1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,320 --> 00:00:12,680 Speaker 1: The Supreme Court has been largely silent on the subject 3 00:00:12,680 --> 00:00:15,520 Speaker 1: of gun rights for more than a decade, but now 4 00:00:15,560 --> 00:00:18,880 Speaker 1: it appears that the newly conservative Court will go where 5 00:00:18,920 --> 00:00:21,640 Speaker 1: the justices have been reluctant to go in the past. 6 00:00:22,079 --> 00:00:25,000 Speaker 1: The Court is poised to rule that there's a constitutional 7 00:00:25,120 --> 00:00:29,080 Speaker 1: right to carry handguns outside your home. During our arguments 8 00:00:29,120 --> 00:00:33,600 Speaker 1: on Wednesday, the conservative justices were uniformly critical of the 9 00:00:33,640 --> 00:00:37,320 Speaker 1: New York law that requires a special justification to get 10 00:00:37,360 --> 00:00:41,159 Speaker 1: a concealed carry license. Here are Chief Justice John Roberts 11 00:00:41,200 --> 00:00:44,000 Speaker 1: and Justice Brett Kavanaugh. You don't have to say when 12 00:00:44,040 --> 00:00:47,000 Speaker 1: you're looking for a permit uh to speak on a 13 00:00:47,159 --> 00:00:49,920 Speaker 1: street corner or whatever, that you know your speech is 14 00:00:49,920 --> 00:00:52,360 Speaker 1: particularly important. So why do you have to show in 15 00:00:52,360 --> 00:00:56,160 Speaker 1: this case convince somebody that you're entitled to exercise your 16 00:00:56,160 --> 00:00:59,640 Speaker 1: Second Amendment right? Why isn't it good enough to say 17 00:00:59,680 --> 00:01:04,560 Speaker 1: I live than a violent area and I want to 18 00:01:04,560 --> 00:01:07,119 Speaker 1: be able to defend myself. My guest is a leading 19 00:01:07,160 --> 00:01:10,440 Speaker 1: expert on the Second Amendment, Adam Winkler, a professor at 20 00:01:10,520 --> 00:01:12,960 Speaker 1: u c l A Law school. So Adam what's your 21 00:01:13,000 --> 00:01:16,679 Speaker 1: take on the oral arguments, Well, it did appear that 22 00:01:16,720 --> 00:01:20,160 Speaker 1: there were a majority of justices that were prepared to 23 00:01:20,280 --> 00:01:24,600 Speaker 1: strike down New York's restrictions on concealed carry. It's always 24 00:01:24,600 --> 00:01:27,679 Speaker 1: hard to figure out the tea leaves just from oral argument, 25 00:01:27,880 --> 00:01:31,920 Speaker 1: but there was considerable skepticism from all of the conservatives 26 00:01:31,920 --> 00:01:36,320 Speaker 1: on the court towards New York's restrictions. How restrictive is 27 00:01:36,400 --> 00:01:40,280 Speaker 1: the New York law? New York's law is pretty restrictive. 28 00:01:40,600 --> 00:01:43,800 Speaker 1: The laws of most states allow almost anyone to get 29 00:01:43,800 --> 00:01:46,240 Speaker 1: a permit so long as there are a law abiding person, 30 00:01:46,400 --> 00:01:48,960 Speaker 1: but New York, along with California and a handful of 31 00:01:48,960 --> 00:01:51,920 Speaker 1: other states, make it much more difficult and only give 32 00:01:52,120 --> 00:01:55,520 Speaker 1: permits to people who can show a special need or 33 00:01:55,600 --> 00:01:58,680 Speaker 1: good cause to carry a firearm. And what that means 34 00:01:58,720 --> 00:02:01,320 Speaker 1: is you need to have an individ dualized reason to 35 00:02:01,400 --> 00:02:04,280 Speaker 1: carry a firearm, not just I'm generally scared of crime, 36 00:02:04,520 --> 00:02:07,320 Speaker 1: but maybe I've been a victim of a stalker, or 37 00:02:07,360 --> 00:02:09,640 Speaker 1: I've had death threats, or I work in a very 38 00:02:09,760 --> 00:02:12,880 Speaker 1: high crime area. But difficult to get a permit in 39 00:02:13,040 --> 00:02:16,480 Speaker 1: New York and in some other states. So was that 40 00:02:16,560 --> 00:02:20,680 Speaker 1: the conservative justice concerned that it was difficult, or more 41 00:02:21,280 --> 00:02:23,640 Speaker 1: that it's a constitutional right in anyone should have the 42 00:02:23,720 --> 00:02:25,840 Speaker 1: right to carry a gun. Well, it remains to be 43 00:02:25,880 --> 00:02:29,080 Speaker 1: seen exactly how the Court goes with this decision. I 44 00:02:29,120 --> 00:02:32,400 Speaker 1: think that it's unlikely that the Court will say that 45 00:02:32,520 --> 00:02:36,040 Speaker 1: as many people in the gun enthusiast world say that 46 00:02:36,160 --> 00:02:39,000 Speaker 1: the Second Amendment is the only permit I need to 47 00:02:39,120 --> 00:02:41,560 Speaker 1: carry a gun on the street. I think the Supreme 48 00:02:41,600 --> 00:02:44,240 Speaker 1: Court is likely to say that states do have authority 49 00:02:44,320 --> 00:02:48,040 Speaker 1: to provide permits and to require permits for concealed carry, 50 00:02:48,080 --> 00:02:50,840 Speaker 1: but they're going to say that it must be readily 51 00:02:50,880 --> 00:02:54,239 Speaker 1: available to law abiding people. Some of the justices Pepper, 52 00:02:54,440 --> 00:02:57,040 Speaker 1: the lawyer for the n r A, with questions about 53 00:02:57,120 --> 00:03:01,079 Speaker 1: places where the state could bar guns. Subways, the n 54 00:03:01,200 --> 00:03:05,600 Speaker 1: y U Campus, Yankee Stadium. Here's Justice Amy Coney Barrett. 