WEBVTT 1 00:00:03.879 --> 00:00:08.480 Welcome to scotus Cast, a project of the Federalist Society for Law and Public 2 00:00:08.480 --> 00:00:13.480 Policy Studies. Our contributors join us from around the country to bring you expert 3 00:00:13.519 --> 00:00:18.760 commentary on US Supreme Court cases as they are argued and decisions are issued. 4 00:00:20.079 --> 00:00:25.160 The Federalist Society takes no position on particular legal or public policy issues. All 5 00:00:25.199 --> 00:00:37.119 expressions of opinion are those of the speaker. Hello, and welcome to Scotus 6 00:00:37.200 --> 00:00:41.039 Cast. I'm your host, Kyle hammers On, behalf of the Faculty division 7 00:00:41.079 --> 00:00:45.920 of the Federalist Society. We are here today to discuss United States versus Rahemi, 8 00:00:46.119 --> 00:00:50.000 which was argued before the Court on November seventh. Is my honor to 9 00:00:50.039 --> 00:00:54.799 introduce our guests today. Mark W. Smith, Professor Smith is a Presidential 10 00:00:54.840 --> 00:00:59.200 Scholar and Senior Fellow in Law and Public Policy at the King's College. He's 11 00:00:59.240 --> 00:01:03.480 also visiting and pharmaceutical public policy and law in the Department of Pharmacology at the 12 00:01:03.599 --> 00:01:08.760 University of Oxford. Additionally, he's a constitutional attorney and host of the Four 13 00:01:08.799 --> 00:01:15.079 Boxes Diner YouTube channel, which provides scholarly and historical analysis of the Second Amendment. 14 00:01:15.439 --> 00:01:19.879 And with that, I'll hand things over to our guest, I appreciate 15 00:01:19.920 --> 00:01:23.439 that. So we had about a ninety minute oral argument started at ten am. 16 00:01:25.079 --> 00:01:27.200 What's interesting about the Second Amendment argument is that the government had to go 17 00:01:27.280 --> 00:01:32.359 first, because usually over the years is those that support the right to keep 18 00:01:32.400 --> 00:01:34.680 in bear arms to keep losing in the lower court. So it's highly unusual 19 00:01:34.879 --> 00:01:38.760 that we had a situation here where the Second Amendment advocates, if you will, 20 00:01:38.840 --> 00:01:45.319 the person advancing the Second Amendment actually prevailed in the lower court. Specifically, 21 00:01:45.760 --> 00:01:49.239 in a three to zero decision in the Fifth Circuit Court of Appeals out 22 00:01:49.280 --> 00:01:53.640 of New Orleans, was a decision that said that the relevant federal statute here, 23 00:01:53.799 --> 00:02:00.200 which is a gun control statute eighteen USSE or eighteen US Code nin to 24 00:02:00.840 --> 00:02:05.599 G eight, was unconstitutional on its face. Is what the Fifth Circuit said. 25 00:02:05.799 --> 00:02:10.479 Specifically, what nine T two GA says is that if you are subject 26 00:02:10.759 --> 00:02:15.120 to a civil and that's key, if you are subject to a civil domestic 27 00:02:15.240 --> 00:02:21.879 violence restraining order, then you are not permitted under federal law, as per 28 00:02:21.919 --> 00:02:25.240 Congress, to be able to possess a firearm anywhere in the United States. 29 00:02:25.479 --> 00:02:29.240 And mind you, just to give you a sense of the scope of this 30 00:02:29.800 --> 00:02:34.599 law. If you Let's say are in a dispute, let's say with an 31 00:02:34.599 --> 00:02:37.400 ex spouse or someone you're getting to go in through a divorce with, whatever 32 00:02:37.439 --> 00:02:40.159 it is, and let's say Boston, Massachusetts, and there is an order 33 00:02:40.319 --> 00:02:45.479 entered that says that you two are supposed to stay away from each other during 34 00:02:45.479 --> 00:02:47.599 the pendency of the divorce. And you go ahead and move all the way 35 00:02:47.599 --> 00:02:53.759 across the United States to Phoenix, Arizona, thousands of miles away from your 36 00:02:53.159 --> 00:02:57.080 expouse or the person you're going through a divorce or whatever it is, ex 37 00:02:57.120 --> 00:03:00.759 employee doesn't, whatever it happens to be. Then under nine two G eight, 38 00:03:01.199 --> 00:03:06.000 you are not allowed to possess a firearm even though you're thousands of miles 39 00:03:06.080 --> 00:03:09.400 away from the person who's also subject to that domestic violence restraining order. And 40 00:03:09.439 --> 00:03:13.960 the other context I want to bring is one of the other things that was 41 00:03:14.039 --> 00:03:19.159 raised in the Amikus brief and actually mention an oral argument is many times these 42 00:03:19.479 --> 00:03:24.319 domestic violence restraining orders are mutual, and what that means is that they basically 43 00:03:24.360 --> 00:03:30.520 apply to both parties, and as you know, sometimes one party may be 44 00:03:30.639 --> 00:03:34.639 more dangerous than the other party. Nevertheless, in for the good of the 45 00:03:34.840 --> 00:03:38.199 order, it's not unusual, and this was brought up by many Amikus briefs. 46 00:03:38.199 --> 00:03:44.240 I believe also by several public defender offices across the country that both parties 47 00:03:44.400 --> 00:03:47.360 are basically disarmed. And that might be the case where a person who's a 48 00:03:47.360 --> 00:03:52.719 potential victim is disarmed as much as the person that might be the potential perpetrator. 49 00:03:52.800 --> 00:03:54.520 And I should note that that played a big role, as I see 50 00:03:54.520 --> 00:03:59.840 it in the Fifth Circuit's decision that says the nine to twenty two G eight 51 00:04:00.280 --> 00:04:03.840 was unconstitutional under the Second Amendment. Now, with that context in mind, 52 00:04:03.879 --> 00:04:05.840 let's talk about what happened, what I think is going to happen, and 53 00:04:05.840 --> 00:04:10.360 then where I think all this goes. So begin with to cut to the 54 00:04:10.439 --> 00:04:15.120 chase. It's in my opinion that mister Rahimi, the man, the criminal 55 00:04:15.160 --> 00:04:19.040 defendant, is likely to lose this case. I suspect he's going to lose 56 00:04:19.079 --> 00:04:23.680 this case. It could be as much as seven to two, eight to 57 00:04:23.720 --> 00:04:26.800 one, possibly even nine to zero. It's hard to say for sure, 58 00:04:27.000 --> 00:04:31.879 but I think that mister Rahimi himself is going to lose this case because at 59 00:04:31.879 --> 00:04:35.079 the end of the day, the Department of Justice, when they were arguing 60 00:04:35.160 --> 00:04:39.519 this bear in mind that in the briefing, and this is quite interesting. 