Ayn Rand Graffiti

Welcome to divided argument, an unscheduled, unpredictable Supreme Court podcast, I'm Dan

Abs. And I'm Wilbod. Dan. Where are we?

“Live, one of our rare live shows, and we are in your home city of Chicago, where we are”

at Northwestern, Law School, being hosted by the student chapter of the Federal Society. We did one of these was it just last year? It was. And we had a great time, and so we are doing a reprise. And you know, the can't see at home, but I'd say there's, you know, it's probably 90 to 95%

of the student body is represented in the audience, so we're very grateful. And the, the room mic is not set up to capture the thunderous laughter and applause we just got. So, you'll just have to take my words for it. So, you know, often we like to record when we've just had a big drop of opinions.

We haven't had a big drop of opinions in the last couple days. So instead we're going to do another somewhat rare thing, which is an argument recap/preview.

Both cases involving second amendment, right, so though with one of those cases, we can have

a debate whether it's really a second amendment case or not. The two cases, I don't know if you remember the stand, but we were here last year.

“I think we also did an argument preview about gun cases.”

I think last year it was the Smith and Western lawsuit brought by the state of Mexico. Is that where we did that, I thought, I thought, okay, I've lost, I've lost track. Something about Chicago makes us think about guns. It is a, is a city with some gun violence, but really, really kind of distant to St. Louis. So, I've got to stick up for my home city in that regard.

So, two cases, the kind of recap case is going to be Wolford versus Lopez and the preview case is going to be United States versus Hamani. Wolford was argued just recently, it was argued, you know, nine days ago at the court, and then Hamani is not actually totally fully briefed yet. I think the reply brief still has yet to come in, and it's going to be argued.

I think it's going to be argued at the end of the term. Yeah, sure. Okay, so should we go kind of in chronological order, because the cases are

“pretty different presenting different second amendment issues, but I think both quite interesting.”

So, should we go with Wolford first?

Yeah, let's start with Wolford. Okay, do you want to lay out the, the issues in Wolford for us? Yeah, so this is the case that comes from one of my favorite states, Hawaii, where until recently there were basically no guns, because Hawaii required you to get a permit to openly carry a firearm, carry a firearm public, and then didn't give anybody permits,

which was a nice trick. That was declared unconstitutional by the Supreme Court in New York, in the Bruin case out of New York. The court said the small number of states that basically don't grant gun permits, can't do that, because there's a right to carry on keeping firearms in public.

So afterwards, some kind of right, we don't, we're still figuring out the exact contours in that right. Exactly. So we know, and then in Bruin, the court said, you know, there's a, there's a presumptive right to carry.

Now, of course, dangerous people can be disarmed. We later learn in a case called Rahimi, the court says in Bruin, that the government can restrict you from carrying firearms into so-called sensitive places, but it doesn't really tell us what is a sensitive place, except to say that you can't say that all of the island of Manhattan, this is sensitive place, this litigation now, but can you say the

subways is a sensitive place, which might, for many people, be de facto the same as saying Manhattan. And one of the things several jurisdictions did, including New York, including Hawaii, after this, was to try to pass new laws, restricting the carrying of weapons in public. Now, that's suddenly, they had to let people carry weapons in public.

Yeah, new laws restricting them in certain ways. It should be careful in how we describe it, because at least in this case, everybody seems to agree that there is a role that on private property, a property owner can deny consent for the carrying of firearms. Right.

So the private owner, the private property owner, has the right to tell you, can't come in, and it's not the right to tell you, you can't come in, conditionally, on carrying a firearm,

Yeah, and just at the outset, I mean, that, that is the way the case is being framed and litigated, do you think that is a firmly settled principle, such that, you know,

a Texas or Florida could not overrule it, would just say, just say, a rule that you always

“get to carry your firearms, whatever the private property owner wants or says?”

Oh, I think that's not, it's not all clear that the Texas or Florida couldn't do that. Yeah. And I think some states have laws that give at least some of those, some of those rights. Yeah, I think in the, the briefs, they talk about, they mention a Florida law, where it says you can at least store your handgun in your vehicle, at your, you know, at your place of employment.

But I wonder, I mean, would it, would it violate some kind of, you know, property rights in some way that would make it a taking or do process violation if the state were to go much further and say that you can always, you know, you go to someone's house, you can always bring your gun, even if they don't want you to. So there's a case about this involving shopping malls in California, where the court said,

you know, the first amendment does not give you a right to leaflet in private shopping malls because it's a private property, there's no state action. But then California said, well, that's okay, the good people of California will give you a right to leaflet in shopping malls. And then the shopping mall said, that's a taking and/or compelled speech, this regret said, no,

this is just something where the state can go, go either way. So similarly, there's some scholarship about the right to keep in bear arms, arguing that the right to bear arms includes the right implies the right not to bear arms, and that implies that property owners should have a right to not bear not allow any arms bearing on their property.

Like a second amendment, right?

The same way, there's a first amendment right not to have live for your die in your license plate and not to have, you know, iron ran stickers or whatever on your laptop. I don't know why you wouldn't want them. Do you have such stickers on your laptop? You don't have your laptop here so I can't check.

No. I have an iron ran pin. I went with the Chief Justice Roberts pin today, but I have an iron ran. The Chief Justice has his own pins. Can I see that?

Yeah. How do I get one of those? Does every Justice have a pin? I don't know. Okay.

I want it in the trigger competition.

That's Chief Justice Tribune. Yes. Okay. To a very proud of thank you.

“Anyway, so I think we don't know that's how the default.”

So to back up to what Hawaii has done, Hawaii has took the default rule that property owners can say no guns and said, we're just going to assume that all private property is no guns. Unless the property owner says guns, guns allowed. So let me walk around Chicago. There are a ton of these like no guns allowed in the movie theater and no guns led in

the establishment science. So Chicago has the ordinary default, but Hawaii decided to flip the default to say, you can't carry or take your gun to any private property unless you get the affirmative consent to the other. The design or I think you are allowed, this one to speed about this at the argument.

