Advisory Opinions - The Problem With 'History and Tradition'

Episode Date: February 7, 2023

In an episode dedicated to our most reasonable and law-abiding listeners, Sarah and David examine a Fifth Circuit's ruling that took the Bruen test to the next level. Following "history and tradition," the court found that barring domestic violence offenders from owning a guns is unconstitutional.  Our hosts have thoughts. Also: can our hosts take on the Murdaugh murder case? Show Notes: -CNN: Law barring people with domestic violence restraining orders from having guns is unconstitutional, court rules -Murdaugh Murder Case: New Evidence  -Trailer: Low County, The Murdaugh Dynasty Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions, the preeminent flagship niche podcast for law from the dispatch. I'm your host, Sarah Isger, joined by sometimes guest David French. Thank you for having me, Sarah. You're so welcome. And boy, we're going to do a deep dive into that Fifth Circuit panel opinion 922G that allows people subject to a domestic violence restraining order to have their guns taken away. Struck that down. Very interesting.

We're going to go sentence by sentence, word by word. That's my plan. Then Yale's anonymity problem, David Latt sent out a clarion call for all of us to think hard about how we feel about anonymous complaints. And I want to honor his request here on the pod. And finally, the murder case of Alex Murdaugh is continuing this week. We haven't talked about it yet. David, you and I aren't great at sensationalized trials. We've proven that. But nevertheless, just a little dabble,

a little toe in the water. But first, some news of the day. David, we shot down a balloon over the weekend. We did. Personally, we honored it in our house. We did some Team America singing. Watched the video. Pretty exciting stuff.

I did appreciate the one video of some people all along the beach in Myrtle Beach as they're watching the F-22 shoot the missile. And as someone put in the comments, and I also was reflecting on this, they made it sound like

this was some sort of dogfight. Like maybe we weren't going to hit the three bus size balloon with a missile. I think, I think our guys were always going to win balloon versus F-22, but curious about your thoughts. Yeah. You know, I have sort of two parallel thoughts. One is, let me just say, few things have better illustrated the discourse of our times than the immediate expertise around high altitude surveillance balloons displayed by every single person who has strong political opinions. displayed by every single person who has strong political opinions. And then I started getting tweets, Sarah. Oh, Mr. New York Times, I noticed your deafening silence about the balloon. Yeah, I'll tell you. I also have really kept to myself about the balloon.

I, of course, would like to shoot down anything over U.S. airspace. Chinese surveillance balloon, top of my list. Also, it just sounds fun. Our F-22s should get more time shooting things. All of that's great. And then I talked to a friend of mine, a former DOD senior official, and she raised some interesting points. And I was like, fair, fair. I don't know what I'm talking about. Yeah, there's just so much we don't know. Were we collecting intelligence from the balloon as it transited? Was it something that we realistically thought had to be shot down sooner

as a matter of national security? But on the other hand, as it transited allegedly, you know, again, everything was so speculative over our missile fields. But at the same time, were they spotting our missile fields? Well, you can see them on Google Maps. Like, you know, how much intelligence was really gathered?

Was this like some sort of elaborate, weird trolling? But there's just so much we don't know about this. Although the video, here's one thing I do know. The video of the shoot down was super cool. Loved it. Loved it. So look, and then the other thing is, I did think what was really fascinating

about the whole thing was how it kind of reopened a lot of the really fascinating history of surveillance in the Cold War era and the sort of shadow surveillance war that was sort of fought throughout the Cold War. How many times did we do overflights? And I'm not one of these people who says, well, if we do overflights, they get to do overflights.

That's not my philosophy. We shoot down theirs. They can try to shoot down ours. And we hope overflights, they get to do overflights. That's not my philosophy. We shoot down theirs. They can try to shoot down ours. And we hope they don't, right? And so, really fascinating Cold War history. But as far as how we responded to it, how we handled it, then it's what did the Trump administration know and when did it know about alleged overflights? I am taking a let's wait and see approach to this. And I will just

tell listeners, there is one thing of all of the things that I'm not expert on. I would say the thing I'm most not expert on is the efficacy of high altitude surveillance balloons, which I must confess, I did not even know existed until about 96 hours ago. See, and I was going to say FERC. I am most not expert on the Federal Energy Regulatory Commission's regulations, which inevitably, there would always be a FERC case to like come to the fifth circuit. And it was like, nope, not it. Nose goes like not touching FERC. See, I can't say that about FERC because I knew FERC existed. Touché.

Yeah. So the last, literally the last thing that I thought would be, and this is my own, you know, my own ignorance. I'm just displaying my own ignorance. Like the last thing that I thought would be, and this is my own, you know, my own ignorance. I'm just displaying my own ignorance. Like the last thing that I thought would be some sort of super effective thing would be like a high altitude surveillance balloon given all of the other technology. But now what have been explained to me, I get it.

But the thing that I wanted, Sarah, this is what I wanted. And I now know it was three buses aside. You couldn't do it. But you remember the high altitude guy who drove out of a balloon? Bomb guard. Yeah. Yeah. And he was Red Bull sponsored.

And it's one of the coolest videos on the internet. I wanted them to send him up there and grab the balloon. But then I realized it's like three buses. It's not like the guy from Up. No, it's not the guy from Up. It's not the guy from Up. And then... I think you've really established

you're not expertise in this subject. I'm comparing this thing to the guy from Up. I mean, that just says all that you need to know. Yeah, it's weird that Pixar wasn't brought in for some expertise. But look, it was Independence Day. It was Team America all wrapped into one. So congratulations, America.

