AS259: 2nd Amendment Masterclass, Part 2

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 259, and I am your host, Thomas Smith. Alright, here it is, part two of the masterclass on the Second Amendment. Everything you need to know, and, I bet you there's still some stuff, plenty of stuff we didn't get to, but, it's such a solid background of information for any, to educate us going into any discussions of the Second Amendment going forward. So really good stuff, and here's part two.

0:01:08 Thomas: But could Congress act first? Or is D.C. Heller prevent a lot of that, like, you know, before it starts? How does that

0:01:15 Andrew: Great that, again, great question. I'm not saying that patronizingly. No, no, no. You're really focusing on these these issues. When you bring a lawsuit, you can bring a lawsuit that is based on either a the law, or a good faith based modification to the law. Right? A good faith argument for modifying the law as it stands, right. And that is, that standard is a federal rule called Rule 11. And it prevents lawyers from bringing lawsuits where they know, right, the law is settled, it says x, and there's no argument that it's ever going to be not X. And it's a very serious issue to say to somebody, I think this violates rule 11. I don't think you have even a good argument to change the law.

I would certainly be very, very comfortable defending a constitutional challenge to a congressional act that reenacted the handgun ban in the District of Columbia. And the argument would not be the Supreme Court currently recognizes this because it clearly doesn't. There's a case that's to the exact opposite. But the argument Would be, I have a good faith basis to believe that DC versus Heller was wrongly decided. And I would ask

0:01:50 Thomas: Yeah. Huh.

0:02:41 Thomas: Interesting.

0:02:41 Andrew: The Supreme court to overturn that. So, I mean,

0:02:43 Thomas: I didn't know you could do that. I thought it was like, sorry, you're shit out of luck. Oh.

0:02:48 Andrew: One of the kind of famous cases for that is Gideon versus Wainwright. And it involved, and there are a number of these, you know, sort of landmark cases where Gideon versus Wainwright is the case that says in criminal cases, you have the right to a public defender, um, you have the right to have an attorney appointed for you, uh, by the state, uh, and, um, the law -- there was a case exactly to the opposite, right, there was a case that said right to a lawyer means the state can't prohibit you from bringing in your own lawyer, uh, but it, but it doesn't mean they have to pay, pay if pay for one, right. And the plaintiff in Gideon said, you know what, that's 50 years ago, and this is just awful that criminal defendants are, are being, you know, oh yeah, yeah, I mean, Gideon versus Wainwright was, let me pull up the date. A great many of the things that you think of as constitutional protections are much more recent than you would expect. 1962.

0:03:20 Thomas: Right. That Went? 50? Years, wow. I had no idea Recent.

0:03:46 Thomas: Innovations. So, for 50 years, we weren't providing people with a lawyer if they couldn't afford it.

0:03:52 Andrew: 1963. Yeah, yeah. Until 1963, you were not entitled to to have a lawyer appointed to defend you if you were indigent in a criminal case?

0:04:05 Thomas: So, poor people were just screwed.

0:04:07 Andrew: Yes. The same thing, it was the same era where courts created the Miranda warning. That was Miranda versus Arizona. Again, prior to that, you didn't have to be advised of your rights. So that little clause that everyone knows from TV and movies, again, that's last 60 years, last 50 years. Um, that's the way in which you can um sort of prospectively argue for changes in the law even if it, you know, currently

0:04:08 Thomas: Wow. Right. Hey, can't

0:04:40 Andrew: Is going the other way

0:04:40 Thomas: Believe it took 50 years, though, for that to, like, seriously, why didn't somebody do that sooner?

0:04:41 Andrew: Okay well It took, I mean, the the idea that that rights protected by the Constitution required some sort of affirmative basis of action. And again, I don't mean affirmative action as that is used as a term of art, but required the government to do something. I mean, that really was not a part of our jurisprudence until the Warren Court in the 1960s. I think it was, it was really thought prior to that, that the, that all of the protections that government gave yeah we're we're negative in nature, right? Like, the government couldn't prohibit you from doing x but, you know, they didn't have to help you do x. Um, and well I mean, that's a, that is a very lucky in view, it is uh

0:04:59 Thomas: Yeah.

0:05:15 Thomas: They were sort of like hands-off things. Like, okay. Yeah. Right. No, that makes sense, I guess. It's libertarian, right? It's kind of just stay out of the way.

0:05:33 Andrew: Yeah I would say classical liberal, right yeah, I was a classical liberal. Um, and and there's a lot to commend it, you know. I think that that when you're talking about a modern society, it's worth looking at the implications of how those rights are put into practice. But yeah,

0:05:36 Thomas: Yeah. Okay. Yeah, and you see that it's affecting, that poor people just get screwed over in legal matters. It's like, it looks like we better do something. Free

0:05:58 Andrew: Look, I had an example of this happen the other day. I was representing. One of the nice things I get to do is I represent a bar owner. I represent a couple of bars, a couple of wineries. Yeah, no, it's great. Great. And, you know, and we were in court and the side in this particular case had neglected to tell their lawyer that they were coming to court that day. And we got there and I, you know, and the judge kind of looked at me and I said, yeah, no, I'm perfectly happy to agree to, you know, a one week postponement and do that because I mean, you you know, everybody in the room knew, I mean, that was just going to be manifestly unfair if, you know, we went forward and they didn't have a lawyer and,

0:06:12 Thomas: Drinks.

0:06:45 Thomas: Right,

0:06:45 Andrew: And, uh, and my side did. Um, so, yes, I mean, sometimes in my view, it's proper to kind of look at the realities on the ground. Uh, yes.

0:06:46 Thomas: Right. So we got on this because I asked whether Congress could just enact a new kind of gun control law, even though in the face of the 2008 decision, which I always mix them up. So that's DC Heller. What was the 39 one called? Miller.

0:07:08 Andrew: Was the Miller decision United States

0:07:10 Thomas: Okay, I think I misspoke earlier and and said that was the Heller. Okay, so that's Miller. 2008 is Heller, I'll never remember these, but I'll remember them for right now.

0:07:11 Andrew: Versus Miller. Yeah. Right.

0:07:19 Thomas: And so, okay, so, that is encouraging that that could happen. So, does that sum up, do we sum up the middle view, the two of the three? Want to move to the third one?

0:07:26 Andrew: And the other thing I would add for the middle view from the purpose of looking at history is that the Constitution preserves and early jurisprudence preserves debates that were really, really big at the time that have zero relevance today. Today. And yeah, and so at the time, right, there was a massive debate about, there was no debate that the United States was not to have a standing army, right?

0:07:28 Thomas: Oh, okay. Really?

0:07:56 Thomas: At what time? Oh. At the time of the amendment.