I think if there's no sign, you are allowed to go on to the property. Maybe even with your gun for a minute to say, hey, I'd like to get gas at your gas station. Do you mind if I bring my gun or something? Yeah. And I think these laws have bite on the assumption that most property owners are not going

to do something to change the default either way. But in a world where every property owner was going to put up a sign when we're the other expressing their preference as to whether someone bearing arms could enter the property, I think the default rule wouldn't matter, right? Because it would just be individual property owners choice shaping whether the weapon was

able to be brought on the property. But I think they matter because we assume and the seems accurate that most property owners and most businesses are just not going to make an explicit choice when we're the other. So this is a default rule that is going to control a number of cases in places. Right.

And I think to add that this could be true, not just because property owners don't care. But because of the social dynamics around guns, especially in a state like Hawaii, where there isn't a strong gun culture and a lot of people don't like guns, like you might well have somebody who runs a coffee shop in Hawaii whose view is, I don't really care man, you want to have a gun, you aren't bothering anybody, like it's fine, I'm not going

to put up a no gun sign.

“But if you have to put up a gun sign, suddenly the anti gun people are going to get upset”

about it and they're going to complain to him about it and then he doesn't want that either. And so you can imagine that actually requiring property owners to take a stand on a culture contentious issue in a place where gun rights are the minority position, like you know, pressure is it.

In the same way that we true of a lot of minority viewpoints, you know, minority political views. I don't know if that's the design of the law. The defenders of the law might also just say, look, we took a poll and most people don't want guns in their property.

So the default rule should be the thing that matches most people who have most people's preferences and Hawaii people don't like guns and they don't want guns around. And so sure if you want to, you can opt in, but the default rule should be the thing that

So I guess the kind of the question in this case, and so this is, to back up once again, this law and several other states laws like it were passed in the wake of the court's

decision in Bruin, right, which, you know, I'd say expanded the scope of Second Amendment

rights, released elucidated the court's understanding of Second Amendment rights in a way that that does, you know, limit what states can do. And so this is a, this is a potential work around. Right.

“And I think both sides can agree on that framing somewhat.”

I mean, it's actually both sides can do agree, I think the way Hawaii put it is, you know, until a couple years ago, there just wasn't really a tradition of carrying guns in Hawaii at all. So we just hadn't really thought about it either way. And now for the first time, it's been going to tell us that there has to now become a

tradition of letting what carrying guns in Hawaii find, but we got to figure out how to make that work. Yeah. And so the weird thing about the case is, this is sort of what I was getting at earlier, there's kind of disagreement about whether this is a Second Amendment case at all, if that

makes sense. Right. So do you even, is this just a property case, right? Is this just a question about, you know, how a shape, a state shapes its property rules? And obviously, those choices might have downstream implications for people's ability

to carry weapons. Or is this just a case about, you know, the state trying to burden, or right directly? Right.

“Like, is it even, do we even get to like whatever level of scrutiny or historical analysis”

is, or do we just not get there because it doesn't even implicate the right in the first place? Uh, you're going to think I'm joking, but I once tried to write an article about this problem in the context of the First Amendment, right, so there's some areas where, when property in First Amendment law intersects, we say, like, "Oh, there's real scrutiny here."

Like, there used to be a property right to your reputation that was what liable was about. And then, of course, the second one said, "Well, obviously, the property right in your reputation still implicates free speech, and we have a constitutional scrutiny of liable." Uh, or copyright, there's a, like, property right to various kinds of expression.

And most of the time, we just think that's fine, but there are cases where courts worry about whether that property right in your own expression would interfere with, uh, free to a speech, and you end up with, uh, fair, you stocked, ran lots of stuff. But it takes an, like, graffiti, right? Like, if I complain that I, if I like try to put my own rank, graffiti on your house, and

then they prosecute me for it, I don't even get to the stage or saying, like, strict names. They just say, "This is not for some of the case at all." Like, you're just not allowed to spray to people's houses. It doesn't really matter whether it's speech at all.

And in part, I guess that's because there's a well-established default rule there that you're not allowed to spray paint on someone's house and thus they give you permission to do so. I guess so. Although there are also cases about, like, soliciting.

So there are cases about, you know, can the states have a default rule that says, "Nobody is allowed to bring anybody's doorbell to hand out pamphlets?"

Um, and the answer is that, actually, they probably can't have that rule.

And so, why can you have a default rule about no graffiti, but not a default rule about no

“knocking people's door to give them pamphlets about divinism?”

Do you think you can have a default rule that just says, "You can't go up to someone's door period?" Regardless of the purpose? Probably yes. Okay.

And certainly you can have a default rule that says, like, you know, you can go to somebody's door, but you can't open the door and, like, come up to the second floor and knock on their bedroom door and you can't find them, right? Like, you know, you have lots of, um, yeah. And that is a property rule, right, because, you know, the property owner owns the walkway

up to their door. They own the porch and, um, questionally, has the right to exclude people from that. Um, and so, if you, if you put up a science and do not enter, I think that would, that would trump anyone else's ability to enter your property. Yes.

But, you know, traditionally there's, there's what we call, like, a, I think an implied license, right? The absence, such a sign, uh, there's an implied license to walk up to someone's front door for a limited purpose, uh, this comes up and, uh, pretty interesting, uh, fourth and, in case that I taught, uh, just last week, uh, you know, Florida versus Jardins, where

the question is, is it okay for the police to bring a drug sniffing dog up to someone's front door to, to sniff the house to figure out whether there are drugs there.

Normally, we say, drug sniffing dogs are always fine.

