SCOTUS Rules 9-0 on Gun Rights for Marijuana Users

[00:00:00]The Supreme Court unanimously rules in favor [music] of gun rights for marijuana users. Plus, the court denies review of New York's gun industry liability law.

[00:00:09]All this and more on the news [music] update.

[00:00:17]>> [music] >> All right, ladies and gentlemen, welcome back to the news updates. I'm contributing writer Jake Fogleman, joined as always by Reload founder Stephen Gutowski.

[00:00:28]Thereload.com, of course, is where you can head on over today to sign up for our free weekly newsletter. We'll keep you up to date on all things happening in the world of gun politics and policy.

[00:00:36]Speaking of things happening in the world of gun politics and policy, we had a little bit of a breaking news essentially right before we started recording here, and that is that the Supreme Court delivered the first of its long-awaited Second Amendment opinions this term in the case USV Hamani, where in sort of a surprise maybe to some, but maybe not to you, Steve. You think you predicted this at the time.

[00:00:58]We got a unanimous ruling in favor of Hamani, saying that the government cannot prosecute people just for occasional marijuana use with no other factor for owning a gun.

[00:01:10]>> Yeah. Yeah, it's I think the ruling came out how most people expected after oral arguments in the sense that there was a pretty widespread view that the court was likely to side with Hamani in this case.

[00:01:22]They were justices were pretty skeptical of the government's extremely broad claim of power here.

[00:01:30]And I think a lot of people saw that as a good sign that they're going to issue some sort of ruling in favor of Hamani. I think most people expected it was going to be fairly lopsided with some of the liberals joining most of the conservatives, but I [clears throat] think the consensus view was at least Alito and maybe even Roberts might dissent and and go the other direction, side with the government in this case, but um, turns out that's that that they didn't. Um, and I I did, as you said, I did predict that could happen. Alito was very forceful in questioning Hammani and his uh, lawyer.

[00:02:09]And seemed very concerned about some of the implications of perhaps siding with Hammani.

[00:02:15]But if you uh, if you listen to everything he said, when you got towards the end of the oral arguments, he did ask several questions where it just came down to whether or not you thought he uh, was convinced by what the Hammani's lawyer said.

[00:02:31]>> [clears throat] >> And those questions really were about the the scope of of what a potential ruling might entail.

[00:02:39]Like he was concerned about this idea that you know, they they might be blowing up all of the uh, government's potential uh, authority to regulate um, gun ownership by like drug addicts, people who use more um, harder drugs essentially and that have you know, more more of a argument that they're a danger to themselves or others. And he didn't say, yes, I'm convinced by your answer, but he he asked some pointed questions towards the end and he got some pretty uh, well reasoned answers at least I thought from the uh, Hammani's lawyers. And um, so the question was whether or not he was placated by that and it turns out he he was uh, at least to some degree. Now this is uh, just to start off here, the basic holding as you laid out, um, is that the the government didn't meet its burden under the Bruen standard to show that uh, disarming automatically and permanently people who use any sort of scheduled drug, which keep in mind and this is something that the justices emphasized in the majority opinion, which was written by Neil Gorsuch, right? Um could include all sorts of things and not just marijuana and not just like heroin or hard drugs, but but also includes like Tylenol with codeine and Ambien. That's These are some of the things that that the court specifically called out in its in its opinion.

[00:04:10]Um and that they, you know, they don't have to show the government's claim here was, you know, they don't have to show or at least how the the court characterized the government's claim is that they don't they don't have to show that these people are dangerous to themselves or others.

[00:04:24]Um they just have to show they've used drugs um on a regular basis. In this case with Hamani specifically, cuz this is an as-applied challenge, it's not a facial challenge to this law.

[00:04:38]But in this case with Hamani, he admitted to using marijuana a couple times a week.

[00:04:45]Uh and they the justices here emphasize that we don't they didn't even know what kind of marijuana, the potency, you know, what effect it has on him, whether there's any reason to think it makes him dangerous in any way. Um the government just claims that they can disarm somebody on the mere fact that they use any sort of schedule drugs in a way that's not legal.

[00:05:08]Um so, you know, like if you use prescription drugs that are scheduled, but you use them on your prescription, they weren't saying you would be uh potentially breaking the law if you own a gun, but they were saying like even if you just take prescription drugs in an unlawful way, um that you know, that was something that in oral arguments Justice uh Amy Coney Barrett brought up. Like what if somebody takes an Ambien off uh off prescription in a way they're not supposed to.

[00:05:35]You know, does that Does the government claim that they can disarm that person?

[00:05:39]And essentially the court the government's position was yes, and the court is saying that's that's much too expansive. It doesn't fit the historical uh analogs that were offered up by the the government, which mainly revolved around um habitual drunkard standards from the or habitual drunkard laws and and regulations from the founding.