61 00:04:39.839 --> 00:04:44.240 In the briefing, the Department of Justice argued there was really two types of 62 00:04:44.279 --> 00:04:49.240 people that legislators such as Congress can disarm in America. One category of those 63 00:04:49.439 --> 00:04:57.040 that are not law abiding. The other category is those who are not responsible. 64 00:04:57.160 --> 00:05:00.360 And what the Department of Justice argue in their briefs in the he Me 65 00:05:00.600 --> 00:05:05.439 case was that if you were not responsible and or you were not law biting, 66 00:05:05.639 --> 00:05:11.560 you could be disarmed. Now that argument that the Department of Justice advanced 67 00:05:11.560 --> 00:05:15.600 and remembror again reminder of the Department of Justice spoke first. The Solicitor General, 68 00:05:15.639 --> 00:05:17.439 who did a great job as she always does, spoke first. And 69 00:05:17.519 --> 00:05:23.480 what's interesting, in literally the first few minutes, Chief Justice John Roberts immediately 70 00:05:23.759 --> 00:05:26.319 quizzed her on this by saying, well, let me get this straight, 71 00:05:26.360 --> 00:05:31.560 counselor, if I drive thirty miles per hour in a twenty five mile per 72 00:05:31.600 --> 00:05:36.639 hour speed limit zone, have I somehow basically lost my right to keep in 73 00:05:36.680 --> 00:05:41.319 durarns because now I'm not law biding, I'm not responsible. And immediately the 74 00:05:41.360 --> 00:05:44.800 Department of Justice and I think this is going to be actually a potential prompt 75 00:05:44.800 --> 00:05:48.199 for DOJ in future cases. She immediately conflated her position and said, no, 76 00:05:48.680 --> 00:05:51.199 not true. Really, at the end of the day comes down to 77 00:05:51.279 --> 00:05:56.560 whether or not you, as an American citizen are dangerous. Now what's quite 78 00:05:56.600 --> 00:05:59.959 interesting is people then, you know, the Court then kind of said, 79 00:06:00.000 --> 00:06:01.639 well, that's interesting because you know, you couldn't have said that in your 80 00:06:01.639 --> 00:06:08.120 briefs and said dangerousness was the touchstone here, and basically the Department of Justice, 81 00:06:08.240 --> 00:06:12.439 you know, the Solicitor General kind of said well, yeah, dangerousness 82 00:06:12.480 --> 00:06:15.000 is really the key. Yes, we agree, but there's different ways you 83 00:06:15.000 --> 00:06:16.240 can kind of get there. And at the end of the day, the 84 00:06:16.319 --> 00:06:20.240 court should always defer, as I see it, this is what they argued 85 00:06:20.279 --> 00:06:25.680 to defer to the legislative body in this case, Congress. So when that 86 00:06:25.839 --> 00:06:30.600 said, I do think that a comment by Neil by Chief by by Justice 87 00:06:30.639 --> 00:06:35.959 Neil Gorsisch was telling because once John robert or i say Chief Justice John Roberts 88 00:06:36.160 --> 00:06:41.360 made the comment that got the Department of Justice to concede that really dangerousness is 89 00:06:41.360 --> 00:06:46.040 the key issue, meaning if you are dangerous i e. A physically violent 90 00:06:46.319 --> 00:06:49.600 danger to yourself or to someone else, then you can be disarmed, which 91 00:06:49.639 --> 00:06:54.439 is really where the question from Chief Justice John Roberts took The Department of Justice, 92 00:06:54.680 --> 00:06:59.439 Uh Justice Gorsicch then sort of followed up and basically indicated that, hey, 93 00:06:59.759 --> 00:07:02.319 well, well, if that's the case, then here it seems to 94 00:07:02.360 --> 00:07:08.680 me that the record is such that mister Rahimi seems to be dangerous since, 95 00:07:08.720 --> 00:07:13.160 of course he admitted and consented to the entry of this restraining order, and 96 00:07:13.199 --> 00:07:16.040 if you look at the terms of the restraining order, it's essentially conceding that 97 00:07:16.120 --> 00:07:21.199 the affidavit submitted by mister Raheem's ex girlfriend, I believe it is said he 98 00:07:21.680 --> 00:07:27.439 was violent toward her in very specific ways. He consented and agreed to the 99 00:07:27.519 --> 00:07:30.759 sworn statement and consented to the entry of this restraining order. It seems to 100 00:07:30.800 --> 00:07:34.199 be at that level he may very well be deemed dangerous. And then on 101 00:07:34.240 --> 00:07:40.120 a related note, Justice Courses went on to indicate that there seemed to be 102 00:07:40.279 --> 00:07:44.839 plenty of history at the time of our founding, such as surety laws and 103 00:07:45.040 --> 00:07:48.600 also a fray laws that would indicate that someone who is a violent danger to 104 00:07:48.680 --> 00:07:54.040 themselves or to others could be disarmed. That did not seem to be a 105 00:07:54.040 --> 00:07:59.079 particularly controversial proposition, so where a lot of what happened here in the oral 106 00:07:59.160 --> 00:08:03.839 argument was the Department of Justice under Merrick Garland and the Solicitor General of course, 107 00:08:03.120 --> 00:08:09.199 trying to broaden the scope of the interpretive methodology of Bruin. And this 108 00:08:09.319 --> 00:08:13.399 was a very big deal because from the point of view of the Second Amendment 109 00:08:13.680 --> 00:08:20.199 community, those interest were concerned. I would say that because mister Raheemi himself, 110 00:08:20.240 --> 00:08:22.120 mister Rhemi, the man had a record, at least based on the 111 00:08:22.120 --> 00:08:26.079 court filings, that he was somewhat of an odious character. He had been 112 00:08:26.120 --> 00:08:31.879 involved with multiple shootings, he had engaged in violence against his ex girlfriend, 113 00:08:31.039 --> 00:08:35.480 and had done other things that were untoward. I think there was even allegations 114 00:08:35.720 --> 00:08:39.279 that he might have been connected to being to the drug trade in certain respects. 115 00:08:39.399 --> 00:08:43.799 So on this record, obviously the man, mister Rahimi, did not 116 00:08:43.000 --> 00:08:48.399 look particularly good or sympathetic, and I think there was concern on the part 117 00:08:48.519 --> 00:08:52.960 of those that are want to robust or broad interpretation of the right to keep 118 00:08:54.000 --> 00:08:58.240 in barms that this particular case could be a problem in the sense of bad 119 00:08:58.360 --> 00:09:01.320 facts could make bad law. And I think the flip side, of course, 120 00:09:01.840 --> 00:09:07.759 was that the Department of Justice under Joe Biden that obviously is sympathetic as 121 00:09:07.759 --> 00:09:11.000 a general matter to more gun control. I think that's fair to say that 122 00:09:11.200 --> 00:09:16.399 the Solicitor General basically was trying to expand the scope of those types of people 123 00:09:16.679 --> 00:09:22.480 that could be viewed as able to be disarmed, and on a related note, 124 00:09:22.679 --> 00:09:30.000 was trying to expand the scope of historical analog laws that could be used 125 00:09:30.080 --> 00:09:33.399 to justify modern day gun control law. And I'll get to those specifics in 126 00:09:33.480 --> 00:09:35.919 just a couple minutes here. So, with that tension going on, I 127 00:09:35.919 --> 00:09:39.759 would say, mister Raheemi will lose this case. There will be a holding 128 00:09:41.039 --> 00:09:45.840 that eighteen USC. Nine to twenty two G eight on its face is constitutional. 