unqualified deference. Yeah, but the very balancing test that he condemns

in that empirical balancing on intermediate scrutiny is exactly what he's about to do in the historical analysis where there's history that both sides have, of which history counts and how much import to put into that history. Maybe we can go through just a couple of those right now. Yeah, please. Okay. Because, I mean, this is like the Goldilocks of history analysis. Because, I mean, this is like the Goldilocks of history analysis.

So a thousand-year-old English test, too old. Because remember, we broke from England anyway. I mean, maybe this is why we broke from England. But some other English history is part of our common law. So like that English history, we definitely use. And then you move on to Texas, which actually has an on-point law, very similar to this one, at around the time of the 14th Amendment. So does West Virginia. But those are outliers. Then the territories had similar laws to this, but they had a really small population, really small, like basically no one lived there.

And then some of these laws, because of the small population, were never challenged. So we don't even know if judges would have found them constitutionally infirm at the time. What? How is that anything but the very intermediate scrutiny-ish type of balancing test that he just said was a disaster. I mean... Is that a technical legal term? It really is in this case. And the idea, by the way, that we discount analogous history when the place has a small population

is a concerning piece of, like, historical analysis that we would never apply in any other context. I mean, I'm a Texan, so I'm all for size matters, truly. But I was offended on behalf of our poor little rural Maine state and Alaska and whatnot. But Texas is big, And it had the law

But Texas and West Virginia didn't count Because they were outliers Okay, but isn't that I mean, it's all circular, right? It's assuming its own conclusion So I found the historical analysis Really difficult For a future or current judge

To follow in a future case You know, a court never said that this didn't violate the Second Amendment is now a reason that we can discount or follow something. So the lack of evidence is now evidence. That is kind of a crazy historical analysis. Well, you know, which is I think one of the reasons why Barrett did what Barrett did, Well, you know, which is I think one of the reasons why Barrett did what Barrett did which is to say you know bear bear arms And it and I think that you know, what's gonna end up happening because again

What's happening with these six states in the District of Columbia is they're going to implement a licensing regime That's what they're gonna do. They're gonna implement a licensing regime. It's probably gonna be stricter and more difficult you know, I can imagine a New York state legislature right now saying a $10,000 for your permit. I mean, it won't be that much, but they'll put hurdles in front of the licensing that, so people will not be able to, and those will be challenged. Those will be challenged. But so you're going to have a licensing regime. But the really, the parts of the gun control issue that is really going to be relevant is one that I'm kind of at sea about as a result of reading all of this. And that's the assault weapons bans,

large capacity magazine bans. And I think, you know, both Roberts and Kavanaugh went out of their way. And I'll read the specific portion that they said. Second, as Heller, this is Kavanaugh writing with Justice Roberts joining. Second, as Heller and McDonald established, and the court today again explains, the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check. Gee, thank you for that. Thank you. Properly interpreted, the Second Amendment allows a variety of gun regulations. Okay, great.

Which ones? Well, let me read you Thomas' version and then Alito's version and why, like, I don't understand why the majority opinion was not Alito and then Thomas is the concurrence on history. Because, David, you pointed out something when you flew in today that they didn't need to decide this question. Because if you're going to shrink it down to what I'm still calling the Thomas two-part burden shifting test, the text protected this. You didn't need to go on to the history and tradition part in the way that they did.

Okay, but Justice Thomas writes this very opaque thing about what is going to be allowed under this test, what is not going to be allowed under this test. It's very hard to discern. I think intentionally so. He doesn't want to concede anything. He doesn't want to give any indications that they will allow future regulations. And then you have Alito coming in with his concurrence. He's like, yeah, yeah, no, I'll define it. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun, nor does it decide anything about the kinds of weapons that people may possess, nor have we disturbed anything that we said in Heller or McDonald about restrictions that may be imposed on the possession or carrying of guns.

Thomas says none of that. In fact, Thomas goes out of his way to say that you could ban concealed carry, but he doesn't even say that you could keep concealed carry, but ban public carry. He leaves open the question of whether you could ever ban public carry, even if you have open carry, even if you have concealed carry laws, nothing. He concedes nothing. Yeah, yeah. And then Kavanaugh and Roberts, they not only say it's neither a regulatory straitjacket

nor a regulatory blank check, they then go ahead and repeat, repeat Scalia and Heller saying, like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. And then it goes on to talk about sensitive places. So, wow, you know, if you're talking about these really hot-button issues,

I would say if you're arguing from a gun rights perspective that a blanket assault weapons ban or large-capacity magazine bans are going to be unconstitutional, what you would say is, wait a minute, what text history and tradition tests would say is that guns that are in common use for self-defense are the history, the text in the history would say that guns in common use for self-defense cannot be prohibited. And so then the question is, is this weapon in common use for self-defense? That's what would be the gun rights perspective on this. The more gun control perspective on this would say,

whoa, whoa, whoa, whoa. It's not just what's in, that's pure dicta, this common use for self-defense. That's pure dicta. The question is, are we protecting or not your right of self-defense? And if you're saying that by allowing you to have a handgun, but a handgun that doesn't have quite the magazine that you want, that's depriving of your right to self-defense?

