Advisory Opinions - The Rights the Constitution Doesn’t Tell You About

Episode Date: May 31, 2024

Akhil Amar, Sterling Professor of Law at Yale University, joins Sarah and David to read between the lines of the Constitution to find and define unenumerated rights. Be sure to check out his books, America's Unwritten Constitution: The Precedents and Principles We Live By and The Words that Made Us: America's Constitutional Conversation, 1760-1840. And stick around after the interview for a brief Alito flag update. —Akhil Amar’s two-tier theory of jurisdictions —AO episode with Judge Newsom mentioning unenumerated rights —Ezra Klein's article on the Second Amendment —District of Columbia v. Heller —McDonald v. City of Chicago —New York State Rifle & Pistol Association, Inc. v. Bruen —Akhil Amar's podcast —NRA v. Vullo decision —Casey Mattox's tweet on NRA v. Vullo —SCOTUS clears the way for Louisiana to use a new congressional map Learn more about your ad choices. Visit megaphone.fm/adchoices

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This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at TNVacation.com. Tennessee sounds perfect. Conservatives believe there's a right to have guns in the home. Liberals believe there's a right to have sex in the home. Liberals believe there's a right to have sex in the home. I believe this is America. Give them both what they want. Personally, I prefer sex, but whatever floats your boat.

Ready? I was born ready. Welcome to the Advisory Opinions podcast. I'm Sarah Isgur with special guest David French, but more special guest. We have Professor Akhil Amar from Yale and from the Amarica's Constitution podcast. I know already a lot of you guys listen to it, but and by the way, I know that because after I talked about unenumerated rights, we got so many comments and emails saying, excuse me, but professor Amar has really very interesting things to say about this. So he should really be the one to come on and talk about unenumerated rights on the podcast. So you know what? We listen. And

Professor Amar, thank you so much for coming on to talk about this. Thank you for having me. And as we just agreed offline, if I'm going to come on yours, you get to come on mine. And so we'll do a home and home and really looking forward to it. Amaraka's Constitution AO. This will be fun. So here to set you up was my general thought after reading Justice Breyer's book, was that Justice Breyer really sees the Second Amendment individual right to self-defense as an unenumerated right in the Second Amendment, as opposed to the enumerated right, which has more to do with militias. And I know you thought a whole lot about just the evolution

of the Second Amendment through the Civil War, so I want to get to that. But my overall takeaway was that if the Second Amendment right to self-defense is unenumerated and a right to an abortion is obviously unenumerated, then how do we not think of Heller and Rowe in the same way? And how do we think of unenumerated rights in the world of stare decisis and upholding precedence or not upholding precedence? So I'm mostly just handing this over to you to walk us through the Second Amendment as both having enumerated rights in it, but maybe also unenumerated rights, and more broadly, how we should be thinking about unenumerated rights in the Constitution, because we know they're there. The Ninth Amendment tells us

there's unenumerated rights, but what are they and who decides? All the great questions, and thanks for that kind setup. And also, thanks for mentioning my friend and mentor, Stephen Breyer, in his new book I clerked for him back when he was a judge on the United States Court of Appeals for the First Circuit. I love him. He's been such a mentor to me and a mensch, and he's actually agreed to come on our podcast. So stay tuned. But I don't love every single thing in the book. Now, this is the first time I've said that publicly. Oh, you know, because you've outed me, I've outed myself. And I like a lot of his ideas. But so let's just start with the issues you talked about. So he actually says that he's not just a textualist.

Reading the Constitution, he says, but the book is why I chose I, Stephen Breyer, pragmatism, not textualism. It's a little complicated because the title of the book is Reading the Constitution. It's hard to read the Constitution without actually paying some attention to the text. Okay. But you're right. When we look at the text, Sarah, it talks about unenumerated, that is not textually specified rights. It does. So how do we think about that? And how do we think about not just the Ninth Amendment, but the language of the Fourteenth Amendment that says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

It's just basically synonymous with fundamental rights, but it doesn't list them all. And it could have just said, no state shall make or enforce any law which shall abridge the first eight amendments or could have listed freedom of speech and other precedents, it didn't do that. So the ninth amendment as against the federal government

says pretty clearly, look, we've listed a bunch of rights, but don't take that list as exclusive. And that's against the federal government. The original Bill of Rights was really reflecting a concern about federal officialdom. Then the 14th Amendment comes along and it could have listed all the rights, but it didn't. It gestures toward fundamental rights more generally. So how do we find them? So, and yes, specifically about guns and self-defense, and you asked about abortion in a row. So, here's how I would think about it. Guns are actually a pretty easy case for constitutional recognition and judicial protection. Justice Breyer doesn't love guns, truthfully. And there are lots of reasons why, you know, he's a, he was very close

to Ted Kennedy. When I clerked for him, Senator Kennedy's office would call from time to time. And one of Senator Kennedy's brothers was killed by a gun, and another one of Senator Kennedy's brothers was killed by a gun. So I get it. I understand that. But the Constitution reflects a slightly different vision. So the Second Amendment is about arms, guns of a certain sort, and they're actually three legs to the stool of gun rights in America. And the second amendment is actually the weakest of the three legs.

And Justice Breyer is really refighting debates with Antonin Scalia, who's no longer with us. So if I'm gonna read his books, he's gotta read mine. And Justice Breyer, you haven't quite. And so you're actually missing the point. So here are the three legs of the stool for a gun right in America. So we're absolutely clear, I don't own a gun. I've never owned a gun.

But I think you have a right to have a gun in your home for self-protection if you want, because this is America. And I have nothing against guns personally, it's just I don't have one. My mom was a pediatrician, she didn't love guns because she saw kids killed by guns. She didn't love swimming pools, and nothing against swimming pools,

but she saw kids who got drowned. So here are the three legs of the school stool. Can I just interrupt for one quick moment, professor? Between you and me, we balance things out because I have enough guns to arm Ukraine. And you have none. So that means between us, it's moderation. And you're allowed to because this is American, I'll give you three different constitutional arguments, three legs of the stool.

