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

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Speaker 2: About sixty six hundred non citizens were improperly registered to

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Speaker 2: vote in New Jersey in twenty twenty three in twenty

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Speaker 2: twenty four, and up to four hundred of them went

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Speaker 2: on to improperly cast ballots. Governor Mickey Cheryl blamed a

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Speaker 2: software error in the Motor Vehicle Commission system that registered

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Speaker 2: people to vote even though they had indicated they were

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Speaker 2: non citizens when obtaining drivers' licenses and identification cards.

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Speaker 3: This entire situation is unacceptable. It's unacceptable that the vendor

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Speaker 3: released software with such a glaring error. It's unacceptable that

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Speaker 3: the NBC took a year to get this issue fixed,

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Speaker 3: and it's unacceptable that no one in the previous administration

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Speaker 3: brought this to light, demanded accountability, or took action when

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Speaker 3: it happened years ago.

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Speaker 2: The state is removing ineligible voters from the rolls and

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Speaker 2: replacing the vendor that oversees the system. But this revelation

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Speaker 2: comes less than a week after President Trump and Department

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Speaker 2: of Homeland Security Secretary Mark Wayne Mullen claimed that hundreds

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Speaker 2: of thousands of non citizens are on voter rolls. Across

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Speaker 2: the country and.

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Speaker 4: Just four states, we've identified two hundred and fifty thousand

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Speaker 4: non citizens registered to vote in California and Pennsylvania, New Jersey,

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Speaker 4: and Nevada.

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Speaker 2: My guest is Jonathan Diaz, director of voting Advocacy and

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Speaker 2: Partnerships at the Campaign Legal Center. Jonathan explained what happened

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Speaker 2: in New Jersey.

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Speaker 5: So it appears that there was some sort of technological

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Speaker 5: error in New Jersey's DMV system where about six thousand

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Speaker 5: or so individuals who correctly identified themselves as non citizens.

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Speaker 5: You know, they weren't trying to register to vote, nevertheless,

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Speaker 5: were erroneously registered. New Jersey's election officials and governor made

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Speaker 5: this announcement. They identified this problem, They've directed officials to

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Speaker 5: remove them from the roles. They are fixing the glitch

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Speaker 5: in their driver's license system that caused this problem, and

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Speaker 5: this is I think an example of how the system

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Speaker 5: is supposed to work. The state and local officials who

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Speaker 5: are responsible for overseeing voter registration, identified a problem, made

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Speaker 5: it clear to the public, and announced steps to mitigate

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Speaker 5: the problem. You know, they don't need the federal government

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Speaker 5: to step in and do it for them.

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Speaker 2: The governor said that fewer than four hundred of these

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Speaker 2: non citizens cast ballots. So that means that hundreds of

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Speaker 2: non citizens did cast ballots improperly in the New Jersey elections.

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Speaker 5: So well, I think it's important to remember that more

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Speaker 5: than four point one million ballots were cast in New

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Speaker 5: Jersey in twenty twenty four. So that number, you know,

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Speaker 5: even if it was four hundred in total, that's less

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Speaker 5: than one percent a one percent, it's point zero zero

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Speaker 5: nine percent of the total votes cast in New Jersey

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Speaker 5: in twenty twenty four, which is nowhere near affecting the

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Speaker 5: outcome of any federal election that took place in New

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Speaker 5: Jersey in that year.

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Speaker 2: Will this give ammunition to the Trump administration in its

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Speaker 2: quest to show that there are non citizens on voter

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Speaker 2: rolls and non citizens are voting.

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Speaker 5: You know, it shouldn't, because there's nothing in any of

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Speaker 5: the proposals that the federal government has put forward that

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Speaker 5: would have addressed this scenario. This was a simple case

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Speaker 5: of human error, of technological error. Somebody misprogrammed the system.

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Speaker 5: And so you know, requiring as the Trump administration wants,

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Speaker 5: requiring voters to provide additional proof of citizenship to show

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Speaker 5: a passport or a birth certificate to register to vote

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Speaker 5: wouldn't have stopped this because these people said that they

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Speaker 5: were not citizens, they weren't trying to register to vote.

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Speaker 5: But you know, elections are run by people. Sometimes people

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Speaker 5: make mistakes. Sometimes there is a glitch in the system,

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Speaker 5: and you know, that's why we have safeguards built in

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Speaker 5: to ensure that it can be caught and fixed for

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Speaker 5: the next time. And even in a scenario like this

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Speaker 5: where there was a technological problem that did result in

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Speaker 5: some people being erroneously registered, it's not happening anywhere near

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Speaker 5: in the numbers on the scale that the President and

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Speaker 5: the White House are suggesting that it is. You know,

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Speaker 5: this is a tiny, tiny, tiny percentage of the votes,

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Speaker 5: so small that it doesn't affect the outcome. And so,

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Speaker 5: you know, in my view, this technological error, which is

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Speaker 5: really all that it is, does not justify the kind

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Speaker 5: of draconian restrictions that the Trump administration is proposing for

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Speaker 5: voter registration because those things they wouldn't have solved this problem,

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Speaker 5: and b would have prevented many more people than this

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Speaker 5: who are eligible from actually registering and voting.