They don't qualify as searches. They don't implicate your privacy. But the court there says, well, you know, the difference here is that it's an entry on to property. It's an entry onto the cartilage of the home, which is treated for fourth amendment purposes,

as if it's a home. And that requires, uh, doing so with the scope of an implied license, um, under property principles and the court says, under those, you know, kind of generic property principles, we think there is no such implied license here, therefore it's basically a warrantless entry into the home.

And I promise this fourth amendment stuff is actually going to come back as we talk more about this case, because it intersects with some of their areas of law in an interesting

Yeah. So also, the way the case is kind of framed, the challengers are limiting their challenge to the application of this law to private property that is otherwise open to the public. So they're not claiming a constitutional challenge to the ability to, like, bring your gun to somebody's dinner party without getting their advance consent.

“But the, you know, high post people are talking about, you know, what about a restaurant?”

Or what about the chief justice kept asking about, you know, what about a gas station? Right. But though I think the advocate for gun rights was not willing to, you know, disclaim the broader argument. Right.

What I think what he had saying is, even the broader argument implicates the second amendment. So he's not willing to see the any other not second amendment cases. I think he would say that maybe the broader argument, he loses the, the level scrutiny or whatever, you know, be justified to have a rule that flips the default for entering his house.

But, um, but he didn't want to say those are not second on the case. Yeah. Um, okay. There's so many different threads to pull on here. I find this just a really fascinating case.

Let me, let me ask you this question at the outset.

Do you think if we had one state, let's say Massachusetts, that had always had this default

rule as a matter of property law, do you think that there would be a plausible argument that today the second amendment should overrule that default law, where it's part of the problem here, and I know this relates to the brewing analysis, but that's not exactly the question I'm asking is part of the problem here that these states have flipped, I don't know, what was apparently a long-standing default.

“Uh, I think that should help, uh, but I will say the, the, one of the refrains of the argument”

at least from the challenges was under brewing, and we have a history and tradition test, and it has to be a national tradition. Um, not sure whether you know that's, I guess I'm still, I'm still playing around with the kind of threshold question about the definition of property rights, which, I mean, I think we can say in general is something that the sovereign gets to control. Yeah.

So I think if you had a state where the property where the default right would have been flipped for everything, like the default rule is just like you can't go into a gas station at all until you stop outside the gas station and holler, like, hey, can I get some gas in the guy says, well, then I think there would definitely not be a second of what it gets.

I think if you had a state that had always singled out guns for special disdainer under

property rule, but it always said, there's a presumptive implied license to enter, except if the gun would probably still be in scrutiny land, but you know, to the extent that the state, you know, generally has the power to define the scope of implied licenses and so forth to enter property, you can do that kind of, you know, in a plenary way, insofar as it's not implicating the second amendment, right, or at least insofar as it's not singly outside of it.

I think one of the questions that arises and the speech context arises here arises, the other constitutional arises, what if they do that have a different rule, if the expisement would be constitutional, right, if they were to say, you know, it's the default rule now, you know, why is if you're selling vacuums, you can't just, you just can't do that. You can't walk up to someone's front door, absent, some kind of indication that they actually

want you to sell them a vacuum, right? I think they'll be okay, okay. All right, so that's maybe our threshold, yeah, question. So another thing that's just, maybe let's just start is that the oral argument featured three advocates, so right, so one, for state of Hawaii, defending the law, and then in a way, two different sets of challenges. One, person representing the, the private petitioners, learn an Allen back, why think is a first time oral advocate? He's been litigating

a ton of these nine circuit, uh, gun cases, um, but his first, his first trip to the sort of court, uh, and he is making in the kind of the hardcore argument, like no flipping the default. I don't even can see that that any of these cases don't raise the kind of the questions, it's got to be an national tradition, there's no national tradition, kind of a very broad argument. I think the perception when he showed up with that argument among a lot of people who wanted him to win was

that was not a good way to win the case. Yeah. And so, and that was my impression from listening is that it was maybe not as effective, uh, as it could have been. Right. So then the United States of Los Angeles general, uh, the deputy S. G. Sarah Harris, a very experienced, very good advocate, she shows up, uh, with the United States brief on his side with a much different and more limited

argument, right? So she doesn't want to say, you can never flip the default or anything like that,

she wants to say, the big problem here is pretext. The big problem here is you can look at the law and tell this is not really a property law. This is really an anti gun law in part because of what it, you know, it's overinclusive under inclusiveness, the way it's, you know, gerrymandered to avoid,

“you know, various things. And so it's, you should really kind of think of this as, uh, in the first”

amount of context, after Smith says that neutral laws, the burden religion are going to be okay, the next year, the court strikes down a lot anyway, and the Church of Luke Kumi Babalu, IA versus City of Hylia, where it's like a ban on, uh, ritual sacrifice of animals. And the court's like,

argument. So the court's already sort of presented with, uh, you know, you could strike this down on broad grounds or narrow grounds, and the justice has been a lot of time, kind of, working with both advocates to figure out what to do. I, and I think it's, it's fair to say it looks like the challengers to the law are more like theater prevail. Did you, did you come away with that impression? I, I'm not sure it's going to be around, and I think that there's still some possibility

it could go both ways. Um, but they definitely got some votes. Yeah, no, definitely, I think, though, the winners at their backs, the court clearly wanted to strike this down. I think, so it sounded to me,

like, like, the justice of restructuring, because they want at least three things out of second

amendment doctrine, and I'm not sure they can have them all. Uh, one is they want, like a real history test. Like the scavenger, I can't say, just a scavenger. I got annoyed with the S G for bringing it pre-tax like, why can't it just be a straight history test? It's just, is there a historical tradition for this regulation? No case closed, right? They also want something that's like the first amendment. There are a lot of first amendment analogies, right? So the court has a case where

“they said, if you want to receive certain kinds of, uh, I think it was communist speech or something,”

you have to, like, send a postcard saying, I would like it. You have to opt in. The court struck that down. Uh, so they said, look, and now let's add the first amendment. This whole I is treated the second amendment worse than how we get the first amendment. So look,

they just seem to also want something. It's like first amendment, like, and they seem to want

something where they don't have to think about the purpose of the law or any kind of balancing at all. Like they said in Bruin, no balancing, no sort of means and scrutiny. And I think it's actually very hard to have all three of those things, like a historical test, a test that's the same as the first amendment and a no purpose test. At least in part, because historically purpose mattered, and at the first amendment, the purpose of this matters. And the first amendment

is not very, is not very historical. So it's just like, like, the three good things to want doctrine to be. And they seem to just like think they could all be there together.

