AS258: 2nd Amendment Masterclass, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:29 Thomas: Hello, and welcome to Atheistically Speaking. This is episode 258, and I'm your host, Thomas Smith. All right, it's the Second Amendment lesson you've been waiting for. The patrons who have already heard this have reacted universally well to it, and I'm glad because I found it so enjoyable as well. Andrew is great, and I learned, and the patrons have already learned, so much about the Second Amendment that I had no idea about, and it's just fascinating. I think it really really prepared me and will prepare you for further discussions and thoughts on the Second Amendment. So here we go. Here's part one. It's over an hour, but that's what you get with Andrew Torrez. But now let's get to the topic that we finally are going to get to. We've been putting this off for quite some time because of other things that come up. But the Second Amendment, boy, how do we even start in with it? What do you think is the best thing? Would you like to comment on Eli and Travis at all? Or would you like to start with your own setup? What do you think?

0:01:39 Andrew: Sure. I mean, let me comment a little bit politically and sort of disclose where I'm coming from. And then we can talk about the legal background. I thought the Eli and Travis discussion was really fascinating. I could listen to Eli read the phone book. So that's really fun. There You go. Let's get that on Patreon. And I would say from a legal perspective that Eli's position, and I mean, I think he would except that he is sort of deliberately representing and providing a strong voice for the most extreme position that you can advocate, right? An Australia-style on all guns in this country. And it's clear to me that under any reading of the Second Amendment of the Constitution, that that would require a constitutional amendment. And again, that that doesn't invalidate Eli's policy arguments in any way. I mean, what I would, the sort of tongue-in-cheek

0:01:44 Thomas: Okay.

0:01:59 Thomas: God awful phone book coming up next podcast.

0:02:46 Andrew: Analog that I would say is that Eli is the equivalent of the Christian pro-life movement that wants a constitutional amendment defining a fetus as a person, right? I totally disagree with that, but at least they recognize, right, I mean there's a tiny fringe that would say, say, no, no. It's clear in the 4th and 5th and 14th Amendments that a fetus is a person and the sort of J. Seculo types who bring frivolous lawsuits and claim that it's already there. But then there's the group that's a little bit to the left of that, which would say, yeah, no we recognize that fetuses are not persons under current US law, but we want to amend the constitution to Make them such, um, and yeah.

0:02:59 Thomas: Wow. Right. Okay. Just, and just to admit, sorry, I like to try to summarize as we go to make sure that, you know, people as dumb as me are keeping up with what you're saying. But so what you're saying is, yeah, even if, even IF you are anti-gun or let's say for the comparison you made anti-abortion, there's a, there's a range of positions about how the current law or, or the, you know, the constitution, the amendments, like how, how that, what the implications are of that. So you could be anti-gun and say, no, as the Second Amendment stands, it only, you know, should allow guns in the military or something like that. Or you could say, well, no. I guess the Second Amendment does allow guns everywhere, but we need a new amendment or we need to change that or repeal it in order to move forward. Is that basically what you're

0:03:40 Andrew: Yeah. All. Right. You can knock off the self-deprecation.

0:04:27 Thomas: Saying?

0:04:29 Andrew: That's the dichotomy that I've set up. And I think I would go further than that, and I would say if you were of the view that the Second Amendment only protects ownership of firearms in the military, I don't think that's a tenable view of the second event, um, so. I

0:04:30 Thomas: Okay.

0:04:45 Thomas: Let, just in case anyone's unclear, the wording of the Second Amendment, okay.

0:04:46 Andrew: Yeah yeah Okay, so the wording of the Second Amendment, this is a good, this is actually really good jumping off point. So I'll save my political opinions for where they're appropriate. So the Second Amendment says, "A well regulated militia being necessary to the security of a free state," comma, "the right of the people to keep and bear arms shall not be infringed." And if you look at the text of the Second Amendment and compare it to other amendments in the Bill of Rights, you will immediately see two distinct features about its drafting. The first is that introductory explanatory clause that says, here's why we're passing this amendment. And I think it was George Carlin who had the joke about the NRA that said they're the only organization that has half an amendment on the exterior of their building, thing. But it's true,

0:04:58 Thomas: That's pretty

0:05:39 Andrew: Right?

0:05:39 Thomas: Good.

0:05:39 Andrew: Like there is that introductory clause and you have to answer what does that mean? And then following the introductory clause is another, this is, most people kind of know that one and deal with the malicious stuff. But the second aspect is following the comma, it says the right of the people to keep and bear arms shall not be infringed. And that's another atypical phrasing. Now, there are other references to public, right? There's the right of the people to assemble peaceably in the First Amendment. So it's not unprecedented in the Bill of Rights, unlike the introductory clause. But it's still a distinct wording that's different from the way, you know, free speech is protected, right, which says Congress shall make no law abridging the freedom of speech, right?

0:05:40 Thomas: Hmm. Hmm.

0:06:33 Thomas: Just

0:06:33 Andrew: So you have to then figure out, once you've figured out what you're going to do with the introductory clause, with the militia bit, you then have to figure out what does the right of the people bit mean, right. And so in all of that, I guess maybe we should take a step back and say, whenever we want to figure out what a constitutional provision means, I think you go through like three or four different steps. The first is you might say, what is its plain meaning? What does it seem to be saying under the ordinary understanding of the words that it uses? And the only amendment that works by this method, I think, is the Third Amendment, right, which prohibits quartering soldiers.

0:07:14 Thomas: Like Thou shalt have no other god. Oh, never mind, sorry. Oh. Yeah That's an easy amendment, that one, that one. Is pretty simple.

0:07:17 Andrew: Right. Well, yeah, that, yeah. The Third Amendment is really easy. It says the government shall not quarter soldiers in your home. And that means the government will not knock on your door and have tell you, hey, you've got to put these soldiers up for the night. It's in response to a very specific problem during, you know, pre-revolutionary war times. And there are, other than a law article written by my former torts professor, Mort Horwitz, who wanted to write the first law review article on the Third Amendment. No, I mean, he's very proud of this.

0:07:55 Thomas: Lawyer Humor, humor.

