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

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Speaker 2: The US Supreme Court says it will rule on Donald

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Speaker 2: Trump's bid for presidential immunity from criminal prosecution, taking up

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Speaker 2: a historic case that will determine whether the former president

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Speaker 2: can stand trial for twenty twenty election interference while campaigning

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Speaker 2: for a return to the White House. The move keeps

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Speaker 2: that election interference trial on hold, and the question is

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Speaker 2: whether there'll be time for the special counsel to bring

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Speaker 2: that case before the election. Joining me now is Bloomberg

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Speaker 2: Supreme Court reporter Greg's Store. Greg. Most people expected, and

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Speaker 2: include myself here, that the Justices would be turning away

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Speaker 2: Trump's case. It's taken an awful lot of time for

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Speaker 2: them to decide to take it.

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Speaker 3: It did take an awful lot of time for them

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Speaker 3: just to decide whether to take it. Trump filed his

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Speaker 3: request on February the twelfth, and Jack Smith, saying you know,

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Speaker 3: if you are going to hear arguments, do it quickly,

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Speaker 3: had suggested the court hear arguments in March. Instead, the

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Speaker 3: Court is going to hear arguments in April. So the

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Speaker 3: Court did drag its feet a little bit on this.

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Speaker 3: You know, I think people are going to be scrutinizing

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Speaker 3: this order trying to figure out exactly what it means.

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Speaker 2: Also, Jack Smith asked them to decide this issue months

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Speaker 2: ago and they turned him down. So my question is

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Speaker 2: why now when it will delay the trial.

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Speaker 3: Yes, it's hard to say, June, You're right, Jack Smith

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Speaker 3: asked the Court to do something very unusual back in January,

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Speaker 3: asking them to bypass the appeals court stage, and the

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Speaker 3: court the client Supreme Court declined to do that instead

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Speaker 3: let the appeals court go ahead. The appeals court ruled

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Speaker 3: against Donald Trump, saying he's not entitled to immunity. That

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Speaker 3: was a potential way for the Court to speed things up,

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Speaker 3: and now it has. The Court has apparently decided that

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Speaker 3: it needs to be the one to make the ultimate

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Speaker 3: decision here. It will of course have the benefit of

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Speaker 3: that appeals court decision, and perhaps the Court thanks that

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Speaker 3: will let it do a better job deciding this issue.

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Speaker 2: So this expedited schedule is it as expedited as you've

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Speaker 2: seen in past cases where the Supreme Court has done this.

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Speaker 3: No, Just to take one data point, if you look

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Speaker 3: at the Colorado ballot case, that the Court is going

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Speaker 3: to be deciding at some point. In that case, it

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Speaker 3: was thirty six days between when Donald Trump filed his

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Speaker 3: appeal and when the Supreme Court hurt arguments. In this case,

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Speaker 3: we're going to be talking more like seventy days or

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Speaker 3: even more than that, so about double that time. It

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Speaker 3: is not as expedited as the Colorado ballot case. And

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Speaker 3: then you can look at some other data points like

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Speaker 3: bushby Gore, which was much much faster. It is expedited,

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Speaker 3: certainly faster than the Supreme Court normally does things, but

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Speaker 3: not as fast as Jack Smith and some others would

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Speaker 3: have liked.

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Speaker 2: And Greg if they have oral arguments in April, we

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Speaker 2: know that they'll come down with a decision by June

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Speaker 2: because going on vacation. But I mean, is it likely

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Speaker 2: that in a case like this, with an unprecedented question,

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Speaker 2: that they're going to come down with a decision before June?

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Speaker 3: You know, I'd hate to predict that, just because every

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Speaker 3: time I try to predict when a Supreme Court ruling

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Speaker 3: is going to come out, I tend to be very,

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Speaker 3: very wrong. It's conceivable they know what's going on. They

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Speaker 3: understand that there is an election out there, so they'll

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Speaker 3: be aware of that, But as you said, this is

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Speaker 3: a very big constitutional issue and it's not the kind

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Speaker 3: of thing you would normally think the Supreme Court would

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Speaker 3: want to rush through. So I would certainly not be

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Speaker 3: surprised if it's not until June and even late June

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Speaker 3: before they issue their decision joining us now.

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Speaker 2: Is former federal prosecutor Robert Mintz a partner McCarter in English, Bob,

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Speaker 2: we have talked often about Trump's delay delay, the way

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Speaker 2: he handles not only his criminal cases but his civil cases,

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Speaker 2: and it appears to have worked here.

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Speaker 3: Yeah.

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Speaker 1: Sure, No, that's exactly right. And one in any defense

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Speaker 1: team's playbook is to try to delay. Here. We've seen

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Speaker 1: that done again and again by former President Trump's lawyers,

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Speaker 1: and it has special significance here given the fact that

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Speaker 1: there is an upcoming election, and so the decision here

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Speaker 1: as to whether and how quickly mister Trump could go

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Speaker 1: to trial is especially critical because it could not only

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Speaker 1: affect his election prospects, but should he be re elected,

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Speaker 1: it would actually affect the Department of Justice ability to

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Speaker 1: bring this case at all, since once he's president, he

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Speaker 1: could simply direct his Attorney general to dismiss the case

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Speaker 1: that was pending against him, So it has particular significance

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Speaker 1: due to the timing, because not only the election, but

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Speaker 1: also the possibility that as president, he could effectively end

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Speaker 1: this prosecution.

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Speaker 2: If the Supreme Court hands down a decision in June

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Speaker 2: and then decides that he doesn't have presidential immunity from prosecution,

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Speaker 2: is it possible for the DC case, which will be

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Speaker 2: on hold until then, to go forward before the election.

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Speaker 1: That will really be entirely up to the trial judge.

