WEBVTT - Anger, Sarcasm & The 2nd Amendment. Tim Sandefur Talks to A&G. 

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<v Speaker 1>Speaking of pretty good cases, here's a guy who knows

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<v Speaker 1>one that Tim the lawyer Sander for Tim's the vice

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<v Speaker 1>president for litigation for the Goldwater Institute, longtime a friend

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<v Speaker 1>of the Armstrong and Getty Show, and one of the

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<v Speaker 1>great explainers of the complex that we've ever run into. Tim.

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<v Speaker 1>How are you, sir? I'm great? How are you guys good?

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<v Speaker 1>Who do you like in the Bengals Rams matchup? I

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<v Speaker 1>heard there was some football game yesterday several you're you're famously,

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<v Speaker 1>for our listeners, not a sports fan, but you do.

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<v Speaker 1>You do have the same sentiments about the Olympics that

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<v Speaker 1>it's crazy that it's happening. I know it's it's crazy,

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<v Speaker 1>and it's it's immoral that that the United States would

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<v Speaker 1>would have anything to do with an institution that has

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<v Speaker 1>become a favorite playground for totalitarian dictatorships. Yeah, I would agree,

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<v Speaker 1>I would agree. So, uh, there was news last week

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<v Speaker 1>about a significant Second Amendment decision. I will let you

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<v Speaker 1>lay it out because you can do it better than me. Um.

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<v Speaker 1>And then if you're not a big fan of litigation,

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<v Speaker 1>you might be interested to hear that one of the

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<v Speaker 1>Joe just laid a verbal whooping down on on the

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<v Speaker 1>court as a whole. At least that's the way I

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<v Speaker 1>read it. But Tim, what are the basics? First? Yeah,

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<v Speaker 1>that's all right. That that was really spectacular. So this

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<v Speaker 1>is a case from California. It was decided by the

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<v Speaker 1>Ninth Circuit Court of Appeals on the question of whether

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<v Speaker 1>the COVID shutdowns of guns stores violated the Second Amendment.

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<v Speaker 1>So the Ventura count did, is there any other discussion that?

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<v Speaker 1>And that is what the what the court said remarkably enough,

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<v Speaker 1>So the Ventura County imposed these these shutdowns of various businesses,

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<v Speaker 1>and if they were kind of discriminatory, they allowed, for example,

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<v Speaker 1>bike stores to remain open shut down, but shut down

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<v Speaker 1>gun stores. Now, I'll add a footnote here to say

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<v Speaker 1>that the Arizona constant or the Arizona law, is different

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<v Speaker 1>from California, and this and that Arizona law expressly forbids

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<v Speaker 1>the shutting down of a gun store under circumstances like this,

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<v Speaker 1>because we take our our Second Amendment right very seriously

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<v Speaker 1>in my home state, but in California they don't. And

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<v Speaker 1>so the question that the court addressed was whether that

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<v Speaker 1>violated the Second Amendment. The court said yes, But what

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<v Speaker 1>was really remarkable was that one of the judges, Judge

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<v Speaker 1>Van Dyke, wrote a separate opinion where he said, look,

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<v Speaker 1>I expect that I'm going to be overruled on this

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<v Speaker 1>by my other fellow judges on the Ninth Circuit, and

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<v Speaker 1>here's what they're going to say, and here's why it's wrong.

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<v Speaker 1>And it's really quite quite a uh an angry sarcastic opinion.

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<v Speaker 1>Oh wait a minute, angry sarcasm. Now you're working my

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<v Speaker 1>side of the street. Can you give us some of

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<v Speaker 1>the basics of what he said to his brethren. So

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<v Speaker 1>what happens is when the when the Court of Appeals

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<v Speaker 1>decides the case, it's three judges who hear an appeal

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<v Speaker 1>and they decide that appeal, and then if you're one

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<v Speaker 1>of if you lost that appeal, you can ask for

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<v Speaker 1>what they call on bank rehearing, which is where all

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<v Speaker 1>of the judges on the circuit will review the case

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<v Speaker 1>and hear it all over again and correct the three

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<v Speaker 1>judge panel if they think they were wrong. And so

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<v Speaker 1>what Judge Van Dyke said is I expect that that's

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<v Speaker 1>what's going to happen to me because I've enforced the