Or not permitting you to carry a particular kind or own a particular kind of long gun, but you can have other kinds of long guns, that's depriving of your right to self-defense? You're reading way too much into this. And I think that's going to be where you're going to see that the next fight is over, okay, what is it that is in common use for self-defense? And if it is in common use for self-defense, does that mean that you can't ban it? All right. I want to go on a brief frolic because I have been criticizing the majority opinion. I want to do a little love note to Alito's concurrence

and a criticism of the dissent. Oh, yeah, I need to talk about the dissent. Yeah. Okay. Not a fan. Alito's concurrence clearly should have been the majority opinion to me. Thomas's majority should have been the concurrence on his whole historical analysis,

which again, I find undercut his argument far more than it made his argument stronger. It was bizarre in how much I thought it weakened his argument at various points. But Alito, you know, and y'all have heard me criticize the draft Dobbs opinion, but like, this is Alito at his best. So I told you, he's like, that's all we decide. And then he goes through the things about what

they didn't decide. In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent's lengthy introductory section. Why, for example, does the dissent think it's relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York's prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?

And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator. What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside? The dissent cites statistics

about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York's? The dissent cites statistics on children and adolescents. I mean, you get the point. The dissent cites the large number of guns in private hands, nearly 400 million, but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in a home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried

outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country's high level of gun violence provide reason for sustaining the New York law, the dissent appears not to understand that it's these very facts that cause law-abiding citizens to feel the need to carry a gun. So you get a flavor for what the dissent is talking about. They, I mean, Breyer dissented in Heller, right? He doesn't like Heller. This whole genre of cases they think should be a lot different in terms of the balance. Breyer still on the like, it should just be common sense. Let's use common sense tests. I feel like this dissent and some of the other ones this term, frankly, are Breyer kind of giving up on having a judicial philosophy and saying instead that his judicial philosophy is we

confirm smart judges. Let's just let them decide, which is not a very coherent judicial philosophy, frankly. And I think it's exactly this point that David started with. If 43 states have shall issue and the majority of democratic trifecta states have shall issue, it means that they don't think, even like it's set aside the political arguments, that even Democratic controlled states do not think that a law like this prevents mass shootings, prevents suicides, that it's not that important as a gun control measure. And so if the dissent's whole purpose is the Supreme Court is now responsible for mass shootings, that doesn't make a lot of sense.

Right. And, you know, for as much as, for instance, I just was admiring Kagan's writing, this is a dissent that needed to be written by Elena Kagan and her sharpness. Because, frankly, this just felt like more of a guns are bad, our culture is broken, mass shootings are tragic, all things that I very much agree with in a lot of ways. But it doesn't have a lot of bearing on May issue versus shall issue states or on the massive problems I see in the majority's opinion on the historical analysis. You know what this was? It was a microcosm of every gun debate I've ever had with somebody who supports gun control but doesn't know much about guns. So this is an argument that is repeated infinity times. There's something terrible that happens with guns, and then somebody says,

we need to do something, and here's this law. Okay. And you say, wait a minute. That law doesn't do anything about the thing that just happened. But we need to do something. Okay. I agree that what just happened is horrific. But do something or do something that is relevant to what just occurred. And this is what frustrates me a lot in these discussions. I've had a ton of these discussions, especially since Yuval Day,

and we should be willing to have these discussions. You know, it is simply not the case that we have a world where we know that if we enact policy A, B, C, and D, that the following good things will happen in the United States regarding gun violence. The best resource that I've seen is RAND Corporation has this huge study of studies where it looks at all kinds of studies of the effects of different gun policies. And it screens out those studies that are just too small a sample size, don't meet its pretty rigorous standards,

screens those out, puts them over here on one side, and then puts the ones that have enough studies that have met its standard of rigor, and you'd be really surprised at how little effect exists on how little many of the most popular measures, how little effect that they have. Interestingly enough, the things that do seem to have some pretty strong effects are child access prevention laws. They seem to have some effects on gun accidents. And there are some, seem to be some pretty strong effects on stand-your-ground laws and gun crime,

