Advisory Opinions - Thoughts and Feelings on Maryland’s Assault Rifle Ban

Episode Date: August 8, 2024

Our August-themed legal book discussion is postponed for one episode, but don’t fret: There’s more than enough legal news to fill a show, thanks to gun rights and antitrust cases. The Agenda: —Maryland’s assault weapons ban is constitutional —Text, history, and tradition as … rational basis review? Or something. —Original jurisdiction and Missouri’s attempt to put forth a stupid case —Is Google the best search engine? —Boycotts vs. price fixing Show Notes: —Learning to Disagree by John Inazu Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You know what's great about ambition? You can't see it. Some things look ambitious, but looks can be deceiving. For example, a runner could be training for a marathon, or they could be late for the bus. You never know. Ambition is on the inside, so that goal to be the ultimate soccer parent? Keep chasing it. Drive your ambition. Mitsubishi Motors. Ready? I was born ready. ["I'm On My Way To The World"] Welcome to Advisory Opinions. I'm Sarah Izgur, that's David French and David, not the most auspicious start to our

August book season. We were hoping Yuval Levin was going to be able to join us to talk about his new book. He's had to reschedule, but not to worry. We have plenty of legal content for today and Yuval will join us later this month. So we're going to talk about the Fourth Circuit's en banc decision about the Maryland assault weapons ban. Then we'll do a little original jurisdiction as Missouri tried to sue New York over its prosecution of Donald Trump.

And finally, a lot of antitrust in the news. Big judgment against Google for being a monopolist and Twitter files its own antitrust in the news, big judgment against Google for being a monopolist, and Twitter files its own antitrust lawsuit against advertisers claiming that their boycott was an illegal antitrust violation. Well, David, let's start with the Bianchi opinion. This is about Maryland's assault weapons ban, and boy, it has gone up and down and up and down. It was a 10 to 5

en banc decision. The 10 judges on the 4th Circuit upholding Maryland's assault weapons ban as being constitutional. Interestingly, it almost fell along ideological lines, but not quite. So the majority opinion was authored by one Judge Harvey J. Wilkinson, who is an incredibly famous conservative judge, was mentioned for the Supreme Court too many times to count. He's a Reagan appointee. He authors this majority opinion, which is going to be really fascinating. The main concurrence that takes a different tact also authored by, well, it's interesting because Judge Gregory was first nominated to the Fourth Circuit by President Clinton, but his nomination ran out right around the election and he was renominated by President Bush and confirmed

under that nomination. And it'll be interesting because he's a Clinton-Bush nominee and he's going to write the middle road concurrence as well. I think it really furthers my, oh, look, the filibuster was doing some work here and really sort of forcing those more moderate, less ideological judges to the bench. And then the dissenting opinion, all five dissenting judges were nominated by Republican presidents, but across many, many decades of Republican presidents. The Fifth Circuit and the Fourth Circuit, I believe, are the only two circuits left that have Reagan appointees on them. So two Reagan appointees apiece, Jones and Smith in the Fifth Circuit and Wilkinson and Niemeyer

on the Fourth Circuit. So fun, fun fact. Okay, David, this is 183 pages of a lot of thoughts and many feelings on guns. Before we dive into some of the more detailed details here, do you want to give us your top level? Yeah, my top level is this outcome where the court on a 10 to five basis says, upholds the assault weapons ban. I thought that this outcome was almost inevitable after Rahimi because as soon as Rahimi lifted

the sort of you have to have the exact analogy, historical law to empower any current regulation, as soon as that's gone and it's all now arguing by analogy, then this becomes much more, to quote Justice Gorsuch in the conversation last week, a matter of judgment. In other words, it's gonna be much more about kind of what are the elements of the history that the judges find the most compelling. And so I did think what was interesting, and we can dive into this more,

is that they made an interesting historical argument that if you go back to the colonial period, interpersonal violence wasn't all that deadly. You could have interpersonal violence and there was certainly interpersonal violence, but because of the technology of weapons at the time, in particular firearms, really interpersonal violence was not nearly as deadly and interpersonal violence did not get more deadly until well into the 19th century and so therefore the early American total more laissez faire approach just wasn't a match.

And so I thought that was a very interesting argument, Sarah. This gets to one of the problems that we've talked about with text history and tradition, the what if they didn't maximize their regulatory power, even if they had it? And under the Second Amendment, I think that's most obvious. And they make, I think, the best argument for why they wouldn't have legislated to their maximum power under the Second Amendment. Oh, because they didn't need to.

And so the majority's argument is that, in fact, you want to look to those late 19th century, early 20th century laws to determine what the text history tradition of the Second Amendment is because that's when Congress and state legislatures are first grappling with these types of similarly deadly weapons and this level of interpersonal violence, mass shootings, things like that.

Do I think that that's going to win the day on text history and tradition? Absolutely not. Because David, at that point, text history and tradition has no purpose, if you will. Yeah. Like, oh, well, you can wait until the law is necessary. And then that's the history. I mean, at that point, you can just say that Maryland's assault weapon ban came about when an assault weapon ban was necessary and therefore it's constitutional. That makes, that doesn't work.

