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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: In a major expansion of gun rights after a series

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Speaker 1: of mass shootings, the Supreme Court rule for the first

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Speaker 1: time that the Second Amendment gives Americans the right to

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Speaker 1: carry handguns in public, a landmark ruling striking down a

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Speaker 1: century old New York law that required people to show

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Speaker 1: a special need to carry a concealed handgun. As in

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Speaker 1: the abortion decision. The Court was divided six to three

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Speaker 1: down ideological lines, with the conservative justices in the majority

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Speaker 1: and the liberal justices in the minority. New York Governor

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Speaker 1: Kathy Hogel called the decision, which looks to the history

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Speaker 1: of the seventeen and eighteen hundreds, reckless and reprehensible. This

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Speaker 1: is not a new law. This has been the law

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Speaker 1: in the state of New York since the early nineteen hundreds.

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Speaker 1: That is what's so appalling that that is not far

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Speaker 1: back enough in history for them. New York City Mayor

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Speaker 1: Eric Adams warned about violence in the streets. Will not

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Speaker 1: allow our city to live in fear that everyone around

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Speaker 1: us is armed and that any altercation could evolve into

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Speaker 1: a shootout. Joining me, a Second Amendment law expert Adam Winkler,

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Speaker 1: a professor at u c l A Law School. Adam

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Speaker 1: liked the abortion decision. We were expecting this decision. Well.

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Speaker 1: I think the Court's ruling is even broader than many

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Speaker 1: people expected. That the Court not only strikes down New

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Speaker 1: York's made issue permiting, but articulates a new test for

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Speaker 1: all Second Amendment challenges that will be used to calling

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Speaker 1: the question a wide variety of gun laws, including some

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Speaker 1: key provisions of the Senate gun bill. Justice Thomas, who

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Speaker 1: wrote the majority opinion, said, quote, only if a firearm

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Speaker 1: regulation is consistent with this nation's historical tradition, may a

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Speaker 1: court include that the individual's conduct falls outside the Second

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Speaker 1: Amendments unqualified command? So what's the framework for judges? What

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Speaker 1: did the founders think? I think what the courts suggest

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Speaker 1: is that future courts must look to historical patterns of

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Speaker 1: gun regulation, and only those gun regulations that have historical

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Speaker 1: anti sass in the seventeen and eighteen hundreds are constitutionally permissible.

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Speaker 1: This really calls into question a wide variety of gun laws.

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Speaker 1: For instance, red flag laws have no precedence in the

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Speaker 1: seventeen and eighteen hundreds. We didn't have any such thing

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Speaker 1: as a red flag law. Also, this opinion calls into

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Speaker 1: question restrictions on domestic violence misdemeanors being prohibited from possessing firearms,

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Speaker 1: another subject of the Senate Gun Bill. Of course, in

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Speaker 1: the seventeen and eighteen hundreds, there wasn't such a thing

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Speaker 1: as a domestic violence misdemeanor, much less a prohibition on

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Speaker 1: those people possessing firearms. So I think this opinion, by

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Speaker 1: focusing on history and tradition, saddles lawmakers and prevents them

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Speaker 1: from attempting innovative, novel approaches to solving the public safety

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Speaker 1: problem of gun New York's governor pointed out that this

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Speaker 1: is a century old law and asked why that wasn't

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Speaker 1: old enough for the Supreme Court. Well, the Court says,

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Speaker 1: we're going to look to history and tradition, but really

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Speaker 1: picks and chooses which history matters. The Court dismisses old

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Speaker 1: English common law as being too old and too ancient

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Speaker 1: to tell us much about the Second Amendment. The Court

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Speaker 1: also dismisses any laws that were adopted after the late

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Speaker 1: eighteen hundreds, saying that those laws are too young and

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Speaker 1: can't reflect the original understanding of the Second Amendment, and

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Speaker 1: when the Court finds laws in the special period of

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Speaker 1: the seventeen and eighteen hundreds that restricted concealed carry, the

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Speaker 1: Court says that those laws were just outliers and shouldn't

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Speaker 1: be taken to be the general attitude about guns and

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Speaker 1: gun regulation. Indeed, the Court says that shall issue permitting

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Speaker 1: regimes are constitutionally permissible, but we didn't have shall issue

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Speaker 1: permitting regimes at all in the seventeen and eighteen hundreds.