55 00:03:06,080 --> 00:03:08,560 Speaker 1: Can't we just say Times Square on New Year's Eve 56 00:03:09,040 --> 00:03:12,400 Speaker 1: is a sensitive place because now we've seen, you know, 57 00:03:12,480 --> 00:03:14,480 Speaker 1: people are on top of each other. We've we've had 58 00:03:14,520 --> 00:03:17,560 Speaker 1: experience with violence. So we're making a judgment it's a 59 00:03:17,560 --> 00:03:21,120 Speaker 1: sensitive place. Well, I thought that was really interesting. You know, 60 00:03:21,160 --> 00:03:23,880 Speaker 1: the court in the Heller case said that the government 61 00:03:23,919 --> 00:03:26,600 Speaker 1: has the authority under the Second Amendment to keep guns 62 00:03:26,639 --> 00:03:30,679 Speaker 1: out of sensitive places like government buildings and schools. The 63 00:03:30,800 --> 00:03:33,880 Speaker 1: question is how many different places does that cover? How 64 00:03:33,919 --> 00:03:37,960 Speaker 1: broadly do we define sensitive places? It did seem that 65 00:03:38,040 --> 00:03:40,480 Speaker 1: if you could say that the subway and Times Square 66 00:03:40,520 --> 00:03:43,720 Speaker 1: and Yankee Stadium we're all sensitive places, then that might 67 00:03:43,760 --> 00:03:47,080 Speaker 1: be a roadmap for New York to revise it law. 68 00:03:47,280 --> 00:03:51,120 Speaker 1: Should the Supreme Court strike the current restrictions down, New 69 00:03:51,200 --> 00:03:54,360 Speaker 1: York could allow more people to carry firearms, but broadly 70 00:03:54,400 --> 00:03:57,680 Speaker 1: defined sensitive places to make it very difficult to bring 71 00:03:57,680 --> 00:04:00,400 Speaker 1: your gun, for instance, on the subway or in the 72 00:04:00,440 --> 00:04:02,960 Speaker 1: Times Square or other areas of New York that are 73 00:04:02,960 --> 00:04:08,240 Speaker 1: heavily populated and busy. But private organizations can ban guns. 74 00:04:08,680 --> 00:04:12,280 Speaker 1: Oh that's right. I mean, anyone's constitutional rights generally stopped 75 00:04:12,360 --> 00:04:14,480 Speaker 1: at my property line. You don't have a right to 76 00:04:14,520 --> 00:04:17,080 Speaker 1: exercise your free speech on my property, and you don't 77 00:04:17,120 --> 00:04:19,680 Speaker 1: have the right to exercise your Second Amendment right to 78 00:04:19,760 --> 00:04:22,400 Speaker 1: keep in bear arms on my property. I don't think 79 00:04:22,440 --> 00:04:24,880 Speaker 1: this Court will go into, at least in this case, 80 00:04:25,160 --> 00:04:28,400 Speaker 1: the balance between Second Amendment rights and private property. What 81 00:04:28,560 --> 00:04:30,560 Speaker 1: we're really talking about in the New York case is 82 00:04:30,600 --> 00:04:34,320 Speaker 1: the ability to carry guns in public. Generally, the two 83 00:04:34,360 --> 00:04:37,080 Speaker 1: sides seem to be reading history and coming out with 84 00:04:37,120 --> 00:04:40,840 Speaker 1: a different conclusion. Here's Justice Sonia so to Mayor to 85 00:04:40,920 --> 00:04:44,080 Speaker 1: the attorney representing the n r A affiliate, I don't 86 00:04:44,080 --> 00:04:48,160 Speaker 1: know how I get pastil that history, well without you 87 00:04:48,960 --> 00:04:52,479 Speaker 1: sort of making it up and saying there's a right 88 00:04:52,800 --> 00:04:56,080 Speaker 1: to control states that has never been exercised in the 89 00:04:56,279 --> 00:04:58,919 Speaker 1: entire history of the United States. Well, it's one of 90 00:04:58,960 --> 00:05:01,160 Speaker 1: the interesting things about this area of law. It's one 91 00:05:01,200 --> 00:05:03,960 Speaker 1: in which the Court really does seem focused on history 92 00:05:04,000 --> 00:05:07,920 Speaker 1: and tradition. And if there's historical precedence for a particular 93 00:05:07,960 --> 00:05:12,039 Speaker 1: gun safety law, then that law might be constitutional permissible, 94 00:05:12,160 --> 00:05:14,880 Speaker 1: and if there are not historical precedents, then it's likely 95 00:05:15,120 --> 00:05:19,560 Speaker 1: questionable on constitutional grounds. But history really is complicated in 96 00:05:19,600 --> 00:05:22,320 Speaker 1: this area. There is a long history of restrictions on 97 00:05:22,400 --> 00:05:25,479 Speaker 1: concealed carry, and both parties were arguing in this case 98 00:05:25,680 --> 00:05:28,839 Speaker 1: about how broad and what the scope of those historical 99 00:05:28,880 --> 00:05:31,960 Speaker 1: bands were. What Justice Soto Mayor was referencing was the 100 00:05:32,000 --> 00:05:34,320 Speaker 1: fact that over the course of American history, there have 101 00:05:34,400 --> 00:05:37,279 Speaker 1: been a lot of different concealed carey regimes, and the 102 00:05:37,320 --> 00:05:41,400 Speaker 1: Supreme Court has never interfered with those judgment calls. And 103 00:05:41,480 --> 00:05:45,240 Speaker 1: what she's suggesting is that the conservative justices are going 104 00:05:45,279 --> 00:05:48,680 Speaker 1: to create this new edifice of the Supreme Court striking 105 00:05:48,720 --> 00:05:52,159 Speaker 1: down state gun laws on the grounds of history and tradition, 106 00:05:52,440 --> 00:05:56,200 Speaker 1: even though the Supreme Court doing that would be historically unprecedented. 