1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,480 --> 00:00:12,200 Speaker 1: The Supreme Court's decision to hear a challenge to a 3 00:00:12,240 --> 00:00:15,640 Speaker 1: New York gun control law is causing angst for New 4 00:00:15,720 --> 00:00:19,000 Speaker 1: York City's Mayor Bill de Blasio. The Supreme Court is 5 00:00:19,040 --> 00:00:20,880 Speaker 1: going to consider making it easier for people to walk 6 00:00:20,920 --> 00:00:24,920 Speaker 1: around with a gun. I mean, that's just backwards and dangerous. 7 00:00:25,400 --> 00:00:28,880 Speaker 1: So I heard that news in my heart sank. It's 8 00:00:28,880 --> 00:00:31,159 Speaker 1: been more than a decade since the Court issued a 9 00:00:31,200 --> 00:00:34,080 Speaker 1: major gun rights decision, and this case will put the 10 00:00:34,200 --> 00:00:36,600 Speaker 1: justices in the middle of one of the country's most 11 00:00:36,680 --> 00:00:40,360 Speaker 1: fractious debates, with a new conservative majority on the Court 12 00:00:40,600 --> 00:00:43,760 Speaker 1: deciding whether the government must allow most people to carry 13 00:00:43,760 --> 00:00:46,839 Speaker 1: a handgun in public for self defense. Joining me a 14 00:00:46,920 --> 00:00:49,920 Speaker 1: Second Amendment expert Adam Winkler, a professor at u c 15 00:00:50,120 --> 00:00:52,760 Speaker 1: l A Law School. The Court hasn't taken up a 16 00:00:52,760 --> 00:00:56,080 Speaker 1: major gun rights case in more than a decade, and 17 00:00:56,160 --> 00:00:59,280 Speaker 1: in June it passed up challenges to the New Jersey 18 00:00:59,400 --> 00:01:02,400 Speaker 1: massachut sits in Maryland Laws. Why do you think the 19 00:01:02,480 --> 00:01:05,560 Speaker 1: gealsticies are taking this now? Well? I think this is 20 00:01:05,640 --> 00:01:09,480 Speaker 1: really the result of three justices appointed to the Supreme 21 00:01:09,480 --> 00:01:14,000 Speaker 1: Court by Donald Trump. All three Justices Gorcitch, Kavanaugh, and 22 00:01:14,080 --> 00:01:18,040 Speaker 1: Barrett all have strong records against gun control and in 23 00:01:18,080 --> 00:01:20,960 Speaker 1: favor of an expansive reading of the Second Amendment. So 24 00:01:21,000 --> 00:01:23,920 Speaker 1: the short story is basically that the personnel on the 25 00:01:23,959 --> 00:01:28,080 Speaker 1: Court has changed and moved to a more pro gun direction, 26 00:01:28,360 --> 00:01:30,520 Speaker 1: and so we're likely to see the Supreme Court take 27 00:01:30,600 --> 00:01:33,080 Speaker 1: this case and more cases on the Second Amendment in 28 00:01:33,160 --> 00:01:37,160 Speaker 1: coming years. It does it seem a little bit odd 29 00:01:37,400 --> 00:01:41,039 Speaker 1: that in the midst of all this gun violence and 30 00:01:41,200 --> 00:01:44,520 Speaker 1: a series of mass shootings, they decided to take up 31 00:01:44,520 --> 00:01:50,000 Speaker 1: a gun rights case. I mean, the timing seems inappropriate. Well, 32 00:01:50,040 --> 00:01:53,040 Speaker 1: I think that the justices are not that concerned with 33 00:01:53,120 --> 00:01:56,880 Speaker 1: the timing with regards to these constitutional issues. This is 34 00:01:56,880 --> 00:01:59,520 Speaker 1: an issue that has been at the courts doorstep four 35 00:01:59,640 --> 00:02:03,680 Speaker 1: long time. If the Court waited until the gun violence 36 00:02:03,720 --> 00:02:06,640 Speaker 1: was diminished in America, they'd never rule on this case. 37 00:02:06,720 --> 00:02:09,600 Speaker 1: We have mass shootings all the time. So the Court 38 00:02:09,639 --> 00:02:12,400 Speaker 1: feels that it has an obligation to clarify the scope 39 00:02:12,400 --> 00:02:14,840 Speaker 1: of the Second Amendment. Several of the justices have called 40 00:02:14,880 --> 00:02:16,960 Speaker 1: for the Court to take more Second Amendment cases and 41 00:02:16,960 --> 00:02:19,520 Speaker 1: to provide more clarity, and it seems like the Court 42 00:02:19,560 --> 00:02:22,560 Speaker 1: is finally going to need that call. So tell us 43 00:02:22,600 --> 00:02:26,919 Speaker 1: about the New York law and the gun rights at issue. Well, 44 00:02:26,919 --> 00:02:29,600 Speaker 1: the basics of the New York law is that it's 45 00:02:29,639 --> 00:02:32,880 Speaker 1: discretionary permitting for concealed carry. If you want to carry 46 00:02:32,880 --> 00:02:35,480 Speaker 1: a firearm on the street, you can carry one concealed, 47 00:02:35,520 --> 00:02:38,520 Speaker 1: but you have to get a permit first. And under 48 00:02:38,639 --> 00:02:41,680 Speaker 1: New York law, you have to have a proper reason 49 00:02:41,880 --> 00:02:44,600 Speaker 1: to carry a gun, and that means it's not just 50 00:02:44,680 --> 00:02:48,040 Speaker 1: the fear of someone attacking you. You have to have 51 00:02:48,240 --> 00:02:53,399 Speaker 1: a very direct and specific threat that warrants carrying a firearm. 