[00:06:02]Um primarily because habitual drunkards, as they were defined historically, were essentially people who not who didn't just use alcohol on a regular basis, but severely abused it to the point where they couldn't function in society. And additionally, the uh so they they said the you know, who the all targets was um incompatible with the modern drug user prohibition, at least as applied to Hamani, a just an occasional marijuana user. Um and then additionally, that the way those laws worked and the purpose of them were were different as well. You know, they were they were meant to sort of protect the drunkard uh and his his loved ones from sort of the uh not necessarily from physical danger, but more from uh you know, the danger of mismanaging their lives essentially. And so and and the way they would do that is by like uh you know, put committing them to institutions or things of that nature for um a temporary period of time. So, different clearly from uh permanently disarming them. That was what the court came to. Here's uh Here's a quote from Justice Gorsuch, the sort of key quote here, from the majority opinion. It says, "Quote, but the government's analogy fails under every measure. It asks us to consider the historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government's submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hamani complies with the Second Amendment. So, they sided with Hamani. Now, beyond that basic scope, and we'll get more into the details of of what the court held here. This is another Second Amendment ruling that has just a slew of concurrences, right? We got three different concurrences that included what, five justices, right?

[00:08:03]>> Yeah.

[00:08:04]Yeah, so you know, the as is obligatory almost it seems now in the Supreme Court issues a Second Amendment opinion where he's not writing the majority opinion, we have a Justice Clarence Thomas opinion, solo.

[00:08:16]>> No, himself, yeah. He's happy to be by himself, yeah. He's happy to be by himself to say what he believes.

[00:08:21]>> And in this case it was more honestly it's quintessential Thomas because he he wrote separately say I agree with the holding which you know, you do in a concurrence but he says, "I'm kind of musing that the whole statute section 922G3 which is the entirety of the the drug user gun ban statute under the Gun Control Act." He said, "Yeah, it doesn't really seem like this fits within Congress's interstate commerce commerce power and so basically totally separate from what's being considered." Yeah, and that's the justification in theory yeah, of why they would be able to pass such a law. And he says, "Yeah, I don't I don't really see how this fits in that power. So, I'm wondering if if it's not unconstitutional for that reason." So, that that alone is kind of fascinating.

[00:09:00]We've seen similar kinds of arguments come up in other gun cases. Yeah, you typically see this in the Fifth Circuit a lot of times. I know Judge Don Willett down there likes to do these for a lot of federal gun laws. So, I think that's interesting. Gun rights advocates will probably take note of that, I anticipate.

[00:09:14]>> Yeah, yeah, National Review's Charlie Cooke who we've had on the show to talk about a previous case that dealt with this this criticism of the commerce clause power and how Congress has used it. He'll probably be pretty happy. Maybe we'll have to have him on to talk about Thomas's dissent at some point. But yeah, that that's Thomas came down and basically saying the court didn't go far enough and uh, really in a in a with a logic that was totally separate from what the court, what the majority was, was holding or this is you unanimous essentially majority opinion. But, um, you know, even though he agrees with what the majority wrote, he wanted them to go even further and go after a whole another aspect of the the challenged law beyond the, you know, the second amendment claim at face here.

[00:10:00]>> And then also true to form, we had a separate concurrence by Justice Ketanji Brown Jackson joined by Justice Sonia Sotomayor. And as you might expect, they, you know, they agreed as president sits, they said that we agree that this is the outcome you need to reach, but we're going to write about how we hate Bruen and we think Bruen sucks and we we think the court really, like they quote unquote say Bruen is unworkable in in the opinion. So, it's another instance, you know, every time at oral argument we've seen is particularly Justice Jackson, you know, in the last few gun cases at oral argument she talks she uses her question time, isn't this absurd that we're doing this under Bruen? Isn't this absurd? And she's written it in concurrences before. So, again, kind of a true to form.

[00:10:43]Yeah.

[00:10:44]>> Although, maybe a little bit of a surprise that Kagan did not join that concurrence, right? And Kagan has been if I'm recalling correctly, the one who has occasionally made comments that gun rights activists have gotten a bit excited about in the past. Um, so I don't know if it means anything, but she didn't join that concurrence, but uh, that is a little bit odd to not see the liberals all together in the concurrence that talks about how they don't like the standard of Bruen.

[00:11:17]>> I do wonder if it's maybe a temperamental thing on Kagan's part cuz she tends to be a little more institutionalist than her other two liberal justice colleagues, but you know, that's just speculation on my part. And then but she did in fact join a concurrence authored by Justice Samuel Alito.

[00:11:31]>> The strangest concurrence in terms of who's in it.

[00:11:35]>> Yeah, that's right.

[00:11:36]And you know, he's one that we're obviously watching because of oral argument. He seemed the most hostile to Hamani's position. He joined obviously unanimous opinion. He joined the majority ruling.

[00:11:46]But he went out of his way to say that he would have preferred essentially a narrower ruling. Here's a Here's a quote that I pulled from it. He said, "Here the government's analogs are too far afield to justify the application of section 922G to a marijuana user like the respondent."

[00:12:00]Uh we do not or we need not say more to decide the case and I would for that reason say no more.

[00:12:06]Which is, you know, a little odd because the court didn't really say all that much more than than just that. But uh I guess I think maybe >> too.

[00:12:15]>> I think maybe it just gives away how uncomfortable he is with with tinkering around with 922 as a concept, which is something he brought up at oral argument. He He thought that this has much more to do with public safety than like, you know, New York's may-issue law or DC's handgun bans. So.

[00:12:30]>> Yeah, he he definitely is is supportive of the general concept of these prohibited person categories, I think.