0:07:57 Andrew: Right. And in the 1790s, right. No debate, we were not going to have a standing Army. People like James Madison favored having a universal militia like Switzerland, or I think like Switzerland, I should say. I'm not an expert, but my, right, exactly, age 18, you know, you are required to purchase a firearm and, you know, man the Alps or, you know, whatever it is that they're supposed to do. Our friend Alexander Hamilton favored a limited militia, a voluntary militia. So that debate about what kind of militia we should have is preserved in the record. Right. And, and again, that, you know, and that, and it just, it's kind of like, you Know, to, to reference the, you know, T the and the B podcast, you see the debates in, you know, Pesal's letters regarding, you know, circumcision and keeping Jewish laws. And so like one letter will, you you know, go over and over, you know. Well, you know, this is the importance of having, you know, of, you know, no longer having to be circumcised. And this is importance of, you know no longer having to, you

0:07:58 Thomas: Okay. Right.

0:08:13 Thomas: Oh, where everyone is technically in it or something? Yeah. Okay?

0:08:38 Thomas: Yeah, to follow

0:09:07 Andrew: Know, follow this dietary law.

0:09:08 Thomas: Some some of those Old Testament rules. Yeah,

0:09:10 Andrew: Exactly. And you're reading it and you're like, what possible relevance does this have today? And the answer is none, right? Like, the answer is, that was a huge debate, you know, in the first and second centuries, by splinter, you you know, splinter sex of Judaism that is preserved in the record that we're still reading, you know 1900 years later. And, you know, some of

0:09:10 Thomas: Yeah, yeah.

0:09:29 Thomas: Unfortunately, yes, some of us are still reading that. I don't know why. Let me actually, you know, yeah

0:09:34 Andrew: Us aren't even reading, we're just listening to you reading.

0:09:36 Thomas: And falling asleep. So I actually before we move on to view number three, which I think was the most right view, right? I think I don't want to jump the gun, but now I'm wondering exactly you think that Eli's view requires the first view? Because if we look at the Australia ban, I don't know 100% of the details, but I do know that you can still own a gun. It just has to, there's a bajillion regulations. It has to be locked away. Like there's all these things, but you can still own again. It's not an outright ban on all guns. Do you think that requires the Ruth Bader Ginsburg view? Uh, or do you think like, cause I, it sounds like you could argue that that could be compatible with the middle view.

0:09:44 Andrew: Yeah, should say I'm not fully conversant with the Australian view. But I would say anything where the presumption is you have no claim, right? You have no inherent right to own a gun, but you can do X, Y, or Z, I think runs afoul. And if that's not how it's structured, yeah.

0:10:37 Thomas: Oh, okay. So it's a question of, gotcha. No, that makes sense. So, it's question of like, there's some line that maybe is not entirely easy to see, but there's line where it's less a right and now it's like, oh, this is this thing that I guess you can do if you jump through enough hoops. You know, there is some line there where it is no longer a right, and that's inconsistent with pretty much the middle view that you've described, where it is a right, you just can't reasonably, you know, infringe on it, or you can limit it reasonably as long as it doesn't get rid of it altogether, or whatever. So, okay. Okay.

0:10:57 Andrew: Right. Exactly. That's exactly right.

0:11:18 Thomas: Interesting.

0:11:19 Andrew: And there the question is, is, this is only important to sort of legal geeks like me, but the importance would be from what basis do you get to make your argument, right? So for example, driving, right, driving is a privilege. So one of the things that any state can do is all of a sudden start putting conditions on driving. They can say, you've got to get a test every year after you turn 65. five. They can lower the BAC rate for driving while under the influence to a level that is equivalent to one beer.

0:11:34 Thomas: Yeah.

0:11:57 Thomas: And that's because there's no amendment saying you have the right to drive.

0:12:01 Andrew: Right. Because you don't have a right to drive. You have a privilege to drive. And when you apply for a driver's license, you actually are engaging in a contract with the state and they can amend the terms of that contract. And so when you would have something that might even seem like it would be a tremendous burden on driving, right, it would be very, very difficult to file that lawsuit and prevail. Now I could get into some arguments, but that would not -- I -- that that's beyond the scope of where we are that's not even a rabbit hole at this point um

0:12:30 Thomas: Rabbit holing? Yeah. Interesting. Well, I was gonna ask you about another rabbit hole and I try I shouldn't even do it but I'm too curious and answer it in like 20 seconds or less what

0:12:34 Andrew: Oh go ahead yeah because I've I've been great at that so far

0:12:42 Thomas: Uh yeah how do uh how do age restrictions work for rights of this kind like because I don't think you can can you buy a gun as is it actually in some states you might be able to huh just buy a gun at any age and doesn't really matter but

0:12:44 Andrew: Yeah I think there are states that permit you to buy guns when you're 13 or 14, the more rural states.

0:13:05 Thomas: Is I'm guessing there's some sort of precedent where it's like well these these, you know, until you're a certain age or whatever, these rights necessarily don't, don't necessarily apply or, yeah.

0:13:07 Andrew: Generally, the model that is used in Court jurisprudence is, this is not expressly written in any case, but this comes from law review articles and it comes from you know, sort of general analysis. And the idea is that when you are under the age of majority, be it 18 or 21, depending on what we're talking about, that your constitutional rights are held in trust. And that, so is a prohibition. So, so you have those claims in some way. So for example, like the school armband cases under the first amendment where, you know kids were wearing wearing armbands to protest the Vietnam War. Those were rights that they were able to assert on their own behalf. But other rights, and I would, I mean, again, there's no cases that say this because we've already talked about there's basically no cases on the Second Amendment.

0:14:06 Andrew: But I would argue that the gun ownership is another sort of right that's held in trust. So it's perfectly reasonable to say you can't buy a gun until you're 18 as a matter of federal law, but you know it would still protect that right for you to exercise when you hit that point and that's a that that model is something that we've used you know on I mean think about like voting rights privileges right like you know so you know we could say we don't have a literacy test because of the obvious discriminatory effects that that's and discriminatory intent that that had throughout history but we can say you know to a seven-year-old like we you you don't get to vote now, but we're, you know, keeping that right in trust for you until you turn 18. So, yep.

0:14:25 Thomas: Okay. Yeah. Okay, all right. I, I, honestly, I actually could ask you a lot more questions about that, because it's interesting, but I'll, I'll dig us out of this rabbit hole, or rather, I don't know, jump us out this way. I'll put a ladder out of the rabbit hole. And so, should we get to that third view?

0:14:54 Andrew: All right. Sure. And the third view is that the Second Amendment protects an individual right to own some sort of firearm that is subject to certain limits. And this is, is, I would say, prior to 1985 would be almost a non-existent view. In the mid to late 80s, it became a minority view. It was fought in on the pages of law review journals. And so, I mean, one of the big things that happens at law school is that lawyers and students will publish articles on legal topics. And this is still, you know, even in the digital age, this is still kind of the main side occupation of law students at school is the top of the class will be on Law Review or if it's someplace like I went to Harvard.

0:15:57 Andrew: So we had multiple journals that covered different topics because lots of people want to publish in the Harvard Law Review, as you might imagine. And so are really kind of, even to this day, are sort of the drivers for intellectual opinion among lawyers. They are sometimes cited in cases directly, but even when they're not cited in cases, right, you know, instead of watching Better Call Saul, like people like me read law review articles, and no, no, no, no. Believe me.

0:16:07 Thomas: Yeah.

0:16:30 Thomas: That's, that's why I said, I've, I no no longer am trying to get you to watch anything. I'm just, you've got better things to do. But yeah.

0:16:37 Andrew: No, I don't know that it would qualify as better, but it certainly is part of a professional responsibility. But so anyway, so there were these really influential law review articles that were deliberately provided, they were the Eli's of their day, and they were written by, for example, one written by a professor named Sanford Levinson, was called "The Embarrassing Second Amendment" and basically said, you know, the Second Amendment protects this individual right, but, you know, no one's to acknowledge it because they favor all of these political policies, but, you know, they, they, when we go through and look at it, they lack, you know, the kind, kind of rigorous intellectual justification we would expect. And so other authors were, let's see, Glen Harlan Reynolds, Nelson Lund, Stephen Hallbrook, Don Cates, people like that.

0:16:40 Thomas: Is

0:17:28 Andrew: And so they were making an affirmative case for the individual right at a time in which there was just starting to become talk of banning certain kinds of assault weapons, um, and the, yeah, Late, late, starting in the late 80s, uh, they went nowhere under Reagan, as you might imagine, um, but, uh, and, and and under the, uh, the first, uh, president George HW Bush, uh, but it was a, it was a campaign issue in '92, and that was why the Brady Bill was one of the first bills, if, if not the first bill, signed by President Clinton.

0:17:43 Thomas: This the early 90s or? Okay. Yeah. And Bush. Yeah, quick question. Was there an event that precipitated that? Was there a shooting that I don't remember?

0:18:07 Andrew: Yes, yes, yes. The shooting was Jim Brady, who was in President Reagan's cabinet, was shot in 1982 by John Hinckley in the same event That shot Reagan. It uh and So Brady, lifelong Republican, went on to went on to found the um Brady organization. I forget its exact title, uh, and lobby. And so this was sort of simmering beneath the surface for about a decade, um, The Uh It's

0:18:23 Thomas: Oh, oh, the attempt on his life. Yeah, right, right.

0:18:43 Thomas: Wow. He's a Lifelong Republican, but he gets shot once. It's like, wait a minute. Yeah.

0:18:48 Andrew: It's funny. Yeah, you can ask ask Jenny, you know, having a lesbian daughter changed his, you know, mind on gay marriage. Right, I mean, you know, um, yeah. And And just as a total side issue, but one that I find fascinating, the Reagan attempted assassination also massive changes in how our courts deal with the mentally ill. Because John Hinckley was found not guilty by reason of insanity, and there was a tremendous amount of backlash. And most states have since changed over to a regime that is called guilty, but mentally ill. And so in other words, you're not excused as a matter of law by being not competent to stand trial, but you are, you know, sort of tried in absentia. Then the court agrees that you're not competent to stand trial and remands you for uh mental health, uh, often to facilities that are worse than jails in the first place, uh, and

0:18:48 Thomas: Oh. Yeah. Yeah. Did.

0:19:13 Thomas: They want an excuse to lock him away forever. By reason of insanity, yeah. Different.

0:19:50 Thomas: Issue. But interesting.

0:19:51 Andrew: So. And. The idea is, you know, to get around, I, you know, there were there were like some movies in the mid-80s about, you know, like, oh, I'm gonna fake being crazy and get out of jail. And I like this.

0:19:52 Thomas: Yeah.

0:20:01 Thomas: Well. To Do another Simpsons reference. There's a have you seen the one where Bart's playing the arcade game that's like, I can't remember what it was, but it's some criminal thing. He's like, oh, plead insanity. Plead insanity. But that

0:20:04 Andrew: Right. Yeah. Yeah, right, right. Exactly. And so it didn't really match up with reality, but there was a cultural view of like, oh, you know, there's this loophole of I can kill somebody and then plead insanity and get off. And so and it was thought, boy, we have to close that loophole. And, you Know, they did. And it was definitely a non-existent loophole, but it was an example of one of those where, you you know, I've talked about this before.

0:20:35 Thomas: Was kind of a non-existent loophole, right? I mean, John Hinckley was insane.

0:20:46 Thomas: Just public perception of it kind of took over.

0:20:48 Andrew: Yeah, well, and to kind of bring it back to the gun control debate, where when you have an overwhelming social consensus that something is a bad thing, it's really hard to, you know—to erect some kind of barrier to stop that, right? So, you know, here, like, the overall—they did polls, and it was like 75 to 80 percent people, they asked, you know, if you are, you know, should you be allowed to shoot the president and claim mental insanity? And, you you know basically everybody said no no.

0:20:48 Thomas: Yeah.

0:21:17 Andrew: Like I agree I agree right yeah I mean that's part of the art of polling uh but but yeah so there was the kind of massive public outcry and and it changes the law and uh that's what I would like to see on the gun control ammunition but anyway.

0:21:17 Thomas: Well, when you phrase it that way. Yeah, okay.

0:21:31 Andrew: So all of that yeah

0:21:31 Thomas: Well, the only problem is we haven't had any shootings to, oh, wait a minute.

0:21:36 Andrew: Well, No.

0:21:37 Thomas: Yeah. One guy gets shot in 1982 or maybe two guys, I guess, technically. And then there's, there's the Brady bill and then, you know, massacres happen one after the other now, and we can't even get a frigging gun control bill. Okay. So third view, we're talking about the law review. We're talking About the late eighties, early nineties kind of thing.

0:21:54 Andrew: Right. So this is So This isn't an argument that's being, that's being raised in the intellectual corridors. And it is a self-consciously, despite some of the extreme rhetoric that's being used in these articles, that extreme rhetoric is a self-conscious reflection of the fact that this is an obvious minority view. It's also, most of the people are doing so, are making these arguments from an originalist or at least a historical perspective, right? So the idea is we're going to try and travel back in time to 1790s and figure out what people at that time thought these particular things meant. And this view, in my estimation, had to overcome four problems, right.

0:22:44 Andrew: So the first was figuring out what a what a militia was. The second was figuring out what it meant for the militia to be well-regulated. The third is figuring out What it meant For a right to be held by the people. And we've kind of talked on all those issues. I, you know, I don't think we need to revisit them. But the fourth one, this is a new one, is they had to get over the problem of incorporation. And yeah, so I've got to explain a new legal concept here. But it goes something like this.

0:22:59 Thomas: Ooh, what's that? At this point, we need to package this into like a master class. And And then, you know, we'll just charge admission.