that stand-your-ground laws might actually increase gun crime. And so that's something that is very much worth thinking through if you're a red state legislature who's circled your wagons around stand-your-ground laws. But outside of that, there's not a lot of evidence. But there's a lot of emotion, rightfully so. Like, I don't begrudge one bit of emotion around this. But the question is, wait a minute, as Alito so effectively said, all of the parade of horribles you're talking about aren't applicable to this law. That's not what this is about. And I thought he was just very, very effective. And interestingly enough, a lot of people have gotten much more angry at the Alito concurrence than they have at the Thomas majority. I think

in part because it was quite effective at sort of eviscerating the emotion-laden argument relevant to this statute. Before we take questions, I want to explain for the audience why I've been looking at my phone. Let's just take a little detour, but I think listeners will enjoy this. A friend has a peacock in their backyard, and this is turning into a bit of a debate. Let the peacock hang out or bring over her brother's dog to encourage Polly the peacock to relocate to another shady backyard. So first of all, peacocks by definition are not Polly. That would be a pea hen. She sent me a picture. This is a peacock. So let's start with that. Just the misnaming is bothering me. That's terrible. But also, this is me. Why, like in the last three minutes of this podcast,

why would you ever want the peacock to leave? My mom's internet research suggests that they have quite a temper. If you want him to leave, go out there and shoo him. Don't send a dog. That's dangerous for a peacock. They aren't like songbirds. They can't take off quickly. The dog can really injure a bird like that. She says, that's good advice. I said, seriously?

Y'all are afraid of a peacock? She said, my mom recently had an ankle injury. I said, and your dad? Is he too infirm to take on a four-pound bird? So thankfully, I just want you all to know that Polly, the misgendered peacock, is going to be okay. She has called off the dog. Good. So that, I thought, was an important use of my time.

The double injury of misgendering followed by dog attack, I mean, that's horrible. Ridiculous. That's terrible. It's a beautiful peacock. There are wild peacocks in West Houston. Well, they're quasi wild. There used to be a restaurant that had peacocks. That restaurant shut down and somehow now there's peacocks wandering West Houston. That's fantastic. There's also green parrots. That makes me like Houston more. Oh, I know. We've got a lot going on in Houston. A lot of diversity. And we'll take a quick break to hear from our sponsor today,

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Let's take some questions. Yes, questions. And they can be about peacocks or other birds. Yes, I mean, you already addressed this in part, I suppose, but I was curious to hear your opinion on Breyer's criticism of the historical, you know, component of Thomas's, you know, test. I wanted to have a Kagan-like sharpness where it goes point by point of why this historical analysis doesn't work. Again, what I'm calling the Goldilocks historical analysis. This is too old if it disagrees with me. This is too young. This one's just right because it agrees with me. You know, there is this nice moment in the majority opinion where he talks about Dred Scott. He says, even before the Civil War commenced in 1861, this court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the court in Dred Scott, Chief Justice Taney offered what he thought was

a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right to keep and carry arms wherever they went. Thus, even Chief Justice Taney recognized, albeit unenthusiastically in the case of blacks, that public carry was a component of the right to keep and bear arms, a right free blacks were often denied in antebellum America. So first of all, sick burn, Justice Thomas. I like it. But Dred Scott decided in 1857 that would otherwise be outside his Goldilocks frame of the 14th Amendment, which is 1868. And again, where's Breyer doing the line by line?

How can you just dismiss everything that agrees with you, but everything that doesn't you think is part of the historical tradition? It needed to be Kagan. I have to say, as I read through the Kagan dissent, because I read the principal briefs in the case, I mean the Breyer dissent and the Thomas majority opinion, because I read the principal briefs in the case. I read a bunch of the amicus briefs, not all of them. And I was actually surprised at how

messy the history was. As soon as you got into the idea of what is it, what, what kind of arms can you bear the circumstances, circumstances under which you can bear arms, the outlier, quote unquote outliers, where there wasn't a right to bear arms at all. It struck me as a messier history than the Heller history, which was much more focused on, do you have a right? Is this a personal right? Is this a personal right? The personal right historical evidence to me is just overwhelming, and the textual evidence, overwhelming and the textual evidence more importantly is very very very strong and this though man you know what an issue to sort of say no no scrutiny test being applied because the historical test is uh it's it's just all over it is over. You can find what you want to find in the record, and then you're left with this sort of, well, I'm weighing.

Now it's weighting of how many statutes overcomes this statute. But one thing that I think is very clear to me is from the history, is if you're a legislature, and I'm advising a legislature, and we live in this environment of armed protests now, so we've seen armed protests outside of people's homes, armed protests outside in the Michigan Statehouse. The one thing that's pretty clear from the history is you cannot go armed to the terror of the public. And that is absolutely clear here.

