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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The Supreme Court's first case on the Second Amendment in

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Speaker 1: almost a decade petered out in a six to three ruling.

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Speaker 1: The Court dropped a clash over New York City handgun

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Speaker 1: transportation restrictions, saying the city had made the issues in

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Speaker 1: the case moot by changing the law to give residents

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Speaker 1: more freedom to travel with their weapons. Here's Justice Ruth

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Speaker 1: Bader Ginsburg at the oral arguments. The state says city

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Speaker 1: there shall not enforce the regulations. So what's left of

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Speaker 1: this case? The petitions have gotten all the relief that

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Speaker 1: they thought they can carry gun to a second home.

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Speaker 1: They can carry it to a fire um to a

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Speaker 1: practice range out of state. Joining me is noted Second

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Speaker 1: Amendment scholar Adam Winkler, a professor at u c l

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Speaker 1: A Law School. So, Adam, basically the Court took the

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Speaker 1: available exit ramp out of the case. Was that surprising

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Speaker 1: to any extent? Well, it was surprising because this was

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Speaker 1: the first big Second Amendment case the Court had taken

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Speaker 1: in a long time, since the two thousand and eight

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Speaker 1: and two thousand and ten decisions and d c versus

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Speaker 1: Heller and donalover, City of Chicago. It's been a long

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Speaker 1: time since the Court has waded into the Second Amendment,

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Speaker 1: and there's a lot of open questions, including whether bands

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Speaker 1: on assault weapons are allowed, whether states and cities can

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Speaker 1: really restrict concealed carry. So when the Court took this case,

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Speaker 1: everyone thought what they had great anticipation that this was

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Speaker 1: going to be a major ruling that would really reshape

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Speaker 1: Second Amendment jurisprudence. So to have that ultimately peter out

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Speaker 1: on an issue of muteness is itself surprising. Why did

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Speaker 1: the three most conservative justices, Samuel Alito, Clarence Thomas, and

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Speaker 1: Neil Gorsage still want to hear the case. Well, they

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Speaker 1: said that this case was not moved, that the underlying

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Speaker 1: challengers didn't receive everything that they really wanted, that the

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Speaker 1: new rules put in place by the city remain ambiguous

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Speaker 1: about what they allowed and what they don't allow, and

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Speaker 1: they thought that the case should go forward. Clearly though,

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Speaker 1: part of their motivation and what really comes through in

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Speaker 1: Justice Alito's dissenting opinion is the idea that the Court

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Speaker 1: needs to step in in their view to stop the

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Speaker 1: lower courts from misapplying the Heller case. And Justice Alito

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Speaker 1: suggested that the lower courts have mishandled the Heller case,

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Speaker 1: have misapplied the rules and basically upheld too many gun laws,

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Speaker 1: and Justice Alito wants the courts step back in. And

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Speaker 1: he was joined by Justice Gorsuch, and he was joined

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Speaker 1: in part by Justice Thomas and Justice Kavanaugh, who didn't

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Speaker 1: join Justice Alito's opinion. In his own concurring opinion, Justice

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Speaker 1: Kavanaugh said much of the same, that we need to

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Speaker 1: take a new Second Amendment case because the lower courts

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Speaker 1: have been misapplying the Heller case. So was it surprising

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Speaker 1: then that Kavanaugh, who may have been the fourth vote

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Speaker 1: to take the case, didn't align himself with the conservatives here? Well,

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Speaker 1: everyone was looking to see what Brett Kavanaugh would do.

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Speaker 1: This is Brett Kavanaugh's first Second Amendment case since joining

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Speaker 1: the Supreme Court. As a lower court judge on the

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Speaker 1: DC Circuit Court of Appeals, he had ruled in a

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Speaker 1: case called Heller. To appropriately, he had dissented in a

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Speaker 1: case that upheld a ban on military style assault rifles

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Speaker 1: and certain kinds of registration requirements. And in that opinion

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Speaker 1: he said that he thought that the courts were applying

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Speaker 1: the wrong standard. Virtually all the circuits have now started

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Speaker 1: to apply in Second Amendment cases is a two part

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Speaker 1: standard that asked whether the underlying activity is regulated as

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Speaker 1: a subject to a Second Amendment protection, and then, if so,

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Speaker 1: whether the government has sufficiently strong enough reasons to burden

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Speaker 1: that right. But Justice Kavanaugh has voiced his opinion that

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Speaker 1: that's the wrong way to think about the issues, that

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Speaker 1: we should only look to history and tradition for answers

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Speaker 1: on what is allowed by the Second Amendment. Do any

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Speaker 1: of the other justices on the Court have that same approach, Well,

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Speaker 1: we might expect that Justice Coursus might take a similar approach,

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Speaker 1: we might expect that Thomas would take a similar approach.

