Strict Scrutiny - How SCOTUS gutted our gun laws

Episode Date: June 24, 2022

Today the Supreme Court released its opinion in NYSRPA v. Bruen, saying that the constitutional right to carry a gun extends beyond the home. Kate, Leah, and Melissa break down the opinion and what it means for the future of gun regulations and states' rights. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court's selective enforcement of constitutional rights and some non-constitutional rights, too. We're your hosts. I'm Leah Littman. And I'm Melissa Murray. Pew, pew, pew.

Are those lasers or guns? It's Marjorie Taylor Greene's space laser guns. That's what it is. Cool. This is going to be a mashup of the gun case and the yet-to-be-decided environmental regulation or the limitation of environmental regulation case, potentially. No, this is not yet. But I'm Kate Shaw. I don't think I said that. We have a breaking episode for you today. Yeah.

This is a breaking episode because society is breaking. Or if you're Sam Alito, it is already broken. And that is why, as Melissa's gesture indicated, we all need to be carrying guns everywhere all the time. But before we get into that, though, I think it's worth noting that today is Justice Clarence Thomas's birthday. Pew, pew, pew. Those are celebratory shots. Yes. The kind of gunshots you hear on the 4th of July when you just fire them off. off. Happy birthday, Justice Thomas. And we will note that this birthday boy has given himself a hell of a gift, the gift of

an expansive and far-reaching, unprecedented Second Amendment. Congratulations, sir. This really is self-care. Love it. Love it for you. So on Thursday, we got the Supreme Court's long-awaited opinion in NYSERPA versus Bruin. And just one day shy of the one-month mark from the tragic shooting in Uvalde, Texas that occurred on May 24th, and as the Senate is in the process of taking up the first meaningful federal gun regulation in 30 years.

We had earlier speculated that this decision was long awaited, and it really didn't have to be because it seemed pretty clear back in November where the court was coming out on this. And perhaps the court reading the room after both Buffalo and Uvalde had resisted releasing this opinion so close to those events. But now that the Senate is sort of talking about gun control, it seems safe to release an opinion that makes gun control kind of pointless. Yeah, they got to put the kibosh on that immediately. I will engage in some rank speculation later on about what might have delayed this. We'll talk about this, I think the implications of this decision for other kinds of gun regulations

later. But I don't want to leave the impression that we think that this opinion, as awful as it is, imperils what the Senate is talking about doing on federal gun regulation. I actually really don't think it does. No, no, no. I just meant that the fact that they were talking about it was like, okay, we're doing something. Now we can release this opinion. The Senate's doing something. We can release this opinion. And there's been no unbelievably horrifying mass shooting in the last 24 hours. So let's strike while the iron is hot and get the opinion out. Although Leah apparently has another theory. Anyway, as is probably clear, the court, six Republican appointed justices adopted in this opinion, an expansive reading of the scope of the second amendment and did severely restrict government's ability to regulate firearms. Although, again, how much exactly this opinion restricts that authority very much remains to be seen. So the case involved a challenge to New York's restrictions on public carry gun permits. In order to obtain a public carry gun permit, New York requires individuals to show some additional special need beyond just an ordinary desire to carry a gun for

self-defense. And in the majority opinion by Justice Thomas, the court held that that New York regime violates the Second Amendment. That does mean that similar regimes in states like California and New Jersey, which have similar regimes to New York, also likely violate the Second Amendment. That's the Thomas majority opinion. There were several separate writings that I think provide important clues about what the court might do with the Second Amendment and gun regulations in future cases. But let's start by breaking down the Thomas majority opinion. So as we said, released on his birthday, maybe coincidence. No, Maybe not. Not a coincidence. Not at all. No, I'm serious. This is one possible rank speculation, right?

Birthday gift to himself. And a birthday gift he's been waiting for for a long time. And if you read this opinion, he has been saving up for this. He's been working on this for some time in his head. And I think June 23rd is Gemini. So I have to say, of all of the star signs, Gemini is my least favorite. And not because of Justice Thomas, but just like generally. It's like they're just kind of a lot.

This opinion is kind of a lot. So it's true to form on his birthday. And again, this is, I think, a kind of form of self-care for him. Like this is how he feeds his soul. And, you know, maybe for his birthday, that's what we want. His soul was hungry, and it is really sated by this opinion. I am resisting making a joke I want to make because we are putting together a video of this episode. And it's really... Can't they edit the video?

We can no longer do that. No, we have to be more careful. Resist, Leah. We need to be more mindful because the video editing is not as precise as the audio editing. And it's hard. One thing about the kind of authorship of this opinion, we had been speculating based on other writings that this was likely going to be Barrett or Thomas, who both had yet to write for this sitting. And I was just like, there is no way Thomas has this opinion because he is the furthest out there member of this conservative bloc. And there would need to be somebody writing something more measured. Can we go back to when you sort of floated this and Leah and I were like,

girl, you crazy. You're right. I was wrong. Okay. So let's walk through what Thomas actually says in this mammoth opinion. First, as a baseline matter, the opinion makes clear that the Second Amendment applies outside the home, and the Supreme Court had never held that previously. The Heller case from 2008 was about a prohibition on just owning a gun in your home. The court very explicitly did not touch questions of carrying guns outside. The 2010 McDonald case was also about a handgun ban, basically not about carrying anything outside the home. So the lower courts have been wrestling with this question. It was pretty clear the Supreme Court was going to say yes, the Second

Amendment, whose language references keeping and bearing arms, does extend outside the home. But that's a very important doctrinal development that this opinion represents. So the court distinguishes the New York law from so-called shall issue jurisdictions, which the court describes as where state authorities must issue concealed carry licenses whenever applicants satisfy certain threshold requirements without the officials exercising any discretion to deny licenses based on like a perceived lack of need or suitability. And it suggests its opinion doesn't call those shall issue jurisdictions into question. You can still have threshold requirements to get a concealed carry permit.

