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Speaker 1: This is bloombird law with June Brusso from Bloomberg radio.

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Speaker 1: Florida Governor Ron de Santis is doubling down on the

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Speaker 1: flights he chartered to send fifty undocumented immigrants from Texas

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Speaker 1: to Martha's Vineyard, saying they won't be the last. We

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Speaker 1: have to go and figure out. Okay, who are those

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Speaker 1: people likely to be? And if you can do it

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Speaker 1: at the source and divert to sanctuary jurisdictions, the chance

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Speaker 1: they end up in Florida's much less. But the sheriff

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Speaker 1: of the Texas County those immigrants were taken from, Javier Salazar,

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Speaker 1: says he's starting a criminal investigation. What infuriates me the

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Speaker 1: most about this case is that here we have forty

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Speaker 1: eight people that are already on on hard times right

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Speaker 1: they are here legally in our country. At that point,

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Speaker 1: they have every right to be where they are and

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Speaker 1: I believe that they were preyed upon. Somebody came from

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Speaker 1: out of state, preyed upon these people Um lured them

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Speaker 1: with promises of a better life, which is what they're

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Speaker 1: absolutely looking for. My Guest Is Immigration Law Expert Jack Chin,

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Speaker 1: a professor at U C Davis Law School. There have

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Speaker 1: been a record number of crossings at the southern border.

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Speaker 1: Apprehensions top two million for the first time ever. Is

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Speaker 1: this increase the result of Biden's immigration policies? Well, I

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Speaker 1: think the word has gotten around that it is more

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Speaker 1: possible to exercise your rights at the border than it

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Speaker 1: used to be and that some people are going to

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Speaker 1: be allowed in to have their asylum claims or other

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Speaker 1: claims for immigration status heard. So I think to some

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Speaker 1: extent it may be the result of more humane policies

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Speaker 1: under this administration than the last one. But I think

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Speaker 1: the main issue is that there's a lot of people

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Speaker 1: in a lot of trouble who are looking for a

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Speaker 1: safe place to live and work and to avoid the

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Speaker 1: economic and political and environmental problems that exist where they live.

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Speaker 1: The reason that there's a lot of people trying to

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Speaker 1: get to the United States and other countries is that

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Speaker 1: there are a lot of people who are in trouble

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Speaker 1: where they live now. So one million undocumented immigrants have

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Speaker 1: been allowed into the country legally. Are Most of those

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Speaker 1: seeking asylum. I believe that's right that if there's no

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Speaker 1: claim for lawful status, either based on some sort of

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Speaker 1: temporary or permanent immigration status as citizenship or asylum. They're

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Speaker 1: not going to let that many people in. Certain people

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Speaker 1: are paroled in temporarily for medical treatment and the other

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Speaker 1: small numbers and limited categories of people who get in temporarily.

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Speaker 1: But basically that's the rational. So asylum itself is a

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Speaker 1: long shot, isn't it? But it's easy to get past

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Speaker 1: the first part of the process, which is the credible

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Speaker 1: fear interview. Certainly there are a number of steps that

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Speaker 1: an applicant has to pass through and asylum probably is

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Speaker 1: a long shot for a lot of the people that

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Speaker 1: we're talking about, because you don't get asylum, you don't

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Speaker 1: get refugee status simply because your conditions are desperate at home.

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Speaker 1: has to be based on a fear of persecution for

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Speaker 1: one of a limited number of reasons, and simply environmental

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Speaker 1: disaster or economic disaster in and of itself isn't sufficient

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Speaker 1: to get you asylum. On the other hand, a lot

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Speaker 1: of people who are living in very difficult conditions at home.

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Speaker 1: It's not simply the economy or the environment. It also

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Speaker 1: gives rise to social problems, gangs, violence and other challenges

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Speaker 1: to living any sort of normal life that could fit

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Speaker 1: into the recognized asylent categories. So, turning now to current events,

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Speaker 1: last Wednesday Florida's governor, Rhond Santa's, chartered to planes and

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Speaker 1: sent about fifty migrants, men, women and children out of Texas,

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Speaker 1: which is about seven hundred miles from the Florida state line,

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Speaker 1: to Martha's Vineyard. Is there anything wrong with that legally? Well,

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Speaker 1: there might be a few things wrong with that legally.

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Speaker 1: One is you can't trick people into going somewhere, even

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Speaker 1: if you're the government. You can't say, for example, if

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Speaker 1: you get on this bus, drive to where it's going,

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Speaker 1: there'll be a job waiting for you. If there isn't

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Speaker 1: a job waiting for you. You can't deceive people. You

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Speaker 1: also can't force people to go where they don't want

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Speaker 1: to go, and so it's really going to depend on

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Speaker 1: what the underlying facts are. How and why did these

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Speaker 1: people get on the plane? What were they told? And

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Speaker 1: I think they're very well might have been conceivably some

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Speaker 1: deception involved, because I think a lot of people would

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Speaker 1: not want to just get on a plane and go

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Speaker 1: to Martha's vineyard with no place to stay and no

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Speaker 1: job and no reasonable prospect of any sort of settled situation.

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Speaker 1: So one wonders what those people were told or if

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Speaker 1: they voluntarily went on that particular journey. But if they

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Speaker 1: did voluntarily go and they were told more or less

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Speaker 1: what was going to happen to them when they got there,

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Speaker 1: then it's not necessarily a criminal offense or a even

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Speaker 1: necessarily a civil violation on the part of the people

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Speaker 1: who organized that particular excursion. That being said, there are

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Speaker 1: state interests here and it's not clear to me that

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Speaker 1: states have the right, even voluntarily, to scoop up their undesirable,

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Speaker 1: and here I'm air quotes, supposedly undesirable residents and ship

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Speaker 1: them to other states. For example, there's a lot of

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Speaker 1: history of patient dumping and of poor people dumping, and

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Speaker 1: we can imagine a situation where in any state there

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Speaker 1: might be sick people who are poor and use public hospitals.

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Speaker 1: And would it be legal for the government to say,

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Speaker 1: you know, we can identify a group of people, each

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Speaker 1: of whom uses hundreds of thousands of dollars of publicly

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Speaker 1: funded healthcare every year, and what we're gonna do is

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Speaker 1: we're going to tell them uh that we will give

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Speaker 1: each of them five thousand dollars if they get on

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Speaker 1: an airplane and are willing to be flown to another

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Speaker 1: state and there will come back. And assuming that those

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Speaker 1: people were told the truth about what was going to happen,

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Speaker 1: that wouldn't be a crime, it wouldn't be a civil

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Speaker 1: violation as to them, but it would be a big

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Speaker 1: problem state to state. We can't have a system where

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Speaker 1: states are taking, for example, their high cost medical patients or,

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Speaker 1: to take another example, people who commit crimes and are dangerous,

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Speaker 1: and just ship them to other states and say this

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Speaker 1: can be a situation that some other place can deal with.

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Speaker 1: That would not be a good policy for the United

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Speaker 1: States to have where each state was constantly trying to

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Speaker 1: ship it's supposedly undesirable residents to other places. Uh, and

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Speaker 1: we don't really do that now for good reason. And

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Speaker 1: if what's going on here, as it seems to be,

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Speaker 1: is that one state is trying to impose costs on

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Speaker 1: another state, I mean a lot of things are going

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Speaker 1: on here, then the core thing is a political stunt

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Speaker 1: that involves using people as pawns in a very humane way.

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Speaker 1: But another thing that seems to be going on is

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Speaker 1: that some states are trying to shift costs to other

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Speaker 1: states and that is something that in our federal system

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Speaker 1: very well might be illegal. That's never been litigated, has it?

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Speaker 1: There are instances that you mentioned in the past of

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Speaker 1: states shipping homeless people to other states. Has that ever

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Speaker 1: been litigated, though? Well, what's what's been litigated is the

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Speaker 1: flip side of it. Uh, there's a famous case called

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Speaker 1: Edwards versus California from the U S Supreme Court in

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Speaker 1: Nineteen one where California refused to allow certain allegedly poor

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Speaker 1: people to come into California and the Supreme Court said

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Speaker 1: this isn't acceptable, and part of it was the individual's

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Speaker 1: right to travel, but part of it was the state

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Speaker 1: to state relations that one state can't say this is

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Speaker 1: going to be your problem and not my problem. And

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Speaker 1: so you know, certain aspects of it have been laid litigated.

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Speaker 1: Is there a case on all fours that's exactly like this?

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Speaker 1: Not To my knowledge. Not To my knowledge, and I

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Speaker 1: think the reason is that every reasonable person knows that

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Speaker 1: this can only be a stunt because it wouldn't be

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Speaker 1: workable as a long term, consistent policy. You know, if

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Speaker 1: states started playing tip for tat, you know that would

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Speaker 1: be a very unpleasant situation and ultimately the states would

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Speaker 1: have to say, okay, okay, you know, we're going to

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Speaker 1: stop doing this because it would be costly and harmful

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Speaker 1: to the individuals involved and embarrassing. So it's not really

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Speaker 1: something that could be contemplated as an ongoing policy. So

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Speaker 1: this is uh, this is a prank and it's working

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Speaker 1: because it certainly has gotten a publicity that it's architects desired.