52 00:02:53,440 --> 00:02:56,320 Speaker 1: And this issue arises because the Supreme Court in the 53 00:02:56,320 --> 00:02:59,400 Speaker 1: Heller case said you have an individual right to bear arms, 54 00:02:59,440 --> 00:03:02,560 Speaker 1: but that was only applicable to firearms in the home, 55 00:03:02,800 --> 00:03:05,120 Speaker 1: and the Court left open the question about whether the 56 00:03:05,120 --> 00:03:08,120 Speaker 1: Second Amendment right extends outside of the home, and if 57 00:03:08,160 --> 00:03:10,400 Speaker 1: it does, a law like New York's, which is also 58 00:03:10,400 --> 00:03:13,520 Speaker 1: in place in Massachusetts, and similar laws in New Jersey 59 00:03:13,520 --> 00:03:17,840 Speaker 1: and California, these laws effectively prohibit most people from carrying 60 00:03:17,880 --> 00:03:20,840 Speaker 1: guns on the streets. So this is an important constitutional 61 00:03:20,919 --> 00:03:24,400 Speaker 1: question the Court will address. Is New York's law the 62 00:03:24,480 --> 00:03:27,800 Speaker 1: most restrictive, the least restrictive. How does it compare to 63 00:03:27,800 --> 00:03:31,200 Speaker 1: the other states laws? Well, New York and about six 64 00:03:31,240 --> 00:03:36,400 Speaker 1: other states have pretty restrictive discretionary permitting. Um by the 65 00:03:36,520 --> 00:03:39,440 Speaker 1: nature of the law, it doesn't have to be restrictive. 66 00:03:39,520 --> 00:03:43,000 Speaker 1: Law enforcement could, in their discretion give permits to just 67 00:03:43,120 --> 00:03:45,480 Speaker 1: about anyone who walks through the door, as long as 68 00:03:45,480 --> 00:03:48,400 Speaker 1: they're a lawful gun owner. But the way these laws 69 00:03:48,440 --> 00:03:51,040 Speaker 1: operate in practice in New York and in other states 70 00:03:51,200 --> 00:03:54,000 Speaker 1: is effectively to be a denial of the right to 71 00:03:54,040 --> 00:03:56,840 Speaker 1: have a firearm on the streets. In Los Angeles County, 72 00:03:56,880 --> 00:04:00,400 Speaker 1: for instance, where we have over ten million residents, there's 73 00:04:00,400 --> 00:04:03,800 Speaker 1: only a few hundred ordinary civilians who have a permit 74 00:04:03,920 --> 00:04:07,560 Speaker 1: to carry a concealed firearm, but many states allow it. 75 00:04:08,440 --> 00:04:12,880 Speaker 1: The vast majority of states allow concealed carry. About forty 76 00:04:13,000 --> 00:04:17,239 Speaker 1: four states allow concealed carry with something called shall issue permitting. 77 00:04:17,320 --> 00:04:19,279 Speaker 1: That is to say, there's no discretion on the part 78 00:04:19,279 --> 00:04:21,840 Speaker 1: of law enforcement about whether to grant the permit or not. 79 00:04:22,240 --> 00:04:24,560 Speaker 1: If you're a law abiding person, you have a clean record, 80 00:04:24,839 --> 00:04:27,359 Speaker 1: you get your permit to carry a firearm. That's the 81 00:04:27,400 --> 00:04:31,960 Speaker 1: majority view amongst states in America, and overturning the restrictive 82 00:04:32,000 --> 00:04:35,120 Speaker 1: laws in places like California and Massachusetts. In New York 83 00:04:35,360 --> 00:04:37,800 Speaker 1: has been one of the big goals of gun rights 84 00:04:37,800 --> 00:04:40,359 Speaker 1: advocates for a long time. The n r A says 85 00:04:40,440 --> 00:04:43,280 Speaker 1: the right to carry a concealed weapon outside the home 86 00:04:43,760 --> 00:04:48,040 Speaker 1: is perhaps the single most important unresolved Second Amendment question. 87 00:04:48,440 --> 00:04:51,120 Speaker 1: Do you agree with that? I think it is one 88 00:04:51,160 --> 00:04:55,120 Speaker 1: of the most important unresolved Second Amendment questions. We might 89 00:04:55,200 --> 00:04:57,960 Speaker 1: also add that the Second Amendment doctrine is a little 90 00:04:58,000 --> 00:05:01,200 Speaker 1: bit unclear as to what the govern standard of review 91 00:05:01,320 --> 00:05:04,839 Speaker 1: is that courts should apply to gun control laws. The 92 00:05:04,880 --> 00:05:10,640 Speaker 1: lower courts have generally agreed with the idea of intermediate scrutiny, 93 00:05:10,680 --> 00:05:13,080 Speaker 1: but there's some justices on the Supreme Court, such as 94 00:05:13,120 --> 00:05:17,400 Speaker 1: Thomas and Kavanaugh Embarrett, who suggested that that's not the 95 00:05:17,480 --> 00:05:19,680 Speaker 1: right way to think about gun control laws and that 96 00:05:19,720 --> 00:05:22,960 Speaker 1: we should have a history and tradition standard that