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Speaker 2: Mark Wayne Mullen, DHS Secretary, said that in New Jersey

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Speaker 2: reviews found thirty five, one hundred and fifty two non

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Speaker 2: citizens registered. The governor said that we've asked them for

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Speaker 2: any evidence of this where they got that number, who

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Speaker 2: this is. We've received nothing back yet.

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Speaker 5: I don't know where DHS's numbers came from, nor does

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Speaker 5: New Jersey. You know, the announcement from New Jersey's governor

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Speaker 5: today seems to me to be completely unrelated from what

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Speaker 5: DOJ sent them. This was their own investigation into their

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Speaker 5: own system, which every state is doing all the time,

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Speaker 5: and I think that's that's the key takeaway here is

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Speaker 5: that state governments, who are the ones legally responsible for

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Speaker 5: running our elections, are constantly going through their voter registration

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Speaker 5: rules and their election systems to fix errors and to

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Speaker 5: make sure that they are as accurate as is humanly possible.

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Speaker 5: And what they don't need is wild accusations from the

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Speaker 5: federal government based on no evidence that they're doing it wrong.

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Speaker 5: You know, I think this incident in New Jersey shows

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Speaker 5: that states are more than capable of maintaining clean voter

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Speaker 5: roles and addressing the problems as they arise, because you know,

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Speaker 5: we have a very complicated election system and it's totally decentralized.

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Speaker 5: It's run by states and in most important ways, by

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Speaker 5: counties and municipalities. You know, one of the things that

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Speaker 5: makes it so resilient is that we don't have, you know,

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Speaker 5: a single national election infrastructure that could be compromised or

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Speaker 5: you know, have some problem with it that would affect everybody.

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Speaker 5: You know, every state runs its elections slightly differently, so

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Speaker 5: that's a lot of different structures and different systems where

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Speaker 5: there could be a technological issue, or a data entry problem,

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Speaker 5: or just a human mistake. But that's why state officials

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Speaker 5: like you know, the governor and in many places the

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Speaker 5: Secretary of State, the attorney general have oversight authorlorady and

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Speaker 5: are looking into things like this and you know, being

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Speaker 5: transparent about you know, where the system falls short and

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Speaker 5: what they're doing to fix it.

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Speaker 2: So the same software is going to be used for

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Speaker 2: the mid terms because they can't switch it over fast enough.

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Speaker 2: So that leads me to believe that if there's a

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Speaker 2: result in New Jersey that the Trump administration doesn't like,

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Speaker 2: that they'll use this to try to attack the results.

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Speaker 5: I'm sure that no matter what New Jersey officials say

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Speaker 5: or do, that the Trump administration is going to point

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Speaker 5: to this incident and you know, claim that New Jersey's

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Speaker 5: results can't be trusted. But that's why New Jersey, like

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Speaker 5: every state, has audits and recounts and you know, hand

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Speaker 5: marked paper ballots that can be checked after the fact.

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Speaker 5: And you know, that's why they're making this announcement now

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Speaker 5: and removing these ineligible individuals from the roles so that

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Speaker 5: this can't happen again in November. But regardless of what

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Speaker 5: New Jersey does, I expect the White House to use

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Speaker 5: this as ammunition, not just in you know, any claims

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Speaker 5: that they make about the results in November, but also

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Speaker 5: in their push to pass the Save America Act and

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Speaker 5: to enable federal agencies to have a bigger role or

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Speaker 5: take control of certain election administration functions despite their lack

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Speaker 5: of legal authority to do that.

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Speaker 2: I mean, it doesn't seem likely that DA just got

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Speaker 2: the numbers out of thin air. Might some of them

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Speaker 2: be reliable?

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Speaker 5: If you look at the numbers Secretary Mullen, you know,

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Speaker 5: released last week on Friday, and you compare not just

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Speaker 5: these New Jersey numbers, but you know, DHS and the

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Speaker 5: White House released data about a number of states who

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Speaker 5: have voluntarily shared their data with the federal government and

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Speaker 5: the White House, and DHS's numbers for states like Texas

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Speaker 5: and Louisiana are incredibly inflated compared to what those states

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Speaker 5: themselves are reporting. And even Texas reported lower numbers than

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Speaker 5: the White House did about you know, suspected non citizens

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Speaker 5: on their roles and then had to backtrack because they

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Speaker 5: had wrongfully identified naturalized citizens as being ineligible. So whenever

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Speaker 5: a federal or state agency makes you know, inflated claims

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Speaker 5: about huge numbers in the tens of thousands of you know,

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Speaker 5: ineligible registrants, I think we have to look at those

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Speaker 5: with some skepticism because almost inevitably they get walked back,

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Speaker 5: And especially in the case of DHS, there's just nothing

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Speaker 5: that they have given us in terms of where they

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Speaker 5: got their data, what methodology they used. We don't know

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Speaker 5: where those numbers came from. They could have pulled them

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Speaker 5: out of a hat. So if we're going to take

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Speaker 5: those numbers seriously, I think we need a lot more

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Speaker 5: information from DHS about how they came up with them.

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Speaker 2: Coming up next, more about the threats against election officials

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Speaker 2: and the Department of Justice is zero to sixteen in

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Speaker 2: its attempts to get unredacted data roles. This is Bloomberg.

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Speaker 2: Homeland Security Secretary Mark Wayne Mullen advanced an unsubstantiated claim

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Speaker 2: that the federal government has found two hundred and fifty

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Speaker 2: thousand non citizen voters on the roles in several states.