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Speaker 1: So the Court says, let's do history and tradition, but

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Speaker 1: really picks and chooses the history that it wants and

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Speaker 1: rejects the history that is inconvenient. In a concurring opinion,

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Speaker 1: which the Chief Justice joined, in Justice Brett Kavanaugh said

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Speaker 1: the ruling doesn't bar states from imposing licensing requirements for

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Speaker 1: carrying handguns for self defense, such as fingerprinting, background checks,

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Speaker 1: mental health records checks, and training in firearms handling and

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Speaker 1: in laws regarding the use of force. Do you think

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Speaker 1: that all the justices and the majority agree with that? Well,

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Speaker 1: perhaps not, but I don't think there's much in Kavanaugh's

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Speaker 1: concurrence that changes the majority opinion. The majority also says

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Speaker 1: that you can have shall issue permitting in a footnote,

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Speaker 1: and the court also says that looking to history and

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Speaker 1: aisition does not completely disabled government from regulating guns. It

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Speaker 1: just requires them to use historical patterns of regulating guns today.

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Speaker 1: So I think that Kavanaugh's concurrence might suggest that he

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Speaker 1: and the Chief Justice are less likely to go along

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Speaker 1: with some of the broader implications of this ruling, but

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Speaker 1: nonetheless they adopt similarly that same history and tradition approach

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Speaker 1: to analyzing gun issues, which really poses a big problem

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Speaker 1: for the gun safety agenda going forward. The governor warned

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Speaker 1: New Yorkers not to misinterpret the ruling and said that

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Speaker 1: gun owners are not automatically a concealed carry permit owner,

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Speaker 1: and she's going to call a special session to get

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Speaker 1: the legislature to pass something. Do you have any idea

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Speaker 1: what that would look like. I imagine that New York

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Speaker 1: will pass concealed carry law that is nonetheless difficult to satisfy.

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Speaker 1: States often require over a thousand hours of training to

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Speaker 1: do things like apply pesticides or to apply chemicals to

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Speaker 1: someone's hair as a cosmetologist, I imagine New York will

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Speaker 1: probably adopt onerous requirements on a painting a concealed carey permit,

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Speaker 1: and will also provide guidance for localities to broadly define

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Speaker 1: sensitive places where guns cannot be carried. Did Justice Thomas

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Speaker 1: provide guidance for what constitutes a sensitive area? No, not really.

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Speaker 1: The Court says that the government can restrict guns from

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Speaker 1: sensitive places, but doesn't provide a lot of guidance as

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Speaker 1: to what counts as a sensitive place. The Court points

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Speaker 1: to the fact that in the eighteen hundreds there were

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Speaker 1: a few examples of sensitive places regulations, such as restrictions

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Speaker 1: on guns in legislative assemblies, in court houses, and in

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Speaker 1: polling places. The Court says that similar kinds of sensitive

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Speaker 1: places can be barred today, but the Court does not

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Speaker 1: make clear what about those earlier places that were being

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Speaker 1: sensitive that can be carried forward? So we're just not sure.

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Speaker 1: Is it that a large people a number of people

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Speaker 1: gather there, Is that that there's government functions going on.

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Speaker 1: Is it um that government is already providing some security

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Speaker 1: in those spaces. These questions really remain to be seen,

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Speaker 1: and I think we're going to see a lot of

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Speaker 1: litigation in the coming years over what counts as a

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Speaker 1: sensitive place where guns can be prohibited. Eight states I

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Speaker 1: believe it is have the most ringent may issue laws

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Speaker 1: like New York. Does this opinion mean that all those

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Speaker 1: laws are unconstitutional and have to be rewritten and passed

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Speaker 1: into law again? Almost certainly so. This opinion is strictly

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Speaker 1: limited to New York's concealed carey regime, but there's several

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Speaker 1: other states like California and Massachusetts in Connecticut that have

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Speaker 1: very similar laws. Those laws, of course, are going to

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Speaker 1: be challenged now, and based on the strength of this ruling,

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Speaker 1: are was certain to be declared unconstitutional. The majority opinion

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Speaker 1: feels like, you know, the worst nightmare of people who

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Speaker 1: don't believe in textualism the way Justice Thomas wrote this opinion.

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Speaker 1: What's your take on, you know, the textualists taking over

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Speaker 1: the court? Well, I think the real issue is the

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Speaker 1: historicists who look to history and tradition as guiding constitutional stars.