It doesn't provide any additional scrutiny to the laws whatsoever. So while I think it's clever, while I think this is a problem with text history and tradition, the problem isn't solved by then saying like, so we can just look to modern laws and then if they're there, then they're constitutional. Wait, what? So let's just go over some of the facts here. This assault weapons ban covers a whole lot of weapons, but obviously the one that's going to be most impactful is the AR style weapons. As the dissent points out, AR style semi-automatic rifles represent 20% of all firearms sold in 2020, that at least 16 million Americans owned a semi-automatic rifle at some point, and that over 50% of semi-automatic rifle owners indicated that

they own the weapon for self-defense, hunting, or another lawful purpose. I guess I'm curious about the other 50% that in answering a poll said that they own it for a unlawful purpose. I guess I'm curious about the other 50% that in answering a poll said that they own it for a unlawful purpose. Confused about that one, but okay. This was a facial challenge. And as we dealt with this past term, David, the Supreme Court, not feeling the facial challenges in the First Amendment context.

Yeah. But here, the majority says that the facial challenge should fail because otherwise you couldn't ban any of these dangerous weapons. And the dissent saying, no, a facial challenge is fine here because all of these are arms that are encompassed by the Second Amendment. We're going to see this repeat over and over again, where the majority and the dissent can't even agree on what they're trying to apply, like what the Supreme Court precedent is. And this gets to one of the other concurrences that doesn't go to the merits, but simply to the mess that has been created. I'll just read this line. If courts are to apply and replicate precedent consistently, then either the Bruin framework

is failing or we are. And if the cacophony of decisions we've seen post Bruin is any indication, then confusion isn't simply a bug of the framework, it's a feature, even if unintended. Hewing true to our oath, we've done our best to apply Bruin faithfully, but the law shouldn't work like this. Strong words.

Yeah, and I think pretty well said, but it's not just Bruin, Sarah. So here's this really interesting dynamic in this case, which has been an apparent tension since Heller. So if you go back and you read Heller versus District of Columbia, which established the individual right to keep and bear arms, it does two things.

When it's sort of talking more broadly about gun regulation, it talks about, well, the Second Amendment extends to guns that are in ordinary use. In other words, like common use for, you know, ordinary use for a lawful purpose or common use for a lawful purpose. So then if the test is ordinary use, it's common use, ordinary use, well, the AR-15 happens to be the most popular rifle in the United States, it would almost define ordinary use. And very rarely amongst that huge population of people who possess an AR-15 is one used for crime,

certainly less common than say, the use of a handgun for crime. So you would think, okay, well, Heller, we don't have to get into text history and tradition because Heller has the test, ordinary use, lawful, you know, common use, a lawful purpose, et cetera. But then Heller also says this, Sarah, it may be objected that if weapons that are most useful

in military service, M16 rifles and the like may be banned, then the second amendment right is completely detached from the prefatory clause. So in other words, it's talking about specifically M16 rifles and the like, okay, as something that can be banned. Okay, well, if you're somebody who knows your firearms, you'll know, you're probably jumping up and down

right now listening, David, an M16 isn't an AR-15, an M16, yes, I know. I know M16s have a three round burst capacity, the more modern ones, but the phrase and the like. Does this mean the AR-15, which doesn't just look like an M4 or an M16, it basically is an M4 or M16 without the three round burst. Does that remove it so far from the M16 that it is no longer and the like?

And that's, what do you do if you're a lower court, Sarah? I feel real sympathy. I feel real sympathy because I read this majority opinion, and I think this majority opinion is bonkers town. Set aside the outcome, actually, because we'll get to the concurrence. Not bonkers town adjacent, bonkers town. Bonkers town. I think the concurrence, which comes out with the same outcome, by the way, is totally reasonable. Interestingly, no one joined it. So once again, I am the remnant,

Jonah. I am the 5% of now leftover double haters, and I'm the only person joining Judge Gregory's concurrence. But here's the problem with the majority, and I do believe that Judge Wilkinson and the rest of the nine, sorry, the eight who joined Judge Wilkinson in that majority opinion are trying their best to muddle through the Bruins stuff. But they say that the Second Amendment isn't even implicated here because AR-15s aren't arms as contemplated by the Second Amendment because they are not a weapon primarily used for self-defense, but rather they are military style weapons. And so they're not included in the Second Amendment at all.

Okay, that doesn't make any sense. So first of all, the Second Amendment talks about militias. So the idea that because a weapon is also used in the military, therefore that is by definition means it's not included in the Second Amendment, that makes no sense to me. Also they sort of jujitsu the commonness of the AR-15, not by looking at, of all the people who own AR-15s, how many are committing crimes. As you say, David, the number is going to be very small percentage-wise. But rather, they look at the people committing crimes and what gun they tend to use. And guess what? They tend to use an AR-15 or an AR-15 style weapon. They talk

about narco traffickers using weapons that are on this list. Basically, all of the mass shootings that we have, you know, cried about, almost all of them, slash all of them have used AR-15 style weapons. So they look at that and say, therefore, this isn't even encompassed in the Second Amendment, so we're done. Pfft, mind blown. Yeah, yeah. That makes no sense. Obviously, it is an arm, therefore, it's covered by the Second Amendment.