0:23:19 Andrew: Right. I have long said that my wife, we got married in my first year of law school, I guess because I figured that if she was with me at that point, that she was going to be with me through everything. Thing, but I've long said that she deserves an actual law degree. I remember we used to, when I, when I graduated from law school, I preparing that summer to take the bar exam, and I had all these lessons on audio cassette and so everywhere we would, we drove to the beach, and it was like, well, time to play the, you know, property lesson, and like, memorize the rule against perpetuities and you know

0:23:46 Thomas: Oh, she had to sit through him. I feel like there's a TV show in that. There's a concept for like the wife who actually remembers more than it would be like the yeah, the incompetent lawyer who was studying. But the but the what not not this isn't based on you. But that would be the premise of the show where the the guy actually doesn't know anything, but his wife knows everything from the tapes.

0:23:58 Andrew: Oh my gosh yeah yeah the, uh, the Lionel Hutz from The Simpsons, like, uh, hey, I watched, you know, Matlock was on in the bar last night, I, uh, the sound wasn't on, but I think I got the gist of it, um, yes right.

0:24:19 Thomas: Oh, man. Yeah. Okay. So, new legal concept Right.

0:24:28 Andrew: So the new legal concept here is the, the notion of incorporation, and here's the best way to understand that. If you read the First Amendment, I know, have you ever, ever gotten this question before? Because the First Amendment begins with, Congress shall make no law abridging the freedom of speech, right? And have you ever had somebody say something to you like, well, but we're talking about an Alabama law here. Like, why do I care what Congress does?

0:24:43 Thomas: Oh. Yeah. Yeah. Okay.

0:24:50 Andrew: Right? And the answer is, for a long time, you didn't. For a long time, the Bill of Rights applied only to things that Congress or the federal government did. After the Civil War, and with the passage of the the 14th Amendment, the individual rights provisions of the Bill of Rights were incorporated to the states, right? And so there are a lot of different decisions that basically is the Supreme Court saying, in light of the 14th Amendment, and in light of where we are, when it says Congress shall make no law, it really means Congress or the states shall make no law, right. So that process is called incorporation. And all of our major rights that are protected in the Bill of Rights have been incorporated through to the states by various Supreme Court decisions.

0:25:43 Thomas: Now Is that just a shortcut, like, okay, we could go through the process of state mates makes a law and then it goes to the Supreme Court a million times, a billion, because of everything that could happen, but let's just shortcut that by saying, whoops, this also applies to the states. Oh.

0:25:57 Andrew: No, well, no. I mean, it is to say that prior to the doctrine of incorporation, if Alabama wanted to, in 1835, wanted to pass a law prohibiting the publication of atheist literature in the state of Alabama, right? Something that very clearly violate the First Amendment. And Alabama did not have a state equivalent of the First Amendment, and that I don't know whether that's the case or not. Then the answer would be, yeah, no, you're just screwed. If you live in Alabama, like too bad, move somewhere else.

0:25:59 Thomas: Okay. Mm-hmm.

0:26:26 Thomas: They Actually Could Oh. Okay. Okay. Got it, okay.

0:26:32 Andrew: It really did, it only, it says Congress shall pass no law, shall make no law. And it really meant Congress shall make no law didn't say anything about the Alabama state legislature. So too bad. So the doctrine of incorporation says no, no, regardless of the Alabama State Constitution, and I'm sorry to be picking on Alabama here for all of your Alabama based listeners.

0:26:51 Thomas: It Was An accurate, uh, hypothetical, okay.

0:26:57 Andrew: So So the incorporation doctrine says regardless of what the Alabama state constitution says, if the Alabama legislature passes a law that would otherwise violate the First Amendment, it violates the First Amendment, and you have a constitutional claim, even if it's not an act of Congress. Make sense?

0:27:14 Thomas: And Sorry. If you already said this, but when Was this, uh, that, that it, that the incorporation thing happened, okay.

0:27:16 Andrew: Yeah. It began happening post-Civil War. Okay?

0:27:24 Thomas: No.

0:27:24 Andrew: There are a long series of cases for various different rights. But essentially, you had to bring a lawsuit and your lawyer had to argue, hey, this provision has not been incorporated to the states and it should be. And they viewed those on a case-by-case basis. And me, you don't want me to go into the history

0:27:43 Thomas: That's Okay, yeah, I get, I was just curious.

0:27:44 Andrew: Of debates over incorporation, but there were debates. It was not a slam dunk that it should be incorporated at the time. Now it's considered a slam duck. And so now nobody would argue, except somebody who's illiterate about the law, nobody would say, oh, it says Congress, so therefore it doesn't count. I mean, that's an argument that's on a par with the morons who say, well, you know, it doesn't say separation of church and state in the First Amendment. So, you Know that.

0:27:44 Thomas: Yeah. Okay. Yeah. Yeah. Point Me to Where it says that in The Constitution. I

0:28:13 Andrew: Right. Right, right. Well, you, know, that that's great, but that's not how law works. And it that is, I mean obviously on a personal level, but it's frustrating because there is an organization, it is called the American Center for Law and Justice, that is a kind of a fake ACLU copycat organization. I think it's funded by Pat Robertson, but it's funded by one of these right-wing preacher types, and they staff lawyers and those people know better. They know they are lying about what the law requires, and they file ridiculous amicus briefs that express the opinion that, oh, it doesn't say separation of church and state, so that doesn't exist, so

0:28:18 Thomas: Think There should Okay, if we make, if we, if there's ever a law passed to limit those somehow, it should be called the Air Bud Law, just because it's the, well, there's no rule that says a dog can't play basketball. Let's just call it that. So where were we before I keep rabbit holing?

0:29:15 Andrew: That's excellent. Anyway. So So That's Incorporation, right?

0:29:18 Thomas: Okay. Can

0:29:18 Andrew: Makes sense, um, Now you probably see where this was going. There were two separate efforts by petitioners to incorporate the Second Amendment to the states. Those cases are United States versus Cruikshank and Presser versus Illinois, 1875, 1885. And in both cases, the Supreme Court said no. And in fact, until Heller, was no incorporation of the Second Amendment to the states.

0:29:47 Thomas: I make sure I understand? So when you say the Supreme Court said no, there were two, uh-oh. Is that your law dog that's letting you you know, yeah, oh, geez, yeah.

0:29:49 Andrew: Yep. Sorry. Fourth of July. So my puppy's a little agitated.

0:30:01 Thomas: Fourth of July starts on the, like, first of July, somehow. There's been fireworks straight this whole weekend, and I don't have dogs, but I have cats, so, so when you said there were cases before, now this is not Heller, Miller, was it? It? Miller. It's like Heller, but not. Okay. Pre-Miller, there were cases, I'm not sure I understood the details of what you meant, that were saying, what were they saying?

0:30:09 Andrew: My puppy Pre-Miller, right.

0:30:26 Thomas: So there wasn't incorporation yet for the Second Amendment.

0:30:26 Andrew: What they were saying is, right, the cases were saying the Second Amendment should be incorporated through to the states. That is, that it should apply state

0:30:36 Thomas: So there were laws that were, there must have been, laws that we're restricting something that we'RE bringing these up. Okay, it's

0:30:42 Andrew: Laws that restricted gun ownership in some way, right? Right.