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Speaker 1: And I think that there are principal ways to do

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Speaker 1: a history and tradition analysis. But this opinion really struggles

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Speaker 1: with it um and the court dismisses some laws as

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Speaker 1: being too old, other laws as being too young, other

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Speaker 1: laws as being too much out too much like outliers

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Speaker 1: to reflect anything, and As a result, anyone who wants

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Speaker 1: to criticize a history based approach to constitutional law can

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Speaker 1: use this opinion as a perfect example of why history

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Speaker 1: and tradition does not provide the kind of restraints on

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Speaker 1: judges that textualists often suggest. The dissent, written by Justice Prior,

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Speaker 1: joined by Justice Soda, Mayor, and Kagan, begins with a

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Speaker 1: long discussion of rising gun violence and Justice Brier says,

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Speaker 1: I believe the Second Amendment allows states to take account

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Speaker 1: of the serious problems posed by gun violence that I

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Speaker 1: have just described. Do you agree with with his interpretation

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Speaker 1: that there's room there? Well? I think that the room

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Speaker 1: available for lawmakers to respond to gun violence has been

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Speaker 1: significantly limited by this opinion today. UM. Sure, lawmakers can

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Speaker 1: do other things that don't restrict guns, such as community

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Speaker 1: intervention programs like operations cease fire and funding to harden

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Speaker 1: schools or provide more access to mental health treatment. Um

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Speaker 1: But I think when it comes to regulating guns it themselves,

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Speaker 1: this opinion really takes a lot off the table. The

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Speaker 1: Court was reluctant to take up Second Amendment cases for

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Speaker 1: many years. Did that whole calculus change with the addition

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Speaker 1: of Amy Coney Barrett to the bench. Yes, I think

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Speaker 1: that's fair to say that the Trump appointees to the

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Speaker 1: Supreme Court have transformed the court and transformed the Court's

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Speaker 1: approach to the Second Amendment. There have been many cases,

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Speaker 1: including cases on concealed carry restrictions, brought to the Supreme

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Speaker 1: Court over the last fourteen years, and the Court consistently

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Speaker 1: turned those cases aside. But once Barrett joined the court,

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Speaker 1: those cases came before the Court quickly, and the Court

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Speaker 1: quickly ruled that concealed carry restrictions are unconstitutional. So I

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Speaker 1: do think that the appointment of those three justices to

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Speaker 1: the Supreme Court will have a profound effect on constitutional

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Speaker 1: law generally and on the Second Amendment in particular. How

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Speaker 1: does this decision affect gun control laws in the future. Well,

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Speaker 1: I think that the room available for lawmakers to respond

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Speaker 1: to gun violence has been significantly limited by this opinion. Sure,

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Speaker 1: lawmakers can do other things that don't restrict guns, such

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Speaker 1: as community intervention programs like operations cease fire and funding

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Speaker 1: to harden schools, or provide more access to mental health treatment.

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Speaker 1: But I think when it comes to regulating guns it themselves,

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Speaker 1: dis opinion really takes a lot off the table. Thank

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Speaker 1: you so much. Adam. That's Professor Adam Winkler of u

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Speaker 1: c l A Law School. Coming up next, we're going

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Speaker 1: to continue our discussion of this landmark Second Amendment case

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Speaker 1: and look at some of the repercussions for gun control laws.

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Speaker 1: I'm June Grosso. When you're listening to Bloomberg, New York's

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Speaker 1: Democratic leaders say they're determined to preserve as many restrictions

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Speaker 1: on carrying a handgun in public as possible. After the

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Speaker 1: Supreme Court struck down the state's law that required people

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Speaker 1: to show a special need to get a permit to

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Speaker 1: carry a concealed handgun, New York Governor Kathy hokel vowed

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Speaker 1: to call the legislature back for a special session to

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Speaker 1: pass new gun rules. They're not powerless in this situation.

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Speaker 1: We're not going to seed our rights that easily, despite

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Speaker 1: the best efforts of the politicized Supreme Court in the

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Speaker 1: United States of America. My guest is Joseph Bloker, a

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Speaker 1: professor at Duke Law School and co director of the

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Speaker 1: Duke's Center for Firearms Law. Was the majority opinion here,

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Speaker 1: Basically an unqualified license to carry a handgun in public

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Speaker 1: in this country, it's something less than an unqualified license.

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Speaker 1: And in fact, the majority opinion and a really important

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Speaker 1: occurring opinion by Justice Kavanaught, Chief Justice Roberts emphasized that

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Speaker 1: even after this opinion, states, localities, federal governments all still

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Speaker 1: have legal tools to restrict guns, including the carrying of

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Speaker 1: guns in public places. But what the Court did do

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Speaker 1: was strike down New York's regime for issuing permits to

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Speaker 1: conceal carry handgun, and it adopted a brand new way

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Speaker 1: of evaluating the constitutionality of gun laws going forward. And

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Speaker 1: so I think we really are going to see a

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Speaker 1: major see change in the way the Second Amendment cases

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Speaker 1: get litigated. Tell us about the framework the court laid

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Speaker 1: out for judges to determine whether a restriction violates the

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Speaker 1: Second Amendment. I think the first notable thing is what

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Speaker 1: the court rejected. So Justice Thomas, writing for a six

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Speaker 1: justice majority, said that we don't evaluate the constitutionality of

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Speaker 1: gun laws based on whether they protect important interests, like,

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Speaker 1: for example, whether those laws save lives, protect people from

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Speaker 1: gun threats, and so on. Instead, we look to whether

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Speaker 1: those laws are consistent with history and tradition, and that

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Speaker 1: could be a tricky thing. Because a lot of the

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Speaker 1: gun laws that we have on the books today, of course,

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Speaker 1: we passed in response to threats that, at least in

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Speaker 1: their current form, the framers couldn't have imagined, right, things

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Speaker 1: like guns on airplanes, guns being possessed by, you know,

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Speaker 1: people convicted of domestic violence crimes which weren't even prosecuted

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Speaker 1: as crimes in late seventeen hundreds. That opens up the

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Speaker 1: door to a whole lot of analogical reasoning trying to

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Speaker 1: figure out like whether restriction on guns and say times

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Speaker 1: square on New Year's Eve is the same as the

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Speaker 1: thirty eight English laws that basically prohibited guns affairs and markets.

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Speaker 1: That's how courts are going to be evaluating gun laws

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Speaker 1: going forward, and it's a totally different set of evidence.

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Speaker 1: There has a lot of citations to historical materials instead

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Speaker 1: of citations to, for example, contemporary empirical evidence about whether

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Speaker 1: and how particular laws work. Let's say there's a law

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Speaker 1: banning a K forty seven's, how does it judge determine

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Speaker 1: if that comports with history? How do they even make

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Speaker 1: that assessment? So this is where I think the majority

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Speaker 1: which is, well, how do you do this kind of

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Speaker 1: analogical reasoning across centuries and given the massive changes in

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Speaker 1: technology firearms during that time. Justice Bryant his descending opinion

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Speaker 1: really pushes the majority on this, like, what does it

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Speaker 1: mean to decide that a contemporary gun law stay restricting

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Speaker 1: high capacity magazines? It's relevantly some or to a gun

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Speaker 1: law that existed in the late seventeen hundreds when the

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Speaker 1: kinds of magazines we have today just didn't exist. And

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Speaker 1: the Majority doesn't give a whole lot of guidance. You know,

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Speaker 1: they say, well, you can look to how and why

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Speaker 1: a person's ability to carry a gun as being restricted.

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Speaker 1: But that seems to me to kind of just be

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Speaker 1: the same thing as asking the type of means and

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Speaker 1: ends scrutiny, That is, you know, why is this law

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Speaker 1: passed in the first place, and how is it working

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Speaker 1: that the old framework asked the framework that the Court rejects.

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Speaker 1: It's just kind of laundering it through a historical analysis,

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Speaker 1: And frankly, I think that's going to open the door

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Speaker 1: to a lot of challenges, even to laws that so

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Speaker 1: far have been upheld. So it's not only that this

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Speaker 1: law was struck down, but that a lot of other

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Speaker 1: laws whose constitutionality we've taken for granted are going to

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Speaker 1: be challenged again. New York's Governor, Kathy Hokel said she's

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Speaker 1: going to call a special session and they're going to

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Speaker 1: change the permitting process. We're going to create a higher

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Speaker 1: threshold for those who want to receive a concealed carry permit.