You don't have a constitutional right to go armed to the terror of the public. And I am not a fan of open carry, particularly of long guns. It is not a self, that is not a self-defense thing. In fact, just free self-defense tip here, the more obviously armed you are in an environment, you are the first target for somebody who's a shooter. And so this open carrying of weapons is not really a self-defense tactic. It's more of a political statement. It is, and especially in a protest situation, it's more of an intimidation tactic. So I think that there is a real text history and tradition justification for saying no to offensive open carry. Also, I mean, the Alito concurrence just eviscerates the Breyer dissent

point by point, which I just haven't seen a concurrence take down a dissent like this in a long, long time. You know, my final point I'm reading from Alito concerns the dissent's complaint that the court relies too heavily on history, to your point. He says two examples illustrate his point of why that is not persuasive. The first is the Second Circuit's decision in a case the court decided two terms ago. This is where the Second Circuit uses that intermediate scrutiny balancing test to uphold the New York City permitting where you're only allowed to go to, you know, from your house to the specific range. The Second Circuit upholds that. When it gets to the Supreme Court, New York gets rid of the law

agreeing that it violates the Second Amendment. And they're like, so what were you doing, Second Circuit, in that balancing test? Exhibit two, he says, is the dissent filed in Heller by Justice Breyer, the author of today's dissent. Yeah, this is a sick bird. Also calling it exhibit two. At issue in Heller was an ordinance that made it impossible for any District of Columbia resident to keep a handgun in the home for self-defense. Even the respondent who carried a gun on the job while protecting federal facilities did not qualify.

The District of Columbia law was an extreme outlier. Only a few other jurisdictions in the entire country had similar laws. Nevertheless, Justice Breyer's dissent, while accepting for the sake of argument that the Second Circuit protects the right to keep a handgun in the home, concluded, based on essentially this intermediate scrutiny test, that the district's ban was constitutional. Which you can read then. Again, this is why Alito's concurrence is so much better than the majority opinion, because the majority opinion never says what Alito's concurrence, I think, makes the point so clearly. We're switching to this single burden-shifting test because you guys were irresponsible with the intermediate scrutiny test.

And if, I mean, again, like thinking of my two-year-old, if you keep throwing that toy, I will take it away from you. And so they've given them a warning multiple times. The Second Circuit, the Ninth Circuit, they kept throwing their toys across the room. And so the Supreme Court just took away the toy. And that's really what then Thomas's historical analysis

is all about, put into that light. Again, I thought it weakened his argument because it will lead to the exact same outcome. As long as you can find history on one side to, you know, you can say why you get to ignore that history and keep that history, you end up with the same result. I look forward to the Ninth Circuit and Second Circuit doing exactly that. But this is the reason that it's happening. Yeah. And it's also, you know, it's interesting that Thomas had to have this more narrow window on history because the statute itself here is 100 years old. So there's a lot of history behind this statute. Now, 100 years old puts it early,

you know, 20th century, not mid-19th century. So you're a little bit outside of that historical window. But again, that's such an imprecise way of doing this. And that's why I feel like there's so much that's sort of left open and somewhat confusing for lawmakers going forward. Thank you. Stop texting about peacocks. Guys, I'm going to protect this peacock. I'm glad the peacock's okay, but you mentioned justices at their best, and after talking about Breyer,

I was just curious if there was a time when you think he was at his best or at least a particular opinion, and also I just had to ask as a fellow Houstonian, what's your favorite part of Houston? Okay, you take Breyer

because we love Justice Breyer. We think he writes amazing opinions and dissents and concurrences all the time. And it's not an age thing. I didn't mean like this term. I meant more just for whatever reason, the last couple opinions have been lacking for me. But you've got it. Yeah. My favorite recent Breyer case is Angry Cheerleader.

That's right. Yeah. Oh, love meyer case is Angry Cheerleader. That's right. Love me some Breyer Angry Cheerleader. Angry Cheerleader case is fantastic. I mean, just because it's about an angry junior high cheerleader that becomes her Snapchat screed becomes a Supreme Court case, which is almost as good as your bong hits for Jesus poster outside of school becoming a Supreme Court case. It's one of the reasons why First Amendment litigation is just the best. But angry cheerleader was a really good Breyer decision. It was thoughtful. It was reasonable. It reached the right outcome, in my view. I mean, not mine, but it was. You wanted it to go further. Yes. And I did too. I did too, but I don't necessarily, I like to just win, you know, like when the client, when the