0:07:57 Andrew: And this is what passes for humor at Harvard Law School. I'm sorry. Sorry. But other than Mort's article, I don't believe there's any, right? Because there's nothing to analyze because, yeah, it means what it is. Okay. So assuming that that doesn't help you, then kind of the next step is you would look at the legislative history, the drafting history, and you might compare, you know, were there different versions? Was this word added, Because usually laws, yeah, and in fact, we have this preserved because the founding fathers conducted their discussions and debates through papers, right? So, for example, you have the last, I think it's the last of the Federalist Papers, I don't know which number it is, it would probably be in the 80s, written by our friend Alexander Hamilton, arguing that a Bill of Rights is totally unnecessary. And he says, why should we have something that says Congress shall not regulate the press when we've never authorized Congress to regulate the Press in the first place? And so it's kind of preserved for history that Alexander Hamilton, for one example, thought a Bill of Rights was not necessary.

0:08:10 Thomas: It's easy. Yeah. Oh, I didn't even think of that. So there's different versions of the amendments. There's like for draft. I don't even know that.

0:09:25 Andrew: Obviously, that view did not prevail. But we also have, and this is kind of a spoiler of what's coming forward, there were multiple versions of the Second Amendment that were proposed that differ from what ultimately passed. Um, so you can look to that.

0:09:28 Thomas: Right.

0:09:42 Thomas: That's so interesting. Sorry. Let me ask you a few questions about this. So, okay. Is this a very specific thing that is only applicable in the Bill of Rights at this time? Or does this carry forward today? Like when people people are trying to interpret laws. Do they look at drafts of them or are they, I'm just curious about this. Like it, was that intentional or did it just, you know, people realize like, oh wait, there's these other versions we can look at.

0:09:44 Andrew: Yeah, sure. Yeah. No, it's absolutely something that every court will do when you're talking about the meaning of a law, a constitutional provision, a state provision. Um, and well,

0:10:12 Thomas: Hmm. That's so interesting. What if someone just screwed with you and like the, oh, the draft version was like guns shall not be allowed by anyone for at any time. Oh, wait, let's revise that.

0:10:29 Andrew: You know, it, I mean, you say that, but in many cases, right, we have been saved because, um, because legislators who want to do unconstitutional things can't help but brag about it. Often brag in the text of proposed legislation when they want to do something unconstitutional. And the reason Is because they're responding to a particularly narrow constituency. So this is a callback to the religious freedom episode that, that you and I did. But when the city of Hialeah, Florida wanted to ban, uh, the Santeria practice of chicken sacrifice. They could have passed a law that just said, one, it shall be a misdemeanor punishable by a $500 fine and one day in jail if anyone slaughters a chicken in public within the city limits. But they didn't say that because if you just pass that, then your constituents have no idea what the heck that means. Instead, they larded up with whereas clauses. They say, "Whereas the practice of Santeria is deeply offensive to the residents of Hialeah, and whereas these people run around and slaughter chickens and scare our women and intimidate our children,"

0:10:54 Thomas: You explain. Oh geez. Oh

0:11:50 Andrew: Therefore be it resolved by the senate here that we will ban this invasive practice. So they kind of larded up the history with these statements of purpose that help you track it down. The other way in which legislative history is really, really useful on laws is sometimes a word will be deleted from a series of clauses, and that will help you know whether the clause intended to protect that specific behavior or not, right? So for example, If a law says you may not ride a bicycle, use a skateboard or powered scooter on the streets of New York City, and then they delete the phrase or use a powered scooter, then a later lawsuit, if somebody gets a ticket for using a powered scooter and somebody says, well, come on, this looks like a motorized vehicle, you could go back to the law and say, no, they considered whether they were going to include this in the list and they deleted it. So we should presumptively assume that that was

0:13:07 Thomas: Okay. So there you can, you can make the decision that, oh, it's not that they just omitted this. Like, oh, whoops, we forgot to include this. You can say, oh they, they considered it. Therefore it's part of the law that these wouldn't be included.

0:13:12 Andrew: Not an attempt. Right. Yeah. And I should add, I gave a bad hypothetical there because most laws where this would be useful would have a kind of a catch-all phrase, right, so it would say, you cannot ride a bicycle, use a skateboard, or use any other, uh, you know, inappropriate vehicle, right? And so, no, and they do right, laws laws have these sorts of catch-alls, uh, because you never know, right? I mean, think about, you passed the no skateboarding bill in 2007, and then they come out with those, you know, hoverboards

0:13:29 Thomas: Oh, okay.

0:13:38 Thomas: And you're like, what the hell does that mean? Yeah.

0:13:50 Thomas: Oh those weird hoverboardy things. Things.

0:13:51 Andrew: Right, in 2010, well, now, you know, yeah.

0:13:52 Thomas: Yeah. That's certainly an inappropriate vehicle. So, right.

0:13:56 Andrew: But if you don't have a catch-all in the original law, then you know you've got to go back and amend the law every time somebody invents some goofy new, you know, mode of transportation, yeah.

0:14:06 Thomas: So this, this is really fascinating. So the, the, The revisions and all that are part of intentionally part of something we consider. So then what, let's get back to what did the second amendment revisions tell us? Is that where you were going?

0:14:08 Andrew: Yeah.

0:14:19 Andrew: So one of the things that the Second Amendment revisions tell us is that the original draft of the Second Amendment that was proposed by George Mason was an individual right, was modeled much more after the First Amendment, was an individual right to keep and bear arms, period, full stop. That was rejected. And instead, you had James Madison's version, which was modeled after Article 13 of the Virginia Declaration of Rights. And that said at the time, so Virginia had a state equivalent. And that said that a well-regulated militia composed of the body of the people trained to arms is the proper, natural, and safe defense of a free state, that standing armies in time of peace should be avoided as dangerous to liberty, and that in all cases, the military should be under strict subordination to and governed by the civil power.

0:15:14 Andrew: And it is well-established in history that Madison was basing the federal Second Amendment off of that and Virginia Declaration of Rights. And you can see, you know, some of the language through, right? The well-regulated militia, the structure, having the explanatory clauses in addition to just the rights-bearing clauses. So that's another sort of piece of evidence in the background. Another way in which we go about understanding what an amendment provision means is by using what are called canons of statutory construction. And basically, those are heuristic devices that are designed to help you understand how to parse kind of long blocks of text. And so one of the really basic principles of statutory instruction is you should not read a provision as surplusage, right? You should not have a reading that effectively strikes out the words in a provision.

