OA26: Second Amendment Masterclass, Part 2

Transcript

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

0:01:17 Thomas: Hello, and welcome to Opening Arguments. How are you doing, Andrew Torrez?

0:01:22 Andrew: Am fantastic, Thomas. Congratulations again on hitting episode 300 on Atheistically Speaking.

0:01:28 Thomas: Thank you so much. Congratulations to us on hitting episode 26, which, by the way, you just heard a new intro, audience. I hope you liked the new intro quotes. And by the, way, to tie into something else we need to talk about, Patrons, $2 and up patrons, heard the new intro first on the Law'd Awful Movies that came out. Thank you guys for the overwhelming response to that. I'm really glad that so many people were interested in that. Lots of people pledged. It's really cool. It's two and a half hours long. It was plenty of extra content and it's even extra legal knowledge that while we were poking jokes, Andrew also got to correct some misconceptions about the law over the course of the movie. And it was really fun. So I'd still encourage you to go over to patreon.com/law and check out that Law'd Awful Movies.

0:02:19 Thomas: Lots of extra content for you. Oh, so much to talk about. Also, we hit a new goal, Andrew. I'll pretend there's some sound effect for that. Ding, ding, ding. I don't know. We hit a goal for t-shirts and the t- shirts are going to be the logo of the show. And then on the back, are we telling people what they are? Should we reveal it? On the back, It's going to to be the oft quoted, the oft said quote from Andrew Torrez, "Don't take legal advice from a podcast." So that's a little, there'll be a fun little inside joke and it'll be a way for you to show that you support the show and that you're a fan.

And so those shirts will be going to our top 20 patrons. We've already figured that out. So that's another reason to be a patron over at patreon.com/law. I hope our top patrons enjoy that gift from us to them, the gift of a shirt. I hope they enjoy it. It'll be great. We're going to also a way for listeners who want a shirt to buy a shirt in addition to the ones we're giving out. It's kind of a test run. We're doing a short limited run at first to gauge interest.

0:02:29 Andrew: Yeah, let's reveal it.

0:03:25 Thomas: And if a lot of people are interested, we'll make more and there'll be more people with cool Opening Arguments shirts on out there. All right. So thanks for sitting through all those announcements. Let's get to our awesome content for the day. This is going to be a long episode because we've got a new segment to introduce at the end of the show. You're going to love it. I promise you're gonna love this segment, I love it already, but for now, let's get to breaking down the law.

0:03:52 Clip: The law breaking down

0:03:59 Thomas: Right, Andrew, here's my really thoughtful introduction to this segment, uh, stare decisis was something we've talked about before, and activist judges, break it down for us, right?

0:04:10 Andrew: Sure. Um, so one of the things that, uh, I have said frequently on this podcast that has gotten some, uh, legal questions, uh, from listeners is, is I have claimed that Antonin Scalia is the most activist judge to sit on the Supreme Court in the modern era. I stand by that statement. And the question is, what do I mean by that? And the reason I've deliberately said most activist, Judge, because that's a phrase that has a specific meaning for lawyers, but I think has really been hijacked by by both lawyers who are politicians, like my old buddy Ted Cruz, and by, you know, the sort of the conservative legal movement generally and political movement generally, where activist has become a synonym for any judge that does not subscribe to a very narrow form of originalist interpretation. That's not what it should mean, right? So let's take a step back. What's the criticism of a judge is an activist judge, what's that rooted in,

0:04:25 Thomas: It.

0:05:13 Thomas: Would be rooted, wouldn't it be rooted in like an an overreach of power of the judicial branch which should really belong to, what, the legislative branch or something? So it's the idea, I think that's what it's rooted in usually, right? That they shouldn't have the power to be having that much influence over laws. They should just be sort of enforcing and interpreting, right?

0:05:34 Andrew: That's exactly right, right. It's a separation of powers argument that says, if a judge is an activists judge, it means he doesn't care what the law says. He just wants to make a new law and it's kind of untethered to the text, right. But one of the things we've learned, sort of left or right, is that just reading the text of the law doesn't answer the question a lot of the times, right? Because the law can say X, Y, or Z, and those phrases might be vague or ambiguous. It might say, it might omit a particular requirement.

I mean, think back to, you know, our discussion on Hillary Clinton's emails. The statute doesn't say this requires intent, but the way it's been interpreted since the law was passed is that it requires intent, right? So if you just read the plain words, that doesn't exactly tell you what the law is, right? An additional check there because judicial opinions are public. So if the court gets it wrong, Congress can always come back in interpreting a law. Congress can always comeback and change the law. So a really, really good illustration of that, we have talked about, we've not done an episode on RFRA and its

0:05:48 Thomas: Yeah. Hmm. Yeah,

0:06:54 Andrew: Related cases.

0:06:54 Thomas: We need to, geez.

0:06:55 Andrew: Absolutely a topic for another show. We have talking about Employment Division versus Smith, which was was the 1990 peyote case, and how, as a result of the Supreme Court's interpretation, the legislature turned around and passed the Religious Freedom Restoration Act, right? Because the Supreme Court was interpreting various laws, and so the Congress said, "Hey, if this is a question of how you're interpreting laws, we want you to interpret the laws this way going forward," right? So, and and And shockingly, right.

0:06:57 Thomas: Yeah.

0:07:28 Thomas: And that's fine, right? That's, that's a normal,

0:07:30 Andrew: Yeah, that's that's the way it's supposed to work. Right. And shockedly, Smith was also a Scalia decision. Right? So you put all of that together. And I would say, if you're a judge looking to interpret the law, what you want to look to is the notion of stare decisis, which is to say that if there is established precedent on a particular matter in a previous case, then you follow that precedent. That precedent has the weight of law as in interpreting the statute. And you only deviate from that if there's sort of a crisis point where you realize that, no, no. This is just sort of manifestly unjust. We made a mistake and we've got to go back and change it. And we've talked about a couple of those sort of inflection points where, Brown versus Board of Education overturning Plessy v.

0:07:30 Thomas: Yeah. Right. Hmm, hmm.

0:08:22 Andrew: Ferguson from 50 years earlier. Plessy v. Ferguson said it's OK to have racially discriminated schools and Brown versus Board of Education saying separate is inherently unequal. So we overrule Plessy v. Ferguson. The reason that lawyers know cases like those is because they're incredibly rare. Right. The idea is once the Supreme Court has ruled on a particular matter, that's binding and operative on the Supreme court going forward. And that, in my mind, far more so than the originalist argument about reading the text and all that garbage is what constrains the power of judges. Right.

