WEBVTT - Landmark Young People's Climate Ruling 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.880 --> 0:00:14.240 A landmark climate ruling that will reverberate across the legal landscape, 0:00:14.280 --> 0:00:18.159 and it's sixteen young environmental activists who want it. A 0:00:18.239 --> 0:00:20.800 judge ruled that the young people, who range in age 0:00:20.800 --> 0:00:24.319 from five to twenty two, have a constitutional right to 0:00:24.400 --> 0:00:28.600 a safe environment, and that Montana's continued development of fossil 0:00:28.680 --> 0:00:32.200 fuels infringes on that right. It marks the first time 0:00:32.240 --> 0:00:34.879 a court in the US has declared that a government 0:00:34.920 --> 0:00:38.839 has a constitutional duty to protect people from climate change. 0:00:39.440 --> 0:00:43.400 One of the young environmental activists, Claire Vasis, told CBS 0:00:43.400 --> 0:00:46.080 News that the decision gives her hope. 0:00:46.200 --> 0:00:50.080 I hope that as a young person, we might actually 0:00:50.159 --> 0:00:55.360 have a chance to make a difference. And for my 0:00:55.400 --> 0:00:58.080 life and for my kid's life. You know, not all 0:00:58.120 --> 0:01:00.400 hope may be lost, do I mean? 0:01:00.400 --> 0:01:03.760 The environmental law expert Pat Parento, a professor at the 0:01:03.840 --> 0:01:07.959 Vermont Law and Graduate School, how significant is this ruling. 0:01:08.440 --> 0:01:10.920 It's a big deal. It's the first court in the 0:01:11.040 --> 0:01:15.880 United States to rule that there is a constitutional right, 0:01:16.000 --> 0:01:20.120 based on the Montana State Constitution, to a safe climate. 0:01:20.200 --> 0:01:23.640 That's shorthand for the way the Court described it in 0:01:23.720 --> 0:01:27.200 the Hell versus Montana case. But that's essentially what Judge 0:01:27.240 --> 0:01:30.919 seely hilp is that the youth plaintiffs in that case 0:01:31.000 --> 0:01:37.560 have a fundamental constitutional right to a safe or stable climate, 0:01:37.880 --> 0:01:42.759 and that the state government is violating that constitutional right 0:01:42.959 --> 0:01:47.919 because it adopted a law that prohibits state agencies from 0:01:47.960 --> 0:01:54.920 considering just considering the climate change impacts in Montana when 0:01:55.280 --> 0:01:59.880 they authorize fossil fuel development like full mines, oil and gas, 0:02:00.040 --> 0:02:03.880 well and so forth. So the first time any court 0:02:04.080 --> 0:02:06.760 in the United States has ever ruled that way. 0:02:07.160 --> 0:02:10.880 It's been called a turning point by the plaintiff's attorney. 0:02:11.040 --> 0:02:12.079 Would you go that far? 0:02:12.880 --> 0:02:16.320 I think I have to say until we see how 0:02:16.360 --> 0:02:20.560 the Montana Supreme Court rules in this case on appeal, 0:02:20.639 --> 0:02:23.320 because the state, of course has said it will appeal, 0:02:23.880 --> 0:02:27.160 I think it's probably too soon to go that far 0:02:27.320 --> 0:02:30.360 to say that we're going to see either in Montana 0:02:30.520 --> 0:02:34.840 or more broadly, a turning point on changing, you know, 0:02:34.919 --> 0:02:38.840 fossil fuel dependent energy policies. What the court has said 0:02:38.960 --> 0:02:43.359 is you have to consider both what's happening in Montana 0:02:43.600 --> 0:02:47.760 and elsewhere from what we've already seen with climate change 0:02:48.080 --> 0:02:51.440 and the worst consequences that are to come. Plus you 0:02:51.560 --> 0:02:55.480 have to look at the alternatives that are available to 0:02:55.560 --> 0:03:01.280 reduce emissions, to shift our energy policies to cleaner grid sources, 0:03:01.520 --> 0:03:04.880 all of which was laid out in very detailed factual 0:03:04.919 --> 0:03:09.400 findings over two hundred factual findings by Judge Steely in 0:03:09.480 --> 0:03:13.440 this case, based on the expert testimony the plane is introduced. 