0:30:46 Thomas: Interesting to think what those would be in like the 1800s, you know, late 1800s, early 1900s. Is it more sawed-off shotgun stuff or or different things or Do you not Know

0:30:53 Andrew: Yeah. Well, keep in mind, 1875 is right about the time when you first started having repeating rifles, right? So kind of the transition from single shot weapons to multiple shot, you know, sort of quick action.

0:30:54 Thomas: Oh Okay So Even back then there might have been Eli's who were like, look, this, shouldn't we Shouldn't have This, huh.

0:31:15 Andrew: Yeah. Yeah, no, I mean, again, we don't have that in the record, but I'm sure that they were realized back then saying, Yeah, look, like when you load the ball into the musket, like that's very, very different from just pulling a trigger and sliding this bolt and, you know, pulling the trigger. And, you Know, that was a massive, changed, you Know, sort of pre-World War I, you had the massive change from how people used right? So anyway, I have to say that's speculation. I don't know the specific laws.

0:31:19 Thomas: Yeah Interesting Okay Yeah Yeah No I Understand you're Not, look, you know, like 98% of things you don't know, all things, there's a 2% of things you don't know. I get it, huh.

0:31:59 Andrew: Anyway, so two separate lawsuits, two different times that say, hey, just like Congress shall make no law abridging the freedom of speech applies to Alabama state laws and every state laws. Laws. Similarly, the Second Amendment ought to apply to prohibit state laws that would otherwise run afoul of its provisions, right? And the Supreme Court said no. The Supreme Court said, no, this is not, we're not going to incorporate this to the states. There's not, I don't want to be misleading and say they said there is no individual right to own, you know, to keep and bear arms. Okay, there's not a statement that's quite that that clear. But nevertheless, it's a very, very difficult argument for the individual rights proponent to overcome.

0:32:47 Andrew: It certainly was in the 1980s and 1990s that the Supreme Court seemed to treat the Second Amendment differently than it treated other individual rights provisions in the Bill of Rights. That's kind of the significance of it. The punchline is, of course, in the the post-Heller period, the same 5-4 majority that decided Heller decided a 2010 case called McDonald that explicitly incorporated the Second Amendment to the states. But again,

0:33:17 Thomas: It Didn't Wow, it didn't get incorporated until till then?

0:33:19 Andrew: 2010. Prior to 2010, you had a total ban on guns in Vermont, and Vermont is A bad example

0:33:29 Thomas: Bad example. Yeah, I was going to say.

0:33:30 Andrew: A liberal state, it's a pro-gun Ownership, you had a total ban on guns in California, Californian has no equivalent of the Second Amendment of the Constitution, and I'm saying that as a hypothetical, I don't know, I haven't looked, uh, I say, in fact, I I Suspect

0:33:31 Thomas: Yeah. Oh, because they could have it in the state constitution. I don't know anything about state constitutions. I really don't.

0:33:44 Andrew: Yeah I suspect That Californians I Expect That Californa probably has a a something Similar to the Second Second Amendment.

0:33:54 Thomas: Hmm. That's interesting. So, but I would almost say that, I mean, even though the anti-gun side would probably, I guess, have been the ones against incorporation, I would kind of say they're wrong, right? Like it, it should be incorporated. Whatever it means, it seems like it should be incorporated unless I'm totally, uh, wrong on that for some legal reason, but

0:34:18 Andrew: I totally agree with you. I mean, I do. And it's why I would not make the argument on the basis that the Second Amendment shouldn't be incorporated to the states. But I think that it is an important historical datum that the Supreme Court treated it very differently, right? They did not treat Second amendment the way they treated other amendments that very clearly protected important individual rights, if that makes sense.

0:34:19 Thomas: Okay. Yeah. Yeah, sure. Okay. Yeah?

0:34:48 Andrew: Yeah. Now, you know, now it's incorporated into the states. So that debate, that debate is over today. But the significance is the debate wasn't over at the time that Heller was decided, right? Heller was 2008. McDonald was 2010. Heller involved the D.C. gun ban, and as a federal enclave, different rules apply to laws passed in the District of Columbia than apply to law passed by state legislatures. Right.

0:34:52 Thomas: Yeah. Oh geez.

0:35:19 Andrew: I could go into all the why, but like, I'm sure you don't care about that.

0:35:22 Thomas: Well, yeah, I, I don't totally know much about it, but okay. So, it's different. DC is different than the states.

0:35:29 Andrew: The DC does not have, do not have complete local autonomy, right? They have what's called home rules. So they can do some things for themselves, but by and large the federal government can still overrule whatever happens in DC. And there are a great many aspects of the budget and other self-governance that those are not powers, right? That's why there is a DC statehood movement. And it, you know, sort of continues to be a political issue. Well, and you think about it, I mean, the District of Columbia is one of the most liberal areas in the the country. And so when you have a conservative Congress, right, you have this massive tension between, you know, the laws that are passed by Congress regulating the District of Columbia versus the lawsthat D.C. residents want to pass to regulate themselves.

0:35:30 Thomas: Yeah, that's weird.

0:36:20 Thomas: Yeah. Interesting.

0:36:21 Andrew: So anyway, so all of that is just to say that the fact that Heller was a D.C. case meant that there was potentially some argument at the time based on this incorporation doctrine. But again, that was sort of breezed over, um,

0:36:35 Thomas: Yeah! So, wait. How does that work? So, in 2008, or I think you've said seven and eight. Did it just cross over years or when

0:36:36 Andrew: I said 2007, because that's when the circuit court of the D.C. circuit court of appeals ruled against the D.C.

0:36:44 Thomas: It was raised or something? Oh, okay. Gotcha. I

0:36:50 Andrew: Gun ban that was, no, no, because

0:36:51 Thomas: Guessed you had some very intelligent reason for that. I wasn't saying you were making a mistake. So, uh, in that, in 2007, I guess then would be the Supreme Court decision, right? Right. Okay. In 2008, though, couldn't all the justices have said, oh, wait, we just know that we've been going back through the paperwork. We've just noticed Second Amendment is not incorporated. So, oh. But because it's D.C., there's a different rule.

0:37:15 Andrew: It's a federal enclave, the question of incorporation doesn't apply, right? There you go. I

0:37:16 Thomas: Ah. Okay, geez. What a weird. So is that why it took a case in D. C. for this to happen? Were there others where they didn't look at it or?

0:37:27 Andrew: I think that's why, strategically, the D.C. case came first, because that way you only had to deal, they were, They wanted the side that had been agitating since the 1980s for the individual rights approach, knew that they had five votes on the court, and they wanted a case that very cleanly resolved the individual rights versus the, what we call the middle way, the sort of collective right approach. And so they picked, D.C. was a very good test case for them because the law was exceedingly, you know, was very expansive, right? It essentially prohibits all handgun ownership in the District of Columbia, you know, private handgun ownership in District of Columbia. There are lots of other provisions, some of which were struck down by Heller and some of which weren't. So it was a good test case. You didn't have the incorporation problem and you had a law that was pretty extreme in in its application.