So what's the real problem with New York's situation here? So the real problem is the court suggests it has some discretionary component that invites individual officials to decide whether any particular individual has a need. And the court suggests that's too vague and unfettered a requirement for officials to apply in a consistent way. And the six states with may issue regimes like New York include DC, California, Hawaii, Maryland, Massachusetts, and New Jersey, the courts specifically single them out. What do all of these things have in common? Do they all love the color blue? That is one of the things. And even though-

They also have like massive populations. Right. Because like, even though it's just six states, we're talking about like a quarter of the US population and 80 million, some people who are going to be affected by this ruling. So despite the court's protestations, well, we're only deciding, you know, a case that involves six states, it is not so convincing. Now, I'm not entirely convinced that the court is going to hold its fire with respect to these shall issue jurisdictions if and when they come before the court, in part because of a series of footnotes. So in the footnote on the shall issue jurisdictions, the court does, the majority, keep the door open to some challenges, saying any permitting scheme can be put toward abusive ends.

And so they did not rule out constitutional challenges to shall issue regimes, suggesting if there were lengthy wait times or exorbitant fees, that that would be a reason to invalidate the regimes. And part of why I'm concerned about this is, you know, we don't know whether the New York regime is actually as standardless as the court suggests it is. This case was decided on what are called pleadings, the original complaint that the plaintiff files in which they just make the allegation that this is how the regime functions. There hasn't been any actual evidence collected to substantiate the idea that this is how the regime functions.

So Leah, I hear you on this, but I want to defend Justice Thomas for a minute here. Like, you suggest that these footnotes are merely an invitation to more litigation, but I want to suggest that these footnotes suggest growth, right? This is growth because this is Justice Thomas saying, I'm not going to eat the marshmallow. Leave the marshmallow here. I'm going to go away for a while. I'm going to wait. I'm going to put these in some footnotes and I'm going to wait. I'm going to put these in some footnotes and I'm going to wait. I'm not going to blow up the whole Second Amendment today on my birthday. I'm going to wait.

I'm not denying that he's not blowing up these regimes today. I'm just saying he's basically set aside this marshmallow to be eaten later. But credit where credit is due. He could have eaten this marshmallow today. It is his birthday. He and three friends could have eaten the marshmallow today. But the thing about the Supreme Court is to have a genuine bonfire, you need five.

And I don't think, we'll get to the Kavanaugh and Roberts concurrence in a minute, but I don't think those two were ready to basically say no, even shall issue regime where you have to get a quick background check survives Second Amendment scrutiny. I don't think they'd go that far. This is restraint.

This is a court restraining itself. This is him keeping a majority. He also, in a separate footnote, singles out three shall issue states as being more like may issue anyways, those states being Connecticut, Delaware, and Rhode Island. What do they have in common? Another mystery. But I just, I'm just not clear on whether this line is going to hold in a future case, even though I completely agree. This opinion, as written, makes perfectly clear that the lower courts should not invalidate shall issue regulations. On his birthday, Leah, I want you to be fair to Justice Thomas. This is a decision that does exhibit restraint. It's not as maximalist

as you think. But this is the Overton window because it was a possibility that he was going to write in this opinion. By the way, every single gun regulation, including the as yet to be enacted federal legislation, is unconstitutional. Now, the fact that he didn't do that is personal growth. I guess that's what happens when you turn 74. But like, it's just like very low-hanging fruit. Wait, can I though return to one thing that you said earlier, Leah, about the oddness of this case having been decided on the pleadings? Now, Breyer talks about that in his dissent, but it is like this pretty evidence-free speculation. It seems like, oh, it's hard to get a permit in New York. But there isn't really evidence of just how hard it is. There's an assumption that there's just like both excessive

discretion and an excessively high bar you have to clear. And those two things are fatal. And I think in the absence of real evidence of how hard it is to get these permits, and I think it is, you know, it's genuinely not easy to do. But how hard? Like, usually litigation helps us answer those questions. And Alito in his concurrence, which we will get to, he's like, there's no evidence to point to. So he has to basically say, well, oh, remember, there was a question somebody asked the Solicitor General at the oral argument, the New York Solicitor General, saying, you know, if somebody basically says, I'm an ordinary person, I work at night, I have to walk through dark and crime-infested streets to get home, right? This is Alito's formulation,

because he thinks New York City is actually Gotham. And she says, there have been a lot of muggings in this area, and I am scared to death. And the SG basically says, well, in general, that's not enough. And Alito basically says, well, she, you know, that's evidence. That like complete hypothetical scared person that I just conjured, that the SG said, well, maybe that wouldn't be enough. Like, that's tantamount to somebody being denied a permit. That's actually part of this suit. And it's just like, it's pure speculation. But that's what this case is. It's not really grounded in evidence at all about the New York regime. Just vibes. Just vibes.