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Speaker 2: Mullen pledged to aggressively monitor public voter lists to pursue

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Speaker 2: potential voter fraud cases before and after the twenty twenty

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Speaker 2: sixth election. He also threatened state officials who don't go

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Speaker 2: along with the administration's election security demands.

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Speaker 4: If the election officials once we gave them the information

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Speaker 4: they need to secure their elections and they chose not to,

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Speaker 4: then those individuals can also be held accountable by fines,

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Speaker 4: by penalties, and even, depending on how far it goes,

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Speaker 4: prison time.

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Speaker 2: What does Mullen want the states to do? Is he

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Speaker 2: demanding that they put their voter rolls through the federal database, which,

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Speaker 2: by the way, using the program was recently blocked by

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Speaker 2: a federal judge over concerns about privacy and wrongful purges

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Speaker 2: of eligible voters.

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Speaker 5: That's a good question. DHS sent letters to these four states,

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Speaker 5: and those letters were pretty tame. They said, you know,

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Speaker 5: DHS had done an analysis and identified suspected, you know,

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Speaker 5: potential non citizens on the rules. Reminded the states that

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Speaker 5: you know, federal law requires them to maintain accurate voter

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Speaker 5: rules and that non citizens are prohibited from voting in

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Speaker 5: US elections. But then otherwise just kind of said, you know,

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Speaker 5: DHS is ready to help you if you need it.

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Speaker 5: The letters were very, very tame. His remarks on Friday

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Speaker 5: were not. And you know, in his speech he did

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Speaker 5: both say that DHS is directing the states to remove

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Speaker 5: all of those individuals from the rules, which number one,

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Speaker 5: DHS doesn't have the authority to direct states to do

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Speaker 5: anything with their voter rules. And number two, the states

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Speaker 5: can't just take thousands of people off the rules because

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Speaker 5: somebody in the federal government them to. There's a process

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Speaker 5: that they have to go through under both state and

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Speaker 5: federal laws to verify those claims. They have to do

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Speaker 5: their due diligence, they have to check. I imagine that

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Speaker 5: the states will they will take this seriously. But Secretary

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Speaker 5: Mullen also, much like Assistant Attorney General Harmy Dillon did

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Speaker 5: a couple of weeks ago, threatened election officials and said

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Speaker 5: that they'll be prosecuted if they don't cooperate with the

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Speaker 5: federal government. And I don't think that's an empty threat.

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Speaker 5: I think that this administration is very willing to lean

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Speaker 5: on its criminal enforcement authority and go after election officials

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Speaker 5: if they don't go along with the administration's policy priorities

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Speaker 5: when it comes to elections. Fortunately, I don't think that

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Speaker 5: those charges would hold up, and election officials have you know,

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Speaker 5: very good counsel kind of across the board have litigated

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Speaker 5: against a lot of them. They know what they're doing.

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Speaker 5: But it is alarming when senior officials in the federal

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Speaker 5: government are threatening state and local election officials with criminal prosecution.

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Speaker 5: You know, it's almost like it's like watching a mob movie.

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Speaker 5: Do what we want or else. And that's just not

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Speaker 5: the relationship that we have seen between the federal government

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Speaker 5: and the states in the past when it comes to elections.

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Speaker 5: And you know, the federal government typically provides resources and

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Speaker 5: support and assistants to state and local election officials in

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Speaker 5: carrying out their responsibilities. But this kind of aggressive posture

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Speaker 5: towards election officials is really something new.

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Speaker 2: As you mentioned, the Justice Department sent letters warning election

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Speaker 2: officials in all fifty states, you know, threatening criminal prosecution.

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Speaker 2: If election officials count any ballots cast by non citizens,

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Speaker 2: what law would they prosecute them under.

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Speaker 5: I mean, there is a federal statute that says that

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Speaker 5: only US citizens can vote in federal elections. I'm not

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Speaker 5: sure that that statute attaches liability to the chief election

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Speaker 5: official of a state. You know, that's the statute that

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Speaker 5: DJ would use to prosecute an individual who while ineligible,

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Speaker 5: And you know, I think that that is reflected in

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Speaker 5: the responses that DOJ got from some of the state

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Speaker 5: election officials, including several Republicans, who did not take kindly

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Speaker 5: to this, you know, explicit threat from the Justice Department.

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Speaker 5: The Secretary of State of Idaho sent a pretty harsh

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Speaker 5: response to the Department of Justice that was made public

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Speaker 5: that basically said, don't bully us. We know what the

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Speaker 5: laws are. It is our job to enforce them. It

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Speaker 5: is our job to carry them out. This is not

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Speaker 5: the way to you get what you want, and this

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Speaker 5: is not how a partnership between government officials is supposed

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Speaker 5: to work. The Lieutenant Governor of Utah, who is the

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Speaker 5: chief election official for that state, similarly had a very

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Speaker 5: kind of angry public response to the Department of Justice

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Speaker 5: sending these threatening letters out, you know, four months out

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Speaker 5: from an election that were not tied to any sort

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Speaker 5: of evidence or any specific investigation. It was the same

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Speaker 5: letter that went out to every state, and so, you know.

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Speaker 1: It's just.