[00:12:40]Um but you know, it seemed like the majority ruling went out of its way maybe to to tailor things to be pretty narrow to to get Alito on board and they successfully did that and then he wrote he wrote this concurrence anyway that was like I just don't It's It's a very odd concurrence to me but on first glance, that's first We just read through these things. Um but he's [clears throat] just kind of reiterating the idea that this on this only applies to the specific instance of you know, Hamani's occasional marijuana use and the you know, the the government didn't provide any other sort of justification or evidence to support his disarmament just that he used marijuana occasionally. Um and so it is it's a little bit strange to me that um that cuz what you know, you got that quote there of like oh I guess Alito and and Kagan wouldn't say anything more than just um that the government's analogs were too much of a stretch. But that is basically what the majority opinion says, like I don't it's I guess I'm I'm struggling to come up with something beyond that that the majority even held.

[00:13:56]>> Yeah, I read that like I said, I read that is just Alito being like, "Hey guys, I'm pretty uncomfortable with what we're doing here. I agree with you that Bruen kind of requires this, but just this is me waving my flag to say I'm a little nervous about tinkering with That's just kind of my read of based on oral arguments and everything.

[00:14:12]>> I guess it's just a it is a concurrence and not a dissent, right? So, you know, that that's extremely relevant in the sense that like it's it's not disagreeing with anything the majority said. It's it feels like it's just emphasizing we're just holding this. There's nothing more to it. But it's it's so strange and and just juxtaposing that to the majority opinion cuz then you go back makes you want to go back and read through the majority opinion again to see what exactly they're holding beyond what >> Yeah.

[00:14:41]>> that that this prosecution was was unconstitutional.

[00:14:46]>> It's not you know, it's not entirely dissimilar to in my opinion to the sort of Kavanaugh Roberts concurrence in Bruen where they said, you know, "Hey, we're agreeing with this, but we only writing separately to reassure people that we're not upsetting a whole bunch of other things." And I think this is perhaps of a piece with that kind of mentality.

[00:15:03]>> That's what it reminds me of, too.

[00:15:05]But this one the I guess maybe it's just the language in the the phrasing of it where it's implying that the majority held a lot more than it than than this. When I don't I don't really see that in the the majority opinion, right?

[00:15:21]>> Particularly as he mentioned, they sort of they at least tried to go out of their way to explain how narrow this is.

[00:15:26]And I quote in the my write-up of the the opinion where Justice Gorsuch just rattles off a long list of things that, "Hey, we're not addressing this. You know, we're not addressing addicts, for instance, which are probably more or those presently intoxicated, which again are probably more on point to historical analogs." He says, "We don't address whether Congress can do other such types of things related to drug users that pose a particular danger of misuse." They even mention the felon in possession law, which is, you know, one that's come up at their doorstep over and over and over again and Uh so, they they they do go out of their way to rattle off all the laws that they say they're not upsetting. Whether or not lower courts going forward interpret it that way is probably an open question, but they're at least trying to say that this is a narrow opinion.

[00:16:10]Yeah, I mean I guess the it's an interesting opinion in the sense that on the one hand, it doesn't rule a whole lot. It's an as-applied challenge. Um it's basically just saying you the government's position here is is too broad to match the historical analogs. Uh you know, they're they're claiming that anyone who uses uh any controlled substance, including, as I mentioned earlier, things like Ambien or or uh you know, Tylenol with codeine, if they use it in a way that's not lawful, like off off prescription or something, um that you know, that person can be disarmed permanently and and without any sort of uh you know, process ju- judicial process to it. You just become prohibited by the mere fact that you are a uh um you know, a a regular user of the substance or in in a way that's unlawful. And so, the court was basically like, "That's way too broad of a authority to cite here."

[00:17:16]Um And so, you know, the law is is unconstitutional as applied to people like that. And in this particular case, Hammani, who the only evidence in the case is that he had a gun and he admitted to using marijuana um a couple times a week. Uh right? That that's they emphasized that was all the evidence up there. On the note, the right that he actually is kind of interesting there's one section where they seem to be sort of uh I think calling out what the government is doing in this case. Right?

[00:17:47]Because if if anyone recalls, nobody thought that Hammani was your ideal defendant for this sort of challenge, right?

[00:17:54]>> To say the least, yeah.

[00:17:55]>> Right? Uh I mean, there's a lot of other people you could probably come up with um who uh you know, your sort of days can and confused pothead type dudes um who literally all they do is all their only issue they've ever been accused of is just smoking weed and having a gun.

[00:18:10]Uh whereas Hammani Hammani was accused of being basically a terrorist's asset uh for the Iranian Revolutionary Guard. And this case happened while we were I guess supposedly not at war with Iran, but while we were at war with Iran. Um and so, it's like the worst possible um surrounding details of the case you could imagine. But the the court actually seems to call out what the government's was was really doing with this case, which is essentially they investigated this guy for these terrorism charges and acc- you know, accused him of being a terrorist and doing all these terrible things.

[00:18:47]Um you know, uh supporting the the Iranian Revolutionary Guard and uh but they only ever actually charged him with possessing a gun while admitting to smoking weed twice, uh you know, a couple times a week, right? And so, the the court actually kind of called this out as like basically they they wanted to get this guy on on other stuff, but they fell back on uh you know, an easier charge to prove. And and so, um you know, the but that those details were part of the reason that people I think got had the impression that this was not the ideal case to get to the Supreme Court for a marijuana and gun case if you if you uh were a supporter of uh the idea that people shouldn't be barred from owning guns because they smoke weed.