Well, so did you also notice the Alito concurrence had a little shout out in the footnotes to Eric Adams, the mayor of New York? So much in that Alito concurrence, but let's save it. I thought this was weird. It's tough. Okay, so a couple more things to highlight in the Thomas opinion. In terms of how this opinion definitely changes the test that will be used for evaluating gun restrictions going forward. Basically, before this opinion today, the courts of appeals following Heller had coalesced around this kind of two-step framework

for determining whether gun restrictions were permissible. So it first asked whether a law regulated activity that fell within the scope of the Second Amendment, and then considered the extent of the burden and how much the law restricted the core of the Second Amendment. And that test basically did let courts consider the strength of a state's interest in a particular kind of firearm regulation. And that test had, as used by the lower courts, resulted in most, but definitely not all, gun laws being upheld. And this opinion replaces that test with the following one. I'm going to quote here from the opinion. When the Second Amendment's plain text covers an individual's conduct, and he clearly thinks carrying a gun outside the home is covered by the plain text of the

Second Amendment, the Constitution presumptively protects that conduct. To justify its regulation, the government must demonstrate that the regulation is consistent with this nation's historical tradition of firearm regulation. So any law that regulates carrying guns outside of the home, and any other law that regulates guns in any other way, is basically going to be judged against what the historical record shows. And if the current regulation looks like previous regulations, then it's likely going to be upheld, or at least has a chance of being upheld. And if not, if, say, government tries novel approaches to address, you know, the novel uptick in terrible, devastating gun violence, that's probably not going to work because there's not going to be a historical parallel that those defending the law can draw. So courts can't, for example,

consider empirical evidence about how much a restriction might reduce gun violence, right? That's not the relevant question. Because the study wasn't fielded in 1789. 1791, right. Yeah. No, that's the relevant question is whether a firearm regulation is similar to ones that have historically existed in this nation. And I think it is just like a wild way to interpret a constitutional provision, in particular in an area in which we have seen so much societal and technological change over 230 years. But it is, you know, an essentially backward-looking test that just asks about historical regulations. Shockingly, a backwards-looking test. The majority opinion basically says that this new backwards-looking test doesn't allow us to have as many gun regulations as the previous test had permitted.

And that's by design. The court makes clear that, and this is a quote, if the last decade of Second Amendment litigation has taught this court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of, quote unquote, intermediate scrutiny. That's where you sort of think about whether the means and the imposition on the Second Amendment right justify the ends that the state is trying to achieve often defer to the determinations of legislatures. Because you know what's bad? Settling issues in the political process. That's bad. It's really, I mean, there is a kind of sort of odd logic to this. Like, you know, we don't need judges making these decisions, but we don't need legislators making them either. What we need is us just making them just like, you know, no law, just vibes, us vibing about this and vibing in a 1789 way. I just want to underscore again that the court

has basically made explicit that courts cannot and should not consider evidence that a gun regulation will reduce gun violence. It's like here is our originalist case for not giving a shit about whether laws will reduce death. That's that's the new test. Did you not understand that the founding fathers basically sat around in Philadelphia listening to Dua Lipa, DGAF constantly on loop that summer they were drafting a constitution? James Madison's fave, right? Dua Lipa, DGAF. The other thing too, and this again is rank speculation, but it was Justice Breyer and Heller who had really made the pitch for kind of means ends testing and intermediate scrutiny for gun restrictions. And this is basically like, get the fuck out of here, Steve, with that. I'm glad you're retiring.

This is over and so are you. Although Thomas doesn't single Breyer out by name. No. He just totally rejects the method. Yeah. Alito, of course, is much less kind. Alito does. Right. Let's make it personal. Right. Hit you on the ways the method. Yeah. Alito, of course, is much less kind. Alito does.

Right. Let's make it personal. Right. Hit you on the way out. Yeah. Yeah. In terms of Thomas, though, explaining how the test works, right, he basically says when a challenged regulation addresses a general problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem

is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. But the opinion also underscores that the Second Amendment's reference to arms does not apply only to those arms in existence in the 18th century. Stop, Kate. Which makes the test so much more insane, right? Like, it's worth pressing on this.

The framers would have regulated guns that existed at the founding the same way they would regulate assault rifles. Like, the guns change, but we're stuck with the tests that yokes us to the regulations of way less lethal guns. And that's just what the Constitution requires. Selective historicizing is fine. There's nothing wrong with selective historicizing. The opinion also reaffirms that, and this was a big question or argument, that states have the authority to regulate, quote unquote, sensitive places. And it approvingly

cited Heller's discussion of longstanding laws forbidding the carrying of firearms in sensitive places like schools and government buildings. And then it lists some of these sensitive places where weapons had previously been altogether prohibited. So legislative assemblies, polling places, courthouses. How convenient. How convenient. They are vehement that the place they do their work is supposed to be a gun-free zone, and the rest of us are offed. At oral argument, Justice Kagan, the native New Yorker, had raised the question of the New York subway, which, you know, those of us who live in New York City use on a regular basis, and it's, like, wide open. There are no checkpoints to check for guns. Like, it's kind of a free-for-all. And she was like, so is that a sensitive place where we could prohibit guns? And

apparently not. Public transit, stadia. Well, no, I don't think we can say apparently not. I really, that I think, and I think the New York officials- Well, not apparently, apparently not listed here, right? It's not listed, no. But the presumptively okay things are like where Thomas and his friends work and then polling place, like the legislature, the courts, and then polling places. Those are presumptively fine. But everything else is going to be open to litigation. Absolutely.

Not that it's presumptively off limits, just that like those defending those kinds of sensitive places limitations are going to have to draw historical analogies to other kinds of sensitive places that were subject to regulation, like in the 1820s. And if you can find an analogy to a nightclub, as Justice Breyer points out in his dissent, wasn't that cute, then you might be okay. And if not, you can say the okay corral is kind of like a nightclub. And so we can, I mean, those are the kinds of regulations. What is the analogy to the subway? What is the 1789? Horses and buggies. Yeah, yeah. Going on the open road, I think would be the analogy. And there were all kinds of restrictions on carrying on roads openly, but the concealed carry historical record of regulation

is, I think, distinct from the open carry historical record. But these are the kinds of questions that the lawyers in New York City and New York State and cities and states in all of the places that are now going back to the drawing board are going to have to try to figure out how to defend. But I do think it's important to underscore that the majority opinion certainly says limits on guns in sensitive places completely can withstand this opinion and its new test. But what is going to qualify is very much a decision for another day. Okay, one, can we stop you being an optimist for a minute? Like, what are actually the chances of one, this litigation is going to happen, there's going to be challenges over what