107 00:05:56,560 --> 00:05:59,800 Speaker 1: And how much is this case about Trump's three appointees 108 00:06:00,320 --> 00:06:03,040 Speaker 1: who were supported by the n r A. Oh, this 109 00:06:03,120 --> 00:06:07,839 Speaker 1: case is no doubt directly attributable to President Trump's appointment 110 00:06:07,920 --> 00:06:11,440 Speaker 1: of three justices to the Supreme Court. After the Heller case, 111 00:06:11,480 --> 00:06:14,080 Speaker 1: the Court had for the most part stayed away from 112 00:06:14,080 --> 00:06:17,320 Speaker 1: the Second Amendment and had specifically refused to rule on 113 00:06:17,400 --> 00:06:20,120 Speaker 1: this exact question that was presented to in the oral 114 00:06:20,240 --> 00:06:22,640 Speaker 1: argument about whether there's a right to carry guns in 115 00:06:22,680 --> 00:06:26,359 Speaker 1: public and whether discretionary permitting that New York has and 116 00:06:26,400 --> 00:06:30,760 Speaker 1: other states have is constitutionally permissible. There weren't enough votes 117 00:06:30,800 --> 00:06:33,440 Speaker 1: on the Court to take that case either way. But 118 00:06:33,560 --> 00:06:37,320 Speaker 1: with the retirements of Justice Kennedy and the passing of 119 00:06:37,440 --> 00:06:41,560 Speaker 1: Justice Scalia and Ginsburg and their replacement by Trump justices 120 00:06:41,839 --> 00:06:45,120 Speaker 1: with strong pro gun records on the lower courts, that 121 00:06:45,200 --> 00:06:47,839 Speaker 1: has led to both the Supreme Court taking a new 122 00:06:47,880 --> 00:06:51,960 Speaker 1: case and likely providing a bold, aggressive new vision of 123 00:06:52,000 --> 00:06:55,359 Speaker 1: the Second Amendment that heretofore just didn't find much of 124 00:06:55,600 --> 00:06:59,200 Speaker 1: a voice in the Supreme Court. So some of Justice 125 00:06:59,240 --> 00:07:03,920 Speaker 1: Scalia's sort of disciples on this court may go even 126 00:07:03,920 --> 00:07:07,000 Speaker 1: further than he would have gone. That's right. The Heller 127 00:07:07,000 --> 00:07:11,320 Speaker 1: case had very specific language that suggested it was a 128 00:07:11,320 --> 00:07:15,520 Speaker 1: compromise that suggested that states do have regulatory authority over 129 00:07:15,560 --> 00:07:20,600 Speaker 1: things like bands on falons, possessing firearms, or restricting guns 130 00:07:20,680 --> 00:07:24,880 Speaker 1: from sensitive places. But the justices seemed very interested in 131 00:07:25,200 --> 00:07:28,720 Speaker 1: history and tradition, and Paul Clement, arguing on behalf of 132 00:07:28,720 --> 00:07:31,400 Speaker 1: the challengers to New York's law, said they really don't 133 00:07:31,400 --> 00:07:34,600 Speaker 1: need to look at history past eighteen seventy one. Well, 134 00:07:34,640 --> 00:07:37,200 Speaker 1: if we don't look at history past eighteen seventy one 135 00:07:37,280 --> 00:07:40,520 Speaker 1: after the adoption and ratification of the fourteenth Amendment, well 136 00:07:40,600 --> 00:07:44,600 Speaker 1: then bands on falons possessing firearms cannot be constitutionally permissible. 137 00:07:44,840 --> 00:07:48,320 Speaker 1: Bands on people with mental illness from having firearms cannot 138 00:07:48,360 --> 00:07:51,840 Speaker 1: be constitutionally permissible. We might even note that sensitive places, 139 00:07:51,880 --> 00:07:54,040 Speaker 1: which it did seem like a majority of justices were 140 00:07:54,080 --> 00:07:57,880 Speaker 1: willing to say states could keep guns out of also 141 00:07:58,000 --> 00:08:01,480 Speaker 1: have no historical precedent pre eighteen seventy one. So I 142 00:08:01,520 --> 00:08:04,040 Speaker 1: think this case is going to put the conservative justices 143 00:08:04,040 --> 00:08:06,840 Speaker 1: who believe in history and tradition in an awkward place, 144 00:08:07,160 --> 00:08:10,720 Speaker 1: trying to say that only history matters. But yet much 145 00:08:10,760 --> 00:08:15,120 Speaker 1: more modern forms of regulations seem very mainstream and unlikely 146 00:08:15,160 --> 00:08:20,560 Speaker 1: to be struck out. Have lower courts generally sustained gun 147 00:08:20,640 --> 00:08:25,520 Speaker 1: control regulations? Yeah? Since the Heller case, there have been 148 00:08:25,600 --> 00:08:28,960 Speaker 1: over a thousand federal court decisions on a wide variety 149 00:08:29,200 --> 00:08:32,920 Speaker 1: of gun safety laws, the vast majority of which have 150 00:08:33,080 --> 00:08:37,200 Speaker 1: been upheld um and this has led some of the justices, 151 00:08:37,280 --> 00:08:42,319 Speaker 1: including Justice Thomas, Justice Corsets, and Justice Elito, to complain 152 00:08:42,400 --> 00:08:44,960 Speaker 1: that the Second Amendment is being treated like a second 153 00:08:45,040 --> 00:08:49,280 Speaker 1: class right. They say, and what that seems to suggest 154 00:08:49,440 --> 00:08:52,240 Speaker 1: is that they think more gun laws should be struck 155 00:08:52,280 --> 00:08:54,560 Speaker 1: down and that the lower courts aren't doing a good 156 00:08:54,640 --> 00:08:57,080 Speaker 1: nut job on it. And I think that's why this 157 00:08:57,160 --> 00:09:00,240 Speaker 1: case is really so important. It's not just about New 158 00:09:00,320 --> 00:09:03,960 Speaker 1: York's concealed carry laws. It's a signal that the Court 159 00:09:04,080 --> 00:09:06,640 Speaker 1: is prepared to step back into the Second Amendment to 160 