0:15:29 Thomas: Yeah.

0:16:19 Andrew: And so another way in which that affects our interpretation of the Second Amendment is if the Second Amendment really means the people have the right to keep and bear arms and it shall not be infringed, that reading would essentially strike out the whole introductory clause. It would say that introductory clause means zero. Now, that's not to say we never come to that interpretation. Those sorts of interpretations are generally disfavored. Usually we think if there are words in a statute that the words were put there for a particular purpose and they have meaning. Meaning. But all of that, right, and so I've given you, you know, kind of some flavor of sort of general ways in which you might try and puzzle through what the Second Amendment means.

To me, all of that is very, very secondary to case law, particularly when it comes to technology, all of the things that I've just described, that feed into the intent of the people who drafted it, the plain meaning of the terms, and everything else, they might not be helpful in understanding how that law or that constitutional provision applies today. And here's a really good example, take the First Amendment. We're on a podcast, and in order to understand how the First Amendment applies or doesn't apply to us, we need to understand if the the law is going to treat a podcast like a phone call, or like a newspaper, or like a radio broadcast, or a TV broadcast, right? Because different levels of protection are going to extend to you and I, based on how you characterize that.

And a podcast is at least as similar to a radio video broadcast as it is to a phone call, right? So the way in which we figure that out is we look at how the courts have interpreted podcasts, how the courts have interpreted the predecessors to podcast.

0:16:35 Thomas: Hmm.

0:18:21 Andrew: You might look at bulletin board posts, right. I mean, you build this notion of case law by looking at what courts have done over time, and that's, that was part of the story that I was trying to tell in our first couple of discussions about about Scalia, and that is, you know, the the the originalist yeah, I mean, the the originalist view, well, I mean, it's why I think it's important to to develop this whole story because, well, look, his argument is, and it's it's a really good, good argument for a 30 second, a five second soundbite, right?

His argument is laws mean what the drafters intended at the time that they were signed. And if you say they mean anything else, you're, you believe in this kind of airy fairy, you know, living constitution. Uh, and, uh, it can just be whatever judges want to make up. And the worst part is particularly Supreme Court justices, but most judges are appointed rather than elected. And so you're really taking power hour away from the people. And all of that sounds pretty good, right? It's not, it's superficially persuasive. But the reality is kind of the exact opposite, right, which is to say that the living constitution,

0:18:40 Thomas: He just disregards all that. Well, in his defense, that sounds like a lot of work. So yeah.

0:19:41 Andrew: The dynamic constitution approach says, we look at what the history of how people have understood these provisions over time, and we depart from them only when it's clear that we've gone radically off course. And the reason we do that is so somebody like Scalia doesn't come along and say, aha, I believe that in 1789, our founders really thought X, Y, and Z, and therefore I'm going to completely change the way in which we interpret this constitutional provision, even though nobody has accepted that for 200 years. And so it's really the originalist position that, in my view, gives overwhelming authority to one individual judge.

0:20:27 Andrew: That's been sort of the consistent theme in these anti-Scalia podcasts. And, you know, it's particularly hilarious because nobody on the court, certainly not former Justice Scalia, is a trained historian. I mean, you have these, right, again, it is part of the argument of against loose loose interpretivism against the dynamic constitution, what I would call the standard model of judicial interpretation is to say, oh, well, look, you know, it's just whatever the judge's opinion is. And look at all these cases that look to like international law and, you know, other sources. And, you know, I think it's really just kind of a grab bag. But at least judges have some expertise in understanding and interpreting international law. I mean, as far as I know, they have no expertise in understanding and interpreting historical events. But yet, you know, Scalia's view would say, come up with an interpretation of historical events, and then apply that to your legal principle, regardless of how courts have treated it over the past 200 years.

0:20:42 Thomas: Yeah.

0:21:33 Andrew: And that kind of gets to my fundamental critique of Scalia. I've said before, I'll say it again, and that is, I think he is the most judicially activist judge in the court's modern history. I don't want to get into a debate over, you know, 19th century judges or whatever.

0:21:52 Thomas: Yeah, because I could debate you on that, man. You're lucky that you, yeah.

0:21:56 Andrew: Called out by... And what I mean by activism is when there is a common and settled understanding of what the law means, that factored zero into Scalia's opinion as to what the law meant. And he was perfectly willing to change how courts interpret interpret major constitutional provisions without regard to how those provisions had been historically interpreted over the previous 200 years. So let me ask you a fun trivia question.

0:22:34 Thomas: Oh, geez.

0:22:35 Andrew: See if you can get this right, okay? And let me give you a little bit of background.

0:22:36 Thomas: Okay. D, all of the above. Oh. I

0:22:41 Andrew: Yeah, there are probably hundreds of cases at the Supreme Court level that deal with the extent of First Amendment protections on press and speech. There are certainly hundreds of cases that deal with Amendment privileges against illegal searches and seizures. Measures. How many cases prior to 2008, okay, and 2008 is when Justice Scalia authored the District of Columbia versus Heller decision, which we're going to talk about, that's on the Second Amendment. But prior to Heller in 2008, how many cases do you think the Supreme Court authored on the meaning of the Second amendment? That is cases in which they They looked at either federal or state laws and said, oh, hey, this is a federal law that, you know, bans people from owning guns or bans people from owing this kind of gun, and it either is valid or not valid under the Second Amendment.

0:23:45 Thomas: Have no idea except by the context of your point. I don't know. So how many did you say for the First Amendment? Like like a million? It's in the hundreds.

0:23:54 Andrew: It's in the hundreds on, yeah, right.

0:23:57 Thomas: Oh man. Let's see. Prior to 2008. I mean, yeah, let me get, I'll put up a guess of extreme guess because I feel like you're making a point. I'll say seven of them.

0:24:12 Andrew: And the answer would be one, right?

0:24:14 Thomas: I didn't go far enough.

0:24:16 Andrew: Yeah. You need to use the price is right guessing methodology here.

0:24:16 Thomas: Oh, man. One Supreme Court. Is this, are you serious? One one Supreme Court Second Amendment case prior to 2008.

0:24:24 Andrew: I am correct. That is a 1939 case called U.S. v. Miller. Now, there are other cases that collaterally involve the Second Amendment. It's why I expressed it the way I did, and we're actually going to talk about a couple of them. But U. S. V. Miller, yeah, you're still only going to get to three.