I think, again, you can get to the outcome where the law is constitutional, but to say that it doesn't even implicate the Second Amendment to ban a gun doesn't... Okay, no. So then number two, they cite the common use language from Heller and Bruin, but basically they say that that doesn't make any sense because all that means is if enough people get their hands on a gun before the state can regulate it, that then the state can't regulate it. I totally agree. It doesn't make any sense. So, yep, you've pointed out a flaw, but it's nevertheless in the opinion. And then last, of course, is the text history

and tradition problem that we already talked about, David, this idea that because they're right, there isn't any real history of this at the founding. Don't worry about that, because you can use more modern laws if the problem wasn't a problem back then. Again, I think that's a real problem with text history and tradition, but it's definitely not what the Bruin or Rahimi test we're looking at. So this gets me to how the concurrence characterized everyone else around him. So he says, the majority says the Second Amendment limits its purview to weapons in common use today for self-defense and their estimation only those weapons that are typically possessed by average Americans for the purpose of self-preservation and are not ill-suited and disproportionate

to achieving that end are entitled to constitutional protection, i.e. AR-15s, we don't even get to the Second Amendment heat. The majority compares it to incitement in the First Amendment. They don't even need to get to a First Amendment analysis because incitement is not speech. Therefore, it's not protected by the First Amendment. They don't even need to get to a First Amendment analysis because incitement is not speech. Therefore, it's not protected by the First Amendment. So then you have the dissent. And this is again the concurrence characterizing the dissent.

At the other end of the spectrum, my colleagues in the dissent read Bruin much more broadly and posit that any weapon in common use for lawful purposes is necessarily not dangerous and unusual and is therefore automatically protected by the Second Amendment. And then he goes on to his version. Rather, I interpret the Supreme Court's precedent to date as establishing that the Second Amendment presumptively protects all bearable arms. But history supports regulation of arms that are dangerous and unusual, including but not

limited to those arms not presently in common use." And David, how does he do this? So he takes the analogy issue that we've also had with text history and tradition and takes that analogy up 80,000 feet into the air. Basically, when we've talked about the, you're not allowed to terrorize people going a fray, things like that, those laws that were mentioned in Rahimi for why you could disarm someone. He says, look, so in my view, those laws demonstrate that our nation has always permitted legislation regulating certain aspects of the way in which an individual chooses to exercise his Second Amendment right.

In other words, although we have the right to bear arms, a legislature may prohibit us from exercising that right in a manner that could cause harm to or terror in others. I'm on board, David, like, but it, I think once again, blows a big hole in the text history and tradition model because, you know, I'll'll make it horizontal and vertical. There's the horizontal problem of when you find your analogous laws.

And obviously the majority uses the horizontal method and uses a 1917 law to say, look, see, legislatures were banning machine guns in 1917. Therefore you can ban different types of dangerous weapons. Therefore this law is fine because the danger, different types of dangerous weapons. Therefore, this law is fine because the danger, you know, those types of weapons didn't exist. And as you pointed out, David, as they said, the interpersonal violence death toll hadn't really become a problem. Even knives weren't that dangerous back at the founding. So of course, they weren't legislating this stuff. So that's the horizontal problem, the timeline problem. But then there's the vertical

problem. How analogous does it have to be? Now, of course, the majority by using the timeline gets to a very analogous law in the 20th century. And here you have the concurrence, which I think has the better part of the argument, using the vertical part. How analogous? Well, obviously, they couldn't ban AR-15 style weapons back then because they didn't exist. So at what level of analogy do you need to use? The dissent of course is going to argue the level of analogy would need to be banning muskets because that's the equivalent-ish weapon that was both used in military and militias and for self-defense. Well, they didn't ban muskets. Therefore, you can't ban AR-15s.

The concurrence is saying like, no, no, no, no, no, no. They had laws that regulated who could keep a gun and various ways in which one might abuse the privilege in owning a gun. And therefore, as long as they were regulating under the Second Amendment, we can also regulate under the Second Amendment. Don't worry.

And at that point, like that's not an analogy anymore, David. That's just the Second Amendment has some limitations there for all limitations work. This is not a problem with the majority, the concurrence or the dissent. This is a problem with the test. Yeah, I mean, when I read this, I thought, this is text history and tradition as rational basis review.

Or something, yeah. It's something, it's like text history and tradition as, if I can find a regulation in the history, I can regulate. I mean, it's really how it came across. And the most interesting part of the majority opinion though is still is what I said, narrowing and zooming in on this Heller issue, which is what is the tension?

