Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. It's the first
Speaker 1: gun rights case the Supreme Court has heard in almost
Speaker 1: a decade, and gun rights advocates were hoping a new
Speaker 1: conservative majority would expand Second Amendment protections. However, the Justice
Speaker 1: has spent most of an hour long argument on Monday
Speaker 1: debating whether to issue a ruling at all or to
Speaker 1: toss out the New York City firearms case now that
Speaker 1: the city has scrapped the restrictions on transporting licensed handguns
Speaker 1: that were at the center of the case. Joining me
Speaker 1: is a leading authority on the Second Amendment. Adam Winkler,
Speaker 1: a professor at u c l A Law school. What's
Speaker 1: at stake in this case? Well, there's a lot at
Speaker 1: stake in this case. On one hand, it could be
Speaker 1: a very minor case. New York City. You to have
Speaker 1: these regulations in place that restricted where you could transport
Speaker 1: your firearms, but they were very unusual and unique provisions.
Speaker 1: No other city or state has similar restrictions on where
Speaker 1: you can transport a firearm, So the Court could rule
Speaker 1: in this case in a way that's very minor. But
Speaker 1: the truth of the matter is there's been several justices
Speaker 1: who really been pushing the Court to take a Second
Speaker 1: Amendment case so that the Court can articulate broader principles
Speaker 1: for the Second Amendment and expand the scope of gun
Speaker 1: rights in America. Many legal experts were surprised when New
Speaker 1: York City changed the law and the Justices didn't dismiss
Speaker 1: the case, and people were reading into that. Did you
Speaker 1: read into that? Well, it is always unusual for the
Speaker 1: Court to eagerly seek out a case when the law
Speaker 1: has been repealed. However, this was an unusual circumstance. It's
Speaker 1: not often that lawmakers repeal a law at the moment
Speaker 1: that the Supreme Court accepts um an appeal in a case.
Speaker 1: So this was an unusual circumstance. So perhaps it wasn't
Speaker 1: all that surprising that the Justice has decided to move forward,
Speaker 1: But it did sound like from the oral argument that
Speaker 1: was heard in the case, that the justices seemed likely
Speaker 1: to determine in the end that this is a moot
Speaker 1: case and not issue a final ruling on the merits
Speaker 1: of the particular provisions that have been repealed. Chief Justice
Speaker 1: John Roberts, who could be a swing vote here, asked
Speaker 1: New York City's lawyer whether declaring the case moot would
Speaker 1: harm gun owners in any way. How do you read
Speaker 1: his question? It did seem that Chief Justice John Roberts
Speaker 1: was hyper focused on this mutinous issue. It could be
Speaker 1: that the Court has so many big, high profile cases
Speaker 1: coming before it this term that the Chief Justice wouldn't
Speaker 1: mind pushing off the Second Amendment case for a future date.
Speaker 1: And that's all it really would be. Ruling on muteness
Speaker 1: in this case does not save gun safety reform advocates
Speaker 1: from a Supreme Court decision. It's only a matter of
Speaker 1: time before the Court steps back into the Second Amendment anyway.
Speaker 1: There's a bunch of cases that are awaiting the Supreme
Speaker 1: Court action on the Second Amendment. During the oral arguments,
Speaker 1: it appeared that the liberal justices thought nothing was left
Speaker 1: of the case, while conservative Justices Samuel Alito and Neil
Speaker 1: Gorsch thought the controversy was still alive. But Conservative Justice
Speaker 1: Brett Kavanagh, who wrote a dissent when the d C.
Speaker 1: Appeals Court upheld a ban on semi automatic rifles was silent,
Speaker 1: which is unusual for him. That is unusual for him,
Speaker 1: and it's hard to know exactly what to make of
Speaker 1: his silence. It could be that he agrees that this
Speaker 1: case is moot or believes that is a very strong argument.
Speaker 1: Even many of the conservative justices, even if they're eager
Speaker 1: to step back into the Second Amendment Fray, are maybe
Speaker 1: reluctant to do so in a case where the provisions
Speaker 1: themselves have really been repealed and in a decision would
Speaker 1: come out in the middle of election, in flaming the
Speaker 1: elect direct all the more. The Deputy Solicitor General said,
Speaker 1: lower courts have basically given thumbs up to restrictions on
Speaker 1: gun rights, but thumbs down to gun rights. Is that
Speaker 1: basically true? Have the lower courts, even the appellate courts,
Speaker 1: turned away challenges to gun regulations. Well, I wouldn't think
Speaker 1: that that's highly accurate. I mean, there's certainly the case
Speaker 1: that many forms of gun control law have survived judicial scrutiny,
Speaker 1: but that's in part because America has pretty weak gun
Speaker 1: laws relative to other nations. That the gun rights movement
Speaker 1: is so strong politically that it prevents most states from
Speaker 1: enacting very restrictive laws. So while it's no doubt that
Speaker 1: courts have upheld many forms of gun control, I don't
Speaker 1: think that's necessarily a sign of disrespect for the Second Amendment.
Speaker 1: Do you expect that if the Court decides that this
Speaker 1: case is moot, would they just dismiss the case or
Speaker 1: might they also issue a ling that could give guidance
Speaker 1: to this area. It seems unlikely that the Court will
Speaker 1: articulate broad principles about the Second Amendment in a case
Speaker 1: that the Court declares as moot. The whole point of
Speaker 1: declaring the case moot would be that the Court doesn't
Speaker 1: have to issue a decision on the merits. One never
Speaker 1: knows what the Supreme Court will do, of course, and
Speaker 1: we'll have to see how it goes. As you know,
Speaker 1: Justice Clarence Thomas has basically said that the Second Amendment
Speaker 1: is a disfavored amendment. Do you agree with that? I
Speaker 1: don't think so. I think the Second Amendment is enjoying
Speaker 1: a resurgence in popularity, and just ten years ago or
Speaker 1: twelve years ago, the Supreme Court, for the first time
Speaker 1: in history in the Heller case said that the Second
Speaker 1: Amendment protects an individual right to bear arms. Over the
Speaker 1: last ten years, we've seen more cases challenging gun control
Speaker 1: laws and more gun control laws struck down than ever
Speaker 1: before in American history. So I know, I don't think
Speaker 1: the Second Amendment is being treated as a second class right.
Speaker 1: Some analysts say that or think that it was Justice
Speaker 1: Anthony Kennedy who was holding back the other conservatives on
Speaker 1: the Court from enhancing gun rights. Well, we don't know
Speaker 1: exactly what happens behind closed doors in the private conferences
Speaker 1: of the Supreme Court justices, so we can't say for
Speaker 1: certain if anyone justice was creating a barrier to the
Speaker 1: courts taking a new case. It is somewhat telling, however,
Speaker 1: that within months of Justice Kavanaugh replacing Justice Kennedy, the
Speaker 1: Supreme Court decides to hear its first big Second Amendment
Speaker 1: case in nearly a decade. Thanks for being on Bloomberg Law, Adam.
Speaker 1: That's Adam Winkler, Professor at u c l A Law School.
Speaker 1: A note. Michael Bloomberg, the founder and majority owner of
Speaker 1: Bloomberg LP, the parent company of Bloomberg Radio, is a
Speaker 1: donor to groups that support gun control, including every Town
Speaker 1: for Gun Safety. Thanks for listening to the Bloomberg Law podcast.
Speaker 1: You can subscribe and listen to the show on apple
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Speaker 1: I'm June Brosso. This is Bloomberg m