So, in other words, we're going to discuss in the main segment of this episode, when it comes to things like gun control in the late 2000s, we had a 200-year history in which there was never any analysis at the Supreme Court level that looked at laws restricting or curtailing gun ownership, or otherwise infringing on what some might claim would be their rights to own or carry weapons in the context of an absolute individual right against the government that is inviolate, right? All of the jurisprudence, which, you is manifest in one Supreme Court case, as you know. Yeah, Miller v.

0:09:44 Thomas: Yeah Miller, what is it? The,

0:09:48 Andrew: U.S., right? 1939. All of that jurisprudence, though, is with a means of interpreting the Second Amendment that in 2008, Justice Scalia just sort of threw out and disregarded because he didn't care about the previous case precedent. He only cared about his unique brand of interpreting statutes and constitutional provisions, which requires you to put yourself in the mindset of long dead legislators or founding. And my argument is, and until somebody convinces me otherwise, which seems pretty unlikely, will continue to be that that thought exercise gives judges far more power than what your average judge has now under the ordinary stare decisis method, which is to say you are constrained by what the court did in a previous case.

0:09:48 Thomas: Okay, yeah. Yeah

0:10:45 Andrew: Um, and the fact that that constraint is what really establishes the rule of law, because when the Supreme Court decides a case, every court under it is then compelled to follow that until the Supreme Court decides differently. And if the Supreme Court is sort of constantly blowing in the wind, then those lower courts have no guidance. Then you really do have the scenario that, in my mind, is what the Ted Cruz's of the world are sort of using as a boogeyman, right? Right. That that, you know, particular liberal judges are just making stuff up and making the law. That's the core. You defined it really, really well. What, what constrains liberal judges from just making staff up is a respect for precedent and respect for president is what we mean when we say stare decisis.

0:10:45 Thomas: Yeah.

0:11:33 Thomas: Wow, yeah, I mean, I'm convinced. But yeah, no, it makes sense. I mean it's so much easier to just decide what a 200 plus year old document means, you know, and what they really meant behind it, then it is to totally go against, it sounds like, totally go against the precedent that's been set from, you all that time forward in different court cases and what's been decided. So, yeah, interesting.

0:11:58 Andrew: Right. Right. And, and I would add, look, you can find examples of liberal judicial activism, particularly on the Warren Court in the 1970s, and I can point to some areas where, where the court went too far and, uh, and really would be guilty of this criticism. And the biggest area is, um, in the Eighth Amendment. We haven't done the Eighth Amendment. That's a topic for another show, show.

0:12:15 Thomas: Hmm. Oh, this would be, yeah. It would be a good one for another show. Like, where has the liberal court gone too far? Yeah.

0:12:26 Andrew: Oh, two good topics for another show. But so the Eighth Amendment prohibits cruel and unusual punishment. In the 1970s, for a very brief time, the Supreme Court had a sufficient liberal majority that ruled that capital punishment was cruel and unusual punishment and was forbidden by the Eighth Amendment. Almost immediately thereafter, the court reversed course. And so you really had the kind of uncertainty that I'm talking about, right? Like the saying in 1972, I believe, capital punishment violates the Eighth amendment and therefore is prohibited, states can't impose And then just a couple of years later saying, no, it doesn't. And reversing and backtracking. And if you think, you know, as a state legislature, it's difficult to take guidance from the Supreme Court.

0:12:48 Thomas: Hmm. Hmm. Yeah. I mean, there are lots of executioners that were just like, do I do, do I do it? Is it, am I good? Is that okay?

0:13:18 Andrew: Yeah. Right. Yeah, jobs program. Grant. But no. And so, you know, even though, I mean, I am pretty much an opponent of capital punishment. I think that the utilitarian arguments against it are very, very persuasive, even if you're not persuaded by the, the moral side constraint arguments. I, in looking I would not want that battle over capital punishment to be waged in the Supreme Court where, you know, every time we get a Democratic appointee, capital punishment becomes illegal.

0:13:53 Andrew: And every time that's not the role of the courts. And think that it can be, the notion of judicial activism can be a valid criticism. It can be validly directed at efforts to use the court for social change, particularly in the 1970s. But it is absolutely misdirected and misguided when lobbed by the conservative right against mainstream judges, in particular against the Obama Supreme Court appointees who are just manifestly not activist judges.

0:13:23 Thomas: Yeah. Right. Yeah, true. Hmm.

0:14:29 Andrew: I mean, that, you know, you will you will not find someone with more respect for precedent than Elena Kagan, for example.

0:14:36 Thomas: Wow. Yeah All right. Good stuff. Thanks for taking us through that. Let's get over to our main topic for the day. Our main segment of today is to play part two of the Second Amendment Masterclass that was featured back on Atheistically Speaking some time ago. This part begins with us talking about... The future of gun control in the Supreme Court, and what might be done from there. I hope you enjoy it! Thank you for watching.

0:15:03 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

0:15:10 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

0:15:45 Thomas: Yeah. Huh.

0:16:36 Thomas: Interesting.

0:16:36 Andrew: The Supreme court to overturn that. That. So, I mean,

0:16:38 Thomas: I didn't know you could do that. I thought it was like, sorry, you're shit out of luck. Oh.

0:16:43 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.

0:17:15 Thomas: Right. That Went 50 Years? Wow. I Had no idea. Recent Innovations So, for 50 years, we weren't providing people with a lawyer if they couldn't afford it.

0:17:47 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?

0:18:00 Thomas: So, poor people were just screwed.

0:18:02 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

0:18:03 Thomas: Wow. Right. Hey, can't

0:18:35 Andrew: Is going the other way

0:18:35 Thomas: Believe it took 50 years, though, for that to, like, seriously, why didn't somebody do that sooner?

0:18:36 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

0:18:54 Thomas: Yeah.

0:19:10 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.

0:19:28 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,

0:19:31 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

0:19:53 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 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,

0:20:06 Thomas: Drinks.

0:20:40 Thomas: Right,

0:20:40 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,

0:20:41 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.

0:20:50 Andrew: Yes.

0:21:03 Andrew: Was the Miller decision United States

0:21:05 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.