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Speaker 1: The district court judge in Diestrah of Columbia who's handling

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Speaker 1: this case, has shown every indication to get this case

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Speaker 1: moving as quickly as possible. Obviously, these appeals have taken

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Speaker 1: that out of her hands. But when the Supreme Court rules,

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Speaker 1: if they do decide to reject the immunity claim to

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Speaker 1: follow the lead of the appeals court which unanimously rejected

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Speaker 1: the immunity claim, I think we will see her bringing

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Speaker 1: the parties in and setting a very aggressive schedule to

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Speaker 1: bring this case to trial. She's going to suggest that

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Speaker 1: the defense team had plenty of time to prepare for

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Speaker 1: this trial even while the stay was pending, because this appeal,

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Speaker 1: they could have been working on their preparation for their defense,

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Speaker 1: and so I don't think she's going to give them

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Speaker 1: a lot of time once that decision comes down. Should

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Speaker 1: the Supreme Court agree with the Court of Appeals and

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Speaker 1: decide to reject the immunity claim, I think we'll see

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Speaker 1: that case go to trial fairly quickly.

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Speaker 2: This will be the Court's second sort of unprecedented Trump

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Speaker 2: showdown this term, and with their approval numbers so low,

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Speaker 2: I thought they might want to stay out of the

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Speaker 2: presidential election so as not to suffer any comparisons with

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Speaker 2: Bush v. Gore.

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Speaker 3: Well, Bushy Gore certainly dealt a blow to their reputation,

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Speaker 3: and it remains to be seen what's going to happen

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Speaker 3: with this case and the other Trump case. One can

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Speaker 3: certainly imagine a world where they decide one one way

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Speaker 3: and one the other way. Say that Donald Trump can

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Speaker 3: stay on the ballot but is not to immunity. I'm

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Speaker 3: not sure what that would do for their approval ratings.

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Speaker 3: And probably when they're looking at a case like this,

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Speaker 3: they are not thinking too hard about that. They are

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Speaker 3: thinking about the legal issues and really whether they have

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Speaker 3: to be the ones to decide this issue rather than

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Speaker 3: living it up to a federal appeals court, as they

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Speaker 3: apparently decided.

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Speaker 2: Bob, do you think that this was just too important

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Speaker 2: an issue for them to rely on a decision by

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Speaker 2: the DC Court. Even on that decision, I mean, most

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Speaker 2: people who have read it thought it was very thorough, excellent,

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Speaker 2: covered all the bases.

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Speaker 1: Yeah, it was. It was an extremely thorough decision. They

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Speaker 1: gave a lot of attention to every single argument that

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Speaker 1: was raised by the Trump defense team in order to

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Speaker 1: try to persuade them that there was immunity here. And

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Speaker 1: ultimately the decision, which was unanimous to democratically appointed judges

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Speaker 1: and one appointed by George HW. Bush, all agreed that

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Speaker 1: the immunity would not stand. That essentially, what that would

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Speaker 1: have done would have been to allow a president to

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Speaker 1: commit a crime while in office and forever be barred

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Speaker 1: from being prostituted for it. It was a pretty strong decision.

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Speaker 1: But it turns out that the Supreme Court has decided

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Speaker 1: to weigh in as well on this issue. It seems

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Speaker 1: like the issues have been pretty thoroughly briefed and argued before.

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Speaker 1: We'll see the same arguments I think again before the

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Speaker 1: Supreme Court. But for whatever reason, they decided, perhaps because

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Speaker 1: of the tremendous significance of this decision that the Supreme

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Speaker 1: Court should be the last word on this issue.

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Speaker 2: So, Greg, I have to ask you the Supreme Court reporters,

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Speaker 2: were they surprised when this came out this afternoon?

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Speaker 3: Late this afternoon, I wouldn't say surprised. This was certainly

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Speaker 3: one of the possibilities that you know, we'd all been

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Speaker 3: debating which were the most likely possibilities, But this was

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Speaker 3: certainly certainly in the mix. I think my only surprise

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Speaker 3: is that I thought that if they were going to

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Speaker 3: do this, they would have done it sooner. Since they

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Speaker 3: are expediting this case, I might have thought they would

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Speaker 3: have done that as soon as all the briefing was done,

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Speaker 3: instead of waiting the two weeks.

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Speaker 2: There is this Justice Department policy of not bringing these

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Speaker 2: kinds of trials involving politicians close to an election. Would

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Speaker 2: that affect whether this trial goes as well the election

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Speaker 2: interference trial?

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Speaker 1: Well, there is a general rule, in a general policy

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Speaker 1: in the Department of Justice that you don't want to

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Speaker 1: bring criminal charges close enough to election that it might

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Speaker 1: affect the outcome of the election. In other words, you

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Speaker 1: don't want to see an indictment returned within sixty days

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Speaker 1: of an election, because at that point a defendant, someone

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Speaker 1: who may be running for office, will simply be charged

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Speaker 1: with a crime and will not have had an opportunity

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Speaker 1: to defend themselves prior to the election. This is a

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Speaker 1: circumstance where all of those issues have resentually gone out

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Speaker 1: of the window, because this whole process has become still

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Speaker 1: politicized in the sense that it has always been a

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Speaker 1: race against the political clock because of the campaign, because

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Speaker 1: of the upcoming election. And one of the arguments that

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Speaker 1: the defense has runs raised here that the Trump defense

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Speaker 1: has argued over and over it again, is they tried

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Speaker 1: to turn this prosecute into effectively a campaign interference case,

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Speaker 1: saying that it was brought precisely for the purpose of

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Speaker 1: trying to prevent former President Trump of campaigning for the presidency.

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Speaker 1: They made that argument in front of the Manhattan Juigesh's

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Speaker 1: hearing the trial that begins, as you said, on March

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Speaker 1: twenty fifth, and in response to that, the judge simply

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Speaker 1: said that that was not a legal argument, and he

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Speaker 1: dismissed it. But as this gets closer and closer to

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Speaker 1: the election, you're going to see more and more arguments

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Speaker 1: being made that this case cannot be tried and can hear,

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Speaker 1: cannot be concluded in a way that will not ultimately

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Speaker 1: interfere with the election. It's an open question as to

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Speaker 1: what might happen if there is a conviction here and

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Speaker 1: if former President Trump is sentenced to jail.

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Speaker 2: Thank you so much, Robert Mins from maccarter and English

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Speaker 2: and our own Greg Store Bloomberg, New Supreme Court reporter,

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Speaker 2: coming up next on the Bloomberg Law Show. There were

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Speaker 2: oral arguments today and the justices seemed divided on whether

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Speaker 2: or not to strike down the federal ban on bump stocks.

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Speaker 2: That's coming up next on the Bloomberg Law Show. I'm

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Speaker 2: June Grosso and you're listening to Bloomberg.

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Speaker 4: The Aigens accelerator at the original bumpstock shot at six

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Speaker 4: hundred and fifty rounds a minute, and the devices at

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Speaker 4: issue here are represented to shoot between four hundred and

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Speaker 4: eight hundred rounds a minute, so right in that range

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Speaker 4: with the M sixteen the M fourteen.

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Speaker 2: Brian Fletcher, representing the Biden administration, explained to the Supreme

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Speaker 2: Court justices today that bump stocks allow a semi automatic

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Speaker 2: rifle to fire at speeds comparable to machine guns like

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Speaker 2: the M sixteen and M fourteen issued to the military.

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Speaker 2: The question was whether the justices would strike down a

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Speaker 2: ban on bump stocks that was imposed by the Trump

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Speaker 2: administration after the deadliest mass shooting in US history at

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Speaker 2: a Las Vegas concert in twenty seventeen. The liberal justices

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Speaker 2: like Elena Kagan seemed to think it was plausible that

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Speaker 2: the one hundred year old law aimed at banning machine

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Speaker 2: guns could cover bump stocks.

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Speaker 5: But the entire point of this device is that you

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Speaker 5: exert forward pressure and you have your finger on the trigger,

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Speaker 5: and then a torrent of bullets shoots out. So I

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Speaker 5: don't understand why it's any different different from pushing a

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Speaker 5: button and holding the trigger, pushing the barrel and holding

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Speaker 5: the trigger.

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Speaker 2: But conservative justices like Amy Cony Barrett and Neil Gorsich

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Speaker 2: well see me to acknowledge the government's argument, then question

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Speaker 2: whether banning bump stocks was up to the court.

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Speaker 6: Look, intuitively, I am entirely sympathetic to your argument. I mean,

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Speaker 6: and it seems like, yes, this is functioning like a

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Speaker 6: machine gun would. But you know, looking at that definition,

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Speaker 6: I think the question is why didn't Congress pass that litigation,

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Speaker 6: I mean that legislation to make this coverent more clearly,

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Speaker 6: I can.

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Speaker 7: Certainly understand why these items should be made illegal, but

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Speaker 7: we're dealing with the statue is enacted in the nineteen thirties,

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Speaker 7: and through many administrations, the government took the position that

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Speaker 7: these bump stocks are not machine guns.

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Speaker 2: Joining me is Andrew Willinger, Executive director of the Duke

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Speaker 2: Center for Firearms Law. Andrews start by giving us a

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Speaker 2: little bit of the history of the federal ban on

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Speaker 2: bump stocks.

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Speaker 8: So this is an ATF regulation that categorizes bump stock

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Speaker 8: devices as machine guns under the National Firearms Act, and

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Speaker 8: so therefore those devices are banned. This regulation was promulgated

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Speaker 8: after the twenty seventeen Las Vegas shooting, the deadliest mass

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Speaker 8: shooting in US history, where the shooter used bump stocks.

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Speaker 8: And after that shooting, there was some discussion about whether

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Speaker 8: Congress might act through legislation to specifically say that, you know,

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Speaker 8: bump stocks are prohibited or bump stocks are a machine guns,

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Speaker 8: and ultimately that did not happen. Instead, the ATF under

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Speaker 8: the Trump administrationated this regulation, and you know it's I

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Speaker 8: guess worth noting here that the ATF has sort of

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Speaker 8: had in the previous decade or so since these devices

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Speaker 8: started to appear, gone back and forth on how it

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Speaker 8: categorized them in informal guidance to the industry. These sort

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Speaker 8: of letters that the ATF would send to companies that

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Speaker 8: were making bump stocks, occasionally saying that some of these

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Speaker 8: devices were not machine guns and could be produced and sold.

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Speaker 8: And so there this regulation in twenty eighteen kind of

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Speaker 8: settled that matter. But again it's the culmination of a

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Speaker 8: little bit of a back and forth from the ATF.

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Speaker 2: So this isn't about the Second Amendment, then, it's about

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Speaker 2: the reach of this federal statute and how the ATF

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Speaker 2: interpreted it.

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Speaker 8: Yeah, exactly, it's a little bit complicated. It's not, I

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Speaker 8: guess to start, it's a lot complicated. Yeah, the justices certainly,

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Speaker 8: I think you're struggling with this one as well. So

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Speaker 8: to start, you know, you're right, it's not a Second

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Speaker 8: Amendment case. That's been pretty clear from the get go.

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Speaker 8: One of the justices I forget who actually explicitly asked

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Speaker 8: this question to the Cargill's attorney and he said, you know, no,

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Speaker 8: we have not made a Second Amendment claim. He even

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Speaker 8: actually suggested that maybe bump stocks are outside the scope

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Speaker 8: of Second Amendment protection because they are dangerous and unusual,

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Speaker 8: but that's not at issue in this case, and there

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Speaker 8: weren't any Second Amendment arguments being made today. This is really,

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Speaker 8: as I see it, just sort of at this point,

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Speaker 8: really a pure statutory interpretation question. And then the question

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Speaker 8: is whether the ATFS interpretation of machine gun to include

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Speaker 8: bump stocks was in accord with the statute, with what

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Speaker 8: the statute mean, what the intent was when the statute

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Speaker 8: was written. There has been and then there have been

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Speaker 8: a number of cases challenging this regulation from the time

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Speaker 8: that was enacted, and there have been a number of

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Speaker 8: federal appellate courts that have upheld the rule under some

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Speaker 8: kind of deference roach. So basically saying that, you know,

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Speaker 8: we can't really make heads or tails of whether this

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Speaker 8: statutory language includes bump stocks or doesn't include bump stocks.

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Speaker 8: We think the language is pretty ambiguous, but we're going

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Speaker 8: to defer to the ATF's interpretation of the language. So

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Speaker 8: there are a number of appellate courts that upheld the

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Speaker 8: rule under that theory. The government before the Supreme Court

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Speaker 8: here has not asked explicitly for different So for that reason,

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Speaker 8: what with the arguments that we heard really focused on

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Speaker 8: just this question of what does the relevant statutory language

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Speaker 8: single function of the trigger automatically? What do those words mean?

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Speaker 2: And we should mention that the ultra conservative Fifth Circuit

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Speaker 2: did rule that the ban was unlawful.

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Speaker 8: So the sort of plurality in the Fifth Circuit said

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Speaker 8: that unambiguous in their view, language in the statute does

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Speaker 8: not extend to bumpstock devices. There was a group of

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Speaker 8: judges who had basically said, well, we don't know, the

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Speaker 8: language might be ambiguous, but because there are criminal penalties here,

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Speaker 8: we think the rule of lenity should apply.

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Speaker 2: But yeah, I guess another favorite the rule of lenity basically,

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Speaker 2: when a law is ambiguous, the court interprets it in

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Speaker 2: the way most favorable to the defendant. Let's move on

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Speaker 2: quickly now from the law of lenity. I have to

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Speaker 2: say I found these arguments so confusing, with the justices

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Speaker 2: seeming to struggle over the technical aspects of bump stocks

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Speaker 2: over you know, are you pushing a button, are you pulling?

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Speaker 2: Are you exerting pressure on it? Why was that important?

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Speaker 8: Yeah? I mean, yeah, there was I think a lot

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Speaker 8: of confusion and a lot of hypothetical you know, revolving

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Speaker 8: around buttons and trip wires and those types of things.

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Speaker 8: But I think ultimately the issue sort of reduces to

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Speaker 8: the perspective from which you view this phrase single function

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Speaker 8: of the trigger. So the government's argument, it really just

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Speaker 8: just boiled down, is that single function of the trigger

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Speaker 8: really means single pull of the trigger. So you're focused

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Speaker 8: on the act of the shooter and what the shooter

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Speaker 8: does in pulling the trigger, and that because that pull

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Speaker 8: of the trigger initiates the bump firing sequence when you're

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Speaker 8: using a bump stock, that therefore the gun is firing

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Speaker 8: multiple rounds with a single function of the trigger. Cargill,

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Speaker 8: on the other hand, says, you don't look at this

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Speaker 8: from the perspective of the shooter. Instead, you're looking at

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Speaker 8: the actual mechanical function of the trigger. What does the

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Speaker 8: trigger of the gun do? And the way again, according

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Speaker 8: to Cargo's argument and his attorney today, the way that

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Speaker 8: that works is that when you are bump firing a

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Speaker 8: semi automatic weapon, the trigger still has to go back

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Speaker 8: and forth and only one round is expelled each time.

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Speaker 8: The trigger goes back and forth. It just happens very quickly.

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Speaker 2: So is this all to see whether it fits within

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Speaker 2: the definition of machine gun?

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Speaker 8: Yes, that's correct.

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Speaker 2: Liberals seemed to suggest that bump stocks fell within what

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Speaker 2: Congress intended when it banned machine guns, and particularly Justice

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Speaker 2: Elena Kagan, you know, went at this over and over

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Speaker 2: again with Cargo's attorney, and you know, appeared incredulous that

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Speaker 2: a weapon that can fire a torrent of bullets could

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Speaker 2: not be defined as a machine gun. I mean, do

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Speaker 2: you think that the liberals were on that side?

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Speaker 8: Yeah? I think so. I mean I think what I

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Speaker 8: detected from Justice Kagan, probably Justice Jackson, maybe Justice Soda

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Speaker 8: Mayor was sort of this maybe consequentialist approach to this statue,

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Speaker 8: which is, well, how does it make any sense to

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Speaker 8: read the statue to exclude from its scope devices that

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Speaker 8: would allow you to achieve the same high rate of

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Speaker 8: fire as you know, a machine gun like the sixteen

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Speaker 8: for example, Right in their view, I think that seemed

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Speaker 8: but something of an absurd result, given the evidence that

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Speaker 8: maybe we have have about the National Firearms Act and

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Speaker 8: what the congressional intent was there.

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Speaker 2: So it seemed like several conservatives were acknowledging that it's

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Speaker 2: functioning like a machine gun. So Amy Cony Barrett said

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Speaker 2: that intuitively, I'm entirely sympathetic to your argument, and Justice

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Speaker 2: Gorsa said, I can certainly understand why these items should

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Speaker 2: be made illegal. Then the buts came and they both

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Speaker 2: thought that this is something that Congress should do.

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Speaker 8: Yeah, I think that's right. I think they thought that

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Speaker 8: this is something Congress should do that you know, cannot

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Speaker 8: be accomplished through regulation. And I also think there was

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Speaker 8: a strong view, you know, among some of the conservative justices,

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Speaker 8: Justice Gorsas, just as Kavanaugh, maybe Justice Alito that you know,

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Speaker 8: they were very concerned about the potential confusion and the

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Speaker 8: potential for sort of people who own these devices to

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Speaker 8: be kind of almost trapped, right and be like, well

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Speaker 8: that they're not sure what the legal status is, and

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Speaker 8: yet they could be prosecuted criminally for having these devices.

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Speaker 8: And so a lot of concern about sort of what

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Speaker 8: the practical impact of this rule would be on people

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Speaker 8: who have owned bump stock devices at various points of time.

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Speaker 2: I thought that was a ridiculous concern. Would people be

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Speaker 2: so confused if the ATF said bump stocks are now illegal.

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Speaker 2: I mean laws change asked the Supreme Court about abortion.

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Speaker 8: Maybe the key point here is that actually, I don't

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Speaker 8: know how much this matters. And there were a few

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Speaker 8: justices who pressed, you know, the government attorney on this issue.

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Speaker 8: The government is not really bringing criminal prosecutions as far

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Speaker 8: as I know of those who have possessed bump stock devices, right,

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Speaker 8: And I would suspect that they that they wouldn't do

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Speaker 8: that until this litigation sort of resolves, at least That's

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Speaker 8: what I'm reading between the lines a little bit of

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Speaker 8: the sg's response here. That's kind of what I what

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Speaker 8: I took away, And I mean, I think it's certainly

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Speaker 8: you know, and then this is this is another thing

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Speaker 8: that was raised and response, This is not unique. This

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Speaker 8: issue is not unique to bump stocks. Right. There are

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Speaker 8: sort of frequently circuits disagree on various issues of criminal law.

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Speaker 5: Right.

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Speaker 8: That doesn't mean that, you know, the criminal penalties can't

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Speaker 8: be invoked. But I do think it's the concern that

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Speaker 8: that members of the court, especially on the conservative side, boys,

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Speaker 8: during oral arguments.

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Speaker 2: Do you have a feel for how they might rule

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Speaker 2: or you know who's on which side? Right?

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Speaker 8: So I thought one of the interesting aspects. Listening to

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Speaker 8: the oral argument today is that, again, you know, this

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Speaker 8: is not a Second Amendment case. It of course involves

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Speaker 8: firearms and firearm accessories, but it's not a Second Amendment case.

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Speaker 8: And that might initially lead one to think, well, maybe

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Speaker 8: the justices will break down differently right than they than

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Speaker 8: they have in their most recent Second Amendment decisions. After

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Speaker 8: listening to the argument, I'm not so sure that's true.

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Speaker 8: I think you can pretty confidently say that, you know,

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Speaker 8: Justices Soda, Mayor, Kagan, and Jackson, they're they're they're probably

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Speaker 8: you know, on the side of the government here. I

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Speaker 8: think I suspect that they would vote to reverse the

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Speaker 8: Fifth Circuit decision Justice Alito, Justice Kavanaugh, Justice Gorsa, and

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Speaker 8: probably just this Thomas, I would guess, you know, it

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Speaker 8: seems a little bit more sympathetic to Cargill's position. So

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Speaker 8: then you have, of course Justice Barrett and Chief Justice,

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Speaker 8: who are sort of up in the air. The Chief

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Speaker 8: Justice specifically, you know, didn't say a whole lot during

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Speaker 8: oral arguments, but I think, you know, putting all that together,

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Speaker 8: I expect this to be a very close case, potentially

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Speaker 8: a five to four decision. I'm not really sure which

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Speaker 8: way it will go. But again, you sort of have

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Speaker 8: those same justices Barrett and Roberts that are kind of

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Speaker 8: the key votes in the Second Amendment area, also being

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Speaker 8: the key.

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Speaker 2: Votes here coming up next, state supreme courts are rebuking

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Speaker 2: the Supreme Court for its position on guns. This is Bloomberg.

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Speaker 2: I've been talking to Andrew Willinger, executive director of the

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Speaker 2: Duke Center for Firearms Law, about Supreme Court oral arguments

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Speaker 2: today over whether the federal ban on bump stocks will stand.

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Speaker 2: Would the Conservative justices anti the administrative state stance, and

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Speaker 2: you know, the effort to curtail federal agencies. Would that

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Speaker 2: play in here with an effort to curtail the ats?

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Speaker 8: I think potentially. And actually, you know, one other interesting

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Speaker 8: aspect of this case is that, of course, the Supreme

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Speaker 8: Court heard argument in the Loper case last month, which

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Speaker 8: deals with Chevron deference, and you know, a major administrative

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Speaker 8: law case where essentially the Court is deciding whether to

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Speaker 8: keep a relatively deferential approach to accepting agency interpretations of

438
00:24:46,080 --> 00:24:51,719
Speaker 8: ambiguous statutory language. And so yeah, I mean, I wonder

439
00:24:51,800 --> 00:24:55,640
Speaker 8: whether there is at least a chance that you see

440
00:24:56,000 --> 00:24:58,399
Speaker 8: depending on what the Court says in Loper, maybe it

441
00:24:58,560 --> 00:25:04,119
Speaker 8: articulates some slightly us deferential framework for how courts should

442
00:25:04,160 --> 00:25:07,680
Speaker 8: approach these situations. Maybe you could see the court in

443
00:25:08,040 --> 00:25:11,000
Speaker 8: Cargill sending the case back and saying, you know, look,

444
00:25:11,000 --> 00:25:13,240
Speaker 8: we think this language is ambiguous, but you need to

445
00:25:13,280 --> 00:25:16,440
Speaker 8: apply this new framework that we've articulated, or you need

446
00:25:16,480 --> 00:25:19,320
Speaker 8: to consider these new factors that we've sort of added

447
00:25:19,320 --> 00:25:21,600
Speaker 8: to Chevron. So I think it's interesting to think about

448
00:25:21,600 --> 00:25:23,440
Speaker 8: the interaction between those two cases.

449
00:25:23,920 --> 00:25:27,879
Speaker 2: In the other gun case before the Court, where the

450
00:25:28,000 --> 00:25:31,440
Speaker 2: justices are deciding about a federal law intended to keep

451
00:25:31,520 --> 00:25:35,840
Speaker 2: guns away from people under domestic violence restraining orders. In

452
00:25:35,840 --> 00:25:38,719
Speaker 2: that case, do you think the justices were leaning toward

453
00:25:39,080 --> 00:25:43,280
Speaker 2: keeping guns away from people under domestic violence restraining orders.

454
00:25:44,000 --> 00:25:46,479
Speaker 8: Yes, so my read of the oral argument, and this

455
00:25:46,560 --> 00:25:50,400
Speaker 8: is the Rahimi case that you've mentioned where the court

456
00:25:50,520 --> 00:25:54,960
Speaker 8: hurt argument, I believe in November, my takeaway after that

457
00:25:55,119 --> 00:25:59,960
Speaker 8: argument was that the Court is highly likely to revert

458
00:26:00,240 --> 00:26:05,440
Speaker 8: the lower decision and uphold the federal ban on possessing

459
00:26:05,480 --> 00:26:09,000
Speaker 8: guns while under certain domestic violence restraining orders.

460
00:26:09,240 --> 00:26:13,280
Speaker 2: The Supreme Court has expanded gun rights in three major

461
00:26:13,400 --> 00:26:17,240
Speaker 2: rulings since two thousand and eight. And the country right

462
00:26:17,280 --> 00:26:21,600
Speaker 2: now is reeling from these mass shootings, and this rule

463
00:26:21,680 --> 00:26:24,800
Speaker 2: was enacted because, as you mentioned, one of the deadliest

464
00:26:25,160 --> 00:26:28,760
Speaker 2: mass shootings in the country's history. So do the justices

465
00:26:28,840 --> 00:26:32,359
Speaker 2: consider that there might be backlash if they don't allow

466
00:26:32,520 --> 00:26:34,440
Speaker 2: even this kind of a regulation.

467
00:26:35,000 --> 00:26:36,600
Speaker 8: I mean, I think again, it sort of gets to

468
00:26:36,680 --> 00:26:41,040
Speaker 8: the Congress versus the executive branch, point right. I actually

469
00:26:41,119 --> 00:26:44,280
Speaker 8: think it was one of the justices I actually asked

470
00:26:44,440 --> 00:26:47,560
Speaker 8: Cargill's attorney point blank towards the end of the argument,

471
00:26:48,040 --> 00:26:49,359
Speaker 8: what would Congress have to do?

472
00:26:49,520 --> 00:26:49,600
Speaker 5: Right?

473
00:26:49,680 --> 00:26:51,720
Speaker 8: If Congress, you know, if a congressman came up to

474
00:26:51,760 --> 00:26:54,359
Speaker 8: you and said, you know, we want to ban bump stocks,

475
00:26:54,359 --> 00:26:56,080
Speaker 8: we want to pass a law, what would they have

476
00:26:56,119 --> 00:26:57,280
Speaker 8: to do? What would they have to stay?

477
00:26:57,400 --> 00:26:57,520
Speaker 2: Right?

478
00:26:57,520 --> 00:27:01,240
Speaker 8: What would you what would be enough? So I think,

479
00:27:01,400 --> 00:27:05,280
Speaker 8: you know, my takeaway from today is that the Court

480
00:27:05,880 --> 00:27:11,000
Speaker 8: isn't really concerned about that because in this specific case,

481
00:27:11,320 --> 00:27:15,359
Speaker 8: because many of the justices think that this is something

482
00:27:15,400 --> 00:27:17,520
Speaker 8: that Congress should have done. Right, So they're not saying, well,

483
00:27:17,520 --> 00:27:19,560
Speaker 8: this is off the table. They're saying this was not

484
00:27:19,720 --> 00:27:23,000
Speaker 8: something that could be accomplished through the regulatory state.

485
00:27:23,160 --> 00:27:26,359
Speaker 2: And with Congress barely being able to keep the country open.

486
00:27:27,040 --> 00:27:29,399
Speaker 2: I'm not sure there's much hope of them doing anything

487
00:27:29,440 --> 00:27:32,640
Speaker 2: with bump stocks, although this was a case where the

488
00:27:32,680 --> 00:27:35,680
Speaker 2: Biden administration and the Trump administration agreed.

489
00:27:35,840 --> 00:27:39,919
Speaker 8: Right, that's right, and I think I'm inclined to agree

490
00:27:39,920 --> 00:27:43,840
Speaker 8: with you that today it's unlikely, if this case comes

491
00:27:43,840 --> 00:27:46,840
Speaker 8: out in favor of Cargill, it's unlikely that we would

492
00:27:46,840 --> 00:27:50,680
Speaker 8: see Congress act going back to twenty eighteen. Is that true?

493
00:27:50,720 --> 00:27:52,560
Speaker 8: I don't know, right, it seemed like maybe at that

494
00:27:52,840 --> 00:27:55,879
Speaker 8: time there was we were getting sort of close to

495
00:27:55,920 --> 00:27:59,240
Speaker 8: a critical momentum to take some kind of legislative action,

496
00:27:59,359 --> 00:28:00,639
Speaker 8: but of course that to happen.

497
00:28:01,440 --> 00:28:04,520
Speaker 2: So I want to turn to some state Supreme Court

498
00:28:04,560 --> 00:28:09,199
Speaker 2: decisions because there are two state Supreme courts that it

499
00:28:09,280 --> 00:28:13,040
Speaker 2: seems to me are fighting back at the Supreme Court's

500
00:28:13,480 --> 00:28:18,879
Speaker 2: Bruin decision. So first explain briefly the Brewin decision and

501
00:28:18,960 --> 00:28:22,600
Speaker 2: how the court decided there to rely on history.

502
00:28:23,520 --> 00:28:27,600
Speaker 8: Yeah, So Bruin was decided in June twenty twenty two,

503
00:28:28,280 --> 00:28:31,160
Speaker 8: and this was a culmination of sort of a ten

504
00:28:31,280 --> 00:28:35,159
Speaker 8: or twelve year period where the Court had said in

505
00:28:35,200 --> 00:28:39,040
Speaker 8: a pair of earlier decisions that the Second Amendment protects

506
00:28:39,040 --> 00:28:41,840
Speaker 8: an individual right at least to keep a gun in

507
00:28:41,920 --> 00:28:45,000
Speaker 8: the home for self defense. The Second Amendment is not

508
00:28:45,240 --> 00:28:49,320
Speaker 8: limited to the militia context. But the Court had not

509
00:28:49,840 --> 00:28:55,120
Speaker 8: set forth any kind of implementing tests for how lower

510
00:28:55,160 --> 00:28:59,120
Speaker 8: court judges should determine whether a certain law, you know,

511
00:28:59,640 --> 00:29:02,160
Speaker 8: violate it's the Second Amendment or not. And so in

512
00:29:02,200 --> 00:29:06,120
Speaker 8: the absence of that guidance, the lower federal court had

513
00:29:06,160 --> 00:29:10,520
Speaker 8: developed a two step test. They would first ask whether

514
00:29:10,720 --> 00:29:14,560
Speaker 8: the conduct being regulated implicated the Second Amendment at all.

515
00:29:14,720 --> 00:29:18,360
Speaker 8: Certain people, certain conducts, certain types of weapons, of course,

516
00:29:19,040 --> 00:29:22,240
Speaker 8: don't even get you to the Second Amendment. But if

517
00:29:22,240 --> 00:29:25,520
Speaker 8: the Second Amendment was implicated, then the court would apply

518
00:29:25,600 --> 00:29:29,880
Speaker 8: a form of scrutiny, most often intermediate scrutiny, which asks

519
00:29:29,920 --> 00:29:35,640
Speaker 8: whether the objective is substantially related to an important government interest.

520
00:29:36,120 --> 00:29:39,600
Speaker 8: The court would essentially do some amount of balancing of

521
00:29:39,640 --> 00:29:43,640
Speaker 8: the government's regulatory interest in the law at issue and

522
00:29:44,160 --> 00:29:47,400
Speaker 8: the impact on self defense. And so that was the

523
00:29:47,440 --> 00:29:51,400
Speaker 8: approach that prevailed up until Bruin in Brewin, the Supreme

524
00:29:51,480 --> 00:29:54,600
Speaker 8: Court threw out the second part of that test. So

525
00:29:54,760 --> 00:29:59,800
Speaker 8: this scrutiny step, where courts were weighing the government interest

526
00:30:00,000 --> 00:30:02,920
Speaker 8: a'inst the burden on self defense. The courts that that

527
00:30:03,280 --> 00:30:07,640
Speaker 8: piece of the test was inconsistent with its earlier decisions,

528
00:30:07,720 --> 00:30:11,720
Speaker 8: namely the Heller decision, and instead the Court said that

529
00:30:12,120 --> 00:30:15,440
Speaker 8: when there's a Second Amendment challenge, at least the operative

530
00:30:15,560 --> 00:30:19,240
Speaker 8: test is whether the law is consistent with the nation's

531
00:30:19,280 --> 00:30:24,280
Speaker 8: historical tradition of firearm regulation. And that requires, broadly speaking,

532
00:30:24,880 --> 00:30:30,080
Speaker 8: some comparison to historical laws. So the government needs to

533
00:30:30,080 --> 00:30:35,360
Speaker 8: come forward with analogous or similar historical regulation, probably from

534
00:30:35,360 --> 00:30:37,920
Speaker 8: around the time of the founding, maybe also from the

535
00:30:37,960 --> 00:30:39,000
Speaker 8: mid nineteenth century.

536
00:30:39,320 --> 00:30:42,680
Speaker 2: So there are two state supreme courts that seemed to

537
00:30:43,640 --> 00:30:46,400
Speaker 2: say the Supreme Court was wrong in the way that

538
00:30:46,560 --> 00:30:51,080
Speaker 2: it decided that case. The Hawaii Supreme Court earlier this month,

539
00:30:51,520 --> 00:30:55,000
Speaker 2: in a unanimous decision, upheld the state's laws barring carrying

540
00:30:55,000 --> 00:30:59,000
Speaker 2: guns in public without a license, and in appointed rebuke

541
00:30:59,040 --> 00:31:02,960
Speaker 2: of the Supreme Court, Justice Todd Eddens wrote, time traveling

542
00:31:03,040 --> 00:31:06,200
Speaker 2: to seventeen ninety one or eighteen sixty eight to collar

543
00:31:06,280 --> 00:31:09,840
Speaker 2: how a state regulates lethal weapons is a dangerous way

544
00:31:09,880 --> 00:31:13,120
Speaker 2: to look at the federal Constitution. The Constitution is not

545
00:31:13,200 --> 00:31:17,520
Speaker 2: a suicide pact. And then last week, the Pennsylvania Supreme

546
00:31:17,600 --> 00:31:21,720
Speaker 2: Court also seemed to criticize and ignore the Supreme Court.

547
00:31:21,760 --> 00:31:25,440
Speaker 2: In Brewin, it upheld a zoning ordinance that prohibits shooting

548
00:31:25,600 --> 00:31:29,360
Speaker 2: ranges in residential areas, and the court said, we're not

549
00:31:29,440 --> 00:31:31,840
Speaker 2: so sure about the history that was used in Heller

550
00:31:31,880 --> 00:31:35,239
Speaker 2: and Bruin, and we note some serious skepticism with how

551
00:31:35,280 --> 00:31:38,440
Speaker 2: the Supreme Court is handling these Second Amendment cases. But

552
00:31:38,600 --> 00:31:41,680
Speaker 2: we can play amateur historian as well as the next guy.

553
00:31:42,400 --> 00:31:45,680
Speaker 2: So it seems as if these courts, these two at

554
00:31:45,720 --> 00:31:49,640
Speaker 2: least Supreme courts, don't agree with Brewin and are just

555
00:31:49,840 --> 00:31:50,720
Speaker 2: not following it.

556
00:31:51,440 --> 00:31:54,560
Speaker 8: Yeah, So I think if I'll start with a Hawaii cases,

557
00:31:54,600 --> 00:31:57,400
Speaker 8: I think that's actually maybe the more fascinating one. And

558
00:31:57,600 --> 00:32:02,600
Speaker 8: this is actually not a very difficult question even under Bruin.

559
00:32:03,040 --> 00:32:05,440
Speaker 8: What I think is fascinating about this opinion is that

560
00:32:05,760 --> 00:32:08,600
Speaker 8: there's a brief portion at the end. I think it's

561
00:32:08,640 --> 00:32:11,040
Speaker 8: two or three pages, and this is a fifty plus

562
00:32:11,040 --> 00:32:16,480
Speaker 8: page opinion that deals with the federal constitutional challenge. Most

563
00:32:16,480 --> 00:32:20,480
Speaker 8: of this opinion is interpreting the provision in the Hawaii

564
00:32:20,520 --> 00:32:24,600
Speaker 8: state constitution that mirrors is almost exactly identical to the

565
00:32:24,720 --> 00:32:28,400
Speaker 8: US Second Amendment, and the Court ends up saying, after

566
00:32:28,680 --> 00:32:32,600
Speaker 8: a lengthy analysis during which, as some of the language

567
00:32:32,600 --> 00:32:35,000
Speaker 8: you quoted, it is very critical of Bruin and the

568
00:32:35,120 --> 00:32:38,400
Speaker 8: US Supreme Court and the Justice, the Hawaii justices end

569
00:32:38,520 --> 00:32:42,320
Speaker 8: up saying that this state provision is limited to the

570
00:32:42,320 --> 00:32:45,960
Speaker 8: militia context. It does not protect an individual right, at

571
00:32:46,080 --> 00:32:49,400
Speaker 8: least not an individual right to carry weapons in public.

572
00:32:49,640 --> 00:32:53,160
Speaker 8: But after doing that, the justices then spend a very

573
00:32:53,440 --> 00:32:57,000
Speaker 8: short portion of the opinion saying, our holding here is

574
00:32:57,040 --> 00:32:59,600
Speaker 8: also you know, cord with Bruin, right. This is the

575
00:32:59,640 --> 00:33:04,040
Speaker 8: result that you get even going through the Bruin analysis,

576
00:33:04,200 --> 00:33:07,640
Speaker 8: and I think that's right. Brewin doesn't say that there

577
00:33:07,760 --> 00:33:12,680
Speaker 8: is a right to carry guns in public, concealed firearms

578
00:33:12,680 --> 00:33:15,800
Speaker 8: in public without a license. Instead, the Court says, it's

579
00:33:15,800 --> 00:33:20,720
Speaker 8: perfectly fine for states to have objective licensing requirements. They

580
00:33:20,760 --> 00:33:24,400
Speaker 8: just can't have the type of discretionary law that New

581
00:33:24,520 --> 00:33:27,520
Speaker 8: York and several other states, including Hawaii did at the

582
00:33:27,600 --> 00:33:31,120
Speaker 8: time the Bruin decision was issued. So again, this is

583
00:33:31,160 --> 00:33:35,680
Speaker 8: actually a pretty easy case under Bruin. There's nothing in

584
00:33:35,680 --> 00:33:38,520
Speaker 8: that opinion, at least as I read it, that requires

585
00:33:38,640 --> 00:33:41,880
Speaker 8: permitless carry to be permitted. But I think what you

586
00:33:41,960 --> 00:33:45,280
Speaker 8: see in the Justice's choice to spend most of the

587
00:33:45,360 --> 00:33:48,480
Speaker 8: opinion on the state constitutional issue is kind of them

588
00:33:48,520 --> 00:33:52,160
Speaker 8: trying to express that they think the direction the Supreme

589
00:33:52,200 --> 00:33:56,200
Speaker 8: Court is headed may be problematic and trying to sort

590
00:33:56,200 --> 00:33:59,960
Speaker 8: of explain their view of why Hawaii might be different.

591
00:34:00,360 --> 00:34:03,360
Speaker 2: And what about the Pennsylvania decision. How often do you

592
00:34:03,400 --> 00:34:08,240
Speaker 2: see state supreme courts issuing rebukes to the US Supreme Court.

593
00:34:08,880 --> 00:34:11,840
Speaker 8: Yeah, I think that's totally right. It's rare, although I

594
00:34:11,880 --> 00:34:15,439
Speaker 8: will say that Bruin has prompted some of this, even

595
00:34:15,520 --> 00:34:17,840
Speaker 8: from federal judges. There have been federal judges that have

596
00:34:17,880 --> 00:34:21,040
Speaker 8: written opinions that are very critical of the test, saying,

597
00:34:21,080 --> 00:34:23,879
Speaker 8: you know, we need more guidance, right, And that's kind

598
00:34:23,920 --> 00:34:27,719
Speaker 8: of the Pennsylvania decision, in contrast to the Hawaii one,

599
00:34:27,760 --> 00:34:30,520
Speaker 8: I think is more of a plea for the Court

600
00:34:30,800 --> 00:34:35,280
Speaker 8: in Marahemi or a future case to provide more guidance

601
00:34:35,320 --> 00:34:39,080
Speaker 8: about how the historical test should work in practice. So,

602
00:34:39,120 --> 00:34:43,920
Speaker 8: the Pennsylvania case deals with a zoning ordinance that essentially

603
00:34:44,040 --> 00:34:49,960
Speaker 8: banned firing ranges on property that was zoned for residential purposes,

604
00:34:50,320 --> 00:34:54,360
Speaker 8: limited the area in which shooting ranges could operate. The

605
00:34:54,680 --> 00:34:56,879
Speaker 8: plaintiff in this case as somebody who had built a

606
00:34:56,920 --> 00:34:59,840
Speaker 8: firing range on his own property and as a result

607
00:34:59,840 --> 00:35:02,279
Speaker 8: of this change to the zoning ordinance, that was no

608
00:35:02,360 --> 00:35:06,719
Speaker 8: longer permitted. And so this is an issue that has

609
00:35:06,800 --> 00:35:10,239
Speaker 8: come up before in some context, and it implicates the

610
00:35:10,320 --> 00:35:13,840
Speaker 8: question of sort of what the whether the Second Amendment

611
00:35:13,920 --> 00:35:19,319
Speaker 8: protects an ancillary right to practice or train with firearms.

612
00:35:19,360 --> 00:35:22,760
Speaker 8: The Pennsylvania Court, actually, I think, takes a pretty middle

613
00:35:22,800 --> 00:35:26,480
Speaker 8: of the road approach here and says that, yes, there

614
00:35:26,640 --> 00:35:31,239
Speaker 8: is a right to train or practice with firearms that's

615
00:35:31,280 --> 00:35:35,240
Speaker 8: protected by the Second Amendment. So this conduct of building

616
00:35:35,880 --> 00:35:39,960
Speaker 8: a firing range on this individual's property is within the

617
00:35:40,000 --> 00:35:42,640
Speaker 8: scope of the Second Amendment. I think that's interesting. I

618
00:35:42,640 --> 00:35:45,399
Speaker 8: don't know that that's I don't know that that's correct. Right.

619
00:35:45,440 --> 00:35:48,399
Speaker 8: This is somebody who, I think it's important to note,

620
00:35:48,560 --> 00:35:53,120
Speaker 8: could have gone to a firing range somewhere else. But nevertheless,

621
00:35:53,160 --> 00:35:54,840
Speaker 8: the court says this is within the scope of the

622
00:35:54,840 --> 00:35:59,719
Speaker 8: Second Amendment, and then relies on historical laws restricting the

623
00:36:00,280 --> 00:36:05,160
Speaker 8: charge of firearms and urban areas and restricting where shooting

624
00:36:05,239 --> 00:36:08,120
Speaker 8: ranges could be built that those laws exist historically and

625
00:36:08,200 --> 00:36:10,759
Speaker 8: says this is a pretty clear type case where the

626
00:36:10,800 --> 00:36:13,680
Speaker 8: historical evidence supports the regulation.

627
00:36:14,040 --> 00:36:17,040
Speaker 2: Thanks so much for being on the show. That's Andrew Willinger,

628
00:36:17,600 --> 00:36:20,759
Speaker 2: Executive director of the Duke Center for Firearms Law. And

629
00:36:20,800 --> 00:36:23,080
Speaker 2: that's it for this edition of the Bloomberg Law Show.

630
00:36:23,440 --> 00:36:25,719
Speaker 2: Remember you can always get the latest legal news by

631
00:36:25,760 --> 00:36:29,520
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