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Speaker 1: We're not quite sure about Justice Alito. And one of

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Speaker 1: the interesting things is that Justice Thomas did not join

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Speaker 1: one portion of Justice Alito's dissenting opinion, and it was

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Speaker 1: a portion where Justice Alito talked about the government's interest

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Speaker 1: in public safety and talked about things in the framework

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Speaker 1: of a kind of balancing of government interests against individual rights,

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Speaker 1: and it seemed like maybe Justice Thomas didn't want to

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Speaker 1: have anything to do with any discussion of standards of review.

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Speaker 1: It's all and just about what history and tradition and

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Speaker 1: what laws we had in to tell us what laws

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Speaker 1: we can have today. If the Court had actually taken

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Speaker 1: up the case and decided on the merits, do you

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Speaker 1: think that they would have thrown the law out. I

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Speaker 1: think most court watchers were pretty certain that New York's

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Speaker 1: rules were headed for disaster in the Supreme Court, which

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Speaker 1: is I think why gun safety advocates worked with the

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Speaker 1: City of New York Police Department and then ultimately with

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Speaker 1: the state legislature in New York to get this rule overturned,

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Speaker 1: and then a state law passed to say that the

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Speaker 1: New York City Police Department could not reinstate the rule.

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Speaker 1: As I mentioned that the Streme Court hasn't taken a

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Speaker 1: gun case in over ten years on a major Second

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Speaker 1: Amendment issue, everyone expected this to be a potential landmark.

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Speaker 1: New York's laws were the most restrictive in the nation,

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Speaker 1: not the kinds of laws you want to send up

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Speaker 1: for a landmark ruling at the Supreme Court. And yet

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Speaker 1: the law passed muster at the District Court and the

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Speaker 1: Second Circuit. That's right, the law did pass must earn

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Speaker 1: the lower court, and we've seen in most lower court

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Speaker 1: cases that gun control laws have done pretty well. And

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Speaker 1: this is part of the source of a claim that

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Speaker 1: Justice Alito makes in his dissenting opinion and Justice Thomas

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Speaker 1: has made previously that they believe the Second Amendment is

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Speaker 1: being treated like a second class right in some courts.

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Speaker 1: I think that's not quite right. I think what we

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Speaker 1: see is that in general, courts have always been deferential

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Speaker 1: when it comes to gun control laws, in part because

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Speaker 1: courts don't want to be second guessing these vital measures

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Speaker 1: that are necessary for public safety. But I think the

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Speaker 1: Supreme Court seems to have at least before justices who

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Speaker 1: are itching to step into the fray and maybe do

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Speaker 1: just that. Justice Alito at one point said that you

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Speaker 1: can't allow people to be basically messing with our docket.

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Speaker 1: Is that what New York really did here they change

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Speaker 1: the law so that it wouldn't get reviewed by the

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Speaker 1: Supreme Court. Well, New York did change its law, and

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Speaker 1: Justice Alito frames it in this most negative way of

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Speaker 1: trying to also the docket of the Supreme Court. But

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Speaker 1: it's also the case that we want governments to be

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Speaker 1: responsive and that if the government thinks that it's going

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Speaker 1: to lose a constitutional case, a case where it's charged

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Speaker 1: with violating constitutional rights. Do we want that government entity

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Speaker 1: to hold onto that position, come hook or by crook,

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Speaker 1: even when they know that the law is likely to

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Speaker 1: be struck down by the courts. Or do we want

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Speaker 1: lawmakers to take the initiative and say, you know what,

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Speaker 1: we're going to repeal bad laws and that we're going

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Speaker 1: to do what we think is right for the people.