0:21:06 Andrew: Versus Miller. Yeah. Right.

0:21:14 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?

0:21:21 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?

0:21:23 Thomas: Oh, okay. Really?

0:21:51 Thomas: At what time? Oh. At the time of the amendment.

0:21:51 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 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 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

0:21:53 Thomas: Okay. Right.

0:22:08 Thomas: Oh, where everyone is technically in it or something? Yeah. Okay?

0:22:33 Thomas: Yeah, to follow

0:23:02 Andrew: Know, follow this dietary law.

0:23:03 Thomas: Some some of those Old Testament rules. Yeah,

0:23:04 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

0:23:05 Thomas: Yeah, yeah.

0:23:24 Thomas: Unfortunately, yes, some of us are still reading that. I don't know why. Let me actually, you know, yeah

0:23:29 Andrew: Us aren't even reading, we're just listening to you reading.

0:23:31 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.

0:23:39 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.

0:24:32 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.

0:24:51 Andrew: Right. Exactly. That's exactly right.

0:25:13 Thomas: Interesting.

0:25:14 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.

0:25:29 Thomas: Yeah.

0:25:52 Thomas: And that's because there's no amendment saying you have the right to drive.

0:25:56 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,

0:26:25 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, uh,

0:26:29 Andrew: Oh. Go ahead, yeah. Because I've, I've been great at that so far.

0:26:37 Thomas: Yeah. How do, uh, how do age restrictions work for rights of this kind, like, because I, 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

0:26:39 Andrew: Yeah.

0:26:53 Andrew: I, I, I think there are states that permit you to buy guns when you're 13 or 14, the more rural states.

0:27:00 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.

0:27:02 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.

0:28:00 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.

0:28:20 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?

0:28:49 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.

0:29:52 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.

0:30:02 Thomas: Yeah.

0:30:25 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.

0:30:32 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, Glenn Harlan Reynolds, Nelson Lund, Stephen Halbrook, Don Kates, people like that.

0:30:35 Thomas: Is

0:31:23 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.

0:31:38 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?

0:32:02 Andrew: Yes, yes, yes. The shooting was Jim Brady, who was in President Reagan's cabinet, was shot in 1981 by John Hinckley in the same event that shot Reagan, it uh and so Brady, lifelong Republican, 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

0:32:18 Thomas: Oh, oh, the attempt on his life. Yeah, right, right.

0:32:38 Thomas: Wow. He's a lifelong Republican, but he gets shot once. It's like, wait a minute. Yeah.

0:32:43 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

0:32:43 Thomas: Oh yeah yeah did they want an excuse to lock him away forever by reason of insanity. Yeah. Different issue

0:33:45 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

0:33:46 Thomas: But interesting yeah 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

0:33:59 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.

0:34:30 Thomas: Was kind of a non-existent loophole, right? I mean, John Hinckley was insane.

0:34:41 Thomas: Just public perception of it kind of took over.

0:34:42 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, 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, so all of that, yeah,

0:34:43 Thomas: Yeah.

0:35:12 Thomas: Well, when you phrase it that way. Yeah, okay.

0:35:26 Thomas: Well, the only problem is we haven't had any shootings to, oh, wait

0:35:31 Andrew: Well, no,

0:35:31 Thomas: A minute. 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.

0:35:49 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.

0:36:39 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.

0:36:54 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.

0:37:13 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

0:37:41 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.

0:37:53 Andrew: Oh my gosh yeah yeah the uh, the 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 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?

0:38:14 Thomas: Oh, man. Yeah okay so new legal concept right

0:38:38 Andrew: 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? 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 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 lightof 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.

0:38:38 Thomas: Oh yeah yeah okay 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 okay

0:39:51 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.

0:39:54 Thomas: Mm-hmm they actually could oh okay okay got it, okay

0:40:27 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.

0:40:46 Thomas: It was an accurate uh hypothetical, okay

0:40:52 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?

0:41:09 Thomas: And sorry if you already said this, but when was this uh, that, that it, that the incorporation thing happened, okay no

0:41:11 Andrew: Yeah. It began happening post-Civil War. Okay? 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

0:41:38 Thomas: That's okay, yeah, I get, I was just curious yeah

0:41:39 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 dunk. 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.

0:41:58 Thomas: Okay yeah yeah point me to where it says that in the Constitution I

0:42:08 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

0:42:13 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?

0:43:10 Andrew: That's excellent. Anyway so so that's incorporation, right

0:43:13 Thomas: Okay. Can

0:43:13 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.

0:43:42 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.

0:43:44 Andrew: Yep. Sorry. Fourth of July. So my puppy's a little agitated.

0:43:56 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?

0:44:04 Andrew: My puppy Pre-Miller, right.

0:44:21 Thomas: So there wasn't incorporation yet for the Second Amendment.

0:44:21 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

0:44:31 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

0:44:37 Andrew: Laws that restricted gun ownership in some way, right? Right.

0:44:41 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

0:44:48 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.

0:44:49 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?

0:45:10 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.

0:45:14 Thomas: Yeah.

0:45:28 Thomas: Interesting. Okay.

0:45:41 Thomas: 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?

0:45:54 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.

0:46:41 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,

0:47:12 Thomas: It didn't Wow, it didn't get incorporated until till then?

0:47:14 Andrew: 2010. Prior to 2010, you had a total ban on guns in Vermont, and Vermont is a bad example.

0:47:23 Thomas: Bad example. Yeah, I was going to say.

0:47:25 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

0:47:26 Thomas: Yeah. Oh, because they could have it in the state constitution. I don't know anything about state constitutions. I really don't.

0:47:39 Andrew: Yeah, I suspect that Californians I expect that Californa probably has a a something similar to the Second Second Amendment.

0:47:49 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

0:48:13 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.

0:48:14 Thomas: Okay. Yeah. Yeah, sure. Okay. Yeah?

0:48:42 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.

0:48:47 Thomas: Yeah. Oh geez.

0:49:14 Andrew: I could go into all the why, but like, I'm sure you don't care about that.

0:49:17 Thomas: Well, yeah, I, I don't totally know much about it, but okay. So, it's different. DC is different than the states.

0:49:24 Andrew: The DC does not have, do not have complete local autonomy, right? They have what's called home rule. 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.

0:49:25 Thomas: Yeah, that's weird.