only 97 00:05:23,000 --> 00:05:27,320 Speaker 1: allows gun control laws that have historical analogs to survive 98 00:05:27,400 --> 00:05:30,520 Speaker 1: constitutional scrutiny. So there's a couple of big issues in 99 00:05:30,560 --> 00:05:32,480 Speaker 1: the Second Amendment, but certainly whether you have a right 100 00:05:32,520 --> 00:05:34,240 Speaker 1: to carry a gun outside of your home is one 101 00:05:34,279 --> 00:05:36,359 Speaker 1: of them. Is there any way to the fact that 102 00:05:36,400 --> 00:05:38,760 Speaker 1: the New York law has been on the books for 103 00:05:38,839 --> 00:05:41,760 Speaker 1: something like a hundred years. Well, you know, for some 104 00:05:41,920 --> 00:05:45,640 Speaker 1: of the justices, they say that historical analogs are key, 105 00:05:45,680 --> 00:05:47,520 Speaker 1: and that we want to see that there's a history 106 00:05:47,520 --> 00:05:50,719 Speaker 1: and tradition of these kinds of restrictions. There's clearly a 107 00:05:50,760 --> 00:05:54,880 Speaker 1: long history and tradition of discretionary permitting for concealed carry. 108 00:05:54,920 --> 00:05:58,479 Speaker 1: These laws were adopted virtually in every state in the 109 00:05:58,720 --> 00:06:01,400 Speaker 1: nineteen twenties and nine teen thirties, so we have laws 110 00:06:01,440 --> 00:06:05,039 Speaker 1: that are almost a century old. However, it's very possible 111 00:06:05,200 --> 00:06:08,800 Speaker 1: that even some of those history minded justices will say, hey, 112 00:06:08,839 --> 00:06:12,159 Speaker 1: we look to the law in seventeen when the Second 113 00:06:12,160 --> 00:06:15,800 Speaker 1: Amendment was finally ratified, not to the law of the 114 00:06:15,880 --> 00:06:20,719 Speaker 1: nineteen twenties. Did they have handguns in They did, but 115 00:06:20,760 --> 00:06:25,080 Speaker 1: the technology was very different than the technology of handguns today. Generally, 116 00:06:25,080 --> 00:06:28,560 Speaker 1: you wouldn't carry a loaded firearm back in the founding 117 00:06:28,560 --> 00:06:32,279 Speaker 1: era because gunpowder was highly explosive and it was a 118 00:06:32,320 --> 00:06:35,320 Speaker 1: hazard for you or anyone around you to have a 119 00:06:35,360 --> 00:06:39,400 Speaker 1: loaded firearm. Um there's and indeed there's been some interesting 120 00:06:39,440 --> 00:06:43,240 Speaker 1: studies looking at databases of the use of language back 121 00:06:43,240 --> 00:06:45,640 Speaker 1: in the founding era, and they find that the language 122 00:06:45,680 --> 00:06:48,960 Speaker 1: of right to keep and bear arms is used almost 123 00:06:49,040 --> 00:06:53,520 Speaker 1: exclusively back in that era to mean a military possession 124 00:06:53,520 --> 00:06:57,440 Speaker 1: of firearms only in the context of military service. It'll 125 00:06:57,480 --> 00:07:00,680 Speaker 1: be interesting to see how the originalist justices react to 126 00:07:00,720 --> 00:07:03,679 Speaker 1: that originalist evidence that suggests that the right to bear 127 00:07:03,800 --> 00:07:05,880 Speaker 1: arms is not a right to carry a gun in 128 00:07:05,880 --> 00:07:08,120 Speaker 1: case of confrontation, but a right to carry a gun 129 00:07:08,279 --> 00:07:10,960 Speaker 1: in the event of a military attack. And have the 130 00:07:11,000 --> 00:07:15,240 Speaker 1: Federal Appeals Court's been split on this issue. Yes, there 131 00:07:15,360 --> 00:07:17,480 Speaker 1: is a split on this issue, and it's one of 132 00:07:17,520 --> 00:07:20,200 Speaker 1: the reasons I think that the Supreme Court has decided 133 00:07:20,240 --> 00:07:23,640 Speaker 1: to jump in, maybe despite the gun violence in the headlines. 134 00:07:23,960 --> 00:07:26,720 Speaker 1: One of the things the Court often does is resolved 135 00:07:26,840 --> 00:07:29,960 Speaker 1: splits among the different federal circuits, and there is a 136 00:07:30,040 --> 00:07:33,840 Speaker 1: split among the circuits on the issue of discretionary permitting 137 00:07:33,880 --> 00:07:37,080 Speaker 1: for concealed carry. Most circuits have said that it is 138 00:07:37,080 --> 00:07:41,119 Speaker 1: constitutionally permissible to have discretionary permitting, but the d C. 139 00:07:41,120 --> 00:07:44,800 Speaker 1: Circuit suggested that such a law was unconstitutional, and so 140 00:07:45,000 --> 00:07:47,320 Speaker 1: it was really probably only a matter of time before 141 00:07:47,320 --> 00:07:50,640 Speaker 1: the Court stepped in to resolve that conflict. So the 142 00:07:50,680 --> 00:07:54,280 Speaker 1: Supreme Court expanded gun rights in two thousand eight and 143 00:07:54,680 --> 00:07:58,640 Speaker 1: two thousand and ten. Five of