So there is the Second Amendment. And it does talk about bearing arms. And you can read it very narrowly to say bearing arms is only in a military context. And you could. But the Ninth Amendment gestures not only toward unenumerated rights. I think it invites us to read the enumerated rights broadly rather narrowly. Do you have a right, for example, to confront physical evidence that's introduced

against you? Well, it says you have the right to confront witnesses against you, but what about some piece of physical evidence? Well, of course you do, because you have a more general right of a fair trial. It doesn't actually say that you have a right to testify on your own behalf, it doesn't. But actually we have such a right today because, and we recognize it because the big idea is if you're innocent, we should allow you to try to make your case.

So, bear arms can be read narrowly, but it can be read more broadly. It's the right to keep and bear arms. And yeah, it's about Lexington and Concord and Bunker Hill and people who are arraying militarily, but they're keeping their muskets at home. They are. Okay. So the first leg of the stool is the Second Amendment read broadly.

Okay. Yes, it is about militias, but it's also people who were in the militia had their guns in their homes. And at Lexington, actually, people are bringing their guns from their homes and arraying on the town square, and then there's a skirmish.

Okay, but that's the weakest of the three legs. That's the Heller case. And it's about the Second Amendment proper, it's about the federal government. But now here's the second leg of the stool. It's much stronger. The time of the 14th Amendment, after the Civil War, we have in effect a second Bill of Rights. And I've already gestured toward its language. No state shall make or enforce any law which shall abridge the privileges or immunities of the United States, the fundamental rights. So now we're actually not talking about local militias against central officialdom,

we're talking about rights against states and localities, because states have misbehaved. We call that the Civil War. So the second Bill of Rights is rights against the states, individual rights, using words like privileges, which sounds kind of private, immunities. What was the core, a core 14th Amendment right? A right to have a gun in your home for self-protection. The Freedmen's Bureau Bill of 1866, which is the companion to the 14th Amendment, expressly says that you have a constitutional right to have a gun in your home for self-protection. And that's because they were, especially they being the Reconstruction Republicans, especially

concerned about blacks who needed to have their guns in their homes for self-protection because you couldn't count on the local constabulary, the sheriffs, when the Klan came calling. And they talked about the right to bear arms, but they actually mean it in a different and more individual rights since. So if the founding vision is when guns are outlawed, only the king's men will have guns, and we need local militias, the 14th Amendment vision is when guns are outlawed, only clansmen will have guns.

And you need to have a right in your home to a gun for self- self protection. It's a different vision and it's very much focused on the home and the framers of the 14th Amendment, you know, we're emphatic about this. We can't think about just the founding if we're proper originalists, we have to think about the later amendments. And if audience members want to see this in 30 seconds, they can just Google my name at Akhil Amar, Second Amendment, and what will pop up is a conversation I had with Ezra Klein, a great journalist.

In this little piece that Ezra Klein, this interview that he did with me, it's called The History of the Second Amendment in two paintings. One painting is Lexington and Concord and Bunker Hill, and it's about the militia. And the second painting, a picture, is from the Civil War era, and it's about, and you can see the connections between them, blacks needing guns in their homes for self-protection. That's not the Heller case, which was about the federal government, but the most important

gun cases in America are not Heller case, which was about the federal government, but the most important gun cases in America are not Heller. Justice Breyer is kind of trapped in a bit of a time warp in his colloquy with Justice Scalia. The two really important gun cases since Heller are one by Justice Alito. It's a case called City of Chicago versus McDonald. It's about incorporating, applying the Second Amendment against states and localities. And most gun controllers are actually trying to pass laws at the state and local level. And then there's a case called Bruin, and it's about the state of New York. Okay. So those are the key gun cases, and both of them really emphasize the

14th Amendment and the Freedmen's Bureau Act and this idea after the Civil War that blacks especially have a right to have guns for self-protection. And Bruin and Heller were about guns in the home and, actually, Heller and City of Chicago versus McDonald were about guns in the home. Heller about DC, the federal government, and City of Chicago versus McDonald, we're about guns in the home. Tell her about DC, the federal government, and City of Chicago, about states and localities. Bruin says, oh, even when you're carrying guns outside the home, you have a right to a gun for self-protection, and they're not making that up. The framers of the 14th Amendment really did believe that. And just to repeat, I don't have a gun, so this is not coming from a gun

person is coming from an historian, all these claims. Now, that's the second leg of the stool and it's very strong. It's an originalist argument based on the 14th Amendment, the Civil War. Here's the third leg of the stool. Sarah, you're right. There are unenumerated rights that are just not even listed. And where do we find them? We typically find them from American custom and tradition and practice. We look at what states and localities actually do and we kind of add them up. Is there a right to have a pet dog in America? Yes, in general there is. Maybe not 30, you know, in an apartment. Okay. But, and where do I get that? Not from anything in the text or even the history of

the 14th Amendment, but just from American practice, custom, tradition. And by the way, the day they come and try to take away my dogs, that's the day I'm gonna get me a gun, okay? Because this is America. Do you have a right to wear a hat? Yes. Do you have a right to play the fiddle? Yes. Do you have a right to raise your kids in general,

you know, not in appropriate ways? Yes. Because, so this is what I explain in chapter three of a book called America's Unwritten Constitution. And I highlight a particular case as being very important. There's this case called Glucksburg. And it says that the way you find unenumerated rights is by basically looking at state practice by tradition and custom and consensus. So, Glucksburg is decided after a really important landmark unenumerated rights case called Griswold versus Connecticut. And in Griswold, which is from the mid-60s, the court says, you have a right to use contraception in your home. And even

some of the court's conservative members went along, especially John Marshall Harlan the Younger, grandson of the great dissenter in Plessy versus Ferguson. And what Harlan said is, this law is un-American, this law that prevents people from using contraception in their homes, using the pill, using IUDs. No state except Connecticut has ever tried to do that. Connecticut is my home state. But he says basically, this law is un-American. That's why it was an easy case, because we find un-enumerated rights from lived practices in America. So that's Griswold. Glucksburg comes along and basically says, here's the

general point. It's not just limited to contraception. We find unenumerated rights by looking at custom practice tradition. You can't get Roe from that because Roe versus Wade invalidated the laws of 49 of the 50 states. Only New York, if that was Roe compliant, compliant with the trimester rules and the kind of abortion on demand vision of Roe versus Wade. So we have Griswold invalidating one outlier state law, Connecticut's, and that's easy. And we have Roe that went way too far in validating the laws of 49 states, and it's not in the text, and it's not in the history of the 14th Amendment and it can't really be supported by today's custom consensus practice. So that's why Roe was a really outlandish case and Griswold was a really easy case. And Glucksburg comes along and says, here's

the general framework and that's the case. And I wrote about this in 2012, chapter three, America's unwritten constitution. And then the Dobbs case comes along and basically says, you know, Amar has got the basic court framework correct. Gluxburg is a key case. If we apply a Gluxburg analysis, Roe can't be justified because Roe was invalidating all sorts of mainstream laws and not just outlier laws. So, to finally conclude this long answer to your good and short question, gun rights for self-defense are pretty easy because you could read the Second Amendment broadly, talks about keeping arms as well as bearing arms. And the framers of the 14th Amendment clearly thought people had rights to have guns for self-protection.