0:50:15 Thomas: Yeah. Interesting.

0:50:16 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,

0:50:30 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

0:50:31 Andrew: I Said 2007, because that's when the circuit court of the D.C. circuit court of appeals ruled against the D.C.

0:50:39 Thomas: It was raised or something? Oh, okay. Gotcha. I

0:50:45 Andrew: Gun ban that was, no, no, because

0:50:46 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.

0:51:10 Andrew: It's a federal enclave, the question of incorporation doesn't apply, right? There you go. I

0:51:11 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?

0:51:22 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.

0:51:26 Thomas: Okay. Because lawyers are damn smart and they know what they're doing. Wait.

0:52:23 Andrew: The counter, I mean, the the 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.

0:52:36 Thomas: The gun, the the handgun ban was Oh. So They're just waiting for the right time to.

0:52:40 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 when you radically change the expectation 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.

0:52:42 Thomas: Yeah. Yeah. Yeah. Wow.

0:53:19 Andrew: Right. I mean, it absolutely is. And that's sort of the punchline from all of these Scalia episodes. So

0:53:27 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.

0:54:02 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.

0:54:47 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.

0:55:09 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

0:55:44 Thomas: Oh, a later date. Yeah.

0:56:03 Thomas: What do you know?

0:56:18 Thomas: Yeah,

0:56:18 Andrew: For political reasons.

0:56:18 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.

0:56:23 Andrew: Yeah, it doesn't count. And so the, and

0:56:28 Thomas: This ruling will self-destruct in five seconds.

0:56:28 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.

0:56:42 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.

0:56:54 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.

0:57:27 Andrew: 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

0:57:01 Thomas: Oh, wow. Hmm. Oh so you know something about it. Wow.

0:57:34 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.

0:57:36 Thomas: Yeah. I feel like it'll be five minutes, but yes, go.

0:58:12 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.

0:58:14 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

0:58:28 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.

0:58:28 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

0:58:58 Andrew: Yeah. All right. Anyway, so Caetano, I don't want to say Caetano 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

0:59:27 Thomas: Huh oh oh is

1:00:02 Andrew: A couple.

1:00:03 Thomas: This the, yeah yeah Yeah, the domestic abuse thing yeah

1:00:03 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.

1:00:35 Andrew: That, by the way, is constitutional. That, 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

1:00:12 Thomas: Hmm, okay yeah I think You lose your rights when you kill a bald egg, I mean, that that is, you lose all rights, I

1:01:21 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.

1:01:43 Thomas: Right, yeah It is Weird, she had something like a throwing a plate or something, right? Wasn't that her? Yeah, hmm

1:02:18 Andrew: But yeah. A portion of the opinion, right? So the majority does not mention the Second Amendment. The Thomas dissent talking about the main 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.

1:03:10 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.

1:03:58 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

1:04:08 Thomas: The Age of Scalia, yeah Yeah

1:04:46 Andrew: This, this is, this is a little bit, bit of an overreach.

1:04:47 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,

1:04:52 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,

1:05:02 Thomas: I still don't

1:05:33 Andrew: I think,

1:05:34 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.

1:05:37 Andrew: I don't think those things are mutually exclusive. Exclusive.

1:06:00 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?

1:06:20 Thomas: Oh, yeah. Yeah.

1:07:08 Thomas: Like, have a good legacy in that. Yeah,

1:07:10 Andrew: Yeah.

1:07:10 Thomas: Interesting.

1:07:12 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 clerk 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

1:08:13 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?

1:08:27 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 right

1:08:34 Thomas: Okay. Yeah.

1:08:59 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.

1:09:11 Andrew: Yeah no I I think we hit the landscape and hopefully uh go go ahead

1:09:15 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.

1:09:18 Andrew: Yeah and 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.

1:10:06 Thomas: All right.

1:10:56 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. Bush. And the Nader voters 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.

1:11:43 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,

1:12:21 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.

1:12:27 Andrew: I, I read and and Right, alternate history, and the Bush presidency is like those alternate history of like, you know, what if Stalin became president of the United, like, I mean, but 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 appointment of Roberts and Alito to the Supreme Court during the Bush presidency drastically changed, gave

1:12:38 Thomas: Right right so What if you killed Hitler as a baby or something? Yeah.

1:13:02 Thomas: Yeah yeah

1:13:13 Andrew: Us. 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.

1:13:32 Thomas: And Wow, you're right. Well, as usual, thanks so much for taking us through that, Andrew.

1:13:36 Clip: He who questions training, only trains himself at asking questions. What?

1:13:44 Thomas: Right, got our listener question for the week, and this one comes from Brian Osborne. This is important, it was something we probably should have already answered, and, you know, I'll blame you for that. No, I can blame me, because you're the one who provides all the expertise, I should think of these things. How exactly do recounts work? What, what about the recount already underway in Michigan?

1:14:05 Andrew: Are great questions, really am to blame for sort of eliding over exactly how recounts work in our last episode where we talked about the Jill Stein effort for recounts in Pennsylvania, Wisconsin, and Michigan, which, again, I don't want either of us to strain any muscles patting ourselves on the back. But things are proceeding pretty much the way we said they were going to pretty much The way they were gonna proceed. So how do they work? The short answer is it varies state by state, and it also varies within the state in terms of what level of scrutiny you get. So, for example, the easiest recount to trigger, and most states have an automatic recount that is triggered if the election results are within either half a percent or one percent, is an electronic recount. And what an electronic recount does is compares the totals generated if you have either a touchscreen ballot. I don't know what you have in California. We are moving, in Maryland, we moved from touchscreen to what they call an optical scan ballot,

1:14:29 Thomas: I'll pat you on the back if you pat me on the back.

1:15:22 Andrew: Which is you fill it out.

1:15:23 Thomas: I've been filling out the absentee and just turning it in, so I don't actually know. So

1:15:27 Andrew: Oh, really? Well, we used to have a touchscreen, which is, you know, you get a little computer screen, you touch it and it and then when you're done, it records the mark on this something that kind of looks like a credit card and you turn it in and that's the receipt. But there were actually problems. I believe those were Diebold machines. Let me say this is a belief, so Diebold, please do not sue us. There were problems with or perceived problems with accuracy and errors in the machines. And so a lot of jurisdictions have gone back to having paper ballots, and then there's a scanner where you insert the paper ballot, and that's called an optical scan ballot. So what happens on election night whatever method you use, all of those results are tabulated by poll watchers, which laws in most jurisdictions require that the poll watcher's have representatives from both parties there.

1:16:20 Andrew: Uh, they, they count up the votes and they communicate them to precinct captains and then precinct captains, uh, report them into the County, uh commissioners or the County party leaders. Right. So, uh and that's how when you're watching live totals coming in, you know, you see the sort of totals slowly aggregating and they would say, you now we still have 30,000 votes out in Page County or whatever. Well, what that means is that some precincts had called in in that county and some precinct hadn't. And as you might imagine, it's really, really easy for there to be errors in that process, right?

1:17:00 Thomas: What kind of errors would there be?

1:17:02 Andrew: A good example. I look at the results from my machines in the district and it is 862 votes for Hillary Clinton and 735 votes for Donald Trump. I am the Democratic poll watcher. I call up my precinct captain and as happened, I transpose the eight and the six and I reported six hundred and eighty-five votes for Hillary Clinton and seven hundred and twenty-five votes for Donald Trump. And the Republican poll watch or either doesn't know or maybe has a slight crisis of conscience and says, oh, you're going to take off one hundred and sixty Hillary Clinton votes. I don't know that I'm going to jump up and down. You know, this is like when I'm, you know, the moral dilemma you go through when an item scans up at half price in the grocery store or whatever.

1:17:24 Thomas: Oh, wow. Right, right.

1:17:49 Andrew: And and so the numbers get transposed. Right. Or, you know, other kinds of, basic sort of mechanical errors because there's a there's a paper trail. And so the machine recount essentially goes back and spits out the machine level totals in each of the precincts where the recount is ordered. If it's statewide in all the precinct, if it's only in a particular county, whatever. So the advantage to the machine recount is it's really, really fast. You just have to push a button and you catch some stuff, right. You catch that those kinds of transpositions.

1:18:30 Thomas: So all you're catching is the difference between the reporting and what someone actually told the captain and what was in the machine, that's it, oh, interesting, but even that catches some errors

1:18:31 Andrew: Yeah, correct. Correct. Yeah. Because the machines. Yeah Right, because the machines, one of the things, I mean this relates to the, this relates the way in which we get the result from the machine in precinct 45 to the Secretary of State is somebody's got to call it or type it or whatever, right? So you take the machine number and you have to report it up the chain of command. So machine recount goes back and double checks those results. Results. And whenever we have had machine recounts, they have found actual transposition errors, failure to report, you skip over a line, like there's all kinds of sort of basic problems. But as you're probably gathering, that machine recount isn't going to be very useful if your argument is that the machines were hacked, right?

1:18:41 Thomas: Hmm. Right. Oh, Yeah. Okay. Yeah. Right.

1:19:43 Andrew: It's not going to be very useful in the Bush v. Gore scenario, So the next step up from the machine recount is a hand recount, right. And a hand count is exactly what it sounds like in order to get a hand, as far as I know, again, not an election lawyer, but my understanding is that, you have to, in order, to win a hand recount, you Have to go before an election judge and persuade them that, that the results are such that a hand recount is necessary. When does that happen? It happened, for example, in Minnesota in 2002. I could be wrong. But when Al Franken, so I guess that must have been later. It must have been either 2004 or 2006. But When Al Franken first won his seat to the Senate, he ultimately won that seat by, I think, under 100 votes out of several million million that were cast. Right. So in that situation, right, it's very, very easy to go to the judge and say, yeah, we need we need a full hand recount here because difference is a couple hundred out of a million.

1:19:56 Thomas: Are these ever triggered automatically, or is this just, no, okay, it's something that right so

1:20:55 Andrew: And a hand recount. So the idea is when you vote, in addition to the optical scan aspect, everything you do that is counted by a machine also leaves a paper trail in some way, right? Either there's the original ballot that was scanned, which goes into a box and is kept, or when it's a touch screen, it uh records on a card, you put the card in a machine at the end and it generates a little receipt, actually, so it

1:21:25 Thomas: Every single one, because I got a friend who kept telling me there's voting machines that don't leave any record, but that you

1:21:31 Andrew: I heard that story from this election and I I, it's why I paused for a second. I have not investigated into those stories. I can tell you that previous, prior to this election, the watchword is

1:21:46 Thomas: Would think there would be, be some law about there, some regulate, like, because you need to be able to recount stuff, I would hope yeah

1:21:47 Andrew: Yes. Yeah, exactly. It would be meaningless, right? You couldn't do a hand recount if you didn't generate a receipt. Now, it may be that it didn't in a particular way. I don't know. I will be very honest with you. We didn't plan this out, so I haven't looked to see the full gravamen of that argument. And if one of our listeners wants to to raise a point or point us to something, openarguments@gmail.com.

1:21:54 Thomas: Yeah Hmm. Okay Okay.

1:22:21 Andrew: I'd love to hear it. But my understanding is that all of the electronic ballots have some kind of a paper record or receipt. And so you can go back and then hand tabulate those receipts and check them against the computer number. And that would reveal if there were hacking or an error in the computer or software or anything like that, because you're now actually dumping out piles and piles of ballots and adding them up and comparing them to the result, um, it

1:22:19 Thomas: I mean, it might, there's definitely kinds of errors that it wouldn't reveal, but, yeah, well, if there's a software issue where both what it recorded and what it put in the receipt, was both of those things were wrong, they weren't what the person touched or something, then there's no way this would reveal it, like yeah

1:22:54 Andrew: Give me an example of of an area you think that it wouldn't yeah That's a, that's good point. You're supposed to review, right, when when you when you cast your ballot with an optical scan ballot, yeah, right

1:23:17 Thomas: Okay. Yeah, so so you're, you're the voter is responsible for making sure that, much is true, I guess okay, makes sense

1:23:24 Andrew: Right. Um, but but look, that's that's a fair point, because saying the voter is responsible is not the same as saying the voter doesn't, right? So I have a touchscreen ballot. I punch it for Hillary Clinton. It records Donald Trump. The receipt says Donald Trump, I don't look at it. And I just hand in my little card, get my sticker and go home. And you're absolutely right that a hand recount has now failed to accurately reflect my choice, right? Right. And so then I would add, you could, you can also calibrate the level of the hand recount.

