OA607: Will There Be Justice for Shaye Moss and Ruby Freeman? and Bye Bye Miranda Rights!

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. This is episode 607. I'm Thomas. That's Andrew. And how are you doing today?

0:01:24 Andrew: I, what fresh hell has the Supreme Court unleashed on us? Yeah, no, I had everything. I literally moved everything on the whiteboard for today, yeah, but

0:01:26 Thomas: Oh, boy. Well, several times. I mean, this was Trump-era-esque in how much whiteboard moving. Our whiteboard was like, what? I thought we were done with all that. Didn't we elect Biden for this? I don't know. Stop erasing me.

0:01:45 Andrew: I'm excited about the show we have to, uh, to bring to everybody today. So, uh, I, I'll still say tentatively fantastic. How are you doing, Thomas? Oh

0:01:57 Thomas: I am doing great. And another reason I am doing great, even though again, what fresh hell has the Supreme Court, several fresh hells actually is the answer, like three fresh hell's the Supreme Court has delivered us, so we came up with a great plan. We owe our fine patrons a Law'd Awful Movies, and had a brilliant idea, which is stuff got pushed off so much because we have, again, like three separate Supreme Court awfulnesses to cover. And the J6 hearing, the final J6 hearing for the month, is happening as we speak.

So we figured we'd take that Lawed Awful Movies slot that we're going to do anyway, and we'd sub it in for a Lawed Great Hearings. And instead of a Lawd Awful Movie this month, we'll do coverage of tomorrow's, and you know, I imagine the month as well, since it's kind of the last one for the month. We'll cover the hearings, we're going about it, and that's going to be on Lawd Awful Movies, and of course that's for patrons, but you know what, if, if you can't become a patron for any reason, if you're a student, if your money's tight, whatever it is, just shoot us an email, we know a guy, shoot us an email and we'll do the little like, open our vest, you know, and be like, here's a lot of movies for you, know, and we're like, and it won't be, well, it will be, be actually a forge lot off of movies. It'll be like Jameis Merith, and yeah,

0:02:05 Andrew: Yeah, It's a molex, is it, there's just so much news to cover. We obviously want to do the hearings, we want to reward our patrons, we, we don', anybody to feel in any way to get the substantive coverage of the stuff you care about, that like we're forcing you behind the paywall. Like, Patreon, please shoot us an email, open arguments at gmail.com. We'll, and put in the subject line LGH, right, Laud Great Hearing.

0:03:17 Thomas: But, yeah.

0:03:40 Andrew: If You just put LGH, we will get you a link, we'll get the files, that we've done this in the past before,

0:03:40 Thomas: I love I think it's great idea. And as you said, there is so much to get to. We better stop blabbing about this and just get to the stuff.

0:03:52 Andrew: Let's do it.

0:03:53 Clip: Those horrible things, do they include threats? Yes, a lot of threats, wishing death upon me, telling me that I'll be in jail with my mother and saying things like, be glad it's 2020 and not 1920. Were a lot of these threats and vile comments racist in nature? A lot of them were racist, a lot of them were just hateful. Yes, sir.

0:04:20 Thomas: The hearings, obviously, we're going to cover that on Laud Great Hearings. But I know me and a lot of listeners saw saw the Tuesday hearing, that the 21st and saw Shaye Moss and Ruby Freeman. And, you probably either cried outright or choked back tears as we heard how these lovely people's lives were ruined. I mean, these these lovely people who just want to work the polls. I can't think of a more like pure service to our democracy, to society, you You know, like just going and working the polls, helping people vote, especially the elderly, you know, people who might be not able to vote easily or might be confused about it sometimes. And I know they talked about that on the stand a little bit, how that was what they love to do. Just what seemed to me to be like some of the best people in our society.

0:05:07 Thomas: And they were just absolutely, I don't even know what the appropriate word is, just fucked over by Rudy Giuliani and Trump and this just disgusting smear effort. I mean, it's truly just the most evil thing I can think of. And Andrew, I think a lot of us are wondering, A, get your take on it, but also there's got to be some recourse. I know we have that first amendment, but like it only, it only so first, you know, there's gotta be some limit. And this This just seems like a massively powerful person with tons of ears and eyeballs on them delivering a non-celebrity, importantly for our First Amendment law, a nonpublic person just to the wolves and ruining their life. There has to be some legal recourse, right? I think me and the listeners want to know. Come on. There's got to be something.

0:05:31 Andrew: I have a big segment on all of this, and I want to tell you, it is a very, very happy segment. It's It's better than you even think, and so I want to build to that, because I want to talk about a couple of other things very, very quickly, To kind of knock them out.

That is, today, as part of scrambling our whiteboard, we learned this morning that federal agents have, have raided the home of Jeff Clark, that is that numb nuts environmental lawyer that Trump wanted to install as attorney general, right, that would provoke Richard Donahue testifying, as we speak, by the way, to say, uh, the entire Department of Justice is going to resign if you do that, Mr. President, uh, and that we made available to you back in March, that was, was episode 574, that was Exhibit B, was Richard Donahue's declaration that ended with that fantastic sentence of, "You're an environmental lawyer, so how about you go back to your office and we'll call you when there's an oil spill," which, uh, was, is, and, and I thought really capped off sort of the, the feelings about putting this partisan hack in charge

0:06:04 Thomas: Oh, good. Sure. Sure.

0:06:22 Thomas: Well,

0:07:06 Andrew: Of. And I mean, among partisan hacks, right? Like we're talking about Bill Barr's Department of Justice here. Like, yeah, go

0:07:08 Thomas: That's yeah, well, I took that to mean, like that, poor guy, that that poor environmental lawyer who didn't get to get in on any of the cooing, I took that to me and they just kind of wouldn't be part of this because like, oh, you know, they tried to be involved. And then they're like, we'll call you when we need an environmental lawyer. So what is it then that would be raided, do you think?

0:07:33 Andrew: So the plan was to have Jeff Clark. This came out. This was obliquely referred to in the deposition. So I have been watching and waiting. And again, Richard Donahue is testifying as we speak. So it's driving me nuts.

0:07:50 Thomas: Yeah, I know. Law, great hearings. Patreon.com slash law.

0:07:51 Andrew: Right. Yeah, we're going to we're gonna get to it tomorrow.

0:07:56 Thomas: I forgot for a second what it was. It's my one show where the Patreon thing is not the name of the show. So I'm always like Patreon. Com slash open and Patreon.com/law pretty sweet.

0:08:05 Andrew: It's a good it's pretty good one. We got it on the ground floor of that. So read that transcript. And again it's only like 15 pages that were released. It is not the whole transcript. I am trying to read between the lines and figure out what's happening. And this we learned during the third of the January 6th committee hearings. We're on hearing number five right now. But we learned that what Richard Donahue was referring to was a plan to install Jeff Clark as attorney general and have him send out to, it's not clear to me whether it is six or seven states, right? Right. But but again, there are seven states that are sort of at the core of this conspiracy. A letter that says, hey, I'm the attorney general. We found irregularities in voting and we tell you that you should not certify your electors until you figure this out.

0:08:06 Thomas: Yeah. Yeah, this that it sounds to me so much like the calls I get that are like your social security number has expired. Expired. And then I realized it's kind of that same level of scam. Hey, electors have expired, actually. We're here to tell you, your you need new ones. You need to send new electors.