plaintiff wins and should win, I'm not going to get too upset if they don't win as big as I wanted them to. I don't normally, but in that, whatever. Yeah. But I liked that one. A briar, angry cheerleader. You can go look it up. Mahoney Area School District versus BL, a minor, by and through her father, Levy et al. So Google all that. In terms of my favorite part of Houston, I don't have a favorite part of Houston. All parts of Houston are amazing. I think that's actually what I love most about Houston. It is the most diverse city in the country. You can go to any part of the city and find the most amazing food that you'll find anywhere in the country. Barbecue, Tex-Mex, Vietnamese food, just everything. The dim sum at Hunan Palace that has like a thousand seats, just like on a regular Saturday,

you can find a thousand people at Hunan Palace. Ocean Palace, Ocean Palace, sorry. Yeah, I don't know. I mean, I've lived in a bunch of different parts of Houston. I don't know, my dad grew up in South Houston. I'm a fourth generation Houstonian. My great grandparents immigrated here, and they had reached the Jew quota in New York, and so the boat just kept on trucking until they ended up in Sedalia, Missouri,

and then my grandfather moved to Texas to open a general store, so he sold shoes and the whatnot. And my son actually has the little, it's like a toy horse that you ride on that has little reins from the general store, which is really fun and cool. What part don't you like? That's a love-based take on Houston. Port of Houston area. No, the Port of Houston is incredible.

I drove down a driveway and almost got trapped. Okay, look, the smell of Texas City will knock you off your feet. But this is the biggest oil refinery. I mean, what they are capable of doing in the Port of Houston. And again, I mean. You must hate energy independence. I also used to go, you know, Texas City, like San Jacinto Monuments right there. And every year we'd go and clean up the San Jacinto Monument,

which is in the middle of, seriously, oil refineries. And then there's this big monument with the USS Texas there. Houston, visit. Thank you so much for being here. I'm a big fan of the podcast and it's been a pleasure. The question I have is maybe a little bit more abstract, but I think pertinent, especially revisiting Heller, and just what the role of originalism do you think is? Is it the only way of interpretation, a useful way, never the way?

But I think Heller, in this case, revisits a lot of those questions, and I'm just curious your thoughts. Becoming more of a critic of originalism, I think textualism, to the extent it departs from originalism, is a more rational method of interpretation. I think originalism in the abstract made a lot of sense. You know, you start with the text, but how do you know what the text means? You look to the history around when that text was adopted. And look, certainly part of textualism is going to

rely on some amount of what words mean. But I think this opinion highlights the limitations as originalism has actually sort of had to have the rubber hit the road. It was like a really fun game when the court didn't have enough people to actually apply real originalism. But now that it does, I think it is not as objective. It's not as objective as we were told it would be. Ah, no, like the courts right now are activists because they're just applying their own preferred methodology to get to their preferred outcome. Originalism will just be objective and we'll get to all sorts of policy outcomes we disagree with through a legal process that we believe in. And Justice Scalia was really proud of when a case would turn out differently than his preferred policy outcome as they did in a lot of

the criminal defendant cases. I don't see a lot of that happening these days. And so if originalism always comes out the way that you want it to, then I don't think it's much of a methodology. I'm going to agree with a lot of that. I think a hardcore, like an academic originalist, if you had an originalist, a professor who studied originalism

for much of their career, they would say originalism was never going to be say, originalism was never going to be, and originalism was never going to be as precise. It was always, it's always somewhat more subjective than it's been sold to the public. So I think sort of if you're talking about the way the conservative legal movement has talked about originalism is it's almost like science. You know, what you do is if you just read the congressional record or if you're reading the Federalist Papers or you're reading the founding era debates,

you can figure out what you can resolve ambiguity. Well, not really, not really as this history demonstrates. That doesn't mean that there isn't a weight of history or there isn't a better reading of history, but the idea that there's going to be an objective or Empirical originalist answer to a contested question of law has been oversold But I'm with Sarah you got us you got to start with text You just got it and and good originalists would say yes,, David and Sarah, we start with text and we really

only go to, you know, history and tradition if text is ambiguous. That that would be the sort of the better read of what originalism is. If there's something ambiguous, if there's some shades of gray, then we go to history and tradition, whereas a more progressive jurist might go towards, you know, something else, sort of, you know, what's the general overarching principle of this moving towards equality? Or, you know, they're going to have a different thing that they're going to go to in the face of ambiguity than an originalist. But to me, you just got to start with text. And one of the—