We talk about this in 0A2 through 0A5 where we talked about Bush versus Gore and they didn't just look at the receipts, but they looked at actual physical ballots in order to see, you know, what kind of marks people made, right, this is the hanging chads and the dimpled ballots and and that sort of thing where the machine doesn't fully count in an optical scan, right, like they used to tell you this when you took number two, you know, test with a number two pencil in school all the time, right, like if you filled out the oval incompletely, uh, then the machine would scan it and you wouldn't get credit for a correct answer, um, and that's

1:23:25 Thomas: Yeah yeah Hmm. Right even though a person could eyeball it theoretically, yeah

1:24:40 Andrew: Right. A person would look at it and go, and and it was astonishing to me, uh, both at the time, because as think I mentioned, you know, I was, uh, I had the opportunity to go work on on the Bush v. Gore case, um, and when we were researching it for OA2 through OA5, um, it was astonishing to me the number of ballots that have, right, it says right at the top, you now, please fill in all the ovals, and you'd get a ballot that has a little check mark in all the ovals, right?

You're, you know, an X or, you know, a line through it or whatever, and those, I mean, there were tens of thousands of those. So, you know, think about that on top. I mean, you and I have, have talked about, I thought you put it really, uh, poignantly and elegantly, uh, the day after the election, uh, in discussing the the the problems with turnout. Uh, but you know, a a sub, subcomponent, it's only one percent or so, but a subcomponent of not only do people not vote, but sometimes people go out and vote and they think they've cast a valid ballot, but but they haven't

1:25:10 Thomas: Oh Hmm.

1:25:44 Andrew: Because, you know, they drew an X instead of filling out the circle or whatever, um, and so, you know, you can calibrate down and get different levels of hand recounts that are more and more finely granular, uh, in order to to get closer and closer to what people actually intended, but I mean, there's a a pretty obvious problem with that, right, yeah, and and what's hanging over our heads is the the 3 U.S.C. 7 deadline, it's now, you know, 15 days away as we record this, uh, and we'll be, you know, 12 days away by the time this episode drops, um, there's no way you can do a hand recount in any of these states in two weeks.

1:26:04 Thomas: That deadline Deadline.

1:26:24 Thomas: Would they? But that's weird. I mean, if they had started right away, you would hope they'd be able to do it. Otherwise, that seems like an unrealistic deadline. Right.

1:26:25 Andrew: Yeah, I think that's right. So the first thing to remember is that the Federal Elections Act, which is 3 U.S.C. 1 et seq. And the provisions that follow it, was passed in 1789, right? So our laws don't accurately reflect the way that elections work today. And now nobody is running on a platform of "let's repeal 3 U.S.C. 1," but they ought to. And a better system would have sort of election night, and then there would be, you know, a 30 or 60 day period for recounts, and then the electors would meet and you could certify the election. And that way you would have a lengthy period of time that still wouldn't interfere with the inauguration of the president that would allow everybody to have confidence in the results of the election, but that's not the system that we have.

1:26:44 Thomas: Yeah. Gosh, how can we not just have online voting at this point? I mean I get I realize there's a risk, you know, but but like gosh the reward would be pretty big.

1:27:25 Andrew: Yeah. But but now, I mean, could you imagine if we had online voting? I mean how would the Jill Stein supporters who think that, who honestly believe that, you know, there's no way Donald Trump could have won the election and that clearly Russians hacked the election. I mean, you know that the, the jet fuel doesn't burn that hot crowd. Like if we had online voting, I, I honestly think that they would never validate an election that went the other way ever again.

1:27:49 Thomas: Yeah, it's just sad. Yeah it Just sucks that that that's the state of things, that there's not a, because we, it's going to make us operate in this increasingly medieval way as regards votes with you know, these machines and paper and whatever, yeah.

1:28:01 Andrew: Yeah, yeah, yeah. Well, look, right. Look, I mean, there's... there's a really good solution to that. And that is the solution we exercised in 2008 and 2012. Right, and that is if you win by a big enough margin, it doesn't matter. And, you know, that's that continues to be a theme that that you and I have sounded politically on this show and elsewhere, which is, you know, don't don't ever be satisfied for, you know, my vote doesn't matter. This is a blue state. This is what you know that that get out. That's a reason to have to win by by a larger margin.

And it ties into the answer to the question that you started to ask. And I think I derailed you by accident, which is, you why weren't these recounts? Why didn't they start on, you know, November 10? And the reason they didn't start on November 10 was because on November 10, Hillary Clinton woke up, looked at it and said, gosh, I'd have to I'd have to, you know, draw an inside straight, right? Like I'd have to get all three states, Wisconsin, Michigan, Pennsylvania, all of them overturned, you don't, if I were Hillary Clinton's campaign manager, I don't know, not I don't Know, I would say I would have made the same decision on November 10. Right?

Like you cannot say, I want to relitigate all three states. And I think all three States have systematic errors that gave the election to my opponent and not to me. That's a tough, you know, it's a tough argument to make. So, you know, so Hillary Clinton didn't get involved. And then there was this kind of angst and pent up energy on the left of, well, come on, we got to do something.

1:28:28 Thomas: Yeah. Yeah.

1:29:50 Andrew: You know, and then it was being driven by somebody who lacked legal authority to do something. So you know Yeah. I want to answer the second part of that, which is the, what about the recounts underway in Michigan? This is a right wing meme that I have seen at a number of places where you find right wing memes that said, yeah, it's just the inception of me there's already been a recount in Michigan. So, you know, Jill Stein's effort is going to go for nothing there. And that's wrong, reason Jill Stein's effort was going for nothing in Michigan is because she lacked standing. Recount that was underway in Michigan was automatically triggered by the fact that the election was within half a percent, but it was just a

1:29:56 Thomas: There, meme stores, yeah, yeah machinery

1:30:29 Andrew: Machine recount, right.

1:30:30 Thomas: Account Yeah.

1:30:30 Andrew: Right. So that's not binding. That doesn't prevent a valid recount from overturning those results. That's all moot at this point. Right. Because it looks like the Pennsylvania recount is not going to go forward at all. Uh the wisconsin oh

1:30:30 Thomas: Right Oh, Wait, why is that not, one not going to go

1:30:45 Andrew: Yeah, The statute in Pennsylvania requires the petitioner seeking the recount to put up a million dollar bond, and the Stein campaign has refused to do that, and they've appealed. I'm going to link an article on that in the show notes.