the six conservatives on 144 00:07:58,760 --> 00:08:03,240 Speaker 1: the Court have signal old in various ways that they're 145 00:08:03,240 --> 00:08:07,160 Speaker 1: displeased with how the lower courts have have been interpreting this. 146 00:08:07,680 --> 00:08:10,760 Speaker 1: Is this a done deal? Is it almost a certainty 147 00:08:10,800 --> 00:08:14,360 Speaker 1: that New York's law is going to be reversed? Well, 148 00:08:14,400 --> 00:08:16,960 Speaker 1: you know, it's hard to always predict the future with certainty, 149 00:08:17,160 --> 00:08:19,800 Speaker 1: but it does seem pretty clear that there is a 150 00:08:19,800 --> 00:08:24,800 Speaker 1: strong five justice majority in favor of expanding Second Amendment rights. 151 00:08:25,080 --> 00:08:27,880 Speaker 1: And that's not even counting Chief Justice John Roberts, who 152 00:08:28,000 --> 00:08:30,720 Speaker 1: voted with the majority in the Heller case. A lot 153 00:08:30,720 --> 00:08:34,280 Speaker 1: of people suspect that John Roberts was lukewarm on gun 154 00:08:34,400 --> 00:08:37,480 Speaker 1: rights and maybe not interested in expanding gun rights further, 155 00:08:37,920 --> 00:08:41,480 Speaker 1: as it didn't seem he was supporting taking cases raising 156 00:08:41,480 --> 00:08:45,800 Speaker 1: this issue earlier. But it does seem now, with Justices Barrett, Kavanaugh, 157 00:08:46,000 --> 00:08:50,400 Speaker 1: and Gorset adding to Justices Alito and Thomas, that we 158 00:08:50,520 --> 00:08:53,079 Speaker 1: do have five justices that are ready to expand the 159 00:08:53,120 --> 00:08:57,440 Speaker 1: Second Amendment if they expanded in the context of this case, 160 00:08:58,000 --> 00:09:01,600 Speaker 1: will that mean that everyone can get a carry permit 161 00:09:01,760 --> 00:09:05,040 Speaker 1: in New York and elsewhere. We'll have to see exactly 162 00:09:05,080 --> 00:09:07,640 Speaker 1: how the Court shapes up its remedy, but it does 163 00:09:07,679 --> 00:09:09,920 Speaker 1: seem likely that the Court is going to strike down 164 00:09:09,960 --> 00:09:13,320 Speaker 1: discretionary permitting laws in places like New York, Los Angeles, 165 00:09:13,400 --> 00:09:16,240 Speaker 1: and Boston, and as a result that we're likely to 166 00:09:16,280 --> 00:09:19,600 Speaker 1: see far more guns on the streets of these cities 167 00:09:19,720 --> 00:09:23,840 Speaker 1: being lawfully carried. I mentioned earlier that in Los Angeles 168 00:09:23,880 --> 00:09:27,720 Speaker 1: you only have a few hundred people with concealed carry permits. Well, 169 00:09:28,000 --> 00:09:30,760 Speaker 1: if the Court says that California has to issue permits 170 00:09:30,760 --> 00:09:33,680 Speaker 1: to people who are law abiding and otherwise not violating 171 00:09:33,679 --> 00:09:36,520 Speaker 1: any gun laws, we're likely to have several hundred thousand 172 00:09:36,559 --> 00:09:39,480 Speaker 1: people lawfully carrying guns on the streets of Los Angeles. 173 00:09:39,480 --> 00:09:42,160 Speaker 1: So this ruling could have a major impact. It's not 174 00:09:42,280 --> 00:09:47,240 Speaker 1: just theoretical. Will you explain the arguments on both sides briefly, 175 00:09:47,480 --> 00:09:50,559 Speaker 1: you know what they're likely to come out with, absolutely, 176 00:09:50,640 --> 00:09:52,839 Speaker 1: So first we start with the text of the Constitution. 177 00:09:52,880 --> 00:09:55,880 Speaker 1: The Second Amendment says refers to a right of the 178 00:09:55,920 --> 00:09:59,280 Speaker 1: people to keep and bear arms, with the Supreme Court 179 00:09:59,280 --> 00:10:01,960 Speaker 1: in the Heller case suggested is that that's the protection 180 00:10:02,000 --> 00:10:04,680 Speaker 1: of two separate rights, a right to keep arms and 181 00:10:04,720 --> 00:10:07,000 Speaker 1: a right to bear arms, all right to keep arms 182 00:10:07,040 --> 00:10:10,280 Speaker 1: in your home for personal protection, and the courts suggested, 183 00:10:10,400 --> 00:10:12,760 Speaker 1: although it was not, it was only dicta in that 184 00:10:12,800 --> 00:10:15,080 Speaker 1: case that the right to bear arms meant the right 185 00:10:15,160 --> 00:10:17,840 Speaker 1: to carry a firearm in the on the streets in 186 00:10:17,920 --> 00:10:21,040 Speaker 1: case of confrontation. What we're going to see is that 187 00:10:21,440 --> 00:10:25,520 Speaker 1: advocates for concealed carry are going to say that the 188 00:10:25,559 --> 00:10:29,040 Speaker 1: court is bound to respect the Heller case and to 189 00:10:29,120 --> 00:10:32,880 Speaker 1: strike down these discretionary permitting laws, whereas the gun safety 190 00:10:33,280 --> 00:10:36,200 Speaker 1: movement and