Speaker 1From the National Constitution Center in Philadelphia, this is We the People. I'm Tom Donnelly, a law professor at the University of Richmond and lead scholar here at the NCC. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. The Second Amendment reads, A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. When, if ever, can the government limit the individual right to possess firearms, and when can't it? In this episode, we trace the ongoing debates over the Second Amendment, analyze Supreme Court decisions on this key provision, preview a key case that the Supreme Court will hear this term, and look ahead to issues on the horizon. To help us explore the past, present, and future of the Second Amendment, we are joined by two of the nation's leading scholars of this provision. Joseph Friedman. Joseph Loecker is the Lanty L. Smith 67 Distinguished Professor of Law at Duke Law School and the faculty director and co-founder of the Duke Center for Firearms Law. He is the co-author of Free Speech Beyond Words and the Positive Second Amendment, Rights, Regulation, and the Future of Heller. Joseph, it's wonderful to welcome you back to We the People.
Speaker 2Thanks so much, Tom.
Speaker 1It's great to be here. And Clark Neely is the Senior Vice President for Legal Studies at the Cato Institute. He is the author of Terms of Engagement, How Our Courts Should Enforce the Constitution's Promise of Limited Government. Clark served as co-counsel in the landmark Second Amendment case, District of Columbia v. Heller. Clark, it's wonderful to welcome you back to We the People. Thanks so much. Great to be with you. And maybe, Clark, I'll start with you. We'll start big picture and then sort of drill down into specific cases. But, you know, at some basic level, how would you evaluate the state of the Second Amendment here in 2026?
Speaker 3Well, I think it's very much in flux. As you know, many of your listeners probably know the Supreme Court has decided to adopt a much different kind of framework or analysis for deciding the constitutionality of gun regulations. Most constitutional cases involving the assertion of some right, the court will choose a level of scrutiny. In other words, how hard a look to take at the government law, what kind of justification will or will not suffice, and then decide the case on that basis. In a 2022 case called, New York State Pistol and Rifle Association v. Bruin, the Supreme Court just jettisoned that whole framework and just said, nope, we're going to take a different approach that has been dubbed the text, history, and tradition approach that, in a nutshell, requires a two-step process. First, you look to see if the conduct in question is within the ambit of the Second Amendment. If the answer is yes, then the government has the burden of demonstrating that whatever that regulation is, is consistent with our nation's history of firearms regulation. Now, good luck trying to figure out what exactly that means because the court has said sort of two things at once. First, you don't have to go back and find a perfectly identical analogy, like an identical regulation, but it has to be close enough. And what we're seeing right now is the Supreme Court essentially trying to work out this question of how do you determine whether a particular historical regulation of firearms does or does not suffice to justify a modern regulation of gun ownership.
Speaker 1Well, that's a great question. Great frame there, Clark, in giving us some of the, you know, background tests that we need to have in mind as we think about the various issues that we're going to explore in this episode. But, Joseph, I'll give you a chance to answer the big-picture question first before drilling into specifics. How would you evaluate the state of the Second Amendment in 2026?
Speaker 2Well, I agree with everything that Clark just said sort of descriptively, and I think it points us to some of the things hopefully we can talk about today. I mean, at a very, very broad level, the way I often describe it is that the Second Amendment today is about where the First Amendment is. The Second Amendment was a century ago, which is to say, you know, that you didn't really have a development of First Amendment doctrine and theory until, you know, Holmes' dissent in Abrams in 1919 and Brandeis' decision in Whitney in 1927. And, you know, and then scholars like Zechariah Chafee are kind of putting the sort of meat on the bones of what the freedom of speech is all about. And that's kind of where the Second Amendment is now. And, you know, as you sort of mentioned in the intro, like, you know, Clark and I, in a lesser way, we're there for the creation, effectively, of the modern Second Amendment, which was the court's decision in Heller. But Heller leaves all these big open questions on the table, some of which Clark was just describing there. I mean, I think the big, big one, and this is coming back to your question about what is the state of the doctrine, courts are really trying to figure out not just, like, which regulations are permissible under the Second Amendment, but, like, how do we know? Like, what is the method we're going to use to evaluate whether particular restrictions are permissible? And I think that's fascinating, both because the Second Amendment itself is fascinating, like, it's useful and just important intrinsically, but it's also, I think, really, you know, potentially like a vanguard of where the court wants to go in other areas of constitutional rights doctrine. So the history and tradition test Clark described, it's most prominent, I think, so far in the Second Amendment, but it might be where we're headed for freedom of speech, religion, and so on. So for all those reasons, I think it's a, just as Clark said, it's a very active area, a ton going on.
Speaker 1Yeah, beautiful framing there. And, no, you're totally right, Joseph, in the potential broader implications of the development of Second Amendment methodology already signals in the Establishment Clause context, for instance, in a turn towards history and tradition. But I want to dig into a lot of the, you know, the nuances of the court's approach during our conversation, but probably best to do that in the context of specific cases. And so, you know, maybe we could turn squarely now to last Supreme Court term, where we have, you know, two cases decided by the Roberts Court. One, United States versus Hemani, which, you know, the court was, you know, largely in agreement about some separate writings as part of it, but there's, you know, not big divisions on the court over that case. And then Wolford versus Lopez, where we do see a divided court. And so maybe starting with United States versus Hemani, let's, you know, try to, you know, unpack that for our listeners. Maybe turn back to Clark and just give us some background. What's going on in that case? You know, what is the statute that's involved? Just the, sort of the facts and background before we go into the legal analysis.
Speaker 3Yeah, so there are a significant number of federal restrictions on gun ownership, and many of those appear in a statute called 922G. That's the part of the code where they appear. I won't try to enumerate all of them, but a couple that are of particular importance are, one, and this was the law that was at issue in Hemani, it prohibits unlawful users of controlled substances from possessing firearms. Now, I think many people would probably feel like you could make a reasonably strong case for that if it's some kind of, you know, really powerful and addictive drug like methamphetamine. But of course, at the other end of the spectrum, you have marijuana, which now more than half of states allow people to consume either recreationally or for medicinal purposes. And that has, I would say, gained pretty well wide social acceptance. In fact, I think there was a survey a year or two ago that indicated that more people now report being regular users or consumers of cannabis than of alcohol. So we're talking about millions and millions of people who would, under this law, would be forbidden from owning a firearm or possessing a firearm if their use rose to the level of being an unlawful user. And that term's really not defined in the statute, so we don't know exactly what it means, but clearly it's going to, it's something that would affect, a large number of people. So this was a criminal prosecution of a guy named Himani who had a firearm at the same time he was consuming marijuana. Really a pretty unsavory character based on the biography, the short biography we get from the court, has, seems to have some very, his sympathies lie with the Revolutionary Guard in Iran, and he has some unsavory drug and perhaps also weapons contacts, et cetera, et cetera. So many of us thought that perhaps the Supreme Court had agreed to take this case featuring such an unsavory defendant in order to uphold that law because the framing would have been, you know, sort of more conducive to that outcome. But instead, we got not only a decision striking down that law as applied to Mr. Himani, but the first time in its history that the Supreme Court has unanimously ruled against a government regulation in a Second Amendment case. So I sort of joke around that it's, you know, guns and drugs, who would have figured that's your first unanimous opinion from the Supreme Court. But it's important to emphasize that it wasn't a sweeping strike down of the law, in other words, that it's unconstitutional in all, in all contexts. It was an as-applied ruling. And so what's going to have to happen now is that individual defendants will have to make the case that their particular situation is, you know, one that doesn't support the application of this law as to them. So my sense is that what's most likely to happen is some people will be within the protection of the Second Amendment when they're consuming illegal substances and some people will be outside. And I don't really have a very clear idea of where the court is going to draw the line. I suspect the justices don't either.