00:09:06,760 --> 00:09:10,280 Speaker 1: strength and Second Amendment protections and call into question gun 161 00:09:10,360 --> 00:09:12,840 Speaker 1: safety laws. I think we can expect to see the 162 00:09:12,880 --> 00:09:16,280 Speaker 1: Court take on bands on assault weapons and bands on 163 00:09:16,360 --> 00:09:20,040 Speaker 1: high capacity magazine before too long. Public approval of the 164 00:09:20,080 --> 00:09:23,120 Speaker 1: Court is at an all time low, and a majority 165 00:09:23,160 --> 00:09:27,040 Speaker 1: of Americans favor gun control laws. So how far do 166 00:09:27,080 --> 00:09:30,840 Speaker 1: you think the Justices are willing to go here stepping 167 00:09:30,840 --> 00:09:33,880 Speaker 1: out of line with the mainstream of the country. Well, 168 00:09:33,920 --> 00:09:37,400 Speaker 1: I do not think the justices, especially the conservative justices, 169 00:09:37,640 --> 00:09:41,080 Speaker 1: are really interested in what public opinion polls say, and 170 00:09:41,120 --> 00:09:42,920 Speaker 1: I don't think they're going to be guided in their 171 00:09:42,920 --> 00:09:47,120 Speaker 1: constitutional analysis at all by public opinion, at least in 172 00:09:47,160 --> 00:09:51,040 Speaker 1: any direct and straightforward way. And so I think if 173 00:09:51,040 --> 00:09:53,720 Speaker 1: the Supreme Court has a low approval rating now, well 174 00:09:53,760 --> 00:09:56,400 Speaker 1: just wait until they require guns on the streets of 175 00:09:56,400 --> 00:09:59,560 Speaker 1: New York and California. Just wait until they overturn or 176 00:09:59,600 --> 00:10:02,440 Speaker 1: severe we cut back rovers's weight, as they seem almost 177 00:10:02,440 --> 00:10:05,240 Speaker 1: certain to do this term, and maybe even take on 178 00:10:05,440 --> 00:10:09,800 Speaker 1: and declare unconstitutional race based affirmative action. I think we'll 179 00:10:09,840 --> 00:10:13,240 Speaker 1: see the Court's approval rating plummet even further. So I 180 00:10:13,240 --> 00:10:16,120 Speaker 1: don't think we've found the depth of the Supreme Court's 181 00:10:16,400 --> 00:10:20,440 Speaker 1: approval ratings quite yet. In a ruling against New York 182 00:10:20,480 --> 00:10:24,200 Speaker 1: would have consequences for at least a half dozen other states. 183 00:10:24,360 --> 00:10:27,560 Speaker 1: Would that mean that they would have to rethink their laws? 184 00:10:28,440 --> 00:10:30,600 Speaker 1: I do think that's exactly what it's going to mean. 185 00:10:30,679 --> 00:10:32,520 Speaker 1: I think places like New York are going to have 186 00:10:32,640 --> 00:10:36,200 Speaker 1: to think of new ways to restrict gun caring or 187 00:10:36,240 --> 00:10:39,240 Speaker 1: to protect public safety on the public streets. And it's 188 00:10:39,240 --> 00:10:43,160 Speaker 1: not just New York. It's also California and Hawaii and Massachusetts, 189 00:10:43,160 --> 00:10:45,360 Speaker 1: a number of other states. And I think that there's 190 00:10:45,400 --> 00:10:47,360 Speaker 1: going to be a variety of gun laws that they're 191 00:10:47,400 --> 00:10:49,360 Speaker 1: going to have to reconsider in the wake of the 192 00:10:49,440 --> 00:10:52,920 Speaker 1: new invigorated Second Amendment on behalf of the Roberts Court 193 00:10:53,280 --> 00:10:57,120 Speaker 1: and Adam. Should gun control groups change their approach in 194 00:10:57,280 --> 00:11:02,280 Speaker 1: light of the Supreme Court and new Personally? As historian, 195 00:11:02,679 --> 00:11:05,600 Speaker 1: what's your take on where the gun laws should be 196 00:11:05,760 --> 00:11:09,280 Speaker 1: according to our history and the Constitution? Well, I think 197 00:11:09,320 --> 00:11:11,280 Speaker 1: one of the interesting things that I found in my 198 00:11:11,360 --> 00:11:15,000 Speaker 1: historical research is that there has been a wide variety 199 00:11:15,080 --> 00:11:18,520 Speaker 1: of gun regimes in the different states, and what we've 200 00:11:18,559 --> 00:11:21,280 Speaker 1: seen traditionally is that the courts have generally taken a 201 00:11:21,400 --> 00:11:25,400 Speaker 1: hands off approach, given plenty of leeway to lawmakers to 202 00:11:25,520 --> 00:11:29,920 Speaker 1: regulate firearms so long as they don't completely bar citizens 203 00:11:29,920 --> 00:11:33,560 Speaker 1: from having guns for personal protection. Um. And I think 204 00:11:33,600 --> 00:11:37,160 Speaker 1: that's what history and traditions suggests. That there is a 205 00:11:37,160 --> 00:11:42,960 Speaker 1: considerable leeway for legislators to experiment with gun regulation so 206 00:11:43,040 --> 00:11:46,800 Speaker 1: long as people have that basic core right to defend themselves. UM. 207 00:11:47,679 --> 00:11:50,319 Speaker 1: Whether that ends up being the history and tradition that 208 00:11:50,400 --> 00:11:53,600 Speaker 1: the Court accepts, or whether the Court instead views the 209 00:11:53,640 --> 00:11:57,840 Speaker 1: history and tradition is really just being about broad freedoms 210 00:11:58,000 --> 00:12:01,319 Speaker 1: for people to have firearm, I guess that remains to 211 00:12:01,360 --> 00:12:05,240 Speaker 1: be seen. And Adam should gun control groups change their 212 00:12:05,280 --> 00:12:09,040 Speaker 1: approach in