0:09:02 Andrew: Yeah. And that is not consistent with anything the Department of Justice found. That is obvious fraud. And the fact that the federal agents are executing a search warrant. Right. That means a grand jury was convinced that there is probable cause to find the evidence or instrumentality of a crime at Jeff Clark's residence. Coincidence. And that's again good news and Jeff Clark is, you know, this environmental lawyer who was willing to yeah, like the bigger the bigger the sycophant you are, the easier you are to flip, you right, like you're not gonna flip, although you know you got inculpatory testimony from from Jared Kushner and Ivanka, but like you're never going to get Ivanka to testify in detail against her dad. But these, you know, come lately's keep trying.

0:09:45 Thomas: Wait, You say that. I mean, she was, I mean she was like, Oh, I, I took Bill Barr's word. He's a brilliant attorney. And I was, yeah. I means she kind of did testify against him a bit.

0:10:01 Andrew: I agree. Keep trying. Yeah, I yeah, that's why I said inculpitary. But Right. I really feel like if Jeff Clark, environmental lawyer, is threatened with jail time, that he will sing like no one's business. That could be overly optimistic. I am optimist prime, that's but an important development. We're going to continue to watch it. Number two, with respect to Tuesday's hearing, this was a little different than I think a lot of OA listeners were ready for. Right. Again, as we've continued to emphasize, the January 6th committee has multiple different audiences. And clearly this fourth hearing on Tuesday, the focus of that hearing was the real human cost of spreading the big lie. And as you pointed out, the moving the hour long testimony from Shaye Moss and Ruby Freeman, I thought was incredibly moving.

0:10:59 Andrew: Moving earlier in the first hour, we heard evidence from Brad Raffensperger that MAGA hat wearing idiots broke into the home of his daughter in law, a widow. Right. Like and just, you know, you you layer the sexism on top of it. You watched I watched Shaye Moss almost in tears saying like, yeah, there were lots of racist stuff. Yeah, there was lots of sexist stuff. Yeah, I was violently threatened with my life. Yeah, I'm afraid of going out in public. Yeah, I had to quit my job, right? Like this is, intimidating an innocent bystander. And, to me, what came to mind and now we get to happily pull that pin out was the treatment of the Sandy Hook families by Alex Jones, Exact same kind of situation to make a political point.

I am spreading a lie. In order to spread that lie, I have to say things that are demonstrably untrue about grieving people who have been harmed. And here Right. It was, well, there's the secret plan to, you know, run the ballots multiple times. And they were just passing around thumb drives and watch the video, you Know, this grainy 280p video, right? Watch the video. You can just see them stealing ballots out of a suitcase. Defamation. That has real consequences. And I'm happy to tell you, Moss and Freeman have sued both Rudy Giuliani and OAN because OAN ran the most egregious of these clips. They were too

0:11:04 Thomas: Oh yeah. Yeah. Jeez. Oh yeah, yeah, oh

0:12:32 Andrew: Stupid for Fox News. And Rudy Giuliani has his So I will tell you, OAN has already settled its way out of the lawsuit. OAN was like, oh, hell no. Like we we are 100 percent not going to trial on this. So the case alleges defamation, intentional infliction of emotional distress and conspiracy to to do those things against Rudy Giuliani. They've been sued in D.C. It has been assigned to Chief Judge Beryl Howell, our good friend. OAN has already settled. Again, I know that's a confidential settlement amount. I cannot imagine that it is a trivial amount. I have read the complaint. We're not going to go through line by line. But again, in the standard, I'll link it in the show notes if you want to do that. You look for the kind of the typical OA talking points, right? That is number one, who represents the plaintiffs? Well, the answer is coat factory lawyers, Wilkie Farr,

0:12:43 Thomas: Wow. Yeah, I'll

0:13:31 Andrew: Right. Right.

0:13:32 Thomas: Do it. G anybody. It's gotta be a lot of people willing to do that.

0:13:33 Andrew: And it absolutely Wilkie Farr is, you know, Wendell Wilkie's firm. Right. You have seven time presidential candidate like that. It's a coat factory law firm. Top notch lawyers.

0:13:44 Thomas: This is like when I'm telling you about a TV show, everybody's seen. And I'm like, you haven't watched Breaking Bad, Andrew? You're like, Wilkie Farr, you know, the lawyer that I have his cards, trading cards. I'm, like, I don't, yeah. You can say it as many times as you want. I don't who that is. But I'll take your word for it. It's a big, big, high-powered attorney.

0:13:47 Andrew: Mm hmm. Right. Yeah, exactly. Yeah. Then on the defamation allegations, what you want are detailed allegations. Well, how about 44 paragraphs spread over 30 different pages, right, examples, right? I'm going to read from some of these paragraphs, right? Means Moss and Freeman deliberately threw people out and counted the ballots in private, and there's videotape. Of it That wasn't enough? I don't know what you've got to do to prove it. They committed the crimes on video. You can see them do it. They lied about it. Then you see these same people handing off flash drives to each other. OK, well, those are factual allegations, all of which are false, all of which aren't defamatory. Let me keep going, right? The situation in Georgia, that videotape is about as clear evidence of stealing votes as I've ever seen, and it was mischaracterized by the secretary of state, the crooked Governor Kemp, the Democrats.

0:14:50 Andrew: I mean, they're all in league together. In any event, you got a tape in in Georgia that's crystal clear. It looks like a bank robbery, my goodness. And then finally, those ballots turned out to be real ballots, lawful ballots, they weren't fake ballots, they were real ballots that were counted. They shouldn't have been stored under the table, they should have been in a secure location. In the moment, they shouldn't been counted until observers were there, Okay? There are, as I said, dozens of these kinds of very specific allegations, and Giuliani's defense, they've moved to dismiss it, is laughable.

0:15:21 Thomas: I love the USB stuff, just the, and again, sorry, but the boomerism on the technology. They were handing off flash drives to each other. I love the, like, hey, I got my, I installed my flash drive of ballots here, let's swap those, and you flash drive these ballots over here, like

0:15:37 Andrew: They were plotting to steal the 1996 presidential election, you know, like, yeah, it just, it really is an okay boomer kind of moment. Giuliani's defense, you want to take, you have not read the motion to Dismiss, so just take a wild swing. If you were a lawyer dumb enough to defend Rudy Giuliani, what what would your argument be as to why the kinds of statements that I just read are not actually defamatory?

0:15:51 Thomas: Nope. Oh. Oh. My gosh. Um. I want to go to executive privilege, because that's the, I realize it doesn't apply in this circumstance, I feel like that was what they went to with every single thing, executive immunity or something, from whatever, uh, deliberation, Congress deliberation, uh, something, no. Satire.

0:16:20 Andrew: That would be a better argument than the actual argument, which is in every one of the statements, Juliani uses language that makes it clear to the listener to review the video for themselves, or uses language like, "it looks like this," or that, making it clear that these are Juliani's subjective views, very clearly any ordinary reasonable listener would understand that Juliani is simply drawing his own conclusions from a quote famous video that was publicly available for all to see about what was happening in Fulton County

0:16:30 Thomas: Right. Okay.