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<v Speaker 1>Second Amendment and I know that my fellow judges in

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<v Speaker 1>the Ninth Circuit don't take the Second Amendment seriously. So

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<v Speaker 1>I expect that they're going to overrule me, and here's

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<v Speaker 1>what they're going to say. And he wrote a fake

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<v Speaker 1>opinion that was like a draft of what he expects

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<v Speaker 1>they will say when they overrule him. And the reason

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<v Speaker 1>he did that was to show that the Ninth Circuits

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<v Speaker 1>precedent when it comes to the Second Amendment is so vague,

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<v Speaker 1>so meaningless, so malleable, that it can basically come up

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<v Speaker 1>with any conclusion you want, and so that the odds

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<v Speaker 1>are stacked against people who want to exercise their constitutional

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<v Speaker 1>right to defend themselves. So he wrote this fake opinion.

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<v Speaker 1>He said, here's what they're gonna say, and then he

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<v Speaker 1>added footnotes in the opinion that says, so he you

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<v Speaker 1>know these we use these words as if they say

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<v Speaker 1>means something, but they actually don't. We're just making this

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<v Speaker 1>stuff up as we go along. And it's written in

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<v Speaker 1>this very sarcastic tone that is quite refreshing for those

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<v Speaker 1>of us who agree with him that the Ninth Circuit

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<v Speaker 1>does not take Second Amendment rights seriously. Well, my understanding

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<v Speaker 1>of his blast was saying that the Ninth Circuit decides

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<v Speaker 1>case by case. In this case, the Second Endment is okay.

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<v Speaker 1>In this case, I don't like it and it doesn't

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<v Speaker 1>yield the result I would like. And so no, no,

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<v Speaker 1>you don't get the results in this case, treating it

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<v Speaker 1>like it's not a constitutional right at all, but like

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<v Speaker 1>watching football, it's a hobby. Yeah. So for here's a

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<v Speaker 1>good example. So he goes through in his fake opinion

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<v Speaker 1>that he expects his just his fellow judges to issue.

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<v Speaker 1>He lists, uh, the history of the we consult the

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<v Speaker 1>history of the Amendment, and then he had a footnote.

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<v Speaker 1>He says in the footnote, here's the deal. Whenever we

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<v Speaker 1>think the history helps us in upholding the challenge regulation

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<v Speaker 1>of gun rights, we're happy to rely on it and

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<v Speaker 1>stuff one of our tests. But most of the time,

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<v Speaker 1>either the history doesn't help us to uphold the gun regulation,

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<v Speaker 1>or it's indeterminate, or it's just hard to value it.

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<v Speaker 1>So we usually skip over this step of our test

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<v Speaker 1>by assuming that the regulation burden Second Amendment conduct. But

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<v Speaker 1>that's okay, because the real beauty of our test is

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<v Speaker 1>it's amazing flexibility at the various stages in balancing the

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<v Speaker 1>government's asserted interests against the claimed impact on the Second Amendment. So,

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<v Speaker 1>in other words, although we we often say that we

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<v Speaker 1>care about history, the reality is that we only use

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<v Speaker 1>the history when it allows us to take away your

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<v Speaker 1>gun rights, and then if not, we ignore it. Which

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<v Speaker 1>it's true. He's just not not usually supposed to say

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<v Speaker 1>that in public, is the thing. How how long were

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<v Speaker 1>the gun stores actually closed? It was a couple It

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<v Speaker 1>was several weeks if I remember right, but I think

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<v Speaker 1>it was. That's incredible. Yeah, so during a time when

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<v Speaker 1>we know that not only was COVID going on, but

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<v Speaker 1>violent riots in major cities across the United States. Gosh,

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<v Speaker 1>maybe people would want to have a firearm to defend themselves,

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<v Speaker 1>but no, we can't allow that. Yeah, that we're talking

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<v Speaker 1>about that last week. That's what even makes it so

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<v Speaker 1>much more outlandishes at a time where crime is spiking

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<v Speaker 1>and it's one of the top issues in America and

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<v Speaker 1>the riots everywhere in your local target is being looted

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<v Speaker 1>coincident with the authorities making it clear we are not

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<v Speaker 1>going to intercede in this violence. Yeah, while defunding the police,

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<v Speaker 1>they closed gun stores. That's amazing. And as the as

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<v Speaker 1>the as the saying has it when the cops are

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<v Speaker 1>minutes or when seconds count the cops are minutes away.