0:37:31 Thomas: Okay. Because lawyers are damn smart and they know what they're doing. Wait.

0:38:29 Andrew: The counter, I mean the point that I hope has kind of run through all of this discussion is that law was on the books for 30 plus years, right? Nobody thought, so you want to go back to the notion that the the handgun ban in the District of Columbia.

0:38:41 Thomas: The gun the the handgun ban was Oh. So, they're just waiting for the right time to

0:38:45 Andrew: Right. So, you know, if you think about, again, you know, kind of go back to predictability, right? Like, if this doctrine were true, right, it should have been true in 1975. Right? But it clearly wasn't because the court in 1975 would have said, well, they would have declined to have taken the case, right. Which is exactly what they did with all those other cases. And so, you know, when you radically change the expectation that people have in the District of Columbia on the basis of a Supreme Court opinion. To me, that's as strong a case of judicial activism as anything I can think of.

0:38:48 Thomas: Yeah. Yeah. Yeah. Wow.

0:39:24 Andrew: Right. I mean, it absolutely is. And that's sort of the punchline from all of these Scalia episodes. So

0:39:33 Thomas: And, it's a good one too, because he's so, the Republicans think like, oh, end this judicial activism, we can't have, you know, but it's, I've been very convinced by you that that is, it's so hypocritical because what he's doing, like you said, I mean, you can't predict, well, he's dead, but you couldn't predict what he was going to do, really. I mean, it was impossible to know because he was gonna somehow use his special brain to intuit what they meant back in the day and in the 1700s with these specific wordings they were using and stuff like that, you know.

0:40:07 Andrew: Of the last thing, like having gone through, okay, Heller is terrible and unprecedented. Is there hope on the horizon? And I think there is. And this was the like tweet that I tweeted out to Eli that he was like, I understand all the words that include my name, but none of the others. Issues. Since Heller, there have been three cases that are all, that are, there've been no cases on analyzing the second amendment, but there've been three cases. That give us some guidance as to what the Supreme court understands Heller to be 2010 was the McDonald case that we talked about. That's the incorporation case. That was the same five to four lineup, right? So you can just think of that as an extension of Heller.

0:40:52 Andrew: But since then the only two cases they've looked at the first have come out this year. And the first is a case called Caetano, C-A-E-T-A‑N-O. And it involves a Massachusetts law that prohibited, among other things, the possession of stun guns.

0:41:14 Andrew: And there, the Supreme Court issued a per curiam opinion. And a per curiam opinion is a really, really weird device. It basically is an unsigned opinion of the majority. They are typically very, very brief and it's a device that the Supreme Court often wants to use when they want their case to have little to no precedential value, right? So Bush v. Gore, for example, is a per curiam opinion. It's also an incredibly strange per curiam opinion. I should like I should, I should say, I mean for the one listener who doesn't know this, right, like that was the 2000 Supreme Court decision that cut off the Florida recount and awarded the presidency to George W. Bush, and it was a case that was decided on party lines and and most importantly, the case was, you know, was a per curiam opinion. Nobody cites Bush v. Gore in any election cases, because everybody kind of recognizes like, well, the Supreme Court just sort of went and did this thing, and they did it

0:41:49 Thomas: Oh, a later date. Yeah.

0:42:08 Thomas: What do you know?

0:42:23 Thomas: Yeah,

0:42:23 Andrew: For political reasons.

0:42:23 Thomas: It's like they want It's like they want to say, yeah, this is what's happening because we said so, but don't ask us again about it. Yeah.

0:42:28 Andrew: Yeah, it doesn't count. And so the, and

0:42:33 Thomas: This ruling will self-destruct in five seconds.

0:42:33 Andrew: I should say, right, like, there are lots of things to criticize about how Gore's legal team litigated that case. So I am not, and I am, I am NOT endorsing any kind of conspiracy theory.

0:42:47 Thomas: I was too young to know anything about this, and I would be very interested at a later date in learning more about it, I don't know if that's something you're an expert on, or you might be, but but that's interesting.

0:42:59 Andrew: I was, I was a young associate at Covington and Burling at the time, so I was invited to work on the Bush side of the case. My, my, you don't really have a boss in a big law firm, you have whoever the senior partner is, for the case that you're on. Uh, but a senior partner that I worked very closely with named Bobby Birchfield uh was well connected with the um uh with the Bush legal team, uh, so invited me to come down to Florida and help them uh litigate the case, and I polite, I politely declined, So. So yeah, uh, I could, uh, I'm happy I'm not gonna talk about that. I, I was, I was right there on the, the, on

0:43:06 Thomas: Oh, wow. Hmm. Oh so you know something about it. Wow.

0:43:40 Andrew: The supply lines, if not the front lines. It was the, I mean, if you want a five second summary, it, yeah, I would say that the, it was mystifying to all of us at Covington and Burling, whether we supported Gore as I did, or whether you supported Bush as a lot of the people I was working with did, why the Gore team did not just call for a statewide recount. I don't know that That would have won, given the very partisan nature of the courts who considered the cases, but it would have put a much stronger position.

0:43:41 Thomas: Yeah. I feel like it'll be five minutes, but yes, go.

0:44:17 Andrew: Now, the downside is he didn't know, you know, that the result of the statewide recount would have resulted in him winning. So, you, yeah, that's because recounting was stopped.

0:44:20 Thomas: What the results would be. Yeah, Wait. What did if I thought, I thought Bush won by like 600 votes or something, or they didn't do a a recount Oh,

0:44:33 Andrew: Yeah, they didn't do. So what happened was the Bush team sued to stop the recount. They said, look, the Florida Secretary of State, Republican Catherine Harris, who was later gerrymandered into a safe district and given a congressional seat in exchange for this, certified the results. It's over. There's no recount. Stop it. The Gore team said, no, no no, we've got four counties that have massive problems, the whole hanging chads and everything, so we want a recount in those four counties.

0:44:33 Thomas: Oh, Man, Okay. We gotta do We gotta do episodes about this, this is, that's really interesting, but we gotta push it off. Let's, we're on the home stretch.

0:45:03 Andrew: Yeah. All right. Anyway, so Caetano, I don't want to say Cayetana, was a Bush v. Gore case. I will say it's a short per curiam opinion, and the only argument that the court addresses in in it is that the Massachusetts General was arguing that stun guns were not a weapon that was in use at the time of the passage of the Second Amendment, and therefore, it was OK to ban it. And so the Caetano Court per curiam said, with dissent, mind you, but said, yeah, you know what? We're going to reject that argument. It's OK to have a stun gun. This overreaches. That's not a huge ringing endorsement of Heller, right? The other case that I think has real implications for this is a case called VOISINE, V-O-I-S-I N-E, and it was decided just last week. And it's a weird seven to two case in which the dissent is Clarence Thomas and Sonia Sotomayor, who are about as unlikely

0:45:32 Thomas: Huh. Oh, Oh, is

0:46:08 Andrew: A couple.