[00:19:35]Um but it turns out here that uh Supreme Court didn't you know, wasn't uh swayed by the those extra sort of curricular aspects of the case and in fact seemed to see through what the government was doing in in in its prosecution. Like you're accusing this guy of all kinds of terrible stuff, but you've only actually charged him with this particular crime and and so we're just going to look at what you charged him with and not be concerned about the rest of it. Um but uh at the same time so they you know, the the holding is essentially this the authority of the government is is is is is calling to hear it is is too broad.

[00:20:14]Um uh it's forestalled by the Second Amendment.

[00:20:17]Um but at the same time like I don't think you get any new insight in how to really conduct the Bruen test or um what the limits of the Second Amendment really are. They leave open the possibility as you mentioned of a lot of other ways that it could be uh this law could be enforced potentially or at least that they're not ruling on any of that stuff. Like if somebody is an addict, if there is some evidence that they're dangerous, um you know, um or if they're intoxicated while possessing the gun.

[00:20:49]So, I don't know. It's an interesting interesting outcome. What do what do you think of it?

[00:20:54]>> I say if I could just jump in just to go back to this defendant and how it's not your, you know, picture-perfect guy if you wanted to bring a a Second Amendment challenge. The if you people recall the DOJ actually kind of did a little bit of gamesmanship to get this case to be the one that goes up to the Supreme Court.

[00:21:10]So it almost a little bit of a backfire on the the Trump Justice Department here in this part because Hamani came out of the Fifth Circuit.

[00:21:16]Hamani was not the case that established the Fifth Circuit's ruling that marijuana users couldn't be disarmed under the Second Amendment. They'd ruled on that twice before uh involving much more anodyne circumstances. One of them is the famous case we covered it several times cuz it kind of went up and down the courts uh but where the guy was uh caught with {quote} two marijuana cigarettes in his ashtray. It's kind of a funny judicial ease the way that the you know, old court >> Yeah.

[00:21:42]>> judges write about weed is always humorous but but yeah, a guy that was literally just caught with like two old joints in a in a in his car and a gun and so clearly that's a little more sympathetic than a guy that uh has potential links to a terrorist organization and what the DOJ Justice Department did is that while those cases were being appealed, the DOJ wrote to the court and said yeah, we know those other cases are cases are pending and they're further along and more developed but we would like you to hold those cases. We think Hamani is the best vehicle to decide the legal question here and then you can decide what to do with those cases after you pick Hamani and then the court being the court deferred to the Justice Department, took up Hamani and I think probably to the dismay of the Justice Department as you mentioned kind of wrote out all of the non-charged allegations and basically >> Right.

[00:22:27]>> the oral arguments never came up during arguments and never came up in the opinion.

[00:22:31]>> Cuz they put it in their brief. They wanted to emphasize the stuff in their brief.

[00:22:34]>> did.

[00:22:35]>> Like hey, this guy's actually a pretty bad guy beyond the weed stuff. You should make sure you think about that and the court's like no. In fact, we see what you're doing. Like you got the opinion docs about There's a paragraph right there basically we we we see what you're doing with this. Um but yeah, no.

[00:22:50]It was It was absolutely a case you know, that's the other half of it. There were a lot of people who um were supportive of of people being able to smoke weed and their own guns who who thought that you know, this wasn't the best avenue and it wasn't the best uh uh test case for for their position because of the nature of of the the accusations against Hamani.

[00:23:11]And then on the flip side of that, this this was clearly one that DOJ thought was a good test case probably in large part because of the accusations they were making against Hamani. And that didn't work certainly. And additionally, you know, the the other aspect of this this and this even comes up in the Alito concurrence, but the the government's and this this beyond one administration, although there were there were things that the Trump administration did that that undermined this case, but really the the sort of a the whole federal government has been undermining this idea that marijuana use makes somebody, you know, analogous to habitual drunkard or, you know, particularly dangerous for over well over a decade now and the court pointed this out in its opinion, right? It was like, you know, essentially one that back in since 2013, so it would have been, you know, obviously the Obama administration at that point, but the federal government has deemphasized prosecuting people for for marijuana use. You know, essentially they they rarely ever bring charges against anybody for illegal, you know, marijuana use on its own. And and then you know, if you look at what the Trump administration was doing while they were arguing this case as well, you had the effort to reschedule marijuana from the most serious schedule one down to I think schedule three, but to lower the the government's opinion of how serious the drug is essentially. They they were doing that while they were in court at the Supreme Court saying use of this drug makes you so makes it so that you can't have guns.

[00:25:03]You know, and that's what the court pointed out how much that the government has undermined this position over the the last decade plus and and the effect that that's had or you know, partial effect effect on how popular this drug is. Like this marijuana as the court argued, I think you had a you you found um um a study a recent um a poll that that said nearly three quarters of people live in a state where marijuana is legalized as well. That's that's the other half of it. The the federal government has been more lenient on marijuana and then the state governments have gone much further than that to the point where they legalized it in those state most most populous states at least we'll say.