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Speaker 1: There is evidence there were brochures, there's evidence that the

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Speaker 1: migrants were falsely promised cash, work opportunities, schooling for children.

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Speaker 1: A lawyer's group for about thirty of them said that

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Speaker 1: our clients were induced to board planes and cross state

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Speaker 1: lines under false pretenses. The Sheriff of Bear County is

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Speaker 1: starting a criminal investigation, but he said he didn't know

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Speaker 1: exactly what laws were involved, and a Massachusetts State lawmaker

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Speaker 1: has requested a federal human trafficking investigation. I don't know

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Speaker 1: if this is another stunt to say that they're going

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Speaker 1: to criminally investigate. Well, as I say, I don't think

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Speaker 1: that you can tell people hey, travel from here to there,

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Speaker 1: spend your time doing that and when you get there

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Speaker 1: there will be these benefits for you there will be

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Speaker 1: these economic advantages for you. I don't think that you

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Speaker 1: can do that legally. I think that's fraud and the

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Speaker 1: exact crime that would it would be in different states,

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Speaker 1: you know, would vary from place to place, but I'm

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Speaker 1: willing to bet that there's no state where it's where

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Speaker 1: it's legal to induce people to spend their time and

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Speaker 1: money two do a bunch of things when the person

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Speaker 1: who induces that conduct has no intention of coming through

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Speaker 1: or knows that it won't come through, it's fraud in

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Speaker 1: one flavor or another. If that's the way that it happened,

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Speaker 1: and I personally don't know that, but if that's the

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Speaker 1: way that happened, that it happened, then it's fraud and

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Speaker 1: it very well might subject to the people who carried

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Speaker 1: that out to criminal liability. You know, there's a lot

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Speaker 1: of considerations, a lot of steps. Just like there's a

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Speaker 1: lot of steps between showing up at the border and

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Speaker 1: getting asylum. There's a lot of steps between an allegation

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Speaker 1: of criminal wrongdoing and somebody being convicted of a crime.

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Speaker 1: But if I had been asked, as a lawyer, is

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Speaker 1: it a good idea to have people travel from state

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Speaker 1: to state on an airplane that I've paid for based

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Speaker 1: on false pretenses. I'd say no, that that creates a

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Speaker 1: legal risk for inducing people to do things based on

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Speaker 1: false pretenses and you shouldn't do it because you might

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Speaker 1: be charged with a crime. I should point out that

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Speaker 1: governor to Santis has said that they knew what they

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Speaker 1: were doing. They signed waivers. I read that if they

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Speaker 1: were lured onto the planes that that could that that

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Speaker 1: would mean that there are crime victim and that would

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Speaker 1: automatically qualify them for a visa. I don't think it's

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Speaker 1: quite that simple, but certainly some victims of crime, if

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Speaker 1: they participate in an investigation as witnesses, there's a possibility

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Speaker 1: that they can get what's called you visa, but they're,

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Speaker 1: you know, substantial requirements, including a requirement of having suffered

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Speaker 1: physical or mental harm, and it only applies to certain

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Speaker 1: offenses and you know it's going to be a complicated process.

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Speaker 1: Texas governor has sent something like eleven thousand migrants from

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Speaker 1: Texas to Chicago, New York and Wash Ington, and the

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Speaker 1: mayors of those cities have said it's a crisis and

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Speaker 1: asked for the federal government to step in. Shouldn't the

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Speaker 1: federal governments step in here. I think the federal government

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Speaker 1: is being careful here not to fan the flames of

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Speaker 1: political controversy and I do think that the federal government

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Speaker 1: should take responsibility for managing people who are here applying

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Speaker 1: for asylum and refugee status. When we're dealing with overseas refugees,

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Speaker 1: there's a much more orderly procedure and there are destinations

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Speaker 1: and support systems. The Office of Refugee Resettlement is involved

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Speaker 1: and manages this, and it certainly would be helpful to

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Speaker 1: have something similar for people who show up at the border,

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Speaker 1: and an orderly process with a support system and a

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Speaker 1: protocol that would render some of these pranks and some

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Speaker 1: of these demonstrations unnecessary. But I don't think that it's

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Speaker 1: going to go on forever, I really don't. I think

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Speaker 1: there's going to be litigation. I think at some point

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Speaker 1: a state or the federal government is gonna find some

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Speaker 1: way to get involved and this is not going to

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Speaker 1: keep going in the way that it's been. At a minimum,

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Speaker 1: I would predict. I would bet you know, given the

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Speaker 1: lawyers are involved now, that there's going to be some

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Speaker 1: way to make sure that the individuals involved, the people

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Speaker 1: seeking asylum who are transported across the United States give

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Speaker 1: informed consent before they go. As I say, it seems

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Speaker 1: unlikely that they would have given informed consent as the

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Speaker 1: situation is now, because nobody wants to be driven somewhere

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Speaker 1: and dumped off with no support. That being said, to

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Speaker 1: the extent that the governors of Texas and Florida are

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Speaker 1: going to sanctuary jurisdictions, that does give them some cover

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Speaker 1: because they can say, look, these places said that they

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Speaker 1: wanted unauthorized migrants or people seeking a side Lem and

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Speaker 1: we're just giving them what they asked for. And so

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Speaker 1: I think that circumstance, to the extent that you have

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Speaker 1: a state legislature or a city council that's passed a

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Speaker 1: resolution that says we are a jurisdiction that protects unauthorized migrants, well,

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Speaker 1: that's going to fit into the argument of these governors.

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Speaker 1: So what happens? Let's say someone coming from Venezuela is

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Speaker 1: granted asylum, they're just left to their own devices at

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Speaker 1: that point. There is a widespread, if limited, network of

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Speaker 1: private humanitarian services available and there's a lot of people

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Speaker 1: out there in various communities who who try to help

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Speaker 1: people resettle. But as I understand it, what you get

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Speaker 1: when you get asylum is the right to stay in

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Speaker 1: the United States, but not necessarily a lot of benefits.

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Speaker 1: I think. What do you think about the possibility of

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Speaker 1: the human trafficking investigation? Is that going too far? Well,

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Speaker 1: I have no sympathy for these political stunts. I think

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Speaker 1: they're very inhumane. It doesn't strike me that it's at

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Speaker 1: the core of human trafficking or kidnapping if it's the

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Speaker 1: case that these people are not forced, and you know,

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Speaker 1: I wouldn't be surprised if some of them were coerced.

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Speaker 1: When we're talking about eleven th people, it does seem

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Speaker 1: pretty clear that a lot of them wouldn't have gone

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Speaker 1: if they had known what was really happening. But it

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Speaker 1: seems to me that the core of the deception isn't

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Speaker 1: that you're going to be forced to work or you're

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Speaker 1: going to be required to work even though you didn't

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Speaker 1: know what was really going to happen, that the core

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Speaker 1: of what's going on is that they were promised benefits

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Speaker 1: that that that they didn't get, but not so that

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Speaker 1: the people who were engaging in these stunts could obtain

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Speaker 1: their labor or services or anything like that. It doesn't

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Speaker 1: seem to me to be kidnapping or false imprisonment in

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Speaker 1: the sense of that they were held by force, they

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Speaker 1: were tricked into voluntarily going and that seems more like

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Speaker 1: fraud to me than kidnapping. And it doesn't seem like

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Speaker 1: human trafficking, because human trafficking has a connotation of people

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Speaker 1: who were forced to work, forced into sexual servitude, unlawfully confined,

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Speaker 1: that sort of thing. What's going on here is not

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Speaker 1: appetizing in any way, but it doesn't seem to me

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Speaker 1: that human trafficking is that is at the core of it.

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Speaker 1: We're dealing with people who were free at the beginning

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Speaker 1: of the trip and who were let loose at the

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Speaker 1: end of the trip. That's not exactly human trafficking as

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Speaker 1: I understand it. Thanks so much for being on the show, Jack.

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Speaker 1: That's Professor Jack Chin of U C Davis Law School.

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Speaker 1: After the U S Supreme Court throughout New York Central

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Speaker 1: Law that limited who could carry a handgun in public,

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Speaker 1: New York and other states rushed to pass legislation. New

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Speaker 1: York's band concealed weapons in most public places and increased

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Speaker 1: the requirements for obtaining concealed carry permit, for example by

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Speaker 1: requiring the list of social media accounts for the past

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Speaker 1: three years, four character references, sixteen hours of in person

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Speaker 1: training and two hours of live fire training. Though, federal

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Speaker 1: judge Glenn Suttaby denied a request to stop the law

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Speaker 1: from taking effect. His seventy eight page decision described at

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Speaker 1: length why he found the law to be unconstitutional. Joining

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Speaker 1: me as Andrew Willinger, executive director of the Duke's Center

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Speaker 1: for Firearms Law. So New York's new concealed carry law,

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Speaker 1: which was enacted pretty quickly after the Supreme Court's opinion,

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Speaker 1: is it almost as restrictive as the law of the

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Speaker 1: Supreme Court struck down. So what New York did very

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Speaker 1: shortly after the ruined decision came down is that it

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Speaker 1: revised its law to remove the specific aspect that the

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Speaker 1: supreme court had said was unconstitutional. So it removed this

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Speaker 1: requirement to show proper cause before one could obtain a

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Speaker 1: concealed carry license. But at the same time New York

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Speaker 1: took a number of steps to make its licensing regime

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Speaker 1: restrictive in other areas right. So it's sort of balanced

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Speaker 1: that out by adding a definition of good moral character

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Speaker 1: and then requiring certain submissions of applicants in order to

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Speaker 1: demonstrate good moral character. One aspect that got a lot

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Speaker 1: of attention is that the state also expanded its list

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Speaker 1: of sensitive places where guns are banned, so that list

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Speaker 1: became much longer. And so, you know, I think I

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Speaker 1: think you can say in New York, you know, address

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Speaker 1: the specific issue that was identified in brewing, which is

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Speaker 1: that a state can't require some kind of exceptional showing

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Speaker 1: by an applicant in order to obtain a concealed carry license.

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Speaker 1: But New York took other steps that were sort of

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Speaker 1: things that the court didn't provide clear guidance on and

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Speaker 1: brew in one way or the other. So in this

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Speaker 1: case the judge denied a request to stop the law

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Speaker 1: from going into effect, but then says the law could

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Speaker 1: be found unconstitutional. How does that make sense? Right, so

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Speaker 1: it is a little bit unusual what the judge did

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Speaker 1: in this case. The judge had sort of on a

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Speaker 1: on a very expedited schedule, briefing from the parties and

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Speaker 1: then had a hearing on the motion for a preliminary

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Speaker 1: injunction of this New New York law. And the reason

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Speaker 1: for that is that the law was said to go

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Speaker 1: into effect on September one. So this all happened in

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Speaker 1: a very short time period. And what the judge did

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Speaker 1: was he ultimately found that there was no standing to

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Speaker 1: challenge the law and the case was dismissed on those grounds.

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Speaker 1: But the judge also included about twenty or twenty five

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Speaker 1: pages of analysis of the likelihood of success on the

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Speaker 1: merits if the plaintiffs had standing. And what he said is,

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Speaker 1: you know, I'm include doing this because it could be

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Speaker 1: that the decision is appealed to the second circuit and

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Speaker 1: maybe the second circuit will find that there is standing,

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Speaker 1: in which case this is how I would have held.

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Speaker 1: And again, you know, it's worth noting that the judge

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Speaker 1: did actually have a hearing, an argument from the parties

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Speaker 1: on everything right, so I'm a standing issue and on

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Speaker 1: the on the likelihood of success. So this is how

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Speaker 1: he would have decided the case if he had reached

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Speaker 1: that part. So let's go over some of the reasons

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Speaker 1: that he thinks that the law might be unconstitutional. This

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Speaker 1: is a little technical, but the new law amidst the

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Speaker 1: phrase other than in self defense. So explain that. So

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Speaker 1: what New York did after the bruined decision came down

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Speaker 1: in in June and I think New York law was

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Speaker 1: passed just at the beginning of July. Is that there

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Speaker 1: was this requirement in the law already. That said, you know,

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Speaker 1: no license shall be issued unless the applicant meets a BC.

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Speaker 1: You know this list of criteria, and one of those

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Speaker 1: items on the list was that the applicant has to

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Speaker 1: be of good moral character. Now, the law previously didn't

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Speaker 1: provide any definition of what good moral character means. So

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Speaker 1: New York added a definition Um and that definition is

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Speaker 1: having the essential character, temperament and judgment necessary to be

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Speaker 1: entrusted with the weapon and to use it only in

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Speaker 1: a manner that does not endanger oneself or others. And

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Speaker 1: it's sort of that last phrase that the judge really

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Speaker 1: focused on and he said if you know, if you

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Speaker 1: read this literally, it would bar anyone from obtaining a

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Speaker 1: license who intends to use a weapon in a legitimate

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Speaker 1: defensive way. Right. So if you're trying to get a

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Speaker 1: concealed carry license because you want to defend yourself if

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Speaker 1: you are attacked, you know if you use a gun

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Speaker 1: in that situation you're almost certainly going to endanger the

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Speaker 1: attacker right. So any time that you you use a

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Speaker 1: weapon in self defense, it's going to endanger others. And

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Speaker 1: the judge says that that by in a literal interpretation,

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Speaker 1: preventing any de sensitive use of a gun, that this

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Speaker 1: is unconstitutional. And what about the definition of moral character?

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Speaker 1: It seems pretty broad and open to interpretation. Sure it's. Again,

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Speaker 1: so the sort of narrow is the opinion here is

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Speaker 1: of a judge would have just struck this down because

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Speaker 1: he says it doesn't allow for a gun to be

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Speaker 1: used in self defense. But that is the sort of

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Speaker 1: core Second Amendment right that the Supreme Court has identified.

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Speaker 1: So that's his main problem and that's sort of an

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Speaker 1: easy fix in some ways, right. The only thing that

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Speaker 1: New York really needs to do is add the words

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Speaker 1: other than in self defense at the end of that definition.

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Speaker 1: But the judge also says he would have struck down

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Speaker 1: this good moral character requirement in its entirety because he

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Speaker 1: would find that it gave too much discretion, subjective discretion,

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Speaker 1: to the licensing officer, in violation of brewing right. So

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Speaker 1: this is maybe more consequential because the judge is saying

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Speaker 1: that he reads Brewin to mean there can't be any

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Speaker 1: subjective criteria and has to just be sort of checking

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Speaker 1: the boxes of you meet the age requirement, you don't

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Speaker 1: have any disqualifying felonies, you know, it just has to

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Speaker 1: be only objective. Things like training, for example, would would

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Speaker 1: be okay, but anything that requires a subjective evaluation by

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Speaker 1: the officer is improper in the judge's view. And I

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Speaker 1: guess you know, I think that's a little bit of

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Speaker 1: a of an odd way to read Brewin because the

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Speaker 1: bruined decision explicitly sort of signs off on the licensing

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Speaker 1: regimes in a few states, Delaware, Connecticut and Rhode Islands Specifically,

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Speaker 1: that have essentially identical requirements in their laws. They require

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Speaker 1: good moral character or suitability, and I mean those are

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Speaker 1: subjective determinations sort of any way you slice it. The

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Speaker 1: Supreme Court says those licensing regimes are okay, but nevertheless,

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Speaker 1: in this opinion the judge would have held that sort

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Speaker 1: of one iota of subjectivity is a problem. So then

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Speaker 1: what about the laws requirement that the applicant provides social

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Speaker 1: media accounts used in the past three years? I mean,

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Speaker 1: someone would be doing the vetting of that. It seems

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Speaker 1: very discretionary. So this is, I thought, kind of a

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Speaker 1: curious section of the of the opinion. If you know,

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Speaker 1: the judge doesn't really provide detailed analysis of the social

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Speaker 1: media requirements. First he says that he would he would

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Speaker 1: find that the requirements to submit character references and go

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Speaker 1: to an in person interview is okay, that that's constitutional

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Speaker 1: in his view. But then he says that this social

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Speaker 1: media submission is problematic and he just sort of gives

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Speaker 1: a laundry list of reasons. Right, so there might be

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Speaker 1: a first amendment problem and there might be a fifth

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Speaker 1: amendment problem. It's too subjective. It implicates the self defense

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Speaker 1: issue as well, and so it's kind of hard to

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Speaker 1: tell what the actual basis for the holding would be.

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Speaker 1: You know that the judge identifies the fifth amendment. So

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Speaker 1: that's you know that you have a right against self

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Speaker 1: incrimination and says, you know, maybe if you can applicant

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Speaker 1: and has to disclose all of his or her social

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Speaker 1: media postings, that might require the applicant to incriminate themselves.

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Speaker 1: But that doesn't that doesn't actually seem to be a

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Speaker 1: theory that the plaintiffs in this case had articulated in

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Speaker 1: their pleadings. So I think this is something that the

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Speaker 1: court actually raised at the hearing and it's a little

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Speaker 1: bit of a head scratcher. I mean, I think the

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Speaker 1: First Amendment challenge to this provision is probably stronger and

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Speaker 1: probably something that it might be easier to understand right

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Speaker 1: that you know, if you if you're making some kind

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Speaker 1: of political post and then the licensing officer, you know,

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Speaker 1: takes issue with that and denize license on that basis,

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Speaker 1: that that would be a first amendment problem. But again,

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Speaker 1: there's not. There's not a ton of of analysis. Is

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Speaker 1: this requirement of providing social media accounts? Is that something

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Speaker 1: new that New York has? Do any other states have that?

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Speaker 1: That's a great question. Um, you know. So this is new.

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00:26:51,920 --> 00:26:54,399
Speaker 1: This is something that New York just passed in July.

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00:26:54,760 --> 00:26:58,560
Speaker 1: I don't believe any other states have a similar requirement

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00:26:58,840 --> 00:27:01,000
Speaker 1: in their licensing, whereas game right, I don't believe any

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00:27:01,040 --> 00:27:05,840
Speaker 1: other states require concealed carry licensed applicants to make any

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00:27:05,920 --> 00:27:09,640
Speaker 1: kind of social media specific submission. I'm not a hund

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00:27:09,720 --> 00:27:11,320
Speaker 1: percent sure on that, but I think it's a pretty

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00:27:11,359 --> 00:27:14,560
Speaker 1: novel approach that New York is taking and again it's

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00:27:14,560 --> 00:27:16,919
Speaker 1: they're sort of various theories that have been put forward

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00:27:16,960 --> 00:27:20,199
Speaker 1: about why it may or may not be constitutional, and

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00:27:20,240 --> 00:27:23,119
Speaker 1: I think the First Amendment one is probably the most compelling.

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00:27:23,240 --> 00:27:26,520
Speaker 1: But again you also see the discretion element playing out here,

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00:27:26,600 --> 00:27:30,000
Speaker 1: where it's unclear how this provision will work in practice. Right.

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00:27:30,000 --> 00:27:32,919
Speaker 1: So you know, is the licensing officer actually going to

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00:27:32,960 --> 00:27:36,560
Speaker 1: have discretions to deny an application based on a post that,

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00:27:37,040 --> 00:27:40,240
Speaker 1: you know, they themselves find to be objectionable, or is

450
00:27:40,280 --> 00:27:42,159
Speaker 1: there some kind of guidance given to them? Right, we

451
00:27:42,520 --> 00:27:44,840
Speaker 1: really don't know. It also seems like it's going to

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00:27:44,880 --> 00:27:49,520
Speaker 1: be difficult just to administer that, you know, without additional funding.

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00:27:49,600 --> 00:27:53,639
Speaker 1: Going through three years of social media accounts seems like

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00:27:53,680 --> 00:27:57,160
Speaker 1: a lot now. The judge also said that the states

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00:27:57,359 --> 00:28:02,280
Speaker 1: list of sensitive places is extensive. And it is extensive

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00:28:02,920 --> 00:28:06,119
Speaker 1: and I remember during the Supreme Corporal Arguments when the

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00:28:06,240 --> 00:28:11,119
Speaker 1: justices were talking about some places that might be considered sensitive,

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00:28:11,320 --> 00:28:13,520
Speaker 1: but they said, you know, you can't have all of Manhattan.

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00:28:13,720 --> 00:28:16,639
Speaker 1: Basically you can't have this broad brush. And this looks

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00:28:16,640 --> 00:28:20,120
Speaker 1: like a pretty broad brush. Yes, and the judge's opinion

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00:28:20,200 --> 00:28:22,920
Speaker 1: here goes back to that portion of brew and and

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00:28:23,640 --> 00:28:26,240
Speaker 1: you know, his issue seems to be that. You know

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00:28:26,359 --> 00:28:29,720
Speaker 1: he thinks what New York has done is to designate

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00:28:29,920 --> 00:28:34,440
Speaker 1: any place where people congregate in public and where there

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00:28:34,520 --> 00:28:37,359
Speaker 1: is presumptive access, you know, sort of easy access to

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00:28:37,440 --> 00:28:41,120
Speaker 1: law enforcement has a sensitive place. That's what the Supreme

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00:28:41,160 --> 00:28:44,239
Speaker 1: Court and Bruins said. You cannot do. You know, New

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00:28:44,320 --> 00:28:47,360
Speaker 1: York couldn't designate the entire island of Manhattan as a

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00:28:47,360 --> 00:28:50,760
Speaker 1: sensitive place just because it's very crowded and people congregate

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00:28:50,800 --> 00:28:53,280
Speaker 1: there and and there's a lot of police around. That's

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00:28:53,280 --> 00:28:56,320
Speaker 1: not okay. But I think the judge's view here of

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00:28:56,520 --> 00:29:00,480
Speaker 1: what can be a sensitive place is pretty narrow right.

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00:29:00,560 --> 00:29:03,040
Speaker 1: so He seems to think, and he actually says in

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00:29:03,040 --> 00:29:05,719
Speaker 1: this portion of the opinion that you would agree with

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00:29:05,760 --> 00:29:12,320
Speaker 1: the plaintiffs that brewin limited the list of what can

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00:29:12,360 --> 00:29:19,000
Speaker 1: be a sensitive place to only schools, government buildings, legislative assemblies,

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00:29:19,040 --> 00:29:22,440
Speaker 1: polling places and courthouses. Those are the five places that

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00:29:22,480 --> 00:29:26,160
Speaker 1: are specifically mentioned in the opinion and the judge here says, well,

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00:29:26,160 --> 00:29:28,640
Speaker 1: that's that's it right. I don't think that you know,

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00:29:28,680 --> 00:29:31,600
Speaker 1: anywhere else could be designated as a sensitive place. That's

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00:29:31,600 --> 00:29:35,040
Speaker 1: an odd way to look at Brewin, because Brewin explicitly

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00:29:35,120 --> 00:29:40,680
Speaker 1: says that courts should reason by analogy to historical sensitive

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00:29:40,720 --> 00:29:43,880
Speaker 1: places and that there might be new places that weren't

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00:29:43,920 --> 00:29:47,400
Speaker 1: listed or weren't specifically mentioned in that opinion. So I

485
00:29:47,440 --> 00:29:49,320
Speaker 1: think it's a little bit it's a little bit odd

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Speaker 1: that you would just just sort of cut it off

487
00:29:51,040 --> 00:29:54,920
Speaker 1: there and think that there there could be no expansion Um.

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00:29:55,280 --> 00:29:57,680
Speaker 1: And you know, the other thing I'll mention here just

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00:29:57,760 --> 00:30:00,840
Speaker 1: briefly is that the judge seems to say, you know,

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00:30:00,920 --> 00:30:03,280
Speaker 1: if I'm reading this correctly, he seems to say that

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Speaker 1: New York would need to come forward with the historical

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00:30:07,000 --> 00:30:12,200
Speaker 1: law that prohibited guns in every single place on the list.

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00:30:12,560 --> 00:30:15,000
Speaker 1: And again, I think that's that's a little bit strange, right.

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Speaker 1: You would think that these places would sort of rise

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00:30:17,040 --> 00:30:20,520
Speaker 1: or fall independently, and so you know that that that

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00:30:20,600 --> 00:30:22,719
Speaker 1: a court would walk through them and say, well, you know,

497
00:30:23,320 --> 00:30:26,320
Speaker 1: these places are sort of similar to schools and government buildings,

498
00:30:26,360 --> 00:30:28,840
Speaker 1: so it's okay to prohibit guns here, but you know

499
00:30:28,920 --> 00:30:31,760
Speaker 1: maybe on the subway it might not be as clear.

500
00:30:32,160 --> 00:30:34,120
Speaker 1: But here he seems to just sort of take a

501
00:30:34,240 --> 00:30:37,360
Speaker 1: broad brush and say, well, if there isn't a historical

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00:30:37,480 --> 00:30:41,440
Speaker 1: law that covers all these places, then New York's approaches

503
00:30:41,760 --> 00:30:45,440
Speaker 1: is unconstitutional. Maybe he's taking a page from the Supreme

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Speaker 1: Court's historical analysis lately. Thanks, Andrew. That's Andrew Willinger, executive

505
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Speaker 1: director of the Duke's Center for Firearms Law. And that's

506
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Speaker 1: it for this edition of the Bloomberg Law show. Remember

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00:30:56,840 --> 00:30:58,880
Speaker 1: you can always get the latest legal news on our

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00:30:58,960 --> 00:31:02,480
Speaker 1: Bloomberg Law pod cast. You can find them on apple podcasts,

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00:31:02,480 --> 00:31:07,360
Speaker 1: spotify and at www dot bloomberg dot com, slash podcast,

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00:31:07,600 --> 00:31:10,520
Speaker 1: slash law, and remember to tune to the Bloomberg law

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00:31:10,600 --> 00:31:13,760
Speaker 1: show every week night at ten PM Wall Street time.

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