129 00:09:46.080 --> 00:09:48.480 However, so at one level, mister Raheemi is not going to be 130 00:09:48.519 --> 00:09:54.279 happy. But then the question becomes is when the decision comes out, how 131 00:09:54.399 --> 00:09:58.840 will let's say the Biden administration view the outcome of the case favorably or unfavorably, 132 00:10:00.039 --> 00:10:03.559 And how will let's say the Second Amendment community view the case favorably or 133 00:10:03.639 --> 00:10:05.120 unfavorably. Here's where I think it's going to come out, and then I'll 134 00:10:05.120 --> 00:10:07.759 elaborate on the Range case, which I think is coming down the Pike. 135 00:10:09.200 --> 00:10:13.600 I think the Department of Justice is going to view this as a missed opportunity. 136 00:10:13.840 --> 00:10:16.799 I think they thought this is a very strong case for them to again 137 00:10:16.919 --> 00:10:22.600 have bat backs make bad law. And I think that they were very excited 138 00:10:22.799 --> 00:10:26.440 at the prospect of pushing this Raheemi case to the front of the line of 139 00:10:26.559 --> 00:10:33.039 Second Amendment cases before the Supreme Court, because historically Second Amendment cases that are 140 00:10:33.039 --> 00:10:35.759 brought before the Court tend to be very sympathetic towards the citizen. Hell or 141 00:10:35.799 --> 00:10:39.440 you had an individual that was a former law enforcement officer who could not get 142 00:10:39.440 --> 00:10:45.039 a handgun MacDonald was, you had Otis MacDonald on an individual who lived in 143 00:10:45.120 --> 00:10:46.679 Chicago, in a crimer in an area could not get a handgun, a 144 00:10:46.720 --> 00:10:52.720 sympathetic second amendent plaintiff. In the Kaitano versus Massachusetts case, you had Jamie 145 00:10:52.759 --> 00:10:56.919 Kaitano, a woman who had been stocked by an ex boyfriend and needed to 146 00:10:56.000 --> 00:11:00.200 use a stun gun to protect herself. So the and of course, when 147 00:11:00.200 --> 00:11:03.960 you had individuals that were undeniably upstanding citizens that just wanted to carry a gun 148 00:11:05.360 --> 00:11:07.960 for self defense, when they could carry a gun for all other reasons, 149 00:11:07.960 --> 00:11:11.360 but for self defense, so in every single one of those Second Amendment cases, 150 00:11:13.080 --> 00:11:16.679 we saw the really the citizen was very sympathetic. So in this instance, 151 00:11:16.720 --> 00:11:20.879 with mister Raheemi, his background and the allegations in the record, he 152 00:11:20.000 --> 00:11:24.360 obviously was nowhere near any of those other individuals. So I think that again 153 00:11:24.879 --> 00:11:28.399 the idea being this was a very good case to really test what's known as 154 00:11:28.440 --> 00:11:33.320 the Brewin methodology of interpreting this Second Amendment, which is the text first, 155 00:11:33.320 --> 00:11:35.919 that historical analog loss. Second. I think the idea on the part of 156 00:11:35.960 --> 00:11:43.480 the Department of Justice was that to make sure that individuals like mister Raheemi cannot 157 00:11:43.480 --> 00:11:48.080 go free, the court might bend over backwards and loosen or water down the 158 00:11:48.200 --> 00:11:54.320 interpretive methodology of Heller and Brewin of texts first and historical analog second that methodology. 159 00:11:54.679 --> 00:11:58.120 But I don't think it's going to work out that way, because it 160 00:11:58.240 --> 00:12:03.799 seemed pretty clear that justices thought that it was a very straightforward case that if 161 00:12:03.799 --> 00:12:07.559 you are a danger to society, you can be disarmed. That there was 162 00:12:07.600 --> 00:12:11.559 a lot of examples of this going all the way back to the time of 163 00:12:11.600 --> 00:12:15.960 the Founding, So it doesn't appear to be a particularly controversial issue here on 164 00:12:16.000 --> 00:12:20.120 a related note, it seems to me that the US Supreme Court is not 165 00:12:20.159 --> 00:12:22.600 going to get into some of the natty little questions that can come up in 166 00:12:22.639 --> 00:12:26.960 these cases, because it sounded as if they wanted a narrow ruling here they 167 00:12:28.000 --> 00:12:31.120 would simply say that on its face, eighteen USC. Nine to twenty two 168 00:12:31.320 --> 00:12:35.559 G eight is constitutional under the Second Amendment. But I think they're going to 169 00:12:35.559 --> 00:12:39.559 write something in there that says, hey, but nevertheless, there's a lot 170 00:12:39.600 --> 00:12:45.360 of defenses that could be raised in future. In the future criminal case is 171 00:12:45.360 --> 00:12:48.679 involved in this commerce clause arguments that says that they know Congress lacks the authority 172 00:12:48.840 --> 00:12:54.240 to enact a kind of local domestic law enforcement statutes. You can see due 173 00:12:54.240 --> 00:12:58.399 process arguments. In fact, I should note that several times due process came 174 00:12:58.480 --> 00:13:03.600 up. What process was afforded to mister Rahimi in the context of the procurement 175 00:13:03.720 --> 00:13:09.320 of the state domestic violence restraining order that arose out of the state of Texas. 176 00:13:09.720 --> 00:13:11.879 And at the end of the day, I think Justice Barrett really hit 177 00:13:11.879 --> 00:13:15.799 the nail on the head where she's basically saying, look, then, are 178 00:13:15.840 --> 00:13:22.000 you do process down below? Your client consented to the entry of this order. 