We did it. Yes, we did it. And David, you had your inaugural column in the New York Times. I did. I did. You know, and it's funny, Sarah. I've written a lot of columns over the years. A lot

of columns. I've never been more apprehensive before a column publishes than I was, you know, like going to sleep Saturday night because I finished it, finished it, and I just need to issue a public apology right now to Andrew Egger, editor at The Dispatch. My column is going to publish every Sunday morning at The Times at like 5 a.m. And then I'm gonna have a newsletter, I believe on Thursdays starting later this month. And so that's exactly when my Sunday column

would publish at The Dispatch and let you all in on a little bit of insider knowledge. There were times I would get my column to Andrew for editing and fact checking at 08 PM, Saturday night. I can't do that at the times. They like don't want me making people work on Saturday night. And so I put it to bed by like 4 or 5 p.m. on Friday. Whoa. And then, yes, I know. And so then, you know, I'm just sort of waiting to see what this is going to be like.

And I got to say, I was just really sort of grateful for the reaction of Times readers. I mean, there were the folks who are- Give us the top line. There were folks who were in a vigorous disagreement, as you might expect. No, no, no, give us the top line of your thesis. Oh, the top line of my thesis.

So the top line of my thesis is I took two institutions with the largest partisan gaps in approval in the US, aside from the presidency, which doesn't really count because that just swings based on whoever's in the U.S., aside from the presidency, which doesn't really count because that just swings based on whoever's in the office. And they are the police and higher education. And Republicans overwhelmingly approve of the police. Democrats overwhelmingly approve of higher education. And yet I see systemic issues in both. And so I was trying to explain to people why there can be such a partisan gap,

even though there is a presence of an abundant amount of evidence of systemic problems in both institutions. And I'm not equating censorship in the classroom with shooting somebody unjustifiably. Like those are not the same things, but there's a lot of evidence of systemic problems and why is there such trust on one side or the other?

And then I was talking about how whenever an institution sort of codes as ours on a partisan basis, this is our thing. This is our group. We are reflexively defensive of it if it's ours. And then if it's theirs, like their group, we're like reflexively prosecutorial. So if something is ours and you expose a scandal,

well, that's a few bad apples. It's isolated, no larger issue here. apples. It's isolated, you know, no larger issue here. But if it's theirs, then it's aha, it's systemic. This is rotten. And so I just wanted to kind of challenge readers, especially readers who are partisan, that if a giant number of people on the other side are saying an injustice is being committed here, or injustices are being committed here, to carefully consider whether or not you are reflexively defending an institution, as opposed to sort of looking at it in all of its fullness. I did appreciate, I mean, Jonathan Shade put it so well. He said, people tend to assume, summarizing your piece,

people tend to assume mistakes by our side are atypical. Mistakes by the other side are characteristic. Yes. Perfect. Well, that was a lot shorter way of saying what I just said and what I just rambled about. All right, David, should we do some Fifth Circuit law? Oh man, Sarah.

So can I just say, I just want to say one thing for listeners. I do not in fact have some sort of divine gift of prophecy. It was so weird. So last podcast, I said, I want to talk about the history tradition test in Bruin. This is again, the second amendment case recently decided out of the Supreme Court. I'm worried it's not working. I'm worried it has real problems.

And then boom. And then boom, this. So yeah. So Sarah, take it away. Okay. This is a panel opinion from the fifth Circuit. It's Judge Edith Jones, Judge James Ho, and Judge Corey Wilson. Corey Wilson writing for the panel, and then there's a concurrence from Judge Ho. David, as you pointed out, Judge Ho, the most talked about judge on this podcast, certainly this month, but frankly, at some point, it's going to be this year and it's only February. Yeah, we got to get him on the podcast. We just have to. So I really do want to go through this opinion a little differently than we normally do a little bit more like a Supreme Court opinion. And I just want to

like walk through it. So I'm going to be doing a lot of reading from the opinion. And then, you know, pivoting to you, David to get sort of reacts as we go. So let's start with the facts. Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. We're not gonna go to the details of those shootings. Officers identified Rahimi as a suspect in the shootings and obtained a warrant to search his home.

They found a rifle and a pistol. He admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5th, 2020 by a Texas state court after Rahimi's alleged assault of his ex-girlfriend. The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm. A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of 18 USC 922G8. So 922G, you're going to hear about a lot anytime you're talking to federal prosecutors because this is the, I think what colloquially you call the felon in possession. So anytime you find a gun on a bad guy,

you're hoping that there's something in 922G that they have violated. They're a felon, for instance, not allowed to possess a firearm. 922G8 in this case is that domestic violence restraining order. I'm going to read parts of it. It shall be unlawful for any person who is subject to a court order that A, was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate.

B, restrained such a person from harassing, stalking, threatening an intimate partner or a child of such intimate person. C, includes a finding that such person represents a credible threat to the physical safety of the person or their child, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such an intimate partner that would reasonably expect it to cause bodily injury. All right, so Rahimi moves to dismiss, saying this is unconstitutional. He was denied. He pled guilty. But then the Bruin case happens. This is the gun case, David, that we talked about at length. This is the history and tradition. This is the next thing after Heller, right? From to keep arms, now Bruin is to bear arms. So it comes back. They agreed to revisit

it. Okay. So on review, this is Corey Wilson. First, the court addresses the government's argument that Rahimi is not among those citizens entitled to the Second Amendment's protection. So, for instance, according to the government, Heller and Bruin add a gloss on the Second Amendment that restricts its applicability to only, quote, law-abiding, responsible citizens, quoting Heller, and ordinary law-abiding citizens, citing Bruin. Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct and by the domestic violence restraining order issued against him,

he falls outside the ambit of the Second Amendment. Therefore, they argue 922 G-8 is constitutional as applied to Rahimi. David, I'm going to tell you, this was the most persuasive part of the panel opinion. Because I- Least persuasive. Sorry, no.