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Speaker 1: We're going to rick whired specific firearms training. So it

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Speaker 1: sounds like it's still going to be tough to get

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Speaker 1: a permit for concealed carry in New York. It'll be

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Speaker 1: a different set of requirements that one has to satisfy

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Speaker 1: in order to get a permit to carry a gun

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Speaker 1: in public. Current regime is you have to convince the

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Speaker 1: licensing authority that you had a sufficiently good cause, usually

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Speaker 1: meaning like a heightened need for self defense, not necessarily

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Speaker 1: that you're proficient, or that you don't present a risk

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Speaker 1: to others or whatever. And what the court struck down

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Speaker 1: was that kind of discretionary licensing system. Now, New York

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Speaker 1: is not the only state that has laws like that,

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Speaker 1: depending on how you account in, another six to eight states,

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Speaker 1: including California, have similar laws. I think what we're going

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Speaker 1: to see, and I think the governor's comments suggest is

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Speaker 1: a move by states that have these discretionary regimes, what

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Speaker 1: are often called may issue regimes, to kind of recast

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Speaker 1: their laws as what are called shall issue. And in

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Speaker 1: those regimes, which the Supreme Court specifically said are perfectly constitutional,

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Speaker 1: the criterion for getting a permit tend to be more objective.

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Speaker 1: Now there's still criterion, and some of those states that

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Speaker 1: you can be denied a permit if you're shown to

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Speaker 1: be a risk to others, for example, or if you

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Speaker 1: are shown not to have good moral characters. So there's

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Speaker 1: still some discretion in those regimes. But I think what

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Speaker 1: we're gonna see is some states trying to move out

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Speaker 1: from the may issue category into the shall issue category.

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Speaker 1: And there's some variants in what the shall issue regimes

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Speaker 1: actually do and don't permit. So in those eight states

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Speaker 1: or so, are their laws now unconstitutional? May have to

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Speaker 1: immediately go into session and draft new laws or can

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Speaker 1: those laws stay on the books until they're challenged. I

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Speaker 1: suspect that lawmakers in all those states have been bracing

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Speaker 1: for the kind of decision that we got. That's been

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Speaker 1: widely expected that new York's law and its current form

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Speaker 1: will be struck down. Some states might try to argue

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Speaker 1: that their regimes, although they are technically may issue regimes

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Speaker 1: or good cause regimes, actually function differently than New York's.

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Speaker 1: Maybe they're more forgiving, or maybe they spell out what

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Speaker 1: counts is to could cause a little more specifically than

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Speaker 1: New York does. So they might try to distinguish themselves.

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Speaker 1: But I do think we're going to see, just broadly,

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Speaker 1: a change from what's known as good cause or probable

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Speaker 1: cause into the more sort of shall issue category. I

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Speaker 1: also think we're going to see in New York and

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Speaker 1: elsewhere more of an emphasis on locational restrictions. That is

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Speaker 1: to say, well, if we can't put some these sort

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Speaker 1: of front end restrictions on who can carry a gun

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Speaker 1: in public, and then we're gonna pay more attention to

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Speaker 1: the places where people are carrying guns in public, and

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Speaker 1: so maybe designating more schools and government building and polling places,

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Speaker 1: legislative assemblies as what are called under Second Amendment doctrine,

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Speaker 1: sensitive places where guns can be prohibited. So the mayor said,

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Speaker 1: we're not going to allow New York to become the

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Speaker 1: Wild West, and he talked about expanding the list of

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Speaker 1: sensitive locations, Justice Thomas said, you know, you can't have

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Speaker 1: all of Manhattan. Could you have, for example, the subways.

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Speaker 1: I mean, these are really all the questions that are

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Speaker 1: going to end up being litigated. And you know, unfortunately

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Speaker 1: the Court doesn't give us a whole lot of guidance

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Speaker 1: on what makes one place sensitive or not, or what

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Speaker 1: kinds of places count as sensitive or not, so something

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Speaker 1: like subway, mass transit generally, Um, I think the argument

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Speaker 1: would be strong therese are places where you know, risk

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Speaker 1: is heightened, where people are packed together, you know, stray

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Speaker 1: shots are more likely to hit other people. On the

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Speaker 1: other side, gun rights advocates will say those are dangerous places.