light of the Supreme Court? Well, I do 213 00:12:09,160 --> 00:12:12,760 Speaker 1: think that the new Supreme Court, with its news Second 214 00:12:12,760 --> 00:12:17,560 Speaker 1: Amendment protections, does require the gun safety movement to change. Look, 215 00:12:17,600 --> 00:12:21,120 Speaker 1: the gun safety movement has arguably never been stronger than 216 00:12:21,160 --> 00:12:24,080 Speaker 1: it is right now. There's a huge grassroots mobilization in 217 00:12:24,120 --> 00:12:28,000 Speaker 1: favor of gun reform, their wealthy new organizations like every 218 00:12:28,040 --> 00:12:31,560 Speaker 1: Town and Gabrielle Geifford's organization, and we've even seen gun 219 00:12:31,640 --> 00:12:36,079 Speaker 1: safety organizations outspending the n r A on some recent elections. 220 00:12:36,520 --> 00:12:39,240 Speaker 1: And so that movement is strong, but it has put 221 00:12:39,240 --> 00:12:43,240 Speaker 1: perhaps too much weight into proposals like banning assault weapons 222 00:12:43,240 --> 00:12:46,120 Speaker 1: and high capacity magazines that are likely to run a 223 00:12:46,240 --> 00:12:48,720 Speaker 1: foul of this Supreme Court. So I think that the 224 00:12:48,720 --> 00:12:52,679 Speaker 1: gun safety movement should stop trying to regulate the types 225 00:12:52,720 --> 00:12:55,480 Speaker 1: of guns that we have and instead focus on things 226 00:12:55,520 --> 00:12:58,880 Speaker 1: like community intervention programs that have a proven track record 227 00:12:58,920 --> 00:13:02,240 Speaker 1: of reducing gun violence, of unshackling the A t F, 228 00:13:02,320 --> 00:13:05,480 Speaker 1: the Bureau of Alcohol, Tobacco, Firearms and Explosives, the main 229 00:13:05,600 --> 00:13:09,839 Speaker 1: federal gun law enforcement agency that's been hobbled by artificial 230 00:13:09,880 --> 00:13:12,160 Speaker 1: restraints that have been imposed by the n r A 231 00:13:12,280 --> 00:13:15,360 Speaker 1: and its allies in Congress, and of course we need 232 00:13:15,440 --> 00:13:19,239 Speaker 1: better and universal background checks. I think we can continue 233 00:13:19,280 --> 00:13:21,800 Speaker 1: to try to reduce gun violence despite the fact that 234 00:13:21,840 --> 00:13:23,680 Speaker 1: the Court is going to make it hard to regulate 235 00:13:23,720 --> 00:13:26,280 Speaker 1: particular types of weapon. Thanks so much for being on 236 00:13:26,320 --> 00:13:29,240 Speaker 1: the show, Adam. That's Professor Adam Winkler of u c 237 00:13:29,400 --> 00:13:32,760 Speaker 1: l A Law School. A note. Michael Bloomberg, the founder 238 00:13:32,760 --> 00:13:36,280 Speaker 1: and majority owner of Bloomberg LP, the parent of Bloomberg Radio, 239 00:13:36,720 --> 00:13:40,079 Speaker 1: is a donator groups that support gun control, including every 240 00:13:40,120 --> 00:13:42,800 Speaker 1: Town for Gun Safety, which filed a brief at the 241 00:13:42,800 --> 00:13:48,079 Speaker 1: Supreme Court supporting the New York restrictions. The Supreme Court 242 00:13:48,120 --> 00:13:51,400 Speaker 1: heard arguments on Monday in a high stakes case over 243 00:13:51,440 --> 00:13:54,680 Speaker 1: the strictest abortion law in the country, the Texas law 244 00:13:54,720 --> 00:13:58,080 Speaker 1: that has stopped most abortions in the state. The focus 245 00:13:58,160 --> 00:14:01,559 Speaker 1: was on the unusual provision tech has included that makes 246 00:14:01,559 --> 00:14:05,480 Speaker 1: the law enforceable only through private lawsuits in order to 247 00:14:05,559 --> 00:14:09,760 Speaker 1: keep federal courts from getting involved and enforcing constitutional rights. 248 00:14:10,200 --> 00:14:13,760 Speaker 1: Liberal Justice Elana Kagan was the most vocal critic of 249 00:14:13,760 --> 00:14:18,000 Speaker 1: the law. Some geniuses came up with a way to 250 00:14:18,360 --> 00:14:24,320 Speaker 1: evade the commands of that decision, as well as the 251 00:14:24,360 --> 00:14:29,160 Speaker 1: command that the broader, even the even broader principle that 252 00:14:29,280 --> 00:14:34,480 Speaker 1: states are not to nullify federal constitutional rights. And it 253 00:14:34,600 --> 00:14:37,480 Speaker 1: came as a bit of a surprise when conservative Justice 254 00:14:37,520 --> 00:14:41,520 Speaker 1: Brett Kavanaugh jumped in and signaled he agreed with Kagan. 255 00:14:41,960 --> 00:14:45,640 Speaker 1: Justice Kagan points out, there's a loophole that's been exploited 256 00:14:45,680 --> 00:14:50,880 Speaker 1: here uh or used here, which is the um private 257 00:14:50,880 --> 00:14:53,800 Speaker 1: suits are enforced by state court clerks or judges. So 258 00:14:53,840 --> 00:14:57,320 Speaker 1: the question becomes, should we extend the principle of ex 259 00:14:57,400 --> 00:15:02,200 Speaker 1: party young to in essence closed that loophole. Joining me 260 00:15:02,280 --> 00:15:05,800 Speaker 1: is Mary Ziegler, a professor at Florida State University College 261 00:15:05,800 --> 00:15:08,720 Speaker 1: of Law and author of the book Abortion in the 262 00:15:08,800 --> 00:15:12,600 Speaker 1: Law in America, A Legal History. The question before the 263 00:15:12,680 --> 00:15:17,320 Speaker 1: court is not whether sp eight is constitutional. What is 264 00:15:17,360 --> 00:15:21,240 Speaker 1: the question before the court? Well, there are really two questions. 