Speaker 1Yeah, in Himani's case, you know, here's someone who, in his specific context, you know, he admitted to using marijuana, I think, roughly every other day, was sort of his, you know, the facts surrounding him in this specific challenge. Maybe turning to you, Joseph, give us a sense here of, you know, Justice Gorsuch's which writes the majority opinion, maybe walk us through some of his reasoning That, again, secured, you know, fairly broad support here on the Roberts court.
Speaker 2Yeah, it's really interesting. And I just want to underline something that Clark said, which I think kind of explains where many of us thought Himani was going to go and then it didn't end up going. I mean, when Heller was decided, the court said, hey, here's a bunch of forms of regulation that are presumptively constitutional, including the prohibition on possession by felons. That is also part of 922G. That's the law that the federal law that Clark mentioned. And those felon in possession cases account for like a quarter to a half of all Second Amendment challenges. Like it's a huge, huge issue. It has divided the lower courts. And I think some of us thought Himani was going to be the Supreme Court's like kind of sidling up to the question of felons in possession and saying something about, well, you can disarm dangerous people. Not all felons are dangerous, you know, to give some more guidance there. And then I think they got into it and it just got a lot harder than they expected because the particular prohibitor. Here, which is 922G3, just as Clark says, it's pretty vague. Like, what does it really mean to be a habitual user of controlled substance is tricky. And the facts, you know, a guy who uses pot every other day, like what's really the big deal? So Justice Gorsuch writes this opinion for the court. It's not particularly long. It is unanimous. I think that's notable. I think the other thing that's notable, which again, I'll underline from what Clark said, it's so narrow. Like it is accepting an as applied challenge on some very odd facts. And Gorsuch even goes through like a long list of things they are not deciding. Like we're not deciding if, you know, if he was using a different drug or if there was evidence that using marijuana made him dangerous. The government didn't have any of that. So it's almost like a ticket good for one ride only, it feels to me. But I do think it's really important. And Clark mentioned this, too. The sort of intersection of guns and drugs here is, I think, fascinating and something that people need to think about and unpack more. Dave Posen of Columbia and I just wrote an article. I wrote an article on this on Himani, which is available online, drawing some connections between and this will alienate people on all sides of the debate here, but drawing some connections between the war on drugs and the war on guns. My own view as somebody who favors having more regulation of guns than we do is that we tend to underregulate some areas and then we tend to overregulate others that we have not expanded background checks. That's a problem. But then we heap criminal punishments on people who've just committed possession crimes. That's a problem, too. And there's there's kind of a similar, I think, extremism that evolves in both those areas. The other thing I would say about Justice Gorsuch's opinion, which I find like it's a fun read for anybody who just wants to pick up a Supreme Court opinion because he sort of wanders into this interesting history about like the drinking habits of the founding era. And this is part of rejecting the government's argument that historical laws disarming drunkards are relevantly similar to modern laws disarming habitual users of controlled substances. And he says, well, that can't be true. And also, look how much they drank in 1791. When the Second Amendment was ratified. And he's got these little kind of funny facts about, you know, we know Jefferson had three or four glasses of wine every night at dinner and Washington had two or three and Madison had a pint of whiskey a day and Adam started his day with a tankard of I mean, it's just like a funny read. And I do enjoy it. But there is, to me, a part of that that feels like almost a parody of originalism like this. It can't be the case that the constitutionality of a federal law turns on whether Jefferson was a little more. Abstemious and had one glass of wine instead of four like that. Just can't. To me, I just can't process that. It doesn't. It's not what anybody on any area of gun rights, gun regulation sort of favor. So in that respect, it was just it's a fun read, but mysterious what it means going forward
Speaker 1to me. And I will say I couldn't help but going back through Himani sharing that paragraph with my entire family because I thought it was sort of like interesting historical factoids. But coming back to you, Clark, curious, you know, you heard sort of Joseph's take here on, you know, Gorsuch's majority opinion. Any any further thoughts on sort of how he and the court here reasoned through this issue?
Speaker 3Yeah, it is a kind of a whimsical opinion, although I will say, you know, a more charitable light in which to see Justice Gorsuch's, you know, discourse on founding era drinking habits would be to say, look, they were perfectly familiar with a world in which it was perfectly routine for people to drink. To consume large quantities of intoxicating substances and, you know, to be in some cases kind of out of their minds. And there were laws back then that enabled the empowered the government to temporarily dispossess somebody of a firearm if they were at present, you know, kind of incapacitated. But the mere fact that you on a regular basis consumed a particular intoxicant would not have been a sufficient basis at the time of the founding to categorize. Dispossess anyone consuming, you know, whatever the intoxicant would have been. Now, of course, we have a larger menu of intoxicants these days than they did back then. But that's the principle, I think, that the court is trying to illustrate. And I would add one further point, which is that one of the things that is both fascinating and challenging about the kind of Second Amendment era that we're in is that so many of the laws on the books were written and passed at a time when the courts treated the Second Amendment as as an empty vessel. It's having no substance, no meaning. And so we have all these restrictions, for example, under federal law, like we've talked about, that you can't own a firearm if you've ever been convicted of a law for which the punishment is more than one year, the so-called felon in possession restriction, although that actually also applies. There are some misdemeanors that carry greater than one year sentences. So it can apply there as well, including, you know, the most ridiculous, ticky tacky, you know, technical violations, you know, paperwork. Or there's even a case out of the Fifth Circuit where somebody was convicted in Mississippi of not paying child support, which I don't support, by the way. But the idea that that marks you out as somebody who is, you know, particularly irresponsible in terms of firearms ownership is it just doesn't pass the smell test. So that's, I think, going to be an interesting challenge going forward is to try to confront the significance of these laws that were drafted without really any consideration of the possibility that they might be, you know, impinging on an individual right that is intangible. And again, that's not to say that all laws that were drafted before the Heller decision must necessarily be, you know, presumptively unconstitutional. It's rather to say it's reasonable to suppose that they were drafted without much care or consideration about the possibility that they implicated a significant constitutional right, as we now know they do.
