Speaker 1: Speaking of pretty good cases, here's a guy who knows
Speaker 1: one that Tim the lawyer Sander for Tim's the vice
Speaker 1: president for litigation for the Goldwater Institute, longtime a friend
Speaker 1: of the Armstrong and Getty Show, and one of the
Speaker 1: great explainers of the complex that we've ever run into. Tim.
Speaker 1: How are you, sir? I'm great? How are you guys good?
Speaker 1: Who do you like in the Bengals Rams matchup? I
Speaker 1: heard there was some football game yesterday several you're you're famously,
Speaker 1: for our listeners, not a sports fan, but you do.
Speaker 1: You do have the same sentiments about the Olympics that
Speaker 1: it's crazy that it's happening. I know it's it's crazy,
Speaker 1: and it's it's immoral that that the United States would
Speaker 1: would have anything to do with an institution that has
Speaker 1: become a favorite playground for totalitarian dictatorships. Yeah, I would agree,
Speaker 1: I would agree. So, uh, there was news last week
Speaker 1: about a significant Second Amendment decision. I will let you
Speaker 1: lay it out because you can do it better than me. Um.
Speaker 1: And then if you're not a big fan of litigation,
Speaker 1: you might be interested to hear that one of the
Speaker 1: Joe just laid a verbal whooping down on on the
Speaker 1: court as a whole. At least that's the way I
Speaker 1: read it. But Tim, what are the basics? First? Yeah,
Speaker 1: that's all right. That that was really spectacular. So this
Speaker 1: is a case from California. It was decided by the
Speaker 1: Ninth Circuit Court of Appeals on the question of whether
Speaker 1: the COVID shutdowns of guns stores violated the Second Amendment.
Speaker 1: So the Ventura count did, is there any other discussion that?
Speaker 1: And that is what the what the court said remarkably enough,
Speaker 1: So the Ventura County imposed these these shutdowns of various businesses,
Speaker 1: and if they were kind of discriminatory, they allowed, for example,
Speaker 1: bike stores to remain open shut down, but shut down
Speaker 1: gun stores. Now, I'll add a footnote here to say
Speaker 1: that the Arizona constant or the Arizona law, is different
Speaker 1: from California, and this and that Arizona law expressly forbids
Speaker 1: the shutting down of a gun store under circumstances like this,
Speaker 1: because we take our our Second Amendment right very seriously
Speaker 1: in my home state, but in California they don't. And
Speaker 1: so the question that the court addressed was whether that
Speaker 1: violated the Second Amendment. The court said yes, But what
Speaker 1: was really remarkable was that one of the judges, Judge
Speaker 1: Van Dyke, wrote a separate opinion where he said, look,
Speaker 1: I expect that I'm going to be overruled on this
Speaker 1: by my other fellow judges on the Ninth Circuit, and
Speaker 1: here's what they're going to say, and here's why it's wrong.
Speaker 1: And it's really quite quite a uh an angry sarcastic opinion.
Speaker 1: Oh wait a minute, angry sarcasm. Now you're working my
Speaker 1: side of the street. Can you give us some of
Speaker 1: the basics of what he said to his brethren. So
Speaker 1: what happens is when the when the Court of Appeals
Speaker 1: decides the case, it's three judges who hear an appeal
Speaker 1: and they decide that appeal, and then if you're one
Speaker 1: of if you lost that appeal, you can ask for
Speaker 1: what they call on bank rehearing, which is where all
Speaker 1: of the judges on the circuit will review the case
Speaker 1: and hear it all over again and correct the three
Speaker 1: judge panel if they think they were wrong. And so
Speaker 1: what Judge Van Dyke said is I expect that that's
Speaker 1: what's going to happen to me because I've enforced the
Speaker 1: Second Amendment and I know that my fellow judges in
Speaker 1: the Ninth Circuit don't take the Second Amendment seriously. So
Speaker 1: I expect that they're going to overrule me, and here's
Speaker 1: what they're going to say. And he wrote a fake
Speaker 1: opinion that was like a draft of what he expects
Speaker 1: they will say when they overrule him. And the reason
Speaker 1: he did that was to show that the Ninth Circuits
Speaker 1: precedent when it comes to the Second Amendment is so vague,
Speaker 1: so meaningless, so malleable, that it can basically come up
Speaker 1: with any conclusion you want, and so that the odds
Speaker 1: are stacked against people who want to exercise their constitutional
Speaker 1: right to defend themselves. So he wrote this fake opinion.
Speaker 1: He said, here's what they're gonna say, and then he
Speaker 1: added footnotes in the opinion that says, so he you
Speaker 1: know these we use these words as if they say
Speaker 1: means something, but they actually don't. We're just making this
Speaker 1: stuff up as we go along. And it's written in
Speaker 1: this very sarcastic tone that is quite refreshing for those
Speaker 1: of us who agree with him that the Ninth Circuit
Speaker 1: does not take Second Amendment rights seriously. Well, my understanding
Speaker 1: of his blast was saying that the Ninth Circuit decides
Speaker 1: case by case. In this case, the Second Endment is okay.
Speaker 1: In this case, I don't like it and it doesn't
Speaker 1: yield the result I would like. And so no, no,
Speaker 1: you don't get the results in this case, treating it
Speaker 1: like it's not a constitutional right at all, but like
Speaker 1: watching football, it's a hobby. Yeah. So for here's a
Speaker 1: good example. So he goes through in his fake opinion
Speaker 1: that he expects his just his fellow judges to issue.
Speaker 1: He lists, uh, the history of the we consult the
Speaker 1: history of the Amendment, and then he had a footnote.
Speaker 1: He says in the footnote, here's the deal. Whenever we
Speaker 1: think the history helps us in upholding the challenge regulation
Speaker 1: of gun rights, we're happy to rely on it and
Speaker 1: stuff one of our tests. But most of the time,
Speaker 1: either the history doesn't help us to uphold the gun regulation,
Speaker 1: or it's indeterminate, or it's just hard to value it.
Speaker 1: So we usually skip over this step of our test
Speaker 1: by assuming that the regulation burden Second Amendment conduct. But
Speaker 1: that's okay, because the real beauty of our test is
Speaker 1: it's amazing flexibility at the various stages in balancing the
Speaker 1: government's asserted interests against the claimed impact on the Second Amendment. So,
Speaker 1: in other words, although we we often say that we
Speaker 1: care about history, the reality is that we only use
Speaker 1: the history when it allows us to take away your
Speaker 1: gun rights, and then if not, we ignore it. Which
Speaker 1: it's true. He's just not not usually supposed to say
Speaker 1: that in public, is the thing. How how long were
Speaker 1: the gun stores actually closed? It was a couple It
Speaker 1: was several weeks if I remember right, but I think
Speaker 1: it was. That's incredible. Yeah, so during a time when
Speaker 1: we know that not only was COVID going on, but
Speaker 1: violent riots in major cities across the United States. Gosh,
Speaker 1: maybe people would want to have a firearm to defend themselves,
Speaker 1: but no, we can't allow that. Yeah, that we're talking
Speaker 1: about that last week. That's what even makes it so
Speaker 1: much more outlandishes at a time where crime is spiking
Speaker 1: and it's one of the top issues in America and
Speaker 1: the riots everywhere in your local target is being looted
Speaker 1: coincident with the authorities making it clear we are not
Speaker 1: going to intercede in this violence. Yeah, while defunding the police,
Speaker 1: they closed gun stores. That's amazing. And as the as
Speaker 1: the as the saying has it when the cops are
Speaker 1: minutes or when seconds count the cops are minutes away.
Speaker 1: It's amazing a number of places in the country where uh,
Speaker 1: you know, were either churches were closed violating the First
Speaker 1: Amendment or guns stores were closed violating the Second Amendment
Speaker 1: and overturned by courts. Eventually, I think in all the
Speaker 1: eat ice cream until you were in a coma. Yeah, right, yeah.
Speaker 1: For whatever reason. Tim Sandiford, the vice president for Litigation
Speaker 1: for the Goldwater Institute, is on the line. It's almost
Speaker 1: hard to understand you because you're so hoarse from sharing
Speaker 1: your hometown rams to victory over the weekend. I I
Speaker 1: was really excited, you know, I just can't sleep unless
Speaker 1: I know what group through, what ball through what apparatus?