0:03:13.520 --> 0:03:17.560 It was a remarkable, remarkable job of lawyering in this 0:03:17.720 --> 0:03:21.480 case to develop this record on appeal. So it's all 0:03:21.600 --> 0:03:25.919 there for the Montana Supreme Court to consider, and it's 0:03:25.960 --> 0:03:29.760 all there for, of course the Montana legislature and the 0:03:29.760 --> 0:03:32.800 Governor of Montana to consider. Whether they will or not 0:03:33.480 --> 0:03:37.800 is very questionable because it's a very red even hard 0:03:37.960 --> 0:03:43.360 right read governor and legislature right now that has dismissed 0:03:43.360 --> 0:03:48.360 this case, ridiculed this case, refused to change policies and 0:03:48.400 --> 0:03:51.800 so forth. So is it a turning point. It's certainly 0:03:52.160 --> 0:03:55.200 headed in that direction, but we still have a lot 0:03:55.360 --> 0:03:58.640 to see develop if it's going to change the way 0:03:58.680 --> 0:04:00.000 things are happening on the ground. 0:04:00.800 --> 0:04:02.480 As you said, the state is going to appeal, and 0:04:02.520 --> 0:04:05.680 a spokesperson for the governor said this legal theory has 0:04:05.720 --> 0:04:08.200 been thrown out of federal court and courts in more 0:04:08.240 --> 0:04:09.440 than a dozen states. 0:04:09.680 --> 0:04:11.280 It should have been here as well, but they. 0:04:11.240 --> 0:04:15.160 Found an ideological judge who bent over backwards to allow 0:04:15.200 --> 0:04:17.880 the case to move forward and earn herself a spot 0:04:17.960 --> 0:04:19.360 in their next documentary. 0:04:20.160 --> 0:04:24.680 Well, you know, name calling doesn't change facts. I'm impressed 0:04:24.680 --> 0:04:27.760 by the factual records that this judge developed, and she 0:04:27.960 --> 0:04:31.120 evaluated each one of those expert witnesses. There were eight 0:04:31.200 --> 0:04:33.640 or more that were called by the planeffs, and she 0:04:33.720 --> 0:04:37.599 went through in great detail, you know, what they testified to, 0:04:37.839 --> 0:04:41.480 what that testimony was based on. So the governor can 0:04:41.520 --> 0:04:45.760 say what he wants about the judge personally, but the 0:04:45.839 --> 0:04:50.280 record speaks and the facts speak, and the state put 0:04:50.320 --> 0:04:54.440 on no case. The only expert witness they offered was 0:04:54.520 --> 0:04:58.960 declared not credible by the judge, and she cited specifically 0:04:59.080 --> 0:05:03.640 why the testimony offered by this Terry Anderson was not credible. 0:05:03.800 --> 0:05:07.120 It was full of mistakes and so forth. So you know, 0:05:07.200 --> 0:05:10.400 when you don't have the facts on your side, you know, 0:05:10.520 --> 0:05:13.839 of course, you insult the judge. We've seen that in 0:05:13.920 --> 0:05:18.039 other instances, right, Or you insult the plaintiffs, the young 0:05:18.080 --> 0:05:22.040 people bringing these cases as being naive or whatever. But again, 0:05:22.240 --> 0:05:24.719 the facts in the law are laid out in her opinion. 0:05:25.000 --> 0:05:28.240 We will see, you know, what happens on appeal. The 0:05:28.320 --> 0:05:31.920 Montana Supreme Court is more conservative now than it was 0:05:32.440 --> 0:05:36.240 in earlier days, when it recognized in this nineteen ninety 0:05:36.320 --> 0:05:41.919 nine case known as Meic versus de Eq recognize the 0:05:41.960 --> 0:05:47.160 fundamental right to a healthy environment. And now that healthy 0:05:47.400 --> 0:05:51.520 environment right has been extended to a safe climate. So 0:05:51.720 --> 0:05:55.200 there is precedent in Montana for what Judge Seeley did, 0:05:55.360 --> 0:06:00.599 strong precedent. Her factual findings are undisputed by the state, 0:06:01.000 --> 0:06:04.040 so I think the plaintiffs have a very good chance 0:06:04.360 --> 0:06:07.080 of prevailing on appeal. We'll just have to wait and see. 0:06:07.320 --> 0:06:11.480 Some of the young plaintiffs testified about how climate impacts 0:06:11.480 --> 0:06:12.839 were upending their lives. 0:06:13.240 --> 0:06:16.360 You know, it's really scary seeing what you care for 0:06:17.560 --> 0:06:18.840 disappear right in front. 0:06:18.600 --> 0:06:19.320 Of your eyes. 0:06:19.880 --> 0:06:24.440 How important was their testimony to sort of put faces 0:06:24.839 --> 0:06:27.120 on this problem of climate change? 0:06:27.320 --> 0:06:30.159 Oh? Yes, the children's now some of them are no 0:06:30.200 --> 0:06:33.040 longer children, of course, but when it started, they're eighteen 0:06:33.080 --> 0:06:35.520 of them, I believe. And she goes through each one 0:06:35.520 --> 0:06:38.719 of them individually, and shows how they are particularly affected 0:06:38.720 --> 0:06:42.440 by climate change. Some of them have asthma problems, Others 0:06:42.680 --> 0:06:46.839 have seen their ranching operations impacted. Others have seen some 0:06:47.000 --> 0:06:50.720 of the recreational activities they engage in impacted. Some of them. 0:06:50.880 --> 0:06:55.000 There was testimony about both physical and mental impacts on 0:06:55.120 --> 0:06:58.200 these young people from what's happening with climate change and 0:06:58.240 --> 0:07:01.000 the uncertainty about whether it's going to be dealt with. 0:07:01.240 --> 0:07:05.240 So she went through in great detail, and it's compelling 0:07:05.480 --> 0:07:09.279 evidence of what's happening to our young people. And it's real. 0:07:09.360 --> 0:07:13.400 I mean, these were medical doctors testifying under oath, subject 0:07:13.440 --> 0:07:19.440 to cross examination and saying these are real, diagnosable conditions 0:07:19.480 --> 0:07:22.280 that are happening to these young people and they're going 0:07:22.360 --> 0:07:25.360 to get worse unless we do something about this threat. 0:07:25.880 --> 0:07:29.520 And do we care about the livelihood and the well 0:07:29.560 --> 0:07:32.960 being of these children? Are not. That's really what the 0:07:33.040 --> 0:07:36.600 trial was about. And as I say, the lawyers for 0:07:36.720 --> 0:07:39.960 Our Children's Trust did a phenomenal job of laying this 0:07:40.160 --> 0:07:43.000 all out on the court record, and there's nothing the 0:07:43.040 --> 0:07:46.080 state can say now that can change any of that. 0:07:46.240 --> 0:07:46.800 It's real. 0:07:47.520 --> 0:07:51.280 So the declaratory relief, let's say that the Montana Supreme 0:07:51.320 --> 0:07:53.720 Court affirms the judge's decision. 0:07:54.240 --> 0:07:56.520 How would this be enforced? 0:07:57.280 --> 0:08:02.200 The judge, on that point said it will influence the 0:08:02.560 --> 0:08:09.239 state's conduct in making decisions about either authorizing fossil fuel 0:08:09.280 --> 0:08:14.640 development or promoting further extraction of fossil fuels. But she 0:08:14.760 --> 0:08:18.880 stopped short of actually ordering the state to do anything 0:08:18.960 --> 0:08:24.520 specific to either stop issuing permits obviously, or stop promoting 0:08:24.680 --> 0:08:27.240 fossil fuel development. She didn't go that far. The plans 0:08:27.240 --> 0:08:29.680 were asking for something like that, they didn't quite get that. 0:08:30.000 --> 0:08:32.959 But I think what she's basically saying is it's an 0:08:33.000 --> 0:08:39.280 optimistic view that once government officials look at what's really happening, 0:08:39.320 --> 0:08:43.680 and document and disclose to the public what's really happening, 0:08:43.880 --> 0:08:47.440 and also look at the alternatives that are available for 0:08:47.520 --> 0:08:52.520 a different pathway forward, she's optimistically hoping that that will 0:08:52.600 --> 0:08:56.920 change the direction of Montana's energy policy. That's the best 0:08:56.920 --> 0:09:00.760 way to characterize it is it's a hope that when 0:09:00.880 --> 0:09:05.960 facts and rational analysis is brought to bear on the problem, 0:09:06.640 --> 0:09:08.400 better decisions will be made. 0:09:08.640 --> 0:09:12.160 Pat This has been called a landmark case in light 0:09:12.240 --> 0:09:15.280 of that. What makes it a landmark case, Well. 0:09:15.080 --> 0:09:17.679 It's landmark in the sense it's the first time a 0:09:17.800 --> 0:09:21.520 court has declared a constitutional right to a safe climate, 0:09:21.600 --> 0:09:25.000 that's for sure, but it's a lower court decision that 0:09:25.120 --> 0:09:28.120 has to be upheld on appeal before I think you 0:09:28.160 --> 0:09:32.640 can truly call it landmark. It's a real breakthrough, it's 0:09:32.679 --> 0:09:36.960 a major victory, it was an extraordinarily well litigated case. 0:09:37.400 --> 0:09:40.679 All of those things are true. But right now, until 0:09:40.720 --> 0:09:45.199 you've got the highest court in Montana saying yes, there 0:09:45.280 --> 0:09:48.480 is not only a constitutional right to a safe climate, 0:09:48.760 --> 0:09:52.560 but it's being violated right now by the state. Until 0:09:52.600 --> 0:09:55.520 we have that final word, I'm going to hesitate to 0:09:55.559 --> 0:09:57.079 say it's a landmark. 