“Yeah, I think, I think that's right. And you could imagine they're being some divergence in”

which of those paths the justices take, even though they may try to kind of muddle them together. I mean, I thought just as Gorsuch is maybe a little bit more open to some kind of a purpose argument where at least he had this, this is an exchange that, you know, because my own pet interest was particularly interesting to me. This is on the transcript page 44, which is he references other lines of cases. He says to the government, we don't allow governments to redefine property rights

in other contexts that would infringe other constitutional rights. I'm thinking here of the taking's clause in Tyler versus Hennib and County. And that's the taking's clause case we discussed on this show maybe two years ago. The state had a rule that, you know, if the government sees is your property for unpaid taxes and they sell it to satisfy the debt, government gets the overage. Even if you only owe $20,000, the government sells it for $100,000 government gets to keep

everything. And one of the states, arguments was, well, that's just the way we've defined the relevant property interest. We have this rule of forefiture. And the court said, no, you don't,

“you have to kind of, you know, the taking's clause is going to look not just to pure positive”

laws, going to rest on some other kinds of, you know, more general principles of property. Yeah. Is that a purpose argument? Or is it something else? I don't, I think it's not quite a purpose argument. I think it is more of a history argument, although it's not the kind of neat and clean kind of history that just as Kevin Owens. And I will say, if you, if you do start, if you go further to the general law, one of the things you discover is that at the general law, the purpose mattered.

Like the general law in general was quite tolerant of legislative regulation of general law rights as long as it was for a public reason and not out of hostility to the right. That was like one of the important principles. And the, you have written about the general law background of the

second amendment. Yeah. Do you want to just, uh, hum a few bars on that just to give people your

basic argument there just so they can see where you might be coming from? Sure. So, uh, it's an article I wrote with Robert Lighter, uh, was of course not responsible for anything I'm about to say. Um, but the general idea was that the second amendment was when, when hello described this a preexisting right, uh, and then in the 40th of the context again, the court describes it as a preexisting right. What they mean is this is one of these rights that unwritten law, just sort of

recognized in Anglo-American tradition as a form of, of general law, uh, before eerie kind of, well, what now we might call federal common law, but it wasn't really federal common law. It was just kind of common common law. Um, and that's actually why in state constitutional decisions about the right to keep bar arms throughout the 19th century, you see the courts all talking as if they're talking about the same thing. Like the Alabama Supreme Court will uphold their strike down

some law and side of much of cases and other jurisdictions saying they're talking about the same

in their constitution and sometimes regulated in different ways in different places. They, like,

“they talked about the right of trial by jury this way too or the right of freedom of speech. And”

because of that, uh, when we think about his tradition, the nature of regulation, we should be thinking

about that piece of the fabric. And so just that means that the second amendment was intended to

make clear that that those background general law principles applied to the federal government, but not necessarily to encode them. Yes. So the, I mean, this is in fact just part of the debate uh, when the constitution was enacted was, should there be a bill of rights? And the standard federal's talking point was, we don't need a bill of rights. You already have rights that are recognized in unwritten law that don't need to be in the constitution because they're already there

and we don't have any power to influence them. And the anti-federal's talking point was like, yes, we agree in principle, but we would feel safer if you put them in the constitution anyway. And so they compromise on putting them in the constitution anyway, but the, at the time, at least the official story of why they're doing that is to, to make extra clear that Congress doesn't have

the power to abrogate them. Because of course, sometimes common law could be changed by the legislature

and there were some enumerated powers that you could argue might be used to infringe the right to keep neurons. Okay. So back to this case, um, I don't know if you've thought about this prior to this case, but does your approach tell us anything or does it lead us to sort of the same approach

“the court is already taking to these kind of cases? I think so I think the general law approach”

looks a lot like the solicitor general's approach, which is to say, actually this kind of regulation, it's not so clear it's kind of regulation that's categorically forbidden, like there is a lot of regulation of the right that's permitted if it's done for a proper purpose and not as that like neither to sort of functionally extinguish the right or out of hostility to the right, but there are these arguments that some of these laws are enacted out of hostility to the right

rather than just attempt to regulate. I think that's the kind of the right lean to be in. I do think this is where I sort of is thinking about the court wanting to things we can't have. I think the court wants a historical approach in which it doesn't have to get into kind of messy questions. And I think the general law approach that we describe is a historical approach that does get into messy questions. So you're going to choose between your want for history, your desires.