0:24:39 Thomas: Oh, okay. If on a technicality that turns into my guess, like, what did I guess? Seven or eight? Then I'm going to, I claim credit. I want to, ah, darn. I really wanted that Chipotle gift card or whatever I was going to get.

0:24:54 Andrew: So is a 1939 case, right? Right. So there are zero. So not only are there, you know, there's there one in history. Right. But there's zero for the, what, 70 years between U.S. v. Miller and the Heller decision. What happened in U.S. v. Miller? There was a federal law that required the registration and taxation and ultimately was used to deny people ownership of sawed off shotguns. Right. Think about 1939.

0:25:09 Thomas: Right.

0:25:29 Andrew: If you've seen, right, if you've seen The Untouchables, see, look, I was actually going to make a cultural reference. Admittedly, it's a 20-year-old cultural reference, yeah.

0:25:29 Thomas: The mob or something? Okay. You're like, I haven't seen the movie, but I've heard that it involves all is this.

0:25:41 Andrew: Right, sawed-off shotguns were associated with mob behavior, and they were banned, and so Eventually, somebody sued, and it went all the way up to the the Supreme Court, and the Supreme Court issued the following holding. This is word for word.

"In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length," that's a sawed-off shotgun, "at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Period. Full stop.

So they upheld, they wound up remanding the case on a factual basis, but essentially they upheld the law banning sawed-off shotguns because there was no evidence in the record that sawed off shotguns would have a, quote, "reasonable relationship to the preservation or efficiency of a well-regulated militia," end of quote. Quote. So that's it. That is the extent of direct Supreme Court application of the Second Amendment to laws that affect individuals that ban or restrict their rights to weapons. In addition to that, the way in which a Supreme Court takes a case, I think I've talked about this before, is they grant certiorari, right? Other than a small number of classes that are are really not important where you can directly appeal to the Supreme Court.

In general, you have to file a A petition for a writ of Certiorari. And what that means is you have to file legal brief with the Supreme court that says, Hey, this is why you should take this case. So, in other words, the Supreme Court gets to decide on its docket for the most part. And what the judges do is they get together, what the justices do is, they get together, they read all of the petitions, and then they take a quick vote. And there are nine, there should be nine members of the Supreme Court, but they follow a rule of four, which is to say, if any four justices say, we should take a look at this case, they will take the case. So, if they don't take the case, right, then the lower court ruling stands.

0:27:42 Thomas: Yeah. Right.

0:27:58 Andrew: And because the reason there's a rule of four is that that way you cannot infer one way or another based on the fact that the Supreme Court has granted cert, has decided to hear your case.

0:28:10 Thomas: Can I ask a quick, maybe dumb question just because I'm curious when the, when the Supreme Court doesn't hear the case and therefore, you know, the lower courts, stands... Is the lower court like a state level thing or a circuit? It would be a... Yeah,

0:28:12 Andrew: Yeah, yeah, yeah.

0:28:26 Andrew: Good question. There are two kinds of typical appeals to the Supreme Court. The first is from courts of appeal of the various circuits that are throughout this country, which are distributed geographically. So, for example, California, if you file a lawsuit in federal court in California, right, you have one appeal as of right to the Ninth Circuit. And the NinTH Circuit covers California, Nevada, Oregon, and Washington, I believe, and possibly Hawaii.

0:28:43 Thomas: Right. Ninth Circuit, right?

0:28:58 Thomas: Okay, so when... My quick question, because I don't want to divert from the... Because where you were going was really interesting. So, does that mean the law... So, let's say there's a gun case or something where the Ninth circuit rules that, no, it is is okay to ban this type of firearm and the Supreme Court says, we don't want to look at it, does that mean it's only okay in the states that the Ninth Circuit represents and then other states and other circuits could still, you know, go the other way or whatever?

0:29:01 Andrew: Yeah. Yeah.

0:29:29 Thomas: How does that work?

0:29:30 Andrew: We are going to make a lawyer of you yet. That is exactly right.

0:29:32 Thomas: Okay. Interesting.

0:29:35 Andrew: And it is of persuasive authority in the other circuits, right? But you're free to argue that it's to the contrary. So if you have a law in Alabama that is exactly like a law in California and the Ninth Circuit says this is fine, then the Alabama courts, which Alabama is in the Fifth Circuit, the Court of Appeals for the Fifth circuit could say, yeah, you know what? We recognize that the NinTH Circuit has come out X, but we're going to come out Y. And in Fact, one of the primary reasons that you will advance, having assisted in the drafting of cert petitions and having filed numerous of them in our state Supreme Court in Maryland, which is called the Court of Appeals, uh, one of the primary reasons in which you will argue in a U.S. Supreme Court cert petition that the Supreme Court should hear your case is because there's a split among the circuits, right?

0:29:40 Thomas: Oh, okay. Right. Oh, I was just going to ask that. So that would be when they're, well, yeah, I guess I assume when they are deciding, you when the eight justices are sitting there like, should we do any work? No, I don't want to see any cases or something like that. But when they're deciding what ones they want to see or whatever the technical term is for that, I would assume that that would be a big factor, like if there's two different rulings or something.

0:30:36 Andrew: So, Yep. So If the Ninth Circuit Comes Out one way. Oh, yeah, go ahead, yeah. Absolutely.

0:31:00 Andrew: Right. And, and, and for obvious reasons, right? So, um, so that's right, that's the backdrop, uh, that's how federal cases get to to the Supreme Court. You have an appeal as of right, you bring your case in federal court, you have appeal as a right to the circuit court that is in your geographical area. And then you can, if you lose at the circuit Court level, you can appeal to the Supreme Court, but that is a petition for certiorari, they can take the case or not. And obviously most cases they decide not to take.

0:31:00 Thomas: Yeah. Okay.

0:31:33 Andrew: Alternatively, if you have brought a state case, that will go to your state's Supreme Court, and it may go through an intermediate state Supreme Court. Different states do this in different ways. But essentially, you'll get a ruling from the highest court in your state. And then if there is a federal question that is attached to that state Supreme Court decision, you may appeal that to the Supreme Court on the same basis by filing the same petition for cert. But states are supreme in interpreting their own state constitutions. So let me give you an example of how this can happen. Happen, you might file a lawsuit in California alleging a violation of the Civil Rights Act of 1964 and the UNRRA Act, right?

0:32:27 Andrew: And because the UNRA Act that we discussed in the Christian Mingle case in the beginning, because the act is broader than the Civil rights Act of 1964, you you might be able to persuade a judge to keep that case in state court in California, even if the defendant wants to remove it to a federal court. The defendant would probably have a pretty good case for removal, but just bear with me on this.

0:32:55 Thomas: I'm losing you a little little bit. I'm not, but I'll try. I'll try. Okay.

0:32:57 Andrew: And so you may have a latent patent, federal constitutional issue in a state case. And in those cases, the Supreme Court can also grant cert if you have a state court ruling that touches on a constitutional issue, if that makes sense. So we're good?

0:33:18 Thomas: Okay, I think so. I will just if it turns out you make another point. I'm like, wait, what the hell? How did you make that? And it's dependent on this. I am sure we will find out.

0:33:25 Andrew: Yeah. Right. The point of all of this is to say that from 1942, which is the first date for which I have data, and 2001, kinds of gun Second Amendment cases were raised in federal courts 42 times. And they were virtually unanimous. There's a couple that have some weird outcomes. But it is fair to say that there are zero cases that held that the Second Amendment creates an individual right to use guns for non-military purpose. And there are zero instances of a lower court overturning a state law that prohibits or restricts firearms on Second Amendment grounds from 1942 to 2007, right? And so basically what what you have is you don't have that split among the circuits. You have state courts unanimously saying, rejecting arguments that say that gun laws violate the Second Amendment. And you have the Supreme Court, a full Supreme Court of nine members, not even four members of the court at any point in time, which from 1942 to 2007, the court's composition changed pretty drastically. I mean, you know,

0:34:56 Thomas: Well, that includes what like 18 years of Scalia.

0:35:00 Andrew: And during those, all of those times, now Scalia didn't have anything teed up until 2007. So from 2001 to 2007, I think, and shockingly that this coincides with when George W. Bush was able to appoint Robertson and Alito to the court and really sort of entrench not just a conservative majority but a very conservative pro-originalist, pro-Second Amendment majority on the court. But yeah, so prior to 2007, the court going from liberal to conservative and having a variety of composition of members, there was zero interest in looking at state and U.S. Circuit Court of Appeals decisions on a Second Amendment?

0:35:10 Thomas: Oh, okay. Yeah.

0:35:54 Thomas: So had states been banning different things or or enacting different laws where it's like and then for all this time the I guess it would be the precedent of the 39 or was that the year the night the Heller that decision that pretty much I'm guessing led the justices to say nah that's fine it doesn't we're not going to look at it because this pretty much is in line with this until 2007 okay hmm

0:35:57 Andrew: Yes. Yes. Yep. Yep, correct.

0:36:23 Andrew: And one more thing you need to know, in 1975, the District of Columbia banned the personal possession of handguns, right? So that law has been in effect for 30 plus years without being, and has survived challenges to its constitutionality. It's been well known and well established. You just couldn't own a handgun in DC until 2007, when the Court of Appeals for the DC Circuit upheld, overturned a prosecution against an individual who had a handgun in the District of Columbia. And that became the basis of the DC versus Heller decision, which went up to the Supreme Court, which is now, Now, which is why I asked the initial question of how many cases do you think there were before 2008?

0:37:21 Thomas: Yeah.

0:37:21 Andrew: 2008 is the Heller decision in which Scalia writes for the majority. It's a five-four majority comprised of exactly the people you think it would be comprised of, which affirms the judgment of the DC Circuit, establishes an individual right to keep and bear arms under the Second Amendment and holds that that individual right prohibits DC from banning the possession of all handguns. I hope I've kind of laid enough groundwork to illustrate just what a radical change that was on the landscape. I mean, I should say that at the the time, pre-Heller, there were really three distinct views of the Second Amendment. And I think Heller went further than all three of them. So those three views are ranging from left to right. The first is the superfluous or anachronism view. This is the view that you would have to hold to take the Eli position. And this is not well stated in case law, but it's the view that Ruth Bader Ginsburg holds, for example. So in an interview, it's

0:37:56 Thomas: Okay.

0:38:37 Thomas: Can I Guess is It something like well when they wrote this it was a billion years ago and the guns were way simpler and so it doesn't have any real relevance on guns today and they're way too different to make a decision, is that something like it? Okay.

0:38:51 Andrew: Sort of like that, but it's also tied into the language. So there's A good argument. So here's what Justice Ginsburg's had to say about it. She says, the Second Amendment has a preamble about the need for a militia. Historically, the new government had no money to pay for a standing army, so they relied on state militias and the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do their service as militiamen they would have them. That was the entire purpose of the Second Amendment, but when we no longer need people to keep muskets in their homes, then the Second Amendment has no function. Its function is to enable the young nation to have people who will fight for it, to have weapons that those soldiers will own. So I view the Second Amendment as rooted in the time, totally allied to the need to support a militia. So the Second Amendment is outdated in the sense that its function has become obsolete. Okay. Now,

0:38:51 Thomas: Oh. Okay, that Kind of makes a lot of sense to me. I

0:39:39 Andrew: And, and I

0:39:40 Thomas: I think, I feel like you're going to tell me why that doesn't work or something, but

0:39:44 Andrew: Am, you know, sort of setting it up to knock it down, but let me add one more point that having a view that says a, a constitutional amendment is, is, is not, is superfluous is it, it's a tough sell, but it's not, but But it's not without precedent. So, for example, Robert Bork, who is even more, you know, sort of even to the right of Scalia in terms of originalism and what he considers to be a strict constructionism, has said that he thinks that the Ninth Amendment to the Constitution is an inkblot and that we can't figure out what it means and that it has no real effect today. Okay. So

0:39:53 Thomas: Yeah, yeah, especially, especially to conservatives.

0:40:27 Thomas: Tell

0:40:27 Andrew: That's an example.

0:40:28 Thomas: The listeners who don't know, what is the ninth amendment? I don't Know.

0:40:33 Andrew: We're really going to go down a huge rabbit trail.

0:40:35 Thomas: Just, just tell me what it is. I don'T Know. I don't know any of the freaking amendments. I have no idea.

0:40:36 Andrew: Okay. Well, the Ninth and the Tenth Amendments to the Constitution are sort of catch-all provisions. Okay. And so what the NinTH Amendment says is, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. And it's something that which there was not a lot of historical jurisprudence and some people argue that the retained rights, clause of the Ninth Amendment can be used to prohibit certain kinds of government action and There's... there's a little bit of controversy, you know, sort sort of law geekery among lawyers as to what the Ninth Amendment means and how that might be applied.

0:40:46 Thomas: Oh, hmm. Okay.

0:41:24 Andrew: And so Bork has said, oh, come on, it's an inkblot. You can't figure this out. No one knows what the hell it means. It's just surplusage. And sorry, I bring it up because that's an example of a very, very conservative justice. I mean, he's the polar opposite. He's a former judge, and he's a commentator, and someone who was rejected from the Supreme Court in 1987. We talked about this, I think, in the first episode.

0:41:50 Thomas: Okay.

0:41:51 Andrew: But Bork is sort of the proto-Scalia, right? Right. And all of that is a way of saying that it's perfectly reasonable to make the argument that an amendment is surplusage. But you're carrying a pretty heavy burden, not the least of which is some of the canons of instruction that canons, of statutory construction that I talked about earlier, that it'S a tough burden of persuasion. But that's one, yeah, right.

0:41:55 Thomas: Yeah. Yeah. Because if you said that for like the first amendment, obviously you'd have a

0:42:23 Andrew: You certainly could. The difference would be in the history, right?

0:42:23 Thomas: Problem. Yeah.

0:42:29 Andrew: But if you wanted to say, look, the First Amendment was, suppose you wanted To say the freedom of the press clause was designed to protect newspapers, and newspapers are now, and, you know, newspapers are a dying medium. And once newspapers are gone, that clause isn't going to mean anything anymore. More. You could make the argument, but the distinction that I would make, the reason that I would say you don't have to hold that view of newspapers, even if you hold that view of muskets, has to do with early jurisprudence on what the amendment meant, right? That the courts were very, very clear early on in saying that we think that the First First Amendment has a robust meaning in, now, mind you, in the context of the technology that they had at the time, but nevertheless, there was a lot of discussion about this as a principle, and that's really absent in the Second Amendment case.

0:43:15 Thomas: Right. Yeah, we needed some like futurist judge who really could imagine like someday there will be these killing machines like phasers, Star Trek. He needed to be like, hey, I'm just getting this in for early jurisprudence. This probably won't matter in 100 years or something. Yeah. Okay.

0:43:34 Andrew: So, right, right. So anyway, so that was, that's view number one. It's an extreme view, but it's a respectable view, right? It's not one that I hold.

0:43:47 Thomas: Okay, interesting. Yeah, I mean, I do see your points about it, of like that view, but I get what you're saying. It is a tough sell, but doesn't it seem like, based on the language of the amendment, it really was for a specific thing that we just don't need anymore? More, oh,

0:44:13 Andrew: Of the argument I would give you to the contrary is that when you're extrapolating forward what malicious service meant, that I think in fairness, you have to do that for both sides. In other words, if you're going to say, okay, the principle of the country doesn't need you to defend itself in place of a standing army anymore. That's true. But you still have to ask yourself, what did, in the context of protecting the rights of its citizens, what's the underlying principle that's at stake here?

0:44:34 Thomas: Okay. Like, What function did it have back then, okay, yeah.

0:44:57 Andrew: And it is true that the definition of militia at the the time of the passage of the Second Amendment in 1791 is included all able-bodied males. Well, able-bodied white males, I should sadly say in our nation's history. So there are things about the history that give me pause before jumping on to the anachronistic viewpoint. And the other thing is, I mean, again, this sort of harkens back to my general thesis, and this is a good example of where I'm going to be sort of more conservative than my liberal friends. I don't think that view was not expressed in the Miller decision in 1939, for example, right? You can find a couple of state decisions. I do not know about federal appellate

0:45:14 Thomas: Yeah, Right, because

0:45:54 Andrew: Court decisions.

0:45:54 Thomas: In 1939 we didn't really need a militia either, probably.

0:45:57 Andrew: Yeah, And they could have said you have no right, there's no standing to bring a lawsuit under the Second Amendment, the Second Amendment is, you know, null and void as, as with respect to modern firearms, and they didn't say that, so those are the things that give me Paul.

0:45:58 Thomas: Yeah, True, Okay, I I Take your point, what's, what's the middle view that you're getting to of the three?

0:46:16 Andrew: Yeah, So, The Middle view. Again, I'm telling you, you, you're going to get, I'm going to convey an honorary law degree upon you when, when we've done all these interviews.

0:46:18 Thomas: Yeah, Yeah, Right, I don't deserve It, you don't want, want to do that. It would be malpractice immediately. You

0:46:30 Andrew: The middle view is that the Second Amendment reflects a collective right that's held by the people as part of a well-regulated militia, right? So you do have some kind of a right, but that right is something that you share in common with other citizens, and it's something that is subordinated to this introductory goal role of having a well-regulated and orderly society.

0:46:59 Thomas: Know what? Let me jump in. I just realized this is something that people may be confused about. It's something I've read about in these Second Amendment issues. Well-regulated probably doesn't mean what some people might be thinking it means, right? Or unless I read a bad source. But I do think that some people interpret, oh, well-regulated. That means you can have like regulations on guns. But really, really well-regulated means like orderly, like you said, right? For militia.

0:47:00 Andrew: Yes, yes, yes.

0:47:25 Thomas: Okay. I just want to clear that up because that is a comment that I've seen. I think it is just a product of the language of the time, right.

0:47:32 Andrew: Right. And you don't have to go that far as to say, ah, it says well- regulated and regulate means regulation. I mean, then we sort of get back into the Scalia cruel and unusual punishment. And I want to keep I want to keep my, you know, fellow liberals feet to the fire on stuff like that. But if the amendment reflects a collective right that is subordinate to a social goal, then that's a mushier phrase, right? It's less clear than all or nothing, but it strongly suggests that most of the forms of gun control that historically have passed remain viable as legislative options. They don't violate the Second Amendment.

0:47:38 Thomas: Right. Exactly.

0:48:22 Andrew: So, for example, yes,

0:48:23 Thomas: So what's, oh, okay. Sorry. Well, I was going to ask like, what is the, now this middle view, I'm guessing, correct me if I'm wrong, is something something like what the 1939 decision reflected, right? That as long as you, so as long as you're not completely, now what is the line there? Is it a matter of opinion or interpretation? Can you infringe on that right a little bit? You know, like, or can you just not get rid of it? And what I mean by that is like, as more and more of these, let's say more and more of these state bans were passed, at what point would, if you held the middle view, can you give me your best guess or idea, or maybe, you know, a more precise idea, at which point would you have to say, like, this is too many bans, we're banning too many things, or too many weapons, or they're too broad, to where now it is infringing on this right to a well-regulated, or whatever it is, however you interpret the

0:48:35 Andrew: That's exactly right.

0:49:20 Thomas: Right.

0:49:21 Andrew: It That's a, that's a great question, and the answer is we would not have enough case law to tell, because but, but what we would know, what we'd be able to infer from the 70 years of Supreme Court jurisprudence, is that banning certain kinds of firearms is okay. Restricting ownership of entire classes, you know, all handguns, is okay.

0:49:39 Thomas: Right. Right. Well, but this might sound dumb, but it might, wouldn't it depend on like the order and you could eventually ban all types. Like, let's just say for argument's sake, there's like three types of guns or something, you know, it doesn't really, for the first two bans, you could be like, well, yeah, it seems like we can ban a type of gun. That seems okay. And then for the third one, it's like, wait, this is all guns. You know, how does that work?

0:49:46 Andrew: And Yeah.

0:50:06 Andrew: Yeah, well, and that would, I think that, again, sort of falls into the classical model that I've talked about, which is you continue with stare decisis, you continue with past precedent until you hit an inflection point and you say, "Okay, wait a second, we've gone way far off the rails here, right?" And so now, if the implication, if the first two are okay but the third one would effectively prevent any firearm ownership at all, right, you would say, "Okay, well, all right, now you..."

0:50:34 Thomas: Yeah.

0:50:35 Andrew: You've asked where the line, at least here, right? But, but what I would say is we don't have good evidence under this middle view, we don't have good of where exactly the line would be, which it is because There weren't enough cases, that's Exactly right, and this is another really good example of of how you're thinking like a a lawyer here and deserve this honorary degree.

0:50:37 Thomas: Right. Okay.

0:50:48 Thomas: Because there, there just weren't enough cases, yeah. Okay. Yeah. Nah. It's I'm just parroting what you're telling me. I I don't know anything.

0:50:57 Andrew: No, no, no. It's true because what you want, what I want as a lawyer, even if it's an outcome that I disagree with, is I want certainty so that when my clients come to me and say, can I do X, I can answer them yes or no. When a client comes comes to me and says, you know, can I, put this clause in my contract that prevents my employees from, you Know, can put a non-compete clause in My employment contracts?

0:51:00 Thomas: Oh. Yeah. Right. Yeah. You brought this up last time, like how many years is

0:51:26 Andrew: Yeah. Right. I can, I can tell them, yeah, it's, it says six months. You're fine. Uh, this says five years, you're, you're not fine. Um, and, and that kind of predictability, uh, is, is really, really useful. And so from a predictability standpoint, under this view pre-2008, if I were advising a state legislature, I would say, yeah, so long as you're not confiscating all firearms within this district, that reasonable regulations seem to be okay, and that you're probably pretty safe, right? Right? We know you can ban categories of guns. There was very little constitutional argument in the early 90s when under President Clinton, the Congress passed first the Brady Act, which required a three-day waiting period on the purchase of new handguns.

0:51:28 Thomas: Okay. Yeah. Mm-hmm. Yeah.

0:52:21 Andrew: And they passed a ban on, I think it was like 37 different kinds of semi-automatic assault rifles.

0:52:26 Thomas: You know. I gotta ask, how does that, and I hope I don't take us down too long of a rabbit hole, but I think it actually is pretty important. We're talking about the right to bear arms. And if we're all agreed, like in this middle view, there is a right. And it's just a question of, you know, when these bans go too far or whatever. How do you evaluate something like a three-day wait? You know, because it's like, it seems like there's no other precedent for that. Is there? I mean, is there any other right where you have a three day wait to, you know, say something that you, you want to say, like free speech wise or a three, you know, how do you even evaluate that?

0:52:32 Andrew: And, you Right.

0:53:02 Andrew: Well, you know, sure. I would evaluate it as analogous to the time, place and manner restrictions in free speech cases. Right? So for example, if I say, I would like to publish this book on, you you know, how the government needs to be secular, then I expect that I'm able to do that. But if I said, I want to gather, you know 10,000 people together and have audio and speakers about the need for secular government, then the District of Columbia can say, well, you're gonna have to get a permit for that. And so you, you have to wait until the permitting process goes through and you get, you all of those rights. So you're not getting it immediately.

0:53:11 Thomas: Sure. Right. But, but you really were, I mean, I do see the analogy there, you know, but I really, they were kind of working from scratch when it comes to how long is an okay waiting period, like what's a reason, you know, and, and that's interesting to think about. I mean I don't even have any clue as to if I were really trying to be strictly constitutional and not just go from, you you know, obviously my personal, like, bias and what I want to have happen. You know, how would a fact law robot evaluate this, you know?

0:53:51 Andrew: Yeah.

0:54:10 Andrew: Well, what I would do is I would look to see what the burden is on that waiting period in terms of the exercise of the right. So, you know, and other than like the Simpsons episode, right, where Homer Simpson is like, I'm sorry, you've got to wait three days before you can buy this gun. And he says, well, I'm mad now. But other than that, right. It's, it's, It's tough to see what aspect of the right is infringed by the waiting period, as opposed to something like, it's why I think it's non-analogous, to when you impose waiting periods on women and particularly young girls who are seeking abortions, where you would say like, no, no. Well, what's the harm in waiting those three days? Well, it actually could be a lot of harm. Right.

0:54:19 Thomas: Mm-hmm. Yeah. Yeah, yeah, that makes sense. But how long do you think would be reasonable for a gun? And put on top of that, the restrictions of, like background checks and what, you know, like how does that component come into play? What?

0:55:02 Andrew: And and yeah, yeah, it would be tough. Well, and that's and that'S what I would say is and what the courts are going to do is they're going to look to see, is there a rational relationship between the length of time in the waiting period and the stated purposes of imposing that waited period? So, for example, the three days under the Brady Act were designed to do two things. Number one, to have a cooling off period so that, I mean, you know, to prevent the Homer Simpson, like, I'm mad now, like I'm going to run out to the 7-Eleven, buy a gun, come back and shoot you.

And the idea is, boy, as mad as you are, you knows, when somebody says something about you on Facebook, like three days later, you're probably, you don't know, less mad about it. So calm down. And number two, that there was some, that was not a good, I mean, this was 1993, I believe, when the original Brady Act was passed. So there was not, you know, a good computer infrastructure for doing background checks, but there was the idea that that infrastructure would be put in place.

And so today I would say, you know, looking at it, when you're talking about some of the proposals that have come up in Congress recently, I would want to see a waiting period that is tethered to the time period necessary to do the law enforcement background check, right? And if you can, if you've got the resources to do that within the three days, then I would think anything longer than a couple of days would look like you're just trying to artificially restrict someone's right.

0:55:42 Thomas: Yeah.

0:55:58 Thomas: David Smalley. You

0:56:53 Andrew: You would need to say, if the enumerated purposes are number one, to calm you down, while we know we have precedent now that suggests three days is going to calm you down. You may still be simmering about it, but there's no longer the heat of the moment worry. And then number two, however long you need to conduct the evaluative process. And that, I don't know that from an actual perspective.

0:57:19 Thomas: Know When you put It that way. It does seem pretty reasonable. It makes sense. It's not like some grab, you know, grab it out of your ass number. Like, it does kind of, it is, seems pretty reasonable to me.

0:57:20 Andrew: Mm-hmm.

0:57:30 Andrew: You know, something that really has stuck with me, I read this like 20 years ago when the round of recent gun control debates were going on and Congress was debating the Brady Bill and the assault weapons ban. And the argument went something like this. The worst restrictions on liberty in a country's history tend to be when one group of people forbid another group of people from doing something that they want to do.

And therefore, if you are a gun control advocate, and I would classify myself as such, you should, but you are not yourself a gun owner you should keep that principle in mind and you should say hey you know it's easy for me to assign this a cost of zero because I don't own a gun I don't want to own a and and so you know it's kind of easy to go with thinking about what provisions you want to put into place because they don't affect you personally, so I I've always tried to do that, is sort of think about like well how would I feel about this in another context. And you know, how would I feel about a waiting period in another context? Well, if, if there was a good justification for it, uh, you know, I, I'd probably be for it.

0:57:30 Thomas: Yeah, Yeah, Well, Not to Open a can of worms, but I do, it's just the guns really are different than other things because it's, sure, it's like, oh, you know, you don't like, uh, you know, you don' like mustard on your hot dog, well someone else likes mustard on their hot dog, therefore you shouldn't pass a law, you know, and saying, yeah, but this is an instrument of death. It's a little different. Like it's, it's.

0:58:47 Andrew: Uh, yeah, I don't, I don't, I don't disagree with that. I, it, I guess, uh, and again, you know, my wishy-washiness is coming out. I think right now, um, people have made a very, very good case and I would recommend, you know, go out on Google. There was an article that's basically is like a a gun owner's case for banning high capacity magazines. And I'm sure if you type that into Google, you'll pull up the article because that describes what it is. I think the argument for banning large capacity magazines to specifically respond to the school shooting issue is one that I'm politically persuaded is good policy. It's obviously, you know, constitutional, even in light of D.C. versus Heller. And the fact that, and those were proposed, I believe, after Sandy Hook and failed. And

0:59:13 Thomas: But I do, I do take your point. Yeah.

0:59:31 Thomas: Right. Yeah.

1:00:06 Andrew: So it seems to me that if high capacity magazine restrictions are not passing the Congress, then we still have a lot of work of persuading to do, right? Right. Like, that's the hill I'd like to, you know, wage the battle on because I think kind of like the original Brady Bill, I mean, the reason the Brady Bill passed when President Clinton took office was because it was sort of broadly popular with 75% of the country. And I think you could build a consensus that 75% of the country, even people who are lifelong hunters and gun enthusiasts and whatever to say, you know what, you can have a gun range that keeps certain high capacity ammo clips under lock and key. So if you really want to go out and do like a full myth busters, like, you know, I want to, I want to down and pump 300 rounds into something in five seconds. Like, okay, like go do that at, at your, at your hunting range.

1:00:54 Thomas: Mm hmm. Right?

1:01:09 Andrew: Um, but you know we don't really want somebody to be able to carry these huge drums in and, and mow down school children. You know, like I think you could get a, uh, a 75% national consensus around that. I mean, you'd have holdouts.

1:01:22 Thomas: Yeah. Now that Scalia is out of there, maybe the law would actually hold, huh?

1:01:26 Andrew: Yeah, but I mean, again, you know, it doesn't do you any good. The most the Supreme Court can do is overturn D.C. versus Heller, which I think there's some chance that they might do that. Was part of the punchline that I was saving as we move forward. But that does is pave the way for legislation,

1:01:43 Thomas: Oh, All right, there you have it for part one. Again, part two on Monday, but if you're a patron over on patreon.com/atheist, you've already got the full file. So thank you so much to those who are. Ooh, I got some new ones to thank! Thank you to Simon Tanner, Dan Landrum, Tyler, The Hollis Wetzels, Will Cherone, Faye Reppas, and Suzanna Pohjolainen. Thank you guys so much for pledging. I'm guessing you just could not wait to get to part two with Andrew, or rather that whole Second Amendment show with Andrew. And I don't blame you. I couldn't wait either. I would have pledged if it weren't my show. Go. And then I also want to thank my all-time greats, of course. Thank you so much to Sammie, Hunter Ash, Allahng Blakok.

1:02:54 Thomas: It's funny every time. That's what you get for pledging $10. You get, you know, I'll read your Allahng Blakok name every time, Inciting Incident Podcast, Kaylee Reiser, Zimu Zinu Jr., Adrian Borschoff, Jonathan Moyet, Jay Alden-Walt, Steve Sigmund, Peter Skelton, Brian Gearfort, Dale, Matt Garrett, Ian Rozzano, and Samantha, thank you guys so very kindly for your patronage, and I hope you enjoyed the early content this week. All right, that's it for me. See you on Monday.