But that's like the Bostock example. You can start and end with text. There wasn't ambiguity. And it came to a policy outcome that Justice Gorsuch probably doesn't agree with. That's a great example of textualism being a less subjective, at least, methodology. And I think at that point, that's the best we can hope for is less subjective. And, you know, Heller, I thought at its strongest was when Alita, I mean, Scalia was saying, look, when the phrase right of the people is used in other places

in the Constitution, it's unmistakably referring to an individual right. It would be an aberration in the text just from what the text means to say right of the people doesn't mean something individual. And then the words keep and bear. Now, the ambiguity, of course, is bear what under what circumstances and where. That's where you're going to have ambiguity. But with this case, for example, how could you possibly say that I have a right to bear, a right to bear when I have to convince a bureaucrat that I have a need to bear. So it gets very, you know, that's where I think text was so strong in this, in this circumstance, stronger than history. I like this group. Hi, thank you. My question is that after Heller, we saw the lower courts do a lot of random things and be irresponsible with intermediate scrutiny to the extent that Justice Thomas said that the

Second Amendment was a constitutional orphan. Today, after Bruin, basically, based mostly because this was a narrow decision and also because of the toxic climate that we're in right now, do you think that we're going to see lower courts do the same thing or have they learned their lesson? They will do the same and more. Yes, they'll do the same thing. Like one of the more interesting things you can do if you're really interested in sort of the development of the law of gun, development of gun rights and gun jurisprudence. Look at what happened in D.C. after Heller. So basically what D.C. does is it just tries to figure out ways to evade the decision. And so there's like a Heller 1 and there's a Heller 2. And so on the legislative side, I think what you're going to see is you're going to see state legislatures becoming very creative in creating

licensing regimes that place a lot of roadblocks and barriers. On the judicial side, it's really up in the air to me because the guidance here is not super specific, and that's an understatement. I mean, you've read the, you know, I read to you the words from the Roberts-Kavanaugh dissent. We've got a lot more, there's going to be a lot more suing going on in this country. And the bottom line is post-Bruin is, I think, functionally much the same as the life,

the reality of gun rights in this country is very much the same as the life, the reality of gun rights in this country is very much the same on a practical on the ground level post-Bruin as it was pre. And that the reality pre-Bruin was that the primary way you're going to have your gun rights protected is by your state legislature. And so that's how gun rights have expanded in this country. Heller was very narrow. This is pretty narrow with a lot of ambiguity. But this country went from a country where the large majority of

states were may issue to the overwhelming majority where shall issue entirely by operation of politics. And so I think that's still where the real energy is going to be, both for and against gun rights, is still going to be mainly political as opposed to judicial. But don't worry, in the next 72, 96 hours, we will not be talking about this case anymore. True. True. In a way, this huge fight over Carson and over Bruin

is kind of like the preliminary round to the UFC match before Conor McGregor walks out. Well, for the Twitter crowd, it is, and we've seen this, I think, building over the last five years, there's an interest in delegitimizing the court before the court decides something you really disagree with because then if everyone just thinks the court is already not legitimate, you can discount the opinion itself.

So there's a reason that Carson created such an uproar of a case that affects barely any human being. And if the Coach Kennedy case comes out tomorrow, oh man. I don't think it will. No. I think we're going to get EPA, Coach Kennedy, and Dobbs next week. Oh, man. God help us all. All right.

I'm really dreading it. Hey, thank you guys for coming out and doing this with us. So you mentioned, David, the fact that over a period of time, the vast majority of states went from may issue to shall issue strictly by operation of politics. And I'm curious as to how you think the operation of politics and its relation to the law affects or relates to sort of our current state of political division in the United States? Sort of is there a way out of it through state-level politics?

Is it going to take other kinds of measures? What are both of your takes on this issue? So my general view is I'm a big fan of federalism. That's my general view because we have to de-escalate the intensity of national politics when we feel like everything that matters to us is settled by this one centralized authority and the centralized authority that, especially when it's then located mainly in the presidency. And I don't know about you guys, I've never lived in a swing state. My whole life I've been in a deep blue state or in a deep red state. So I'm 53 years old, you know, prime tweeting age, and I've never cast a meaningful vote for president, and the presidency is the most powerful branch of government.

And that's an inherently sort of destabilizing kind of, that's an inherently destabilizing construct because you have millions upon millions of people who begin to feel deeply disconnected from the operation of their democratic republic. And so federalism is one way to cut through that. By pulling as much as you can locally, you can have a real voice in the things that matter to you. So gun rights, gun policy has been one where you've got a lot of variation between the states, and it's variation where local activism has been very successful on both sides, red and blue. And I think that has a de-escalating component. Now, something has happened in the last 18 months or so, or, you know, more than that, but especially intensified in the last 18 months that has shaken my confidence

that federalism really offers this way through. And that's when people start engaging in local politics to fight national battles. So in other words, I read something about CRT in San Francisco. So I'm running for school board in Franklin, Tennessee to own the libs in San Francisco. You know, so there's this sort of intensity about politics that is rooted in a national fight, but doesn't have bearing on the local issue. And so you're beginning to see a lot of that. And this is in generating a lot of performative legislation, performative legislation in both red and blue states, by the way.