0:16:50 Thomas: Let me ask you this, if I look at a video of Rudy Giuliani, Andrew, and I say he's a pedophile, he looks like, look at the video yourself, and he looks like a pedophile, he's definitely look at, you could see in the video, watch the video for yourself, he's definitely sexually abusing children, watch it for yourself, it looks like it. Is that fine? That's all fine.

0:16:51 Andrew: Yeah.

0:17:08 Andrew: I, was going to use an, an almost identical analogy of, like, Opening Arguments saying these documents prove that Rudy Giuliani is a mass murderer, I'll link them in the show notes read them for yourselves, but you will see they show Rudy Giovanni literally murdering human beings, and I think that's really clear from the documents, which, you know, you should definitely read in the shows notes, um, by the way, not making that allegation, um, it is obvious. If I were to say that, that that would be 100% defamation, even as against a public figure, particularly if I've made it up, right? You cannot, I say this to the Puzzle and a Thunderstorm guys all the time, you cannot immunize a statement of fact by throwing an "I think" around it,

0:17:18 Thomas: There you go.

0:17:50 Thomas: Yeah.

0:17:51 Andrew: Right, your example was perfect, but like, seriously, if you could, there would be no such thing as defamation. Everything by definition is a thing you think. If you didn't think it, you couldn't say it. Yeah. So that is absolute gobsmackingly stupid nonsense. It was filed two weeks ago. So the plaintiffs counsel have not had the opportunity to rip Giuliani's idiot lawyer a new one, but they will.

0:17:57 Thomas: Yeah, can't

0:18:19 Andrew: And, So take all of this away, here's, here's what I want you to know. Number one, there is a remedy available to uh, Shaye Moss and and Miss Ruby. Number two, they've already gotten uh, a settlement from OAN. I, I hope it is as many figures as anyone can count.

0:18:19 Thomas: Wait for that.

0:18:37 Thomas: Yeah can't I think of anyone who deserves it more. I really can't. Just volunteer workers helping our democracy go and their lives are ruined. Yeah. Pay those people.

0:18:38 Andrew: Right, and And, and I would feel the same way if the situation were reversed, right? I do not care if they are, you pro-democratic workers helping, like, again, let's, let's think about this. Most of the people they're helping out are, uh, again, I get it's Fulton County, but yeah, they very well, like, lots of old people, people voted for Donald Trump. I don't care. We're the party of expanding access to democracy, not the party of punishing people who do so. So, yeah, I

0:19:01 Thomas: Yeah, it could be Trump voters. Yeah well in the party of not horrible crackpot conspiracy theories about election workers. I hope

0:19:20 Andrew: Put a pin in that because it's going to come up in a later episode, but I had to postpone it for at least a week. The Department of Justice has just indicted a couple days ago. Andrew Gillum, who was the Florida candidate for governor, came within 40,000 votes of winning Winning the election in 2018 would have been way better than Ron DeSantis. And there's a lot of like bad left wing, you know, oh, this is a political witch hunt. And it isn't right. I mean, you Know, again, yeah.

0:19:33 Thomas: Oh yeah oh I actually don't know anything about this. What did he do? Well we'll do

0:19:49 Andrew: So we're going to cover it. So campaign fraud. But that's what he's alleged to have done. So, yeah,

0:19:50 Thomas: Oh wow can't he just do what Ted Cruz does and get the Supreme Court to rule that whatever he did is actually fine okay we'll talk um but what I didn't hear in any of that was Trump I only heard Giuliani and OAN and I but am I wrong I thought there were clips of Trump saying it as well did we not go that hmm

0:20:00 Andrew: Talk. We'll talk about that. So, yes, they have not yet sued Donald Trump. I don't know the strategic calculation on that, but they have definitely sued OAN and Giuliani and the best way for it to affect Trump would be for Trump to be indicted. That, So I think, is I agree.

0:20:13 Thomas: Interesting I agree but no harm in him also paying these people millions of dollars

0:20:31 Andrew: I agree, that I think is kind of how I want to tie together this segment. The a segment, in addition to we talked a little bit about Brad Raffensperger and his some of the specific consequences and death threats and doxing that was taken out on these folks. Folks, I thought the main point of the first hour on Tuesday was to to show that the crucial witnesses in Arizona and Georgia, Rusty Bowers, former Republican Speaker of the House, right? And in Georgia, Brad Raffensperger, Gabriel Sterling, the Secretary of State and the Chief Operating Officer, officer, these are powerfully good witnesses and they answered direct questions in a way that was consistent with the the very best of the witnesses that we've seen so far. Did you tell Donald Trump there were any, but yeah, we told them there were no more votes left to be found. We told them our count was accurate. We did this level of recount, it had an accuracy of 0.0067 percent. These are fantastic witnesses and that is showcasing.

0:21:09 Thomas: Yeah yeah well and then meanwhile I talked to my lord and savior Jesus Christ about it and I I, whatever, like I, it's a little bit of a mixed feeling for me. I wonder how you feel about that, but it probably only helps that they are fundamentalist Christian Republicans, you know, uh, testifying against Trump. But it is also a little uncomfortable when you see Democrats like Adam Schiff being like, and what did your personal savior, Jesus Christ tell you about this moment? And he's like, well, he told me that I need, and you're just like, wow, God, I hate that this is part of this, but yeah, no, it'S really not what, yeah.

0:21:35 Andrew: Yeah.

0:21:47 Andrew: That's that's right.

0:22:01 Andrew: I the Constitution is a divinely inspired document. Yeah. That's That's an outright lie that

0:22:07 Thomas: Yeah. Which which parts which parts were divinely inspired? The part with the three fifths clause and all the yeah, that stuff or no, not that part.

0:22:07 Andrew: Is. Yeah. Yeah. But So with that in mind, I, I agree with you. I think it helps when you're building the case to show that these are, because again, remember, everything comes down to like, the, you and I had a robust discussion one week ago this time about demonstrating the level of criminal intent necessary to convict Donald Trump. And I have said consistently that the way in which we evaluate that is going to be by the jury looking to decide credibility. Well, is hard for me to imagine more credible witnesses than Brad Raffensperger. Did you vote for Donald Trump? Yeah. Yeah. Did you want Donald Trump to win the election? Yeah. Were you willing to steal the election for Donald Trump? No. Like, those are really, that, that's the kind of witness you want. So that was Tuesday's hearing. That's the good news.

0:22:32 Thomas: Mm-hmm. Yeah. End of show. All

0:23:05 Andrew: There we go. Time to just dust our hands off and go home.

0:23:05 Thomas: Right. Short one today. All right, This episode is brought to you by The Jordan Harbinger Show. Do you want a new podcast to look forward to each week? One that's entertaining, informative, and packed with actionable content? Well, of course you do, because the average podcast listener has six shows in rotation. So you're most likely not just listening to us on Opening Arguments, and that's okay. In fact, here's another podcast you might want to add to your list. The The Jordan harbinger show, a top shelf podcast named best of apple in 2018. Jordan dives into the minds of fascinating people from athletes, authors, scientists to mobsters, spies, and even hostage negotiators. Last time I gave you the starter pack about Putin and disinformation. Check that out. Here's another one I think is really interesting. It's kind peeling of back the curtain on China. If you're like me, you might not know a lot of what goes on there because it's such a tightly controlled, kind of restricted environment.

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0:24:34 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:24:44 Thomas: OK, Andrew, what how is the Supreme court ruined our lives this time around?