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Speaker 5: It's just political messaging. Really, it's the administration trying to

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Speaker 5: show that they are being tough on this issue. It's

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Speaker 5: you know, people in DOJ and DHS trying to signal

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Speaker 5: to the president that they are taking it seriously. And

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Speaker 5: it's really having an effect on the state and local

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Speaker 5: election officials. Who are the ones being put on the

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Speaker 5: chopping block here, and they're the ones doing all the work.

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Speaker 5: They're the ones maintaining clean voter rules and you know,

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Speaker 5: running elections with no help from the federal government and

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Speaker 5: in fact now just just threats and bullying.

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Speaker 2: I have to say, though, prosecuting election officials because a

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Speaker 2: non citizen votes sounds like an empty threat, because that

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Speaker 2: would be such a difficult prosecution. Of course, the Trump

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Speaker 2: administration has been known to file charges even when the

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Speaker 2: proof is weak.

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Speaker 5: I think you're probably right, But you know, if they

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Speaker 5: do that, you know, election officials jobs don't end on

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Speaker 5: election day, they have lots of responsibilities in the weeks

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Speaker 5: and months that follow to canvass the results, to tabulate

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Speaker 5: the results, They have to do audits and recounts and

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Speaker 5: certify and all of that stuff. And even if they

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Speaker 5: are baseless charges, it takes a lot of time and

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Speaker 5: a lot of resources to defend against prosecution by the

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Speaker 5: federal government. And election officials are already spread very thin

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Speaker 5: as far as resources are concerned, just to do their jobs,

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Speaker 5: just to run the elections. And you know, if you're

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Speaker 5: a secretary of state, or even worse, if you are

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Speaker 5: a county election official with limited resources and you are

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Speaker 5: trying to complete your legal obligations to canvas and tabulate

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Speaker 5: and certify election results, and then all of a sudden,

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Speaker 5: you have to go to a federal courthouse to you know,

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Speaker 5: to an arraignment because DJ has filed criminal charges against you.

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Speaker 5: Even if those charges are ultimately dismissed a few months later,

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Speaker 5: it's a huge resource drain. It's incredibly disruptive to the

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Speaker 5: administration of the election and it's you know, emotionally and

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Speaker 5: physically taxing for election officials who haven't done anything wrong.

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Speaker 5: So even if ultimately the threats are empty, and DJ

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Speaker 5: is not able to convict anybody of anything, even just

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Speaker 5: the threat of prosecution or charges that maybe ultimately get dropped.

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Speaker 5: That puts a huge strain on election officials, on the

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Speaker 5: election system. And I worry that DJ is trying, you know,

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Speaker 5: along with the DHS and the White House, to undermine

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Speaker 5: the election system, both by putting this pressure on election

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Speaker 5: officials and by trying to convince the public of their

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Speaker 5: imagined problems with how our elections are run in an

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Speaker 5: effort to make it easier for them to overturn the

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Speaker 5: results if they don't like them.

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Speaker 2: So, do you think this would be then a repeat

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Speaker 2: of twenty twenty where Trump and his allies went to

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Speaker 2: court and claim the election was fraudulent or do you

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Speaker 2: anticipate something different or even worse.

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Speaker 5: It's hard to say, and I don't want to speculate

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Speaker 5: too much because I don't want to just like spin out.

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Speaker 5: You know, every single possibility in a way that you

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Speaker 5: know might might scare people with things that are not realistic.

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Speaker 5: But I think the big difference between now and twenty

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Speaker 5: twenty is that, you know, during the twenty twenty election,

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Speaker 5: most if not all, of the challenges to the results

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Speaker 5: came from outside of the government. It was the campaign

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Speaker 5: side of things that was really kind of driving the

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Speaker 5: car there, because you had people like Bill Barr, you know,

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Speaker 5: who was a loyal foot soldier in the Trump administration

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Speaker 5: for much much of his tenure, but who drew the

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Speaker 5: line at you know, getting the Justice Department involved in

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Speaker 5: challenging the results with no evidence. I don't think Todd

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Speaker 5: Blanche would have the same hesitations. I don't think that

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Speaker 5: cash Patel is going to be a guard rail here

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Speaker 5: and you know, keep the FBI from getting involved in

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Speaker 5: pursuing whatever false claims the president wants to pursue. Donald

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Speaker 5: Trump has much more unified control of his party, of

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Speaker 5: his government now than he did in twenty twenty. And

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Speaker 5: we've already seen the law enforcement arms of the federal government,

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Speaker 5: both through dj and DHS, already leaning on election officials

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Speaker 5: and trying to get themselves involved in election administration in

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Speaker 5: ways that they didn't during the first Trump term. He's

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Speaker 5: issued executive orders about elections this time around, and he

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Speaker 5: didn't do that last time. You know, those orders have

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Speaker 5: been largely blocked by the courts. But he's doing a

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Speaker 5: lot more with different arms of the federal government already.

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Speaker 5: So you know, if the midterms don't go his way

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Speaker 5: or his party's way, I expect that there'll be a

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Speaker 5: lot of spaghetti thrown at the wall. I think he's

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Speaker 5: going to try, you know, and pull every lever at

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Speaker 5: his disposal to change those results. And the reason he's

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Speaker 5: doing that is ultimately he doesn't have any power to

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Speaker 5: decide how the midterms go. That is up to the voters,

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Speaker 5: and so you know, he's getting increasingly desperate. I think

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Speaker 5: the speech and the declassification of documents and everything that's

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Speaker 5: happened in the last week is proof of that. But

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Speaker 5: you know, ultimately it is going to be up to

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Speaker 5: up to voters, up to the public, up to you know,

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Speaker 5: organizations like Campaign Legal Center who are litigating these issues

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Speaker 5: to ensure that the will of the voters ultimately prevails

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Speaker 5: in November, no matter which way it goes.