UH in the Amika's briefs and the State 191 00:10:36,200 --> 00:10:38,200 Speaker 1: of New York are going to say that there's a 192 00:10:38,240 --> 00:10:42,280 Speaker 1: long history and tradition of regulating concealed carry um and 193 00:10:42,320 --> 00:10:46,400 Speaker 1: as a result, the court should uphold the discretionary permitting law. 194 00:10:47,160 --> 00:10:51,800 Speaker 1: If the New York law is reversed, does that automatically 195 00:10:52,080 --> 00:10:55,199 Speaker 1: mean that the laws in other states like New Jersey 196 00:10:55,240 --> 00:11:00,600 Speaker 1: Massachusetts will fail as well? Effectively, yes, it wouldn't automatic, 197 00:11:00,640 --> 00:11:04,160 Speaker 1: because those laws might have slight differences in their phrasing 198 00:11:04,240 --> 00:11:07,360 Speaker 1: or whatnot, and the laws won't be immediately taken off 199 00:11:07,400 --> 00:11:09,680 Speaker 1: the books. But you can expect to see gun rights 200 00:11:09,720 --> 00:11:14,840 Speaker 1: advocates immediately file lawsuits challenging gun restrictive carey laws in 201 00:11:14,920 --> 00:11:18,800 Speaker 1: other states. Uh, and it would. They'd likely earned summary 202 00:11:18,840 --> 00:11:22,440 Speaker 1: judgment in their favor pretty quickly, so it wouldn't be immediate. 203 00:11:22,520 --> 00:11:24,600 Speaker 1: But there's no doubt that the effect of a Supreme 204 00:11:24,679 --> 00:11:28,679 Speaker 1: Court ruling saying that New York's discretionary permitting laws unconstitutional 205 00:11:29,040 --> 00:11:32,240 Speaker 1: would mean the fall of discretionary permitting laws in the 206 00:11:32,320 --> 00:11:36,040 Speaker 1: other remaining states that have them. Is there anything to 207 00:11:36,120 --> 00:11:40,680 Speaker 1: read into the fact that the Justices waited for several 208 00:11:40,720 --> 00:11:44,120 Speaker 1: weeks to take this case. It was relisted four times 209 00:11:44,200 --> 00:11:47,760 Speaker 1: and then they modified the exact question. Is there anything 210 00:11:47,760 --> 00:11:51,320 Speaker 1: to read into that? It's always hard to know what's 211 00:11:51,320 --> 00:11:55,040 Speaker 1: going on behind closed doors with the justices deliberations. Um 212 00:11:55,240 --> 00:11:58,640 Speaker 1: they had other cases they could have taken. This case 213 00:11:58,760 --> 00:12:02,199 Speaker 1: was particularly attractive, I think because it involves Paul Clement, 214 00:12:02,320 --> 00:12:05,880 Speaker 1: one of the best Supreme Court advocates out there, and 215 00:12:06,440 --> 00:12:09,400 Speaker 1: they know they're going to get good briefing and and 216 00:12:09,440 --> 00:12:12,079 Speaker 1: good argument. One of the issues in the gun cases 217 00:12:12,200 --> 00:12:16,600 Speaker 1: generally is that often challenges to gun laws on the 218 00:12:16,600 --> 00:12:19,720 Speaker 1: basis of the Second Amendment have been brought by criminal 219 00:12:19,760 --> 00:12:22,680 Speaker 1: defendants who just get caught up in gun laws. You know, 220 00:12:22,720 --> 00:12:25,000 Speaker 1: they get caught violating a gun law, and they don't 221 00:12:25,040 --> 00:12:28,640 Speaker 1: necessarily have the best Supreme Court advocates behind their cases. 222 00:12:29,040 --> 00:12:31,480 Speaker 1: But Paul Clement is really a top notch lawyer, and 223 00:12:31,559 --> 00:12:33,760 Speaker 1: I'm sure the justices were swayed at least a little 224 00:12:33,760 --> 00:12:37,040 Speaker 1: bit by his participation in the case to take this 225 00:12:37,080 --> 00:12:40,000 Speaker 1: one over some of the others. And who side is 226 00:12:40,000 --> 00:12:43,120 Speaker 1: he arguing for, Oh, Paul Clement is arguing for the 227 00:12:43,120 --> 00:12:45,280 Speaker 1: gun right side, for the challengers who are trying to 228 00:12:45,320 --> 00:12:48,720 Speaker 1: take down New York's discretionary permitting law. He's been involved 229 00:12:48,720 --> 00:12:51,680 Speaker 1: in a number of the major gun cases at the 230 00:12:51,720 --> 00:12:55,880 Speaker 1: Supreme Court um including arguing the McDonald case back in 231 00:12:56,240 --> 00:13:00,120 Speaker 1: two thousand and ten and participating on behalf of the 232 00:13:00,200 --> 00:13:04,559 Speaker 1: Bush Administration um U in the Heller case itself from 233 00:13:04,559 --> 00:13:08,040 Speaker 1: the Solicitor General's office. So he has a long involvement 234 00:13:08,120 --> 00:13:11,800 Speaker 1: with the gun rights litigation, has been involved in many cases. Uh, 235 00:13:12,040 --> 00:13:14,160 Speaker 1: And I think that helps explain why the Court took 236 00:13:14,240 --> 00:13:17,480 Speaker 1: this case, coupled with the idea that the personnel and 237 00:13:17,520 --> 00:13:21,439 Speaker 1: the court has changed in a more gun friendly direction. 238 00:13:21,760 --> 00:13:26,280 Speaker 1: Will you just explain the import of the Heller case well. 239 00:13:26,320 --> 00:13:29,400 Speaker 1: The Heller case is often misunderstood. It was an important 240 00:13:29,480 --> 00:13:32,800 Speaker 1: landmark case because the Supreme Court said, for the first time, 241 00:13:33,600 --> 00:13:38,079 Speaker 1: with clarity and uh lacking ambiguity, that the Second Amendment 242 00:13:38,080 --> 00:13:41,440 Speaker 1: protected an individual right to have guns for personal protection. 243 00:13:41,679 --> 00:13:44,480 Speaker 1: And the Court struck down in that case Washington, d 244 00:13:44,559 --> 00:13:48,280 Speaker 1: C's ban on handguns in the home. Um That case 245 00:13:48,480 --> 00:13:51,200 Speaker 1: was an important case for recognizing an individual right to 246 00:13:51,200 --> 00:13:54,120 Speaker 1: bear arms. But in the aftermath of the Heller case, 247 00:13:54,280 --> 00:13:58,080 Speaker 1: the courts really haven't overturned very many gun laws. It 248 00:13:58,160 --> 00:14:01,439 Speaker 1: hasn't led to a radical reath thinking of America's gun laws. 249 00:14:01,920 --> 00:14:04,280 Speaker 1: It seems that this case may be. In fact, the 250 00:14:04,320 --> 00:14:06,640 Speaker 1: New York case may even be more important in the 251 00:14:06,679 --> 00:14:09,240 Speaker 1: long run than the Heller case, because this is a 252 00:14:09,280 --> 00:14:13,000 Speaker 1: case that could indeed radically reshape gun laws. If the 253 00:14:13,040 --> 00:14:15,680 Speaker 1: Court says the right extends outside of the home and 254 00:14:15,760 --> 00:14:19,200 Speaker 1: discretionary permitting is unconstitutional, that's going to have a huge 255 00:14:19,240 --> 00:14:22,200 Speaker 1: impact on the gun laws and effect in some of 256 00:14:22,320 --> 00:14:25,560 Speaker 1: America's major cities like New York and Los Angeles in Boston. 257 00:14:25,960 --> 00:14:28,440 Speaker 1: And at the same time, the Court may take this 258 00:14:28,560 --> 00:14:32,280 Speaker 1: opportunity to articulate a clear standard of review for future 259 00:14:32,320 --> 00:14:35,720 Speaker 1: Second amendment cases, and if the Court chooses a standard 260 00:14:35,760 --> 00:14:39,200 Speaker 1: that leads to more gun control laws being overturned, then 261 00:14:39,240 --> 00:14:43,560 Speaker 1: that will also be hugely important. So this case has 262 00:14:43,560 --> 00:14:47,240 Speaker 1: the possibility to be a more important and far reaching 263 00:14:47,720 --> 00:14:50,280 Speaker 1: landmark than even the Heller case back in two thousand 264 00:14:50,280 --> 00:14:54,360 Speaker 1: and eight. Looking at the Supreme Court's docket and the 265 00:14:54,400 --> 00:14:57,760 Speaker 1: fact that they're taking this case, they've stayed away from 266 00:14:57,800 --> 00:15:01,440 Speaker 1: gun rights, They've stayed away from a portion issues, They've 267 00:15:01,480 --> 00:15:03,800 Speaker 1: stayed away from a lot of the hot button issues. 268 00:15:04,640 --> 00:15:07,320 Speaker 1: Do you think that taking this case marks a turning 269 00:15:07,360 --> 00:15:10,320 Speaker 1: point in the Supreme Court that we're going to start 270 00:15:10,360 --> 00:15:15,840 Speaker 1: to see what that conservative majority can do. I don't 271 00:15:15,840 --> 00:15:17,920 Speaker 1: think there's any doubt that we're likely to see the 272 00:15:17,960 --> 00:15:21,120 Speaker 1: Court take on a number of major controversial issues in 273 00:15:21,120 --> 00:15:26,640 Speaker 1: the coming years, from guns to abortion, gay rights, religious freedom, immigration. 274 00:15:27,320 --> 00:15:30,360 Speaker 1: Um uh. We do have a new majority on the 275 00:15:30,360 --> 00:15:34,520 Speaker 1: Supreme Court, and all of the new justices Kavanaugh, Gorstch 276 00:15:34,560 --> 00:15:38,040 Speaker 1: and Barrett are all relatively aggressive in their views of 277 00:15:38,160 --> 00:15:40,240 Speaker 1: pursuing the law and pursuing what they think is the 278 00:15:40,320 --> 00:15:42,440 Speaker 1: right way to understand the law. They're not going to 279 00:15:42,480 --> 00:15:45,840 Speaker 1: be bound too much by old precedent, and we are 280 00:15:45,920 --> 00:15:49,600 Speaker 1: likely to see the impact of the election for years 281 00:15:49,600 --> 00:15:52,240 Speaker 1: to come in the Supreme Court. Thanks for being the 282 00:15:52,240 --> 00:15:55,520 Speaker 1: Bloomberg Law Show. Adam, that's Professor Adam Winkler of u 283 00:15:55,560 --> 00:16:00,360 Speaker 1: c l A Law School. New anti protest legislation has 284 00:16:00,400 --> 00:16:04,400 Speaker 1: been sweeping the country since the summer's Black Lives Matter protests. 285 00:16:04,400 --> 00:16:08,200 Speaker 1: Republican legislatures and at least thirty four states have passed 286 00:16:08,200 --> 00:16:12,080 Speaker 1: bills that target protesters beyond the laws already on the books. 287 00:16:12,520 --> 00:16:16,280 Speaker 1: Joining me is First Amendment attorney Jeff Lewis, what are 288 00:16:16,320 --> 00:16:21,400 Speaker 1: the different forms that these protests bills take. Well, the 289 00:16:21,440 --> 00:16:23,800 Speaker 1: one that's grabbing all the headlines is the one that 290 00:16:23,880 --> 00:16:27,480 Speaker 1: immunizes folks who are driving a car or protests, and 291 00:16:27,520 --> 00:16:31,120 Speaker 1: if they injure somebody while leaving a protest, let's they 292 00:16:31,200 --> 00:16:35,400 Speaker 1: drive through a crowd. That type of person is immunized 293 00:16:35,440 --> 00:16:38,640 Speaker 1: from civil liability. That's the big one grabbing the headlines. 294 00:16:38,680 --> 00:16:42,960 Speaker 1: And there's others in terms of criminalizing three people who 295 00:16:43,040 --> 00:16:46,680 Speaker 1: are meeting at a protest and the police determined that 296 00:16:46,760 --> 00:16:50,160 Speaker 1: those three people are acting in a disorderly fashion and 297 00:16:50,200 --> 00:16:52,800 Speaker 1: are creating a risk of injury to others. There's a 298 00:16:52,880 --> 00:16:55,520 Speaker 1: third one that caught my eye down in Florida, which 299 00:16:55,680 --> 00:17:00,600 Speaker 1: criminalizes defacing or damaging historical monument. You get up to 300 00:17:00,680 --> 00:17:04,760 Speaker 1: ten years. It's a felony for defacing monuments. That one 301 00:17:04,800 --> 00:17:09,160 Speaker 1: caught my eye as well. Is this not core protected speech? 302 00:17:09,960 --> 00:17:14,200 Speaker 1: I think it's absolutely protected speech. The Florida law has 303 00:17:14,200 --> 00:17:17,240 Speaker 1: already been the subject of a new lawsuit. I expected 304 00:17:17,359 --> 00:17:21,560 Speaker 1: to be, if not overturned, severely restricted, because there are 305 00:17:21,600 --> 00:17:26,920 Speaker 1: already laws on the books to criminalize property damage, property crimes. 306 00:17:27,240 --> 00:17:32,760 Speaker 1: These new laws criminalized or seek to chill protesting. They 307 00:17:32,800 --> 00:17:35,600 Speaker 1: seek to convince people to stay in their homes, in 308 00:17:35,640 --> 00:17:38,160 Speaker 1: their homes and not go out on the street and 309 00:17:38,160 --> 00:17:43,280 Speaker 1: and protests. So explain the difference between those laws and 310 00:17:43,320 --> 00:17:47,120 Speaker 1: the laws that are on the books. Well, yeah, right now, 311 00:17:47,160 --> 00:17:51,200 Speaker 1: if you're on the street holding a sign peacefully protesting, 312 00:17:51,920 --> 00:17:55,879 Speaker 1: you can't be arrested unless the big unless is the 313 00:17:56,040 --> 00:18:01,800 Speaker 1: city declares or the local police declares a illegal assembly. 314 00:18:02,119 --> 00:18:05,240 Speaker 1: If an illegal assembly is declared and you fail to leave, 315 00:18:05,320 --> 00:18:09,760 Speaker 1: you could be arrested. That already gives the police tremendous 316 00:18:09,880 --> 00:18:13,719 Speaker 1: power to protect safety, and that's sufficient. These new laws 317 00:18:13,760 --> 00:18:18,680 Speaker 1: are big overreach. So do you think that they're punitive? Well, 318 00:18:18,720 --> 00:18:21,919 Speaker 1: It's hard to say if it's intended to be punitive, 319 00:18:21,960 --> 00:18:24,480 Speaker 1: but I could tell you this, they will absolutely have 320 00:18:24,640 --> 00:18:28,199 Speaker 1: a punitive effect in terms of chilling people. People are 321 00:18:28,240 --> 00:18:30,159 Speaker 1: gonna decide to stay at home. They're not going to 322 00:18:30,280 --> 00:18:34,920 Speaker 1: want to, for example, face the prospect of being overnight 323 00:18:34,960 --> 00:18:38,639 Speaker 1: in jail without bail. Normally people are released on bail, 324 00:18:38,720 --> 00:18:40,760 Speaker 1: but one of these bills I've leaved out in Florida 325 00:18:40,880 --> 00:18:44,119 Speaker 1: says you could be denied bail and forced to spend 326 00:18:44,160 --> 00:18:46,439 Speaker 1: time in jails. People are going to make decisions not 327 00:18:46,480 --> 00:18:48,320 Speaker 1: to go out and protests based on some of these 328 00:18:48,359 --> 00:18:52,000 Speaker 1: new laws. What are the legal challenges to these laws 329 00:18:52,080 --> 00:18:55,600 Speaker 1: going to look like? Primarily vagueness at this point, because 330 00:18:55,720 --> 00:18:58,639 Speaker 1: right now we're looking at the statute as it exists, 331 00:18:58,800 --> 00:19:02,160 Speaker 1: uh in paper, without having been applied to any actual 332 00:19:02,240 --> 00:19:05,439 Speaker 1: protests yet. So it's a challenge to the form of 333 00:19:05,480 --> 00:19:07,879 Speaker 1: the law. For vagueness, people are going to say, we 334 00:19:07,920 --> 00:19:11,280 Speaker 1: don't know what the police on any given day will 335 00:19:11,359 --> 00:19:16,359 Speaker 1: determine is disorderly conduct or could cause a risk of injury. 