Speaker 1: Well said, so, as long as we are honored with
Speaker 1: your presence today, Tim's but what else are you guys
Speaker 1: working on at the Goldwater Institute that might be of
Speaker 1: interest to the peeps. We are waiting for the Supreme
Speaker 1: Court to decide whether to take a major challenge to
Speaker 1: the Indian Child Welfare Act. This is a law I've
Speaker 1: talked on your show about a number of times, a
Speaker 1: federal law that essentially bars states from protecting abused and
Speaker 1: neglected children if those children are eligible for membership and
Speaker 1: an Indian tribe. So a white or a black or
Speaker 1: a Hispanic child who is being abused or neglected, the
Speaker 1: state can come in and rescue that child from the
Speaker 1: abusive family. But if the child is biologically eligible for
Speaker 1: a membership in an Indian tribe, the state basically can't
Speaker 1: do that, and federal law basically prohibits them from being
Speaker 1: adopted by adults of other races. It's a really scandalous
Speaker 1: and disgraceful law that imposes literal separate, separate, but equal
Speaker 1: on really these on Indian children, who are the most
Speaker 1: at risk demographic in the United States. So the Supreme
Speaker 1: Court has been asked to take up whether that's concert
Speaker 1: tuitional or not, and they keep postponing that decision. So
Speaker 1: I was hoping that this morning they would announce whether
Speaker 1: they were going to hear that case, and it turns
Speaker 1: out will have to wait at least another week. But
Speaker 1: so that's what we're really keeping an eye on. Yeah,
Speaker 1: that's a good one, and keep us updated on that.
Speaker 1: Is it a big deal that the Supreme Court announced
Speaker 1: today that they're going to take up the case on
Speaker 1: racial preferences for universities and and will that get into
Speaker 1: the whole affirmative action thing in general. Absolutely, that is
Speaker 1: a huge deal. Uh. You know the that's the lawsuit
Speaker 1: against Harvard which has been excluding Asians in order to
Speaker 1: promote other races. And that case has been you know,
Speaker 1: rejected by the lower courts. But I think the Supreme
Speaker 1: Court is going to take that a lot more seriously.
Speaker 1: Another case that was that the Supreme Court announced today
Speaker 1: that it will take is a case that's being litigated
Speaker 1: by our friends at the Pacific Legal Foundation, which is
Speaker 1: called sack At versus Environmental Protection Agency. Now what's really
Speaker 1: amazing is this case is more than a decade old.
Speaker 1: The Supreme Court has already decided one aspect of this
Speaker 1: case ten years ago, and now it's back again. And
Speaker 1: this case involves the federal government's authority to regulate what
Speaker 1: they call wetlands. That's the Clean Water Act, which allows
Speaker 1: the federal government to regulate not just water, but land
Speaker 1: that occasionally gets wet. And in this case, these property
Speaker 1: owners try to build a house on perfectly dry land
Speaker 1: that the federal government said was a wet land and
Speaker 1: the first time around, they just wanted to get a
Speaker 1: hearing in court. The Supreme Court said, yes, you get
Speaker 1: us hearing in court. And now they're back again at
Speaker 1: the conclusion of that hearing to ask whether what limits
Speaker 1: are there on the federal government's power to regulate land
Speaker 1: that it claims is a wet land. Yeah, I know
Speaker 1: that that. I remember that case vividly, and some of
Speaker 1: the particulars of it were enough to make you insane.
Speaker 1: These poor people, it's a it's a lot in a
Speaker 1: subdivision erroneously described as a wet land, and they just
Speaker 1: there was nobody to talk to too, so they just
Speaker 1: kept finding them and finding them. And federal federal power
Speaker 1: under federal environmental laws people think of it as like
Speaker 1: protect the animals and Bambi and and all that sort
Speaker 1: of thing. But what federal power under the environment laws
Speaker 1: really is is basically federal zoning. It basically allows federal
Speaker 1: bureaucrats in Washington, d C. To decide what gets built
Speaker 1: in what neighborhood win, as long as they can come
Speaker 1: up with some vague notion of federal authority. And their
Speaker 1: vague notion is, well, this land is a wetland. What
Speaker 1: is a wetland, it's basically whatever the federal government says
Speaker 1: it is. Or when it comes to the environment, the
Speaker 1: Endangered Species Act. If there's an endangered bug or an
Speaker 1: endangered fern on your property, now it falls under federal authority,
Speaker 1: and federal bureaucrats get to decide basically at will what
Speaker 1: you are and aren't allowed to do with that property.