What if an actual gun mentioned in the Heller opinion is bannable? It's very close to it. It's very, very, very close to it. And the language says, and the like. But also the opinion talks about something that is used commonly for a lawful purpose. And AR-15 almost defines the term common use, lawful purpose. And because if you-

But it's also the favorite gun of criminals. So how is the text history and tradition test, or how is the common use test supposed to deal with that? On the one hand, there's so many of them out there. The number of people who use them for crimes is infinitesimally small as a percentage, but also the number of people committing crimes with guns, love this gun.

Yeah, well, it is the favorite gun for a particular kind of criminal, the mass shooter. It is not the favorite gun for criminals, which is the handgun, which is- Thank you. Yes, but I think that, sorry, you're absolutely right. But the point was that Maryland is trying to prevent mass shootings.

And so they want to ban the gun that is most likely to be used in a mass shooting. Right, yeah, exactly. And so I honestly, I think the Supreme Court's got, is the Supreme Court has to take another one of these. Ha. podcast before, and the folks at APCIA want you to learn more about it. Third-party litigation funding allows investors, even foreign entities, who have no relationship to the claimant or issues being litigated, to invest in a lawsuit. This practice drives up the cost of goods and services for every American family, individual,

and business, regardless of whether you're involved in the litigation. It also impacts insurance affordability and availability. Because of that, APCIA says it's time for transparency and mandatory disclosure of third-party litigation funding. It's time for sensible reform. To learn more about third-party litigation funding, visit apci.org. That's apci.org. Well, this gets to a fun question of what the vehicle is. Paul Clement just filed a petition out of the First Circuit, but it's in a preliminary

posture failure to get an injunction against the First Circuit assault weapons ban. I think this one's a better vehicle. I think you've got an en banc court. I think you've got Wilkinson in the majority, Gregory in concurrence, Richardson writing the dissent, all the highly respected judges. It's just, and it's obviously on the merits, it's a much better posture for the court to take it

if they want to do another gun case next term. Ugh. Well, let me put it this way. Do they, I guess, do they? Because has a circuit court yet struck down an assault weapons ban? Not that I can think of. That's the issue here, I do wonder.

Will they wait until they have to overturn, as in if the status quo hasn't changed, they can ride for a little bit? Yeah. Yeah. By the way, this, speaking of the procedural posture for some of this, the procedural posture on this case is interesting and just raises it's mentioned in footnotes in the majority in the dissent. It raises some shenanigans, David. So I'll read you what the dissent says happened here. After hearing the case in December 2022, so the Supreme Court sent this back

down in light of Bruin and was like, try again because you used the wrong test. So they hear the case in December 2022, the initial panel reached a decision and promptly circulated a draft opinion. So they were going to strike down the law, it was two to one on the panel. Yet for more than a year, no dissent was circulated. The panel thus held the proposed opinion in accordance with our custom that majority and dissenting opinions be published together.

A year later, as the proposed opinion sat idle, a different panel heard argument in basically the same type of case. That panel quickly circulated a unanimous opinion that reached the opposite conclusion. So it was going to uphold the assault weapons pan. Facing two competing proposed published opinions, the court declined to let earlier circulated opinion control.

Rather, in January 2024, the Fourth Circuit invoked the once extraordinary mechanism of initial en banc review, as in no panel opinions published and they went directly to the en banc court. The dissent here says, I hope that we will not find ourselves in this posture again soon, and notes that majority opinion may be issued without awaiting dissenting opinions to prohibit those dissenting opinions from exercising a pocket veto or to deny or delay fairness and justice. That is a problem, David, when any case sits for a year at the circuit court after the majority opinion was circulated right away for any reason, frankly, but especially for

gamesmanship reasons or for waiting for another panel to get drawn that you think will actually take your side and make your dissent a majority. And I hope that we don't see that happening on other circuits, but you'll talk to litigators and they'll note that, boy, there's some random stuff out there that is just sitting for years sometimes and they don't ever hear. Oh, I have experienced that. Yeah. Oh yeah. I had a case where two,

we had a summary judgment motion that sat for more than a year, was decided against us, went up to the Fourth Circuit, got a reversal of the summary judgment, came back, they filed a renewed motion for summary judgment. After that, the judge sat on it for more than a year again before denying that motion and setting a trial date. I mean, this is the kind of stuff that drives litigators crazy, justifiably, I would say.

There's no excuse, no excuse for an opinion hanging around for a year. Are we kidding? But yeah, I saw that, Sarah, and that was fascinating. By the way, the majority says, we thank our friend Judge Richardson for his dissenting opinion. The procedural history to which he alludes reflects nothing more than the good faith efforts

of every member of our court to reach a well reasoned decision in a challenging set of cases. Thank you for your thoughts. Yes, your comments are taken under advisement. Look, I'll tell you, I think the majority here knew the outcome that they wanted to reach. And I say that because the idea that you get to skip the Second Amendment entirely on laws

like this under the Bruin test makes no sense. Now, they do go on. And as I said, they apply that text history and tradition. Okay, but if it was in the ambit of the Second Amendment, how would we apply it? But the majority is nowhere close and that's why I think the Supreme Court sort of like how I said that the Supreme Court would have to take the Trump immunity case after the DC Circuit's opinion was nuts, even if they wanted to reach the same conclusion, because the methodology and their reasoning

was so bonkers. Part of the reason, even though this does keep the status quo in place, David, is that the majority reasoning here is nonsensical, honestly. I would put it as a less than 1% chance that the current Supreme Court says that the AR-15, the most popular rifle in America, is not part of the definition of the word arms.