1:30:58 Thomas: She raised plenty of money.

1:30:58 Andrew: Yeah the steIN petitioners said they they didn't have enough money. And so it was thrown out.

1:30:59 Thomas: Oh, my gosh, are you serious? I

1:31:04 Andrew: I am a hundred percent serious. We tweeted it out on our, uh, on our Twitter account.

1:31:08 Thomas: I missed it. Look, this, this is, how did I miss this? This is even more reason that that was nonsense, right? I mean, am I crazy? She she collected millions of dollars to do this. She needed to put up a million dollars, and then she didn't oh,

1:31:15 Andrew: Yeah. Yeah, I don't think you're crazy. Right.

1:31:25 Andrew: But remember the disclaimer on her website says, if we don't have an, we only promise we'll file the petitions. We can't promise we're going to get a recount. And if we, if don't, we don't have enough, uh then, you know, we'll only go forward in two states. And if we don't have enough money for two, we'll only go forward in one. Looks bad from my perspective. So, yeah, that's

1:31:33 Thomas: What, a scam? That is ridiculous. That's ridiculous. I, I, I didn't even know that. I can't believe I'm just now finding, I have some online arguments to go win, so let's move on. To our...

1:31:52 Andrew: Right. That's that. At the end of the day, that'S the point of this show. So, yes.

1:31:56 Thomas: That is absolutely the point of the show. That's why I'm doing it. I don't know about anybody else. I don'T know why they're listening to it, but I assume it's the same reason. Okay, so is that good? Can we move on? To our super special new segment, guys. Oh my gosh, I'm so excited about this. Here's our new segment. Oh, I'll play the little intro quote.

1:32:07 Andrew: Yes.

1:32:16 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding. Thank you.

1:32:22 Thomas: All right. Why don't you take it away?

1:32:25 Andrew: Alright, so I am the managing partner at the CoverGirl and Burlington Coat Factory firm, and we are considering you, Thomas Smith, for our coveted associate position. But

1:32:34 Thomas: Yes. Yes. I'm fresh out of Harvard law. Now I don't know if you know this. Um, I'm not in the top 5% of my class. I mean the top five of my classes. So, uh-huh.

1:32:36 Andrew: Yeah, well, The one thing you need to know, Mr. Smith, is that no associate at this firm has ever failed the bar exam.

1:32:49 Thomas: Oh, wow. That really puts the pressure on me. Really, really does. Wow. Okay. Ooh, just made you made me nervous. All right. So

1:32:57 Andrew: So I think it's time for you to take the bar. Bar exam. As you know, Mr. Smith, the bar exam consists of two days of rigorous examination. On day one, you take the multi-state portion, which are 200 multiple-choice questions that test general common law that is the same in every state. On Day 2, you will answer essays specific to the law in your state. Actually, since you're in California, you'll have a third day of the exam, but we're not even going to go there. There.

1:32:57 Thomas: Yeah. Okay, here we go.

1:33:27 Thomas: Yeah. I am moving so So that I can, because no one at this firm has ever failed the bar. So I, I hope all our listeners have listened to Law'd Awful Movies to know what we're talking about. Okay. Anyway, yeah. That's an enormous pressure. I'm going to move.

1:33:28 Andrew: You ever fail at the bar exam. Right.

1:33:40 Thomas: So it's easier.

1:33:40 Andrew: Right. So we're going to go through once a week and I'm going to ask you a real life bar exam prep question. Uh, I'm gonna give you the answers. Uh. You're gonna choose an answer and we're gonna let our audience choose along with you. And then, uh. Next week.

1:33:57 Thomas: Right. So you're not going to tell me the answer for a week until the next week. We will review the answer and then we will also see if I got it right. And we'll also see if any listeners got it right. Really need to pass this because I don't want to be the first one to ever fail this at this firm. That would be embarrassing.

1:33:59 Andrew: I'm not gonna tell you anything. Right. Yep. Okay. So are you ready?

1:34:18 Thomas: I'm as ready as I'll ever be. I've got as much legal knowledge now as I did in law school. So here we go.

1:34:19 Andrew: Okay. Okay, a property owner agrees to sell one of his real estate parcels to a neighbor. He wrote up an agreement for sale with the sale price of $200,000 and signed the document. The neighbor took it and returned with a bank check for the $200000 demanding that the deed be tender. The property owner then decided that the terms were were not reasonable, and he returned the money and refused to tender the deed as required by the agreement. The neighbor sued for specific performance. The property owner defended on the basis that the neighbor did not accept the agreement's terms and did not sign the document. Neighbor sued for Specific Performance of the Transaction. Is the court likely to rule in in favor of the neighbor. Okay.

1:34:37 Thomas: Okay.

1:35:05 Thomas: In the neighbor side, the neighbor's the one buying. Maybe I need to be able to read this. But my first thing I was going to say is, oh, I don't, he didn't say he signed it.

1:35:09 Andrew: Yeah. Yeah, the neighbor, the neighbor is the one buying. Yeah?

1:35:14 Thomas: And then it was in the question. So I was like, damn it. Is the court likely to rule for the neighbor who didn't sign, but brought the money?

1:35:15 Andrew: Right? Right. That. Right, right.

1:35:22 Thomas: Right. Am I doing that right? He brought the Money, brought a check, but he didn'T sign the agreement. This is multiple choice though, right?

1:35:22 Andrew: Yes. Yes, so here are your four Yes. So here are four answers. And, and this is exactly illustrative.

1:35:30 Thomas: Okay. Oddly, the, it's not just true or false or, you know, yes or no, but okay. Four answers.

1:35:34 Andrew: Right? Yeah, no, this is this is, this is exactly what the bar exam is like. It's a true false, you you know, it's a yes, no question. And there are four answers. So you not only have to pick yes or no, but you have to get the reason right. So A, no, because the neighbor did not expressly state that he accepted the agreement.

1:35:40 Thomas: Yeah. Yeah. Yeah. Hmm.

1:35:54 Andrew: B, no because the labor had to put his signature on the document to make it a binding contract. C, yes, because it was a binding agreement. The neighbor manifested his assent by his conduct of tendering the full sale price, at which point a contract existed? Or D, yes, because the property owner created a binding contract when he prepared an agreement containing the agreed terms.

1:36:19 Thomas: Okay. That one sounds ridiculous to me. What state is this?