It's exclusively backwards looking or does it contemplate the general law, which is found not made can evolve? Maybe the general law can evolve although not through things like, I mean because that's found not made, not through things like judges trying to change it. And the more relevant thing and this isn't just a spirit, kept flagging, is that the general law does preceded a certain level of generality. Right? So there are these laws that say you can't carry guns on in closed-term

proof land, that's the underspirition. A surprising number of them actually. It's like, you know, the court says you've got to find a law like this and look, New Jersey did it. Look, Louisiana did it. And the argument of the challenges is with those are different because those are anti-poaching laws that only apply to enclosed lands. And just a spirit asked more or less, but it will suppose it's true that those are anti-poaching laws. Does that mean that at our history

in tradition, you can only regulate, you can only flip the default rule to stop poaching. Or does that mean you can flip the default rule to stop a major social problem, what is that you believe is the problem? For instance, she says, what if Hawaii had a rash of gas station robberies? And today's a gas station robberies are the 21st century equivalent of poaching, like it's a problem. And to stop it, we need to flip the default by saying no guns and

gas stations, unless the, you know, store on her says you can. The challenger, at least Alan Beck said, no, you can't do that. That would be, that would be unconstitutional. You can't regulate gas station robberies the way you can regulate poaching, but not sure that's right. Do you think that she of the conservative justices is the one who's sort of most kind of squishy on second amendment,

arguments? Yeah, squishy squishy. Well, and it may be like, she's never. She seems, she seems to be

“maybe, you know, willing to be a little bit more flexible with the history test. I think this is”

a case where the different one of them have different justices have different things they care about. I think she is probably the person who takes the history, who's probably the deepest into the history and into the approach and understands the nuances that the history require. But she's also said, we can't assume that, you know, early governments always legislated to their holistic standard their priorities. Right, but there's a different way, which just is Kavanaugh is the squishy one.

Like, just as Kavanaugh multiple times that argument was like, part three of hellers says all these kinds of regulations are okay. That's got to be true, right? Which is again, but just as Kavanaugh's also the one who wants the history test and those things in hell are kind of made up and not all them are actually historically supported. And I think it's Kavanaugh and robberies who are separately in Bruin, just to say, we want to be clear. We're just striking down the thing that's happening

in a lot of states. So, depending on the access, you could think of them as the median

“squishers or something. And this is, I think one of the things that's interesting with this”

court is just because a bunch of the justices have slightly different methodological approaches, different justices can be in play for different reasons, right? So, just as Kavanaugh cares more about the pragmatics and the outlier problem, just to spare it cares more about the history, maybe. The chief also would argument brought up several times, just like distinctive facts about Hawaii, which I don't know if you know these facts about him, but he represented Hawaii a lot,

private practice. And it like, Rice versus Kaitano and Hawaii, this brings us back to why you won the trivia contest. He also was a summer associate in Hawaii, still a summer.

Instead of going to a New Yorker DC firm, he saw a posting on the Gannon House Bolton Board

for firm hiring Hawaii and figured why not? I admire that. Yeah, we do. Okay, so, do you really think he would be open to a Hawaii specific rule? I don't think the court

“would stay so in so many words, but I think you know, it just might affect how you think about it,”

like an effect the extent to which you think of this as obvious hostility to the right, like the fact that this is happening in Hawaii only now, mean, it's just obviously those lips who hate guns, trying to do sneaky anti-gun things, or you want to think no, this is actually like a reasonable legislature using the Aloha spirit to try to solve a social problem. Yeah, I mean, in theory, I mean, I think it should be okay for a state to say, look, here are

the constitutional boundaries that the Supreme Court has given us. We, you know, don't love where this ends up, and let's try to come up with rules that work within those boundaries that still let us accomplish what we want to accomplish. I think so, I mean, I can actually find sometimes the court doesn't think so. Like, like, sometimes in the speech context, if you enact a law, it's just something like, we are banning as much speech on the internet as we can,

“but caveat will protect whatever we have to. I think that one of the early, like anti-internet”

porn statutes, more or less at that and having a savings law, so it's like we're banning

all the porn in all the different ways, but okay, whatever we can't ban, because the first time

I've had it saved. Yeah, that's a little different, right? You're kind of just, you know, you're not even defining the scope of the exception. Right, but you're just literally saying, we would like to walk as far up to the line as we can. We will let the court draw it over line at once. Yeah. I mean, here at least, why he has drawn the line and the question is just whether the line is over the line, over the other line. Which line? Yeah, okay. And then it's

really interesting questions about what the historical analogs are, there's some debate about which laws count, there's some debate about whether some of the, you know, earlier laws count, were they only applying to kind of hunting land or what did it mean for land to be improved, could that extend to a retail store or not? Yeah. I thought that was an interesting historical argument. It wasn't sure who got the best of it. I did think that with respect to the party briefs,

I thought the Hawaii brief on which the Council of Recorders' Neal caught y'all was more effective. I had a lot of, you know, I read through it and I was like, okay, there are a lot more counter arguments than I anticipated. Yeah. Okay, so many interesting threads there. I mean, one of the other historical precursor laws is one that kind of embarrassingly was passed in Louisiana, as part of the black codes, immediately after the Civil War, by a legislature hostile to the

rights of, you know, newly freed slaves. Yeah. And really interesting debate there about whether those can inform the history and tradition. And again, I thought that caught y'all, you know, kind of danced around that in a way that I was more effective than I expected, because his argument was, well, that law was accepted by the Radical Reconstruction Congress, when it made re-admitting Louisiana to the Union, which means it actually is consistent with people's understandings at the time.

Right. Yeah. He said, look, this part of the law, it's true. You know, this was enacted by a very bad legislature. I was part of a very bad law. But then the good guys were okay with it. And so that actually shows that even at the time, this was thought to be a permissible formulation. That's the story, at least. I don't think that was, I mean, I don't know if it's going to work. Even if it's right. It did remind me a lot of Ramos, which is a courtman, just as mentioned

several times, where the court strikes down non-inanemistories. At least in part, one of the moves in the cases that non-inanemistories were adopted by racist legislatures for bad reasons. And then Justice Alito and Descent is like, this is nothing to do with the game. Right. He's like, this argument's going to kind of get out of control. Like, are we saying that if it had been done by, you know, was also done by Puerto Rico? Maybe from, okay, reasons. Yeah. So I, I'm not sure

I don't know. I think the issue of, to what extent, race, taints the use of historical evidence to do things that Justice wants to do, or don't want to do, is not a place where they're at their best intellectually. Let's just say that. Okay, so another case to talk about, are there any other kind of interesting threads running through

“Wilford that we didn't pull on? Not yet. Okay, because I think there's a lot going on there,”

and I think it's, it's really interesting. Okay, so let's talk about U.S. versus Hamani. As I said, this case has not been argued yet, so we have less of a read on how it might come out. But one, you know, important difference in terms of the posture coming to the court is this is one where the federal government, the S. Chiefs Office is defending the law that is challenged on

second amendment grounds. And the law here is tidal 18. We're going to tidal 18 to the U.S. Code.