Yeah, that's a no. No, that's a big no. I think you'll get zero votes for that from any justice on the Supreme Court that the Second Amendment isn't even implicated by an assault weapons ban. No, that's a big nope. That's a no dog from us here. And then once we get into Texas string tradition, like we've said, I think it's a hot mess.

I think the Supreme court created that hot mess. This gets to Justice Kagan's point perhaps on having too many concurring opinions. David, I mean, we both like them for our purposes. You like them even for some legal purposes, but I think this is a great example of concurrences muddying the waters to some extent, trying to signal to lower courts about how you would vote in that future case, but without actually getting to say it.

And I don't think that's been helpful in the Second Amendment context. I think the lower courts would actually be better off with less rather than more at this point. So here's the question that I have, Sarah. How does the Supreme Court respond to an assault weapon ban? I think much closer to Gregory. I tend to think, so I put these in two different buckets. Bucket one is the actual assault weapon ban itself, which is the ban on the rifle. Bucket number two is the large capacity magazine ban. Now, I think the court is going to be more hospitable to a large capacity magazine ban than it is going to be to the ban on the

semi-automatic rifle itself. Because let's be clear, the thing that makes the AR-15 particularly deadly is not that it is a semi-automatic rifle, it's that it's a semi-automatic rifle with a large capacity magazine that is very easy to attach, use, shoot. Now, yeah, the AR-15 does have some advantages for somebody who's just picked up a rifle over an old 30-06 deer rifle

that maybe your dad had in the closet. But what really makes this more deadly is the magazine, not the fact that it's a semi-automatic rifle. You don't think that the AR-15 is more deadly? Like a single shot from an AR-15 versus a handgun? It's more deadly coming from an AR-15. Oh, but not more deadly than a single shot from an AR-15 versus a handgun, it's more deadly coming from an AR-15. Oh, but not more deadly than a rifle shot from another kind of rifle that is not in the base.

So for example, if you have a deer rifle that is definitely not in the definition of the assault weapon, that deer rifle is going to be in most circumstances a more deadly weapon shot for shot than the AR-15. But you're going to have to reload. But you're going to be in most circumstances, a more deadly weapon shot for shot than they are 15. But you're gonna have to reload. But you're gonna have to reload, yes. So, you know, the prediction business in this is pretty bad, but I think you're exactly right

that the large capacity magazines are actually a pretty easy case. I think that the assault weapons ban, I actually wonder if you'll see something like the combo of the vertical and horizontal. So look, there were laws at the founding that obviously allowed legislators to deal with problems facing their communities related to people trying to hurt other people. And when this started to become a problem of mass shootings, legislators immediately started trying to address those problems.

So states, therefore, can try to address problems of mass shootings. OK, I still think that's pretty tortured on the Texas Street tradition stuff. If you were to use some form of tears of scrutiny, though, David, then I think it becomes a very easy case to uphold these laws. Because, yes, it implicates a core right. But here, I think the state a very easy case to uphold these laws because, yes, it implicates a core

right, but here, I think the state has an overwhelmingly compelling interest to prevent bodies piling up of dead children, as the majority puts it, in various elementary schools, and this is the gun of choice. So yep, you're going to ban the most popular mass shooting weapon. And again, not just most popular, universally used mass shooting weapon because that compelling interest. It is so compelling in a way that it's hard under strict scrutiny to get to a compelling interest, for instance, to ban speech. I think it's hard to get to a compelling interest in a lot of other areas.

But shooting up elementary schools, which is now happening multiple times with dozens of dead babies, that seems pretty compelling to me. And so again, if you try to use text history and tradition, I think it's a mess, but I think you can get there in sort of my combo of vertical and horizontal and in the tears of scrutiny, I think it's much easier. I don't know where your votes are for that because we did because of the concurrences, get to sort of count out everyone being pretty in favor

of text history and tradition on the six, but I don't know, David. And that's not to say that I think these laws are particularly effective. Yeah. Yeah, but you know, the thing that I would say, let me zoom back in the gun control world more broadly. And this is an argument that I made many years ago

as these mass shootings were ramping up. I said to my friends in the gun rights community, I said, look, we need to think creatively about how to deal with mass shootings or the continued existence of mass shootings is going to do more to undermine gun control, I mean, gun rights, than almost anything else. Even more than crime waves, et cetera. These mass shootings, because of the impact they have on a community,

the impact they have on a nation, the impact they have at scale on all of the families. Look, guys, you've got to come up with some creative ways to deal with this, or you're going to see the blunt instrument. That's right. And the blunt instrument. And so, you know, one of those ways of dealing with this was what I talked about, and I've talked about a million times, is the red flag law, which the red flag law, under Rahimi, is going to be upheld unless it's just horribly drafted. But so was the red flag law. And the idea and the resistance to that, and even for like five seconds, it's interesting,