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Speaker 1: And I think that's what the city and state of

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Speaker 1: New York did, and that's kind of what we want

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Speaker 1: government to be doing when faced with laws that they've

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Speaker 1: passed that really are constitutionally questionable. Let's go back a

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Speaker 1: little into history and tell us about the Heller case,

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Speaker 1: what it decided and what it left open. Well. One

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Speaker 1: reason why this New York gun case was so highly

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Speaker 1: anticipated was because the court in the Heller case back

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Speaker 1: in two thousand and eight left so many questions unanswered.

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Speaker 1: Court said you have a right to have a handgun

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Speaker 1: in your home for personal protection, but left virtually all

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Speaker 1: of the rest of the important Second Amendment questions, such

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Speaker 1: as what kind of guns you can have, where can

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Speaker 1: you take your guns, what kinds of limits can be

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Speaker 1: posed on people who want to carry guns. All those

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Speaker 1: questions were left unanswered. Indeed, the Court never even identified

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Speaker 1: a standard of review to apply in future Second Amendment cases,

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Speaker 1: causing quite a bit of consternation and confusion in the

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Speaker 1: lower courts. So I think what's really an issue in

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Speaker 1: the New York gun case was not really somewhere to

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Speaker 1: New York's gun laws, but what the Court would say

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Speaker 1: in this case when they rule the merits of a

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Speaker 1: Second Amendment argument, about the standard of review that should apply,

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Speaker 1: and what kinds of laws are constitutionally permissible and what

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Speaker 1: kinds are not. Given the composition of the Court and

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Speaker 1: the two new Trump justices, seems likely that that court

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Speaker 1: would articulate a pretty broad and expansive view of the

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Speaker 1: Second Amendment. So now Justice Kavanaugh, in his concurring opinion,

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Speaker 1: suggested that there were other cases coming along that the

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Speaker 1: Court might take up. What are some of the cases

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Speaker 1: that the court could take up? Well, if Justice Alito

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Speaker 1: is right that the City and State of New York

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Speaker 1: manipulated the docket of the Supreme Court, we might know

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Speaker 1: that they didn't do a very effective job at it,

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Speaker 1: because if the goal was to stop the Supreme Court

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Speaker 1: from ruling on the Second Amendment. It won't be a

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Speaker 1: long lasting victory. The Supreme Court has a number of

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Speaker 1: cases where certain petitions have been filed in Second Amendment

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Speaker 1: cases raising issues from restriction on military style assault rifles

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Speaker 1: two restrictions on concealed carry. You need a fortune teller

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Speaker 1: to tell you which of the cases the Court is

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Speaker 1: going to take. But the Court has a number of them,

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Speaker 1: backed by very strong legal teams raising Second Amendment issues.

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Speaker 1: And it could very well be that this time next year, June,

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Speaker 1: we're talking about the major Second Amendment case that the

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Speaker 1: Supreme Court issues fundamentally reshaping gun laws in America. And

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Speaker 1: where is Justice Roberts in the spectrum of gun rights? Well,

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Speaker 1: the great mystery of the Second Amendment these days is

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Speaker 1: what will Roberts do? No one really knows. Chief Justice

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Speaker 1: Roberts joined the majority opinion in both the Heller and

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Speaker 1: McDonald cases, siding with gun rights and a broader interpretation

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Speaker 1: of the Second Amendment, but didn't write his own opinions.

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Speaker 1: Has never been someone who's spoken on this issue hasn't

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Speaker 1: written his own opinions in the sense from denials, assert

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Speaker 1: and other things like we've seen from Justices Thomas and

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Speaker 1: Alito and Gorsitch, So we don't really know where Chief

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Speaker 1: Justice Roberts is. I suspect that's the biggest question for

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Speaker 1: the justices too. There are four justices on the Court

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Speaker 1: who represents the liberal wing of the Court who'd love

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Speaker 1: to see the Court take a Second Amendment case if

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Speaker 1: they could count on Chief Justice Roberts to vote to

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Speaker 1: uphold the gun control law. Similarly, there's four on the

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Speaker 1: Court that represents the more conservative wing of the Court

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Speaker 1: that would love to see the Court expand Second Amendment right.