Section 922G3. And that, you know, is a provision that's part of a very, very comprehensive set of gun laws limiting the ability of certain classes of people to possess firearms. This one says someone, you know, may not possess a firearm if they are an unlawful user of or addicted to any controlled substance. And then, you know, defines controlled substance by reference to the controlled substances act. Okay, so not, and just to be clear, this is not just someone who has been

convicted of such a crime, but anyone who is, you know, presently addicted to or an unlawful user of such a substance is not supposed to have a gun. Right. If you've been convicted of a drug felony, then you're already separately barred by the felony possession clause, which is part of the statute. But this is just like if they can show that you are a user, then you have been convicted. This statute has also gotten a little narrower over time. So my understanding is, you know,

it doesn't bring prosecutions under the addicted to prong for fear that would trigger the like status-based crime problem. Like, it's supposed you are a drug addict who's a clean drug addict. Like, you know, you don't do drugs because you're, you're addicted to them and you, but you're like,

“you know, addiction is a lifelong problem. Now you want to have a gun. I think even the United”

States agrees, you can have a gun. Like, if you've, if you've forced sworn drugs don't have any drugs, the fact that you're like addicted to them is not a reason to stop you from having them. I mean, I guess it depends on how we define addicted. If you're currently presently addicted and cannot stop using the drugs, it's, but the point is they think it's the using. Okay. And then even, at least in the briefing now, they seem to can see they have to show that you're a

habitual user. But I don't think there's always been the United States's position. I remember

a case when I was lurking anyway, where somebody was convicted under this space, let's just like, they found some math in his trailer and they found a gun. At the time, everybody thought like, you know, math plus gun equals conviction, even if you're not a fellow entity, if you have no. Which is not an implausible reading of the statute, unlawful user of, right? If you use math one time, that's a substance that is, you know, in the controlled substances act.

If you use it one time, I think you're an unlawful user of. Yeah. So, and this another, so is this, is this somehow, I haven't traced the threads here, but is this related to what cut hundred by an interval? It's not this law, but I know that he was being investigated for obtaining a firearm while, I think failing to disclose that he was a present user of, think it was crack. Right. I think that's why they make you disclose, is because that makes your prohibited person to transfer a firearm to.

So, on the flip side, it's, meanwhile, on the, on the respond inside, I think everybody agrees that Congress could stop you from using drugs using gun while you're on drugs. Like, one of the

“launch transitions is like, if you are a drunk, you should put your gun away first. And there were”

times when you, you know, had to check your guns at the opening the bar or whatever. So, they can see the, like, if you could show that he was high and had his gun at the same time, that would be a valid conviction. But the question is, what if, as in many cases, somebody might get high regularly, on a gun, but relatively responsibly, like, put the gun away while they're getting high. So, they're not using and carrying at the same time. And that'd be a crime. Okay, the government,

you know, defends this law on, on, Second Amendment grounds, largely based on sort of

founding era laws applying to, drunkards, have worked. It's a more habitual, sometimes just drunkards,

someone who was a consumer of alcohol, because I think that would have made it a crime for basically everybody to possess weapons at the time. I mean, you know, it was just the amount of alcohol consumed at the time of the founding is just hard for us to believe. And in fact, part of it was just that, you know, clean water was hard to come by. And so, the way to get around that was just to drink a lot of beer. Yeah. I, the justice is all lived in the same boarding house in DC and by all accounts,

part of John Marshall, sort of, cast on what are controls. He always brought the medera and, you know,

yeah. So, those laws apply to habitual drunkards or drunkards, which is a little different. And so,

“the respondents say, that's what's our view, like, you know, don't drink and carry. But not necessarily”

a rule that you can't be a regular user. It sounds, it sounds sort of more like addict, right? Maybe. Yeah. I mean, someone who just like can't stop drinking, yeah, who's just drunk all the time, yeah. Sort of like an addict. Yeah. So, that's, that's, that's funny is that we sort of abandon that piece of the statute. Maybe that's the better, the better hook. Now, again, part of this is the level of generality problem. Right. So, I assume when we get to argument, just to spare, we'll say

something like, well, look, obviously, you can, you know, drinking is not the same thing as smoking pot. And a drunkard is not the same thing as a regular user who's not an addict or however we want to get into that. But surely these examples show that it's legitimate into the police power for the legislature to regulate the connection between intoxicating substances and firearms in a reasonable way. And this is a reasonable way. Yeah. The government also stresses, interestingly, that they say

this is not a permanent ban, because one of the concerns in these cases is always like,

is this a permanent forfeiture of the right to keep in bear arms or is it temporary? And they say, look, it's temporary, because anytime you stop using, you can, you give up your visually used and you can have your gun. Yeah. When do you go from being a user to a past user? Statue doesn't tell us. It's true. And so it might be, you know, if you were, if you were a regular user and you were picked