336 00:19:16,600 --> 00:19:18,520 Speaker 1: So that will be the primary challenge. But then as 337 00:19:18,840 --> 00:19:21,520 Speaker 1: protests happen and as these laws start getting in four 338 00:19:21,720 --> 00:19:25,960 Speaker 1: still see challenges that as applied UH, these laws have 339 00:19:26,040 --> 00:19:30,199 Speaker 1: a disparate impact on perhaps people of color or members 340 00:19:30,200 --> 00:19:33,159 Speaker 1: of the Black Lives Matter movement. Have laws like this 341 00:19:33,320 --> 00:19:37,760 Speaker 1: been passed before and challenged before? You know, I do 342 00:19:37,880 --> 00:19:40,399 Speaker 1: know that there was a wave of new laws like 343 00:19:40,480 --> 00:19:45,119 Speaker 1: this past in ten not not the most extreme versions 344 00:19:45,119 --> 00:19:48,600 Speaker 1: in terms of people being immunized for driving through a 345 00:19:49,040 --> 00:19:52,800 Speaker 1: protest crowd, but the other laws in terms of UH 346 00:19:52,840 --> 00:19:56,760 Speaker 1: participating in protests and escalating to you know what it's 347 00:19:56,800 --> 00:20:01,359 Speaker 1: called a riot. Those laws have survived challenges in the past. 348 00:20:01,440 --> 00:20:04,720 Speaker 1: But these new laws really are extreme, and I would 349 00:20:04,760 --> 00:20:07,320 Speaker 1: expect them to at least be restricted in terms of 350 00:20:07,320 --> 00:20:11,399 Speaker 1: the denial of bail and the immunization of people driving 351 00:20:11,440 --> 00:20:14,480 Speaker 1: through crowds. So the bill in Florida is called an 352 00:20:14,480 --> 00:20:18,760 Speaker 1: anti riot bill. Is that trying to paint it in 353 00:20:18,840 --> 00:20:22,359 Speaker 1: a different light than it really is? Yeah? I mean, 354 00:20:22,400 --> 00:20:25,280 Speaker 1: I'm sure opponents down there in Florida of the bill 355 00:20:25,320 --> 00:20:28,000 Speaker 1: would call it an anti free speech bill, because we 356 00:20:28,040 --> 00:20:30,439 Speaker 1: already have laws in the books that deal with riots. 357 00:20:30,520 --> 00:20:33,560 Speaker 1: The police in every state always have the right to 358 00:20:33,560 --> 00:20:37,600 Speaker 1: declare an assembly an unlawful assembly and in essence a riot, 359 00:20:37,720 --> 00:20:40,719 Speaker 1: and arrest anybody who doesn't late at leave. So this 360 00:20:40,760 --> 00:20:43,679 Speaker 1: new law is just unnecessary. And calling it an anti 361 00:20:43,800 --> 00:20:46,520 Speaker 1: riot bill is just putting lipstick on a pig. And 362 00:20:46,560 --> 00:20:48,960 Speaker 1: what about the so called hit and kill bills? Do 363 00:20:49,040 --> 00:20:53,240 Speaker 1: they present a special problem? Absolutely, it's a very aggressive 364 00:20:53,280 --> 00:20:56,200 Speaker 1: approach for Florida to take, and I believe Oklahoma has 365 00:20:56,200 --> 00:20:59,080 Speaker 1: one as well. If I were a First Amendment attorney 366 00:20:59,160 --> 00:21:02,159 Speaker 1: challenging this law, that is the very first part of 367 00:21:02,240 --> 00:21:05,400 Speaker 1: the new laws that I would challenge because it grabs headlines, 368 00:21:05,640 --> 00:21:10,080 Speaker 1: it's counterintuitive, and people's visceral response when you tell people 369 00:21:10,080 --> 00:21:12,440 Speaker 1: about a law that allows you to run people over, 370 00:21:12,880 --> 00:21:16,119 Speaker 1: I think that's unfair. That's Jeff Lewis and that's it 371 00:21:16,200 --> 00:21:18,680 Speaker 1: for the edition of the Bloomberg Law Show. Remember you 372 00:21:18,680 --> 00:21:20,880 Speaker 1: can always get the latest legal news on our Bloomberg 373 00:21:20,960 --> 00:21:24,320 Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify, 374 00:21:24,359 --> 00:21:29,280 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law. 375 00:21:29,960 --> 00:21:32,760 Speaker 1: I'm June grass O. Thanks so much for listening. Please 376 00:21:32,800 --> 00:21:35,159 Speaker 1: tune into The Bloomberg Law Show every weeknight at ten 377 00:21:35,240 --> 00:21:37,480 Speaker 1: pm Eastern right here on Bloomberg Radio.