I mean, California, gosh, is like a market innovator in performative legislation. It's a place, you know, look, it's got travel bans on states for state travel, has economic boycotts of states that it doesn't like. And it's just, and then you're, you're seeing red states stepping up and doing much the same thing. And all of that's local politics, but it's local politics fighting a national fight. And, and that I think is, I didn't see that coming so much. And I probably should have seen that coming, but I'm much more bullish on local politics to deal with local issues. And one of the reasons why I've never been a fan of the administrative state is it is so fundamentally at odds with the intended structure and balance of power in our constitutional government, which a trigger phrase

for me, if you all listen to advisory opinions, is co-equal branches of government. No, Congress was supposed to be supreme. It can fire the president. It can fire the Supreme Court. It's initiate. No, not one dime can be spent that isn't initiated through Congress. But it is now BE SPENT THAT ISN'T INITIATED THROUGH CONGRESS, BUT IT IS NOW THE WEAKEST BRANCH ENTIRELY ON ITS OWN, BY ITS OWN VOLITION AND ACCORD. I HAVE ONE FOLLOW-UP QUESTION. YOU WERE BORN IN KENTUCKY. BORN IN ALABAMA. IN ALABAMA.

THERE'S A KENTUCKY PART OF THIS, THOUGH. YOUR FAMILY? BORN IN ALABAMA, RAISED IN LOUISIANA AND KENTUCKY. OKAY. AND THEN LIVE IN TENNESSEE NOW. BUT THEN I'VE ALSO LIVED IN NEW YORK. YEAH, YEAH, BUT FORMATIVE YEARS, LIKE THOSE WERE YOUR ADULT YEARS. FORMATIVE YEARS YOU WERE've also lived in New York. Yeah, but formative years, like those were your adult years. Formative years, you were in those states.

Yes, yeah, SEC country. Okay, do you want to explain why you say you all? Sorry, I said you guys. No, you said you guys just now when you were talking about that, and I found it really disturbing. I don't know. I say y'all. No, I say y'all all the time. Okay, well, you didn't. You said you guys, and I didn't know. I say y'all. No, I say y'all all the time.

Okay, well, you didn't. You said you guys, and I didn't like it. Wow. I apologize. Okay, thank you. Sincerely. I appreciate that. That was a betrayal of my upbringing.

I wonder if you both might be willing to preview thoughts you might be having now of the pending Dobbs case, what you are looking for and how it might differ from the leaked draft, or just any general thoughts that I'm sure you're formulating now in preparation and so forth. And secondly, I wonder if you, what we can expect on your schedule, the summer schedule, so post court, like can we expect the captain of the US curling team to come back, will COURT, CAN WE EXPECT THE CAPTAIN OF THE U.S. CURLING TEAM TO COME BACK? WILL THERE BE A SEMINAR ON AQUAMAN? LIVE FROM BUCKY'S?

WHAT KIND OF THINGS? THANK YOU FOR THAT IDEA. THANK YOU FOR THAT. TRULY EVERY NIGHT I GO TO SLEEP AND I TURN TO HUSBAND OF THE POD BEFORE ONE OF THE HANDDOWN DAYS AND I SAY NO WHAMMY, NO WHammy, no whammy, no whammy, no whammy. I am dreading. I don't have any like actual legal thoughts on Dobbs at this point. I am just dreading it. I'm dreading it for the country. I'm dreading it for the court. You know, I'm going to sit there as everyone else will and immediately go redline,

assuming that it's an Aledo majority, go redline it with the draft that we had. But that's about my only plan other than somehow hoping. I was telling David, I compare it to being at the end of a pregnancy, like when you're in the last week and you're very uncomfortable. You sort of, are looking forward to not being pregnant anymore. But the idea of having a baby is so terrifying. You're like, nope, I could do this forever. This is fine. I will continue doing this.