0:09:57.240 --> 0:10:01.360 Right now, Montana is one of only a few states 0:10:01.800 --> 0:10:05.480 that have the affirmative right to a healthful environment in 0:10:05.520 --> 0:10:12.319 their constitutions. So will this only be influential in those states? 0:10:12.800 --> 0:10:16.280 It will certainly be influential in the states with these 0:10:16.360 --> 0:10:21.120 green amendments, these constitutional right to a healthy environment provisions. 0:10:21.120 --> 0:10:24.960 That includes Hawaii. The next Our Children's Trust case is 0:10:25.000 --> 0:10:28.720 now scheduled for trial in Hawaii in twenty twenty four, 0:10:28.760 --> 0:10:31.000 And of course we all know what horror show is 0:10:31.040 --> 0:10:34.560 going on in Lahina right now. Other states that have 0:10:35.040 --> 0:10:41.400 similar green amendments, Pennsylvania, New York. Those are potential locations 0:10:41.440 --> 0:10:45.440 for where we might see more litigation like this. In fact, 0:10:45.480 --> 0:10:48.400 I would predict we will see that. So you've got Hawaii, 0:10:48.440 --> 0:10:52.079 You've got Pennsylvania, you've got New York. Louisiana actually has 0:10:52.120 --> 0:10:55.520 a very strong constitutional right to a healthy environment provision, 0:10:55.520 --> 0:10:58.920 believe it or not. Other states, Washington, Alaska, they have 0:10:59.160 --> 0:11:02.560 those provisions. Our Children's Trust has not been successful in 0:11:02.600 --> 0:11:05.720 bringing cases in those other states. But I think with 0:11:05.840 --> 0:11:09.120 the held decision, and particularly again if it's upheld, I 0:11:09.160 --> 0:11:12.240 do think you're going to see more attempts to get 0:11:12.360 --> 0:11:17.200 courts ruling in cases being brought not only by youth plaintiffs, 0:11:17.240 --> 0:11:20.920 but by other kinds of effective interests. And so this 0:11:21.080 --> 0:11:26.040 is part of an increasing number of cases being litigated 0:11:26.080 --> 0:11:28.280 all over the world. There are now over two thousand 0:11:28.520 --> 0:11:31.360 climate cases that have either been brought or are in 0:11:31.400 --> 0:11:35.040 the process of being litigated. So we're seeing a growing 0:11:35.360 --> 0:11:43.280 number of judicial decisions across the globe requiring stronger action 0:11:44.040 --> 0:11:49.000 to deal with climate change, to disclose what is being 0:11:49.040 --> 0:11:52.720 done and what is not being done to address it. 0:11:53.280 --> 0:11:57.120 These cases are not going to solve the climate crisis, obviously, 0:11:57.640 --> 0:12:02.080 but they are certainly building a body of law, including 0:12:02.120 --> 0:12:06.320 constitutional law, that is going to continue to put lots 0:12:06.320 --> 0:12:10.040 of pressure on the political branches of government, legislatures and 0:12:10.120 --> 0:12:15.800 executive branches. And I think that body of law is 0:12:16.040 --> 0:12:21.680 gradually moving the other branches of government to take meaningful action. 0:12:22.240 --> 0:12:24.760 That's what I think is happening and certainly what I 0:12:24.760 --> 0:12:25.480 hope will happen. 0:12:25.760 --> 0:12:29.160 As you mentioned, there's this broad wave of litigation. States 0:12:29.160 --> 0:12:33.240 and cities are suing companies like Exxon, Chevron, and Shell. 0:12:33.559 --> 0:12:36.720 Have any of those reached a point of trial. 0:12:37.600 --> 0:12:41.559 No. The one that's out in front right now is Honolulu, 0:12:41.880 --> 0:12:48.680 and the Hawaii Supreme Court is reviewing a decision by 0:12:48.720 --> 0:12:54.280 a lower Hawaii court denying the oil company's motion to 0:12:54.400 --> 0:12:58.280 dismiss the case against them on the grounds that it's 0:12:58.440 --> 0:13:02.520 preempted by federal law. So we're waiting to see how 0:13:02.559 --> 0:13:06.840 the Hawaii Supreme Court rules on that issue. If the 0:13:06.880 --> 0:13:10.319 Hawaii Supreme Court upholds the lower court, then I think 0:13:10.400 --> 0:13:14.120 the next step in the Honolulu case is discovery, which 0:13:14.120 --> 0:13:17.640 of course the oil companies are terrified about, and that 0:13:18.160 --> 0:13:23.400 discovery will probably start to happen in twenty twenty four 0:13:24.120 --> 0:13:28.880 and a trial. Then we can expect to follow maybe 0:13:29.480 --> 0:13:33.760 starting in twenty twenty four, but more likely twenty twenty five. 0:13:34.000 --> 0:13:38.520 So the bottom line is we're still probably years away 0:13:39.200 --> 0:13:42.880 from a verdict on whether the oil companies are actually 0:13:43.000 --> 0:13:48.200 liable for their campaign of deceit regarding climate change. 0:13:48.360 --> 0:13:53.319 Turning to another environmental issue, pat President Joe Biden announced 0:13:53.360 --> 0:13:56.840 close to one million acres of public land around Grand 0:13:56.880 --> 0:14:00.840 Canyon National Park as a new national manuit through the 0:14:00.880 --> 0:14:01.880 Antiquities Act. 0:14:02.559 --> 0:14:06.640 Folks, preserving these lands is good, not only if Arizona, 0:14:06.760 --> 0:14:10.520 for the planet. It's good for the economy, it's good 0:14:10.559 --> 0:14:13.320 for the soul of the nation. And I believe, in 0:14:13.400 --> 0:14:15.560 my core and of course the right thing to do. 0:14:17.080 --> 0:14:23.080 Biden also restored two sprawling national monuments in Utah that 0:14:23.160 --> 0:14:25.920 were downsized by former President Trump. 0:14:27.440 --> 0:14:31.080 We want to restore protection for three national monuments gutted 0:14:31.080 --> 0:14:33.960 by the last administration, two not so far from here 0:14:34.000 --> 0:14:37.400 in Utah, the Grand Staircase and Bear's Ears. 0:14:38.680 --> 0:14:42.080 Is declaring a national monument well within the powers of 0:14:42.080 --> 0:14:43.520 the presidency. 0:14:43.560 --> 0:14:46.600 Well, we think it is, and I would certainly argue 0:14:46.600 --> 0:14:51.000 that it is. I will say this Judge Chief Justice Roberts, 0:14:52.440 --> 0:14:55.600 in a case that was challenging the designation of a 0:14:55.720 --> 0:15:03.520 marine National monument off the co of New England. He said, 0:15:04.400 --> 0:15:09.280 the question of the scope of the president's authority under 0:15:09.400 --> 0:15:14.119 the Antiquities Act, which is the act that authorizes these monuments, 0:15:14.400 --> 0:15:20.080 has never been resolved by the Supreme Court. So he 0:15:20.360 --> 0:15:25.040 sort of flagged in his mind anyway a question about 0:15:25.080 --> 0:15:29.360 whether the size of some of these monuments that are 0:15:29.360 --> 0:15:33.080 being designated is within the president's authority. So I think 0:15:33.080 --> 0:15:35.960 what we have to say on that is, certainly we 0:15:36.000 --> 0:15:40.000 are going to see litigation over what President Biden is doing, 0:15:40.360 --> 0:15:43.040 and that litigation is probably going to end up in 0:15:43.080 --> 0:15:46.040 the Supreme Court. And then it's a matter of cross 0:15:46.040 --> 0:15:46.680 your fingers. 0:15:46.920 --> 0:15:50.360 Yeah, because a judge dismissed the lawsuit from Utah that 0:15:50.520 --> 0:15:58.160 challenged his restoration of Bearsiers and Grand Staircase Escalante national monuments. 0:15:58.760 --> 0:16:01.680 Yeah, and those will go up on appeal. And now 0:16:01.760 --> 0:16:05.440 this latest designation in the Grand Canyon will also be challenged. 0:16:05.760 --> 0:16:09.920 So the litigation over the scope of the Antiquities Act authority, 0:16:10.320 --> 0:16:12.480 I think we're going to have to wait and see 0:16:12.520 --> 0:16:16.160 how that finally sugars off. As we say in Vermont, I. 0:16:16.200 --> 0:16:18.680 Like that saying I may use it myself, Thanks so much. 0:16:18.760 --> 0:16:22.080 Pat That's professor Pat Parento of the Vermont Law and 0:16:22.160 --> 0:16:27.000 Graduate School. A federal appeals court has ruled that a 0:16:27.080 --> 0:16:31.119 law banning gun possession by unlawful users of a controlled 0:16:31.120 --> 0:16:34.360 substance doesn't apply to someone who's sober at the time 0:16:34.400 --> 0:16:36.560 of the arrest. The US Court of Appeals for the 0:16:36.600 --> 0:16:40.560 Fifth Circuit overturned a conviction under the statute because there 0:16:40.640 --> 0:16:43.920 was no evidence the defendant was intoxicated at the time 0:16:43.920 --> 0:16:47.600 of his arrest. The panel said the law was unconstitutional 0:16:47.640 --> 0:16:51.360 as applied because it isn't consistent with the historical tradition 0:16:51.440 --> 0:16:54.960 of firearm regulation. Joining me his Second Amendment. Law expert 0:16:55.080 --> 0:16:58.960 Eric Rubin, a professor at the SMU Deadman's School of Law, 0:16:59.640 --> 0:17:01.680 Eric tell us about the Fifth Circuits decision. 0:17:02.040 --> 0:17:06.040 This case involved a challenge to a federal law that 0:17:06.640 --> 0:17:09.920 does the unlawful users of drugs or those who addicted 0:17:09.960 --> 0:17:14.640 to drugs cannot possess firearms, and in this particular case, 0:17:14.720 --> 0:17:17.679 the defendant said that he was a regular user of 0:17:17.760 --> 0:17:21.399 marijuana and because under federal law that's unlawful, he was 0:17:21.440 --> 0:17:23.960 therefore barred from possessing a firearm, but he had to 0:17:24.119 --> 0:17:27.320 firearms on him at the time and he challenged that 0:17:27.359 --> 0:17:29.440 as a violation of the Second Amendment rights. 0:17:29.800 --> 0:17:34.760 And so the Court applied the Supreme Court's recent history 0:17:34.920 --> 0:17:39.760 guidelines for analyzing the constitutionality of firearms laws. 0:17:39.800 --> 0:17:42.720 Tell us what their reasoning was the majority. 0:17:42.160 --> 0:17:45.320 Here, Yes, the Court was applying the twenty twenty two 0:17:45.440 --> 0:17:49.000 Supreme Court case Bruant, which says that in order for 0:17:49.040 --> 0:17:54.560 a modern firearm law addressing modern issues to be upheld 0:17:54.760 --> 0:18:01.120 as constitutional, the federal government has to point to analogous 0:18:01.200 --> 0:18:05.159 of regulations from the late seventeen hundreds or perhaps the 0:18:05.240 --> 0:18:09.960 eighteen hundreds. In the case of drug users, including marijuana users. 0:18:10.240 --> 0:18:15.080 That's a bit difficult because modern drug use is largely 0:18:15.080 --> 0:18:18.439 a twentieth century phenomenon with respect to marijuana and some 0:18:18.480 --> 0:18:22.359 other drugs. And so the Court said that there weren't 0:18:22.400 --> 0:18:26.479 sufficient analogs from the framing generation or from the eighteen hundreds. 0:18:26.480 --> 0:18:29.040 They spent a lot of time looking at restrictions on 0:18:29.320 --> 0:18:32.920 possession of firearms when somebody was under the influence of alcohol, 0:18:33.440 --> 0:18:37.360 and also of restrictions on gun possession by the mentally ill, 0:18:37.359 --> 0:18:40.720 and they ultimately found that those simply weren't analogous enough 0:18:41.000 --> 0:18:44.480 to a permanent bar on gun possession by unlawful users 0:18:44.520 --> 0:18:45.679 of marijuana today. 0:18:45.920 --> 0:18:49.359 The majority wrote, it's helpful to compare the traditions surrounding 0:18:49.400 --> 0:18:55.240 the insane and the traditions surrounding the intoxicated, side by side. 0:18:55.000 --> 0:18:57.880 Right and again. This is something that the Bruined decision 0:18:57.880 --> 0:19:01.400 back in twenty twenty two forces courts into this bizarre 0:19:01.440 --> 0:19:04.280 world where they have to try to draw analogies to 0:19:04.440 --> 0:19:07.600 regulations that were addressing different issues back in eighteen hundreds 0:19:07.680 --> 0:19:10.560 or seventeen hundreds in order to shore up the constitutionality 0:19:10.600 --> 0:19:13.840 of today's laws. And what the court acknowledged was that 0:19:13.840 --> 0:19:17.280 there are plenty of regulations barring gun possession or gun 0:19:17.400 --> 0:19:23.280 use when somebody is intoxicated by alcohol. But those laws 0:19:23.440 --> 0:19:26.880 the Court construed very narrowly, saying that they only applied 0:19:27.000 --> 0:19:30.200 back in eighteen hundreds or seventeen hundreds when somebody actually 0:19:30.320 --> 0:19:35.560 was intoxicated, unlike today's law barring gun possession by unlawful 0:19:35.640 --> 0:19:38.919 users of drugs, which applies even when somebody is not 0:19:39.400 --> 0:19:41.040 under the influence of the drug. 0:19:41.560 --> 0:19:47.240 So, in a concurring opinion, Judge Stephen Higginson said, it's 0:19:47.320 --> 0:19:51.600 possible that inferior officers such as myself are misinterpreting Bruin 0:19:51.960 --> 0:19:54.080 by focusing on the right to keep. 0:19:53.880 --> 0:19:55.000 And bear arms. 0:19:55.640 --> 0:19:58.080 And it may be the Supreme Court will remind us 0:19:58.080 --> 0:20:00.959 of the Second Amendment's middle where the the framers stated 0:20:01.080 --> 0:20:04.120 explicitly that they were fashioning aright necessary to. 0:20:04.080 --> 0:20:07.720 The security of a free state. What is he talking about. 0:20:07.400 --> 0:20:10.240 Here, Well, what he's talking about here is that in 0:20:10.320 --> 0:20:13.919 recent years, over the past ten or fifteen years, the 0:20:13.960 --> 0:20:17.880 Supreme Court and the lower courts have focused almost exclusively 0:20:17.920 --> 0:20:20.920 on the second half of the Second Amendment, the right 0:20:20.960 --> 0:20:23.719 to keep in bare arms shall not be infringed, and 0:20:23.840 --> 0:20:27.560 have ignored the first part of the Amendment, which discusses 0:20:27.920 --> 0:20:31.640 the militia and also the requirements for the security of 0:20:32.000 --> 0:20:34.920 a free state. And what the judge is pointing out 0:20:35.119 --> 0:20:37.760 is that a lot of modern regulations that might not 0:20:37.920 --> 0:20:42.439 have historical analogs actually could help us secure the state. 0:20:42.960 --> 0:20:45.919 But that aspect of the Amendment just isn't getting enough attention. 0:20:46.520 --> 0:20:50.440 Is that because the Supreme Court deliberately ignored that aspect 0:20:50.480 --> 0:20:53.119 of it and focused on the right to bear arms. 0:20:53.600 --> 0:20:53.840 Yeah. 0:20:53.920 --> 0:20:56.879 Under some views, the Supreme Court back in Heller in 0:20:56.880 --> 0:21:00.960 two thousand and eight, essentially ignored the first half the Amendment, 0:21:01.040 --> 0:21:05.119 saying that it does not expand or detract from the 0:21:05.200 --> 0:21:08.040 scope of the right to keeping bear arms, and that 0:21:08.280 --> 0:21:11.919 ruling that understanding of the Second Amendment from Heller has 0:21:12.160 --> 0:21:15.720 led to a rapid expansion, especially in recent years, of 0:21:15.760 --> 0:21:18.800 the scope of gun rights in this country, And what 0:21:18.880 --> 0:21:22.400 the concurring judge is saying is that perhaps it's time 0:21:22.440 --> 0:21:24.440 to take another look at that first half the Amendment. 0:21:25.000 --> 0:21:29.199 So though the Fifth Circuit's decision is limited to Louisiana, Mississippi, 0:21:29.240 --> 0:21:33.000 and Texas, could it potentially impact the federal case against 0:21:33.040 --> 0:21:36.200 Hunter Biden because he's charged in Delaware under the same 0:21:36.320 --> 0:21:39.879 statute that the Fifth Circuit is finding unconstitutional. 0:21:40.240 --> 0:21:43.560 Yeah, the reasoning in the Fifth Circuit's decision, even though 0:21:43.600 --> 0:21:46.719 it was a case involving marijuana, would seem to extend 0:21:46.800 --> 0:21:50.919 to other drugs as well, and it would seem to 0:21:51.800 --> 0:21:54.560 broadly limit the ability of the government to ban gun 0:21:54.600 --> 0:21:58.119 possession by unlawful users of drugs. And so that reason, 0:21:58.600 --> 0:22:02.520 because it's so expansive, it could be persuasive to other 0:22:02.560 --> 0:22:05.400 courts around the country. And if the Hunter Biden plea 0:22:05.480 --> 0:22:09.880 deal continues to unravel, I fully expect that there would 0:22:09.880 --> 0:22:13.280 be a strong second amendment argument that his attorneys would 0:22:13.320 --> 0:22:17.840 raise that his charge under the same provision that was 0:22:17.920 --> 0:22:21.840 ruled unconstitutional in the case in the Fifth Circuit would 0:22:21.880 --> 0:22:23.800 be unconstitutional to Hunter Biden as well. 0:22:24.320 --> 0:22:27.840 So the Fifth Circuit has now declared two federal gun 0:22:27.920 --> 0:22:33.359 statutes unconstitutional. Does it seem as if any gun statute 0:22:33.800 --> 0:22:39.840 now is going to be subject to being litigated under Bruin. 0:22:40.720 --> 0:22:40.920 Yeah. 0:22:40.920 --> 0:22:42.800 Well, one of the things that we've seen over the 0:22:42.880 --> 0:22:45.639 year after Brewin came up with this novel test that 0:22:45.680 --> 0:22:47.760 requires modern gun laws to be a nowog just to 0:22:47.840 --> 0:22:51.040 historical one is that courts are applying the same history 0:22:51.200 --> 0:22:55.000 differently in striking down or upholding the identical policies. So 0:22:55.040 --> 0:22:58.120 we have splits that are opening up all over the country, 0:22:58.160 --> 0:23:01.480 including on the issue of AREM possession by unlawful users 0:23:01.480 --> 0:23:03.760 of drugs. Most of the courts that have considered that 0:23:03.840 --> 0:23:08.160 law found it perfectly constitutional. And these aren't the only issues. 0:23:08.520 --> 0:23:11.239 The Fifth Circuit, being one of the most if not 0:23:11.320 --> 0:23:16.800 the most conservative appellate courts in the country, has been declaring, 0:23:16.840 --> 0:23:20.879 as you mentioned, a couple laws unconstitutional federal laws. But 0:23:20.960 --> 0:23:23.919 other courts around the country are reaching the opposite conclusion. 0:23:24.160 --> 0:23:26.520 So one of the things that a lot of Second 0:23:26.560 --> 0:23:29.840 Amendment scholars and experts are looking for is for more 0:23:29.840 --> 0:23:33.120 guidance from the Supreme Court that if this historical analogical 0:23:33.200 --> 0:23:36.760 test is going to be what applies in Second Amendment cases, 0:23:37.040 --> 0:23:39.360 there needs to be more guidance in terms of how 0:23:39.400 --> 0:23:42.920 to view history, how broadly or narrowly should he construed, 0:23:43.240 --> 0:23:45.760 Because right now we see a fair amount chaos in 0:23:45.800 --> 0:23:49.399 the lower courts across issues not just on the question 0:23:49.440 --> 0:23:51.919 of drugs and guns, but also on the questions of 0:23:51.960 --> 0:23:55.760 the constitutionality of assault weapons and ghost guns and large 0:23:55.760 --> 0:23:59.359 capacity magazines, and restrictions on domestic abusers and guns. And 0:23:59.440 --> 0:24:02.160 so this case and the split that had opened up 0:24:02.320 --> 0:24:05.600 is reflective of broader trends right now in the lower courts. 0:24:05.640 --> 0:24:08.440 In the wake of that twenty twenty two decisions grew there. 0:24:08.359 --> 0:24:11.240 Was a gun case before the Supreme Court next term, 0:24:11.320 --> 0:24:11.840 isn't there? 0:24:12.320 --> 0:24:14.760 Yes, this is the United States vi. Raheemi also out 0:24:14.760 --> 0:24:18.359 of the Fifth Circuit. That case involves domestic abusers. In 0:24:18.359 --> 0:24:21.359 that case, the Fifth Circuit said that it's unconstitutional to 0:24:21.920 --> 0:24:25.639 disarm temporarily those who were subject to domestic violence for 0:24:25.720 --> 0:24:29.080 straining orders. The Fifth Circuit in that case found that 0:24:29.240 --> 0:24:33.320 also to be an outlier regulation, an outlier modern regulation 0:24:33.400 --> 0:24:36.960 that our ancestors would not have accepted in that case. 0:24:37.040 --> 0:24:43.240 Is especially indicative of the challenges of applying this historical 0:24:43.320 --> 0:24:47.720 analogical test to modern gun regulations, because back at the framing, 0:24:47.920 --> 0:24:51.199 domestic violence wasn't viewed in the same way that we 0:24:51.280 --> 0:24:53.280 view it today. In fact, husbands had a right to 0:24:53.359 --> 0:24:56.480 chastisement where they could discipline their wives and were protected 0:24:56.520 --> 0:24:59.960 to do so, and could discipline their children. So domestic 0:25:00.080 --> 0:25:04.800 abuse itself is a phenomenon that is a modern one. 0:25:04.960 --> 0:25:09.200 Our appreciation of the risks of gendered violence in the home, 0:25:09.760 --> 0:25:13.680 and it's no surprise given that that the court was 0:25:13.760 --> 0:25:17.520 unable to find close analogs from back in the seventeen hundreds. 0:25:18.400 --> 0:25:22.920