[00:25:45]You know, three quarters of the population lives in states that have some some version of of legalized marijuana whether for medical use or or recreational use.

[00:25:54]And and then additionally the court itself cited research that said at this point there's evidence that people use marijuana on a daily basis more people use marijuana on a daily basis than use alcohol on a daily basis.

[00:26:11]And a lot of the case was about analogizing to alcohol at the founding, right? Because um you know, marijuana wasn't as much of a presence at that point, but alcohol certainly was.

[00:26:24]And you know, that that's they they brought that up essentially.

[00:26:30]Marijuana use now is as popular if not more popular than alcohol use in the United States. And so it's just the government itself has kind of created the atmosphere that undermines its claims that people who use this this drug are um should be able to you know, be disarmed just on that fact alone.

[00:26:51]>> As you mentioned you know, how alcohol is common. Just yeah, it's obviously a side point, but it was a people recall the amusing they discuss it a bit in the opinion and it came up during oral arguments. Sort of the amusing anecdotes about the the habits of people at the time that they were these habitual drunkard laws trying to basically separate what it means to be a habitual drunkard versus just a regular user of something. And there's plenty of amusing stories about how much the founding fathers drank at the time that the second amendment was ratified.

[00:27:19]And so it was always like you said, it's just a funny thing because alcohol was so much more common. I think that's sort of the analog to current regular marijuana users like a homani or like a person living in one of those states that that is now legal in.

[00:27:32]>> Yeah, and I think it's the most reasonable analog if you're looking back to the 18th century, right?

[00:27:38]And and it also, you know, that those are the laws that the government was relying on these habitual drunkard laws, which were about alcohol use. And so the court was essentially like, okay, if you're going to say that the modern prohibition is similar to this habitual drunkard law, let's look at what a habitual drunkard meant. You know, what what what was that standard at the founding? And essentially you know, they're basically they're pointing out that people were drinking all the time at the founding.

[00:28:04]And and so to get to the level of what they considered to be a habitual drunkard, you basically had to be an addict. What we would consider like a drug an addict of hard drugs or you know, an alcoholic today, obviously.

[00:28:17]But their standards were perhaps even more >> uh on a daily basis, like every night.

[00:28:47]George Washington, Thomas Jefferson, uh John Adams, they point out all these guys and and their drinking habits, which were to modern Americans were probably pretty excessive. Um now there were you know, a number of reasons for that uh uh that I'm not equipped as a historian to answer, but uh but regardless, the point was, you know, that these weren't habitual drunkards weren't just people who drank alcohol a couple times a week. Um and so uh you know, you didn't just get labeled that and and face the consequences of those laws just because you drank alcohol a couple times a week.

[00:29:24]You know, that you had to there had to be a one that you know, you had to drink much more often than that and it had to have this specific kind of debilitating effects on you and your entire life um to face the consequences that were associated with being a habitual drunkard. Uh and then of course, they also just determined as well that the punishments are punishment is even the right word, but the consequences for being a habitual drunkard were quite different from uh you know, this modern disarming law.

[00:29:53]So, uh they just essentially, at the end of the day, they said, "What the government has provided here is evidence uh for what Hemani did and why his regulations are in line with the historical tradition of gun uh regulation, they just don't match. Uh that that's the bottom line. And they they kept that really cordoned off to the most uh the broadest possible reading of the government's power, right?

[00:30:27]Cuz that's what they were offered. Uh and so, they didn't need to go further than that in this case. Um and that's probably why you got a unanimous ruling um because they didn't go further. Just basically, the idea that anyone who unlawfully uses any sort of controlled substance, even the the lowest level designations, um uh on a, you know, regular basis without any proof that they're a threat to themselves or others, um you know, that's not enough of a basis to override their Second Amendment rights, is essentially what the court held here.

[00:31:05]>> Absolutely. So, pretty fascinating ruling. I think, Steve, you plan to write a little bit more about it for Reload members coming up. Um and so, Reload members can obviously check that out, and we'll have, you know, a lot more to say on the show as well as we start to see if there are any long-term implications. Obviously, just in the narrow sense, you know, issuing this ruling that you can't prosecute a marijuana user for that will have some implications, but we'll see if courts interpret this narrow ruling in other ways that affects their jurisprudence going forward. Um but it wasn't the only Supreme Court news that we talked about this week uh because, you know, what Obviously, we were watching for this.

[00:31:38]Uh we were watching for the other uh major Second Amendment case that the opinion did not come today. Uh so, that's news on its own. Um >> Weird.

[00:31:46]>> Yeah. So, >> [laughter] >> I don't know what they're waiting for.

[00:31:50]>> Yeah. Quickly running out of time for Wolford to come, but obviously, we'll talk about that when it does show up.

[00:31:55]But, they did issue a decision >> cases today. They had 20 cases. You So, here's the This is just a 1 second on this cuz I don't want to I don't want to get bogged down, but uh it's a bit odd what the court is doing right now. They have Going into today, they had 20 cases left to to um to deliver opinions on.

[00:32:14]And traditionally, they do that by the end of June. Well, we we are getting uh near I think there's They usually give out opinions on Thursdays, and there's only one more Thursday in June. Uh now, to be fair, they can do whatever they want, basically. They're the Supreme Court. Uh and they can add days, and they can uh you know, go into July. They've done that occasionally in the past, but they have 13 cases left. Or no, 17 cases, I'm sorry. They only did three.