Most persuasive part of the panel opinion. No, least persuasive. What? Yes. Can we go continue? Oh no, no, we're stopping right here. Okay. So to say that one who isn't orderly and law-abiding is not protected by the First Amendment,

by, sorry, the Second Amendment, I think actually does raise problems. What if it's a speeding ticket? Can such a thing be applied to the First Amendment? What if you're not responsible and law-abiding? Can we take away your right to free speech? I don't think that we just carve that out of the Second Amendment, but you disagree. Well, I disagree because that's what the Supreme Court said in its opinion, okay? So you might say, I don't, I think that's vague and broad language, Supreme Court. I think that that Supreme Court, I see problems with that formulation

because of the speeding tickets and whatnot. But the Supreme Court said law-abiding citizens, responsible law-abiding citizens. And I understand that there are gray areas where if you're a speeder, it seems to me, I found that really unpersuasive because there's nothing from the context of the Supreme Court that would indicate that, well, the fact that I was caught going 75 in a 65, therefore means I'm not responsible and law abiding within the meaning of the term

as defined for firearm possession. But when I've been subject to an agreed civil restraining order for harassing and stalking, it is almost impossible for me to conceive that you fit within responsible and law-abiding in the context of firearm ownership. And so I felt like that was sophistry a little bit, to be honest, Sarah. Obviously, obviously that phrase, which again, is from the Supreme Court, which is precedent that the Fifth Circuit, that is supposed

to be pretty darn important to the Fifth Circuit. I don't think the Fifth Circuit can just sort of say, well, speeding tickets, I mean, come on, as if the Supreme Court didn't think about this. And so I just felt like, what are we doing here? And that's even before we get to the text history and tradition, I was thinking, it's obvious. It's obvious to me that the Supreme Court meant that if you're talking about somebody who's a threat to other people as manifested by, I don't know, court freaking orders, that this is not responsible and law-abiding. So to me, I was reading this and I was thinking, under no reasonable interpretation of that phrase, are they talking about somebody with speeding tickets? Under no reasonable interpretation are they talking about somebody with parking tickets

or late paying utility bills? Yes. Wow. Okay, no, I disagree with you on this because I think here it's separate from the history and tradition test, whether there were analogous laws at the founding and at the time of the second amendment,

all things we're about to get to, by the way. This is only a question of whether you even need to get to that because the second amendment itself simply allows the government to take guns from people that aren't law abiding. And yeah, I guess I think that that language was meant to, the language from the Supreme Court opinions, was meant to allow room in the history and tradition test to carve out types of people who can be banned from owning guns, but not that they aren't protected by the Second Amendment.

Those are distinct. One is sort of an affirmative defense versus an exception versus not having the protection in the first place. But again, it's law-abiding responsible. It's not just pure law-abiding. Like, Sarah, I'm just to go ahead and confess right now. I frequently speed.

Every day. Oh my God. I'm a terrible speeder, honestly. I try to do, but see, I'm a responsible lawbreaker because my speeding is done quite safely. That is not how that works. Okay. Sort of by definition. When you're trying to explain the difference between

de jure crimes and malum in se crimes, like, yeah, no, speeding is just, it's in there. Like, it's just written. By definition, if you are speeding, it is not safe. Well, continuing. Now they say that like, you can't just because he's not law abiding, say that he's not protected by the second amendment.

Second amendment doesn't apply to him. Therefore 922G or whatever else you want to limit his second amendment rights are fine because the second amendment doesn't apply to someone who's not responsible and law abiding. So now we move on to the, what we've been calling, what everyone's been calling the history and tradition test. But back to the opinion. Bruin articulated two analytical steps. First, courts must determine whether the Second Amendment's plain text covers an individual's conduct.

If so, then the Constitution presumptively protects that conduct, and the government must justify its regulation by demonstrating that it is consistent with the nation's historical tradition of firearm regulation. Only then may a court conclude the individual's conduct falls outside the Second Amendment's unqualified command. To carry its burden, the government must point to a historical precedent from before, during, and even after the founding that evinces a comparable tradition of regulation. We are not obligated to sift the historical materials for evidence to sustain 922 G8. That is the government's burden. Continuing, the government need not identify a historical twin. Rather, a well-established and representative historical analog suffices.

The Supreme Court distilled two metrics for courts to compare the government's proffered analogs against the challenged law. How the challenged law burdens the right to arm self-defense and why the law burdens the right. David, okay, just let's start at the very beginning. Do you think that that's a relatively accurate reflection of the Supreme Court's test? Whether you like the Supreme Court's test or not? Yeah. Okay. No, I do.

I do. And now we're getting into the point where I feel like the Supreme Court has put lower courts in a bind. So I do think that that is an accurate reflection of the Supreme Court test. So that you absolutely, and this is going to get into the Chesterton's fence point that I made last, last, well, we can get to that later. But I think that it is an accurate reflection of how the Supreme Court wants the history and tradition test to be applied because on its face, the Supreme, the, the Constitution says you have a right

to keep and bear arms. So that's right there in the text. And so therefore, if that right is going to be limited in any sort of way, then what's the test for the propriety of the limit? And the test here is history and tradition. And, you know, we've talked about actually this exact 922 G8 situation in a district court opinion that also struck down 922 G8. Now that one I thought had some procedural whiffle about whether it actually had been an adversarial process by which the restraining order had been issued, which is clearly required by 922 GH, just by its text. But in that one, for instance, in the history and tradition test, sorry, I'm laughing because it's so absurd, this idea that women weren't protected from domestic violence back at the founding, therefore it didn't pass the history and tradition

test. And A, I thought there were some problems with that from a history and tradition standpoint, but also if that's the history and tradition test, I thought we had a problem with the history and tradition test. Correct. Yes. Like either way. Now, I think before we get into all this, the fifth circuit at no point says this. So that was good. There's some other problems though. So here I go. You'll see why I mentioned that before this paragraph. When the challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Moreover, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence

that a modern regulation is unconstitutional. David, I think those are two really important points about applying the history and tradition test, i.e. the problem existed, but they didn't have any regulation like this to address it, maybe it's unconstitutional. Or they did address it, but it was a totally different way to address it. Maybe it means your regulation is unconstitutional. I think that that would fail like the LSAT logic problems.