0:24:49 Andrew: These are a pair of cases. Number one One, six, three cases. So again, if you've got centrists in your life, if you've people who read Politico talking about how middle of the road John Roberts is, John Roberts voted to sign on to both of these cases, did not write a concurrence, did no narrow them in any way. And these are two of the most activist decisions I have seen ever in my lifetime in the history of jurisprudence. The first is New York State Rifle and Pistol Association v. Bruin. The implication is the Supreme Court struck down a law that has been in mostly its current form in New York for 111 years. They've discovered now that it's unconstitutional. By the way, they discovered that it was unconstitional on the basis of no facts being developed on the record below.

0:24:56 Thomas: Yep.

0:25:44 Andrew: Just the law facially violates the Second Amendment, but you know, despite our love of history and tradition, we allowed six generations to come and go before this one figured out, oh, well, this is obviously blatantly unconstitutional. A worse aspect, so that law is New York's law regarding the open carry of a pistol or revolver. It is a law that is supported by a super majority of New Yorkers, right, in the 80 range, and again has been on the books for over a century. This is the Supreme Court attempting to force on New York the demented gun culture that they they believe exists across the country, even in areas where it plainly is the opposite.

0:26:36 Andrew: And so you want to think about like the small C conservative states should be laboratories of democracy. If you wanted to say that, right. Yeah.

0:26:43 Thomas: Yep. No states rights here.

0:26:45 Andrew: You would say, OK, look, like, let's keep in mind that gun culture in Arkansas is different than gun culture in New York City, And right? I would agree with you on that. And, you know, look like, hey, just move away. There's a lot of problems with that. I'm not saying that. But I am saying that, like, there is,

0:27:03 Thomas: Yeah. Like I don't care as much about open carry in, you know, South Dakota or Wisconsin because there's no people there. So it doesn't really matter.

0:27:12 Andrew: Going to get to that. One of the things that really struck me was in re-evaluating our view of the testimony in the Kyle Rittenhouse case, Which, I got wrong. I thought it was very, very clear that the aggressive braggadocio of wandering around, cosplaying as a member of SEAL Team 6, going to play into that adverse inference of what you need to affirmatively demonstrate to prove self-defense. And multiple

0:27:38 Thomas: Yeah, no, It turns out, we all have the God-given right to kill people in defense of other people's car dealerships in a state we don't live in. I believe that's in Two Corinthians, by the way. It comes from 2 Corinthians.

0:27:54 Andrew: I you don't understand gun culture in Wisconsin. You're thinking, uh, Maryland, California, like, yeah, a dude running around, you with a, an assault rifle, you aggressive in your area, that seems normal to us in Wisconsin. And I thought about that really seriously, right. And here, I think this is part it's not the sole reason for the decision. The decision is, oh, my gosh, I can't tell you how bad this decision is, and I'm going to try.

But I think it continues to be part of the right wing's long game of forcing their view of culture, cramming it down the throats of liberals who have tried to just carve out enclaves for themselves. Okay. Yeah. My DCV Heller is super bad. Let's do what we can and let's try and live in an area at least where, you know, we don't have to deal with the fact that people are doing this. And now the Supreme Court has said, nope, You you cannot engage in the practice of having a state regulatory agency decide whether or not to issue open carry permits for guns. You must mandatorily you can have, and I'm going to get to this in a

0:28:02 Thomas: Yeah.

0:28:57 Thomas: Nope.

0:29:15 Thomas: It's incredible. God.

0:29:16 Andrew: Second. Okay, you must have a presumptive regime in favor of granting people the right to walk around like it's 1874 in the wild west with a right with a pistol or revolver in plain view of everyone else. If you don't think that's going to change the culture in New York over the next couple of decades, I don't know what to tell you. Okay, by the way, this also this opinion, uh, so, so I'm going to talk about the specific law, I'm gonna talk aboutthe implications, which are chilling, but this is way worse than that. So the law was 400, uh, New York Penal Law 402 f New Yorg is one of six states and the District Columbia that have a proper cause standard, right?

And this is a subjective standard, it says, ifyou want to open carry, ifyou want a concealed carry permit, like lots of things about if youwant this kind of special gun thing, then we're going to require you to go before an administrative body and prove that you have a particularized need for this, right? The New York standard was, quote, to demonstrate a special need for self-protection distinguishable from that of the general community. Well, what's the obvious purpose of that? The obvious purpose is to say, in general, we don't want people walking around with guns strapped to their hips in New York City. And so you got a good reason to do that? Great. Apply to the state board and the stateboard will evaluate the circumstances.

0:30:53 Andrew: They'll check your psychological background and history. They will evaluate whether you deserve that exception. And by the way, if you look at the history as quoted by D.C. versus Heller, the history of the most expansive case for the Second Amendment is self-defense in the home that language comes from D.C. versus Heller. So we're not talking about self-defence in the house, we're talking about offense in public, right? We are talking about strapping the the pistol or rifle to your belt and just hanging out on the subway.

0:31:15 Thomas: Yeah, yeah, yeah.

0:31:30 Thomas: I think for conservatives, the home extends to wherever white people might be scared, I think.

0:31:35 Andrew: 43 states have objective standards that are not affected, asterisk, by this opinion. And those objective standards are fine. This could be things like, you have to be fingerprinted, you have to get a background check, you have a mental health records check, you have training in firearms and stuff like that. This point is made in Bart O'Kavanaugh's concurrence, of all people. And he's correct. Those laws are not directly placed at issue by this opinion.

0:32:05 Andrew: Yeah, yet, enough. If you were to ask, what are the other states that have this kind of subjective proper cause standard, you would get California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey. And, hmm, what do those have in common? Yeah, they're all liberal states, right? The Supreme Court's, like, it's only these six states here, but could you you imagine? There is zero chance that the Supreme Court would take, say, a law that was common in South Carolina, Georgia, Alabama, Texas, Louisiana, and Arkansas and say, it's only those six states. You'd say, no, there's a longstanding, deep-seated tradition in the American South of X. Well, right, this seems like a longstanding, deep seated tradition in liberal areas with large populations to want to not have people carrying guns on the subway.

0:32:04 Thomas: Yet, for now. Yeah?

0:32:58 Andrew: I'm sorry, I'm gonna skip over to the Maryland law. If you get my notes, my transcripts at the $3 level or above, then you'll get to read that. But yeah, these six states have very similar kinds of laws. I told you it was going to get worse, and here's how it gets worse. The rationale for this Supreme Court is and this is a Clarence Thomas opinion breathtakingly expansive, right. A less activist Supreme Court could have struck down the New York law just given what they had from D.C. versus Heller, right. They could have said, okay, we're going to use the test that every circuit court has applied since D.C. verses Heller, it's already super deferential to guns, right, as we we well know. And they could have said, yeah, we're going to apply intermediate scrutiny.

0:33:43 Andrew: This law is not substantially related to an important governmental interest. It's too wide. We're goingto remand and kind of give you some more guidance and, you know, come up with a better law than this. OK, that would be lying. Right. It is substantially related. To an important government interest. But that's also not good enough for the Supreme Court. This Supreme Court had to say, notwithstanding the fact that there is widespread agreement between the conservative and liberal circuits, between every court to have examined D.C. versus Heller, all of those courts got it wrong. And in fact, Heller is far more restrictive than even the most conservative circuits have thought. If you think I'm being melodramatic, I'm going to read you the opinion of Clarence Thomas.