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<v Speaker 1>It's amazing a number of places in the country where uh,

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<v Speaker 1>you know, were either churches were closed violating the First

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<v Speaker 1>Amendment or guns stores were closed violating the Second Amendment

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<v Speaker 1>and overturned by courts. Eventually, I think in all the

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<v Speaker 1>eat ice cream until you were in a coma. Yeah, right, yeah.

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<v Speaker 1>For whatever reason. Tim Sandiford, the vice president for Litigation

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<v Speaker 1>for the Goldwater Institute, is on the line. It's almost

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<v Speaker 1>hard to understand you because you're so hoarse from sharing

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<v Speaker 1>your hometown rams to victory over the weekend. I I

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<v Speaker 1>was really excited, you know, I just can't sleep unless

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<v Speaker 1>I know what group through, what ball through what apparatus?

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<v Speaker 1>Well said, so, as long as we are honored with

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<v Speaker 1>your presence today, Tim's but what else are you guys

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<v Speaker 1>working on at the Goldwater Institute that might be of

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<v Speaker 1>interest to the peeps. We are waiting for the Supreme

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<v Speaker 1>Court to decide whether to take a major challenge to

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<v Speaker 1>the Indian Child Welfare Act. This is a law I've

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<v Speaker 1>talked on your show about a number of times, a

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<v Speaker 1>federal law that essentially bars states from protecting abused and

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<v Speaker 1>neglected children if those children are eligible for membership and

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<v Speaker 1>an Indian tribe. So a white or a black or

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<v Speaker 1>a Hispanic child who is being abused or neglected, the

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<v Speaker 1>state can come in and rescue that child from the

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<v Speaker 1>abusive family. But if the child is biologically eligible for

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<v Speaker 1>a membership in an Indian tribe, the state basically can't

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<v Speaker 1>do that, and federal law basically prohibits them from being

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<v Speaker 1>adopted by adults of other races. It's a really scandalous

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<v Speaker 1>and disgraceful law that imposes literal separate, separate, but equal

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<v Speaker 1>on really these on Indian children, who are the most

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<v Speaker 1>at risk demographic in the United States. So the Supreme

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<v Speaker 1>Court has been asked to take up whether that's concert

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<v Speaker 1>tuitional or not, and they keep postponing that decision. So

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<v Speaker 1>I was hoping that this morning they would announce whether

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<v Speaker 1>they were going to hear that case, and it turns

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<v Speaker 1>out will have to wait at least another week. But

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<v Speaker 1>so that's what we're really keeping an eye on. Yeah,

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<v Speaker 1>that's a good one, and keep us updated on that.

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<v Speaker 1>Is it a big deal that the Supreme Court announced

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<v Speaker 1>today that they're going to take up the case on

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<v Speaker 1>racial preferences for universities and and will that get into

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<v Speaker 1>the whole affirmative action thing in general. Absolutely, that is

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<v Speaker 1>a huge deal. Uh. You know the that's the lawsuit

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<v Speaker 1>against Harvard which has been excluding Asians in order to

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<v Speaker 1>promote other races. And that case has been you know,

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<v Speaker 1>rejected by the lower courts. But I think the Supreme

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<v Speaker 1>Court is going to take that a lot more seriously.

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<v Speaker 1>Another case that was that the Supreme Court announced today

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<v Speaker 1>that it will take is a case that's being litigated

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<v Speaker 1>by our friends at the Pacific Legal Foundation, which is

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<v Speaker 1>called sack At versus Environmental Protection Agency. Now what's really

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<v Speaker 1>amazing is this case is more than a decade old.

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<v Speaker 1>The Supreme Court has already decided one aspect of this

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<v Speaker 1>case ten years ago, and now it's back again. And

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<v Speaker 1>this case involves the federal government's authority to regulate what

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<v Speaker 1>they call wetlands. That's the Clean Water Act, which allows

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<v Speaker 1>the federal government to regulate not just water, but land

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<v Speaker 1>that occasionally gets wet. And in this case, these property

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<v Speaker 1>owners try to build a house on perfectly dry land

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<v Speaker 1>that the federal government said was a wet land and

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<v Speaker 1>the first time around, they just wanted to get a

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<v Speaker 1>hearing in court. The Supreme Court said, yes, you get

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<v Speaker 1>us hearing in court. And now they're back again at

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<v Speaker 1>the conclusion of that hearing to ask whether what limits

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<v Speaker 1>are there on the federal government's power to regulate land

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<v Speaker 1>that it claims is a wet land. Yeah, I know

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<v Speaker 1>that that. I remember that case vividly, and some of

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<v Speaker 1>the particulars of it were enough to make you insane.