So first of all, let's use this exact example, but using that other district court opinion. Let's use this exact example, but using that other district court opinion. General societal problem that has persisted since the 18th century. Well, domestic violence certainly has existed since the 18th century. The dawn of humanity. Yes, but it wasn't viewed as a general societal problem.

As the district court judge pointed out, it was viewed as a church problem, as a private problem. Yes. So does it fit into this or not? Because he was right. There is no similar historical analogy on domestic violence restraining orders from the time of the founding.

So according to this test then, it never was, you know, it's not consistent with the Second Amendment. I mean, we're talking about a history and tradition where women and children in many ways were viewed as essentially so subordinate in many ways as to be close to the property category. Oh, I mean, just look at different marriage laws about dowries and property ownership. I mean, if not chattel, chattel adjacent.

Adjacent. Yeah, of course, to be clear, we're not saying chattel. We're not saying chattel, but we're talking about a position of inferiority to the male head of household as to be mind-blowingly unrecognizable to our modern conception of how we treat family relationships. And so while I would say that actually say killing a spouse or children was recognized in the law and dealt with harshly. There were a lot of activities short of killing that were not recognized in the law and not dealt with essentially at all, as you indicate. And so it gets,

that's where in this circumstance, the history and tradition test becomes extremely problematic. No, David, it's very easy. It wasn't a problem. Therefore, it's inconsistent with the Second Amendment. Done. We solved it. All right.

Oh, right. Yes. So let me walk through some of the government's analogs that they came up with from the history and tradition test. Again, I'm back to the opinion here. One, English and American laws providing for disarmament of quote, dangerous people. Two, English and American going armed laws. Three, colonial and early state surety laws. So we're going to take those in order, same as the opinion did. Under the English Militia Act of 1662, officers of the crown could seize all arms

in the custody or possession of any persons whom they judged dangerous to the peace of the kingdom. As Judge Wilson goes on to explain, however, this was actually part of what the Second Amendment was meant to address. So that, you know, the idea that the crown could simply determine you were politically dangerous to the crown could simply determine you were politically dangerous

to the crown and take your guns right well if that's and this is from you know the act of 1662 i am somewhat persuaded that a lot of the bill of rights is to address wrongs from english law therefore yeah an act from 1662 on the one hand you could argue it was encompassed in the Second Amendment. On the other hand, you could argue the Second Amendment was meant to supersede it, abrogate it, whatever you want to call that in English common law. And in a page or so, Judge Wilson says, nope, it's the latter. Second Amendment was meant to supersede, abrogate the 1662 law. Are you persuaded by that, David? the 1662 law.

Are you persuaded by that, David? I was persuaded by the government's case, Sarah, from basically start to finish. Okay, okay. But what about this concept that like, if you go to some 1662 English law, it could cut either way in terms of our laws. No, I'm not. Let me put it this way. If

you have to go to 1662, as Bruin is telling you to, they did the best they could considering in 1662, you were not going to find an analog because women and children were treated horrifically by the existing common law. So what was the best that you could do was, well, it was pretty obvious in many ways that when somebody was deemed a threat to the public, that, and look, I get the critique of the 1662 laws and the older laws, because the threat to the public was often and the older laws because the threat to the public was often sort of deemed more like the threat to the government or the threat to the established order but you're looking at a situation where a human being is so well established as a threat like as you were reading in the facts, this was an agreed protective order. You can't argue that he was deprived of due process

or railroaded in the proceedings. It's an agreed order. And so, yes, if you're looking for, are there analogs historically to legal regimes where a person is credibly and through due process a threat, okay, yes. And of course, there's not going to be an analog because as we've just discussed, Sarah,

children and spouses were, specifically wives and children, were chattel adjacent. All right, David's not playing my game. So fine. I'm not. David. I'm so over it, this case, this opinion. I am persuaded

that the 1662 Militia Act is not a good historical analog for 922 G8. However, the government next points to laws in several colonies and states that disarm classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans. These laws disarmed people thought to pose a threat to the security of the state due to their perceived lack of loyalty or societal status. Despite some facial similarities in how these dangerousness laws worked,

they operated to disarm covered people. There were also material differences. For one, they disarmed people by class or group, not after individualized findings of credible threats to identify potential victims. Not sure why that makes it worse. I mean, what? Right. Here there's an individual. So after an individualized finding okay two even more why they disarm people was different the purpose of these dangerousness laws was the preservation of political and societal order not the protection of an identified person from the specific threat posed by another therefore laws disarming dangerous classes of people are not relevantly similar. Okay, I just want to remind everyone that unlike the 1662 Act,

which again, I think you can argue like, man, we're just not going to take stuff from England in 1662. These are incredibly similarly worded laws to the 1662 Act that are in the colonies at the time of the founding. So it actually undermines the argument that the 1662 Act isn't applicable, by the way, because clearly the colonies thought that very much they could keep up these dangerousness laws. And as we just said,

oddly the argument is that they weren't specific. They were just general types of people, whereas this is an actual individualized finding of dangerousness makes it not an analog. I think that is asking far too much of a history and tradition test. Well, and also, weirdly enough, under the history and tradition test, that would indicate that a class-based restriction on firearms would be okay, but a specific identifiable with due process finding of dangerousness is not okay. So in other words, you have a law that cures the problems of a class based restriction on the ownership of firearms, which I think would be flatly unconstitutional

and should be flatly unconstitutional. So these colonial era laws were horribly deficient. And the contemporary law cures the deficiency of the colonial era law, but under a history and tradition test, well- It's not the same, therefore it's different. Under a history and tradition test, class-based is going to be okay. Okay, keep going. Okay, finally, government offers two proposals that emerged in state ratification conventions considered during the proposed constitution. A minority of Pennsylvania's convention authored a report in

which they contended that citizens have a right to bear arms unless for crimes committed or real danger of public injury. Samuel Adams proposed a qualifier to the Second Amendment that limited the scope of the right to peaceable citizens.