“up with a firearm, you should probably have decided to quit yesterday. And then say, I'm, you know,”

about how betrayal is going anymore. Yeah. Okay. So one thing that's interesting about this case is that it has facts that are very helpful for the government and facts that I think they're very

unhelpful for the government. And the government seems to have strategically tried to get this particular

case in front of the court. You know, the defendant points out in his brief that there were a bunch of petitions challenging this law before the court in the court said, no, please grant this one and hold all the other petitions. Why? Well, the government, in its brief, you know, describes a bunch of allegations against the defendant. None of these have been proven. None of these, you know, are the, the basis of any criminal convictions. But they paint the

defendant as someone who is, I would say at least kind of like terrorism adjacent. Uh-huh. Uh-huh. He is expressed, you know, some things that make him seem, you know, tolerant or even supporting of terrorism. He has connections to Iran, things like that. Things if you read them, they're, they're a little, and it's earning. And is that because of the drugs or those, I don't know. They're, they are unrelated. In fact, as far as, uh, we can tell, it seems like the government

“starts investigating him, maybe because some of that stuff. At the end, the only thing he ends up”

being charged with is this statute. And he's not someone who's, you know, kind of a heroin or cocaine addict. And instead he disclosed to the government when they were searching his property and, uh, that he, you know, uses marijuana several times a week. Uh-huh. And that, that fact alone is the basis for the prosecution. All the other stuff is just atmospheric and unproven. And that part that it's, you know, a lobbying, uh, brought to bear against someone who

uses marijuana in a way that I think many millions of Americans do, especially in a world where many states at the state level have, uh, either, uh, entirely decriminalized or significantly broadened access to marijuana. Um, that, that does seem to make the scope of this law seem quite broad. Yeah. So kind of go from pro question about this. So this, this case arises out of a criminal conviction, right? The other case, uh, wolf of his slope has, like, a lawsuit against the government,

us, you know, trying to stop them before us in the law. This is like, I've been convicted, I want my conviction overturned. Shouldn't it be the case that on review of the Constitution out of a criminal conviction, you can only look at the facts that are, like, admitted by the

conviction on the ground, isn't it almost like inappropriate for the government to bring out facts

“that are outside the criminal record? And, uh, so, I mean, I, I think that, you know,”

I'm not sure that it's, I would say it's inappropriate to ever describe the facts that led the government to prosecute someone in a criminal case. I don't think that it's strictly relevant to the legal analysis. Right. But I mean, even, how could it, how could it even be at all relevant to the appeal? You know, I, I don't exactly know how the record was constructed below. It's, it's possible that some of this, uh, background about, you know, the defendant

got into the record in some way. Right. But it wasn't, like, it wasn't found by the jury, for instance. Yeah. I mean, look, I don't think, I mean, I certainly don't think these, uh, facts, such as they are, could form part of the court's rule here. Right. The court is not going to be able to say this law is constitutional insofar as this defendant, uh, is a supporter of terrorism. Right. They can't do that. Right. But I don't know. I'm not sure that there's anything

stopping the government from just saying, hey, let us tell you a little bit about why this guy got on the government's radar. All right. So I bring this up also because I, I feel like it could actually relevant to the rule and the disposition of the case. Right. So if the court wants to say something like, it's constitutional to have this rule for a regular user of even marijuana, but not for somebody who used it once or who, you know, didn't inhale when they passed the ball around or whatever.

Um, then presumably the indictment and the jury instructions will have to say something about this. I'd love to indict you as a, like the statute just says user, right. They'll have to indict you not just as a user under the statute, but they'll have to indict you as a habitable user under the statute as construed by a money. And then you'll be entitled to a holiday instruction where they have to prove that you were a user or a user is defined to me and use that at least once a

week or something. And you, you know, if the next person doesn't admit to the cops off and they use it, they'll have to somehow prove that. Yeah. And this relates to the other big issue in the case that the

“government kind of glosses over in its brief and I think is planning on dealing with in reply.”

I assume as a matter of strategy to, you know, avoid exposing itself to a bunch of counterarguments. And instead be able to just get the kind of final word. But it's the definitional question, you know, is this statutory phrase unconstitutionally vague. And as the defendant points out in the read brief, apparently there's quite a lot of disagreement, you know, both, you know, between circuits and even within circuits about how exactly to define that phrase, unlawful user. Yeah.

And so that would be a way that the defendant can win that doesn't turn in any way on the second

amendment. Yes. Um, that's a little tricky. And because sometimes when a statute is unconsciously vague, the court then narrows it to its core, right, that in cases, but on a surface this fraud or whatever they say, well, okay, we're not sure, but the one thing we are sure is, you know, habitual drunkard. So if you were the marijuana equivalent of a habitual drunkard, you can make me lie to you other times as in the uncle criminal act, the court just gives up. You know, like, we're not going to

try to find a core. We just don't know what this means. And if Congress wants us to actually take into our heart or so going that route then still opens up multiple forms. There's an interesting amicus brief by friend of the show, Joel Johnson, digging further into some of the vagueness stuff that's drawing on several articles he's written about vagueness. So for those more interested in

“uh, when a dig deeper in vagueness, that's a good one to look at. So I think that this, you know,”

obviously the atmospheric's are very different. When you have the government, which is generally

a pretty, uh, you know, this administration is pretty pro-second amendment, but you've got the

government coming in and strongly defending this law. That is going to change the dynamics of it. Yeah. We don't have a read on what the court is likely to think about it. The government did accept, you know, a petition by the government. The court did accept a petition by the government suggesting, you know, some perhaps willingness to reconsider the decision and uh, reached below. Um, but I'm really not sure. Yeah. I guess what's going to happen.