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Speaker 2: Let's turn now to the Department of Justice's quest to

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Speaker 2: get states to hand over unredacted voter roles. Doj is

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Speaker 2: oh in sixteen in that quest, So sixteen consecutive losses

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Speaker 2: in court handed to them by both Democratic and Republican appointees.

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Speaker 2: Why does the Justice Department want these unredacted voter roles.

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Speaker 5: It's a good question, because the Justice Department doesn't really

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Speaker 5: have a role when it comes to voter registration. You know,

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Speaker 5: I think that it has become apparent over the last

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Speaker 5: several months, year and a half that the administration is

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Speaker 5: engaged in an increasingly desperate attempt to manufacture some kind

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Speaker 5: of evidence to support the president's false claims about elections.

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Speaker 5: And the folks that DOJ are either convinced or just

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Speaker 5: trying to make the president happy, but they're convinced that

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Speaker 5: they will be able to find evidence of illegal registrations

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Speaker 5: or non citizens on the rules if they can just

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Speaker 5: get their hands on the state's unredacted voter files and

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Speaker 5: waive some kind of magic wand to investigate all of

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Speaker 5: those millions of voters. But unfortunately for them, the federal

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Speaker 5: government has no legal authorization to obtain those files or

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Speaker 5: do anything with them. And so when thirty states and

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Speaker 5: DC refused to turn over their citizens private data to

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Speaker 5: the federal government, DOJ sued. They filed thirty one lawsuits

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Speaker 5: and I think as of this morning they have lost

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Speaker 5: sixteen of those and one zero.

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Speaker 2: Yes, So that's sixteen consecutive losses in court, and that

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Speaker 2: was handed down by both Democratic and Republican appointed judges,

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Speaker 2: a bad streak and one loss at the Sixth Circuit.

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Speaker 2: So what are the reasons that judges across the ideological

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Speaker 2: spectrum are turning DOJ down.

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Speaker 5: Well, so there's a few different rationales that the judges

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Speaker 5: are offering. But you're right that it has been consistent

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Speaker 5: in all of the cases that have reached your decision

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Speaker 5: so far from judges from across the ideological spectrum, including

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Speaker 5: judges appointed by Donald Trump. But you know, DJ is

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Speaker 5: claiming that it needs the full unredacted voter files to

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Speaker 5: enforce either the Civil Rights Act or the Help America

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Speaker 5: Vote Act, you know, two federal statutes that that DOJ

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Speaker 5: does have the responsibility to enforce. But the judges are just.

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Speaker 1: Not buying it.

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Speaker 5: You know, DOJ is giving conflicting rationales in court that

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Speaker 5: are inconsistent with the purpose of the statute and their

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Speaker 5: basis for the request. These requests are highly unusual. You know,

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Speaker 5: DJ has enforced these statutes for decades without making these

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Speaker 5: kinds of requests. And it's clear based on other kind

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Speaker 5: of out of court statements that DOJ leaders and folks

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Speaker 5: at DHS have made that the real purpose for DOJ

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Speaker 5: seeking this information is to not just attempt to verify

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Speaker 5: the citizenship of voter registrants, which is again not DOJ's job,

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Speaker 5: but also to facilitate immigration enforcement. And DOJ just does

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Speaker 5: not have the legal authority to demand this data from

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Speaker 5: the States and certainly doesn't have the legal authority to

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Speaker 5: do what they are planning to do with it.

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Speaker 2: So in that Sixth Circuit decision, the Sixth Circuit has

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Speaker 2: a conservative majority. It was two to one with the

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Speaker 2: dissenting judge at Trump appoint d. The DOJ is asking

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Speaker 2: for rehearing by the full sixth Circuit, where the balance

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Speaker 2: will be Republican appointees. I assume, so my things change

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Speaker 2: when the full sixth Circuit here's the case.

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Speaker 5: It's certainly possible. And despite their you know, sixteen district

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Speaker 5: court losses, they've also appealed many of those to other

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Speaker 5: circuit courts, So, you know, the first, the fourth, the seventh,

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Speaker 5: the ninth circuit courts across the country are now hearing

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Speaker 5: these appeals. But I think that the Trump administration is

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Speaker 5: really banking on you know, conservative circuit courts seeing things

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Speaker 5: their way. I don't know that that's a really safe bet,

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Speaker 5: given how many conservative district court judges have really strongly

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Speaker 5: ruled against them. You know, this isn't the sort of ideological,

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Speaker 5: really politically charged sort of issue that you know, we've

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Speaker 5: sometimes seen judges break across partisan lines on. It's been

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Speaker 5: across the board, just resounding losses for the Justice Department,

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Speaker 5: because the statutes are very clear. It's not just DOOG,

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Speaker 5: you know, DHS, the White House. There are so many

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Speaker 5: arms of the federal government that are attempting to insert

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Speaker 5: themselves into election administration in ways that we've really never

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Speaker 5: seen before. And I think especially you know, conservative minded

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Speaker 5: judges who maybe are more inclined to favor small government

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Speaker 5: or be skeptical of federal overreach are looking at these

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Speaker 5: actions with a lot of skepticism because it really is

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Speaker 5: so far outside what the traditional role of the federal

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Speaker 5: government in elections is and what very limited authorities DJ

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Speaker 5: has been given by Congress in this area.