Now, of course, neither of those were adopted into the Second Amendment. David, which way does that cut for you? So again, Neither of those were adopted into the Second Amendment. David, which way does that cut for you? So again, this is an interesting point, I think, about things like legislative history. I am a big skeptic of legislative history.

I'm a skeptic of applying sort of proposed amendments that were considered and not adopted. I think that was among, to the extent that there was anything persuasive in the opinion, that was perhaps the most persuasive because it was talking about, you know, an actual discussion of limitations on the right

that was rejected. And I do think that that is more persuasive, certainly than the other elements of it. But, you know, as I believe it was Scalia who had long expressed sort of this idea of, and readers correct, listeners correct me if I'm wrong. And by the way, have you noticed that we've been doing this podcast more than 300 episodes and every time I start by saying readers and correct. Every single

time. Anyway, I know that was the most interesting part of the opinion. I think those type of we'll call them legislative histories can cut either way, right? They're rejected because people don't want it as part of the text,

or it's rejected because they believe it's not necessary. Exactly. And so you get into this very weird, you know, what if it's just not on the record at all? So yeah, I'm with you. I didn't find that to be necessary to either direction. Okay, next up. The government also relies on the ancient criminal offense

of going armed to terrify the king's subjects. This common law offense persisted in America and was in some cases codified. The government offers four exemplars codified in the Massachusetts Bay Colony, the state of Virginia, and the colonies of New Hampshire and North Carolina. Massachusetts law provided, quote, that every justice of the peace may cause to be stayed and arrested all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or

go armed defensively, and upon view of such justice or justices, confession of the party or other legal conviction of any such offense shall commit the offender to prison and seize and take away his armor or weapons. Similarly, New Hampshire, we don't need to go through all of those. The proffered analogs fall short for several reasons. An overarching one is that it is dubious these going to armed laws are reflective of our nation's historical tradition of firearm regulations, at least as to the forfeiture of firearms. North Carolina's law did not provide for forfeiture, so it quickly falls out of the mix. And fairly early on, Massachusetts and Virginia

dropped forfeiture as a penalty. But wait, that's a policy decision. That's not a constitutional decision. And, okay. So Massachusetts amended its law to remove the forfeiture position provision in 1795, just four years after the ratification of the second amendment. Virginia did so by 1847. Does that mean it was constitutional? They just chose not to have it anymore. And if the answer is, well, we could throw you in prison, then does that mean that anything short of prison?

So it's a lesser deprivation of a person's liberty to have a forfeiture than incarceration. Oh, we're going to get to that, aren't we? Oh, we're going to get to that. Okay. The early going armed laws that led to weapons forfeitures are not relevantly similar to 922 g8 first those laws only disarmed an offender after criminal proceeding and conviction okay that is relevant by contrast 922 g8 can be merely civilly adjudicated moreover the going armed laws like the dangerousness laws discussed above appear to have been aimed at curbing terroristic and riotous behavior,

rather, so threats to society generally rather than to identified individuals, thus not historical analogs. All right, lastly, David, government points to historical surety laws. A common law, an individual who could show that he had just cause to fear that another would injure him or destroy his property could demand surety of the peace against the person. In short, that person needs to pay, basically, post-surety, that he wouldn't mess with you. Right. If he refused, then he would be forbidden from carrying a weapon in public, absent special need. Many jurisdictions codified this tradition either before the ratification of the Bill of Rights or in the early decades after.

As the judge writes, these surety laws come closer to being relevantly similar than the dangerousness laws and going-to-arm laws. First, they are more clearly part of our tradition of firearm regulation. They were comparatively justified in that they were meant to protect an identified person, not a group or general, you know, riotous political stuff. Aspects of how the surety laws worked resemble certain mechanics of 922G as well. The surety laws required only a civil proceeding, not a criminal one. The credible threat finding required to trigger 922G echoes the showing that was required to justify posting of surety to avoid forfeiture. But that is where the analogy breaks down. As the government

acknowledged, historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety. Okay, David, I am at a loss here. So because all of these laws were not a single law, like the one fails because it was about groups, not individuals. But here we did know that you were allowed to target individuals, but because it didn't have the same mechanism

as the other law, I mean, really? You can't see the like each piece of 922G has a historical analog, even if there's not an actual 922G that happens to exist in 1787? And there could never be because of the incredible deficiency in which the law and society viewed the human beings within the household. This is, and look, I'm already, I'm having this feeling of guilt, Sarah, because I'm uncharacteristically ranty about this decision. And I'm very sympathetic to the judges

at the Fifth Circuit because the framing was, that has been put upon them, requires all of this. Now, I do think, as I said earlier, that reasonable and law-abiding should have just sort of cut this thing off right then and there.

You and I, you know, I totally get your point. But this is the framing and this is the difficulty. And again, the thing, full stop, total, total full disclosure. I've long been intrigued by the text history and tradition test. Long been intrigued by it. But as I think the first seeds of like really worrying about this actually came in the Bruin decision itself. When I saw like, what a mess. What a mess the history and tradition was. And so what you're seeing is how this works out in the real world.

And can I talk about Chesterton's fence yet? Or do you have more? Yeah, well, we need to talk about Judge Ho's concurrence, which I think is worth a separate conversation, but we're at the end of the majority opinion. Right. So here's Chesterton's fence. This is a G.K. Chesterton. Chesterton is a Christian intellectual, Christian writer, philosopher. And this is the meaning of Chesterton's fence. And the matter of reforming things is distinct from deforming them.

There is one plain and simple principle, a principle which will probably be called a paradox. There exists in such a case a certain institution or law, let us say, for the sake of simplicity, a fence or a gate erected across a road. The more modern type of reformer goes gaily up to it and says, I don't see the use of this. Let us clear it away.