I especially because, and why it's nice to talk to these cases in the same episode, because these cases are both being considered in the same term and many ways will be being written. I think it's the same time. In this case, it's scheduled for argument early March. I assume it'll be natural for them to go for them to sort of split the difference, right? For, you know, way that that they might not, you know, if it was just, each case was considered

individually. Yeah. It might be hard, right? It'd be easier to accept a government win in Hamani if there's a government loss or this is a Hawaii government loss in, uh,

they might not worry as much about it. They're sending the right of the wrong signals about the

direction of the second and as a whole. Okay. Does, does your approach, general law approach have

anything to say about this issue? Is there a general law of habitual drunkards? Uh, I think the general law approach, I mean, for the same reasons that it pretty strongly supported the, uh, conviction of Rahimi, probably a pretty strongly sports this one too. Again, bracketing the vagueness problem a little bit, which is, which is real. Um, I think it would say this is within the scope of a resource. What if the statute isn't vague? What if it's clear that it applies to

everyone that uses even once in the last six months? So let's get rid of vagueness. Let's just have that's clear definition. So one concern under the general, under the general law approach is

“when the regulation is so broad to be a functional ban on the right. So that's why I think a”

a lot of finding our laws that anybody who's not a T-total or can't have a gun, uh, probably

would have been unconsciously broad. Uh, I've never used any of these substances, so I don't have

a good beat on whether the same thing for control substances is similarly unconsciously broad. But will you reconsider, uh, depending on how this case comes out? You mean, as I can keep that, I mean, you're extensive firearm collection, you know, as we don't longer be a problem if the government loses here. Uh, no. Okay. No, you know, as our listeners may or may not have picked up on will it, you're a big

second amendment guy, but actually, uh, far from a gun, you're kind of anti gun. Uh, yeah, guns are dangerous. Okay. Yeah. But you're, so you're very principled. You're going to just follow original meaning wherever it goes. Even if it conflicts with your policy preferences, I believe the freedom people of the freedom to make dangerous traces. Uh, do they have the freedom to use guns while currently intoxicated? No. Okay. So do you, you think freedom has limits? Yes. Okay.

Are you willing to make a prediction on the two cases we've talked about? Yes. I predict, uh, I predict the S. G's office runs the table. I guess I predict the uh, uh, second amendment's a way in and Hawaii and they lose in, uh, how money. So I agree with that with respect to the second amendment issues. I'm still a little unsure about what to do about the statutory interpretation. Yes. Issue and how money because it does actually seem like a real

wrinkle in the case. Yes. I would guess that, like, leaves you with a justice gorse that's to send maybe while on vagueness. On vagueness. Yeah. Do you think the majority will make clear how it interprets the statute so that we will have more guidance going forward.

“It would seem to be irresponsible not to do that. Uh, if you're asking me, do I think the majority”

of the Supreme Court will do something irresponsible and an additional opinion? The answer's

often yes. But not always. They don't do every irresponsible thing. Uh, yeah. I mean, the

question is whether they will say, this is what it means and it's okay, whether they will say, you know, it's okay as applied to this core and that's enough to let us dispose of the case. And so, obviously, it'd be better to say more. But if they're in a place where they've got a votes, there may be some desire to keep the band together and stand. I don't know. Well, uh, we will see. And maybe we can quickly revisit this one after the argument. And we can,

you know, check in and see whether those predictions hold up. But, um, will for, I mean, what do you, what do you think? This is it into the term case? Yeah, it's the last day kind of case. Yeah. Yeah. Um, and so maybe these cases will both come down the same day. Yeah. How many make it out faster? Okay. You know, uh, because, I guess if the federal government is winning in, and how many presumably it's not,

it's not going to be a 6-3 case. That means depending depending on which, you know, three you're talking about. Hard to imagine the three doses of think there's a right to be a, a vegetable drug user with a gun, but maybe not a bit not habitual fair enough. Yeah. Okay. Any, any final thoughts? Uh, we have to let folks get to their, uh, next class soon. Yeah. Do you, do you have anything else you want to add? So one, I guess one general thing

“that is, I, you know, I think the court's going to have, it's interesting that the court has”

two of these cases already. There was a period, right? It was a color, no gun cases for a while. Bruin, I don't think no gun cases for a couple years. Then Rahimi, and I think there was some question of like, were they going to ever pick up the pace? You know, uh, one thing I was struck by in these cases is noting, you know, the number of citations to recent circuit cases, right? So I think these cases are really proliferating in the circuit courts. Yeah. Do you think we'll get a kind of

pure felonin possession case? Yes. Yeah. That's, that's got to become right. I mean, so one of the thing I'm piece of this is the hominic case comes out of the fifth circuit, which is just striking down lots of convictions. Uh, I think just today or yesterday, the fifth circuit struck down. So the fifth circuit has an as applied regime for felonin possession, uh, including, I think they just said

a meth actually, the big, big, breaking bad vans down here. Yeah. And obviously, if you still use the

meth that apparently you're in trouble, well, if the government wins a trouble under Hermione,

“in the fifth circuit, you might still be okay with that. Um, so I think they'll have to get one.”

I think the, the Trump administration has tried to force stall the felonin possession cases

by resuscitating this neglected part of the statute that lets felons apply for relief from the disability to the Attorney General, um, which had been defunded for a long time by Congress,

but uh, Pembondy found to work around. So that might sort of lead us in percolation for a while,

“but I think the felonin case is coming. It is going to get there. Uh, all right. Thanks for listening.”

Thanks to the Northwestern Federal Society for having us here and give us a great audience to great welcome. Uh, thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

“Please rate and review the show on the Apple podcast app wherever you get your podcast. You can”

visit our website divided argument.com for transcripts, uh, blog.devideradargument.com for, um, pretty many kind of posts about Supreme Court decisions and other related issues from the extended divided argument universe of commentators, uh, store.devideradargument.com for merchandise, uh, you can send us an email [email protected] or leave us a voice mail 314649-3790. If there's a long delay between this in our next episode, it will be because our habitual

drunkenness has made it, uh, that we are unable to get to the mic. The cases may have been bad.