[00:32:43]Uh so, a bit weird. And and they only did one of the two Second Amendment cases.

[00:32:47]And now it's just They've been releasing cases that were similar at the same time. So, I don't know. Strange things, but not the only um not the only uh Second Amendment related uh Supreme Court not doing stuff news we have from this week, right? Like that's a transition into the next order.

[00:33:05]>> Yeah, so in their orders list earlier in the week, they uh again, as they've been want to do lately, uh rejected a couple of spending Second Amendment cases. I think the most closely watched one had to do with New York's {quote} "public nuisance" law. Uh this was the first in this latest wave of laws that we've seen where states are trying to get around federal liability shields uh for the gun industry, the PLCAA.

[00:33:28]And uh the National Shooting Sports Foundation, which represents the industry, has been sort of on a tear trying to sue against these laws for obvious reasons because it has a big impact on their members. Um and the court said, "Nope, we're not going to touch that." Uh and so I think that was a bit of a disappointment to folks that would like to see the court sort of police its gun liability uh standards.

[00:33:48]>> Yeah, and that was one of two New York uh Second Amendment challenges that the court denied. Uh there was another one from uh an individual that was trying to challenge the New York's um training requirements that it that it passed in the wake of the Bruen case, which of course struck down New York's uh old may-issue uh gun carry permitting law.

[00:34:10]Uh and you know, that that actually went after that second case, I think it's called Cornett. Um that went after the the most infamous footnote in Bruen uh that you actually have written about recently, footnote nine, where they uh were effectively giving their blessing, even though they were striking down may issue laws, these more subjective laws that gave government officials a lot of discretion over who got a permit even if they passed the the statutory requirements like background check and training.

[00:34:43]Um you know, they they were the court struck down that that type of law, but it basically was saying, "Okay, shall issue is fine where where you don't have that level of discretion." But it did it without, you know, applying the Bruen test at all.

[00:34:56]Like there aren't there weren't really shall issue permitting regimes at the founding either.

[00:35:01]Um and so you know, there there been a lot of courts that have relied on that footnote, footnote number nine to uphold a lot of different permitting regimes or licensing regimes or what have you um without doing the historical tradition test that Bruen is supposed to require of in second Amendment cases.

[00:35:24]Uh so this was this was a challenge along those lines of New York's newer gun carry law. And now I will say there's one important thing about both those cases beyond the fact that they're second Amendment challenges to New York law, and both of them are preliminary injunction uh requests. They were at this earlier stage of the process and the court has been very reluctant to get involved in those cases uh to this point. So um you know, they they definitely on second Amendment uh jurisprudence at least, which is what we follow of course, uh they really have not been eager to to jump in on on these preliminary injunction requests. They want to wait until the lower courts go through the whole process, which which takes years, right, in in practice. So um that is the one thing that I would say binds them in my mind at least is that they were they're both preliminary injunction requests. Um and the court's just not This is an area where they're not We're not doing that sort of thing very very frequently. So, but beyond that, those two denials, which are significant, um you still have You had another four cases that came that they accepted for uh distribution for conference, right?

[00:36:45]And those were all, I believe, felon in possession cases.

[00:36:50]Uh and then you had 25 other Second Amendment cases that are still pending uh before the court, including, I think most importantly for most watchers, uh Second Amendment watchers of the court, all of the hardware ban cases. They're still They've still relisted those. They have not decided one way or the other. I imagine Maybe they'll wait until they have Rahmani's out now. Maybe Wolford Maybe we get that next week. Um And so then after that, maybe we'll see what they decide to do. And the We haven't seen them um in recent years, especially after Rahimi, right?

[00:37:28]Uh they GVR'd a lot of cases, even ones that didn't seem like they would be changed at all by the outcome of Rahimi, right? And so maybe they're waiting to do that with Wolford or something. But right now, they got this huge catalog of Second Amendment cases that they could take if they really want to. We still have that that sort of Kavanaugh uh statement from last year hanging over those hardware ban cases, where he said, "We just want some more percolation, but in a a sitting or two, we're going to take up one of these." Well, they got plenty to choose from. Um they haven't done it yet.

[00:38:03]>> Yeah. And then it's kind of tough to say what they're going to do because the Duncan magazine case and then the Cook County assault and ban, quote unquote, assault and ban case from Illinois. I think this was their 20th time that they were relisted for uh redistributed for conference. And so I think that's more than the Snow case was before the Supreme Court ultimately ended up denying that one where Kavanaugh did issue that say we're denying this but hey don't worry we're going to take one in the next year or two. These have now been re-listed five more times than those cases and so it's tough to say what that means but it certainly does show that these things are piling up and they're not going away. So if the court was hoping to you know avoid this kind of stuff it's certainly not working.

[00:38:42]>> Yeah, yeah there's a lot of second Amendment questions they still haven't answered and and frankly Hamani they don't answer much more in there. Um very narrow.

[00:38:51]>> Right, yeah. That's right.

[00:38:53]>> And very very narrow and still pretty fractured.