0:46:08 Thomas: This The yeah. Yeah, Yeah, the domestic abuse thing.

0:46:08 Andrew: Yeah, exactly. And so here's what that case was about. That is not a Second Amendment case. Okay. It was a case involving the federal act, which is 18 U.S.C. 922 subsection G9, for those people who want to look things up, that says, the previous federal law said, if you're a convicted felon, you can't buy guns. Right? Pretty straightforward.

0:46:12 Thomas: Yeah. Hmm, okay. Yeah.

0:46:40 Andrew: That, by the way, is constitutional, or at least everyone agrees that it's constitutional. Again, we've talked about there's, you know, no case law. But there was considered a loophole that you could be convicted of a misdemeanor that is nevertheless a violent offense, and you would still be allowed to buy guns. And so Congress amended with subsection G9 and said, if you are convicted of of a misdemeanor crime of domestic violence, you also fall within the felony gun ban. And in Maine, there was a guy who was convicted of assaulting his girlfriend and also killing a bald eagle, which, as far as I can tell, has nothing to do with the case, but is just so weird that I had to mention

0:46:44 Thomas: I think You lose your rights when you kill a bald egg I mean, that, that is, you lose all rights. I

0:47:26 Andrew: It. Yeah, you're Right. Right. Voisine case was questioning whether he was properly, whether under that application of the Maine statute for domestic violence, he was properly excluded from purchasing a gun. And the seven justice, I guess six justice, majority, I'm subtracting backwards, but six to to right, so the sixth justice majority said, yep, uh, and the Thomas dissent goes through this huge, like, labored hypothetical about, um, how you could be convicted of domestic assault, uh, without ever exercising violence yourself, and and he talks about, like, if you're driving and texting and you you crash the car, and your wife has to go to the hospital. It's just, it's bizarre, frankly. It's kind of weird to me that Sotomayor joined in that part of the opinion.

0:47:48 Thomas: Right, yeah.

0:48:23 Thomas: It is Weird, she had something like a throwing a plate or something, right? Wasn't that her? Yeah, hmm.

0:48:23 Andrew: But yeah. A portion of the opinion, right? So the majority does not mention the Second Amendment, the Thomas dissent talking about the Maine statute, so it's sections A, B, and C, or whatever, doesn't mention the Second Amendment, but then there's a section that does that says, oh, and by the way, in light of DC versus Heller, um, it's pretty clear that, uh, you cannot, since individuals have an, have a right to keep and bear arms, uh, that that extends, and you cannot take that away simply to somebody who's convicted of a misdemeanor, even if it's a misdemeanor crime of violence. And that got Thomas's vote, but got zero support. And Sotomayor explicitly did not join in that section of Thomas's dissent.

0:49:16 Andrew: And neither did any of the conservative justices who voted to affirm. So Roberts and Alito let that go. And so to me, that illustrates at least some possibility that, look, I don't expect Roberts or Alito. And I certainly do not expect Thomas to ever vote for overturning Heller. But I do think that there's a question about whether there's a sense on the court of, boy, this is a hill that we want to fight and die on. Or, yeah, I'm still going to dissent, but the winds of the thought process in those meeting rooms changes.

0:50:03 Andrew: And again, I don't want to read too much into a non-Second Amendment case and the lack of joining into a dissent. So optimism could be misplaced. But it strikes me that we are moving into a place with respect to the Court's refusal to extend the Hobby Lobby decision, and with respect to the Voicing case, where there's kind of a, this, you could read it as the Supreme Court looking back and at the, uh, at the, yeah, at the at the state of the, you know, uh, Robert's Court with Scalia on it and saying, yeah, maybe we went too far, maybe this

0:50:14 Thomas: The age of Scalia, yeah, yeah,

0:50:51 Andrew: This, this is, this is a little bit, bit of an overreach.

0:50:53 Thomas: Or if they're like Look, Scalia was just an asshole, he's just on us all the time, we're just, yeah, we just made him happy happy,

0:50:57 Andrew: That's clearly, it's clearly true, right? Like it, it, one of the things, I mean, we, we debated in episode one about, you know, is Scalia a mad genius or is he, you know, and, and one, and I'm, I'm still on the, you know, genius side. One of the enduring aspects of, you know, what he did on the court was, I mean, he, he just had this like really forceful bulldog personality and, you you know, I mean, sort of an analog to the Overton window, right? Like, I mean, he just moved, you know the entire, uh, you know, defensive line along with him whenever he charged forward. Um, and he did that non-stop for, you know, 25 years. Um, And I,

0:51:07 Thomas: I still don't

0:51:38 Andrew: I think,

0:51:39 Thomas: Think that makes him a genius, I think it makes him a very committed asshole, we'll see, yeah, no, I see what you mean, though, I mean, there is some, a little bit of a glimmer of hope there, that maybe it's like, hey, just if somebody wants to bring up a case that, you know, maybe gets, could reverse the DC Heller, like, we might, you you know, we might do that.

0:51:42 Andrew: I don't think those things are mutually exclusive.

0:52:05 Andrew: Not the first person to mention this. It's hit a lot of the legal commentators and news commentators, but I mentioned at the time reading the Texas abortion decisions that it was notable that Justice Kennedy outright joined the majority, right? It was not, I mean, usually, you know, since the Planned Parenthood versus Casey decision, which I think was 95, usually he's been sort of back and forth and sort of, you very self-consciously right down the middle. And he was sort of full-throatedly with the 5-3 majority in that case. And I think it was Jeffrey Toobin, who's a good Supreme Court legal analyst, I think, who said this might signal Kennedy sort of rethinking, thinking, like, which way is this court going? And do I want to spend my last 10, 20 years on this court bitterly writing dissents? Or do I have the opportunity to sort of shape the majority?

0:52:25 Thomas: Oh, yeah. Yeah.

0:53:13 Thomas: Like, have a good legacy in that. Yeah,

0:53:15 Andrew: Yeah.

0:53:15 Thomas: Interesting.

0:53:17 Andrew: The Supreme Court, I clerked for the state Supreme Court in Maryland, which is called the Court of Appeals. It's kind of confusing. And the judge that I clerked for, for Larry Rudowsky was very, very conservative. And he would often hire sort of token liberals to come in and keep him honest. And he was super respectful when I was a baby lawyer just out of law school, and I knew almost nothing. I knew nothing on a practical level. Everything I knew was sort of theoretical and educational. And he'd entertain arguments in his chambers uh for hours uh and then you know and then tell me to go write the damn opinion but but he was super respectful of that and uh and he told me his personal opinion on dissents was that um he said, "I don't write a dissent unless I can taste the bile in the back of my throat." If I can swallow it down, I

0:54:18 Thomas: And that's, is that because you're assuming the course of, society is going in whatever direction the decision is going, and you don't want to be looked at as the guy who who dissented the Civil Rights Act or something like that. Is that what he's getting at, kind of?