This in Heller and McDonald McDonald was the one that extended, because D.C. was not incorporated out to the states, so McDonald was a Chicago case, incorporated out to the states we held that the Second and 14th Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home, language from both cases. In the years since, the courts of appeals have coalesced around a two-step framework for analyzing Second Amendment challenges that combines history with means and scrutiny. So the first step, the government may justify its regulation by establishing that the challenge law regulates activity falling outside the scope of the right as originally understood. So if the government can prove that the regulated conduct falls beyond the Second Amendment's original scope, the analysis can stop there. The regulated activity is categorically unprotected, and that is things like military weapons, from the language of D.C. versus Heller itself, as we talked about in our deep dive on Colby versus Hogan, right. But if the historical step, uh, if

0:34:00 Thomas: Yeah.

0:35:38 Andrew: The statistical evidence at this step is inconclusive, or suggest that a regulated activity is not categoricallyunprotected the courts then proceed to step two, where they analyze how close the law comes to the core of the Second Amendment right, and the severity of the law's burden on that rights. The courts then say, a core Second Amendment right limited to self-defense in the home. If a core self-amendment right is burdened, they will apply strict scrutiny. If a non-core right is hardened, they will apply intermediate scrutiny. Again, those are two exacting standards, so very, very deferential to guns, very, very hard for your laws to pass constitutional muster under that standard, as applied by D.

0:36:26 Andrew: C. versus Heller now, quote, despite the popularity of this two step approach. And again, just notice Clarence Thomas reduces the analysis of every court of appeal, liberal to conservative, as, quote popularity, right, because none of it counts if it doesn't match match up with what's going on in Clarence Thomas's head. So despite the popularity of this two-step approach, it is one step too many. We hold that when the second amendment's plain text covers an individual's conduct, the constitution presumptively protects that conduct to justify its regulation. The government may not simply posit Not posit it that the regulation promotes an important interest. Rather, the government must demonstrate that the Regulation is consistent with this nation's historical tradition of firearm regulations.

0:37:16 Andrew: Only if a firearm regulation is consistent with this nation's historical tradition, may a court conclude that the individual's conduct falls outside the Second Amendment's, quote, unqualified command, end of quote. It I died. I am so glad you noticed that, because that was the moment I

0:37:29 Thomas: Unqualified command. Weird. Did we erase the first part? I I guess we officially erased the first part of it.

0:37:35 Andrew: The second amendment is one of the only amendments that has an explicit qualifier in it. It is, it is this is a statement so dumb that only a motivated, dedicated activist surrounded by sycophants could have possibly written it, and John Roberts signed on to this opinion without sending back a little, like, hey hey, man, you might not want to say the unqualified bit about the only right in the Bill of Rights that is explicitly qualified. But so that's the new test. The test is, hey, is this gun kind of gun control the kind of thing that has historically been allowed, dating back to the 11th century? And if you think I'm full of shit, there is 30 pages, I'm not making this number up, about wearing armor in the Middle Ages, in order to declare unhistorical and therefore unconstitutional a law that has stood. And again, it's mostly present form since 1911.

0:37:40 Thomas: Yeah. Yep.

0:38:34 Thomas: Sorry. I'm new here. Is Middle Ages law binding on U.S. constitutional law?

0:38:40 Andrew: Apparently, It is right now. It is a terrifying, unbelievable level of deference to I I'm not kidding, there's six pages on like whether squires had to wear gauntlets, and I mean, just the kind of thing that future lawyers will look back at and go, "Was everyone insane in the 21st century?" Like, Like, what happened to these people?

0:39:04 Thomas: Yeah. Well, I know that when they were going to Rohan to meet the king, Gandalf had to put his staff, like there was staff control at the door. And so that probably should be an argument in our favor, right? Because

0:39:21 Andrew: But You will never intentionally be as funny as Clarence Thomas is unintentionally. That is, if this were not now the law of the land. So Clarence Thomas sees you are that, and and one ups you with, just think of this madness. You have to try and convince Clarence Thomas that literal 13th century Saxony law allows you to ban handguns, or the public At minimum, the public, the public display and possession of handguns? And so, God bless these people, they they actually went out and did that research, and they were like, um, yeah, there are actually lots of laws going back to 1285. This page 37 of The opinion.

0:39:47 Thomas: Right.

0:40:05 Andrew: I'm Not making This Up and

0:40:04 Thomas: Like, all right, we got to go to a bunch of Ren Fairs and stuff to try to make this Supreme Court argument. I don't know. I just don't... I don't know anymore. Just do it. Put Just put on the suit armor and let's go ask a bunch of Ren Fair nerds if there was sword control in the year 982. There

0:40:16 Andrew: That's What happens In this opinion. And so, Clarence Thomas says, "The medieval period, almost everyone carried a knife or a dagger in his belt. While these knives were used by knights in warfare, civilians wore them for self-protection, respondents point to no evidence suggesting that these 13th century laws applied to the smaller medieval weapons that strike us as most analogous to modern handguns." Okay, so that's that's Clarence Thomas Telling you By the Way, a dagger is the most analogous weapon to a modern handgun, not, you know, a handgun, because there were guns At the time. So then we get this, and I swear to God, I'm not making this up, this is page 39 of the opinion, it's it's the 33rd written page, but goto page 39 on the PDF. "When handguns were introduced in England during the Tudor and early Stewart eras, they did prompt royal efforts at suppression. For example, Henry the Eighth issued several proclamations decrying the proliferation of hand guns and Parliament passed several statutes restricting their possession." Okay, so, right. Right. That's

0:40:43 Thomas: Is no analogy... Yeah. Oh,

0:41:20 Andrew: It. Game over. Go home. Right. But Henry VIII's displeasure with handguns arose not primarily from concerns about their safety, but rather their inefficiency. Henry VVIII worried there's no citation for that. That is a sentence in a Supreme Court opinion written by a Supreme Court justice that is just like out there, like everyone knows that about Henry VIX. Anyway, right? Henry VX worried that handgun's threatened Englishman's proficiency with the longbow, a weapon many believed was crucial to English military victories in the 1300s, including the legendary English victories

0:41:20 Thomas: Okay. Yeah. Oh. I can't even.

0:41:55 Andrew: At Creche and ashen core this we We have 30 pages, and again, I am not exaggerating, of Clarence Thomas going, "Yeah, okay, there have been handgun restrictions throughout history, but not the right kind of handgun restrictions, so therefore this this applies to a New York law."

0:41:55 Thomas: I just. What are we even doing here?

0:42:17 Thomas: Apparently, if Henry VIII's reasoning had been different on his gun control, if his, he acknowledged, oh my, we're just so out in outer space here, Andrew. This is the stupidest sequence of sentences I've ever heard. But presumably to deal with this great counter-argument that Henry VIII did gun control. He's got to find a reasonable way around this. Cause you know, that's just a knockdown argument to whatever the fuck we're doing here, Andrew. The reasoning is, well, hold on. Even though he did do gun gun control. He did it because he wanted them to be better with long bows, which,

0:42:20 Andrew: Yes. Long bows. I am not making that

0:42:57 Thomas: Which

0:42:57 Andrew: Up. That is a Supreme Court justice wrote that

0:42:59 Thomas: If you took this at his face, which none of us should do, it is the dumbest thing I've ever heard in my life. I can't believe this is a Supreme court decision, but let's, go to outer space or D and D or middle earth, wherever Clarence Thomas is that That supports our position because there was gun control for reasons that were subjective to Henry VIII. Apparently, subjective gun control was totally fine, right?