Speaker 1: It's something the Constitution does not contemplate at all. And
Speaker 1: yet that's basically the law that we live under today.
Speaker 1: General question, and if you want to take a pass
Speaker 1: on it, you gan because I don't want to get
Speaker 1: you any sort of trouble. But now take a pass.
Speaker 1: That's a football reference, right, throw one you don't take.
Speaker 1: But yeah, you have expressed that the only thing, the
Speaker 1: only thing that bothers you at all about the fact
Speaker 1: that you don't follow sports at all, as you miss
Speaker 1: out on some references that are regularly used, you know,
Speaker 1: in court for instance, which so again I'm trying to
Speaker 1: remember the name and it's out of my head right now.
Speaker 1: A libertarian guy with Kato I think, wrote a column
Speaker 1: recently on how originally, even as a libertarian, he thought
Speaker 1: the government was fine getting involved in all kinds of
Speaker 1: things that he usually didn't like because the unique circumstance
Speaker 1: of the COVID pandemic. But in retrospect he looks back
Speaker 1: on it and thinks, now, we'd have been better off
Speaker 1: if they hadn't in the long run. Where are you
Speaker 1: on it? Because I know in the beginning you were.
Speaker 1: You are also making the argument as a guy who
Speaker 1: doesn't like a lot of government control. But this is
Speaker 1: a unique situation. Do you think maybe where we've ended up?
Speaker 1: Do you feel any differently now? I have? I don't,
Speaker 1: but remember that that I have a different situation than
Speaker 1: a lot of people because I live in Arizona. We
Speaker 1: didn't have a big statewide shutdown in Arizona like a
Speaker 1: lot of other states did. I thought shutdowns were a
Speaker 1: bad idea to begin with. But other kinds of regulations,
Speaker 1: you know, uh, for example, if employers want to require
Speaker 1: their employees to be vaccinate, there was something like that.
Speaker 1: That's perfect consistent with libertarian principles, nothing wrong with that.
Speaker 1: So it depends on what kind of restriction or regulation
Speaker 1: you're talking about. I think, for the most part, typically
Speaker 1: the government has a role in in setting basic safety standards,
Speaker 1: and if that means requiring greater safety standards in the
Speaker 1: time of pandemic than otherwise. I'm okay with that in principle.
Speaker 1: Whether they actually work or not is a different question,
Speaker 1: and the answer is problems. What about the businesses can't
Speaker 1: be closed down? I know it didn't do in Arizona,
Speaker 1: but it just seems in retrospect now you know, people
Speaker 1: would have made the decision on their own to not
Speaker 1: go to the to the barbershop, and maybe the barbershop
Speaker 1: would have closed down because they didn't have enough business
Speaker 1: to stay open. But that seems like a better way
Speaker 1: that that's true. We know that's true because in a
Speaker 1: lot of places when the when the shutdowns were lifted,
Speaker 1: the businesses did not go back to full People still
Speaker 1: didn't come to the businesses because a lot of people
Speaker 1: worth choosing on their own to stay home rather than
Speaker 1: go to the business. And that's perfectly legitimate, and the
Speaker 1: businesses then have a pressure to come up with safer
Speaker 1: ways to operate, which is how the market ought to work.
Speaker 1: So in the long run, yes, I don't think that
Speaker 1: those kinds of government interference were very effective, and they
Speaker 1: probably transgressed libertarian principle to innovate, not regulate. Final thought
Speaker 1: for me, very briefly, Tim, someday we ought to have
Speaker 1: a talk about how, you know, the realities of an
Speaker 1: equity society where the government picks winners and losers, assigns
Speaker 1: rights based on historical wrongs, the rest of it. What
Speaker 1: that would actually look at it that look like at
Speaker 1: the legislative level, the lobbyist level. That's sort of thing,
Speaker 1: But we're totally out of time. Tim Sander for Vice
Speaker 1: President for Litigation, Goldwater Institute. Tim, thanks a million, Always
Speaker 1: a pleasure. Thanks guys, we got more on the way
Speaker 1: to stay with this text line four one five to
Speaker 1: nine five KFTC