179 00:13:22.480 --> 00:13:24.919 The order specifically says he's not allowed to have a gun, and he 180 00:13:24.080 --> 00:13:28.360 signed off and swore to it with a notary, and there is a sworn 181 00:13:28.399 --> 00:13:33.200 appetavit that he didn't challenge or disagree with. So it seems to me the 182 00:13:33.279 --> 00:13:37.200 due process as a legitimate issue, and I think the Court acknowledges it is 183 00:13:37.240 --> 00:13:41.440 a legitimate issue, but it was not really preserved in this case. I 184 00:13:41.480 --> 00:13:45.000 think they're going to say that although the statute is going to be upheld under 185 00:13:45.000 --> 00:13:48.480 the Second Amendment, there's a whole lot of as applied challenges that can be 186 00:13:48.600 --> 00:13:54.919 brought against the government on behalf of American citizens in various ways. Now, 187 00:13:54.919 --> 00:13:58.080 from the perspective of the expectations of the Second Amendment community, I think there 188 00:13:58.200 --> 00:14:03.039 again was a lot lot of concern that the Supreme Court would use this case 189 00:14:03.080 --> 00:14:07.440 to water down or possibly even reject the brew and methodology. But it's pretty 190 00:14:07.440 --> 00:14:11.639 clear that's not going to happen. And I think that one of the best 191 00:14:11.919 --> 00:14:20.519 tells about this is a comment made by Justice Barrett about the Brian Range versus 192 00:14:20.679 --> 00:14:24.759 Garland case which came up today. Now, the reason why I bring up 193 00:14:24.759 --> 00:14:31.559 the Brian Range versus Garland case is because it is the case that the Third 194 00:14:31.600 --> 00:14:37.399 Circuit Court of Appeals en Bank issued a decision that says that Brian Range, 195 00:14:37.679 --> 00:14:43.000 who had been prohibited from possessing firearms under a different provision of eighteen USC. 196 00:14:43.120 --> 00:14:46.960 Nine to twenty two G. Keep in mind that Gun Control Statute eighteen USC. 197 00:14:48.039 --> 00:14:50.720 Nine to twenty two G is the list of prohibited people. It includes 198 00:14:50.759 --> 00:14:56.919 people like those subjects of domestic violence restraining orders. It also involves felons, 199 00:14:56.320 --> 00:15:01.440 that's nine twenty two G one, those that are been dishonably discharged from the 200 00:15:01.480 --> 00:15:05.360 military, those that have been involuntarily committed to a mental health institution, and 201 00:15:05.399 --> 00:15:07.360 so on. So that's what nine to twenty two G is. So what's 202 00:15:07.440 --> 00:15:13.159 interesting is this. I think this is quite telling. Justice Barrett made a 203 00:15:13.240 --> 00:15:16.440 reference to the Range case. Now, the Range case, as we sit 204 00:15:16.480 --> 00:15:22.240 here, is up on cert It's up on a cert petition. The Third 205 00:15:22.320 --> 00:15:28.840 Circuit entered in order that said that Brian Range, a non violent felon who 206 00:15:28.240 --> 00:15:33.799 was convicted something like twenty to twenty five years ago of failing to disclose something 207 00:15:33.879 --> 00:15:39.919 like five hundred dollars in income on an application to the State of Pennsylvania's like 208 00:15:39.000 --> 00:15:43.600 welfare program, to collect you know, food stamps or some sort of welfare 209 00:15:43.120 --> 00:15:46.519 and that he failed to disclose that income. That was, you know, 210 00:15:46.559 --> 00:15:50.679 he pled guilty to fraud by not disclosing that and as a consequence, because 211 00:15:50.720 --> 00:15:56.919 of the penalties that were potentially applicable under that statute to mister Range, he 212 00:15:56.080 --> 00:16:02.360 qualified as a felon as that term is defined by eighteen Usc. Nine twenty 213 00:16:02.399 --> 00:16:06.480 two g one, So he lost his gun rights. He brought a lawsuit 214 00:16:06.720 --> 00:16:10.759 under the Second Amendment, applying bruin of course, saying that he's entitled to 215 00:16:10.840 --> 00:16:15.919 his right to keep in their arms because there's no historical analogue law at the 216 00:16:15.919 --> 00:16:21.080 time of the founding that says that nonviolent felons or anyone that's non violent could 217 00:16:21.120 --> 00:16:25.879 be disarmed permanently. And the Third Circuit agreed with mister Range and says, 218 00:16:25.919 --> 00:16:30.399 indeed, in with respect to mister Range himself, because there's no evidence of 219 00:16:30.480 --> 00:16:36.279 dangerousness or physical dangerousness or violence or anything along those lines, we the Third 220 00:16:36.279 --> 00:16:40.320 Circuit Court of Appeals en banc, agree that mister Range is entitled to have 221 00:16:40.320 --> 00:16:44.600 his Second Amendment rights and eighteen Usc. Nine to twenty two g one is 222 00:16:44.919 --> 00:16:48.120 unconstitutional as applied to mister Range. Now. The reason why it's very important 223 00:16:48.159 --> 00:16:55.320 to understand this Range case in conjunction with the Raheemi case is that both of 224 00:16:55.360 --> 00:17:00.679 these cases were available for the Department of Justice to seek search this spring, 225 00:17:02.200 --> 00:17:07.680 and just the Department of Justice decided to push the Reheemi case first, and 226 00:17:07.720 --> 00:17:11.200 they waited until just about, I don't know, a month ago to seek 227 00:17:11.400 --> 00:17:18.079 cerch in the Range case, even though many commentators included myself, pointed out 228 00:17:18.400 --> 00:17:22.799 that the Range credit case was much more typical situation and is the case that 229 00:17:22.799 --> 00:17:25.720 the Supreme Court should take. It is the case that the Department of Justice 230 00:17:26.039 --> 00:17:29.400 should push. And the reason why that's the case is if you look at 231 00:17:29.400 --> 00:17:33.920 the number of prosecutions and convictions every year under nine to twenty two G one 232 00:17:34.000 --> 00:17:38.240 dealing with felons in possession, it is literally thousands and thousands of people every 233 00:17:38.279 --> 00:17:42.559 year get caught up in nine twenty two G one. In contrast, the 234 00:17:42.640 --> 00:17:48.640 Reheemi case speaks to nine twenty two G eight and there's only something on the 235 00:17:48.759 --> 00:17:52.319 order of magnitude of fifteen to thirty. That's one five to thirty, fifteen 236 00:17:52.359 --> 00:17:56.240 to thirty convictions every year under nine twenty two G eight, so it's rarely 237 00:17:56.400 --> 00:18:00.519 used. And I mentioned this because it is pretty clear from Justice Barrett bringing 238 00:18:00.559 --> 00:18:04.640 up the Range case even though cert has not been granted, and the Range 239 00:18:04.640 --> 00:18:07.799 case, I should note, is coming up for a conference before the Supreme 240 00:18:07.839 --> 00:18:11.759 Court on November seventeenth. It's coming up in just a couple of weeks, 241 00:18:11.839 --> 00:18:15.640 so I think it's quite telling that the US Supreme Court is focused on this 242 00:18:15.799 --> 00:18:22.400 Range case. And I could see a real scenario where the Supreme Court grants 243 00:18:22.400 --> 00:18:26.799 CERT in a few weeks to the Range case. And we see two second 244 00:18:26.799 --> 00:18:30.319 amendent cases in this term, dealing with nine twenty two one nine twenty two 245 00:18:30.440 --> 00:18:37.319 G one the Range case and nine to twenty two G eight the Raheemi case. 246 00:18:37.559 --> 00:18:41.200 And now one might say that that Range case could be held pending the 247 00:18:41.200 --> 00:18:45.200 outcome of Raheemi, and that would have been true up until this morning's argument. 248 00:18:45.359 --> 00:18:49.240 And this is another example where I point out that it is strangely enough 249 00:18:49.400 --> 00:18:53.599 that although going into this argument, I think the Department of Justice was optimistic 250 00:18:53.799 --> 00:18:57.559 about what the Raheemi case could do for their gun control agenda, and I 251 00:18:57.559 --> 00:19:02.720 think the second amendic community was concerned about what the Supreme Court might do with 252 00:19:02.799 --> 00:19:06.359 a reheemi case that could cut back on second amend the race. I actually 253 00:19:06.400 --> 00:19:08.799 think it may now backfire. And the reason why I say this is because 254 00:19:08.880 --> 00:19:14.960 in a colloquy between the Court and the Solicitor General trying to understand how the 255 00:19:14.960 --> 00:19:18.960 Department of Justice went from their papers being that people that are dangerous and unusual 256 00:19:21.000 --> 00:19:25.119 cannot have guns to I apologize. In the briefs they were trying to say 257 00:19:25.160 --> 00:19:30.039 people that were lawbiying, were not lawbying, or not responsible could lose their 258 00:19:30.039 --> 00:19:33.440 gun rights to dangerousness and how do this got how this goten morphed In the 259 00:19:33.440 --> 00:19:38.839 context of the or argument, the Solicter General try to explain it away by 260 00:19:38.839 --> 00:19:42.359 saying, well, what we're what we're really getting at your honors, was 261 00:19:42.640 --> 00:19:45.839 in our brief we're trying to say there's two buckets of people that can be 262 00:19:45.920 --> 00:19:51.519 disarmed by Congress or by the legislature. The first bucket are those that are 263 00:19:51.640 --> 00:19:55.759 not law abiding, and those are people that are convicted of a crime. 264 00:19:56.240 --> 00:20:00.400 And then the Solicitor General said, but there's a second bucket. That other 265 00:20:00.440 --> 00:20:03.640 bucket are those people that are not responsible. And the distinction that I think 266 00:20:03.799 --> 00:20:07.200 that the Solicitor General is trying to make here and argued it, but you'll 267 00:20:07.200 --> 00:20:11.039 see why I think it's going to backfire. In one second, she was 268 00:20:11.160 --> 00:20:15.960 arguing that the Raheemi case is an example of the latter category where if you 269 00:20:17.039 --> 00:20:22.400 are not responsible, we can take away your guns even if there's no criminal 270 00:20:22.440 --> 00:20:27.119 conviction, because keep in mind that the nine to twenty two G eight prevents 271 00:20:27.119 --> 00:20:32.720 you from having a gun even if you are not criminally convicted. The domestic 272 00:20:32.799 --> 00:20:37.799 violence restraining order is a civil process, and that civil process gives rise to 273 00:20:37.960 --> 00:20:40.680 denying your right to keep in bare arms, which, of course the Supreme 274 00:20:40.720 --> 00:20:45.079 Words repeatedly said is a fundamental right on par with other fundamental rights. So 275 00:20:45.640 --> 00:20:48.480 the interesting thing is the Department of Justice taking the position that the Raheemi case 276 00:20:48.480 --> 00:20:53.359 falls into the bucket of those people that are not responsible Americans. And then 277 00:20:53.400 --> 00:20:59.559 in contrast, she was arguing that people that have been convicted, who've been 278 00:20:59.599 --> 00:21:04.039 conducce evicted of a crime, fall into the other basket of those people who 279 00:21:04.039 --> 00:21:08.720 can be disarmed. Those are people that are not lawbinding. But the problem, 280 00:21:08.720 --> 00:21:11.240 I think from the Solicitor General's point of view, and I think Justice 281 00:21:11.279 --> 00:21:15.640 Barrett picked up on this, which is why she asked about Range, is 282 00:21:15.680 --> 00:21:22.839 by delinking responsibil people or irresponsible to people from law buying or not lawbinding people. 283 00:21:22.839 --> 00:21:26.599 By creating two buckets there, She's I think the Solicitor General has basically 284 00:21:26.640 --> 00:21:30.319 opened the door for the Supreme Court to take the Range case and the Reheemi 285 00:21:30.400 --> 00:21:33.599 case, because now the Reheemi case can be used in this term to clarify 286 00:21:33.839 --> 00:21:37.480 what it means to be not responsible, which I think is just dangerous, 287 00:21:37.680 --> 00:21:41.440 and likewise dealing with the non law binding component, which is really the Range 288 00:21:41.480 --> 00:21:44.599 case. And I think Barrett sort of signaled that there's a good chance we 289 00:21:44.640 --> 00:21:48.640 may see both of these cases this term, which again I think is ultimately 290 00:21:49.119 --> 00:21:52.960 favorable for the Second amendmagers prudence to continue to get these cases because you know, 291 00:21:53.599 --> 00:21:56.920 in many years we'll see three, four or five Fourth Amendment cases, 292 00:21:56.960 --> 00:22:00.839 will see multiple First Amendment cases. I've never seen a Supreme Court term where 293 00:22:00.839 --> 00:22:06.799 there's been multiple Second Amendment cases, and there's really no reason why that can 294 00:22:07.160 --> 00:22:10.720 not occur. Now. The other critical thing here, and I just want 295 00:22:10.720 --> 00:22:15.079 to remind all of you of the Heller slash ruined methodology. In Heller, 296 00:22:15.640 --> 00:22:22.079 the Supreme Court concluded that the District of Columbia's handgun ban was unconstitutional. Now, 297 00:22:22.079 --> 00:22:26.359 the methodology of interpreting the Second Amendment that the Heller Court did was originalism, 298 00:22:26.400 --> 00:22:30.160 and what I mean by that is they started off with the text of 299 00:22:30.240 --> 00:22:33.079 the Second Amendment. They defined all the terms of the text of the Second 300 00:22:33.079 --> 00:22:40.880 Amendment using eighteenth century lexicography, dictionaries, or other sources. And then after 301 00:22:40.920 --> 00:22:44.319 that they turned their attention and obviously they concluded that a handgun was a form 302 00:22:44.359 --> 00:22:45.680 of arm as in the right of the people to keep in their arms. 303 00:22:45.839 --> 00:22:48.279 So then what they did is they shifted the burden to the garment and said, 304 00:22:48.279 --> 00:22:53.400 okay, is there any historical tradition in American law of disarmy people of 305 00:22:53.480 --> 00:22:56.920 these commonly owned handguns? And they concluded though there wasn't, and they created 306 00:22:56.920 --> 00:23:00.200 the incommon use test. But the way the court did it and Heller was 307 00:23:00.240 --> 00:23:03.160 again they looked at the text first, and then they look to see, 308 00:23:03.200 --> 00:23:08.920 is there a historical tradition that could justify the government being able to regulate handguns 309 00:23:08.960 --> 00:23:14.480 in some way? And Heller, is there a historical tradition of banning commonly 310 00:23:14.480 --> 00:23:18.200 owned arms? And the Heller Court says no. So I mentioned that because 311 00:23:18.240 --> 00:23:21.079 this is a very important point to keep in mind. It's often lost in 312 00:23:21.160 --> 00:23:26.599 commentary, which is when people talk about the Bruin methodology, which of course 313 00:23:26.680 --> 00:23:33.200 arises from the twenty twenty two decision of Nicsurpa versus Bruin. The Supreme Court's 314 00:23:33.240 --> 00:23:37.480 methodology've interpreted the second is identical to Heller's. It's it's the same methodology. 315 00:23:37.880 --> 00:23:42.119 You start with the text. If the text is implicated by the monerety gun 316 00:23:42.160 --> 00:23:45.680 control law, or by the conduct that the American citizen wants to engage in 317 00:23:45.680 --> 00:23:52.599 with guns, then the text is satisfied. The second Amendment is presumptively viewed 318 00:23:52.920 --> 00:23:57.400 as binding, and the law, the gun control law is presumptively is presumptively 319 00:23:57.480 --> 00:24:03.480 viewed as unconstitutional, and that shifts the burden. It shifts the burden to 320 00:24:03.519 --> 00:24:06.720 the government. No different than a criminal case, where if you're indicted or 321 00:24:06.839 --> 00:24:10.960 charged with a crime, you are presumed innocent. The burn shifts to the 322 00:24:10.960 --> 00:24:14.359 government to show that you are guilty of the crime. Works the same way 323 00:24:14.400 --> 00:24:18.039 metaphorically here. Once the text implicates a modern day gun control law, the 324 00:24:18.039 --> 00:24:22.279 burn shifts to the government, and the government has to meet its burden. 325 00:24:22.480 --> 00:24:26.039 So this is the critical part of Raheemi cases I see it. The question 326 00:24:26.160 --> 00:24:30.240 is what is the government's burden? Now we know what the government's burden is 327 00:24:30.319 --> 00:24:33.559 is a concept. Under the Bruin case, it says the government's burden is 328 00:24:33.599 --> 00:24:38.720 to come forth with proof of a long standing, well established historical tradition going 329 00:24:38.720 --> 00:24:45.440 back to the founding of a type of gun control law that is analogous to 330 00:24:45.400 --> 00:24:49.000 the modern gun control law they're trying to uphold. So they basically it's a 331 00:24:49.039 --> 00:24:53.200 comparison of the gun control law in case of Rahemi eighteen Usc. Nine to 332 00:24:53.200 --> 00:24:56.119 twenty two G eight. You can't you lose your gun rights if there's a 333 00:24:56.119 --> 00:25:02.200 domestic bonds restrain order. You compare that modern day gun control lag with some 334 00:25:02.480 --> 00:25:07.319 historical laws going all the way back. Now, obviously, the more narrow 335 00:25:07.200 --> 00:25:11.880 the analog that you're looking for, the harder it is for the government to 336 00:25:11.920 --> 00:25:17.400 satisfy it's burdened once the burden shifts to it. The broader, more generalized 337 00:25:17.480 --> 00:25:21.200 analog that government is allowed to use to justify its moderny gun control law, 338 00:25:21.359 --> 00:25:26.920 the easier it is for the government to win. So a major part of 339 00:25:26.960 --> 00:25:30.720 what was happening at oral argument, and you could see this with the colloquy 340 00:25:30.119 --> 00:25:36.279 going back and forth between Justice Kagan, Justice Sodom R. And Justice brown 341 00:25:36.359 --> 00:25:41.200 Jackson, with the Solicitor General and with Matthew Right, the attorney represented mister 342 00:25:41.519 --> 00:25:45.400 Raheemi out of the Federal Public Defender's Office. You saw a lot of colloquy 343 00:25:45.720 --> 00:25:51.559 on that side of the bench laser focused on what kind of historical analog or 344 00:25:51.599 --> 00:25:56.240 what kind of history can be used to justify a modern day gun control law. 345 00:25:56.519 --> 00:25:59.400 Now, the first thing, and I think this is quite telling, 346 00:25:59.880 --> 00:26:03.920 is is that I think it was Justice Brown Jackson was concerned and I think 347 00:26:04.039 --> 00:26:11.079 Justice Kagan expressed concern as well whether or not you actually need a regulation on 348 00:26:11.119 --> 00:26:14.359 the books at the time of the founding or at the relevant time period. 349 00:26:14.759 --> 00:26:17.119 There can be some debate about the relevant time period. At the end of 350 00:26:17.119 --> 00:26:18.240 the thing, I think it's correctly the founding, But we don't need to 351 00:26:18.279 --> 00:26:21.960 get into that specifically, because the truth is, when you're dealing with a 352 00:26:22.039 --> 00:26:25.559 federal statute, which is what we're dealing with in Raheemi eighteen USC. Nine 353 00:26:25.559 --> 00:26:27.880 to twenty two G eight was passed by Congress, you don't need to get 354 00:26:27.880 --> 00:26:33.440 into the historical debate of whether or not post fourteenth Amendment history can potentially be 355 00:26:33.519 --> 00:26:37.920 relevant to the meaning of the Second Amendment, because you're dealing with a federal 356 00:26:37.960 --> 00:26:42.039 statute, and the Second Amendment when it was adopted seventeen ninety one, applied 357 00:26:42.079 --> 00:26:45.680 to the federal government, so you don't need to worry about those fifth fourteenth 358 00:26:45.680 --> 00:26:49.880 Amendment late nineteenth century historical analog debates. In this context, what's quite interesting 359 00:26:51.279 --> 00:26:56.119 is that Justice Kagan and Justice Brown Jackson really seemed to be interested in whether 360 00:26:56.200 --> 00:27:00.119 or not regulations were needed at all. In fact, this was clearly the 361 00:27:00.119 --> 00:27:06.200 position taken by this Solicitor General where she was arguing, especially in this particular 362 00:27:06.240 --> 00:27:11.759 case here where she said that domestic violence maybe wasn't really considered as a real 363 00:27:11.799 --> 00:27:12.759 problem at the time of the Founding, which by the way, is not 364 00:27:12.799 --> 00:27:18.079 true. If you look at some of the meekest briefs submitted in the Raheemi 365 00:27:18.119 --> 00:27:22.279 case, you'll see that domestic violence was absolutely frowned upon. There was all 366 00:27:22.319 --> 00:27:25.920 sorts of criminal and civil remedies as well as religious remedies by the way, 367 00:27:26.079 --> 00:27:29.000 to deal with domestic vince at the time of the Founding. So to suggest 368 00:27:29.000 --> 00:27:33.319 that domestic viance was not considered a social problem that the founding is simply not 369 00:27:33.440 --> 00:27:37.319 true. Nevertheless, there was a lot of back and forth about whether or 370 00:27:37.400 --> 00:27:41.039 not regulations are actually needed, and one of the concerns I think Justice Brown 371 00:27:41.119 --> 00:27:45.680 Jackson really expressed was, well, wait a minute, this seems odd. 372 00:27:45.960 --> 00:27:52.039 If there are no regulations, then can't we look to other historical evidence? 373 00:27:52.079 --> 00:27:53.759 And I don't know what that other historical evidence would be. Presumably, you 374 00:27:53.759 --> 00:28:00.839 know, affidavits or stories by historians explain what they think the history is. 375 00:28:00.079 --> 00:28:04.079 But the Supreme Court in brun was very clear about the type of history specifically, 376 00:28:04.079 --> 00:28:07.200 it has to be regulations. And I just want to because I think 377 00:28:07.200 --> 00:28:11.480 this is important because this is where the fight was taking place. Is the 378 00:28:11.519 --> 00:28:17.279 meaning of this language here from Bruin, which again is really just an embellishment 379 00:28:17.359 --> 00:28:21.440 or a reiteration of the Heller test and laid out more specifically in Bruin because 380 00:28:21.720 --> 00:28:25.599 a lot of the lower courts were not applying this test correctly between two thousand 381 00:28:25.599 --> 00:28:27.880 and eight when Heller was decided in twenty twenty two when Bruin was decided, 382 00:28:27.960 --> 00:28:32.440 And this is what Bruin said, and you'll see why this argument became so 383 00:28:32.519 --> 00:28:37.799 important. Specifically, they write, in keeping with heller We the Supreme Court 384 00:28:37.839 --> 00:28:42.200 holds that when the Second Amendments playing text covers an individual's conduct, the Constitution 385 00:28:42.319 --> 00:28:48.200 presumptively protects the conduct. That's the presumption right shifts to the government to justify 386 00:28:48.279 --> 00:28:52.599 its regulation. The government, in this case, Congress, the government may 387 00:28:52.640 --> 00:28:57.160 not simply posit that the regulation promotes an important interest. Rather, the government 388 00:28:57.240 --> 00:29:02.200 must demonstrate, and this is the key, that the regulation is consistent with 389 00:29:02.279 --> 00:29:08.000 this nation's historical tradition of firearm regulation. That's what Brewin says. It specifically 390 00:29:08.039 --> 00:29:15.359 says nation's historical tradition of firearms regulation. And one of the big issues going 391 00:29:15.359 --> 00:29:18.680 on today was that Justice Brown Jackson justice side of my own Justice Kagan, 392 00:29:18.960 --> 00:29:26.240 we're really trying to say that that framework or that discussion of regulation in Bruin 393 00:29:26.400 --> 00:29:33.720 is not really fair that they could look at high level generalized views of history 394 00:29:33.759 --> 00:29:36.759 at the time the founding, or any whatever the relevant time period is to 395 00:29:36.880 --> 00:29:42.240 try to glean principles from American history to then in turn justify modern day gun 396 00:29:42.279 --> 00:29:47.480 control laws. Now, again, there's no specific issues along that line in 397 00:29:47.519 --> 00:29:51.799 this case, but it's pretty clear what the Department of Justice was trying to 398 00:29:51.839 --> 00:29:56.880 do is to try to influence the way the Rahemi decision will ultimately be written, 399 00:29:57.480 --> 00:30:02.559 to try to say that yes and d history outside of the context of 400 00:30:02.680 --> 00:30:07.559 actual laws such as state constitutions, such as the federal constitutions, such as 401 00:30:07.640 --> 00:30:11.119 common law, such as statutes, that other things other than those things, 402 00:30:11.400 --> 00:30:15.359 those historical items can be considered. And because of course, if you broaden 403 00:30:15.440 --> 00:30:19.640 the scope of what can be considered to justify modernity gun control laws, you'd 404 00:30:19.640 --> 00:30:26.680 increase dramatically the odds of modern day gun control laws being upheld. So let 405 00:30:26.759 --> 00:30:27.759 me carry on. So again, that was a big issue, but I 406 00:30:27.759 --> 00:30:32.519 don't think it's going to succeed because it seemed to be based on that comment 407 00:30:32.559 --> 00:30:36.079 from Justice Gorsuch that there were plenty of laws at the time of the founding 408 00:30:36.119 --> 00:30:40.079 that said that if you were violent you could be disarmed. They not seem 409 00:30:40.079 --> 00:30:42.559 to be allowed of controversy on that proposition. So I think we are going 410 00:30:42.640 --> 00:30:48.079 to see a decision in Raheemi that says that if you are violent physically violent, 411 00:30:48.440 --> 00:30:49.880 you can be disarmed at least during the period of time that you are 412 00:30:49.880 --> 00:30:56.160 deemed violent, and that nine twenty two is facially constitutional. Now, just 413 00:30:56.160 --> 00:31:02.599 a couple other items I do want to flag. Some of the people were 414 00:31:02.640 --> 00:31:07.200 wondering whether or not the decision as to whether not mister Rahemi himself is part 415 00:31:07.200 --> 00:31:11.599 of the people would occur at the textual level, because again, as I 416 00:31:11.640 --> 00:31:15.039 pointed out in Bruin and Heller, you start with to text the Constitution, 417 00:31:15.480 --> 00:31:19.000 then once it's satisfied, you shift to the historical tradition of government regulation of 418 00:31:19.039 --> 00:31:23.559 firearms in this country. Now, the Department of Justice and their briefs was 419 00:31:23.599 --> 00:31:29.960 trying to argue that mister Raheemi, who undeniably is an American citizen, that 420 00:31:30.079 --> 00:31:36.319 mister Rahemi actually was not part of the people as in the defense, as 421 00:31:36.359 --> 00:31:38.920 in the word or term as it's used in the second m ie the right 422 00:31:38.960 --> 00:31:42.400 of the people to keep in bar arm shall not be infringed. The Department 423 00:31:42.400 --> 00:31:45.960 of Justice in their brief and really laser focused to say that mister Raheemi, 424 00:31:45.960 --> 00:31:51.799 by virtue of his conduct, would be pulled out textually from the word the 425 00:31:51.920 --> 00:31:56.039 people. But that really did not get a lot of play because I think 426 00:31:56.039 --> 00:31:59.720 it's pretty straightforward. If you look at the Heller case and Bruin, they 427 00:31:59.759 --> 00:32:05.559 define the people as basically all American citizens and then some anyone that's connected in 428 00:32:05.599 --> 00:32:08.200 any real continuous way with the United States, which obviously includes American citizens, 429 00:32:08.279 --> 00:32:13.279 are part of the people textually. And of course keep in mind that the 430 00:32:13.359 --> 00:32:15.880 people is not just found in the Second Amendment. That phrase is also found 431 00:32:15.920 --> 00:32:20.039 in the First Amendment and the Fourth Amendment. And I don't think there's going 432 00:32:20.119 --> 00:32:23.200 to be any suggestion that if somebody who is violent or danger or responsible and 433 00:32:23.279 --> 00:32:27.960 gets pulled out of the people textually from the Second Amendment, they would also 434 00:32:28.119 --> 00:32:30.839 theoretically be pulled out of the text of the First Amendment and the Fourth Amendment, 435 00:32:30.920 --> 00:32:34.319 and that would be quite shocking to a lot of people that have already 436 00:32:34.319 --> 00:32:37.200 been convicted of crimes no longer have Fourth Amendment rights to a search, to 437 00:32:37.240 --> 00:32:43.279 assert the exclusionary rule, or arguments against unreasonable searches and seizures. So I 438 00:32:43.319 --> 00:32:45.839 think that the argument DJ made and spend a lot of time on in the 439 00:32:45.839 --> 00:32:49.000 brief is not going to go anywhere in terms of mister Rhemi is not part 440 00:32:49.000 --> 00:32:52.359 of the people. Again, I think the issue will turn on whether or 441 00:32:52.400 --> 00:32:57.480 not historically mister Raheemi can be disarmed as a matter of the tradition in America 442 00:32:57.519 --> 00:33:02.319 of disarming violent people. The other thing, excuse me, the only other 443 00:33:02.359 --> 00:33:06.319 point I will make here. There were two very powerful arguments that were made 444 00:33:06.359 --> 00:33:09.680 in the Amikus briefs that I actually think will have real play down the road, 445 00:33:09.720 --> 00:33:12.920 but not going to have play here, and it's pretty apparent it's not 446 00:33:12.920 --> 00:33:16.960 going. One is due process arguments. It's clear that the Supreme Court is 447 00:33:16.960 --> 00:33:21.799 interested in what kind of level of due process might be required before you can 448 00:33:21.799 --> 00:33:24.519 be deprived of the fundamental right to keep in their arms. Obviously we know 449 00:33:24.559 --> 00:33:29.880 in the context of those people that are mentally ill and are involuntarily committed, 450 00:33:30.039 --> 00:33:34.640 there's a whole host of protections associated with that process under what are often known 451 00:33:34.640 --> 00:33:39.559 as the Baker Acts or civil commitment statutes. Those require availability of attorneys and 452 00:33:39.680 --> 00:33:43.200 experts, and that they can't afford it, you know, they're provided with 453 00:33:43.240 --> 00:33:46.200 it by the state, a high standard of clear and convincing evidence, an 454 00:33:46.240 --> 00:33:51.039 actual trial, the ability to confront witnesses, and so on and so on. 455 00:33:51.279 --> 00:33:53.119 So I think the due process issue is going to play a big role 456 00:33:53.480 --> 00:33:58.160 in future eighteen USC. Nine to twenty two and G eight cases. But 457 00:33:58.359 --> 00:34:01.599 basically everyone agreed that this had been waived and wasn't really part of the question 458 00:34:01.680 --> 00:34:06.079 presented. It would not be dealt with in any robust way in the Reheemi 459 00:34:06.160 --> 00:34:09.239 case. But look for due process issues associated with First Amendment, I should 460 00:34:09.239 --> 00:34:13.719 say Second Amendment challenges down the road. The other thing that I think is 461 00:34:13.840 --> 00:34:17.400 very powerful is there was a very powerful commerce clause argument using a whole host 462 00:34:17.440 --> 00:34:22.519 of precedents, saying that there is nothing in Article one of the US Constitution 463 00:34:22.800 --> 00:34:28.239 that would allow Congress to step in and do what they're doing visa VI these 464 00:34:28.239 --> 00:34:31.400 local law enforcement activities, which of course nine to twenty two G eight deals 465 00:34:31.400 --> 00:34:37.519 with local domestic violence restraining orders done at the state level or the local level. 466 00:34:37.679 --> 00:34:39.599 And I think there is a pretty good argument based on some commerce clause 467 00:34:39.679 --> 00:34:45.679 arguments that have prevailed in the past, including for example, the case involving 468 00:34:45.920 --> 00:34:47.920 I think the Violence Against Women's Act. So I do think you we're going 469 00:34:47.960 --> 00:34:52.960 to start to see some commerce clause arguments against some of these federal statutes. 470 00:34:52.199 --> 00:34:55.760 Obviously, that argument would not apply to gun control law and acted at the 471 00:34:57.360 --> 00:35:00.159 state level, because you don't have an Article one prom inter say commerce from 472 00:35:00.280 --> 00:35:05.960 in interstate commerce argument but I do think we should keep our eyes on that 473 00:35:06.039 --> 00:35:08.639 coming down the pipe. And with that said, that is my quick summary. 474 00:35:10.639 --> 00:35:15.840 Thank you for listening to this episode of Scotus Cast. Scotus Cast is 475 00:35:15.880 --> 00:35:21.719 a project of the Federalist Society, a not for profit educational organization of conservative 476 00:35:21.800 --> 00:35:27.000 and libertarian law students, law professors, and lawyers, founded upon the principles 477 00:35:27.000 --> 00:35:30.480 that the state exists to preserve freedom, that the separation of governmental powers is 478 00:35:30.519 --> 00:35:36.280 central to our constitution, and that it is emphatically the province and duty of 479 00:35:36.320 --> 00:35:39.199 the judiciary to say what the law is, not what it should be. 480 00:35:40.039 --> 00:35:45.039 Don't forget to subscribe to our podcast series, including scotus Cast and Practice Group 481 00:35:45.119 --> 00:35:51.119 podcasts, on iTunes or Google Play. 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