Speaker 1We also have a trio of fairly interesting separate opinions here in this case. We have, you know, Justice Thomas. Justice Thomas writing for himself, you know, reflecting on the relationship between the Commerce Clause and federal firearms regulations. We have Justice Jackson and Sotomayor together critiquing Bruin. Interestingly, they're not having Justice Kagan join with them in that particular opinion. Then we have maybe the most interesting thing of all, which I can't remember a lot of examples of Justice Alito writing and joined by Justice Kagan, you know, on any number of issues that alone a constitutional issue. So I'm curious, Clark, if there's anything you'd pull out of those separate opinions that are sort of worth chewing on, worth having our audience chew on at all.
Speaker 3Yeah, a couple of things. I think first, the fact that Second Amendment cases are generating so many opinions these days, you'll get concurrences and dissents and unusual alliances, et cetera. And I think that this points strongly in the direction of a doctrine that is in flux and the justices are trying to figure out. What it means, I think some of them are trying to put down markers, as Justice Breyer perhaps did in the Heller case itself, when he wrote a dissent essentially providing, you know, framing out a balancing test that courts might apply, which many lower courts did end up applying, I think, in one form or another. I think Justice Thomas's discussion of the Commerce Clause is interesting. I would love, as a limited government libertarian, I would love to see that attract, for more justices. I suspect that it won't, at least for a while. But the point for those who are, you know, not familiar is that there is no sort of general police power that's conferred upon the federal government in the Constitution. And so when the federal government, you know, regulates in a particular area, they're supposed to be able to identify some enumerated power in the text of the Constitution that gives them the authority to regulate that activity. Historically, they've turned to the power. They've turned to the power to regulate commerce among the states. But that approach has been extremely broad and has, you know, empowered the government to regulate things on that theory that really don't amount to commerce, such as the simple possession of an object, like a firearm or a bushel of wheat or a single marijuana plant. So, again, I'm skeptical whether there are four other justices who are ready to take the plunge with Justice Thomas on the Commerce Clause. But I'm not surprised to see him flagging that issue.
Speaker 1Clark, that's a great point about the so many separate opinions in these Second Amendment cases. I mean, we certainly saw that in Rahimi as well, among other cases. And it sort of goes to Joseph's point at the top of, from an historical perspective, we really are at the moment of inception in this doctrinal area. And we saw a similar thing in the context of the First Amendment as it expanded and as we built out the modern doctrinal edifice. And so maybe we shouldn't be surprised. to see a similar thing happening here just have you heard Clark there talk a bit about Justice Thomas? Please offer any reflections on that if you'd like, or, you know, anything you'd want to highlight from Justice Jackson and or Justice Alito's separate opinions here.
Speaker 2Well, I think Justice Jackson in particular, I mean, we've seen as sort of like the most vociferous critic of the Bruin framework. I think that will continue. You know, she was, that was true in the Rahimi case, which we haven't talked about, but sort of sounds like it's sort of recast maybe the Bruin approach at a higher level of generality, which, you know, Clark was, I think, pointing to when he was just describing the Hamani reasoning there. It's not really about how many drinks did they have, but what was the principle? I think that's right. And principle is sort of the key word we get from Rahimi. I don't know if that's the result of Jackson's critique taking a little bit of hold or not. You know, we'll see it again on display in Wolford, which I'm sure we'll talk about. And I'm sure we'll see dueling opinions in the cases, the big case pending this term. You know, as for Justice Thomas, you know, it's not particularly surprising to hear that this is his view of the Commerce Clause. It is, again, notable. It's just him for now. I agree with Clark. That doesn't, that ball doesn't seem to be rolling yet. But I will say he has been a bellwether on a lot of Second Amendment issues over the years, including the eventual holding in Heller, which he basically flagged in his opinion in Prince back in the 1990s. So pay attention to where Thomas is. Sometimes that's a, that's a sense of where the court's gone.
Speaker 1Absolutely. This is, I think, as good a time as any to transition over to Wolford and, you know, maybe with that, Joseph, I'll come back to you. You know, give us a sense, what's going on in this case? What are, what are the facts? You know, we're in Hawaii now. And so sort of what is the law at issue there? Just give us some background before we can dig into how the court analyzes the relevant Second Amendment issue.