[00:38:56]So maybe maybe that gives you some insight into where the court is at on the second Amendment and why they're not rushing to take up a bunch of these cases. Uh there may be a broad strokes agreement on the second Amendment among the conservatives on the court but I think on the details there's quite a bit of variation and you see that play out with all these second Amendment cases having a ton of concurrences even when they're pretty narrow rulings. Um you know like we were just talking about Alito and and Kagan write a whole concurrence where they're like oh the court didn't have to go any further than than saying X when I think at least on first glance a lot of people are going to take away that that is exactly what the court said. So they're going to really emphasizing this idea that uh I don't know that we agree completely on the this stuff um even on these questions where we're coming down unanimously on a technical basis. Uh so and that's probably what's what's going on with a lot of this stuff. Um I mean I just I don't know how much that changes the overall approach. Like does that make me make make you think they're less likely to uh to strike down an AR-15 sales ban?

[00:40:07]I don't know. Yeah I don't I don't think it does but are they likely to have very strong disagreements about the specific particulars about why it should be struck you know struck down.

[00:40:18]Yeah, probably. Um but that all remains to be seen and I I don't know. At this point I certainly wouldn't expect them to do like last minute take up a bunch of hardware bank cases. I think it's way more likely that they'll issue Wolford which will also be a very narrow ruling um that basically just says the vampire rule is is not constitutional because it's this outlier that almost totally bans gun carry in practice. Um and you're not going to get a lot more detail on any of the key questions that have yet to be answered. Um I mean we got a little bit of one. We got an answer to the who, a slight answer which is basically people who smoke weed occasionally uh or at least on a weekly bi-weekly basis. Um they can't be disarmed but beyond that we don't have a whole lot of insight uh into who can be disarmed still. So um yeah, it's a it'll be interesting to see. What are your I don't know. What what are your thoughts and I mean I I don't know that I'm I don't know that I see a reason to think that the court won't strike down an AR-15 ban uh given the makeup and what what they've actually said in oral arguments and in opinions um but uh I don't know. The timing though and and the specific details, that's where I'd be less inclined to give us a hard answer.

[00:41:47]>> Yeah, I'm I'm kind of on the same same page with that is that if they do take one up, I think the outcome is that they strike one down. It's the getting them to take one up part that uh I find myself scratching my head and I feel that way honestly frankly about a lot of these outstanding Second Amendment issues that have yet to be resolved.

[00:42:03]We've seen age issues become a a real problem where there's big circuit splits. We've seen obviously the felon issue is like you know, it's the most commonly charged uh federal gun law and a couple of courts have now invalidated it and we still don't have resolution on that and so that seems like a pretty big issue but the court obviously disagrees with me because they keep rejecting felon cases and so there's I feel I just feel that way about a lot of frankly big ticket second amendment issues.

[00:42:29]It's I can reasonably predict where they would come down on the issue should they take it up. It's just the fact that I'm not quite sure why they're deciding to wait doing so. I don't have an insight into the mind of you know wisdom of the Supreme Court.

[00:42:42]>> Right. Right. Yeah, nobody does really but Uh you know we've got the tea leaves and we've got the opinions and oral arguments. That's the best That's the best you can rely on I think and uh Yeah, I mean it's >> [sighs and gasps] >> it's definitely one of those things where one of the things I wonder is with especially the hardware bans whether they're waiting for a circuit split. Like there's clearly four votes to do it cuz Kavanaugh has explained in his statement that they that he doesn't think AR-15 bans are constitutional. You know, he basically just directly says that. We already have the three other justices who had voted to take up the Maryland case. Note that's where the Kavanaugh statement came from, right?

[00:43:25]Um And then you know, they've all also those three have also you know, Gorsuch and Alito and Thomas have already opined basically in in various ways over the years that they think AR-15 bans are unconstitutional.

[00:43:40]Uh so that just really leaves Roberts and and I mean obviously leaves the other uh there's five other ones but the three liberals you would assume will probably go uh to uphold a ban although not you know, there may be some reasons to think that that's not necessarily case including even this concurrence from uh Kagan joining Alito instead of Sotomayor and Jackson today. I don't you know, maybe that means something. I don't know for sure that it does, but um uh you know, but but generally you can put those three in the descent and then or the you know, in the category to uphold an a ban, and then you got Roberts and and Barrett, and I don't we haven't seen anything concrete from either one of them that would suggest they wouldn't strike down an AR-15 ban, but they also are clearly the ones who are keeping a case from uh you know, being taken up, I think they're they're clearly the the ones that the other four conservatives aren't necessarily sure they're going to come down on the same side as them. I don't know. Um and I wonder if part of that is just an institutionalist's idea that there is no circuit split on hardware bans at this point.

[00:44:53]All of the appeals courts that have ruled on it have upheld upheld them, and so uh because they're they tend to be the left-leaning circuits cuz the only states that adopt these laws are your darker blue states to this point, and so it creates a sort of structural problem we've talked about for gun rights advocates, but um you know, maybe maybe once the third circuit I don't know that they're specifically waiting in anticipation of what the third circuit's going to do, like some people I think hypothesize, but um you know, that maybe they're waiting for the lower courts to all have their say before they get involved. Um I don't know. This is all speculation. I don't think that this this case gave us any more insight into it necessarily or these moves of denying a couple of preliminary injunction requests and just holding on to all these these other hardware bans. Um my my gut at this moment is they probably deliver Wolford and then GVR everything they've got sitting around. I I'd be real surprised if they delivered Wolford and then accepted uh you know, the hardware bans uh, to their docket. I think that would be really surprising at this point after this long delay, especially after how much it matches what they did with Snow, but we'll see.

[00:46:13]Um, that's >> [sighs] >> something we'll have to keep an eye on.

[00:46:17]Uh, we're going to certainly watch closely, but um, yeah, I think that's that's all we've got. I I will say one quick note, um, in, uh, the Virginia case, there there is a Virginia case uh, that you wrote about. We'll have a piece out on that, um, uh, this weekend, uh, looking at the arguments. We talked about Jay Jones, the Attorney General of Virginia, and his arguments for upholding the state's new, um, AR-15 sales ban.

[00:46:45]Um, but now we have an interesting case that I think the Second Amendment Foundation has gotten involved with, uh, but it features Ken Cuccinelli, the former Attorney General of Virginia, uh, arguing essentially sort of turning the current Attorney General Jay Jones's arguments on its head. Jay Jones is arguing, "Oh, uh, you know, the the Section 13 of the Virginia Constitution, which is the Second Amendment analog, but has slightly different wording, um, it's just a collective militia right, and so it doesn't, you know, prevent the government from doing any sort of gun regulation for civilians that it wants."

[00:47:19]Uh, well, this new case from Cuccinelli, um, it argues that, yes, it is a militia right, but as this is something I brought up last week in our in when we talked about this, but it defines the militia as the body of the people, basically individuals, like the people of Virginia are the militia, all of them. And so therefore, by restricting these militarily or militia-useful weapons, like AR-15s, you are violating this militia aspect of the right, not just the individual aspect of the right, as a lot of the other lawsuits have claimed. Um and so it's taking kind of a unique approach and they actually got to a hearing on a preliminary injunction at the state court level.

[00:48:07]Um and they are backed by the Commonwealth attorney in I think this is in uh Spotsylvania part of Virginia if I'm remembering correctly.

[00:48:16]Uh but they're backed by the Commonwealth attorney there as well.

[00:48:19]Uh the local prosecutor essentially and they had a hearing yesterday. We're expecting a ruling later today. So we'll We don't have anything at this point, but uh we may later get news on whether or not uh Virginia's AR-15 sales ban is is enjoined.

[00:48:36]Even if it is though, I will say it's very extremely likely to get appealed by the current attorney general and I would imagine that this fight is going to end up at some point between you know, at the Virginia Supreme Court where the other cases from the NRA and and BCDL and GOA, there's a number of cases. Those are all being considered for consolidation right now.

[00:48:56]They haven't had hearings yet on them the claims for preliminary injunction.

[00:49:00]Probably won't get one before the July deadline when the law goes into effect.

[00:49:06]Uh and so the GOA and BCDL have already uh appealed up to the Virginia State Supreme Court on that question. So this will probably all end up even if they you get a preliminary injunction, which would be practically still substantial because it would prevent the law from going into effect, but uh even if that happens, it's likely to get moved up higher courts pretty quickly. Um but we will track all of that as well and and report back to you guys on it, but um I think that's all we've got though for the show this week. Jake, uh um you're headed off uh on a a trip, right? Tomorrow I think Tomorrow's a holiday as well, Juneteenth.

[00:49:46]Um so most people I think are off these days and hopefully you got a good uh uh weekend planned. You you uh were great at uh cutting the news out on this Amani case quickly, so I appreciate that. Um I imagine we'll do this dance again next week when they probably release Wolford.

[00:50:05]Um I This is the one time maybe they were thinking of us and they're like, "We don't want to overload the gun writers with two the two major Second Amendment cases at once, so we'll just do one at a time."

[00:50:17]Uh I don't know if that's I don't know if that's how their thinking works, >> [laughter] >> but um I'm glad that we were able to to do this piece and and the timing worked out to where we could do this podcast as quick reaction to what the court handed down.

[00:50:32]Um But yeah, I hope you hope you have uh a good weekend. Um We're actually going to have We're going to I think the interview podcast is going to be on uh the NRA. And I had a piece in the Washington Post, my first post uh byline that described the sort of precarious position that the NRA is now in with its fight with the foundation. You know, it's got through one uh existential crisis with the corruption case and now it's facing yet another that really is kind of an extension of the first, but um so we're going to go through the details of what's going on with the NRA on the interview podcast this week with uh Ohio State accounting professor Brian Mittendorf, who's been tracking the NRA's financials for for quite a long time. So, uh you know, if you're Reload member, you'll get that a day early um as always on Sundays alongside your your uh members newsletter. And then if you're if you're not, you'll still get access. It'll just be then on Monday.

[00:51:33]Um so, make sure you join The Reload though if you do like this kind of reporting because that's how we keep things going.

[00:51:41]And we we need your support to be able to provide this kind of sober serious approach to firearms reporting and analysis. So, I would implore you to buy a membership today if you are if you are able to, if you're in a position to to do that. So, uh you can do that over at thereload.com, but that is all we've got for you guys this week. We will see you again >> [music] >> real soon.

[00:52:04]>> No, the devil's got [music] no hold on me.