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Speaker 2: They have gotten voter roles from some Republicans led states, right.

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Speaker 5: That's right. There are several states about fifteen or sixteen

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Speaker 5: maybe who did voluntarily turn over their full unredacted voter

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Speaker 5: files so that the federal government could run them through

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Speaker 5: the SAVE system, which is a program within DHS that

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Speaker 5: used to be fairly limited. It was limited really to

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Speaker 5: verifying the immigration status of folks who were seeking to

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Speaker 5: apply for federal benefits. The federal government under the second

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Speaker 5: Trump administration has radically modified that system to introduce a

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Speaker 5: whole bunch of different data sources about non immigrants from

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Speaker 5: you know, the Social Security Administration, from uscis, from the

438
00:26:24,640 --> 00:26:28,080
Speaker 5: State Department, in an effort to try and build a

439
00:26:28,160 --> 00:26:32,840
Speaker 5: kind of national citizenship registry that they can then use

440
00:26:33,080 --> 00:26:38,760
Speaker 5: for things like verifying voter eligibility or immigration enforcement or

441
00:26:39,040 --> 00:26:42,119
Speaker 5: whatever purpose they want. That effort has also been blocked

442
00:26:42,160 --> 00:26:44,919
Speaker 5: by federal courts. You know, there's an injunction from a

443
00:26:44,960 --> 00:26:48,880
Speaker 5: court in DC that found that DHS was not authorized

444
00:26:48,880 --> 00:26:51,119
Speaker 5: to make all of these changes to the SAFE system,

445
00:26:51,680 --> 00:26:54,919
Speaker 5: which is of course directed by Congress. They violated the

446
00:26:54,920 --> 00:26:59,080
Speaker 5: Federal Privacy Act by taking all of these data sources

447
00:26:59,119 --> 00:27:01,520
Speaker 5: from other arms of the federal government and using them

448
00:27:01,560 --> 00:27:04,200
Speaker 5: for purposes that they were not authorized to use them for,

449
00:27:04,880 --> 00:27:07,800
Speaker 5: or sharing them with agencies who were not authorized to

450
00:27:07,880 --> 00:27:10,480
Speaker 5: have that data. And so, you know, it's again, it's

451
00:27:10,520 --> 00:27:16,480
Speaker 5: another example of really shocking overreach by the federal government

452
00:27:16,560 --> 00:27:23,120
Speaker 5: inserting itself into the voter registration and election administration process

453
00:27:23,359 --> 00:27:28,359
Speaker 5: that is, you know, entirely handled by state and local governments.

454
00:27:28,600 --> 00:27:31,119
Speaker 5: The federal government doesn't run our elections. They don't you know,

455
00:27:31,160 --> 00:27:33,400
Speaker 5: they don't check our voter rules, you know. So it's

456
00:27:33,600 --> 00:27:36,119
Speaker 5: it's really, I think part of a broader effort by

457
00:27:36,800 --> 00:27:40,679
Speaker 5: the Trump administration to cast doubt on the integrity of

458
00:27:40,680 --> 00:27:45,680
Speaker 5: our elections, to find or manufacture evidence in support of

459
00:27:46,760 --> 00:27:49,480
Speaker 5: the conspiracy theories threat spread by the president and his

460
00:27:49,560 --> 00:27:53,159
Speaker 5: allies about the twenty twenty election and any other election

461
00:27:53,359 --> 00:27:57,480
Speaker 5: that he or his allies lose. And you know, fortunately,

462
00:27:58,359 --> 00:28:02,600
Speaker 5: the courts are really kind of holding the line and

463
00:28:02,760 --> 00:28:07,280
Speaker 5: saying no, doj and dhs. You can't just build election

464
00:28:07,320 --> 00:28:13,560
Speaker 5: administration infrastructure without congressional authorization. The Constitution gives the responsibility

465
00:28:13,600 --> 00:28:17,360
Speaker 5: to run elections to the states unless Congress passes a bill,

466
00:28:17,480 --> 00:28:18,400
Speaker 5: and they haven't done that.

467
00:28:19,280 --> 00:28:21,840
Speaker 2: Thanks so much for sharing your insights with us. Jonathan.

468
00:28:22,119 --> 00:28:26,439
Speaker 2: That's Jonathan Diaz, director of voting Advocacy and Partnerships at

469
00:28:26,480 --> 00:28:29,720
Speaker 2: the Campaign Legal Center. Coming up next on the Bloomberg

470
00:28:29,800 --> 00:28:34,240
Speaker 2: Law show the Third Circuit strikes down New Jersey's assault

471
00:28:34,320 --> 00:28:38,240
Speaker 2: weapons ban, sending a circuit split to the Supreme Court.