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Speaker 1: And the question for them is its Chief Justice John

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Speaker 1: Roberts on their side and likely to do that. Let's

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Speaker 1: talk a little bit about COVID nineteen and guns, because

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Speaker 1: in most states, guns stores are considered essential businesses. The

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Speaker 1: n r A is suing New York over the fact

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Speaker 1: that it doesn't have gun stores listed as essential. Is

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Speaker 1: that a tough argument to make? Well, I think it's

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Speaker 1: going to be interesting to see. I think as a

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Speaker 1: general matter of the courts are going to be broadly

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Speaker 1: deferential to lawmakers in how they handle coronavirus issues. And

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Speaker 1: if you're going to be closing things is that I

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Speaker 1: think most courts are going to be UM cognizant of

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Speaker 1: the public safety issues. But we've already seen so far

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Speaker 1: that that's certainly not going to be all courts. And

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Speaker 1: we've seen courts that have called into questions some executive actions.

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Speaker 1: And I think the closing all gun stores does raise

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Speaker 1: a significant constitutional questions. UM. How the court would rule

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Speaker 1: on them, I think remains to be seen. UM. But

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Speaker 1: if we recognize the having access to a firearm is

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Speaker 1: a fundamental constitutional right, um, and the kind of thing

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Speaker 1: that one might want to have in the time of crisis, UM,

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Speaker 1: then UM. I think that those orders closing the gun

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Speaker 1: stores at least raised some constitutional issues that courts will

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Speaker 1: give serious attention to. I was surprised that when the

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Speaker 1: n r A either threatened or filed suit against New Jersey,

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Speaker 1: that New Jersey back down. I don't think it's really

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Speaker 1: worth the fight, you know. I don't think it's a

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Speaker 1: real winner issue. You Know. The truth is, as you

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Speaker 1: do have a constitutional right, we don't want lawmakers to

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Speaker 1: be restricting your access to constitutional rights if they don't

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Speaker 1: have to. Now, maybe that the coronavirus is one of

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Speaker 1: those things that means the government really does have to

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Speaker 1: limit access to gun stores. But when people go out

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Speaker 1: and they see a lot of other kinds of stores

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Speaker 1: that are open, hardware stores and things like that, they

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Speaker 1: start to wonder, well, uh, certainly protecting my life as

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Speaker 1: certainly as essential as getting a new knob from my door.

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Speaker 1: So I don't know. I think that those laws are

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Speaker 1: they can be hard to defend, given that there are

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Speaker 1: so many exceptions already for the kinds of things that

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Speaker 1: people deemed to be essential. What is likely to be

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Speaker 1: the first issue that the court takes. I think there's

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Speaker 1: several major issues that people are concerned about. They're concerned

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Speaker 1: about the concealed care issue that could really change gun

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Speaker 1: laws in places like New York and Los Angeles where

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Speaker 1: currently very very few people carry guns on the streets.

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Speaker 1: But if the Supreme Court says that they must have

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Speaker 1: shall issue permitting the kind of permitting regimes that are

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Speaker 1: common in the South, for instance, UM and some other

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Speaker 1: parts of the country, UM, then many, many more people

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Speaker 1: will have guns on the streets. And so that's a

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Speaker 1: big issue restrictions of different kinds of weapons. The gun

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Speaker 1: safety reform movement has made a big push to try

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Speaker 1: to restrict high capacity magazines. The Supreme Court steps in

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Speaker 1: and says that you can't regulate high capacity magazines, that

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Speaker 1: they're guns that are protected by the Second Amendment or

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Speaker 1: gun accessories protected by the Second Amendment. And then that

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Speaker 1: would be a big issue. And then there's the sort

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Speaker 1: of larger question about what is the standard of review

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Speaker 1: that applies to gun control more generally. Um, the Court

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Speaker 1: still hasn't made that clear, and there are clearly several

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Speaker 1: justices who are not happy with the two part test

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Speaker 1: that the lower courts have been applying. Um, what would

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Speaker 1: the court do there? Does the Court apply a standard

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Speaker 1: of review that makes it harder for many future gun

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Speaker 1: control laws to survive judicial scrutiny? Those are the big questions.

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Speaker 1: Thanks so much for being on Bloomberg Law. Adam. That's

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Speaker 1: Adam Winkler, Professor at u c l A Law School.

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Speaker 1: A note. Michael Bloomberg, the founder and majority owner of

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Speaker 1: Bloomberg LP, the parent company of Bloomberg Radio, is a

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Speaker 1: donor to groups that support gun control, including every Town

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Speaker 1: for Gun Safety. Thanks for listening to the Bloomberg Law podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on bloomberg dot Com Slash Podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg