Speaker 1: This is Bloomberg Long with June Brusso from Bloomberg Radio.
Speaker 1: Another repercussion from the leak of a draft Supreme Court
Speaker 1: opinion overturning Roe v. Wade last month, Justice Clarence Thomas
Speaker 1: said the leak has undermined trust among the justices and
Speaker 1: deeply damaged the court. And look where we are where
Speaker 1: now that trust or that belief is gone forever um
Speaker 1: the And when you lose that trust, especially in the
Speaker 1: institution that I'm in, Uh, it changes the institution fundamentally.
Speaker 1: You begin to look over your shoulder. It's like kind
Speaker 1: of an infidelity on that you can explain it, but
Speaker 1: you can't undo it. Is that mistrust and internal discord
Speaker 1: behind the Justice is waiting until the bitter end of
Speaker 1: the term to issue decisions in more than half of
Speaker 1: their cases, including blockbuster rulings could make abortion illegal and
Speaker 1: half the country and mean more handguns on the streets.
Speaker 1: Here to help us sort out why and what's coming
Speaker 1: up is Kimberly Strawbridge Robinson, Bloomberg Law Supreme Court reporter Kimberly.
Speaker 1: At this point, the justices have thirty three decisions outstanding.
Speaker 1: That's more than they've issued this whole term. Is this unusual, Well,
Speaker 1: it is and it isn't. So it's not unusual for
Speaker 1: the Court to kind of backload. It's worked with opinions.
Speaker 1: But you know, that makes a lot of sense. In
Speaker 1: the beginning of the term, the justices are also hearing
Speaker 1: oral arguments in cases. There's a lot of prep for
Speaker 1: those arguments to happen, and then they stopped doing that
Speaker 1: around April and focused totally on opinions. So we do
Speaker 1: tend to get a lot of the opinions in June,
Speaker 1: specifically as the Court tries to hit this kind of
Speaker 1: informal deadline at the end of June to knock out
Speaker 1: all of its opinions. But it's unusual in the sense
Speaker 1: to have so many. We could see the Suspreme Court
Speaker 1: was already working pretty slowly before we got that unprecedented
Speaker 1: leak of an abortion ruling, but since then it's been
Speaker 1: going even more slowly. So it is unusual to have
Speaker 1: thirty three cases left for the justices to get out,
Speaker 1: and it is a pretty heavy list. Maybe we won't
Speaker 1: be hitting that informal deadline this here. We've been expecting
Speaker 1: the decision in the New York gun case for some time.
Speaker 1: Explain why, you know how reporters time out when cases
Speaker 1: are argued and when they should be coming down. Well,
Speaker 1: you know, it takes the justices a long time to
Speaker 1: really issue any opinion. It's not as if they usually
Speaker 1: just pure case and then the next day we get
Speaker 1: this long, ridden, reasoned out opinion. That takes time, But
Speaker 1: as cases are more divisive, it's going to take even
Speaker 1: more time, not only because you're working with the majority opinion,
Speaker 1: but also with any descents that might be coming in
Speaker 1: and those kind of go back and forth sometime for editing.
Speaker 1: So you know, we can kind of gain out the
Speaker 1: system based on when arguments happened. Did they happen right
Speaker 1: at the beginning of term in October or you might
Speaker 1: expect to see those happen before cases that you know,
Speaker 1: we don't hear until the middle of April. That makes
Speaker 1: a lot of sense with regard to this gun case,
Speaker 1: though it is right now the oldest outstanding case that
Speaker 1: the Supreme Court still has pending, and why we could
Speaker 1: see it at the end of June, it is also
Speaker 1: one that the Justices might have ready, but we haven't
Speaker 1: seen it in the last couple of weeks and some
Speaker 1: people are speculating that it has to do with the
Speaker 1: recent news out of Texas and that shooting there, that
Speaker 1: the justices seem prime and oral argument to expand gun rights,
Speaker 1: and that now just really isn't the time for the
Speaker 1: Supreme Court to issue that ruling. I confess that I've
Speaker 1: been one of those speculating. So that case and of
Speaker 1: course the abortion case are the blockbuster decisions that people
Speaker 1: have been focusing on. But there are other cases which
Speaker 1: should make headlines. Let's just go through some of them quickly.
Speaker 1: There's a pending environmental dispute there is. This is a
Speaker 1: big dispute out of West Virginia, but it really goes
Speaker 1: to the heart of whether it's e p A can
Speaker 1: tackle climate change and how robustly they can tackle climate change,
Speaker 1: which of itself is a really important issue for the country,
Speaker 1: but it's also really important in what it means for
Speaker 1: administrative law. Now, people might have fallen asleep while an
Speaker 1: administrative law, but the administrative law touches on almost every
Speaker 1: aspect of American life, and you know, when the Court
Speaker 1: makes even small changes to administrative law, I can really
Speaker 1: have big effects. And this is one of those cases
Speaker 1: where what the Supreme Court says, could make the ruling
Speaker 1: mean even more beyond environmental law, beyond climate change. There's
Speaker 1: the immigration case over Trump's Remain in Mexico policy, which
Speaker 1: would force immigrants to stay in Mexico while their cases
Speaker 1: are being reviewed. And are there two religious rights cases?
Speaker 1: There are two religious rights cases still pending. The Court
Speaker 1: recently issued religious rights case fighting with a group who
Speaker 1: wanted to fly their flag over Boston. But both of
Speaker 1: these other cases are a little bit more robust, kind
Speaker 1: of to more of the heart of some of our
Speaker 1: religious freedom and what states can do to kind of
Speaker 1: stay out of religion. You know, those cases are really interesting,
Speaker 1: and that if we looked at the Robert's Court when
Speaker 1: it first got started in two thousand and five, when
Speaker 1: Chief Justice Robert took over, the Court's really been making
Speaker 1: these very small moves and the religious space to where
Speaker 1: we get to where we are now and the questions
Speaker 1: we're considering are kind of astonishing how far we come
Speaker 1: just taking these little baby steps. And so I expect
Speaker 1: the Court to continue kind of taking those baby steps
Speaker 1: and of walking towards protecting religious freedom and protecting the
Speaker 1: right to practice. But again, those are ones that we're
Speaker 1: going to see in the deluge of cases that I'm
Speaker 1: expecting in the next couple of weeks. Since the majority
Speaker 1: opinions are sort of spread out evenly among the justices,
Speaker 1: Supreme Court watchers watch which justice has written opinions and
Speaker 1: how many to determine who's left. So what have you
Speaker 1: found out? Right? This is one of those things that
Speaker 1: we're forced to do because the Court is, you know,
Speaker 1: such a secretive institutions, the League notwithstanding, but yeah, so
Speaker 1: typically we see justices trying to even out the opinions,
Speaker 1: bread them across each of the argument sittings, and so
Speaker 1: we can kind of get an idea of who we're
Speaker 1: expecting the most opinions from. Right now to Justice Roberts
Speaker 1: and Kagan have written the most opinions. They've written the
Speaker 1: four of the six or seven that we expect to see.
Speaker 1: But some of the other justices have a lot more
Speaker 1: work to do. Thomas Alito, Kavanaugh, you know, they've only
Speaker 1: written too so they're not even halfway done with their work.
Speaker 1: Of course, we know Justice Alito from that league is
Speaker 1: probably writing scheme majority opinion in that big abortion case.
Speaker 1: But who's writing what else? We'll get a better clue
Speaker 1: as more opinions kind of trickle in and we can
Speaker 1: play this process of elimination. The fact that three of
Speaker 1: the conservative justices have more majority opinions to come may
Speaker 1: give some liberals pause. Now, when you hear Supreme Court
Speaker 1: justice talk, they usually point out how many of their
Speaker 1: opinions are unanimous to try to show it's not a
Speaker 1: political body. I fun that those are usually in cases
Speaker 1: that people don't care that much about attention to. What
Speaker 1: are the numbers so far this term, Well, you're right,
Speaker 1: you know, unanimous cases typically make up about half of
Speaker 1: the cases. And it's the stat that all of justices
Speaker 1: on the right and the left point you just say,
Speaker 1: we agree on over half of these really tough legal
Speaker 1: questions that have divided lower court judges. But this year
Speaker 1: they're actually going to struggle to get to that fifty percent.