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<v Speaker 1>These poor people, it's a it's a lot in a

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<v Speaker 1>subdivision erroneously described as a wet land, and they just

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<v Speaker 1>there was nobody to talk to too, so they just

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<v Speaker 1>kept finding them and finding them. And federal federal power

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<v Speaker 1>under federal environmental laws people think of it as like

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<v Speaker 1>protect the animals and Bambi and and all that sort

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<v Speaker 1>of thing. But what federal power under the environment laws

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<v Speaker 1>really is is basically federal zoning. It basically allows federal

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<v Speaker 1>bureaucrats in Washington, d C. To decide what gets built

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<v Speaker 1>in what neighborhood win, as long as they can come

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<v Speaker 1>up with some vague notion of federal authority. And their

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<v Speaker 1>vague notion is, well, this land is a wetland. What

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<v Speaker 1>is a wetland, it's basically whatever the federal government says

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<v Speaker 1>it is. Or when it comes to the environment, the

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<v Speaker 1>Endangered Species Act. If there's an endangered bug or an

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<v Speaker 1>endangered fern on your property, now it falls under federal authority,

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<v Speaker 1>and federal bureaucrats get to decide basically at will what

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<v Speaker 1>you are and aren't allowed to do with that property.

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<v Speaker 1>It's something the Constitution does not contemplate at all. And

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<v Speaker 1>yet that's basically the law that we live under today.

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<v Speaker 1>General question, and if you want to take a pass

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<v Speaker 1>on it, you gan because I don't want to get

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<v Speaker 1>you any sort of trouble. But now take a pass.

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<v Speaker 1>That's a football reference, right, throw one you don't take.

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<v Speaker 1>But yeah, you have expressed that the only thing, the

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<v Speaker 1>only thing that bothers you at all about the fact

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<v Speaker 1>that you don't follow sports at all, as you miss

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<v Speaker 1>out on some references that are regularly used, you know,

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<v Speaker 1>in court for instance, which so again I'm trying to

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<v Speaker 1>remember the name and it's out of my head right now.

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<v Speaker 1>A libertarian guy with Kato I think, wrote a column

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<v Speaker 1>recently on how originally, even as a libertarian, he thought

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<v Speaker 1>the government was fine getting involved in all kinds of

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<v Speaker 1>things that he usually didn't like because the unique circumstance

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<v Speaker 1>of the COVID pandemic. But in retrospect he looks back

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<v Speaker 1>on it and thinks, now, we'd have been better off

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<v Speaker 1>if they hadn't in the long run. Where are you

0:11:41.840 --> 0:11:43.160
<v Speaker 1>on it? Because I know in the beginning you were.

0:11:43.160 --> 0:11:44.959
<v Speaker 1>You are also making the argument as a guy who

0:11:45.000 --> 0:11:46.920
<v Speaker 1>doesn't like a lot of government control. But this is

0:11:46.920 --> 0:11:51.199
<v Speaker 1>a unique situation. Do you think maybe where we've ended up?

0:11:52.200 --> 0:11:55.439
<v Speaker 1>Do you feel any differently now? I have? I don't,

0:11:55.480 --> 0:11:58.200
<v Speaker 1>but remember that that I have a different situation than

0:11:58.320 --> 0:11:59.959
<v Speaker 1>a lot of people because I live in Arizona. We

0:12:00.040 --> 0:12:02.600
<v Speaker 1>didn't have a big statewide shutdown in Arizona like a

0:12:02.600 --> 0:12:05.200
<v Speaker 1>lot of other states did. I thought shutdowns were a

0:12:05.200 --> 0:12:08.400
<v Speaker 1>bad idea to begin with. But other kinds of regulations,

0:12:08.679 --> 0:12:12.120
<v Speaker 1>you know, uh, for example, if employers want to require

0:12:12.120 --> 0:12:14.520
<v Speaker 1>their employees to be vaccinate, there was something like that.