That's what I feel like. I think of, in true Tolkien geek fashion, do you remember that scene? I'm sure. Who has not seen the Peter Jackson adaptation of Lord of the Rings? Yes, what very brave soul. You may leave now. No, sir, you are my guest, and it is a privilege to have you. So there's this point where Gandalf is on the ramparts of Minas Tirith,

and you can see the gathering storm, and he says, it's the deep breath before the plunge. And that's how I feel. It's the deep breath before the plunge. I was just reading a tweet on the way in where a pro-life activist had tweeted that DHS is contacting Catholic churches and crisis pregnancy centers to prepare them

for a potential quote day of rage after Dobbs. So that is deeply disturbing. Also there's such weird anti-Catholic bigotry like the Catholic church is behind this. I mean evangelicals it makes no sense to me. I mean my Presbyterian brethren have done our bit here. So anyway, as far as the opinion itself goes, I have two main questions. One, which I'm pretty sure, at this point, I'm pretty sure it's the Alito opinion. It's going to be an Alito opinion. The first thing I'm going to look at when the opinion comes down, I'm going to look at those initials.

If you go to the orders list of the Supreme Court or the opinion list, you'd see the initials of the person who wrote the opinion. So I'm going to be looking for that initial. If it's not Alito, wow. Okay, wow. Because then it's going to raise this issue of, did the public pressure change the outcome? You know, which would be very bad for the Supreme Court. And let me stop slacking. And so I was sending our show notes from the cases.

I was sending our show notes from the cases. So that's one question. Is it Alito? If it's not Alito, my goodness, that opens one whole can of worms. Now, if it is Alito and if it is the opinion that's roughly what we've already read, I'm going to be looking at two main things. One, does Alito amplify and sort of buff up the section that deals with the impact of this opinion on other cases like Obergefell and Loving and Griswold. Because that is the huge fight that erupted after the leaked draft was what does this mean for Obergefell? What does this mean? Because they are all rooted

in the same 14th Amendment substantive due process kind of analysis. So I'm going to be looking there. and substantive due process kind of analysis. So I'm going to be looking there. Does he say anything else? And then the other thing I'm going to be looking at is he's going to respond in some way to the, what are the, you know, what's the response to the dissents? But that's less interesting to me than what is he going to say about Obergefell, Loving, Griswold?

Is it going to be anything more than what's already there? Did they even get to respond to the dissent? Because if I'm the dissenters and you think that the conservative clerks are out for revenge, would you circulate your dissent right now? Wouldn't that just, anyway, we'll see. So right now the NBA draft is going on, as you all know. And let me just give you some really tweeting etiquette tips. So my favorite follow for the Memphis Grizzlies is Chris Vernon,

who is a podcaster for The R the Memphis Grizzlies is Chris Vernon, who is a podcaster for The Ringer and Grizzlies broadcaster. He just tweeted in all caps, WOW, with four exclamation points. I hate when people do that because it's useless. Like you need to follow up with a tweet to tell us what you're exclaiming about because otherwise, like literally, like especially during the January 6th hearings that people would be like, oh, no. What? Did something happen? Yeah.

Yeah. Wow, four exclamation points. I mean, does that mean we traded up to four? Tell me. I don't know. Don't ever do that. Don't ever do that. And on that note of important life lessons from Sarah and David.

That's it. So thank you guys for coming. Thank you listeners for listening. And don't worry, I am keeping a list of the opinions because at this point, tomorrow will be an opinion hand down day as well. I think we can guess that Monday will be, there will be cases that we obviously can't get to. I'm keeping a list. We'll get to them. It includes the Ray's Judicata case that we said we were going to get to before as well. Don't worry. It's all on the list. So you also asked what we're going to do after.

And A, we've got then a backlog that we're going to have to get to. We're going to have some Supreme Court term roundup guests. And then you're right. We have got things lined up for August, our August fun month. And I don't know, each... We've got a super cool novelist things lined up for August, our August fun month, and I don't know, each... We've got a super cool novelist

already lined up with one of my favorite historical fiction books I've ever read. Yeah. I've got a top expert in their field that is... I don't know what...

Are we going to get your fungus expert? No. I'm telling you, this fungus guy has been so hard to get. It's easier to talk to Dwayne The Rock Johnson than this fungus guy. Look, just in case he's listening, Merlin Sheldrake, your name alone has inspired me because if you name your kid Merlin Sheldrake on the day that they're born, what else are they going to be other than a mycologist? Is that what a fungus expert is called, a mycologist?

Yeah. It's not an expert in Mike. Oh, my God. Yeah. Oh, David. But we have many other experts in their fields that I think are going to be really fun. Yeah. No, I'm looking forward to it.

We're going to have good people. And I do want more space content as well because we're going to be coming up on the next launch of the SpaceX Starship. Okay. Which is the entire reason. I don't care. You cannot measure my lack of care over who owns Twitter by an electron microscope. I do not care. I do care if Elon Musk is distracted from getting to Mars.

I do care about that. All right. Thank you, guys. The peacock is now on the roof. That's a great close. So thank you for listening, and we will be back on Monday. Tuesday. Tuesday.