counts as a sensitive place? Like, what are the chances that this maximalist court is going to be like, yes, there are quote unquote sensitive places beyond the places that we work that we would limit arms or the Second Amendment limits arms? Yeah, I mean, I think you're right that Thomas is going to maybe sort of, per the footnote that Leo was highlighting earlier, interested in saying no, like everyone has to be able to carry a gun literally everywhere. But I just think that Kavanaugh and Roberts may be willing to say rough historical analogies are enough to justify a limitation on the subway and limitations on bringing again to sort of to large gathering places, which there's lots of evidence in historical record that did exist, also justify

limitations on carrying guns to sports stadiums and other really crowded areas. So there'll be active litigation around it, absolutely. But I'm not prepared to say right now that any of those things is necessarily going to fall under this new test. I love your new rose tinted glasses. They're beautiful on you. They look great. I don't know if they're new, but thank you. Having announced this new test to determine what restrictions are consistent with the Second Amendment, the court then applies the test to the New York regime and frames it as follows, quote, the burden falls on respondents, that is the state, to show that New York's proper cause requirement is consistent with this nation's historical tradition of firearm regulation. The court concludes the requirement is not consistent with that historical

tradition because there isn't any historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. The court writes off basically all of the historical analogs that New York identified on the ground that they only restricted the manner of public carrying. You can't carry for the purpose of terrorizing others or the restriction only required individuals to post a bond before carrying rather than prohibiting it entirely. It's also worth noting here that the court is really focused on history, obviously, but as we said before, it's a kind of selective invocation of history. So there is an interesting point where not only does the court gesture toward history, but in some places it kind of

like says that it doesn't have to think about history at all either. So there's one part of the opinion where the court says, of course, we are not obliged to sift the historical materials for evidence to sustain New York's statute, which goes to the point like they're being completely selective and actually being upfront about it. That's the respondent's burden to present to us the historical evidence that makes their case. Nevertheless, we think a short review of the public discourse surrounding reconstruction is useful. And then this is justice thomas really lets the rubber meet the road this is all the stuff he loves talking about um this is essentially a reprise of his concurrence and mcdonald

versus city of chicago where he talks about how in the period following reconstruction the failure of the states to protect the second amendment rights of newly freed African-Americans basically made these individuals uniquely vulnerable to white supremacist violence. And in McDonald, he talks about Emmett Till and a million other things. So that's a history that's being invoked here, also being invoked. And if you recall our earlier episode with Joe Blocher from Duke, they also invoke the statute of Northampton. So if you were playing that drinking game, you should be on the floor on a puddle now. They also talk about colonial era history. For starters, we doubt that three colonial regulations could suffice to show a

tradition of public carry regulation in any event. Even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us. But not content to stop at the colonial period, Justice Thomas brings up BLM. And you know that Justice Alito was right there cheering him on for this. Because who could be more stalwart supporters of Black Lives Matter than these two? And so this is where they really get into it. They talk about the Freedmen's Bureau, the Reconstruction period, the violation of Black citizens' rights. And I mean, he says, a short prologue is an order and then goes back to the Civil War. It spends like

five pages on this. It's a lot. But the piece de resistance, Leah, is the invocation of Dred Scott versus Sanford. And I have to say, he really turned Dred Scott inside out to make this point. Do you want to talk about it or shall I continue? I'm happy to. Please go. Someone, you should talk about it. Dred Scott is the decision that held Black Americans could not be citizens and invalidated the Missouri Compromise. And here is how Justice Thomas relies on Dred Scott. Writing for the court in Dred Scott v. Sanford, Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free Blacks were citizens. If free Blacks were citizens, Taney fretted, they would have

the right to keep and carry arms wherever they went. Thus, even Chief Justice Taney recognized, parenthesis, albeit unenthusiastically in the case of Blacks, that public carry was a component of the right to keep and bear arms. Because if there's anybody's legal analysis and analysis of history we should rely on, it is Chief Justice Taney's in Dred Scott. Thank you, sir. Boom, lawyer. And actually, he takes a lot of that from an amicus brief filed by an interest group of African American gun owners. And so we've talked about this before on the show, but there is, I think, among the conservative legal movement, an effort to sort of repackage some of their core interests, whether it's abortion or gun rights, in the language of racial justice. And, you know, I think here, this particular interest group not only furnished them with a lot of evidence to do that, Justice Thomas was already quite amenable to this, having written about it in the past. Yeah. Yeah. All right. So bottom line,

this is an incredibly consequential opinion in terms of what it's going to do. It invalidates the New York law, the laws on the books in six other states, and I think will make it more difficult to defend other kinds of gun regulations. But it also feels to me like an unbelievably damning indictment of originalism as a method. For the reasons that Melissa was just identifying, it is so selective. It will say things like, OK, there is there are a couple of analogs of laws that look like New York's, but there's only a few. So there's both like it just feels like this constant moving of goalposts in terms of what you even need to show historically to justify what you're doing today. And there isn't even really a defense of the method. Like, why should this be how gun regulations under the Second Amendment or maybe anything under any constitutional provision are evaluated? But the opinion just kind of charges full steam ahead

and does it. And, you know, there is now an originalist majority on this court. And I think it really, the task of dissenting justices who are going to be in dissent for a long time to clearly articulate an opposing vision of how constitutional interpretation should work, I think is incredibly urgent. And I think Breyer actually really does that here. Okay, so we should shift to the separate writings because those are important. We've obviously been unable to resist already teasing the Alito concurrence a little bit. This is an Alito Stan podcast. I'm sure he was devastated not to get this majority, right? Boy, did he bring that Alito's gonna Alito energy,