0:12:14.520 --> 0:12:17.400
<v Speaker 1>That's perfect consistent with libertarian principles, nothing wrong with that.

0:12:17.720 --> 0:12:20.320
<v Speaker 1>So it depends on what kind of restriction or regulation

0:12:20.360 --> 0:12:23.320
<v Speaker 1>you're talking about. I think, for the most part, typically

0:12:23.360 --> 0:12:27.320
<v Speaker 1>the government has a role in in setting basic safety standards,

0:12:27.360 --> 0:12:30.040
<v Speaker 1>and if that means requiring greater safety standards in the

0:12:30.040 --> 0:12:33.720
<v Speaker 1>time of pandemic than otherwise. I'm okay with that in principle.

0:12:34.040 --> 0:12:36.520
<v Speaker 1>Whether they actually work or not is a different question,

0:12:36.600 --> 0:12:38.680
<v Speaker 1>and the answer is problems. What about the businesses can't

0:12:38.720 --> 0:12:40.760
<v Speaker 1>be closed down? I know it didn't do in Arizona,

0:12:40.840 --> 0:12:43.439
<v Speaker 1>but it just seems in retrospect now you know, people

0:12:43.440 --> 0:12:45.120
<v Speaker 1>would have made the decision on their own to not

0:12:45.200 --> 0:12:47.840
<v Speaker 1>go to the to the barbershop, and maybe the barbershop

0:12:47.840 --> 0:12:49.920
<v Speaker 1>would have closed down because they didn't have enough business

0:12:49.960 --> 0:12:51.760
<v Speaker 1>to stay open. But that seems like a better way

0:12:52.000 --> 0:12:54.120
<v Speaker 1>that that's true. We know that's true because in a

0:12:54.120 --> 0:12:56.640
<v Speaker 1>lot of places when the when the shutdowns were lifted,

0:12:56.960 --> 0:12:59.680
<v Speaker 1>the businesses did not go back to full People still

0:12:59.720 --> 0:13:01.760
<v Speaker 1>didn't come to the businesses because a lot of people

0:13:01.760 --> 0:13:04.400
<v Speaker 1>worth choosing on their own to stay home rather than

0:13:04.440 --> 0:13:07.040
<v Speaker 1>go to the business. And that's perfectly legitimate, and the

0:13:07.080 --> 0:13:10.000
<v Speaker 1>businesses then have a pressure to come up with safer

0:13:10.000 --> 0:13:12.320
<v Speaker 1>ways to operate, which is how the market ought to work.

0:13:12.400 --> 0:13:14.320
<v Speaker 1>So in the long run, yes, I don't think that

0:13:14.400 --> 0:13:18.520
<v Speaker 1>those kinds of government interference were very effective, and they

0:13:18.640 --> 0:13:23.720
<v Speaker 1>probably transgressed libertarian principle to innovate, not regulate. Final thought

0:13:23.720 --> 0:13:25.680
<v Speaker 1>for me, very briefly, Tim, someday we ought to have

0:13:25.720 --> 0:13:30.440
<v Speaker 1>a talk about how, you know, the realities of an

0:13:30.480 --> 0:13:33.640
<v Speaker 1>equity society where the government picks winners and losers, assigns

0:13:33.720 --> 0:13:36.000
<v Speaker 1>rights based on historical wrongs, the rest of it. What

0:13:36.080 --> 0:13:38.480
<v Speaker 1>that would actually look at it that look like at

0:13:38.480 --> 0:13:40.840
<v Speaker 1>the legislative level, the lobbyist level. That's sort of thing,

0:13:40.840 --> 0:13:43.079
<v Speaker 1>But we're totally out of time. Tim Sander for Vice

0:13:43.080 --> 0:13:46.200
<v Speaker 1>President for Litigation, Goldwater Institute. Tim, thanks a million, Always

0:13:46.200 --> 0:13:48.800
<v Speaker 1>a pleasure. Thanks guys, we got more on the way

0:13:48.800 --> 0:13:50.360
<v Speaker 1>to stay with this text line four one five to

0:13:50.559 --> 0:13:51.440
<v Speaker 1>nine five KFTC