Speaker 1: And you know, if you think about the timing considerations
Speaker 1: that we've talked about, divided opinions take a lot longer
Speaker 1: to than unanimous opinions. So we tend to have a
Speaker 1: frontload of these unanimous rulings. But so far and really
Speaker 1: haven't been that many. There have been about as many
Speaker 1: unanimous opinions as we've seen six three opinions, which of
Speaker 1: course is the ideological lineup of this conservative majority court now,
Speaker 1: so that doesn't bode well for these really high profile
Speaker 1: and very divisive cases that we still have yet to
Speaker 1: get out, and they don't really have those base of
Speaker 1: unanimous rulings to build upon. I will say though, that
Speaker 1: one problem with kind of keeping stats with regard to
Speaker 1: unanimous opinions or five four six three rulings is that
Speaker 1: they often don't tell you a lot about the underlying reasoning.
Speaker 1: So one case that I consider to be an eight
Speaker 1: to one ruling is that Texas abortion case. But you know,
Speaker 1: I think if you talk to a lot of the people,
Speaker 1: they would tend to think of it as a five
Speaker 1: four ruling just because of the political implications of it. So,
Speaker 1: you know, we should look to this data. It does
Speaker 1: tell us something, but it certainly can't tell everything about
Speaker 1: what's going on at the court. It seems like an
Speaker 1: age ago that Chief Justice Roberts was the justice in
Speaker 1: the center of the court, the swing vote. Who's at
Speaker 1: the center now? Well, actually, right now, both Roberts and
Speaker 1: Justice Brett Kavanaugh are the only justices to be in
Speaker 1: the majority in all one cases. Again though, and you know,
Speaker 1: people who are forfalling that Texas abortion case may be
Speaker 1: scratching their heads because I think many people would see
Speaker 1: Chief Justice Roberts concurrence in that opinion as really a dissent.
Speaker 1: And so you know, again that highlights the information that
Speaker 1: we can glean from this. But I think that these
Speaker 1: kind of numbers that we're looking at now are going
Speaker 1: to radically change by the end of the term and
Speaker 1: just this couple of months span, because we are getting
Speaker 1: so many divisive cases, and I suspect that the numbers
Speaker 1: will probably prove you right June to show that Chief
Speaker 1: Justice Roberts is no longer in the middle of the
Speaker 1: court and that the Court has really tilted towards his
Speaker 1: more conservative colleagues. There isn't really a swing vote anymore
Speaker 1: like Justice Kennedy was, is there. I think it depends
Speaker 1: on the issue. With Justice Kennedy, you know, you really
Speaker 1: didn't know all the time which side of the issue
Speaker 1: in any particular case he was going to be on.
Speaker 1: With this court, I think that there are a few
Speaker 1: really precise issues that you can see a swing justice.