Speaker 2Yeah, I'd be happy to. I mean, I think that the way to think about Wolford as compared to, for example, Hamani is that Hamani is a case about who can be disarmed. It's like a person-based prohibitor, which a lot of gun laws are. But there are some gun laws that target location, you know, where you can carry your gun or under what conditions. And Wolford is sort of representative of that line of doctrine, which again, has its roots back, back in, in Heller, which says, among other things, that it's okay for the government to prohibit weapons in sensitive places like schools and government buildings. Now that has not been a particularly active area of Second Amendment litigation, at least as compared to, for example, the, the felon prohibitor and so on. But it heated up a lot after, Bruin. And the way I think about the hydraulics here is that the law that Bruin struck down was a licensing law. It made it hard to get a license to publicly carry a handgun in New York. And the court said, you can't have the kind of regime that New York had, which effectively means that more people in more places, including Hawaii, California, New Jersey, the states that have laws like New York, there are going to be more people in public carrying guns. Some states responded to that basically by saying, look, if we can't restrict on the front end who's carrying guns, we're going to put more restrictions on the back end about where they can be carried. So for example, if you've got a stringent training in whatever regime, then you might say, okay, anybody's carrying a gun in public, they've already been vetted. It's fine with us if they take them into places where alcohol is served. But if basically everybody can carry a gun, we're going to say no guns in bars, right? So there was this response of a combination of those sensitive place laws, which say you can't carry a gun in XYZ place at all. And then a couple states what Hawaii did, and this is sort of what the court ends up resolving in Wolford, sort of resolving the question of, well, okay, what happens when you want to carry your gun onto somebody else's private property, right? Everybody agrees that a private property owner can say no. If somebody wants to carry a gun into your home, you can say no, that's just your right to exclude. If they refuse, then they're committing trespass. It's the same for a private business, maybe with some exceptions, but generally private property owners, they get to exclude those who they want to, you know, absent, you know, discriminatory or whatever statutory prohibition. So then the question becomes, all right, you can exclude anybody who wants to carry a gun onto your private property. What's the default rule? Do you assume that you have a right to carry onto somebody else's private property, or do you need to get permission first, right? And that's an interesting background question, I think, of property law of like, you know, do you do we assume there's a default yes or default no? Can the law prescribe the form of consent that is like it has to be explicit or not? Some states like Texas, for example, with private businesses open to the public, if they want to exclude guns, have to put a particular kind of sign, a particular size that says, you know, no guns allowed here. That's a way of sort of mediating this consent issue. What Hawaii did was said you can't carry guns onto private property owned by another unless you first get permission. So you basically, if you want to carry a gun into a restaurant or bar, grocery store, whatever, you got to get permission before you carry it in. And the challenge was framed around a couple things. One, that I think this is the sort of big thing was, well, that makes it in some parts of Hawaii, at least, effectively impossible to carry your gun. Because if you put together all the privately owned places, and the sensitive places where permission or no, you just can't carry a gun like hospitals, you know, bars, daycare centers, intimate partner violence centers, it just adds up to a big, big, big imposition on the right. And that that that can't that can't be right, that effectively makes it impossible to carry a gun in public in Hawaii. So I think these are all really interesting questions. I will say from my perspective, and the court in a six to three decision says that the Hawaii law is unconstitutional. That was not a surprise, I think, to most of us who are watching it. That's I think the outcome most people, most people predicted. I don't think that the Hawaii law was particularly significant as a matter of, like law enforcement, like it's hard for me to imagine the situation, in which that law would come about being enforced. Like, if somebody told you to leave, and you didn't, then you're trespassing, whatever the default was, it doesn't really matter. But I think like the concern was, this is a really big imposition. Totally. I will say one last thing on Wolford. One thing that's important here is the court did not take cert on the question of the long list of sensitive places that states like Hawaii and California have denominated gun free. And those cases, I think, have turned out to be kind of a nightmare for the lower courts, because they basically end up doing like a Bruin analysis for the 20 different kinds of locations where guns are now prohibited. And it's just drawing analogies is just hard. Like, what's the 1791 analogy of a domestic violence center? What's the 1791 analogy for like public transit? They didn't have airplanes, they didn't have public transit. You know, they didn't have railroads back then. So like, there's a lot of weird analogizing going on. And the court just didn't take that up. But but they did strike down this default swap rule. Now, Clarke, as you mentioned, there's a lot of weird analogizing going on.
Speaker 1Now, Clarke, as you know, as Joseph, you know, frame for us here, we have a six to three ruling here by the Supreme Court striking down this Hawaii law. The majority opinion here is by Justice Alito. You know, in many ways, if we think about the majority opinion, on the one hand by Justice Alito, the principal dissent of Justice Jackson, you know, so much of what they're battling over is constitutional methodology, sort of how to do the Second Amendment analysis properly after Bruin and Rahimi. And in part, how to reconcile Bruin and Rahimi. And then they're doing sort of the nitty gritty, difficult work of historical analogizing. And so maybe, Clarke, if you could place on the table, give us a sense of the model that Justice Alito pursues here in his majority opinion. How does he apply that Bruin-Rahimi framework? If you think about
Speaker 3the role of firearms at the time of the founding, they were they were in many ways quite analogous to the role of smartphones today for us. In other words, if you're a businessman, you're a businessman, you're a businessman, you're a you were going to be going more than a couple hundred feet from your house, you brought one with you. And for many of the same reasons, because firearms at the time were quite useful in a variety of ways. Unless you lived in a big city like Philadelphia, Boston, or New York, there's a good chance that you were still hunting game for the table. There were no professional police forces, so you're going to have to be able to take care of yourself if you ran into a highway robber or something. And of course, in many parts of the country on the frontier, there were hostile natives with whom settlers were coming into conflict. So a law that made it virtually impossible to carry a firearm around with you day in, day out would be utterly alien to that historical environment, that historical tradition. And I think that's the basic point that the dissent in Wolford had to deal with and just couldn't come up with the sufficient analogous regulations from the time of the founding. I will say there's another thing I think going on here, too, which is it's a bit of almost like a magic eye test as to what is really going on here, right? You could take the government, you could take Hawaii's version at face value, that they're just trying to make sure that private property owners have autonomy here and the ability to control who comes onto their property with dangerous weapons. Or you could take what I think is pretty implicit in the majority opinion, that this was clearly a bad faith effort on the part of the government that was trying to make sure that private property owners have autonomy here and the ability to control who comes onto their property with dangerous weapons. I think that's the biggest part of Hawaii, to frustrate the exercise of the right that was clearly called out and protected in the Bruin case, which is the right to carry firearms outside the home. And as Joseph did a nice job of pointing out, there were certainly, Justice Alito goes through this in his opinion, it really would be virtually impossible to carry a gun in significant parts of Hawaii were this law still in the books. There was a very powerful point, I think it was in Justice Alito's opinion, that the law was still in the books. Justice Alito's majority opinion, for which I did not find that the dissent had a very compelling response, and that is, if the government. is empowered to do this as to guns, could they also do this as to religious clothing and ornamentation? In other words, could you have a law that says you may not wear a crucifix onto some private property or a hijab or a yarmulke? You may not wear these things onto somebody's private property unless they have affirmatively expressed permission or granted permission for you to do that. And if not, why not? What is the distinction between saying you can't bring a gun onto private property without prior permission and you can't bring religious ornamentation onto private property without prior permission? I did not find the dissent had a very satisfactory explanation for that. And so it really did look like they were just allowing the Second Amendment to kind of be singled out for special mistreatment. And I think that was a real problem.
Speaker 1Yeah, and I think the passage is here, Clark. It's in, at least one place this comes up is in Justice Barrett's concurrence, where she says, consider how Hawaii and the principal dissent's argument would play out in another context. What if a state made it a crime to wear a religious head garb onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny? And so the question to you, Joseph, just a few things that Clark here placed on the table, you know, one is, if we're thinking about, you know, how we make analogies to the founding, are guns and smartphones sort of a good way to analogize? You know, there's, you know, the question of the role that, you know, perhaps implicit, you know, sort of implicit in Justice Alito's opinion that part of what's animating the court is a concern about certain states treating the Second Amendment as a second class right, acting in bad faith and, you know, undermining the commands of Bruin and Rahimi. And then finally, just this very specific hypothetical raised by Justice Barrett. Yeah, I mean, it's interesting questions.