And gun rights are protected in most states in America under state constitutions quite, quite robustly. So gun rights in general and the city of Chicago versus McDonald's struck down an outlier law and so did Bruin struck down an outlier law. Only seven states, maybe six, had restrictions on guns that were draconian the way New York's was. So, judged just by actual state practice, the law in the Bruin case was an outlier law. Justice Thomas's opinion for the court in this Bruin case, in the second paragraph, I believe, uses the word 43. 43 appears throughout the Bruin decision and four times in three pages in the concurrent by Kavanaugh and Roberts. 43. What's 43? They say 43 states. In fact, it's probably 44. They weren't counting Vermont. 43 or 44 states are giving you much more robust gun protection than New York is.

New York is an outlier law. So Roe is out of sync with this approach, but gun rights actually aren't. And cards on the table, I personally am pro-choice. I believe in an innocent, unborn human life, but I think the government is going to be very ham-handed and draconian sometimes. I trust women in general more than prosecutors, and I try to persuade them to choose life wherever they can, but there are a lot of complicated medical and moral situations. So I'm personally pro-choice, but anti-ro. I'm personally not a gun person, but I'm pro-gun rights just because

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Neither should your SPF. Introducing daily UV moisturizer from Umbrella. Broad spectrum protection and all-day hydration in one lightweight formula from the number one recommended brand by pharmacists and physicians. It's the unskippable SPF for your unstoppable day. New Umbrella daily UV moisturizer now available online or at your local retailer. You know, one thing that is interesting to me about the unenumerated rights conversation is that it's very difficult, it is easy to get people to buy in on the concept. So for example, I was teaching a lifelong learners class, old seasoned citizens who were coming for some civic education

at the college I teach at. And they were very curious about these unenumerated rights. And at first, many of them were skeptical that they should exist at all. What do you mean unenumerated rights? And one of my responses was, well, what do you think about parental rights? Oh yeah, absolutely, we gotta haveated rights. And one of my responses was, well, what do you think about parental rights? Oh yeah, absolutely, we gotta have parental rights.

Well, they're nowhere in the constitution. It's a classic unenumerated right. And so one of the questions that, so if you're gonna have buy-in that yes, we do have unenumerated rights, it's not just in the ninth amendment, it's also makes common, it's just a matter of common sense

that the bill of rights wouldn't list them all. All of the rights that people possess are not listed in the Bill of Rights, much less the Civil War amendments. What is the best method for, I don't wanna use the term like mining for gold, but mining for unenumerated rights, finding these unenumerated rights, finding these unenumerated rights, how are they located?

Is it all sort of the history and tradition? Can't be text, because they're unenumerated. It is all history and tradition. How do you mine for the gold of the unenumerated rights? Here are at least two ways. First, we have to be attentive, not just to explicit rights but to implicit rights. Things might not be textually enumerated, but they might be textually implicit. We read

between the lines. So I'll do that and then I'll give you a second and very different technique. So this is reading but reading generously. Okay, it says freedom of speech, it says freedom of the press, but what about if I sent you a private letter, right, with a fountain pen? And let's even imagine I didn't use the US mail. I sent it to you through a friend or something. I just wanted to pen you a friend or something. I just wanted to pen you a note saying, hey, David, just want to say hey. Well, is that oral speech? No. Is that the product of a printing press? No. But of course it's protected by the First Amendment because we read it broadly to be about all expression. And by the way, that example is

Justice Scalia's example. He ordinarily, often he read things too narrowly, but even that he understood, you know, that you got to sometimes testifying against you. But of course, you also have to have a right to confront physical evidence that's introduced against you. You have to read between the lines. And closely related to that idea, rights shouldn't be understood narrowly, they should be understood generously and broadly. Is we have to pay attention to the structure of the constitution. Even without the first amendment, we'd need to protect political discourse very broadly because constitution is all about elections and fair elections and you can't have fair

elections if the government can basically shut down people who speak against it, you know, while allowing people who speak in favor of it. So even if there weren't a First Amendment, you'd need to protect broad freedom of political discourse. The First Amendment, of course, says Congress. But we all understand that its principles apply against a federal judicial gag order, you know, and those are in the news today, you know, gag orders. Of course, it applies against presidential censorship policies, not just congressional statutes. Okay. So here's the first idea, maybe the first and a half idea. Read between the lines and pay attention to the structure of the Constitution generally. And when it comes to guns, for example, guns in homes, oh, the Fourth Amendment talks about

or let's take even privacy in homes, contraception and the like. The Fourth Amendment talks about the right of people to be secure in their person's houses, papers in effect. So they're singling out houses above and beyond all other buildings, shops, factories, warehouses, barns, and the like. So why are they singling out houses? Oh, because of the home life within it. We're reading things broadly. The third amendment says no courting of troops in houses. What's that all about? I don't want the government in there in bed with my government soldiers with my wife and my daughters. That's actually what the framers in fact said. The third amendment

is about that. The second amendment, it doesn't say houses, but this doctrine, it goes back to 1607. It's called Samane's case. It says, a man's house is his castle. And actually what that was all about is you have a right to use a force to defend your home against... We today call that stand your ground. So the Third Amendment is about houses and the fourth amendment is about houses. When you sort of read broadly precursors of the second amendment were, okay. You have a now.

So here's yet another way of doing it. This is not reading, this is counting, this is arithmetic. Look at actual state practice and look to see whether Americans actually every day, you know, in general, in most states, protect a certain kind of right or privilege. So in this book that I wrote called America's Unwritten Constitution, I have a chapter. It's called Hearing the People, chapter three, America's Lived Constitution, and it begins with an image. I hope maybe we can even put it up on your show notes or something like that. It's a painting. It's home, sweet home. And it's this kind of rustic cabin-like place. And people just hang out out. It could be any state, any century.