472
00:28:38,640 --> 00:28:43,360
Speaker 2: I'm June Grosso and you're listening to Bloomberg. The Court

473
00:28:43,360 --> 00:28:47,240
Speaker 2: of Appeals for the Third Circuit struck down New Jersey's

474
00:28:47,360 --> 00:28:51,880
Speaker 2: assault rifle ban, ruling that the state can't stop residents

475
00:28:51,920 --> 00:28:56,640
Speaker 2: from purchasing semi automatic rifles and magazines that hold more

476
00:28:56,640 --> 00:29:01,000
Speaker 2: than ten rounds of ammunition. The ruling conflicts with decisions

477
00:29:01,000 --> 00:29:05,360
Speaker 2: from other federal circuits that upheld assault rifle bands in

478
00:29:05,400 --> 00:29:10,360
Speaker 2: other states. Joining me is Bloomberg Law Senior correspondent Alex Ebert.

479
00:29:10,760 --> 00:29:14,400
Speaker 2: Alex tell us about the Third Circuits reasoning and striking

480
00:29:14,440 --> 00:29:15,880
Speaker 2: down this law.

481
00:29:16,360 --> 00:29:20,440
Speaker 6: The Third Circuit here steps into the breach created after

482
00:29:20,680 --> 00:29:25,000
Speaker 6: we've had Heller, Bruin, Raheemi, and now Wolford to say,

483
00:29:25,080 --> 00:29:27,680
Speaker 6: where is the Supreme Court going here and how would.

484
00:29:27,440 --> 00:29:29,040
Speaker 1: They decide this case?

485
00:29:29,160 --> 00:29:34,520
Speaker 6: And they say, like Heller, because these firearms are commonly

486
00:29:34,680 --> 00:29:39,840
Speaker 6: used for a lawful purpose self protection, hunting, etc. Then

487
00:29:40,000 --> 00:29:42,880
Speaker 6: they fall under protection of the Second Amendment and states

488
00:29:42,920 --> 00:29:46,560
Speaker 6: can't ban their use. You know, we're talking here about

489
00:29:46,600 --> 00:29:50,680
Speaker 6: one of the most popular firearms in the country. They're ubiquitous.

490
00:29:51,200 --> 00:29:54,280
Speaker 6: Millions of these things are owned, and so the question

491
00:29:54,400 --> 00:29:57,719
Speaker 6: that these judges tried to tackle is looking at Heller

492
00:29:58,000 --> 00:30:01,480
Speaker 6: because of the popularity here and the fact that the

493
00:30:01,480 --> 00:30:03,600
Speaker 6: Supreme Court has told us we need to look for

494
00:30:03,680 --> 00:30:07,920
Speaker 6: historic analogs, how do we square those things and do

495
00:30:08,000 --> 00:30:11,160
Speaker 6: we stop New Jerseyans for purchasing one of the most

496
00:30:11,200 --> 00:30:13,280
Speaker 6: common popular firearms in the country.

497
00:30:13,680 --> 00:30:17,440
Speaker 2: And so they couldn't find any historical analogs.

498
00:30:17,160 --> 00:30:21,360
Speaker 6: Or they historical analog piece of it was really fraught

499
00:30:21,560 --> 00:30:24,520
Speaker 6: and complex. We've had a couple of oral arguments in

500
00:30:24,560 --> 00:30:28,120
Speaker 6: this case. In it New Jersey has pointed to historic

501
00:30:28,200 --> 00:30:32,920
Speaker 6: analogs referring to weapons like bowie knives, slung shots, which

502
00:30:32,960 --> 00:30:36,520
Speaker 6: are weapons that were used mainly by sailors, and other

503
00:30:36,600 --> 00:30:41,240
Speaker 6: weapons that were banned in part or restricted greatly, especially

504
00:30:41,320 --> 00:30:44,960
Speaker 6: around the time of reconstruction in the eighteen sixties. But

505
00:30:45,040 --> 00:30:48,880
Speaker 6: the majority here they're going back to seventeen ninety one

506
00:30:49,000 --> 00:30:52,240
Speaker 6: and they're saying around the time of the founding, these

507
00:30:52,400 --> 00:30:55,880
Speaker 6: analogs matter more and we didn't see those kind of bands.

508
00:30:57,080 --> 00:31:00,680
Speaker 2: This was a decision by the full third zon so

509
00:31:01,040 --> 00:31:05,440
Speaker 2: On Bank. It was ten to five. Is this circuit

510
00:31:05,800 --> 00:31:08,080
Speaker 2: more conservative or more liberal?

511
00:31:08,400 --> 00:31:14,240
Speaker 6: The third Circuit has a slight tip toward conservative appointed judges.

512
00:31:14,840 --> 00:31:18,640
Speaker 6: This happened just recently with the appointment of Emil Beauvet

513
00:31:19,360 --> 00:31:22,760
Speaker 6: and Mascot, two recent Trump appointees, and so they have

514
00:31:22,920 --> 00:31:27,880
Speaker 6: slightly tipped the court toward a conservative bent. Once that's happened,

515
00:31:27,920 --> 00:31:31,200
Speaker 6: we've seen them take en banc cases like this one

516
00:31:31,800 --> 00:31:34,480
Speaker 6: to move the law in a direction that comports with

517
00:31:34,520 --> 00:31:35,720
Speaker 6: how these judges see it.

518
00:31:35,800 --> 00:31:39,200
Speaker 2: This came to an o bank hearing in a weird way.