0:43:22 Andrew: You have made an excellent point. It is a point well summarized by Justice Breyer in his dissent. And again, Justice Breyer is retiring, conciliatory, not willing to say what I wish he would say, which is the majority's opinion is Clarence Thomas substituting what he thinks for historical judgment. Instead, he makes five points about the rather challenging notion of applying 13th century Greaves law to modern concerns about gun control and about this sort of historical process generally. One, it's super hard for courts to do the kind of historical analysis that Clarence Thomas wants. Right, particularly at the trial court level where courts don't have the same resources as the Supreme Court.

0:44:12 Andrew: Right. Every judge doesn't have a couple of clerks that they can just send out. They have a hundred times the docket. Right? And they've got to like speedy trial act to make sure that you are handling all of your criminal defendants who come in. Right, people don't write amicus briefs the same way they do. Right like most of that nonsense that Clarence Thomas is parroting comes from amicus briefs that were submitted at the Supreme Court level that just don't get submitted to your district courts. So when you say, hey, this is the kind of analysis the district courts should be doing, Justice Breyer begins by saying, that's idiotic to expect a district court judge to do that. I know that's little insidery baseball, but he's 100% correct. And it's a really, really good argument against originalism. Judges aren't historians. Local district courts are just not equipped to do the kind of random research that Clarence Thomas wants them to do.

0:45:02 Andrew: Number two, two, he says, how do you weigh when they're competing historical claims, there might right? Be, oh, a gun control law put into place by Henry VIII, but Then also a gun possession law put into place later, right? There is literally no Guidance For Balancing that Up, yeah

0:45:10 Thomas: Yeah. By another monarch that I don't care about any of them, so I don't know their names. Paul, George, Ringo, one of them. I don't know.

0:45:17 Andrew: Right Yeah Rick Go. The first yes, point number three, historians often look at the same evidence and come to competing conclusions. Right, they disagree about what it means, quote, "the extent to which colonial statutes enacted over 200 years ago were actually enforced, the basis for an acquittal in a 17th century decision, and the interpretation of English laws from the Middle Ages," to name just a few examples, are often, he says this with, I think, a touch of tongue in cheek, less than clear. And even historical experts may reach conflicting conclusions based on the same sources. Perfectly good argument.

Argument number four, consider the court's apparent preference for founding era regulation. Our country confronted profoundly different problems during that time period than today. Society at the founding was predominantly rural. In 1790, most of America's relatively small population of just 4 million people lived on farms or in small towns. Even New York City, the largest American city then, as is now, had a population of Just 33,000 people. Small founding era towns are unlikely to face the same degrees and types of risk from gun violence as major metropolitan areas do today. So the types of regulations they adopted are unlikely to address modern needs.

0:45:52 Thomas: Yeah. Yeah.

0:46:38 Andrew: Again, I don't see how anybody could dispute that. And then we come to the conclusion. So where does that leave the many locations in a modern city with no obvious 18th or 19th century analog? What about subways, nightclubs, movie theaters, sports stadiums? The court does not say.

0:46:56 Thomas: We're going to have to look to ancient Rome and the Colosseum, I think, to figure out what they did there for the sports and animal.

0:46:59 Andrew: I yeah I. Although I hope fervently that future courts will be able to identify historical analogs, supporting the validity of regulations that address new technologies, I, I fear that it will prove difficult to identify analogous technological and social problems from medieval England, the founding era, or the time period in which the 14th Amendment was ratified. Laws addressing repeating crossbows, launch gaze, dirks, daggers, skeins still ladders, and other ancient weapons will be of little help to courts confronting modern problems. And as technological progress pushes our society even further beyond the bounds of the framers' imaginations, attempts at analogical reasoning will become increasingly tortured. In short, a standard that relies solely on history is unjustifiable and unworkable. And I will tell you, this, is you should read Justice Breyer's dissenting opinion. It really is kind of a master class in why originalism, as a project, is unworkable and unjustifiable. So, but you, that's our Supreme Court, got one more case to tell you about. Are you buckled in?

0:48:03 Thomas: No, Andrew, I'm not buckled in fathers because didn't wear seatbelts, so I don't have to anymore.

0:48:07 Andrew: That's True, if I were to ask a do the, like, Jay Leno walk, walk amongst the population and say, "Name a constitutional right that you have." What do you think the average person, right? Let's say we're playing a family feud, right. You want the number one answer on the board. What's the number 1 answer that you're going to get from the public?

0:48:18 Thomas: Yeah, I love this.

0:48:30 Thomas: That's a good question. I want to actually do this. We should do that. That would be fun because I think it would, I mean, I think people are pretty familiar with freedom of speech. They'd be like, well, I have freedom of speech, but I also think they'd put a lot, they answer a lot of stuff that isn't there. Like, well I have the right to remain silent and I have the right to an attorney when the such and such. And I, you know, like I think they would put a lot of that stuff. I don't think the number, even the top 10 answer would be not to put soldiers in my home.

0:48:33 Andrew: Yeah.

0:48:55 Andrew: Yeah, I think that's right. So I also think you hit on what I would guess is the number1 answer, right, right, to remain silent and the right to remain silent is a constitutional right derived through the Fifth Amendment. Through the 1961 case Miranda versus Arizona, the Supreme Court ruled that that's not really a right that you have, in other words, right, I think the American public most associates as having, this Supreme Court said, yeah, not really.

0:49:03 Thomas: Yeah. Wow.

0:49:25 Thomas: Fun trivia fact about that. Right. Everybody, you don't have it is what the Supreme Court said.

0:49:26 Andrew: Yeah. Yeah. Another 6-3 decision. No concurrence from Roberts. No modifying language. 100% on board. This dovetails with our discussion with Matt Cameron on Tuesday. Tuesday. So here's what happened in this case. This case is called Vega versus Tico. And Vega is a state cop. It is contended, we do not have a ruling, that Vega used, quote, coercive investigatory techniques in order to extract a confession from Tico. Vega denies this, this, but I'll allow you to do that. What Vega does not deny was that he did not Mirandize Tico. He did not say, hey, you have the right to remain silent, you have the right to an attorney, if you cannot afford an attorney, one will be appointed for you by the court. So Tico didn't know he had the right to, or at least was not informed. I can't tell you what Tico knew or didn't. I can tell you Tico says that he was beaten into giving a confession.

0:49:29 Thomas: Cool.

0:50:29 Andrew: Uh, that went to trial. And as sometimes happens, right, sometimes it goes to trial, but sometimes when a confession is beaten out of you, you just plead, right, it doesn't go to trial and there's no opportunity to opportunity to use the ruling from Miranda that says, all right, you can't use that confession. Right. Here went to trial and the confession was suppressed. I will tell you also that, by the way, that intervening, that six decades of Supreme Court decisions have narrowed the effect of a Miranda suppression. Right. So, in other words, all evidence that you gain as a result of that statement. Right, like when the cops beat a confession out of you, they don't just beat you into signing a piece of paper that says, I did it, signed Thomas Smith. Right. They, right, beat you into, I did it, the body is located here, the firearm is located here. Right. You get additional evidence in that confession and that evidence is not automatically excluded. It used to be under the fruit of the poison tree doctrine.