It's like your fishing cabin and people just kind of hanging out. There's a family and there's a kid and there's a dog and someone's playing the fiddle and they're just relaxing on the porch. Here's how I begin the chat. Nothing in the written constitution explicitly guarantees the right to have a pet dog, to play the fiddle, to relax at home, to enjoy family life with your loved ones, to raise your children or to wear a hat. Yet these and countless other liberties are generally upheld by American governments absent compelling reason for abridgment. Many of Americans most basic rights are simply facts of life. This is how

we the people do things in America and we therefore have a right to keep doing these things. Now that would include contraception. That would include having a gun in your home. It doesn't include abortion on demand. Whether we look at America at the founding or at the time of the Civil War, at the time of Roe versus Wade, or at the time of Casey, which reaffirmed Roe versus Wade, or at the time of Dobbs, which overruled Roe versus Wade. I'll say it one other way. If you are a Roe person, you believe in a very robust, very expansive right to have

an abortion, I'll probably vote with you on election day on those things. But when my party, the Democratic Party, the pro-choice party, the beginning of the Biden administration controlled the House, because we did, and the House, because we did, and the Senate, because we did, and the presidency. We had the trifecta for the first two years of the Biden administration. We had Speaker Pelosi and Leader Schumer and President Biden. We couldn't get even a statute passed kind of codifying Rose rules. There has never been a national consensus about that. And so that's an unpromising basis for constitutionalization. But contrary wise, contraception is a very broadly protected state by state by state by state. And so are gun rights. If you read state constitutions

and read state laws. So two different techniques for finding unenumerated rights. Reading but reading broadly and kind of connected that paying attention to the structure of the constitution as a whole, you know, protecting, for example, political expression and counting arithmetic, looking at actual state practice or federal statutes and saying, do Americans in fact in our laws kind of respect the right to have a dog? Yeah, we don't mess with that in general. You know, the right to raise your children. Yeah, we recognize broad flex, but let me do one other thing. Just, you know, among other places, you know, we have a right to raise your children if you want. I don't, and I don't actually necessarily recommend it.

You have a right to raise your children and school your children at home. We call that homeschooling. And the Supreme Court has kind of recognized rights of this sort, a case called Wisconsin versus Yoder. There are cases called Pierce versus Society of Sisters and Myers about parents' rights to choose educational options for their children. Maybe they're not entitled to government vouchers or something like that. That's a different question.

We could talk about it. But the First Amendment is in part about the home, about homeschooling. It's actually even about erotica in the home, pornography in the home. There are special rules about erotica in the home. The Second Amendment is about guns in the home. Third Amendment is about no government troops in the home. Fourth Amendment is special rules about searching people or arresting people in their homes. So, broad readings of the text, being attentive to their larger purposes and counting actual practices of states, historically and today, both custom, but both tradition and consensus,

both of those. Okay. I've got the reverse question. We'll wrap on this, which is, then how do you know whether a state restriction is acceptable? If it's an unenumerated right, do we have a lesser type of scrutiny because we don't have the text in front of us? Is it a not strict scrutiny?

Or if we're applying text history and tradition, but it's an unenumerated right, do we then allow for more encroachment in state regulations? How does it work on that side? Do we then allow for more encroachment in state regulations? How does it work on that side? Yes and no. It's a little complicated. Here's Akil's take.

If it's in the text, we enforce it come hell or high water because the text is the text of the text and damn it, people die for these things and we can amend them away. But until we amend them away, I'm going to protect the core of a textual right, come what may. Now, if it's not in the text, but it's pretty clearly implicit in the text, same rules. But if it's not in the text and it's not explicit in the text, and it's not implicit in the text, and it's not implicit in the text, and it's not pretty clearly implicit in the structure of the Constitution as a whole, then if I'm a judge, I'm going to be more cautious and I'm going to invalidate something only if it's

out of sync with basic American customs and practices, which change over time. So, for example, let's take the death penalty and let's take another constitutional provision we haven't talked about, cruel and unusual punishment. And I'll tell you the case law about it. It's not just cruel punishment, it's unusual punishment. So Scalia once asked, well, how could the death penalty ever be unconstitutional? Because you had a founding and they talk about capital crimes. I can say, well, Justice Scalia, because of the word unusual, let's just take pickpockets. It was at one point in time, actually customary, usual, common to hang pickpockets. We did in America and in Britain, you know, read Oliver Twist,

hang pickpockets. We did in America and in Britain, you know, read Oliver Twist, Fagan and the Artful Dodger. Okay. We don't do that anymore. So at one point, it was constitutional to hang pickpockets because that was not an unusual punishment. It was a customary punishment for pickpockets. At a certain point, it became unusual when states basically phased out that practice. And at a certain point, when enough states phased it out, it became unusual and therefore cruel and unusual and therefore unconstitutional. And I promise you, if you look at 8th Amendment jurisprudence, the courts openly count how many states put juvenile offenders to count. How many states put juvenile offenders to death? How many states put...

But isn't that a bit of a one-way ratchet problem? Because the pickpocket thing is a good example in the sense that it's a bad example for what I'm going to say, but let's assume that the pickpocketing problem really dropped off. And so, yeah, they stopped hanging pickpockets because we didn't need a draconian punishment. But then pickpocketing really ticks up again. And so now they would like to start hanging pickpockets again. But the Constitution says that once it becomes unusual, you can never have it back because now it's unconstitutional. That seems odd. That's a brilliant question. And it's how I end Chapter Three. I call this the lock-in problem, the ratchet problem. And in fact, the courts,

and this is why it's relevant to your question, well, you know, is textual rights different than non-textual rights? And I said yes and no. So here's what the court did. At one point, there was a year in America when no one actually was put to death. And the Supreme Court said, ah, death penalty is now unusual, it's cruel and unusual, we kind of prohibit it across the board and states warred back, state by state by state saying, no, we actually believe in the death penalty in certain situations and the court dialed it back.