265 00:15:21,400 --> 00:15:26,400 Speaker 1: One is whether sp A style laws are permissible, basically, 266 00:15:26,400 --> 00:15:30,320 Speaker 1: whether states like Texas can use this kind of exotic 267 00:15:30,680 --> 00:15:34,800 Speaker 1: strategy to prevent federal courts from hearing challenges. And then 268 00:15:34,840 --> 00:15:37,480 Speaker 1: there's a second question, which is whether the Justice Department 269 00:15:37,720 --> 00:15:41,440 Speaker 1: can bring a constitutional noal challenge against SPIATE in the 270 00:15:41,480 --> 00:15:43,880 Speaker 1: way that it has. So they're both kind of complicated 271 00:15:44,000 --> 00:15:47,760 Speaker 1: procedural questions. What kind of concerns did you hear from 272 00:15:47,800 --> 00:15:51,520 Speaker 1: the justices? There were obviously some justices that were sympathetic 273 00:15:51,920 --> 00:15:54,840 Speaker 1: to Texas Solicitor General, but I think there were real 274 00:15:54,920 --> 00:15:58,800 Speaker 1: concerns that if they sanctioned what was going on with SPA, 275 00:15:58,960 --> 00:16:01,520 Speaker 1: that that wouldn't be the of the matter. In other words, 276 00:16:01,520 --> 00:16:05,920 Speaker 1: that states could use similar strategies to circumvent other constitutional rights. 277 00:16:06,000 --> 00:16:08,600 Speaker 1: And so even though many of us think the Court 278 00:16:08,800 --> 00:16:12,840 Speaker 1: the skeptical about Rov. Wade and maybe poised to reconsider Rov. Wad, 279 00:16:13,120 --> 00:16:16,080 Speaker 1: that doesn't mean the justices are going to be happy 280 00:16:16,160 --> 00:16:19,360 Speaker 1: with allowing states to kind of take the power unto 281 00:16:19,400 --> 00:16:23,560 Speaker 1: themselves to avoid or nullify rights that the Court still recognizes. 282 00:16:23,800 --> 00:16:27,120 Speaker 1: We heard that concern from justices on both sides of 283 00:16:27,160 --> 00:16:31,920 Speaker 1: the ideological spectrum. Justice Kavanaugh used the example of a 284 00:16:32,080 --> 00:16:36,440 Speaker 1: law restricting Second Amendment rights. Well, I think Justice Kavanaugh 285 00:16:36,480 --> 00:16:39,360 Speaker 1: and Justice Sparrot seemed to hold similar concerns about whether 286 00:16:39,400 --> 00:16:41,600 Speaker 1: this was a model that could affect other areas of 287 00:16:41,640 --> 00:16:44,160 Speaker 1: the law. So Justice Sparret asked about the First Amendment. 288 00:16:44,400 --> 00:16:47,720 Speaker 1: Justice Kavanaugh asked about the Second Amendment, which I think 289 00:16:47,920 --> 00:16:50,440 Speaker 1: raises real questions about whether either of them will be 290 00:16:50,520 --> 00:16:52,800 Speaker 1: voting with Texas in this case, at least in the 291 00:16:52,880 --> 00:16:55,680 Speaker 1: case involving the abortion providers. As I mentioned, there are 292 00:16:55,680 --> 00:16:58,400 Speaker 1: two cases before the court. Yes, there's a case by 293 00:16:58,400 --> 00:17:02,200 Speaker 1: the abortion providers and case by the Justice Department. Now, 294 00:17:02,240 --> 00:17:04,919 Speaker 1: several of the justices seemed to have problems with the 295 00:17:05,040 --> 00:17:09,560 Speaker 1: idea of suing judges. Here's Chief Justice John Roberts response 296 00:17:09,680 --> 00:17:14,119 Speaker 1: to Mark Karen, a lawyer representing the providers. It's the 297 00:17:14,240 --> 00:17:16,800 Speaker 1: rules that have been created by the Texas legislature that 298 00:17:16,880 --> 00:17:20,760 Speaker 1: turned courts into a weapon that can be used to 299 00:17:21,440 --> 00:17:24,840 Speaker 1: nullify constitutions. You might appreciate that the idea of suing 300 00:17:24,880 --> 00:17:29,000 Speaker 1: the judges sort of got our attention. Uh, but is 301 00:17:29,040 --> 00:17:32,639 Speaker 1: there even is there even a case or controversy? Obviously, 302 00:17:32,720 --> 00:17:35,840 Speaker 1: the Supreme Court justices are themselves judges, and so that 303 00:17:35,920 --> 00:17:39,280 Speaker 1: was a concern that came up. There were questions, I think, 304 00:17:39,280 --> 00:17:41,440 Speaker 1: to about if you were going to find a way 305 00:17:41,480 --> 00:17:44,359 Speaker 1: around the hurdles that Texas erected, who would be the 306 00:17:44,440 --> 00:17:46,800 Speaker 1: right people to sue, and whether judges would be the 307 00:17:46,800 --> 00:17:50,880 Speaker 1: ones to be sued. The Court mentioned several past cases 308 00:17:51,240 --> 00:17:54,720 Speaker 1: that the Supreme Court had decided that treated judges as 309 00:17:55,040 --> 00:17:57,880 Speaker 1: the ones doing the enforcing. For example, of a racially 310 00:17:57,920 --> 00:18:01,160 Speaker 1: restricted covenant but limited were family leaves of color could live. 311 00:18:01,359 --> 00:18:04,320 Speaker 1: Courts were considered to be the ones enforcing the law 312 00:18:04,400 --> 00:18:07,879 Speaker 1: in that situation, but if interpreted the wrong way, that 313 00:18:07,920 --> 00:18:11,600 Speaker 1: could be an exception that swallows the rule. Justice Elena 314 00:18:11,720 --> 00:18:15,000 Speaker 1: kag And I think sarcastically called the state legislators who 315 00:18:15,040 --> 00:18:19,080 Speaker 1: wrote this some geniuses. But does it seem as if 316 00:18:19,119 --> 00:18:23,440 Speaker 1: they were very smart in the way they constructed this law. Yeah, 317 00:18:23,440 --> 00:18:25,360 Speaker 1: I think that's right. I mean, this was a ban 318 00:18:25,480 --> 00:18:27,960 Speaker 1: on abortion at six weeks and until the Supreme Court 319 00:18:28,000 --> 00:18:31,080 Speaker 1: says Robi Wade is gone. That's blatantly unconstitutional. So the 320 00:18:31,119 --> 00:18:34,280 Speaker 1: fact that we're even having a serious conversation about whether 321 00:18:34,359 --> 00:18:36,840 Speaker 1: Texas has the power to do this does suggest that 322 00:18:36,880 --> 00:18:39,720 Speaker 1: this was a clever law. Indeed, because there's no other way, 323 00:18:40,000 --> 00:18:43,480 Speaker 1: absent this kind of procedural intricacy, that we would even 324 00:18:43,480 --> 00:18:46,320 Speaker 1: be having a serious conversation about this right now. Did 325 00:18:46,359 --> 00:18:51,920 Speaker 1: it seem from questioning as if Justices Samuel Alito, Clarence Thomas, 326 00:18:52,160 --> 00:18:56,240 Speaker 1: and Neil Gorsuch didn't have a problem with the law. Yeah, 327 00:18:56,280 --> 00:18:59,840 Speaker 1: I think that Justices Gorsuch, Thomas, and Alito, I think 328 00:19:00,040 --> 00:19:02,840 Speaker 1: more or less seemed to believe that the hurdles that 329 00:19:02,920 --> 00:19:06,080 Speaker 1: Texas had erected were sound and that there was nothing 330 00:19:06,200 --> 00:19:10,359 Speaker 1: particularly disturbing about the strategies that Texas had used here. 331 00:19:10,600 --> 00:19:13,480 Speaker 1: But I think obviously that's only three justices, which means 332 00:19:13,480 --> 00:19:15,879 Speaker 1: that Texas could still find itself in some real trouble. 333 00:19:16,160 --> 00:19:19,119 Speaker 1: But there do seem to be enough votes to support 334 00:19:19,280 --> 00:19:23,320 Speaker 1: the abortion provider's challenge. Well, I think it's much less 335 00:19:23,359 --> 00:19:26,119 Speaker 1: clear that the Justice Department is going to farewell in 336 00:19:26,160 --> 00:19:30,000 Speaker 1: the court. Several of the justices, at various points asked basically, 337 00:19:30,000 --> 00:19:32,719 Speaker 1: if the Court were to side with the abortion providers 338 00:19:32,760 --> 00:19:35,440 Speaker 1: in that case, whether it would make it unnecessary to 339 00:19:35,600 --> 00:19:38,680 Speaker 1: resolve the Justice Department's case. There was also, I think 340 00:19:38,760 --> 00:19:42,560 Speaker 1: more skepticism of the Justice Department's position. So I don't 341 00:19:42,560 --> 00:19:45,000 Speaker 1: know if the Justice Department is going to fare as well, 342 00:19:45,119 --> 00:19:47,399 Speaker 1: but it does seem that there may not be five 343 00:19:47,480 --> 00:19:50,919 Speaker 1: votes for Texas and the abortion provider's case. Why was 344 00:19:50,960 --> 00:19:55,840 Speaker 1: there so much skepticism about the Justice Department's position. What 345 00:19:55,960 --> 00:19:59,439 Speaker 1: the Justice Department is doing is is quite unprecedented in 346 00:19:59,480 --> 00:20:03,960 Speaker 1: some ways, and I think the justices were um not 347 00:20:04,600 --> 00:20:09,920 Speaker 1: convinced that the United States could show enough of an injury, 348 00:20:10,080 --> 00:20:13,119 Speaker 1: could show that it had equity powers to bring this 349 00:20:13,200 --> 00:20:16,199 Speaker 1: sort of lawsuit, all of the kinds of even the 350 00:20:16,240 --> 00:20:19,320 Speaker 1: idea that the Justice Department had to, you know, break 351 00:20:19,359 --> 00:20:22,160 Speaker 1: its tradition of not bringing constitutional challenges of this kind 352 00:20:22,200 --> 00:20:25,359 Speaker 1: because of what was unusual about s P. Eight, that 353 00:20:25,440 --> 00:20:28,560 Speaker 1: the Justice Department had enough of an injury right that 354 00:20:28,600 --> 00:20:31,280 Speaker 1: it's sort of sovereign interest in ensuring that state's respect 355 00:20:31,280 --> 00:20:34,600 Speaker 1: the Constitution was tangible enough. I think the Court found 356 00:20:34,640 --> 00:20:38,200 Speaker 1: all of that um to be harder to credit. So 357 00:20:39,119 --> 00:20:41,880 Speaker 1: um and again I think the Justice Department suit is 358 00:20:41,880 --> 00:20:46,560 Speaker 1: is really procedurally complex, even compared to the abortion provider's suit, 359 00:20:47,000 --> 00:20:50,080 Speaker 1: and so I think there was some interest in maybe 360 00:20:50,320 --> 00:20:54,640 Speaker 1: avoiding that more ass altogether and resolving the abortion provider's 361 00:20:54,720 --> 00:20:56,399 Speaker 1: case and then maybe using that as a way to 362 00:20:56,480 --> 00:20:59,800 Speaker 1: dodge what the Justice Department had raised in terms of 363 00:21:01,560 --> 00:21:03,960 Speaker 1: you have the three Liberals and Justice Roberts, and it 364 00:21:04,040 --> 00:21:08,560 Speaker 1: seems as if Justices Amy Coney, Barrett, and Brett Kavanagh 365 00:21:09,400 --> 00:21:12,160 Speaker 1: may vote on the side of the abortion providers. From 366 00:21:12,160 --> 00:21:15,040 Speaker 1: their questions, not that we can tell everything from questions, 367 00:21:15,080 --> 00:21:17,760 Speaker 1: but from their questions that it seemed that way. I 368 00:21:17,800 --> 00:21:19,360 Speaker 1: think that's right. I mean, I think if you were 369 00:21:19,400 --> 00:21:21,440 Speaker 1: guessing now, you would guess that there are at least 370 00:21:21,480 --> 00:21:24,160 Speaker 1: five and maybe six votes against Texas in the abortion 371 00:21:24,160 --> 00:21:27,639 Speaker 1: provider's case. Let's assume that the justices side with the 372 00:21:27,680 --> 00:21:32,240 Speaker 1: abortion providers. What happens then the law is still in effect. 