Speaker 2I'll try to take them in reverse order as best I can remember. I mean, I think it is an interesting question. And I think, you know, Justice Barrett and Clark and Tom and you and your question are all right to sort of draw the comparison of like, well, are we doing this the same as we would do for another right? And if the answer is we're treating this case differently, that should at least give us pause. I think the tricky thing for the Second Amendment is that it's already subject to a different legal regime than all these other areas of law. Like the Bruin test is not something, at least yet, that has come to colonize. Other areas of law. So in a way, I mean, it's being treated differently. I think in a way, at least today, being given more protection than some other constitutional rights that I would value. I certainly wouldn't think that the kinds of laws that Justice Barrett describes, you know, about hijab or any other kind of, you know, religious headgear, for example, should evade constitutional review, I think was her phrase. But I can certainly imagine a world in which the constitutionality comes out differently when we're talking about guns and we're talking about crucifixes. Yeah, I think that's a good point. I think that's a good point. That the homeowner or the private property owner might face, that's not to predetermine how that case comes out, but to say that it would, you know, would or wouldn't evade constitutional review, I think is not the question. The question is like, would the result come out the same? And I think here is where, again, this is coming back to my sort of discomfort with Bruin, like what Clark was describing in terms of like the cumulative burden on gun carriers in Hawaii, to me, is the real question. That's what we should care about. And it's something that the Bruin test kind of obscures by directing our attention back to history, right, to a time when Hawaii was not a state. Like that's not the real, I don't think that's what the gun owners care about. I don't think it's what the Second Amendment cares about. I think what we should care about is exactly the balance between rights and regulation. And that question of cumulative burdens, again, I think is a really hard and interesting one. I mean, I think about it this way. Again, the court didn't take cert on the sensitive places question. And it's been generally well accepted in lower courts that, for example, you can ban guns in post offices and courthouses and schools and so on, military bases and so on. Well, what if you live in an area or a city where there's a bunch of those jammed together? I mean, D.C. is a good example. There's a lot of areas in D.C. which would be denominated sensitive places. So on the one hand, you've got the right, the right of people to carry guns in public. It applies in D.C. like it applies anywhere else. And the presence of a whole bunch of sensitive places, which the Supreme Court has blessed as constitutional. It's not totally clear to me how to resolve the the presumptive constitutionality and the status of the right there. Say in New York. I mean, you know, in Manhattan, right? Similar kind of a thing. You could, I guess, kind of design an easement where people get to carry their guns. But like, this just seems a strange, strange solution. So I just think it's a hard question, which is not to say I don't have sympathy. I do with the gun owners. It's just not clear to me which trumps which in that area. And I wish that the court in in Wolford, for example, would be kind of more open about what those choices are. The thing that and this goes back to your earlier question, Tom, about the sort of methods debate that's going on in Wolford. I mean, there's two things we should at least note or at least flag there. One is that Justice Alito's majority opinion really leans into this notion that the plain text of the Second Amendment does a lot of work that like as long as a person can show they fall within the plain text of the amendment, then the burden flips to the government. And I'm just not, I'm not yet convinced that actually plain text is doing a whole lot of work here, that the word arms or the word people, actually has like a, like a, like a dictionary definition. That's not how it works in many other areas of law. So I think that's I think it's a little oversimplifying. And then the other is that the court, and there's a really remarkable exchange here, especially between Justice Barrett and Justice Jackson, in her dissent, starting to struggle with the question of what to do with the really horrific history of using law to disarm particular groups on the basis of, for example, race and religion. And that, again, to me is a problem of Bruin's own making. If Bruin directs us to 1791 or 1868, see what the gun laws were, well, who was being disarmed in 1791? Black Americans, Native Americans, Catholics, loyalists. I mean, you can extrapolate from that a principle maybe of, well, they disarmed the people they thought to be dangerous and use that to resolve current cases. That's what a lot of courts are doing. But to me, that's just, I don't know, it's, it's a roundabout way to get to where I think most people think the doctrine should be to begin with.
Speaker 1Clark, Joseph here puts at least three methodological questions on the table. You know, one is a broad, I'd say, critique of Bruin from the perspective of when you direct us towards history and tradition, it can often obscure what seems to have most of the juice in a case. In this case being the, you know, the actual burden of the law on the gun owners and sort of the, you know, with that, the strengths, but also the trade-offs of a history and tradition approach, very large. There's this question, you know, about step one of the Bruin test in the exchange between Justice Alito and Justice Jackson about the role of plain text versus, you know, more of a text and history slash tradition approach to step one. And then finally, there's this really interesting and important question that Joseph placed on the table that's, again, in the opinions of what do we do with, I guess what you would call sort of like bad traditions. What do we do when the traditions point in the direction of the black codes and have rationales that we would. We would, you know, find abhorrent today. What do we do in that context when doing history and tradition? So we'll respond to any, all or none of those as you'd like, Clark.
Speaker 3Yeah, it really is a tremendous challenge. I frankly am rather uncomfortable with the text, history and tradition framework myself, in part because I think it is virtually inconceivable to imagine the Supreme Court finding that there is a constitutional right to own certain kinds of extremely important, effective or dangerous weapons. Think about a surface-to-air missile, a tactical nuclear weapon, or even just a fully automatic rifle, a so-called machine gun. I can't imagine a world in which the Supreme Court finds that any of those are within the protection of the Second Amendment, and yet they are all arms. And it is not at all obvious what historical tradition you would point to in restricting somebody's ability to own these kinds of particularly dangerous weapons. Because guess what? There were no restrictions on owning extremely dangerous weapons at the time of the founding. You could own whatever type of equipment you could afford and get your hands on, up to and including field artillery. And people did. So that's a huge problem. I'll give you another example. The Office of Legal Counsel just recently issued an opinion saying that the federal restriction against people under the age of 21 owning handguns violates the Constitution. Because there's no relevant historical tradition. I actually went and looked. As best I can tell, there were no laws on the books of the time of the founding regarding gun possession by any age. And so does that mean that there's now a Second Amendment right of like a five-year-old to own a firearm or to possess it? Well, that's not a rational, you know, I don't think that's a rational response, but it's not at all clear where you would derive the relevant historical principle, as Joseph correctly noted before. Even if you don't need to find an actual law restricting gun ownership by age. You'd at least need to find an analogous law that would encode the correct principle. I think the last thing I'll say is this. There's a kind of a subtext to some of these cases, I believe, which is that, and I hope nobody will be too shocked to hear this. Sometimes the government acts in bad faith. And most of us are fairly capable of seeing this when it affects something we care a lot about. So if it's reproductive rights, for example, or if it's free speech. Or if it's religion. We've seen the government enact clearly bad faith efforts to restrict people's ability. to exercise rights in various areas like that. And the problem, of course, is that it's not always 100% clear what's going on. You could imagine, for example, a city that has never permitted a gun shop, never given a business permit to a gun shop because they don't want gun shops in the Supreme Court. I'm speaking hypothetically. The Supreme Court says, well, that's protected by the Second Amendment, so you have to allow a gun shop to open in your city. And then the city responds by saying, okay, well, then you have to have a first aid kit on the premises. Does that look like a bad faith effort to thwart that decision? No. But now go all the way to the end of the spectrum and you've got a law that says that you have to have a board-certified trauma surgeon on the premises at all times and a helicopter landing pad on top of the gun shop to evacuate anybody who gets injured. Does that look like a bad faith effort to frustrate that decision? You bet it does. And have we seen that almost certainly in response to at least some Supreme Court decisions? I think the answer is also yes. So I think that's another thing that's going on. Even when they don't directly say it, is that at least some of the justices are on the lookout for what we could characterize as bad faith efforts to frustrate the exercise of particular aspects of the Second Amendment, whether it's, again, burdening the ability to carry a gun outside the home to the point where it's just not feasible, or, and I don't think, by the way, all sensitive place restrictions fall into this category. Clearly, keeping guns out of airports makes sense in any relationship, world, and as Joseph pointed out, there were no airports at the time of the founding, or mass transit, for that matter. But I think you could fairly characterize what New York did in the wake of the Bruin case, where, you know, if you essentially drew circles around every sensitive place to which you could not bring a handgun in New York City, those circles almost overlap with one another, again, to the point where you wouldn't be able to carry a gun effectively in New York City. Does that look like bad faith to me? Yep, it's got at least a whiff of it. So I think that the, I don't necessarily think this is going to be part of the, you know, explicit doctrine, but I do think that the justices are very well aware that this is sometimes what they are actually confronting and how that translates into, you know, the actual analysis of these regulations under a text, history, and tradition framework. Man, I don't know. Good luck with that.
Speaker 1And I mean, there's, you know, certainly suggestive evidence here, Clark, of this concern about bad faith, just alone in how Justice Alito leads office majority opinion, providing the context, for the Hawaii law, and beginning to fill out the burdens that Joseph emphasized in, you know, his initial look at this case. And obviously before Bruin itself, it was Justice Thomas who was often the crusader on, you know, and often dissents from denial of cert, urging the court to take a look at how the lower courts were applying the second amendment after Heller and McDonald. So Joseph, love your thoughts here. Anything about this, whether, you know, concerns about bad faith, seem to be either explicitly or implicitly shaping the court's approach to the second amendment in certain cases. And then also, importantly, since we've already placed Justice Alito's majority opinion squarely on the table, you know, anything else you'd want to pull from the dissents here, you know, the principal dissent by Justice Jackson that's worth thinking about. You've already, you know, brought out some of her methodological thinking, but if there's anything else that you think is worth our audience knowing, then we have a very short dissent for Justice, Justice Kagan by herself, because she does not join Justice Jackson's dissent, whereas Justice Sotomayor does. So, you know, anything about Justice Kagan there or anything that you think is notable or significant about potential divisions there between the more progressive justices?
Speaker 2Yeah, I mean, I guess I'll start with the theme that Clark put on the table, because I think it's a really important one, not just in the doctrine, but just it's a through line in so much of the broader debate about gun rights and regulation in this country, which is just a sense of distrust. I think that, you know, that the gun owners often feel about, and that non-gun owners or supporters of regulation think about some gun owners who are like, they're not listening to reason here, like listen to where we're coming from. I think it's probably the case that, you know, some people who are motivated to regulate guns are doing it based on misunderstanding. They don't understand the thing they're trying to regulate. You know, for example, people often conflate what are usually called assault weapons with what Clark described earlier as like machine guns, automatic weapons. They're not the same, right? They might be close and they might be, one can be converted to the other, but they're different categories of weapons, right? And sometimes, there's just like a, I think of, well, that looks scary. We want to regulate it. And that's not necessarily a good basis for regulation on the same, you know, for the same token. And there's a lot of people who just want to buy guns because they look scary and have a sort of, the sort of flip side, sort of fetishization of the object. And that's a hard thing to kind of break through as a matter of discourse. I think two things, as far as the doctrine are concerned, I think a lot of gun laws, the vast majority are motivated purely by a desire to save lives. And I think like one of the case that's pending before, the court right now is a good example here. It's a case involving a prohibition on what are often called assault weapons, you know, which part of the case comes from Cook County, from Illinois, where these weapons were largely prohibited after a mass shooting involving such a weapon at Highland Park in 2022. I think the response there, maybe you think it's too much, it's too broad, et cetera. But the motivation is not, I don't think like antipathy to gun owners. It's a desire to keep communities, to keep communities safe. If Second Amendment doctrine is going to become more sensitive to sort of government animus towards the right, I guess I would just hope that that kind of sensitivity extends to other areas of law as well. And this is one thing I sometimes find interesting and maybe a little frustrating in the Second Amendment space, where the court, including in a case like Bruin, becomes very attuned to the problem of governmental discretion and governmental licensing discretion and the possibility of, and yet remains just resolutely committed to law enforcement discretion being important in all these other areas of law and absolutely unwilling to see government animus in 14th Amendment cases, for example, where, you know, the Washington versus Davis standard can hardly, well, by the Supreme Court, never be satisfied. It would be odd to me if we have just this, this kind of sensitivity towards government animus when it comes to guns, but not when it comes to other areas of constitutional rights doctrine. I think to go back to Clark, to Clark's earlier point, that would be an inequality in the doctrine, which I think would require a fair bit more of explanation and justification.
Speaker 1Clark, Joseph here has done a great transition to the next part of our conversation here, which is, you know, the Supreme Court's granted an important Second Amendment case this term, consolidated cases, Veramontes versus Cook County and Grant versus Higgins, going to look at the constitutionality of recent assault weapons bans. So maybe fill out the picture for us here of, you know, what is, what's, you know, what, what's going on in that case? What are the sorts of firearms that are covered by these laws? You know, how pervasive are they inside the states? And also how pervasive is gun ownership, firearm ownership of this class of weapons?