So here's the way we should think about unenumerated rights and here's how we should think about enumerated rights. If it's in the text, we enforce it come hell or high waters in the text and we have to amend the text. Two thirds of the house, two thirds of the Senate, three quarters of the states. Okay. That's how we think about, for example, flag burning. Oh, is flag burning technically speech? I think as we understand it's a speech is about communication messaging. Yes, it is. So I actually, the court was right to say you have a right to burn flag disrespectfully. I would never do so, but you have a right

to do that. And if we're going to change that, we need a constitutional amendment, okay? Because it really is implicit in or maybe explicit in the First Amendment. Now, if it's merely an unenumerated right, if the court strikes it down because it says, well, this is un-American today, state by state by state, or congressionally, if there's pushback, the court needs to actually recalibrate. And it does. And that's actually what some of these laws

have been on abortion, where states are actually saying, we want to prohibit abortion at six weeks or a hundred. But sometimes they say they have a time delay. We wanna do this, but the law will only go into effect in three years or something like that, hoping other states will join the bandwagon. And if other states do join the bandwagon, restricting a right that the court has declared at time T1,

that's new evidence for the justices and they're going to take that into account. And so, unenumerated rights can legitimately ebb and flow to a certain extent. And judges have to be attentive to what you called the ratchet and what I called the lock-in problem. And we saw that in the death penalty. They first prohibited altogether in the late 60s, early 70s. States roared back and said, no, we don't want to get rid of it altogether. And the court backed down. So it's a jurisprudence in which we pay attention to what states and Congress are doing back and forth. And we wouldn't do that if it were in the text of the Constitution. We'd say, well, it's in the text of the Constitution, so write. You don't like it, amend the Constitution,

but otherwise, go away. Professor Akhil Amar of Amarika's Constitution podcast. Can't wait for our AO crossover episode, though I have to say, I'm curious what we'll be able to offer your audience aside from the Naad Dogg doctrine compared to what you've been able to offer our audience. So thank you. I think we got the better end of the deal. Oh, not at all. So looking forward to seeing you both.

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Just sit back and listen to the music. Ooh. This single malt scotch whiskey is guaranteed to impress dad this Father's Day. The Glenlivet, live original. Please enjoy our products responsibly. Well, David, that was quite the treat, but we have a lot more to do because the Supreme

Court had a unanimous decision in the NRA Vulo case. We talked about this many, many times since sort of the beginning of the case. End-of-world argument. This was the basically head of the insurance regulation, the state official ahead of that, sending out a letter to insurance companies saying, boy, it'd be a real shame if something happened to your status and your licenses, et cetera, if I were to investigate you. And more specifically, a meeting that she had with one insurer

in which she said, I'll be lenient as long as you cut ties with the NRA and other gun groups, regardless of the fact that those other gun groups did not have the type of insurance that she was saying was illegal in the state. The Supreme Court, again, unanimous, sodomy you are writing for the court saying, no, this, at least on its face at this point, if you assume everything is true in the complaint, uh, is a violation of the first amendment. It is coercion and a ballgame. Yeah. And Sarah, you know, I don't, I very reluctantly toot our own horn here on advisory opinions.

But I will say we were in on discussing this case before it was, you know, before anyone had it on the radar screen, because this is one of the cases where that really touches on this one issue of First Amendment law that quite frankly, a lot of the case law has not been fully fleshed out. And that is, what if the government doesn't actually censor you? It is more along the lines of jawboning, trying to persuade, cajole, coerce, but not really coerce. Where is the line between convincing?

Because we know the government can convince. And when does it cross over into coercion? And this has a lot of ramifications for social media, for example, and the Twitter files controversies and the controversy surrounding the Biden administration in injecting itself into debates over moderation policies and social media. So this has got a lot of ramifications beyond just this narrow dispute with the NRA. And it's also coming out before, which is very interesting, the social media case. So there's a social media case rooted in administration efforts to try to deal with what it believed

and deemed to be misinformation or disinformation around COVID. and how much did the administration reaching out to social media companies, did, when or if or how did that cross the line into coercion? In this case was very important because coming out of the Second Circuit, it actually had a pretty sensible test that they created, but then they applied that pretty sensible test

to the facts of the case and came out with the exact wrong answer and said that New York had not coerced. It had not crossed that line from convincing to coercing. And I like the simplicity of the test here. So this is Justice Sotomayor. To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that viewed in context could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech. Again, conduct that viewed in context could reasonably be reasonably understood to convey a threat of adverse government

action. I think that's a sound test, Sarah. I think that's very sound and fascinating that this was an I know fascinating that Justice Sotomayor wrote the opinion. And to refer to a tweet from friend of the pod Casey Maddux, he talked about we just had Clarence Thomas write an opinion upholding the constitution friend of the pod Casey Maddox, he talked about, we just had Clarence Thomas write an opinion upholding the constitutionality of the funding mechanism of the CFPB.

And here we have Justice Sotomayor writing an unanimous opinion on the side of the National Rifle Association. I think that should help scramble people's partisan assumptions about how this court works, although we have lots of evidence that their partisan assumptions should have been scrambled before. Here's more evidence that it is not always about partisanship. Yes, underline, emphasize. You know, just to take a quick cul-de-sac, there was actually also

an emergency docket case that was decided a couple weeks ago called Robinson v. Calais. It was about redistricting in Louisiana. We don't need to get into all of the details, but it was a 6-3 decision along ideological lines, but they were flipped. The six conservatives were in favor of basically an outcome that was going to have two Democratic seats for this fall's election. And the three liberals would have preferred the outcome where it would have been only one seat and one Republican seat. So again, like they're literally voting against what everyone thinks their

partisan preferences are along ideological lines, which makes it even a little bit more fun in that case. But on Vulo, you know, this is like the the emphasis because there's really not a whole lot of new ground here. Bantam books, as Justice Sotomayor says repeatedly, as the concurrences from Justice Gorsuch and Justice Jackson emphasize as well. This is just Bantam books. We're just doing Bantam books again, but the Second Circuit got it wrong and they got it wrong badly enough that we're going to correct it. The four factors from Bantam books, one, word choice and tone, two, the existence of regulatory authority, three, whether the speech was perceived as a threat, and four, whether the speech refers to adverse consequences. Now, this is where the Justice Gorsuch concurrence,

which is very short, but interesting to me, I think also is important. The way the Second Circuit aired is important here because they took each of those factors and considered them separately. And they considered them not only separately from one another really, but also separately per incident that the NRA complained of. And Justice Gorsuch's point is these are factors. Like you're supposed to consider the whole enchilada, not each individual ingredient and whether you can sort of parse it so that maybe if you squint, it's okay. But Justice Sotomayor summarizing the Bantam books holding, a government official cannot do indirectly what she is barred from doing directly.

A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. Justice Jackson's concurrence in this case, kind of taking that apart a little bit on how this will be dealt with on remand, pointing out that perhaps there's a distinction to be made. You do the coercion test first. She agrees this meets the coercion test. But whether it's a First Amendment violation, maybe not, because in this case, the state

official was trying to coerce private parties to reject insurance coverage from the NRA. And that's not a First Amendment right to have insurance coverage. But she was doing it for the purpose of retaliating against the NRA for their First Amendment protected speech and that separating those two might be helpful, necessary, et cetera. Another thing worth pointing out, David, we didn't get the qualified immunity. So there's a nice little footnote that says, we're not saying whether in fact the state official is entitled to qualified immunity anyway, which would make this case sort of pointless. Yeah, it would make, although, although this decision is not pointless.

Agreed. Even in the face of qualified immunity. But this is the problem. All of these cases are going to be so fact specific. There isn't, you know, you can have these four factor tests all you want, but as we saw the Second Circuit can apply the correct test incorrectly. And you know, the Supreme Court can't catch them all. I don't know. Like this one seemed like a very easy one to me and yet the Second Circuit got it really

wrong. So I don't know. Yes, it's important in the sense that I'm glad that they came down on the side of speech against government retaliation, all of that. I'm super in favor of, but I just wonder how helpful this is for lower courts. Yeah, that's a really good question

because the general statement that Justice Sotomayor made and the one that Justice Gorsuch repeated and reaffirmed is a quite solid test, but it is actually just a kind of a general statement. There's a lot to be fleshed out in the specifics. There's going to have to be a lot of maturation of this law and we're going to also, of this rule of law, and we're also gonna get, but this is not the last word on this, because we're going to get the social media case this term.

So I'll be interested to see if between Vulo and the social media case that we actually get a lot more practical hands-on knowledge about how the Supreme Court is gonna view the line between convincing and coercing. But one of the things about this case with the Second Circuit, because I remember reading this case when it came the things about this case with the Second Circuit, because I remember reading this case

when it came out and thinking, oh, the Second Circuit's about to rule for the NRA when they outlined the test, because it felt pretty clear to me that the NRA could meet this test. And then they went ahead and ruled for New York. And part of me was thinking, we have the old statement, bad facts make bad law.

These were some bad facts here, like this was coming out in the aftermath of the Parkland shooting, for example. There's also another principle that bad clients can make bad law. The NRA is not necessarily the most sympathetic client, especially in the Second Circuit or in New York. And so part of me wonders about if you had a bad client, said bad facts, or making bad law situation in the Second Circuit. And it was really good to see the Supreme Court

come down here unanimously. I mean, this was nine zero. This was not a close call to them. I thought that was absolutely fascinating. Yep, and I do think that that meeting with Lloyds of London, right? There's the guidance letter that's bad. And I guess I am curious how the Supreme Court would have come down on just the

guidance letter. I think that would have given more guidance to lower courts. The problem is that because you're taking all of it together, the meeting that the insurance regulator Vulo here had with Lloyds of London, where that one's not a close call, really. I mean, she pretty explicitly, as I'll read Justice Sotomayor's take, Vullo made a not so subtle sanctions-backed threat to Lloyds to cut all business ties with the NRA and other gun promotion groups, although there was no sign that other gun groups had also had unlawful insurance policies. It was also relevant that Vullo made this alleged threat in a meeting where she presented her desire to leverage her powers to combat the availability

of firearms, including specifically by weakening the NRA. And then also relevant was how Lloyds interpreted it. Their notes from the meeting are, Ruttrow looks like gun stuff is going to be specifically and politically targeted. we should review that. Like, so they interpreted it as a threat. So yeah, let's put a pin in this. We'll come back to it when we get the social media cases. Cause you're right, they're going to be bookends, maybe. Or on the same end of the book, I don't know.

Our super savant listeners who remember everything that we've ever talked about will know that the Court of Appeals in the social media case applied the Vulo test in the social media case that was coming to the Supreme Court. So the Vulo test was extremely relevant to the social media case. So we shall see. But I think the one-two punch is going to at least, we're going to know more. We're going to know more at the end of that. There was an interesting denial, descent from denial of Arita Sirsarari from Justice Gorsuch. And I just, again, like to point out when people do things that actually aren't remotely

surprising to listeners of AO, but are surprising to people out there in the world. Justice Gorsuch saying that the court, and like really emphatically saying that the court should have been revisiting its case Williams v. Florida that said that it was okay for a state to use a six-member jury panel in criminal cases. He is saying it is outrageous that someone that a Florida court sent Cunningham to prison for eight years on the say of just six people. He would revisit it. There weren't four votes.

So Justice Gorsuch, once again, when it comes to criminal justice stuff, he is further to the left or however you want to think of those issues than really any other justice on the court right now, arguably. And that still comes as a shock to people when I tell them, but I sort of forget that it's surprising, so worth mentioning. Yeah, absolutely. And going back to the Louisiana case,

where you had the three liberal justices dissenting from a decision. The 6-3 reverse ideological case. Yeah, 6-3 reverse ideological. The best explanation that I saw was by Josh Blackmon, who was saying the three were dissenting because they really don't like the Purcell principle. And so they want to get rid of the Purcell principle. And for those who have forgotten what the Purcell principle is, this is the doctrine

that says we're not going to make changes to election law close to the election. And so that has been used to sort of push to post-election decisions regarding election law so that the decisions are rendered well before the next election. And these justices really don't like that Purcell principle. Yeah, I don't think the Purcell principle cuts one way or the other along ideological preferences. If anything, it's an institutional principle. It's interesting that it's falling along ideological lines, but I don't really see the right-left valence per se about it.

Okay, two more items, David. First up, Justice Alito. Flaggate continues, but I have more thoughts because I now feel more strongly than I did before. So if you remember before when this first came out, I said, look, I don't like it. I don't think the flag should have been flown upside down, but there's no evidence really tying this to Justice Alito. There's no evidence tying her to knowing that it was a quote unquote stop the steal symbol. And that I thought at best, even if all those things like turned out to be, you know, that somehow there was some connection here, just

based on the evidence we have, this was like a three out of 10 story without more information, not a nine out of 10 story. I feel so much more strongly about all of this now because they've also now gone after Justice Barrett this week, arguing that her husband, who's an attorney but who does not do Supreme Court work, should have to disclose all of his clients publicly because she's financially benefiting from his clients. And they specifically pointed out that one of his clients is Fox News. Okay, this is a big problem with spouses then because Ruth Bader Ginsburg's husband was also an attorney, but he actually did have cases before the Supreme Court

from his law firm. She didn't recuse from them, let alone that they listed the clients. Lawyers can't list all their clients. Now, maybe you could have some rule where like, if the client is public or okay with it, spouses, you should be allowed to be married if you're on the Supreme Court and your spouse should be allowed to have a job.

They should be allowed to have political opinions. To me, the steady drumbeat of going after conservative justices for things that were never enforced against liberal justices is evidence of motive. And the motive is to undermine the institution because they feel like the institution has been captured by the right. Okay. Second point on Justice Alito specifically, he answered some questions to Congress in

saying that he was not going to recuse himself. And I found it really funny. So not so funny, ha ha, but still. Here's what he said. My wife is fond of flying flags. I am not. My wife was solely responsible for having flagpoles put up at our residence and our vacation home

and has flown a wide variety of flags over the years. So David, her love language is flags. So when someone made her mad. Or her hate language. That's fine, yeah, her language is flag. She speaks in flags. And so this gets to the point here. People have different marriages, y'all.

And I felt like there was a whole lot of discussion of what it quote, must have happened behind closed doors in their house. Well, here's what Justice Alito says. And again, there's just no reason not to believe him. This isn't someone who has been caught lying to the public before or lacks credibility. And so I don't understand why you don't take his statements

at face value, except that you don't like his decisions. Okay, as I stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down. But for several days, she refused. And David, I got to say, I'm feeling that. I understand that because really at the end of the day, you jointly own this house. She is entitled to the full use of the property. And I just mean legally here.

So if your wife flies a flag you don't like and you can't work it out, your choices are to let her continue flying the flag and stay married or get divorced or move out in some other capacity. And if your wife's language is flags and she's angry, and so she's decides to fly this distress flag that had been used by the George Floyd protesters, by the Stop the Steal protesters, basically by protesters across the ideological spectrum.

And you're like, hey, but sweetheart, they're going to think that you're like, hey, but sweetheart, they're going to think that you're associating yourself with stop the steal. And then she goes into some sort of rant about how dare you accuse her of that. And that flag staying up because you know what they called me. They followed me in front of my home and their car and called me the C word. And then she like goes to bed and refuses to take down the flag. I don't know, David, what are you supposed to do? And to the point, why should

Justice Alito have to resign when there's zero evidence that he had anything to do with that? Recuse. Sorry, recuse. I mean, they'd love for him to resign, but recuse. That has nothing to do with his beliefs at all. And again, I point out the Justice Ginsburg, no calls for her to recuse based on her own political statements and on the appeal to heaven flag.

I just find that one so ridiculous. The San Francisco City Council Building Town Hall. What's that called? What's the City Council Building called? City Hall, City Hall. It's called City Hall. City Hall, City Hall, there you go. San Francisco City Hall. City Hall. It's called City Hall. City Hall. There you go.

San Francisco's City Hall took down their appeal to heaven flag that they've been flying for years. They took it down this week. So obviously, no, people didn't know that was a stop the steal symbol. Give me a break. So gonna disagree with some of that. We have conflicting accounts of the all of this with the neighbors. With the neighbors, sure. But we don't have conflicting accounts from Justice Alito. The neighbors don't say Justice Alito was involved at all. They never saw him, they never talked to him. This was all...

No, we do have conflicting accounts between Justice Alito and the neighbors. Justice Alito's story and the neighbor's story does not match. In what way? Multiple ways. Timing, when the C-word happened, who said the C word. Well, except we also have the Washington Post reporter who interviews Mrs. Alito on inauguration day. And she says that she's doing it because of the neighbors.

The neighbors say the conflict didn't happen till February 15th. So that doesn't make any sense because we have a Washington Post reporter who had the reporting on January 21st Well some of the miscarriage some of it was prior to So that the question about the c-word is the c-word appears to be at a different time Perhaps that seems like a probably happened after yeah and from a different person not from a guy from the girl

He said it was a guy did he that was I believe that he did say that it was the guy. No, because the neighbor's a woman and the daughter's a woman. It was always she when it came from the justice. Okay. He always said she. But I agree, the timing of the C word does seem to be off. Meh. Yeah.

But these things, you know, look, I think one of the things that's happening here is that conservatives are saying, I believe Justice Alito. And if you're not a conservative, if you're not somebody who's had a lot of regard for Justice Alito in the past, Justice Alito coming out with a statement doesn't, it refutes the story,

it doesn't rebut the story, or it rebuts, it doesn't refute. In other words, it is an alternative account. And generally when we have alternative accounts from leading political figures, we don't say, well, that settles it. What we say is that's one account, and here's another account, and we try as best as we account and here's another account.

And we try as best as we can to sort through the evidence. But their account has nothing to do with Justice Alito. So their account, I agree, maybe goes to the like how much they pissed off Mrs. Alito before she started flying the flag upside down. But they have no evidence that she had any relationship to stop the steal. And what are the point? There's no evidence tying Justice Alito to any of it, which is the whole point.

Nobody cares about Mrs. Alito. They're doing it because they want Justice Alito to have to recuse himself. But if Justice Alito is saying things that are being refuted as a matter of fact, then one of the issues is how much that it raises questions about the entire affair.

And the question that I have here is, look guys, I get it, I get it. I'm invested in the court as an institution as well. I really am. But this is putting an ordinary American, like come on, you know, come on. This is putting an ordinary American in a position where they're looking at this and saying a Supreme Court justice is flying, outside of their house, is flying a flag that at that time was absolutely associated

with the Stop the Steal movement. To the very, very online, right? It was. But like, I did not know about it. And there's no evidence that they did either. But okay. That's not appropriate. Full stop. Period. And then all the conservative people are like really mad that you're going and you're saying, well, Justice Alito, where's the evidence that Justice Alito was directly involved in this? And I'm thinking, wait a minute, this shouldn't be there. Period. It should not wait a minute, this shouldn't be there, period. It should not be there.

And it shouldn't be at the associate justice. That's fine, but if your wife does something you don't like, what are you supposed to do? I know, but I, we're making a lot of- This is like a feminist rant for me, because the justices still are majority male, and their wives seem to come under a lot of scrutiny. Mrs. Roberts, Mrs. Thomas, Mrs. Alito.

Now I will acknowledge Mr. Barrett is a man, but all of them get tons of scrutiny as spouses for having jobs. Well, no. No, no, no, no. They're under scrutiny because Jenny Thomas was absolutely out of control. Okay, that's one example.

How about Mrs. Roberts? Is she out of control because she works at a legal recruiting firm that she left her legal practice? One of these things is not like the other. But they're all getting it, David. Doesn't that go to the intent and purpose of this? They're attacking all of the spouses. Yeah, they're attacking all the spouses and and some of them are meritorious,

and some of them are not. Jenny Thomas and Martha Ann Alito behaved abysmally. If that is the... Not abysmally. Abysmally, abysmally. Like that, you know, spitting at like this car, like these people called the police. This is ridiculous, like the level of juvenile.

And the police told them they were being silly. The level of behavior being relayed from Martha Annalito is absurd. Like it's absurd behavior. Jenny Thomas's behavior, absurd with a capital A. This kind of behavior is not acceptable. Those are totally different. Jenny Thomas inserted herself into the political process.

She's texting the White House Chief of Staff. I'm gonna give you all of that. Yeah. Martha Anolito didn't assert herself into anything. She had a disagreement with a neighbor and there's a disagreement over what happened. She says that they followed her back to her house to scream at her.

They say that she glared at them while driving by their house. So they called the police and the police were like, we don't do this, ma'am. Ma'am, this is a Wendy's. Like, I get it, but like she didn't insert herself in anything. She didn't call the media

to come look at her upside down flag. So again, this is private conduct by a private individual who is married to a Supreme Court justice. Why isn't she entitled to that? Yeah, no, I don't completely credit. You think Justice Alito was secretly involved and the neighbors just happened to have no even they don't even say that he was. No, I it's absolutely clear that that he so far that there's no allegation that he, so far that there's no allegation that he got directly involved with these neighbors at all.

But it's absolutely inappropriate to have that flag flying at his house. Yes, and he told her to take it down according to him and she refused. Okay, so why don't you believe that? And if you don't, what do you think happened and with what evidence? Well, I'm not saying that I disbelieve it,

but I'm also not saying that that settles it just because he said it. And that's not how we treat any public official. What other evidence could there be? What do you want her to come out and say it too? Like there's no one else privy to it. What we're left with, Sarah, is people are making definitive statements about their marriage. Like, oh, it's obvious that he's fine and she's off the reservation in some way. And we can't crawl into that

marriage. We don't know. There are people because of different kinds of personal experiences that people have. So you think he should recuse because we can't prove that he was involved? No, I've never said he should recuse. I've said this is serious. He has a duty to sit unless he's violating the actual rules of ethics of the court. He's got a duty to sit. I've never said he needs to recuse, but it bothers me how aggressively defensive people

are of Justice Alito giving him a benefit of the doubt here that we all know they don't give to other public officials when they put out their own statement about things. That doesn't settle this. The bottom line is that never should have happened. That's extremely inappropriate that that happened. And it never should have happened. And that's a separate question from the recusal, which is a legal analysis.

But putting that out and having that there at that time is utterly inappropriate, just utterly inappropriate. And then to crawl in and say, but it's all her. Yeah, sure. Maybe. Sure. Maybe even probably. But I'm just not, I'm deeply disturbed that that occurred, that that actually occurred. That is unacceptable behavior. I guess I just don't understand why Nancy and I shouldn't be able to have public statements that you and Scott disagree with

that people don't attribute to you and Scott. Like, we get to say what we want, and you're allowed to say you disagree with it, and there's no evidence that you don't. And so we're just gonna now be like, well, Scott probably agrees, because they're still married, and if he really didn't agree, he should have left her.

That's not what I'm saying at all. I'm saying in my position as a, you know, whatever, which is not nearly the position that Justice Alito has, the, I'm an opinion columnist. I'm not a Supreme Court justice, but even as an opinion columnist and even with a spouse. Yeah, so Nancy comes out and says you don't, something you don't agree with.

And you say, Nancy, that could really hurt my says something you don't agree with, and you say, Nancy, that could really hurt my career. Don't say that. And she's like, you know what? It's what I think, and I'm gonna say it. Now what? Well, I will tell you one thing. A flag that I don't agree with

is not flying in front of my house. You're gonna get in a physical confrontation with your wife over it? I'm just taking down the flag. And she's gonna be there preventing you. You're really gonna, like, you two are gonna have a fight in the front yard about it?

No, we're not gonna have a fight. A flag I don't agree with is not flying at my house. Period. And she says it is. You're making a lot of assumptions. He says that he asked her to take it down and she refused. So either you're gonna physically overpower your wife or you're gonna leave it up until she takes it down. She put it up. You're gonna wait till her, she's asleep? Like what kind of shenanigans are happening? It doesn't say that she physically restrained me from taking down the flag.

Okay, so let's not get a little dramatic here. It's talking about- She says, don't you dare touch my flag. You're just gonna do it anyway. That flag's coming down. That flag's coming down. That flag's coming down. It's in front of my house too, period. End of discussion.

And if I had a- That's not the way my marriage works. If I tell Scott to leave that and he touches it, he's not sleeping at this house anymore. I'll tell you one thing. If I had a position as associate justice at the Supreme Court, that's not flying in front of my house.

Period, end of discussion., peered into discussion. No way, no how. No way, no how. And so David and I can never get married. Good thing we already are. All right. I will agree to disagree. Yeah.

I like it. Next week, Hunter Biden's trial on the gun charges starts. And I thought we would spend a little bit of our next episode doing a bit of a dive into the charges against Hunter Biden, the sentencing guidelines, how those charges would normally play out if your name wasn't Hunter Biden, all that fun stuff. And well, if we don't have a verdict in the Trump trial, then we can talk about the jury instructions. And if we do have a verdict, well, I guess we'll have plenty to

talk about. The Hunter Biden gun charges case starts. He's facing three felony counts in a federal courthouse in Delaware. And so we'll do a deep dive. I've gone through the federal guideline, sentencing guidelines, what he's facing, what would happen if his name wasn't Hunter Biden, all of that and more on the next Advisory of Things.