Sarah, after Parkland, for about five seconds, even the NRA endorsed the red flag concept. And then the sort of the much more extreme folks dove in and said, no, you give an inch, you give an inch and they'll take a mile. No, no, you give an inch, you give an inch and they'll take a mile. No, no, no, it actually might be that if you don't give an inch down the line, the mile will be taken anyway. And I feel as if one of the issues that you've seen here is that lack of willingness to work. And again, why I go back to the red flag laws

is a very good reason. There was a National Institute for Justice funded study that demonstrated that more than half of mass shooters broadcast their intentions in some way before they engage in a mass shooting. So if you have that data point, right there, that tells you you have a point to work on. You have a point of vulnerability that these mass shooters have

that you can exploit. But no, again, no, no, no. There was absolute resistance to that. And here we are, and I agree with you, Sarah. I think that either the assault weapon ban or more likely the large capacity magazine ban, I think ultimately gets upheld almost no matter the test. I'm much more iffy about the assault weapon ban itself, but I'm much more firm on the magazine capacity. To me, this fits pretty well into the 333.

Obviously, the three liberal justices are going to look much like the majority opinion here, I think. I think that the three YOLO justices will say that there is a way to have an assault weapons ban. You need to amend the Constitution. It doesn't mean that these guys got it right back then, but we don't just evolve their rules. You have to actually have sort of the popular will to do it.

And then I think you have the three institutionalist justices that are the big question mark, because as they say, I think that the actual test history and tradition test is pretty hard to ban the assault, sorry, to uphold the assault weapons ban under the text history and tradition test as we saw in Bruin. But institutionally, the idea that states, Congress, that nobody has the ability to try to address mass shooting problems through a variety of means, like you mentioned red flag laws, okay. Large capacity magazine bands, okay. If you try those and you still have a mass shooting problem and the Supreme Court says, look, practically speaking we're not gonna have an amendment

and there's nothing you can do to get these guns off the streets, that's an institutionalist concern. That's a consequentialist concern. So we'll see. I think it's a really tough call of whether they take this at all, though. A year after Rahimi, but they're piling up the assault weapons ban, the large capacity magazines. I mean, we're just seeing tons of these cases as the lower courts struggle left, right and center to do this. Yeah. I mean, and if the lower courts continue to be united

in upholding these large capacity magazine bans and assault weapons ban, the Supreme Court may not intervene for a while, but it's hard for me to imagine them leaving this just indefinitely. Yeah, so obviously the Supreme Court declined to take the Illinois case that left the Illinois assault weapons ban in place.

We have some lower courts, some district courts that have struck down assault weapons bans, but those haven't percolated up yet, to your point, David, about the status quo issue. And then a quick survey shows there's about 10 states plus the District of Columbia that even have these bans. So circuits like the Fifth Circuit and the Eleventh Circuit are less likely, slash, not going to get those cases teed up there.

So we'll see. Obviously, with the Illinois case, they didn't take that one. Clement's First Circuit Challenge will be next up, but I think the posture of that one's a no-go. So this is the best vehicle left, but to your point, David, it leaves the status quo in place. They can pass and just wait until one of these other cases percolates up through another circuit whenever they want, because they're going to keep percolating. All right, should we move on to original jurisdiction?

Yes, indeed. And hat tip to Jonathan Adler over at Volit Conspiracy for writing this up. So I do remember this. And I don't think we covered it, David, because it was so dumb that I didn't feel the need. But it was a mistake for us not to cover it. Missouri tried to sue New York under the Supreme Court's

original jurisdiction for prosecuting Donald Trump. And there, as Adler puts it, to call the underlying legal theory aggressive would be an understatement. Something about how the state law prosecution of a presidential candidate unconstitutionally inhibits the ability of Missouri voters and electors to support the candidate of their choice? Sure. And David, if you remember Article three of the Constitution says, in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original

jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." So this is pretty fun in a lot of different respects, but we'll keep with Missouri suing New York for a second because the Supreme Court, despite that language that definitely has the word shall have original jurisdiction, you in fact still have to ask the court's permission. So you have to file a motion for leave to file a bill of complaint. And the Supreme Court, 7-2, said, we do not give you leave to file that bill of complaint. Now, in doing so, this is the order in full. Missouri's

motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot. Justice Thomas and Justice Alito would grant the motion for leave to file the bill of complaint, but would not grant other relief. In fairness, David, I haven't seen a ton of headlines screaming about how Justice Thomas and Justice Alito think that Missouri should get to sue New York and prevent state prosecutions and overturn Trump's conviction. But if they had said that, they would have been a real dumb because this is a long standing

fight. They would have been dumb. This is a long standing fight where Justice Thomas reads the text of the Constitution to say that the Supreme Court does not have the ability to turn away such cases, that in fact you just have to nod dog them on the merits, if you will. And so this is like over and over again, basically each time the Supreme Court denies these motions to file a bill of complaint, you see Justice Thomas explaining how actually that's not our call to make. Here was also Justice Thomas and Justice Alito in Arizona

v. California. The Constitution establishes our original jurisdiction in mandatory terms. Article 3 states that in all cases in which a state shall be a party of the Supreme Court shall have original jurisdiction. In this circumstance, we have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given." Citing, of course, Chief Justice Marshall from 1821. Original jurisdiction in suits between two states is also exclusive, meaning nobody else can even hear such a case, so it doesn't get heard unless the Supreme Court hears it. The Court has provided scant justification for reading shall to mean may.

It has invoked its increasing duties with the appellate docket and its structure as an appellate tribunal, but the court has failed to provide any analysis of the Constitution's text to justify our discretionary approach. And David, you and I talked about it after he wrote that and we were like, yeah, that just sounds right. Yeah. And the thing that is interesting about this, Sarah, is yeah, that sounds right. And there's an easy way where you, in a way, what we're dealing with is it feels like you've got states who are filing a lawsuit and the court is essentially treating this motion for leave and opposition to motionorize the response as a motion

to dismiss and which the court grants or denies. And then if it denies it and it sets it for a more complete, you know, a full hearing like a more normal, almost like a writ of tertiary or sets an evidentiary hearing that there has to be evidence. But I'm not understanding quite why you have a motion for leave to file that then gets denied when it all ends up looking like 12b6 motion to dismiss practice anyway. Like, so I'm not quite sure why it's why it's done like this. I mean, again, it's such a great example of that low institutionalism. Because yeah, institutionally,

we don't want to spend time on cases that are stupid. So we just say no upfront. But you have the non-institutionalist saying, like, forget your efficiency argument. That's irrelevant. The text of the Constitution says we have to dismiss it on the merits, not dismiss it before the merits. Yeah, very, very Y-axis stuff going on here. But I don't see the institutionalist problem with saying this is a motion to dismiss. I don't know. I mean, it feels like semantics in a way. It is semantics. And it is semantics. And I think both sides argue it's semantics.

It's semantics, so why don't we just do it my way, says everyone involved. Exactly. I thought this would be a fun opportunity to go down a little bit of memory or not so distant memory lane, because remember the text of the constitution said, with such exceptions as Congress may provide.

And David, in your lifetime, in my lifetime even, much shorter lifetime, obviously, the Supreme Court had mandatory jurisdiction. Also, if a state court, the high, you know, a state Supreme Court struck down a federal law as unconstitutional or invalidated a state statue in the face of a federal law. And this actually was about 30 to 50 cases a year that the U.S. Supreme Court was having to take.

Congress changed that law in 1988 after null-nine justices begged them to do so and said that it was clogging up their docket with nonsense stuff. It's really interesting to see the charts of what happens next. We've talked about how the Supreme Court's been taking fewer and fewer cases, deciding fewer and fewer cases, and this act becomes really interesting because if you look at the graph of how many cases the Supreme Court decides in any given year over time, what you see is a huge drop-off in 1988. And so it would be really easy to say like,

oh, well, that's because the Congress changed their mandatory jurisdiction. And so there you go. Except that doesn't really account for it because what actually happens is that from the appeals granted these mandatory appeals, obviously you see a drop off from about 43 in 1986 or so to zero basically for the rest of time.

Okay, so we lose about 40 of those cases, but at the same exact time, you see a big drop in cert petitions granted as well, which makes no sense because actually, you should see an increase. Let me explain. Once those appeals weren't mandatory to the Supreme Court, they then would have to file cert petitions

asking the Supreme Court to hear their appeals. So you should see an increase in the number of cert petitions and indeed you do. That should mean that some of those cases, yeah, fine, maybe not all 50 are meritorious, but you'd think a few of the state Supreme Courts striking down federal laws probably do warrant Supreme Court

review. But in fact, the cert petition grants go down at the same time. And one academic study actually found that, of course, this didn't affect criminal jurisdiction, only affected civil. So if this were all driven by the 1988 Act, you should expect to see a drop perhaps in civil grants, but not, it shouldn't have affected criminal grants one way or the other. But in fact, you did see a drop in criminal grants. So it's really interesting as we start to think about why the Supreme Court's taking so few cases and the different theories for that. And of course, as we mentioned, Justice Kagan in her Ninth Circuit remarks, she answered that with, nobody knows.

But I thought it was fun to think back to the last time they really had congressionally mandated appellate review for these state court judgments. And they didn't like it, David. They don't like mandatory review, is what this means. Don't tell us what to do. That's right. You're not the boss of me.

In fact, we'll go from taking 150 cases to 60. How do you like them apples? So David, we also have all of these big antitrust cases. You have the judgment against Google holding that they're, the very quick version of this, is that they share advertising revenue with Apple for making them the default search engine on Apple iPhones, for instance. And what the judge found is that that was monopolistic. Now, of course, Google is also by far the most popular search engine. The question was whether they're the best search engine.