To which the more intelligent type of reformer will do well to answer, if you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then when you can come back and tell me that you do see the use of it, I may allow you to destroy it. Now, in simple terms, what that means is when you see a longstanding legal standard or practice, before you bulldoze it, understand it. Try to figure out why is the fence there before you knock down the fence. So what does that have to do with this? Well, one of the things that we talked a lot about when before the Bruin case was what was going to

be the test that courts applied to the Second Amendment. And we talked about levels of scrutiny, strict scrutiny, intermediate scrutiny, rational basis review. And that has traditionally been the way when the text of the Constitution articulates a right, such as the right to free speech or free exercise of religion, etc. such as the right to free speech or free exercise of religion, etc. One of the ways in which, and we know that none of these rights are completely unlimited. So we know that the right of free speech does not mean I can say any words that come out of my mouth or write any words that come out of my keyboard. So what are the limitations? And over really generations, we've developed this concept of levels of scrutiny so that if the Constitution quite clearly and explicitly protects a right, like the right fatal in fact, or almost always fatal in fact,

which means it's the highest level of protection of the right. And a lot of folks have criticized these levels of scrutiny as a textual. So the Constitution doesn't say free speech rights are subject to this test. It just says these free speech rights are protected. And I think the virtue of the levels of scrutiny, interestingly enough, is that it actually does have a true originalist function in this sense, which is the original intent was to strongly protect these particular rights.

Yet, everyone understands and knows that society changes a lot and has changed a lot in many ways, sometimes good, sometimes bad ways. One of the very good ways, for example, is we actually fully recognize the humanity of women and children in the home, which is a phenomenal change. And so how do you protect a right that is not unlimited, but strong, intended to be strongly protected in a changing society? And levels of scrutiny is the way in which we have done this for generations. And what Bruin essentially did was sort of say, yeah, no.

That way in which we've done this for generations, that lawyers have become accustomed to, that judges have become accustomed to, that has worked quite well actually to protect enumerated rights, that fence, we're knocking that down. And here's the new thing, text history, you know, old and broke levels of scrutiny, new hotness, text history and tradition. And it feels like we haven't fully thought through the ramifications. And as an academic intellectual matter, I've always had this interesting thought about text history and tradition, but we just kind of knocked that fence over and we've put up this

new fence. And then in a context where, quite frankly, what we're doing in a lot of ways is not so much providing a more rational and reasonable way of interpreting law, but we're actually more unearthing the chaos and injustice of early American legal history. And honestly, we spent so much time on the injustice part. Chaos, chaos. Chaos, chaos. So much chaos. I absolutely agree with you. I also think just from a very top 30 000 foot level the history and tradition test is applied when you say we had gun laws at the founding that disarmed certain people done history and tradition met but it's also a history and tradition test when you go through exactly those laws

and explain why they're different than this current law. So it really is a choose your own adventure test, I think, which has made it this problem for the lower courts, as you pointed out. My, I think, you know, if you're listening to this podcast and wondering why I seem, we seem more worked up about this

than all sorts of other areas where the court, the Supreme Court even, has struck down laws that we think are good policy, but they weren't constitutional. Here's where I think this has bothered me more. Because according to this logic, this isn't something Congress can fix. This isn't that they didn't follow the APA. The only way you could ever change this is by constitutional amendment. That seems so bizarre to me that you would need a constitutional amendment to say that you disarm people who are subject to civil protective orders because of credible findings that they are physically threatening to another individual or

child. Wow. We need a constitutional amendment for that. It just doesn't really stand to reason. So that's where I think Judge Ho's concurrence is worth a mention here. Yes. So reading, he says, our founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested convicted and incarcerated they knew that arrest and incarceration naturally entails the loss of a wide range of liberties including the loss of access to arms so when the government detains and thereby disarms a member of our community it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain

dangerous criminals not just after conviction but also before trial. Our laws also contemplate the incarceration of those who criminally threaten but have not yet committed violence. After all, to the victim, such actions are not only life-threatening, they're life-altering. In sum, our founders envisioned a nation in which both citizen and sovereign alike play an important role in protecting the innocent against violent criminals. Our decision today is consistent with that vision. So, David, here's what I found interesting about that. And if not persuasive, thought-provoking, I think is the better term. What he's saying is really the one piece of this

that I do struggle with, that it is a civil standard of evidence and not a criminal standard of evidence. And his point is you can detain people, like you can charge them with the crime and detain them and take away their guns before they're convicted. You don't have to wait for a criminal conviction. And at the same time, you don't have to have committed

violence to even charge them with a crime. So you don't have to wait for him to kill her to lock her up. All of that is correct. And I do find the criminal versus civil thing relevant, David. Yeah. Except, except, what is the standard for arrest probable cause? Yep. That's not even a preponderance of the evidence. No, that's true. But is it meaningful that then you attach all sorts

of other rights with that? So for instance, the right to counsel, the right to be told your rights, there are things that simply attach by virtue of being arrested by being, you know, in part of that state action proceeding that don't attach to a civil proceeding. Because of the extremity of the punishment, which is the near total deprivation of your liberty. So again, I think one of the issues we have here with this case is we're looking at a far lesser degree of deprivation than incarceration with in a civil proceeding,

you know, may have, and again, not all civil proceedings are preponderance of the evidence. If you look at a lot of domestic violence kind of statutes around the country, you'll see statutes like for good cause shown, for example, for domestic violence restraining orders, which is, again, very similar to probable cause. So what I would say is don't look at civil criminal. What is the standard applied here? And he's talking about we can detain a person sometimes for months,

and we've seen in abusive situations for more than a year on a probable cause showing. And here we're talking about a far lesser deprivation of liberty with in many states around the country, a similar or greater having showing of proof for a lesser deprivation of liberty. So let's look at what is the standard that is applied. And again, I want to be very clear.

I feel like these judges are in a box. I feel like these judges are in a tough box. They're in a tough position as a result of the Bruin case. And I get their reasoning, but the box that they're in, they never should have been in the first place. It's a problematic box. Maybe that's a good title for the podcast. The Problematic Box. Yeah, I mean, one could imagine though, changing this from civil to criminal, you don't have to then detain.

And I think the problem with the panel opinion to me is that it mentions the difference between civil and criminal, but it doesn't say that it's dispositive at any point, like that these analogs would somehow apply if it were a criminal proceeding, a criminal finding that even if it was the same standard of evidence, David, the difference of the rights adhere when you're in a criminal proceeding versus a civil one. But yeah, I mean, we certainly are going to have circuit splits on this. This will be going to the Supreme Court, whether it's this case or some of the other ones that are making their way up. And woof, I mean, it is the best indictment of the history and tradition test that we've

seen, certainly. But I don't see the Supreme Court abandoning the history and tradition test two years later either. It's hard to see, but it hasn't even reached the standard of Chesterton's fence yet. Like, it's so new. But I could also see the Supreme Court letting sort of the history and tradition test mature. You know, we've talked about precedent maturing. And in the meantime, we just like have a bunch of dead women who were killed by their abusers

in certain states, but not others. I mean, that won't work. It feels intolerable. It feels intolerable. I could easily though see the Supreme Court accepting it and saying, guys, we said reasonable law abiding. Yeah.

I could, I mean, and that would be the simplest way to deal with this is in our opinion, we said reasonable and law abiding. A person who commits a speeding infraction might not be law abiding, but they're still reasonable. But a person who's, I can turn it into a agreed order of protection because they're a threat to their family.

And then arrested for five shootings. And arrested for five shootings is not a reasonable law-abiding citizen. So, or I keep saying reasonable, responsible and law-abiding citizen. And it could be just boom, that simple without having to go back to the history and tradition or rethink the history and tradition. All right.

It's at 57 minutes and we have two other topics that are like, incredible. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored

watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Let's push the anonymity conversation

to our next episode. But I do want to talk about the Murdaugh murder trial going on. Because it's so weird, David. It is the weirdest thing. So this guy is on trial for killing his wife and youngest son. He has also been charged with many, many financial crimes relating mostly to embezzlement. Then there's all these other deaths, frankly, that are hovering around. For instance, his housekeeper dies under potentially suspicious circumstances and he reaps a financial

windfall from her death by not paying her estate. This is a strange case. And one of the problems has been, what is the motive for killing your wife and son? And the prosecution this week is introducing evidence that the motive was to hide his financial crimes that he thought if he was a grieving spouse and father, people wouldn't come after him for the financial crimes. Whoa, if that really is the motive, that is crazy. And it worked for like one week, basically. The law firm, for instance, that he was at put off for a week asking him about where this missing money was. They had asked him on the day of the murder,

interestingly, that morning. They've introduced some evidence for that. But then they don't like come back and they're like, yeah, so where's the money? Like a week or two. I mean, it wasn't very long. So yeah, let's back up a little bit. And I think the main reason to highlight this

is to tell readers, this is the wildest story makes the wildest it it's unbelievable i would uh i i watched a three part documentary called low country the murder murdaw dynasty on hbo max i've read explainers about it and it's mind-blowing and i know there's listeners notice i said listeners right away not readers i know there's listeners who notice I said listeners right away not readers I know there's listeners who could give us chapter and verse like in the Amber Heard Johnny Depp case but just a

just a brief a brief primer there's a family called the Murdaws and if you listen to the or watch the podcast they pronounce it 19 different ways including Murdoch but the Murdoch family in this very small town and they're an intergenerational family dynasty

and the story begins with the son one of the sons of the dynasty allegedly apparently driving at high speed a speedboat into a bridge abutment, killing a young woman in all of the ways in which the family sort of locked in to protect the son. There's a story of a housekeeper who died at the Murdaugh residence, which included the Murdaugh's urging a lawsuit against their insurance carrier, where the Murdaugh's were able to pocket the settlement money for a lawsuit brought against their own insurance carrier for the death of a woman, a young man who's found in a road, apparently clubbed to death, perhaps by a baseball

bat with a lot of speculation. And I don't want to join in the speculation of the documentary because that's where the documentary I thought went too far in speculation. Then the death of Alex Murdaugh's wife and the son who allegedly drove the speedboat into a bridge abutment. And this is, again, a very powerful local family. And it is one of the wildest cases I've ever seen. And what's interesting about this, Sarah, is that not only is the motive here perhaps to cover up financial crimes, but also the way the evidence is developing is fascinating. And one of the key pieces of evidence is, I don't know if you ever look at the step counter on your iPhone, they're using the step counter on the iPhone and the step tracker on all of their tech to determine where people walked in when on the night in question.

determine where people walked and when on the night in question. Right, because they have the video at 9.44 p.m. on the son's phone. So they know exactly where he was standing at 9.44. They believe he's shot in the head at 9.50. So you've got six minutes to sort of track where all he could have been and more importantly, where his father was. And it's fascinating. And it's horrible. It's terrible. You know, I grew up in the small town South and I'm quite familiar with the notion of sort of dynastic families and, you know, people

you didn't mess with. And one of the really interesting things about the documentary was seeing the number of people who are, there's videotape. And a lot of times, you know, you'll see a documentary and someone's like, this is a powerful family. And immediately you're thinking, are they hyping this, right? You know, are they hyping this to make it more dramatic? Or is this just a normal kind of rich family in a normal community?

But one of the things that you see in a lot of the footage is person after person saying, this is a Murdoch. This is a Murdoch, a Murdoch. This is a Murdoch. but one of the things that you see in a lot of the footage is person after person saying this is a murdoch this is a or a murdoch a murdoch this is a murdoch do you know the murdochs yes this is a murdoch like even at the scenes of accidents this is a murdoch and it's really remarkable um and so i i would i would urge you we'll put put a link to the trailer for the HBO Max story in the show notes. But on a lighter note, a little black humor in all this, Sarah, you know what this reminded me of?

The A-Team. Do you remember the 1980s TV show? I mean... And Knight Rider? Yeah. Airwolf? Okay. Okay. Okay.

If you watch 1980s television, one of the common tropes was there was a small town somewhere under the tyrannical rule of a murdering family. Yes, you're right, actually. Yeah. And it's like as if the 1980s was full of small towns under the tyrannical rule of a murdering family.

So you had to call in someone who owned their own attack helicopter or you had to call in somebody with an intelligent car or a special force, former special forces team on the run from the law to clean out the town. Yeah. And that's what it reminded me is like, somebody needed to call the A teamteam on the Murdaugh's in the 1980s and none of this would have happened.

It'll be fascinating to see because so much of this evidence hasn't yet been presented to the jury. There's just hearing after hearing in front of the judge. And so, I mean, we've said this many, many times before, you can be dead sure that the person is guilty and that any jury in their right mind would vote to convict.

Right. But if you're not sitting on the jury and hearing only what the jury hears... Correct. A very, very different picture. And so, so much of what you've mentioned, what I've mentioned, not relevant to this specific case.

And so you can't present all of it. So we'll see. I still think there's a strong chance of conviction, mostly just because when someone's wife and kid ends up dead, and you said you weren't there, and it turns out you were, it's often just the ballgame. But I think juries do struggle when there's not a good motive. Yes, yes, absolutely. That why, why, especially when there's not a good motive and it's a wife and child that a jury is going to look for, there has to be an incredibly compelling reason for this.

Oh, there's one other aspect of this case. I mean, it's like peeling an onion of dark and weird because there's another element where it appears that Alex Murdoch faked an assassination attempt against him. That's right. Yes. Well, maybe what he's admitted to is that he was trying to get someone else to kill him so that his other son could get the insurance payout because he incorrectly believed that if he committed suicide, that his son wouldn't get the money. There's so many holes in that whole thing.

The bullet barely grazes his head. Like how bad is the guy you hired to shoot you in the head that he doesn't even shoot you in the head? Weird. Yeah. It started out as essentially a suicide attempt that he survived.

And then as he survived, it called it a fake assassination, called it an assassination attempt. And then the evidence of the suicide attempt emerged. It's the wildest thing. There's a Netflix documentary coming out and it's the kind of thing that you feel almost icky when you're watching it

because you're so fascinated by it. And you feel icky because there's just an awful death toll attached to this thing. And so it's like rubbernecking multiple awful murders. At the same time, it's just one of the more insane stories I've seen.

Well, and don't forget, I mean, the body count is high. There's also the guy whose ventilator is mysteriously unplugged and some of that money gets embezzled, allegedly. Yeah. Yeah. Weird. All right.

Before we leave this, we have one more just important story for our listeners to hear. And this is the two neo-Nazis who were just arrested for trying to shoot at Baltimore power stations. Oh, for the master race. I mean, I really do have some questions here. If that's the master race, we're all just messed up. So, I mean, for instance, you know, this is the woman I'm reading from the Washington Post story.

Clint Daniels' desire to carry out an attack quickly was hampered by her lack of access to a rifle, according to the criminal complaint. Her semi-automatic weapon had been seized in a dispute with a neighbor, and she was hoping to get a new one from the informant. In the meantime, prosecutors say she was planning to scope out the potential attack sites.

David, do you want to guess who the informant was? Oh, let's see. I'm going to display my gift of prophecy once again. Yes, please. The FBI. It's always law enforcement. It's always. So these two dum-dums thought that they could start a race war

by targeting the Maryland power stations because they learned somewhere that it takes a year to manufacture a new transformer or some piece of the power station. Having absolutely no concept of the logic failure there that maybe there already are manufactured Transformers somewhere. So you don't have to wait for a new one to be manufactured each time when you wreck your car.

While it does take a month or so to manufacture a car, let's say you don't have to wait a month because there's already cars that have been manufactured. They met, of course, while the dude was, sorry, he was in federal custody for possessing bomb-making materials, and she was in a Maryland facility for robbing convenience stores with a machete. It's a real romance story, David, but most of all, it involves the oldest thing that we try to teach our listeners about doing good crimes. You're always talking to law enforcement.

And I guess the real question is, are they responsible law-abiding citizens? You do note that her gun was taken in a dispute with the neighbor. I just... Yes. Hmm. Yes.

Because, you know, speeding, shooting at a transformer, potato, potato. Robbing convenience stores with a machete, though. It's creative when your gun has been taken away. That's true. That's verging on your responsibility. Well, once again, these geniuses in the master race have been foiled. And Baltimore's power stations are safe for the time being. Well, thank you for joining us. We'll take up Yale's anonymity question posed by David Latt in our

next episode. Plenty to talk about there. We'll look forward to your comments. If you are not a member of the dispatch, join, hop in the comment section. Last week's were lit, as David and the kids like to say. David, I am trying to adopt some of Gen Z's vernacular because I think they have come up with some good things related to music. Like to say that's a real banger or I don't know that I use this totally correctly, but like it's a bop.

Like anyway, I think, you know, the fire stuff, that kind of works. That's fire. This is fire. Although the fact that it's now part of a Super Bowl commercial with Peyton Manning maybe means the kids aren't saying that anymore. But yeah, I think that the stuff about music, like, that's a banger. I like that.

Yeah, I rediscovered some old John Denver music that my dad used to listen to. Yeah. And I got to say it slaps. Yeah. So that's a good one. Gen Z, I think you've given us three slaps,

banger and bop are all, those are great. So thank you. Thank you. Yeah. And we will talk to the rest of you next time.