373 00:21:32,680 --> 00:21:35,360 Speaker 1: It's just a suit can go forward, right, So, I mean, 374 00:21:35,520 --> 00:21:38,040 Speaker 1: it depends. So they're they're different ways that the Court 375 00:21:38,040 --> 00:21:41,240 Speaker 1: could handle this. From a remedial standpoint, the Court could 376 00:21:41,240 --> 00:21:44,480 Speaker 1: issue some kind of emergency relief itself, essentially just block 377 00:21:44,680 --> 00:21:48,560 Speaker 1: espiate itself, or the Court could simply remand to the 378 00:21:48,560 --> 00:21:53,199 Speaker 1: district court, and that might take a little bit longer 379 00:21:53,320 --> 00:21:55,199 Speaker 1: in the sense of, you know, espiate might still be 380 00:21:55,240 --> 00:21:57,720 Speaker 1: in effect while that litigation continued. So if the Court 381 00:21:57,760 --> 00:22:00,560 Speaker 1: were issues some kind of remedy on a zone, that 382 00:22:00,680 --> 00:22:04,040 Speaker 1: might block ESPIATE immediately. By contrast, if the court issues 383 00:22:04,040 --> 00:22:06,720 Speaker 1: are remanded, then we may be you know, waiting a 384 00:22:06,720 --> 00:22:09,480 Speaker 1: while still well espiate is in effect. Sort Of in 385 00:22:09,520 --> 00:22:12,399 Speaker 1: the background here is that in just one month, the 386 00:22:12,440 --> 00:22:16,040 Speaker 1: Court is going to be considering a Mississippi abortion law. 387 00:22:16,240 --> 00:22:20,640 Speaker 1: On the merits. The Mississippi case does abandon aborsition at 388 00:22:20,720 --> 00:22:24,640 Speaker 1: fifteen weeks. What significant is that that's before a fetal viability, 389 00:22:24,720 --> 00:22:27,879 Speaker 1: which takes place that around the twenty fourth week of pregnancy. 390 00:22:28,080 --> 00:22:30,840 Speaker 1: So to uphold the Mississippi laws, many expect the Court 391 00:22:30,960 --> 00:22:33,000 Speaker 1: to do. The Court we either have to say Roe v. 392 00:22:33,119 --> 00:22:35,719 Speaker 1: Way was wrong in its entirety, or that the right 393 00:22:35,800 --> 00:22:39,320 Speaker 1: to choose abortion doesn't apply until viability. Either of those 394 00:22:39,400 --> 00:22:41,320 Speaker 1: would be a major decision that would put the Court 395 00:22:41,359 --> 00:22:44,240 Speaker 1: on the path to eliminating aborsion rights altogether. At some point, 396 00:22:44,800 --> 00:22:48,440 Speaker 1: you're feeling is that the Court will appalled the Mississippi law. 397 00:22:49,040 --> 00:22:50,600 Speaker 1: I think that's right. I don't think they would have 398 00:22:50,640 --> 00:22:53,600 Speaker 1: taken the case if that wasn't their intention. How would 399 00:22:53,600 --> 00:22:58,240 Speaker 1: they be able to uphold that and not overturn ROW. Well, 400 00:22:58,359 --> 00:23:01,720 Speaker 1: the they would have to finesse what ROW means us 401 00:23:01,800 --> 00:23:03,800 Speaker 1: much as they have in the past. Right. So the 402 00:23:03,920 --> 00:23:12,000 Speaker 1: Court in planned parented versus Casey has said, essentially, you know, 403 00:23:12,200 --> 00:23:15,480 Speaker 1: we're keeping the essential parts of ROW, and we're getting 404 00:23:15,600 --> 00:23:19,399 Speaker 1: rid of the unessential parts of ROW. Uh And at 405 00:23:19,440 --> 00:23:20,840 Speaker 1: the time they meant they were getting rid of the 406 00:23:20,880 --> 00:23:24,160 Speaker 1: trimester framework, which was actually the rule of law at 407 00:23:24,200 --> 00:23:26,800 Speaker 1: the time. And we're keeping the idea that there's a 408 00:23:26,880 --> 00:23:28,879 Speaker 1: right to choose a worshion before or viability. So the 409 00:23:28,960 --> 00:23:30,960 Speaker 1: Court has played this game before where what they mean 410 00:23:31,080 --> 00:23:33,440 Speaker 1: by ROW has changed, and it's possible that they could 411 00:23:33,440 --> 00:23:36,080 Speaker 1: do that again. Thanks for being on the Bloomberg Glass Show. Mary. 412 00:23:36,320 --> 00:23:40,000 Speaker 1: That's Professor Mary Ziegler of the Florida State University College 413 00:23:40,040 --> 00:23:42,320 Speaker 1: of Law. And that's it for this edition of the 414 00:23:42,359 --> 00:23:45,320 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 415 00:23:45,400 --> 00:23:48,480 Speaker 1: legal news on our Bloomberg Law Podcast. You can find 416 00:23:48,520 --> 00:23:53,080 Speaker 1: them on Apple Podcasts, Spotify, and at www Dot Bloomberg 417 00:23:53,160 --> 00:23:56,960 Speaker 1: dot com, slash podcast Slash Law, and remember to tune 418 00:23:56,960 --> 00:23:59,760 Speaker 1: into the Bloomberg Law Show every week night at ten 419 00:24:00,040 --> 00:24:03,600 Speaker 1: am Wall Street Time. I'm June Grosso and you're listening 420 00:24:03,720 --> 00:24:04,359 Speaker 1: to Bloomberg