Speaker 1: And so it may surprise listeners that Justice course such
Speaker 1: is often a vote with his more liberal colleagues on
Speaker 1: things like tribal rights or even right for you know,
Speaker 1: Puerto Ricans and other U. S territories. But we're not
Speaker 1: going to see Justice course such a the swing vote
Speaker 1: in these big divisive cases like guns and abortions. I
Speaker 1: think you're right, June, that that just doesn't really exist
Speaker 1: on the current Supreme Court anymore. Kimberly, Justice Stephen Briar's
Speaker 1: retiring after nearly thirty years on the bench. Did you
Speaker 1: see anything different from him this term? And are you
Speaker 1: expecting any last minute fireworks from him? That is a
Speaker 1: really good question, June. I don't think we saw anything
Speaker 1: really different from Justice brier this term. I think, you know,
Speaker 1: just listening to him talk before he had announced his retirement,
Speaker 1: it seemed like he had really hoped to kind of
Speaker 1: use his long time and relationship on the bench to
Speaker 1: be able to sway the Court away from some of
Speaker 1: these bigger, more divisive rulings. But you know, if the
Speaker 1: draft opinion tells us anything, it doesn't seem like he
Speaker 1: was successful, at least with regard to abortion, which is
Speaker 1: kind of the marquee issue this term. So as far
Speaker 1: as the fireworks we can get from him, I think
Speaker 1: it will be more along the lines of kind of
Speaker 1: a sharp descent or pointing out long term projects, kind
Speaker 1: of making a last effort for it. You know, we
Speaker 1: saw him recently do this with the death penalty, calling
Speaker 1: on the justices to reconsider the constitutionality of that. But
Speaker 1: there's just not some votes on the Court, so there's
Speaker 1: very limited amounts that Justice Briar can do. As he's
Speaker 1: kind of making his farewell to her, It's going to
Speaker 1: be a very busy month, that's for sure. Before I
Speaker 1: let you go, I want to talk a little about
Speaker 1: the leak. What's the latest on the investigation by the
Speaker 1: Supreme Court Marshall's Office. Well, you know, we have heard
Speaker 1: some more leaking from the leak that the Marshall's Office
Speaker 1: is taking particular steps to get personal phone records from
Speaker 1: the clerks, and we have Bloomberg haven't been able to
Speaker 1: independently verify that, but that's definitely something that signals kind
Speaker 1: of a unique and start change from the atmosphere at
Speaker 1: the Court before. You know, typically this is a very
Speaker 1: friendly institution and to see the Marshall's Office requesting the
Speaker 1: personal information of their clerk is something pretty jarring for
Speaker 1: someone like me, it's been watching the court for ten years. Um.
Speaker 1: You know, I do question, though, I've seen a lot
Speaker 1: of criticism that the Marshal's Office is an equipped to
Speaker 1: handle this kind of investigation to really fair at out
Speaker 1: the person who leaked and to punish them. But you know,
Speaker 1: I've been wondering if that's really the goal of the
Speaker 1: justices within the courthouse. Of course they want to find
Speaker 1: out who did this and why, um, but punishing, you know,
Speaker 1: their their law clerks, these young reason law school graduates.
Speaker 1: I'm not sure is their top priority. But we'll just
Speaker 1: have to wait and see where this investigation leads and
Speaker 1: see if they the court actually tells us how how
Speaker 1: it's going or how it's concluded. I still don't even
Speaker 1: know if that's going to happen. Do you know how
Speaker 1: many people have access to these draft rulings? Is it
Speaker 1: more than the justices and their clerks. It is a
Speaker 1: little bit more than the justices and their clerks, you know.
Speaker 1: I think the best guests that I that I have
Speaker 1: now is somewhere around eight people, because they're just some
Speaker 1: people around the buildings who have to you know, have
Speaker 1: access to emails, have access to printing, um, you know,
Speaker 1: and there there of course will be of some people
Speaker 1: um doing some administrative things with the opinion. So it
Speaker 1: is a bit broader than the clerks and the justices.
Speaker 1: But if the news that we're hearing out of the
Speaker 1: investigation is true, it really does seem like the Marshall's
Speaker 1: office is focused on the clerks, so maybe they know
Speaker 1: something we don't. It seems odd because most people, most
Speaker 1: legal experts say, well, you know, it wouldn't be the clerks,
Speaker 1: because if it were revealed that a clerk was the leak,
Speaker 1: that would ruin the clerk's career, Well, that certainly is
Speaker 1: a good argument for why it wouldn't be a clerk.
Speaker 1: And we don't have leaks very often. We do have,
Speaker 1: you know, one situation that we can look back to,
Speaker 1: after the plan Parenthood versus casey abortion rulling, one of
Speaker 1: the clerks at that time, after the opinion had been announced,
Speaker 1: then wrote sort of a telltale book and was sort
Speaker 1: of shunned from at least the litigation aspect of um,
Speaker 1: you know, the legal field. But beyond that, this is
Speaker 1: really unprecedented situation that we're in and so you know,
Speaker 1: really no telling where this is going to lead us.
Speaker 1: And just finally a new House Republican bill is appropriately
Speaker 1: called the Leaker Accountability Act of two. Just tell us
Speaker 1: what that it's. You know, it's obviously designed around this league,
Speaker 1: but tell us what that would do. Right. It certainly
Speaker 1: is promptly by this league, but it's not retroactive. It
Speaker 1: would not apply to this leaker. What it does is,
Speaker 1: you know, it says that if any person you know,
Speaker 1: clerk or personnel at the staff leaks what the Chief
Speaker 1: Justice considers to be confidential information, then there it makes
Speaker 1: it a criminal violation subject up to five years in jail.
Speaker 1: I think, you know, the most interesting thing about that
Speaker 1: laws really highlights that there is no criminal provision and
Speaker 1: here that I think most people can see at least
Speaker 1: not obviously that the leaker would have violated. And so
Speaker 1: it's really looking forward to if these leaks are going
Speaker 1: to happen, how are we going to try to dissuade
Speaker 1: people from doing it? What you know possible federal resources
Speaker 1: can we bring to bear. But you know, it was
Speaker 1: just to introduce recently hasn't gotten a hearing. We don't
Speaker 1: know where people stand and Congress's efforts to legislate for
Speaker 1: the Supreme Court have not been very successful lately, so
Speaker 1: I don't have high hopes for the still But again,
Speaker 1: I think the important thing is that highlights kind of
Speaker 1: the limitations UM with dealing with this current laker. Thanks
Speaker 1: so much, Kimberly. That's Bloomberg Law. Supreme Court reporter Kimberly
Speaker 1: Strawbridge Robinson. The mass shooting in Tulsa, Oklahoma, on Wednesday
Speaker 1: left four people dead. That follows a massacre of nineteen
Speaker 1: elementary school students and two teachers at a school in Uvaldi, Texas,
Speaker 1: and a mass shooting at a grocery store in Buffalo,
Speaker 1: New York that left ten people dead. President Biden has
Speaker 1: asked Congress to pass gun control legislation as a bipartisan
Speaker 1: group of lawmakers negotiates a possible agreement. But we been
Speaker 1: here before. Joining me a second amendment expert Adam Winkler,
Speaker 1: a professor at u c l A Law School, The
Speaker 1: last time Congress came close to passing substantial gun reform
Speaker 1: was in the wake of the Sandy Hook massacre. Se in,
Speaker 1: is there a feeling that this might be it, that
Speaker 1: maybe Congress will do it this time. There does seem
Speaker 1: to be some momentum for reform, perhaps more than we've
Speaker 1: seen in some of the other mass shooting wake, but
Speaker 1: I think it really remains to be seen. We see
Speaker 1: that the Democrats are very eager to get gun reform passed,
Speaker 1: and the House seems certain to pass legislation. Whether there's
Speaker 1: enough Republican support to overcome the hurdles of the Senate
Speaker 1: and the filibuster, I think just remains to be seen.
Speaker 1: In some ways, it's hard to imagine there'll be enough
Speaker 1: Republican support, but I don't want to let pessimism get
Speaker 1: in the way of possibility. Members of the House Judiciary
Speaker 1: Committee held a special hearing today on legislation that would
Speaker 1: raise the age limit for pro just saying semi automatic
Speaker 1: rifles from eighteen to twenty one, and they get illegal
Speaker 1: to manufacturer possess large capacity magazines. It said that it
Speaker 1: will never pass the Senate because there's nearly unanimous Republican opposition.
Speaker 1: If they're not going to pass that, I don't know
Speaker 1: what they're going to pass. Yeah, it's not really clear.
Speaker 1: One possibility is there could be a federal red flag law.
Speaker 1: Red flag law also known as an Extreme Risk Protection
Speaker 1: Order law that provides families and law enforcement the ability
Speaker 1: to go to court if someone is going through some
Speaker 1: kind of crisis and temporarily take away their guns. There
Speaker 1: is at least some Republican support in the Senate for
Speaker 1: a bill that would provide funding for states to adopt
Speaker 1: red flag laws. Lindsey Graham is one of the co sponsors.
Speaker 1: That might be the kind of thing that would appeal
Speaker 1: to even strong pro gun advocates in line of the
Speaker 1: fact that it targets dangerous individuals and doesn't target firearms
Speaker 1: that would be owned by ordinary law abiding people. What
Speaker 1: about an assault weapons ban which was passed before and
Speaker 1: then expired. Is that a possibility. I think there's very
Speaker 1: little chance that we could see a military style assault
Speaker 1: weapons ban adopted by Congress, especially getting through the Senate.
Speaker 1: These guns are the most favorite guns of many many
Speaker 1: gun enthusiasts. They are viewed by gun enthusiasts as weapons
Speaker 1: that are improperly targeted by gun reform advocates. Although these
Speaker 1: firearms have been used in some high profile mass shootings,
Speaker 1: they certainly aren't necessary to commit a mass shooting, and
Speaker 1: many mass shootings are committed with handguns. And the overall
Speaker 1: number of people who die as a result of rifle
Speaker 1: wounds is actually relatively small compared to handguns, are or
Speaker 1: other types of firearms. So I think that a ban
Speaker 1: on military style assault rifles would be tough to through Congress,
Speaker 1: and even if it did get through Congress, might be
Speaker 1: even tougher to get through the United States Supreme Court.
Speaker 1: I don't know much about guns, as I've told you before,
Speaker 1: assault weapons. Are those the ones that were used in Uvaldi? Yes,
Speaker 1: the shooter and Nuvaldi went out and purchased a military
Speaker 1: style assault rifle. I think two of them in fact, Yeah, so,
Speaker 1: and some of the children were unrecognizable because of the
Speaker 1: damage that does. And it's also been said that perhaps
Speaker 1: that's one of the reasons why the police didn't enter
Speaker 1: and waited in the hallway for forty minutes or fifty minutes,
Speaker 1: whatever it was. Yeah, that is possible. And certainly these
Speaker 1: firearms are powerful firearms. And if you shoot someone at
Speaker 1: close range with a rifle, really any kind of rifle,
Speaker 1: whether it's a military style rifle or a rifle that
Speaker 1: would not be banned by the assault weapons ban, it
Speaker 1: will be pretty horrific. But I do think that it's
Speaker 1: unlikely that metalities would diminish if the shooters only had
Speaker 1: access to handgun. Now, high capacity magazines present an interesting
Speaker 1: issue because high capacity magazines, that is the same magazines
Speaker 1: that can hold more than ten rounds of ammunition. That
Speaker 1: is a feature of a firearm that very much is
Speaker 1: associated with lethality. If you can fire off more than
Speaker 1: ten rounds of ammunition in rapid succession, you can do
Speaker 1: a lot of damage, much more damage then if you
Speaker 1: have a firearm that can only hold many fewer rounds
Speaker 1: of ammunition. I think it would be very difficult to
Speaker 1: get a ban on high capacity magazines through Congress, but
Speaker 1: it might also be a problem getting such a band
Speaker 1: through the Supreme Court. The Supreme Court it seems prepared
Speaker 1: to expand Second Amendment right this term, and I think
Speaker 1: one of the kinds of laws that the Court is
Speaker 1: going to call in the question in coming years is
Speaker 1: bans on high capacity magazines. We have such laws in
Speaker 1: California and a full other states. They've already been challenged,
Speaker 1: and those challenges are working their way up to the
Speaker 1: Supreme Court as we speak. Adam, what do you think
Speaker 1: the outer limit is of what the Supreme Court will
Speaker 1: rule about Second Amendment rights. Well, I think it really
Speaker 1: depends on what the Court says in this coming case.
Speaker 1: Most people suspect that the Supreme Court is going to
Speaker 1: strike down New York's can feel carry law in the
Speaker 1: Bruin case that's going to be decided any day now.
Speaker 1: But many Supreme Court watchers are going to be looking
Speaker 1: to see what the Court says about other types of
Speaker 1: gun control laws and other kinds of challenges under the
Speaker 1: Second Amendment. And it does seem like the Court is
Speaker 1: likely to insist that firearms that are in common use,
Speaker 1: that are commonplace firearms, cannot be banned, that they are
Speaker 1: protected by the Second Amendment. High capacity magazines are found
Speaker 1: in upwards of forty to fifty million guns in America,
Speaker 1: maybe more. We don't have precise data, but they would
Speaker 1: seem to qualify as being in common use. What about
Speaker 1: the possibility of expanding background checks? There is a possibility
Speaker 1: that we can expand the background checks. There is some
Speaker 1: discussion currently in the Senate about expanding the current background
Speaker 1: check system. Our current law only requires background checks on
Speaker 1: sales by federally licensed gun dealers, but you don't have
Speaker 1: to be a federally licensed gun dealer to sell a gun,
Speaker 1: and if you're not a federally licensed dealer, you don't
Speaker 1: have to conduct a background check under federal law. And
Speaker 1: so closing that loophole and requiring every gun sale to
Speaker 1: go through a background check would be an important step
Speaker 1: forward in gun safety reform. Whether there's enough political will
Speaker 1: to support it or not, we'll have to see. After
Speaker 1: Newtown there was a push for universal background checks, but
Speaker 1: Republicans came out against it, claiming that it would lead
Speaker 1: inevitably to a national gun registry that in turn would
Speaker 1: be eventually used to confiscate people's weapons. Is there anything
Speaker 1: more the president can do as far as executive orders?
Speaker 1: You know, there are some things that President Joe Biden
Speaker 1: can do with regards to gun violence prevention, but not
Speaker 1: a lot, and not a lot. That's very significant. Part
Speaker 1: of the problem here is that the president's power only
Speaker 1: is to offer new interpretations of existing laws that have
Speaker 1: been passed by Congress. He can't, for instance, beside unilaterally
Speaker 1: that he's going to ban military style assault rifles because
Speaker 1: Congress hasn't provided any basis for the president to make
Speaker 1: such a decision. The Biden administration has articulated a wish
Speaker 1: list of gun reforms, but almost all of them require
Speaker 1: Congress to pass legislation. But there are things that the
Speaker 1: president can do through executive action. He can tighten import
Speaker 1: restrictions on military style assault rifles. He can expand background
Speaker 1: checks at the margins by redefining who is required to
Speaker 1: have a license to sell gun. Congress has said you
Speaker 1: have to get a federal license if you're regularly in
Speaker 1: the business of selling guns, and the current rules require
Speaker 1: someone who repetitively buys and sells guns with the principal
Speaker 1: motive of making a profit to obtain a license. The
Speaker 1: Biden administration could slightly change that definition of who counts
Speaker 1: as being in the business of selling guns and thus
Speaker 1: require more background checks. The administration has already pushed to
Speaker 1: crack down on ghost guns, homemade weapons that typically lack
Speaker 1: serial numbers, by requiring purchasers to undergo background check. So
Speaker 1: there are some things that Biden administration can do, but
Speaker 1: most of them are really at the margins. What about states,
Speaker 1: Because there's been a flurry of gun legislation, and I
Speaker 1: was surprised to read that in two thousand three, Vermont
Speaker 1: was the only state that allowed residents to carry handguns
Speaker 1: in public without a permit. Since then, legislatures in half
Speaker 1: the states have removed permitting requirements, mostly in evolving concealed firearms.
Speaker 1: So is the battleground in the states. Well, the battleground
Speaker 1: over gun reform has been in the states for the
Speaker 1: last ten years or so. Ever, since the federal government
Speaker 1: failed to act after New Town gun safety reform, advocates
Speaker 1: have turned their attention to the states to try to
Speaker 1: get legislation to close up some of the loopholes in
Speaker 1: federal law at the state level. So states like California
Speaker 1: and New York, for instance, have passed legislation over the
Speaker 1: last ten years, doing things like making universal background checks
Speaker 1: the norm in those states, restricting high capacity magazines, or
Speaker 1: restricting military style rifles. We have seen states take up
Speaker 1: the mantle of gun reform, and I think we're likely
Speaker 1: to see that continue. I know that California lawmakers are
Speaker 1: pondering a set of new pieces of gun legislation, new
Speaker 1: gun reforms that would make it easier, for instance, to
Speaker 1: sue gunmakers when their firearms are used to commit now murder.
Speaker 1: And we will see some states, I think, seek to
Speaker 1: strengthen their gun laws in the wake of this mass shooting.
Speaker 1: The difficult thing at the state level is that you
Speaker 1: have a large number of states that are very strongly
Speaker 1: pro gun and if anything, they're likely to loosen their laws,
Speaker 1: as we've seen happen in state after state. I want
Speaker 1: to go back for a moment to the idea of
Speaker 1: raising the age to buy a gun from eighteen to
Speaker 1: twenty one. Republican Congressman Jim Jordan's has said that that's unconstitutional.
Speaker 1: It's not clear that it would be unconstitutional to raise
Speaker 1: the gun age. Of course, the Supreme Court hasn't said
Speaker 1: anything about that. There was recently a case out of
Speaker 1: the Ninth Circuit that did say that California's effort to
Speaker 1: raise the gun age for purchasing various kinds of semi
Speaker 1: automatic center fire rifles was unconstitutional, and the Ninth Circuit
Speaker 1: judge argued that this was unconstitutional because the founders relied
Speaker 1: on eighteen year olds to be members of the militia
Speaker 1: and so trusted them with firearms. And nonetheless think there
Speaker 1: are good reasons to raise the gun age, and I've
Speaker 1: argued for doing so in the past. Part of the
Speaker 1: problem with arming people who are between the ages of
Speaker 1: eighteen and twenty is that brain development is not that
Speaker 1: advance when it comes to issues like understanding long term
Speaker 1: consequences of behavior, resisting impulsive behavior, and that part of
Speaker 1: the brain, scientists of popos isn't fully developed until about
Speaker 1: the age of twenty five. The mere fact that we
Speaker 1: allow young people to have firearms in the military, which
Speaker 1: is a very strict command and control structure in which
Speaker 1: eighteen to twenty year olds have virtually no independent discretion
Speaker 1: over whether to use firearms or not, is not a
Speaker 1: particularly relevant example or analogy for how we should think
Speaker 1: about public policy more generally. Finally, um, do you think
Speaker 1: that this would be an easier road to, how you know,
Speaker 1: getting any kind of gun control legislation if not for
Speaker 1: the n r A. Certainly, the n r A is
Speaker 1: an important voice in styming gun reform, but even without
Speaker 1: the n r A, we would likely still have a
Speaker 1: lot of single issue pro gun voters that would be
Speaker 1: sure to vote against any elected official who votes in
Speaker 1: favor of gun safety reform. We have to understand that
Speaker 1: the problem with getting gun safety reform adopted is not
Speaker 1: merely the n r A being a super powerful and
Speaker 1: influential organization, but also that there's a lot of voters
Speaker 1: out there who care about this issue, and elected officials,
Speaker 1: especially among Republicans, have really come to be scared of
Speaker 1: gun owners and the wrath they might take on any
Speaker 1: public official who supports gun safety reform. Thanks as always, Adam.
Speaker 1: That's Professor Adam Winkler of u c. L A Law School,
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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Speaker 1: Grosso and you're listening to Bloomberg