1:36:22 Andrew: This is multi-state. This is true anywhere in the country.

1:36:24 Thomas: Oh, anywhere. Anywhere. Okay. Just, that's important because I would, you know, I'm shuffling through like my different state law knowledge right now. I'm just thinking like, okay. So this is multi-state. Okay, yeah, that clarifies. You know what? Read me C again. I've been leaning towards C. Let me make sure.

1:36:38 Andrew: C is, yes because the neighbor manifested his assent by his conduct of tendering the full sale price at which a contract exists.

1:36:48 Thomas: Now, here's my complex legal analysis of this. I feel like if it were just not, you didn't sign, therefore no deal, I feel like that would be too easy. I don't know why. It just seems too easy for the law. And Andrew is too smart to have such a career that would Be so easy. So I feel like it's going to be C because when he tendered the actual amount described in the contract, it seems reasonable to me. Again, I don't have specific knowledge, unfortunately. But going along with our premise, I'll remember from my legal training that it seems It seems reasonable that that would be expressing consent to the contract, but I very well could be the first person to ever fail the bar exam at this law firm. I'm going with C.

1:37:32 Andrew: Okay, so So we will check back in next week and take a look at the answer in

1:37:35 Thomas: Yeah. I will also encourage our listeners to tweet out. Here's what you need to do because we're going to pick a winner because we want to know your answers. Here's What You Need To Do. Do. You need to retweet this episode, but do the quote, the retweet, and quote. And in the quote put what your answer is and maybe as much as you can fit in about why. Keep in mind there may be multiple people getting the right answer. So whatever you write may be important because we'll pick what that is. Maybe it'll be funny. Maybe It'll be whatever it is. And that's how we will select you as the winner of this week's or next week's Thomas Takes the Bar exam. And we'll We'll compare. We'll see how I do versus how the listeners do. Oh, wait, the listeners always do perfect. Never mind. You can compare how you do to how I did. And we'll see if I pass the bar exam.

1:37:39 Andrew: Yeah. Right. And, and tag at open args on Twitter. O P E N A R G S.

1:38:30 Thomas: Do the retweet. And quote option. That's very important because that's what we're only going to look at those ones because they're going be the easiest for us to see. So there you go. Oh, this should be really fun. I'm excited to find out the answer next week and even get another question next week. It's going to be great. Such a good idea for a segment.

1:38:45 Andrew: If you are not following us on Twitter, we are open args on twitter o-p-e-n a-r-g-s follow us on twitter right

1:38:49 Thomas: Oh, well, that would be definitely the first step at OpenArgs. All right, that does it for this week, right? Oh boy, do we have a lot of patrons to thank. Holy moly. I forgot. We better get yourself a snack because we're going to need to be here. We got so much overwhelming response and thank you guys so much. Much.

1:39:06 Andrew: All So, thank you to Michelle Nelson, to Kyle Smith, to Sman9, Conrad Michaels, Ryan Phelps, Nocturnal Emission, Benjamin, PJ, Francis, Bruno, Patrick, Violet Page Hall, to Matt Garrett, to Sarah Ryan, to Bevin Flynn, to Andrew Citarella, thank you too, Alice and Harold, uh, thank you to the Irreverent Skeptics Podcast, to Steve Caplet, to Camel Pope, awesome name, Lisa McLean, Randy, Avi Poji, uh, and by the way, Avi, we answered your question on Atheistically Speaking 300, to Austin, Taylor, to Richard J. Lamas Vidales, to Ian Maloney, to Jack Coffison, to Taylor, to Soren Kongstad, Daniel Johansson, thank you very much.

1:39:21 Thomas: Oh, Yeah. Oh.

1:40:02 Thomas: And we're only halfway there because you guys are so incredible, I cannot believe this, thank you so much to Is This Real Life, R-E-E-L, uh, John Budd, Owen Wittenberg, Ricardo, Purple Bacon Taco, these names are delicious, Dan Ellis, thank you, Logan Birch, Daniel R. Sullivan, John Killiam, Ethan Firestone, Liam Appleby, Clara Ladder, Charlie, Kevin Korb, Scott Patterson, John Funk, John Jungers, Charone Frankel, Sir Privy Winks, Jim Sabatowski, Bruce Sherrod, Thomas J. Duvalli, Ginny Powell, Jacob Engstrom, John Bodley, in. Michael Schaefer increased his pledge substantially. Thank you, Michael Schafer. Appreciate that. Heath Enwright. I know that guy. Michael Beares. Robert Hubert. David Morgan. Michael Cordover. Adam Hicks. Tom Hamilton. Jeffrey Mayner. Ryan and Katie Armstrong. Holy moly.

1:40:16 Andrew: Yeah.

1:41:02 Thomas: Thank you guys for that support. That is unreal. I hope you enjoy Law'd Awful Movies, and that will be a monthly thing, just in case anyone missed that part of it. We're going to do a lot off of movies every month, and it will be just as fun. And I hope the top patrons enjoy their t-shirts. All this stuff is the least we can do for your overwhelming support. Thank you.

1:41:21 Andrew: And And, and Thomas, we have not yet thanked our Hall of Fame patrons, so Uh, So thank you too, Danny Rosari, to Eli Bosnick, Dave Nichols of the Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Leon Hartley, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall, John Bodley, our good friend Heath Enwright, and Jeffrey Mayner, thank you very much.

1:41:26 Thomas: Ah, you're right.

1:41:53 Thomas: Also have to thank Hunter Ash, Michael, Kaylee Reiser, Jeff S., Sakashite Fukasami, Pro Panic, Philip Strongberg, Michael Schaefer, Zabby, Frederick Alstromer, Sammy, Conrad, Michaels, and the Inciting Incident Podcast. Podcast. Whew. That is, it is a pleasure to have so many people to thank. It really is. All right. That's it for this week. I hope you'll enjoy next week. Uh, should be two episodes next week. Is that right, Andrew Torrez? Or we really do? Are we, are we releasing two episodes in one week?

1:42:21 Andrew: That sounds crazy, but it seems crazy enough that we might actually do it.

1:42:25 Thomas: Yeah, that'll be really cool too. And, and we'll do our best to make the second part available early to patrons. That'll, that's always something we like to do. All right, right thanks for joining us and we'll see you next week was your gavel

1:42:38 Andrew: That

1:42:46 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.