0:54:32 Andrew: Think it was much more a respect for the other judges who were on the bench. And I think that the thought process was, I might really, really strongly disagree with this, but when I read a dissent, I'm saying you're an idiot and you're wrong. And um, and I'm not comfortable saying that you're wrong unless right, I can taste how wrong you are. Uh, and I always, I always thought that was an, that was interesting. Uh, an interesting outlook on on things, so

0:54:39 Thomas: Okay. Yeah.

0:55:04 Thomas: Yeah, that is. Well, man, what a marathon session. I think we did it, though. I think we got through your lesson plan of the Second Amendment, right? Pretty much. All right. Well.

0:55:08 Andrew: Right. Yeah no I I think we hit the landscape and hopefully uh go go ahead

0:55:20 Thomas: So, then. Yeah? I was going to say, the only to be continued. We didn't leave any to be continued Second Amendment wise, I don't think, which is good. We finally, well, you know, if something comes up, certainly we can talk about it. But I think we pretty much for once, the first time ever, and it's because this is 155 minutes of recording. It's we got through it. But the thing, the if there is a future, if you've got more in you, someday I would love to hear more about Bush v. Gore. That's really fascinating. I don't know know anything about it because I was, I was too young. I just kind of didn't really pay attention. So, uh, but I, I had no idea how, how close it really was and, and how it could have gone the other way.

0:55:23 Andrew: Yeah And if I can sort of climb back onto the soapbox for 30 seconds, me, this just, you know, you and I have kind of gone back and forth on, you know, the election and the, you know, Bernie or bust and that sort of thing. But I just, when I talk to people who are, you know, 25 and who didn't live through Bush v. Gore, you know, I tell them, like, you don't remember 2000, but in 2000, we had the the most progressive Democratic nominee in my lifetime in Al Gore, right? Somebody who was a legitimate champion for liberal causes and a true believer to the point where, you know, it cost him his home state of Tennessee. You know, he sort of followed the Lyndon Johnson model of like staking out this, you know, really conservative course politically, you know, when he was a senator.

0:56:11 Thomas: All right.

0:57:01 Andrew: But once he hit the executive office, you know, I mean, he became an unabashed liberal. And there were millions of Ralph Nader, you know, Occupy Seattle protesters who argued and said with a straight face, like, oh, he's just another, you know, corporatist Democrat, and he's no different than George W. Bush. And the Nader voters in Florida, obviously, Nader got tens of thousands of votes in Florida and Gore lost by 500. Gore lost New Hampshire a couple thousand votes and there were 10,000 Nader votes in New Hampshire. And I think there was another state that they would have provided out of the margin.

0:57:48 Andrew: But literally, you know, yeah, look, there's a lot to criticize about the Gore campaign. And, and, and I'd be the first person to do that from a from a strategic campaign management point of view. But, but the view of, oh, well, you know, how much can it hurt to vote for one corporate Republican over a corporate Democrat, I don't care, I'm going to vote for, you know, the Green Party. You know that saddled us with George W. Bush. And there was no way on earth that, you know, Al Gore would have given us the war in Iraq, would have given us the Patriot Act, would've given us, you know, secret prisons, torturing people in Guantanamo. And, and, and yeah,

0:58:26 Thomas: It's really mind blowing. It can't even really, it's a counterfactual that is so, so mind blowing that it's, it's, yeah, I can't, you can't start like how do you, our entire history for the last 15 years or whatever it is, 16 years would be, who knows, like, yeah.

0:58:32 Andrew: I, I read and and Right. Alternate history and the the Bush presidency is like those alternate history of, like, you know, what if Stalin became president of the United like I mean but

0:58:43 Thomas: Right right so What if you killed Hitler as a baby or something. Yeah.

0:58:55 Andrew: It really is like the, you know, it's like someone came up with the, you know, the worst possible scenario and, you know, in the most unlikely manner, and and and yet it happened to us and and in particular, you know, those the the appointment of Roberts and Alito to the Supreme Court during the Bush presidency drastically changed, gave us.

0:59:19 Andrew: And so if you're a Bernie supporter, you hate Hobby Lobby with the passion of 1,000 sons, which I agree. And you hate Citizens United, and I totally agree. And we wouldn't have those cases if George W. Bush hadn't been president from 2001 to 2008.

0:59:07 Thomas: Yeah. Yeah. And That's a result of people voting third party, and so the lesson is vote for Hillary.

0:59:42 Andrew: Yeah, I think it's pretty obvious. Yeah. And I feel strongly enough about it that I interject it randomly into...

0:59:47 Thomas: Yeah. Well, I, no, that's okay. You've given us 150 something minutes of incredible detailed facts about the Second Amendment that I'm, I'm really happy to know now, and I think you earned a little bit of soap boxing, so that's a, quite all right, uh, and yeah Don't hurt yourself, step down lightly lately. Yeah. So thanks so much as always, Andrew. It's really a pleasure to talk to you. I can't tell you how, it's so nice because you really are an expert. You really know your stuff and it's facts about the Second Amendment. I just never would have known. I mean, I've even read a lot about it. I wouldn't have had the perspective that you've given us, and I think it's really really valuable. So thank you so much for taking us through that.

1:00:04 Andrew: Thanks. Thanks. I'll step down now.

1:00:39 Andrew: Well, I appreciate the kind words. I love being on the show. And, and I was not kidding in the compliments on your growing legal acumen. Like you, you, you really do ask the right kinds of questions to sort of, you know, push us down where we need to go. So I mean, I don't know that we would have talked about, you know, necessarily the incorporation doctrine as much as we did, you know, but for you, you know, you're kind of asking, you know, that question in the right way, uh, now You can you can I mean

1:01:08 Thomas: Yeah. So you can thank me guys for the riveting 45 minutes of incorporation doctrine.

1:01:15 Andrew: I have tried to make, you know, a course in constitutional jurisprudence as interesting as I can possibly think to make it. But I admit that. No, no, no. There's always.

1:01:26 Thomas: No, it's great. I'm joking. Thank you for the compliment. I think you teed me up for the questions pretty easily, but thank you for saying that. And I think we got to cut it off. We'll be back at a later date if you're willing. It sounds like you are. There's a lot more we could hear about Bush v. Gore and who knows what other issues might come up in the meantime. So thanks for joining me.

1:01:48 Andrew: They seem to be coming up with some frequency in our community. Thanks

1:01:51 Thomas: What's that? Yeah, true, true. Thanks for joining us and we'll talk to you again soon.

1:01:56 Andrew: A lot, Thomas.

1:02:14 Thomas: Alright, thanks again to Andrew, that was awesome, such, so much amazing content, really. That is my favorite thing about this show and how far I think it has come. The best part is certainly to be able to speak to people who are truly experts and to just learn a lot and get all these different views. It's really cool, so that's what I want to keep doing here and of course, as always, if you want to support that effort, go to patreon.com/atheistically, make a pledge, get early access to the shows and all that good stuff. Alright, thanks so much for listening. I will see you on Thursday.