0:50:39 Thomas: Yeah. Yeah,

0:51:26 Andrew: But now a variety of exceptions have arisen to kind of connect that up. So in other words, when the cops beat a confession out of you and don't deprive you of your rights, They are not from using their illegally gotten gains, even under the rules as of yesterday. But now it gets worse. So Tico, very smartly, said, guess what I'm going to do? I am going to sue Vega under 42 U.S.C. Section 1983 for violating my civil rights. How did you violate my civil right? Well, you beat the crap out of me. And you didn't Mirandize me. Right. And that is a violation of a right to which I am owed. And Tico Tico, asked the court to instruct the jury that there was a presumptive violation of his rights by not being Mirandized.

0:52:12 Andrew: And that's what this case is about. This case is the Supreme Court saying you do not have a right. You do not have a separate cause of action under 1983 for not being Mirandized. And again, want to go back to the strict textualist interpretation of the law. Here's, here's what Section 1983 says, and I'm going to elide over some stuff in the middle. Every person who, acting under color of state law, subjects any citizen to the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws, shall be liable to the injured. Okay, that's pretty straightforward, a cop is somebody acting under state law. Law. He subjected Tico, by not reading him his rights and then allegedly beating the confession out of him, to the deprivation of a constitutional right, the right? Right to be informed that he has the right to remain silent and the right of counsel. So he should be liable, right. Well, not if you're this Supreme Court. So this Supreme court says, this

0:53:11 Thomas: You would think. You see executioners in 1211 used to do this all the time and no one cared. So it's fine.

0:53:22 Andrew: Supreme, Supreme Court says that Miranda is a prophylactic rule. It is not a constitutional rule. It's not a constitutional right. And therefore, you do not have the separate right under Section 1983 to sue to enforce it. I'm going to work from backwards from the end of the opinion, which because the sycophants are already out in force to say, well, this doesn't completely overrule Miranda. And I'm going to talk about that in a second.

But it says, "In sum, a violation of Miranda does not necessarily constitute a violationof the Constitution, and therefore such a violation does not constitute the deprivation of a right secured by the Constitution." So the Supreme Court says you have no constitutional right to be informed that you have the right to remain silent and you, you have the right to have an attorney appointed for you. Does this still exclude coerced statements at trial? Yeah, as far as we can tell, until the Supreme Court, until this is an Alito opinion, but until, you know, the howler monkeys have a crack at that, it's still prohibited from introducing that coerce statement at trial. But there are now a whole bunch of caveats that you would put into place around it. Number one, right, there are lesser restrictions for ancillary evidence adduced as a result of coerced confessions.

Number two, when you coerce a confession from someone without apprising them of their Miranda rights, they very often then plead out in the same situation, right? It's like, okay, well now you've confessed, okay, so let's, you know, get the district attorney in here and get you pled down right away, right.

0:55:00 Andrew: So these cases don't go to trial, and ultimately that there is now no incentive, and it would shock me if this doesn't become a regular part of the kind of winking behind the scenes, what, you know, Alan Dershowitz used to call police testifying of, yeah, well, you know, if you don't think somebody is going to understand their Miranda rights, then, um, don't inform them of because it what, what will happen to you? The Supreme Court has now said nothing. You are immunized.

It is not a cause of action for failing to tell somebody that they have their Miranda rights. And so what happens if you don't? Okay, well, maybe you get a statement, maybe it don't. Maybe it goes to trial, maybe it doesn't. Maybe it's suppressed a trial, maybe it isn't, maybe the additional evidence is, but maybe it's not. It, if you are trying to oppressively get a confession out of a low information criminal defendant, you somebody who, for example, may speak English as a second language or not at all, somebody who is not otherwise well informed of their rights, somebody that does not have the wealth to maintain a private attorney, that there's... now no, no doubt, you just roll the dice. Well, the worst thing that happens is, oh, this, can this coerced statement is suppressed.

OK, well, all right, I tried. Is It cannot be overstated just how much of a gutting this is. And, and, and that is, in fact, what Kagan says her dissent, which is, again, this is a 6-3 shocker. I don't have to tell you the alignment when I say these are 6-

0:56:34 Andrew: 3 opinions, right? Today, the court strips individuals of the ability to seek a remedy for violations of the rights recognized in Miranda. The majority observes that defendants may still seek the suppression at trial of statements obtained in violation of Miranda's procedures, but sometimes such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed on appeal or in habeas, which this court is wrecking, in getting the conviction reversed. "But then, what remedy does he have for all the harm he has suffered?

The point of Section 1983 is to provide such redress, because a remedy is a vital component of any scheme for vindicating cherished constitutional guarantees. The majority here, here as elsewhere, injures the right by denying the remedy," with a citation to the case we discussed at great length just last episode, Egbert versus Bull. And so, here you have it, this is the Supreme Court moving us along to that Chief, you, Wiggum view of, uh, I said the police were powerless to help you, not powerless to hurt you, uh, that's where the Supreme Court has put us, uh, in the past week.

0:56:33 Thomas: Yeah yeah yeah yeah.

0:57:41 Thomas: So we basically don't have the the right to remain silent? Is Miranda rights basically done?

0:57:45 Andrew: You You still have the right, and you have the right to be informed of that right. It's just, if the cops don't do it, you don't have any remedy. Yeah. Now you do have Again, you can ask to suppress it at trial, and maybe the, the, you, you think the cop that, uh, decided not to inform you of your right to remain silent, even though every police officer knows they're required to state that, you, right. Think that that cop might lie on the stand? I don't know who. No, could I possibly impugn the motive of a cop that's trying to beat a confession out of a subject?

0:57:54 Thomas: Okay. So again, yeah.

0:58:17 Thomas: But like, okay. I have the right not to just walk down the street and have someone kick me in the groin as hard as they can. But if I have that right, but there's nothing I can do if somebody does that, like I have no right to sue them. There's nothing anyone can do. Do I have a right to that a right that I really have, Andrew?

0:58:35 Andrew: That's what Justice Kagan says in dissent.

0:58:37 Thomas: If a right falls in the forest and no one is around there for a remedy.

0:58:39 Andrew: And no one's there yet. Yeah.

0:58:41 Thomas: Do you even have it? I guess.

0:58:42 Andrew: It I will make this not bold and dreary prediction. And it is an extension of what I had just said. I think if nothing happens to this decision, if we do not undertake serious and systematic court reform, then within a generation, that trend, right, the reason that people would identify the right to remain silent as the number one answer in Family Feud, think, right, that will die out as a social condition. I think the cops will start selectively deploying it,

0:59:16 Thomas: That's what I was going to ask you. I wonder, do you think they'll still train this or do you the training? I mean, the training is already abomination anyway, but like, I wonder will they bother or will they be like, yeah, like you said, just roll the dice. What's the worst that can happen? The worst that can happen is maybe if the person who's been railroaded by the justice system gets access to an attorney, uh, who's worth a damn and can maybe fight back.

0:59:27 Andrew: Who, whom, they do not whom you have not informed them that they have a right to, it

0:59:38 Thomas: Exactly. Right. Right, maybe then they'll get a statement stricken. That's it. That the wor- right? That's the worst thing that can happen from the officer's perspective.

0:59:44 Andrew: It's the, when you're playing Monopoly with, you, WITH HEATH, the remedy and for stealing money from the bank is you have to put it back. Well, what incentive is there not to steal money?

0:59:56 Thomas: Yeah. Guess what? Heath all of a sudden has all the money in front of him. Weird.

1:00:00 Andrew: Yeah. Shocker, why right? Would you not? Oh, you caught me that time. Yeah, I'll put it Back that time it It is I cannot sound the alarm highly enough. And the the fact that apologists were sort of out in force when this opinion came down to say, well, Well, you know, this doesn't really go. Oh, yeah. Even on our even on our Twitter feed, this doesn't even say you don't have the right anymore. No, it just takes away. It just takes away the remedy and the disincentive for violating it. So, yeah, this is this is as terrible as it gets or or is it? We're going to have Andrew Seidel next episode.

1:00:06 Thomas: God, this is wow.

1:00:36 Thomas: They were? Oh Yeah. Yeah, you thought you were were done, listeners, with how terrible it gets. Well, maybe he didn't actually, because you listen to the show, you know what's going on, and even, well, I won't say worse, but, uh, very very very bad another very bad decision, uh, is on the docket for our Tuesday episode. You, you already spilled the beans with Andrew Seidel, so I think everyone knows what's coming, but, uh, we'll look forward to at least having Andrew on we'll look forward to at least having Andrew with us, that's always a slight comfort in these trying times.

1:00:58 Andrew: Ocean law, ocean law.

1:01:06 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:13 Thomas: Now it's time for T3BE. Uh, once again, I think my answer is going to be whatever the f the Supreme Court thinks, and that'll just be answer E every time. Like, if I just decide that it's different, then it'll be different. But for now, I'll try to answer a bar exam question as though the law still matters and exists.

1:01:31 Andrew: State A requires all State Park Rangers to pass a fitness test in order to be hired for a job as a State Park Ranger. Justification? Yeah, is that the job require intense physical activities. Primarily men apply for the last year, 50 men applied for the job as State Park Rager, and 10 women applied. 30 people passed the physical fitness test, all were men. The women brought a lawsuit claiming that the physical fitness test violated the Equal Protection Clause of the U.S. Constitution. Will the women prevail in their lawsuit? Again answer before answer before the Supreme Court became The Handmaid's Tale, so a

1:02:02 Thomas: Whatever it is in today's Supreme Court, will the women prevail? No. Yeah. A, no, because women are no longer allowed to have jobs in our country. That'll be, yeah.

1:02:17 Andrew: No, because the state can show that the fitness test is substantially related to an important government interest. B, no, because there is no rational basis for the physical fitness test. C, yes, because the state cannot show that the fitness test is substantially related to an important government interest, or D, yes, because, because the women can demonstrate a discriminatory impact. All

1:02:38 Thomas: Oh, Tricky, tricky. I think I've had a lot of training on this from the show on this particular issue. Not that that is going to mean I'll get it right, but I can at least look like I know what I'm talking about as I get it wrong. So this is a suspect class or whatever. Like this is one of those, because there's the different bases, there's rational basis. There's, um, there's the strict scrutiny, intermediate scrutiny, and basically no scrutiny. The fog mirror test, rational basis, whatever.

And I think for some stuff, it's, you know, it doesn't, as long as the government can come up up with anything, it's fine. For other stuff, the government has to, you know, come up with quite a lot because maybe it's a disparate impact kind of thing, or maybe it is a suspect class. This strikes me as, okay, state park rangers, the job requires intense physical activity, that strikes me at least a It's definitely a rational basis. Is that a substantial government interest or whatever, an important government interest? I I think probably, I think something, I, that is a test that theoretically, you women could pass if if they're at a certain level of fitness and the state's able to say this job requires that, seems to me to be at least a intermediate level basis. I don't know if it's like the highest level of justification. I'm not sure if that's what we'll need.

So I'm leaning toward no, because this seems like it's an objective standard that the government could justify. Let's see. So A, that then. A. No, because the state can show that the fitness test is substantially related to an important government interest. So that would be like the intermediate or higher level of scrutiny. B. No, because there is a rational basis for the physical fitness test.

1:04:21 Thomas: I think that's the attractive distractor that perhaps Thomas, as of 2016, would have thought. But I think because it's men and women, there is a little more scrutiny going on. You got to look at it a little harder. I think you need more than just rational basis. Let's take a look at the yes answers just in case. C, yes, because the state cannot show that the fitness test is substantially related to an important government interest. So that's if it fails that level of scrutiny. Or D, yes, because the women can demonstrate a discriminatory impact. That's kind of the wild card. I don't know what that would be exactly. That strikes me as some sort of element that would contribute to what level of scrutiny you're looking at, but I don'T think D is right. I think that's another attractive distractor. I think it's pretty solidly between A and C.

1:05:06 Thomas: I think it's whether or not they can show it's substantially related to an important government interest, and I, I don't know exactly the criteria for this, I don't know like what makes a substantial thingy versus of just a rational thingy, but I, this seems reasonable enough, like if the state park ranger, if the job requires intense physical activity, that, that seems good enough based on how the law would be, um, because I know, like, there's other things like fire firemen or whatever, like there's other places where I feel like this exists and it wouldn't if this were, were wrong. So, I'm going to go with A, no, because the state can show that the fitness test is substantially related to an important government interest. Second chance answer would be C.

1:05:47 Andrew: Right, and if you want to play along with Thomas, you know how to do that, just share it, this episode, on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune, fame and fortune not guaranteed, and

1:05:59 Thomas: And now it's time to thank our patrons, our new patrons at patreon.com/law. You got to go there and enjoy the law great hearings coming up very soon. We'll get that out to you within a few days. So these fine folks will be enjoying that hearing. Thank you to Pat Waters, Jared Wood, Aaron Urbain, Tyler Everett Adams, Anthony Atanasio, Average, Brandie, Stephen Reimers, and Jackson Gibbs. Your turn, Andrew. Ah.

1:06:25 Andrew: A big thank you to Heartfelt Crunchwrap

1:06:27 Thomas: That's the nicest thing anyone can send me and

1:06:30 Andrew: Good Sir Chadwick, well, how appropriate for this episode, Joey Flores, Tara Churchill, Lawrence Frank, Kevin Prado, Nathan Tilley, and Bradley Adams, thank you all so much.

1:06:42 Thomas: That's our show uh once again we're doing law grade hearings we're jealous that you've already seen the hearing and we haven't gotten to because we've been recording can't wait to talk about it tomorrow and get that out to you right away so go to patreon.com/law or we know a guy if you if you can't for whatever reason email open open arguments at gmail.com and just put in the subject line LGH, Laud Great Hearing, and we'll we'll uh we'll get a smuggler, yeah, we'll smuggle you a file uh and

1:06:57 Andrew: Open we'll hook you up uh we're shooting first, though definitely, uh, also a little message from a certain ace associate, uh, that apparently today's hearing is quote, "why wild," and then insane, so uh, I, I am I'm looking forward to it

1:07:25 Thomas: We don't get to watch yet, I can't wait a lot of great hearings, can't wait, see you then.

1:07:31 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:08:04 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.