right? Just like incredible nastiness. Trolito. Truly Trolito. So Justice Breyer wrote the main dissent. And so Justice Alito says, it is hard to see what legitimate purpose can possibly be served by most of the dissent's lengthy introductory section. And then he somehow makes it even worse. So the introductory section noted the epidemic of gun violence in the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator. I mean. It's so provocative. It's such bizarre, sloppy, like causal reasoning. Like, you know, this law, which is about something totally. Do you think like any of his clerks, right, when he puts this into the opinion are like, hey, boss, like, you're making

some great points. But like, is this really the way to message this? Or does it? No, yeah. No, as I was saying it, I was like, no. We didn't just get Trolito vibes. We also got a little Wokelito flavor. Because he's not going to let Justice Thomas go it alone on advocating for racial justice with expanded gun rights. He was going to get in there himself. So he notes that there's a whole discussion about the various amicus briefs that were filed here, many of which surfaced the stories of individuals who had been the victims of violent crimes and then were prohibited from subsequently being able to publicly carry a weapon to protect themselves. He then notes that in other incidents, a law-abiding person was driven to violate the

Sullivan Law, this is the New York law, because of fear of victimization and as a result was arrested, prosecuted, and incarcerated. That little snippet was taken from the brief for the Black Attorneys of Legal Aid. That was the Coalition of Legal Aid Lawyers and Black Public Defenders that came in to draft an amicus brief that was filed in support of dismantling the law. He then goes on to note that some briefs were filed by members of groups whose members feel that they have special reasons to fear attacks. And then he notes the brief of the Asian Pacific American Gun Owners Association. Obviously, Asian Americans have been the particular subjects of certain kinds of racial violence in recent years. He also talks about the brief for Black Guns Matter, which is another black gun owners interest groups, as well as the brief for the Independent Women's Law Center. Betty Fridalito, right? In true form. In true form.

I mean, the feminism, the critical race theory of this part of the opinion, like, who says you're not woke, sir? And in the paragraph that precedes the one that you were just describing, Melissa, he talks about, he offers a couple of anecdotes about individuals like bystanders who were armed, who interceded to stop violent encounters and attacks. And if you sort of connect that up, what he's suggesting, I think, with the invocation of Buffalo, he is, maybe his clerks actually did get a word in because he doesn't quite say this New York law is responsible for what happened in Buffalo. But it almost feels like he is suggesting the disarming of individuals who are out there in New York who could have stopped a Buffalo from occurring is a result of this law. So it is like, again, I don't think he's – he can't quite bring himself to say that explicitly, but that's a suggestion. Like somehow we'll be safer if more people have guns.

And there is just absolutely no evidence to support that. But who needs evidence? Well, not unless you can get it from 1789. Like that kind of evidence would matter. All of it. Unless it's inconvenient. Exactly. Only if it's briefed in the parties and only if it would like lead to the invalidation of a law. Yeah. We should also say that, you know, he's not only taking general aim at the Breyer dissent. He also – sorry, terrible.

But he names him, right? Like he cannot stop himself. Our dude's like last week or two on the court. Let Steve live. Let him live. No, Alito has no interest in like having this, you know, being gracious. He mentions Breyer. He says, like Breyer's dissent in Heller, right, the 2008 case

we've talked about a couple of times, the real thrust of today's dissent is that guns are bad and that states and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller. And while the dissent protests that it is not re-arguing Heller, it proceeds to do just that. This is maybe the nastiest opinion I've ever seen from Alito, and there's a lot of competition. There's also a Barrett concurrence that's not that significant. It notes that there are some debates about originalism. She at least, I think, is sort of aware that the court is not exactly being, like, principled or clear about, like, when mid-19th century evidence might matter, when it might not, how to value. But she'll sign on anyways.

But she's got enough, like, intellectual vanity to at least, like, to at least acknowledge that it's a complete hot mess in the majority. And she's like, I see that, and I think we should probably do something about it down the road. But I'm not really sure what. And here are some citations to my originalist scholar friends, and then that's it. The big separate writing that we wanted to draw attention to is a concurrence by Justice Kavanaugh that was joined by the Chief Justice. And this is significant because it represents both of their views. And given that both of their votes are necessary to invalidating future gun regulations, this could prove to be like where the court actually goes in future cases. So the two of them say they are just invalidating may issue, not shall issue

regimes. And I think they were more clear on this point than the majority was. They say explicitly the court's decision doesn't prohibit these shall issue regimes. And they define permissible shall issue jurisdictions as regimes that require a licensed applicant to undergo fingerprinting, a background check, a mental health records check, training in firearms and laws regarding the use of force, and more. Again, I do wonder whether this line will hold or whether they will say in future cases that decisions like this one lay the breadcrumbs or groundwork for invalidating shall issue regimes, but I do think they were more clear on drawing this as a line than the majority was. I think very, very clear. I do think that there are questions about whether the line will

hold, as you pointed out earlier, Leah, but I think that they were pretty unequivocal that, at least for now, no one in those states should worry about their regimes being constitutionally questionable. Doesn't mean there won't be further challenges, but as of today, they're all sound. The other thing about the concurrence, and this I think is really critical, Kavanaugh and the chief basically sign on to and reaffirm key language in the Heller opinion that says that certain gun regulations are consistent with the Second Amendment. But a lot of people in the years since Heller have been really unhappy with that paragraph or couple of paragraphs that basically says that lots of kinds of

regulations of guns are presumptively permissible even under Heller. So I think there was some fear that somehow this opinion would try to repudiate that part of Heller. And I think it's really important that these two votes, which as Leah, you just said, are required to the outcome in this case, basically say that language remains a part of our body of law regarding the Second Amendment. So they write, you know, as Heller and McDonald established, and as the court today again explains, the Second Amendment is neither a regulatory straitjacket nor regulatory blank

check. Properly interpreted, the Second Amendment allows a variety of gun regulations. And then they quote this part of the Scalia opinion in Heller that says that, like most rights, the right secured by the Second Amendment is not unlimited. And they tick through a number of kinds of longstanding regulations and prohibitions that the court says the Heller opinion should not be taken to cast doubt on. And there's also a footnote in Heller that says we gave a list of examples of presumptively permissible regulations, but that does not purport to be an exhaustive list. There are others. And so, you know, I've always thought that's a really important part of the Heller opinion.