Speaker 3Yeah, so as Joseph was, was careful, appropriately careful to sort of note in the way he phrased this, there is not really any such thing as an assault weapon per se. You know, you're more ardent gun owners would call it a scary looking weapons ban, right? And basically these laws are, you have a statute that will generally list a number of elements that a weapon might possess, a number of features such as a pistol grip, a barrel shroud, a muzzle suppressor, and so forth. And these together, essentially, if you check enough, if you check enough boxes adds up to an assault weapon that is then prohibited under the law, either to sell and or to possess. There's about a dozen states with these laws on the books. Some of them go back, I think the earliest one that I'm aware of is New Jersey from the early 1990s, but they are also widely disregarded. And that is common knowledge that there are plenty of so-called assault weapons in private ownership, even in states that purport to forbid them. And the laws have not typically been very vigorously enforced. Certainly you don't see the kind of, proactive enforcement with undercover sting operations, et cetera, like you see with drugs. And so the issue has finally made its way up to the Supreme Court, namely whether the banning of these particular types of weapons does or does not violate the Second Amendment. I think there are two major challenges that the proponents of these laws are going to face. The first I've alluded to already, which is that you can scour the founding era law books and not find any meaningful restriction on the ability of people to possess even the most dangerous weapons available at that time, which would include, as I noted before, actual cannons, right down to every kind of firearm. They had rifles back then, they had muskets, they had pistols, they had swords and daggers, et cetera. And there's just no restriction on private individuals owning any of those weapons because of the nature of the weapon itself. So that's going to be a challenge. Second, there's the more pragmatic point, which is that to some extent, assault weapons have become sort of a locus of cultural angst, I would say. The most common weapon in mass shootings by far remains the semi-automatic pistol. That is the weapon that is most likely to be used in a mass shooting and always has been. If you look at the latest FBI statistics, it is still the case that rifles of all kinds, which includes not just so-called assault weapons, but also hunting rifles, account for fewer than 1,000 deaths per year, and more people are beaten to death with bare hands and feet than are killed with all rifles combined, which is not in any way to take away from the carnage that we've seen in mass shootings involving assault weapons. But it is not at all clear that they are somehow uniquely dangerous. They're really the only feature that a so-called assault weapon possesses that makes it categorically distinct from other kinds of rifles and firearms that are not banned is a genuinely high-capacity magazine, in other words, a magazine that will hold generally about 30 rounds, which means it doesn't have to be switched out and reloaded until you've fired 30 shots. That's a lot of bullets coming out of that gun without being reloaded, so I get that, I can see that. But we can also see that it is not in any way necessary to, you know, to have that kind of a weapon in order to inflict a lot of harm on a crowd of people. So, but in principle, the Supreme Court has sort of abjured the idea that those kinds of empirical or practical data should play a major role in Second Amendment adjudication today and have really, you know, whether it's wise or unwise, have very much focused on this analogical reasoning, looking for, you know, historical analogs. You know, I will concede, I think that's rather problematic. I mean, if you look back at the time of the founding, if you wanted to kill a whole bunch of people, you would not probably pick up a musket. Even a very, you know, experienced, you know, whether a soldier or a hunter was probably only going to be able to reload that musket, maybe fire one or two rounds a minute. You'd probably, frankly, you'd use a sword. And, of course, most structures back then were made out of logs and or rubble or rocks. And so, you know, a stray round from even a very powerful rifle or musket wasn't going likely to penetrate a wall. But now, most people live, you know, in apartments or houses with sheetrock walls that a modern high-velocity rifle round can pass right through. And you have rifles now that have the ability to, you know, wipe out an entire congregation of people, let's say, in a church without being reloaded. I don't understand how you can't see that those two things are different. Does it compel a different result? Not necessarily. But does it help illustrate, I think, the limits of this historical, analogical reasoning? Yes, I think it does.
Speaker 1So, Tristan, just of your thoughts on, you know, how to properly analyze, you know, this issue and, you know, any challenges you see either for the, you know, government in justifying the regulation or the gun owners in trying to win this particular Second Amendment challenge?
Speaker 2Yeah, I mean, I can pick up right where Clark left off because I agree that this case and the case called Viramontes, the one that the court is considering right now, is going to be a real, real hard run for a Bruin-type analysis. This will be the first time the court has really thoroughly considered what we would call a class-of-arms restriction. We've talked about prohibitions on groups of people and locational restrictions. Aside from a per curiam decision in a case called Catana, which involves stun guns, they haven't really thought about the question of, like, well, how do we know which kinds of weapons are covered by the Second Amendment and when they can be regulated? And I think, you know, I think the doctrinal machinery that's developed just doesn't make a whole lot of sense. I think if we try to run this through the Bruin machinery, what gets really tricky is just what Clark identified, which is just how much society and technology have changed since 1791. I mean, I think it is. A person today with an AR-15 and a high-capacity magazine would probably do more damage than a person with a cannon. They'd certainly be better equipped to defend themselves than a person with a cannon. You know, it's true that there were sort of beginnings of rifling and even automatic weapons at the time, but even rifles didn't really come around until around the age of the Civil War. And muskets, for anybody who's ever fired one, I have, they're hard. You can't really, you can't keep them loaded. The powder gets damp and then it won't fire. So it's not like today where you keep a handgun on the side of your, you know, on your bed stand for self-defense if that's what you want to do. I think as a result, homicides in the founding era not really inflicted with firearms. They're inflicted with other kinds of weapons and so, unsurprisingly, not as much restriction of firearms in connection with homicide and domestic violence and so on. Because even in battle, they were bayonets and clubbing with muskets as much as they were actually shooting. Whereas today, it's just totally different. Again, if you fired an AR-15 or anything similar on an AR platform, you'll know they're very easy to use and very, very effective. And so, unsurprising, I guess, that, you know, today, I think it's 76% of homicides in the country involve firearms. Now, one thing to underline, which I agree very much with Clark here, is that the connection between assault weapons, high-capacity magazines, and mass shootings can sort of suck oxygen out of maybe the sort of broader gun policy debate. It is still the case that, as Clark said, the vast majority of gun deaths involve handguns. It's only a tiny percentage of gun deaths that occur in mass shootings, however you define them. It's mostly the daily drip of sort of one, two handgun deaths at a time. And so, the assault weapons issue is taking on this kind of outsized, I think, relative to its policy importance, outsized issue. I think that the question, and one way to represent this is, as Clark mentioned, that the regulations tend to target and enumerate features that you might think of as just cosmetic. You know, these guns look scary, and that's why we're going to regulate them. I think there's some truth to that. For me, it cuts both ways, though, because that kind of undermines the harm that's being done to people who want to possess the weapon. They're being denied as cosmetic features, right? If they're not functional, then the right that's being asserted is, I have a right to own a scary-looking weapon. And that doesn't have quite the same, I think, resonance as like, oh, I need a handgun, which Heller described as the quintessential weapon of self-defense, right? Well, these can't all be quintessential weapons of self-defense, right? There's some that work and some that don't. So, I think Viramontes is going to be a really interesting test. I think it's really going to put the court, in a difficult position, to apply Bruin to this problem. And I should note, by the way, we've talked about the connection between assault weapons and high-capacity magazines. The court did not grant cert on the question of prohibiting high-capacity magazines. I think they wanted to keep, my guess is they just wanted to keep this quote-unquote simple. It makes it, I think, easier for the court if they want to strike down the law, to just strike down an assault weapons law and not a high-capacity magazine law. But, you know, I don't know where you start drawing the lines. I'm not sure the court is totally comfortable with the idea of people carrying AR-15s into public places or, for that matter, into private businesses. But if you put together the logic of Bruin and Wolford and a win for the challengers in Viramontes, that seems to be where we're headed. And I think that may lead, give some of the justices pause.