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Speaker 1: That's precisely why we need guns. And you know how

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Speaker 1: a court resolves that. You know, I think we're gonna

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Speaker 1: have to sort of wait and see. I would suspect

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Speaker 1: that school's, government buildings, probably mass transit, other places will

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Speaker 1: be found to be sensitive places in which guns can

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Speaker 1: be prohibited. But the basis for that, and it's still

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Speaker 1: a little bit of scure Justice Thomas's decision. Is it

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Speaker 1: all based on a textual interpretation of the Second Amendment.

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Speaker 1: I would say it is based on text and history.

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Speaker 1: I mean, the text of the amendment is pretty short,

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Speaker 1: twenty seven words. It doesn't say anything directly about whether

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Speaker 1: you can require a person to show good cause before

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Speaker 1: carrying a gun in public. Gun rights advocates focus a

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Speaker 1: lot on the word there. They will, look, this is

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Speaker 1: just about bearing guns. The previous decisions are about keeping

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Speaker 1: guns in your home. Now we're talking about bearing that

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Speaker 1: it was carrying them in public. And maybe the text

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Speaker 1: can get you some part of the way there, but

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Speaker 1: it doesn't necessarily say that that right to bear is

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Speaker 1: free from all kinds of restrictions. And actually, the majority

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Speaker 1: of Justice Thomas's opinion is dedicated to distinguishing various forms

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Speaker 1: of historical regulation, which he says are not the same

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Speaker 1: as New York, because there are, if you look back

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Speaker 1: across the centuries, many many, many examples of restrictions of

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Speaker 1: guns in public places, which New York and Aniki supporting

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Speaker 1: them said, Look, we're just trying to do the same

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Speaker 1: thing that people have done historically and traditionally, and this

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Speaker 1: law should be a pel on that base. In his descent,

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Speaker 1: Justice Prior says the Second Amendment allows states to take

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Speaker 1: into account the serious problems caused by gun violence. Certainly,

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Speaker 1: constitutional doctrine can take into account social harms and the

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Speaker 1: government longstanding authority to protect public safety. We see that

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Speaker 1: not just the Second Amendment doctrine, but another area is

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Speaker 1: a doctrine as well. But the tricky thing is just,

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Speaker 1: you know, how does the rules account for that? And

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Speaker 1: up until now, u until the spinning came down, the

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Speaker 1: way that courts were evaluating the constitutionality of gun laws

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Speaker 1: did incorporate consideration of, well, what is the government trying

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Speaker 1: to do here, usually trying to save lives, trying to

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Speaker 1: prevent people from being harmed by guns physically or otherwise,

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Speaker 1: And then well, how well is the law doing that job.

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Speaker 1: That's been the sort of traditional inquiry from the District

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Speaker 1: of Columbia versus Heller decision in two thousand and eight.

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Speaker 1: Up until now, that's the approach that has predominated in

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Speaker 1: the federal courts of appeals. What happens was that the

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Speaker 1: majority came in and said, what the federal courts of

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Speaker 1: appeals have decided to do is just wrong. Even though

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Speaker 1: the federal courts of appeal have gotten there unanimously, that's

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Speaker 1: not the way that this should be done. Instead, we're

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Speaker 1: just going to look to history for our lesson now. History,

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Speaker 1: of course has plenty of examples of governments regulating guns

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Speaker 1: to keep people safe, reserve the public peace. But again,

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Speaker 1: this is just where it gets really tricky to know

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Speaker 1: going forward what analogies judges are going to accept. Like,

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Speaker 1: is it an enough that you know the medieval English

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Speaker 1: law allows you to restrict weapons and fairs and markets.

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Speaker 1: Does that support a restriction on let's say, guns on

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Speaker 1: school grounds or in Times Square on New Year's Eve?

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Speaker 1: But that's where all the action is going to happen.

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Speaker 1: Thanks for being on the show, Joseph. That's Professor Joseph

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Speaker 1: Bloker of Duke Law School, co director of the Duke

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Speaker 1: Center for Firearms Law. A note. Michael Bloomberg, the founder

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Speaker 1: majority owner of Bloomberg LP, the parent of Bloomberg Radio,

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Speaker 1: is a donor to groups that support gun control, including

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Speaker 1: Every Town for Gun Safety. The group filed a brief

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Speaker 1: at the Supreme Court supporting the New York law. And

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Speaker 1: that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news by

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Speaker 1: listening to our Bloomberg Law Podcast. Wherever you get your

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Speaker 1: favorite podcasts. I'm June Grosso and you're listening to Bloomberg