And I do think it's important that Kavanaugh and Roberts make clear that it remains an important part of the law of the Second Amendment and gun regulations. Yeah. And this is a potentially significant narrowing of the majority opinion. This is the bit of rank speculation I wanted to offer, was this concurrence added or was it like fleshed out and given more teeth after the mass shooting events in Buffalo and Uvalde? And that is what caused some of the delay in releasing this opinion. I have no basis, right, for this. This is pure rank speculation, but I can imagine someone like Justice Kavanaugh or the Chief Justice thinking like, okay, I agree this regime is invalid, but like, let's slow our roll on how far we go today, even though it is still the YOLO court.

Do you think equally likely is that he read my op-ed with John Bash in the New York Times reminding everyone of this language and how- That was going to be my number two guess. Yeah, absolutely. Pretty likely, pretty likely. Yeah. No, but I do think that as big and broad as the Thomas opinion is, this language is really important too. Yeah. Regardless of whether Justice Kavanaugh and the Chief Justice have managed to sort of narrow the scope of what I think is written to be maximalist, if not now, then eventually. This is still a really significant decision. And Justice Breyer really understood that and made that very clear in his dissent. He writes, many states have tried to address some of the dangers of gun violence just described by passing laws that limit in various ways who may purchase, carry, or use firearms of different

kinds. The court today severely burdens states' efforts to do so. And, you know, this dissent is really peak Justice Breyer. Lots of statistics. It's very much a reprise of his Heller dissent, where it was just like jam-packed with statistics and empirical evidence about how states were essentially functioning as laboratories of democracy, trying to figure out what worked best for their particular circumstances. And he continues in this particular dissent to defend that notion of localism.

And there's a really interesting discussion of New York's scheme, which the court has sort of dismissed out of hand as offering state officials too much discretion, he notes it's kind of exactly the right amount of discretion because it allows these individuals to sort of tailor their permitting decisions based on local circumstances. So he talks about the fact that there's a series of criterion in the rural counties in New York that the state officials think about and look at when people apply for these permits that are completely different from the different considerations that are used in counties like Manhattan, which is in New York City. So I mean, this really goes to your point, Leah.

This would have been a place where maybe developing a record on this would have been helpful and would have helped the dissenters a little more here. But in the absence of that record, you don't really get to have much engagement with the sort of sensitive local questions and the distinctions that the state officials were drawing. Breyer responds directly to Alito's charge that his dissent is really basically just boils down to the claim that guns are bad. But of course, he does it like in a very gracious and polite way. He says, no, I'm not just saying that guns are bad, as Justice Alito has suggested. He asks why I've begun my opinion by reviewing some of the dangers and challenges posed by gun violence and what relevance that has to today's case. And he offers, I think,

a really important answer to that question, which is he says, the reason I've talked about all of this is because they illustrate that firearm regulation presents a complex problem, one that should be solved by legislatures rather than by courts, and one that, just as you were saying, Melissa, might be solved differently by legislatures in different parts of the country or even in different parts of the same state because the conditions on the ground vary dramatically. That is federalism. And yet, you know, the majority opinion really binds the hands of regulators to be responsive to those local on the ground conditions. Federalism is only important when you're restoring to the states the authority to prohibit abortions.

I guess it's for suckers now, too, huh? Some suckers. I do think that I said something about this earlier in the episode, but I do think that, you know, it is a very vintage Breyer, pragmatic, you know, let's ask about what kinds of the constitutional interests at stake, the kinds of reasonable regulations that government might permissibly engage in. And it just like offers a very distinct model for how to do constitutional reasoning. I like that this is the way he's choosing to go out. I don't think this is the last dissent we're going to hear from him at all. But this one, I think, was incredible. He was

trying to get in a lot of hits, right? So there's the defense of localism, the defense of empirical evidence, also a defense of the administrative state in here. So I mean, this is a guy who is privy to what his colleagues are up to. And he's sort of loading up the last set of opinions that he's going to issue with all of these defenses of the things that they are likely working to dismantle. Good on you, Justice Breyer. We salute you, sir. Breyer hive, rise. Breyer patch. Was it? I like the, okay, Breyer patch. No, the Breyer hive, especially in light of Beyonce's release, that's definitely the one.

It's just just I wanted to give some love to the Bayer folk. I think Beyonce issued that opinion for Justice Bayer. You won't break my soul. Exactly. He's going to retire. Exactly. She gave him his walkout music. Yes. I hope he does that. I hope like they play it really loud as he walks out with this like little box that says like Stephen Bayer. You deserve this, Steve. All right. We don't want our regular episode to be unduly long, so we're going to briefly note some of the other opinions that came down today. And one of them, I think, was another sort of birthday present to Justice Thomas, right? So this was the decision in Vega

versus Tico. This is the case that considered whether or not you could file a Section 1983 claim because of a violation of your Miranda rights. So in this decision, the majority of the court limited remedies that are available to enforce this disfavored constitutional right, teeing up another big theme of this term and the Roberts court in general, which is the idea that you can have constitutional rights, you just can't use them anywhere. They don't go anywhere. These things are totally consistent with one another. We are not overruling cases. We're just not allowing you to give them any force or effect.

Exactly. Miranda is still good law until you actually try to use it. So not surprisingly, this birthday gift to Justice Thomas was written by Justice Alito. In this opinion, Justice Alito held for the six Republican appointed justices that when officers fail to give you Miranda warnings and when those warnings are admitted at your trial, you can't sue the officers under the Section 1983 statute, which generally allows you to sue state and local officers for violations of your constitutional rights. So make it make sense, Leah. I mean, the only way to make this make sense is to understand that the Republican appointed justices hate Miranda, right? They believe it's wrong. They are unwilling to, in their words, extend it, but more accurately to apply it in a sensible way. As Justice Kagan notes in her

dissent, you know, the majority has to concede that Miranda announced a constitutional rule. Otherwise, it couldn't be imposed on the states. And unless Miranda was a constitutional decision, there would be no reason why Congress couldn't displace the requirement that officers provide you Miranda warnings. But the Supreme Court has said Congress can't displace those warnings. And Justice Alito, once again, invoking like Leroy Jenkins. I know what that means. You got that one now, Melissa. I know what that means.

Is like, sure, but who cares, right? I'm just going to blow through Miranda now. The court says, we think Miranda is prophylactic and goes beyond what the Constitution requires. And, you know, this decision doesn't overrule Miranda, to be clear. But, but, you know, I just feel like when Justice Alito gets the chance, he will say, you know what, we should overrule Miranda because the foundations of that decision have been undermined by our precedents like Tico. And he's basically inviting a cert petition to overrule Miranda in this footnote that says whether the Supreme Court has the authority to create prophylactic rules, which he described Miranda as,

has been subject of debate among jurists and commentators. And then says, like, for purposes of deciding this case, we kind of follow its rationale. But if you actually invited us to reconsider whether the court had the authority to reach the decision in Miranda, maybe the answer would be different. I really think Justice Kagan or Justice Sotomayor should just have a stock footnote that they put in every dissent or opinion that they write that is whether a justice of this court can have a spouse who sends text messages to Mark Meadows and continue to participate in the work of this court is a question that is up for considerable debate.

Right. It's not before us today. Not before us today, but maybe. Yes. Ladies, put it aside. Make it like a macro and just put it in all your opinions. Or at least put it in the draft and then take it out in the final version, right?

Like we do in these episodes. I mean, I just want to note for the record, I was the one suggesting that they should take out the respectfully when they say I respectfully dissent. And someone on this podcast was like, Leah, it's a work environment. They have to work together.

And that was you, Melissa. That was you. You were defending Sotomayor's decision to use respectfully somewhere. So it was reflexive. Yeah. You know. I mean, look. I mean, it's a context-specific judgment, obviously.

I think I said that in 2020. No, that was like 2020. Yeah. Sorry, girl. I've got the receipts. I'm going to go back and check the tape. Even if I said it in 2021, a lot has happened since then. 2022?

A lot has happened since January. I'll give that to you. A lot has been happening throughout 2022. We all need to do some Bayesian updating. I was going to pin that on Kate. I saw you. I saw you reaching for that. And no, no, no.

I would probably have just gone along with it. Like, oh, yeah, I'm sure I did that. But I happen to remember. B-Roy Jenkins. No, I listened to your app last week and I too learned and then did a little Googling. But it didn't help that much.

So Justice Kagan wrote The Dissent, in which she highlighted, you know, the theme, Melissa, you introduced this case with, which is a right without a remedy isn't much of a right at all. Justice Kagan noted, like, look, when someone has unwarned statements introduced at their trial, they might have their conviction reversed. But she says, then what remedy does he have for all of the harm he has suffered? Section 1983 is supposed to provide that remedy. And the big quote is, the majority here, as elsewhere, injures the right by denying the remedy. And she cites, you know, other cases. From this term, Egbert versus Bull, the Bivens case, the shade. The playbook is identical.

It is the kind of like the way they sort of mouth the words, we are just not extending Miranda or Bivens, but really are completely draining them of any force. Like it's exactly the same move. And she is just calling them out on it. Yeah. Also, I am old enough, though I am not an older worker, to remember that the conservatives said the exclusionary rule, that is excluding evidence that's unlawfully obtained, was unnecessary because plaintiffs could just sue for civil damages. Nope. JK.

Anyway, at any good birthday party, when you leave, you get a favor as a guest. So like a little gift bag. And at this particular party for Justice Thomas, there weren't a lot of opportunities for the liberals to really enjoy themselves. So today, the court offered a little gift bag to the liberals to really enjoy themselves. So today, the court offered a little gift bag to the liberals to send them home. And that little gift bag was Nance versus Ward. So this was the unusual case where a death penalty litigant actually won at SCOTUS. Amazing. Like, huge. These are so few and far between. I mean, they are always worth noting.

Well, we'll wait. There's more. So wait until we tell you what exactly this highlight of the day actually got us. So the question in this case is whether a prisoner who is challenging a method of execution is unconstitutional in a way that would require a state to use a method of execution that is not authorized by state law can actually bring their claim under the general civil rights statute, again, Section 1983, or whether they're obliged to bring that claim under a habeas proceeding. And this is really significant because if such prisoners have to bring these claims in habeas proceedings, and I'm not a habeas queen like Leah, but I know enough to know that they're almost

certainly going to lose because there are many, many restrictions on what are called second or successive habeas petitions. Basically, federal law makes it, you know, really restricts your ability to bring second or successive petitions. But that's almost always how you have to bring these kinds of method of execution challenges because the state won't know or establish execution protocols until your death warrant is signed. And that's invariably going to be well after your conviction. So if you have to do this in habeas, that's how you're going to do it. And you're going to encounter lots of virtually insurmountable obstacles if you do that. So the court in an opinion by Justice Kagan for

five justices concluded that people who are challenging a method of execution than doing so in a way that would require the state to use a method not authorized by state law can bring those claims under the general civil rights statute and don't have to go through habeas. So Justice Kagan wrote the majority opinion for five justices, the three Democratic appointees together with the Chief Justice and Justice Kavanaugh. Are they the two swing justices, the three Democratic appointees together with the Chief Justice and Justice Kavanaugh. Are they the two swing justices now? Is that what we're learning?

To all of those people who were trying to tell us slash the world that Amy Coney Barrett was going to be a gettable vote and swing justice. Thank you, kind sirs. Well, I also am reminded of the, was it an Atlantic profile that Kate raised in one of our episodes last year where they talked about how Justice Kavanaugh essentially fanboys the Chief Justice?

Yes. Oh, yeah. Like had a picture of the two of them together on his DC Circuit chambers wall. I love that. Maybe they are. Maybe this is a place where Chino is not Chino, but he can actually wield some influence bringing Coach Kavanaugh along. There you go. So how did this happen? That is, how did a death penalty litigant eke out this win that basically preserved the ability to bring method of execution challenges. I mean,

I do want to give a shout out because this is a huge testament to what was a wonderful argument by Matthew Hellman at the law firm Jenner and Block. Perhaps it was too Kafkaesque for the court to shove these method of execution challenges into a procedural vehicle that would always be bounced and never actually address the underlying method of execution claim. But I also do want to highlight what was just a completely devastating clip from oral argument when Justice Kagan gave a long comment in the form of a question about just how perverse Georgia's argument was. And Georgia was, again, pressing the claim that you had to bring these method of execution challenges in habeas proceedings. And here's what Justice Kagan had to say. But doesn't what this ultimately boil down to whether Bucklew is completely gutted? I mean,

you're suggesting an approach where it's like, it's not 1983. It's habeas. Oh, sorry. In habeas, you run into the second and successive bar. You're just never going to be able to bring these claims. Or maybe I should say almost never. And it seems as though that's exactly what Bucklew said should not happen. Bucklew, all nine justices agreed on one point, which is that somebody in Mr. Nance's position was entitled to raise an alternative method of execution that had not been authorized by state law. And the court said, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative for that reason, because he was entitled to identify an alternative that was not authorized.

There was a concurrence that really underscored that point. And now you're saying, oh, well, you know, really, Bucklew didn't mean what it said, notwithstanding that it said a petitioner is always going to be able to do this. What we meant was a petitioner is technically always going to be able to do this, but in 90 percent, 99 percent of the time, he's not going to have an appropriate vehicle. Now, is that really a reading of Bucklew that would not be, I don't know, embarrassing? We'll explain what Bucklew is in a second. That's a decision she invoked here. That's the case that basically says how you bring a claim challenging your method of execution. Justice Barrett wrote the dissent for four justices, which says prisoners demanding a method of execution that isn't authorized by state law should have to go through habeas proceedings.

The opinion also recognizes that they would probably fail and be barred in habeas proceedings. So she, you know, wants to force them into this catch 22 where they're going to lose. Now, Melissa, I think you kind of like teased this where you were saying like, wait until we tell you what the highlight of the day is. You know, this was like the highlight. And what it means is death penalty litigants can file civil rights claims where they will probably lose on the merits, given that this court hates method of execution claims. And specifically, the claim these prisoners get to raise, you know, an Eighth Amendment challenge to the state's method of execution is one that requires the death penalty prisoner to choose an alternate method for their execution, because the

court's Eighth Amendment cases, as we've underscored, really do require prisoners to propose how the state should kill them. So just to underscore how bleak things are, the potential to choose how you die is the highlight of opinion days and undertaking the grisly task of telling the state how it can kill you. They will allow you to do that through Section 1983, only to have you probably lose on the merits then. Honestly, a brutal day for our opinions from this point. Yes. What a great gift bag to go home with. So good. It's like literally like those gift bags are always filled with like terrible toys from that. Like what is that store that you always

buy the kids like party stuff? Party goods, those kinds of things. Yeah. And they break break in five minutes. That's what this opinion is. Oh, my God, I got a lightsaber. Oh, my God, this lightsaber is literally going to break in five minutes. So there it is. Anyway, just to close out this episode, we should give you a little bit of court culture. And so this bit of court culture comes to us from an anonymous source that tipped us off.

It's not just Justice Thomas and Justice Alito who are spreading joy throughout the world. Other federal judges are also spreading things. Apparently, the 11th Circuit had its judicial conference recently in May. It was actually rescheduled. It was originally scheduled for March, but they decided to reschedule it in light of rising COVID rates. That's relevant. So they decided to hold this in May, and they had an in-person meeting in Atlanta. And after the conference ended, apparently an email was sent to all attendees noting that roughly 25 individuals had contracted COVID, just reported contracted COVID, and that others were likely to have been infected as well.

And our anonymous source revealed that they, too, were infected after being hugged by a federal judge. Federal judges, the gift that keeps on giving. Wow. So thanks for that anonymous tip. I'm glad I wasn't there. Oh, my gosh. I hope everyone is well and that their cases were mild. But it's just a reminder to everyone that we're not quite post-pandemic yet.

So keep it together, folks. Stay vigilant, like Matt I. Moody says. All right, we will leave it there. We'll be back with our regular episode on Monday. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell.

Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. Digital support from Amelia Montooth. And our summer intern is Anushka Chander. Thank you.