Speaker 1I'd imagine we'll have another podcast episode down the line on Viramontes itself because there's a lot more that we could say about that case. But as we get to the end of our conversation here, you know, Clark, love to come back to you and, you know, get a sense of what other issues are percolating and should the audience have in mind as sort of like the next tranche of Second Amendment issues, you know, likely to get before the Supreme Court in the foreseeable future.
Speaker 3Yeah, there's a lot coming down the pike. We've touched on some of it already, but just to recap, probably the biggest question is the constitutionality of so-called felon in possession laws. You know, in my view, we have an extraordinarily over-criminalized society as Joseph noted. Prosecution under this statute is quite common. In fact, prosecution for felon in possession is about 10% of all federal prosecutions. So it's a substantial part of that docket. We've also referred to age limits. Those have been coming up through the lower courts. So-called high-capacity magazines, Joseph referred to just a moment ago. I will say as, you know, as is probably incumbent upon me as the pro-Second Amendment guy, that's a bit like saying a car that is capable of achieving a hundred miles an hour is a high-velocity car or a high-velocity automobile. Well, it's not really. You don't generally drive at a hundred miles an hour, but I guarantee you that nearly every vehicle coming or every automobile coming off a lot these days can go a hundred miles an hour. And the same is true of most semi-automatic pistols. They are the most common weapon in private ownership or most common firearm in private ownership. And the standard capacity of a magazine these days is somewhere between 12 and 15 rounds. So high capacity is a bit of a misnomer in my view. But the question of whether the government can regulate and put a cap on the number of rounds that can be contained in a magazine is going to be certainly coming up because there's about 14 states with those laws on the books and they're a big deal. A couple other things we've discussed, sensitive places, that's restrictions on where, you know, specific locations within a jurisdiction where you can't bring a firearm. Some places have relatively onerous permitting. So you can get a permit, but in San Jose, for example, it's going to cost you $1,600. The Department of Justice Civil Rights Division just filed a lawsuit challenging that. You know, I don't know for a fact that that's an effort to discourage people from obtaining concealed carry permits, but you could sure make that case. And then I would say another one that's kind of waiting in the wings to some extent is the constitutionality of various so-called red flag laws. These are laws that empower court upon application. either from law enforcement or even a private individual to take away somebody's firearms for a temporary period of time if they're exhibiting signs of being particularly dangerous. There's a wide variation in the kind of the due process procedures that apply to various red flag laws. I think those are probably going to have to get sorted out on a case-by-case basis. But those are the ones that come to mind for me and Joseph may have others.
Speaker 1Yeah, that's a great list, Clark. And Joseph, if there are others you'd want to add to that list, please do so. Or, you know, thinking of Clark's list, if there are sort of one or two that you are watching especially closely and you think are especially important and or likely to get to the Supreme Court, love to hear your thoughts on that too.
Speaker 2I think Clark's list is exactly right. It's the one I would have. I mean, there's other parts of the federal law we talked about, 922G, that's always being challenged, what's called the mental illness prohibitor. There's litigation about that one. It's different than the extreme risk protection orders, aka red flag laws. That's a possibility. There's restrictions based on citizenship status, also litigated. I could see one of those percolating up. But the big one by far, in terms of just practical impact, is the, I'll just put it in scare quotes, felon prohibitor, which as Clark says, applies to anybody who's convicted of a crime punishable by more than a year, which sometimes is a misdemeanor. I mean, Clark mentioned, you know, that Fifth Circuit case earlier. There's another one, it's a Third Circuit case where a person committed food stamp fraud, you know, like 20 years ago. And now they are, you know, they're, you know, prohibited for life from possessing a firearm. I think on basically all sides of the debate, people think, well, that's not what that law is for. But absent some kind of restoration regime, that's tough to avoid. So one thing I'll just flag on that one is I think what courts are doing is sort of experimenting with allowing more as-applied challenges to the felon prohibitor and trying to draw lines between quote-unquote dangerous and not dangerous or quote-unquote violent and not violent felonies. And maybe that's, that's the future. That's, it kind of mirrors what the courts have done with the Armed Career Criminal Act, the ACCA, which has just been a nightmare in criminal law. So I don't, I don't, I don't envy the task that they've taken on. I will say one thing that the current administration has done on the restoration side is sort of reanimate the federal law 925C, which does allow for restoration of gun rights for people who've been otherwise prohibited. I think, you know, a lot is going to depend on how they do it and if they do it fairly and if they don't, you know, run into the problems of discretion and bias that Bruins seem to, you know, have problems with when it came to handgun licensing. But a regime like that, I think, actually could head off some of the problems that Clark identified, which I completely, completely agree with. I guess the last thing I would say is just at a very, very high level, I mean, I think this may just be the sort of new normal for the Second Amendment. I mean, again, to analogize, to the first, you know, when Heller was decided, we went basically 10 years without much more methodological developments of how Second Amendment doctrine was going to work. I mean, there are big cases like McDonald, which applied the Second Amendment right to the states. But for the most part, the Supreme Court is just denying cert left and right. And now they're taking Second Amendment cases. You know, we had two last term that we've talked about. We got a huge one pending this term. And I think it may be that the Second Amendment starts looking more like the first and that we just get a case or two every year because there's just too much stuff to figure out. So hopefully have us back on. We get to keep the conversation going. -
Speaker 1That sounds wonderful. So Joseph Plocher, Clark Neely, for a civil, clear, engaging conversation on the Second Amendment. Thank you so much. -
Speaker 2Thank you, Tom. -
Speaker 1Pleasure. - This episode was produced and mixed by Bill Pollack with production support from Charles Somm. Research was provided by Anna Salvatore and Tristan Worsham. In celebration of America's 250th anniversary, we published "The Promise of America: Reflections on our Enduring Ideals." The book is an inspirational collection of essays exploring the founding principles that continue to shape American democracy from the nation's leading constitutional scholars. To purchase a copy of "The Promise of America," visit constitutioncenter.org/promiseofamerica. Please recommend "We the People" to friends, colleagues, and anyone, anywhere who's eager for a weekly dose of constitutional education and debate. And always remember that the National Constitution Center is a private, nonpartisan nonprofit, and we rely on your generosity, passion, and engagement for all of our programming, including this podcast. Please consider donating today at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Tom Donnelly.
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