The judge also found that, yes, they're also the best search engine, but that nevertheless, they were preventing competition from others who might like to become better search engines but can't because they're not getting access to the data because they're not used as often. It becomes very circular. I find this to be totally bonkers town nonsense. Not that the judge misapplied the law. I don't think he did. But that this is the law that the Sherman Antitrust Act, I think is an unintelligible principle from Congress that you can punish companies for trying to prevent their competitors from putting them out of business, basically. And similarly, we also saw that Twitter filed a lawsuit arguing that when trade organizations

of advertisers decided to boycott Twitter for their basically health and safety of users functionality, that that was an illegal boycott because same thing, right? It's a violation of the Sherman Antitrust Act. And if you're thinking to yourself, how in the world are boycotts illegal? Let me read you from the Federal Trade Commission's website. Any company may on its own refuse to do business with another firm, but an agreement among competitors not to do business with targeted individuals or businesses may be an illegal boycott,

especially if the group of competitors working together has market power. For instance, a group may be used to implement an illegal price fixing agreement. In this scenario, the competitors agree not to do business with others except on agreed upon terms, typically with the result of raising prices. An independent decision not to offer services at prevailing prices does not raise antitrust concerns, but an agreement among competitors not to offer services at prevailing

prices as a means of achieving an agreed upon and typically higher price does raise antitrust concerns. But that's not a boycott. That's price fixing. That's price fixing. Yeah. So if the boycott is in the act of price fixing. Sure, yeah. Sure, right. We're going to punish someone. Elon said at a New York Times event, he told advertisers to go f themselves. And so they did.

And so they did. It's going to be a very interesting challenge here, Sarah. Here's the rest of the FTC website. Boycotts for other reasons may be illegal if the boycott restricts competition and lacks a business justification. The FTC charged a group of California auto dealers with using an illegal boycott to prevent a newspaper from telling consumers how to use wholesale price information when shopping for cars.

The FTC proved that the boycott affected price competition and had no reasonable justification. Look, is this in the heartland of illegal boycotts? No. Is it in the curtilage? Maybe. And once again, I think that's insane. Why shouldn't advertisers through their trade organization decide that they don't want to advertise with some groups.

There's gonna be a big First Amendment issue here. Also association, right? Yes, absolutely. So does this then mean if Elon wins that Gab can file a lawsuit and say, why aren't you advertising on our white supremacy site? You know, it's absolutely, yeah, that case, let me put it this way, the Google case,

I'm a little, maybe, maybe the Twitter case, I would be very skeptical that that's going anywhere. The Google case, I would love to be able to have a real good conversation with somebody who's up to his eyeballs or up to her eyeballs in antitrust and figure this thing out. Well, funny you suggest that David, because I have reached out to just such an antitrust expert and former FTC commissioner. So hopefully we'll be able to have him on the podcast soon to explain a whether this is the correct decision

under current law and be whether current law makes any damn sense. It doesn't to me. And you know, in the past, I've said antitrust laws made up and I heard from quite a few antitrust practitioners who agreed. Which was fascinating. Yes. I get to the sort of fundamental constitutional problem, David. Is there a constitutional prohibition on Congress regulating inter-corporate competition? That's question one. Question two is whether the Sherman Antitrust Act itself gives any intelligible principle to the Federal Trade Commission to be able to implement that simply saying that in you know, things that inhibit competition are unlawful. Literally being in business is about inhibiting

competition, you don't want your competitor to get better than you. So everything you do is to try to hurt them and make your company better. And then if it gets big enough or bad enough, or if you're ahead by too much, then you can't do certain things. But if you're small and if you're neck and neck, or if there are enough competitors, then it's not unlawful like that.

That is not an intelligible principle to me, David. So let's see if we can get an antitrust expert on here because as you said, David, we are not the world's foremost experts on antitrust. No, we are not the foremost experts. And nor are we the foremost experts on internet search. So it will be great to have a conversation with an expert. Can you tee up our next book?

Yes, Sarah. It's with John Inazu, a friend of mine, great guy, law professor, and it's about a subject we talk about and is close to my heart, learning to disagree, the surprising path to navigating differences with empathy and respect. Written by a lawyer, got a legal, it has a legal frame around and sort of a, you know, what are some

of the lessons that we can import into the legal world. So I'm looking forward to it. So that's John and Azu on Monday, learning to disagree. And we still have Bob Bauer coming up. We also have this great book called Living Constitutionally. David, did you ever read the Living Biblically book? The same author decided to follow the strict text of the Bible for a year. Oh, yes, yes, yes. Oh gosh, yeah, I know which book you're talking about.

Yes, so Living Constitutionally. It's called The Year of Living Constitutionally, One Man's Humble Quest to Follow the Constitution's original meaning. And yes, he had also done the year of living biblically. And yeah, he wears the britches and the whole thing David writes with a quill. So he'll be joining us about that book. And of course, we have to have David Latt back. Of course, of course we do. And Yuval Levin will join us hopefully here now

at the end of the month. So lots more books to come on this August Advisory Opinions. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,