519
00:31:39,360 --> 00:31:42,800
Speaker 2: So normally you have a three judge panel making a

520
00:31:42,840 --> 00:31:46,800
Speaker 2: decision and then a losing party may request an on

521
00:31:47,000 --> 00:31:50,640
Speaker 2: bank hearing. But here they just scrapped a decision by

522
00:31:50,680 --> 00:31:52,000
Speaker 2: the three judge panel.

523
00:31:52,320 --> 00:31:53,800
Speaker 1: They scrapped it, that's right.

524
00:31:53,840 --> 00:31:58,080
Speaker 6: They did it before a decision was issued, which is uncommon.

525
00:31:58,920 --> 00:32:02,320
Speaker 6: This might be because we had a panel decision in

526
00:32:02,400 --> 00:32:06,840
Speaker 6: sensitive places another issue regarding New Jersey regulation of where

527
00:32:06,880 --> 00:32:09,960
Speaker 6: you can take your firearms and especially on private property

528
00:32:10,000 --> 00:32:13,960
Speaker 6: where safety is an issue, and the judges here decided

529
00:32:14,120 --> 00:32:17,640
Speaker 6: we're going to take this firearm ban and magazine ban.

530
00:32:18,080 --> 00:32:19,520
Speaker 6: We're going to take an on bank and have it

531
00:32:19,560 --> 00:32:21,800
Speaker 6: heard by the whole court before the panel can even

532
00:32:21,880 --> 00:32:22,960
Speaker 6: issue a decision.

533
00:32:23,360 --> 00:32:27,440
Speaker 2: That is unusual, to say the least, tell us about

534
00:32:27,480 --> 00:32:28,600
Speaker 2: the dissenting opinion.

535
00:32:29,440 --> 00:32:31,640
Speaker 6: The split we have here is really interesting because we

536
00:32:31,760 --> 00:32:36,680
Speaker 6: have some liberal judges or those appointed by liberal presidents

537
00:32:36,680 --> 00:32:39,480
Speaker 6: in the majority, and we have a conservative judge in

538
00:32:39,520 --> 00:32:43,720
Speaker 6: the Descent. And the Descent says here, listen, you're creating

539
00:32:43,800 --> 00:32:48,200
Speaker 6: what amounts to a popularity test. You're saying that if

540
00:32:48,880 --> 00:32:53,160
Speaker 6: gun owners and the gun industry can sell and people

541
00:32:53,240 --> 00:32:57,680
Speaker 6: purchase something ahead of where states can regulate it, then

542
00:32:57,840 --> 00:33:01,160
Speaker 6: that imports a right to own this, regardless of how

543
00:33:01,240 --> 00:33:04,800
Speaker 6: dangerous something might be. That's the big contention that you'll

544
00:33:04,840 --> 00:33:07,920
Speaker 6: hear from folks that are in favor of restricting right.

545
00:33:08,360 --> 00:33:12,000
Speaker 6: You can't just decide that something is protected because it's popular,

546
00:33:12,560 --> 00:33:16,720
Speaker 6: or you can't decide something's unprotected because it's unpopular. That's

547
00:33:16,800 --> 00:33:19,920
Speaker 6: the thrust of what the Descent is saying. But they're

548
00:33:19,960 --> 00:33:23,800
Speaker 6: also saying, look at these analogs from the eighteen sixties,

549
00:33:24,360 --> 00:33:28,080
Speaker 6: they're going to give you some sort of close historic

550
00:33:28,200 --> 00:33:31,160
Speaker 6: precedent for states regulating in this area.

551
00:33:31,920 --> 00:33:34,480
Speaker 2: This is the first time a federal appeals court has

552
00:33:34,520 --> 00:33:37,280
Speaker 2: struck down a State's assault weapons ban.

553
00:33:37,880 --> 00:33:38,080
Speaker 1: Right.

554
00:33:38,280 --> 00:33:41,080
Speaker 2: Other circuits have ruled on this, Yes.

555
00:33:40,880 --> 00:33:43,840
Speaker 6: Other circuits have ruled on it. It is the first

556
00:33:43,880 --> 00:33:47,600
Speaker 6: one against the dog pile that we've seen in other circuits,

557
00:33:47,640 --> 00:33:51,760
Speaker 6: including opinions with judges on them that have been appointed

558
00:33:51,760 --> 00:33:55,160
Speaker 6: by President Trump. And the folks I've spoken with on

559
00:33:55,200 --> 00:33:58,160
Speaker 6: background that are familiar with this litigation from the firearm

560
00:33:58,240 --> 00:34:01,960
Speaker 6: rights perspective, they're really hopeful that this could tee up

561
00:34:02,000 --> 00:34:05,000
Speaker 6: a strong argument before the US Supreme Court, who is

562
00:34:05,040 --> 00:34:07,960
Speaker 6: going to be taking this issue on an assault rifle

563
00:34:08,000 --> 00:34:09,560
Speaker 6: ban in the next term.

564
00:34:10,200 --> 00:34:11,080
Speaker 1: They see a lot.

565
00:34:10,960 --> 00:34:16,120
Speaker 6: Of promise in this idea of something being considered dangerous

566
00:34:16,280 --> 00:34:19,680
Speaker 6: and unusual being tied to whether or not as popular,

567
00:34:20,080 --> 00:34:23,399
Speaker 6: and giving power to the people to choose what they

568
00:34:23,520 --> 00:34:27,400
Speaker 6: see they need for self defense. So they're really encouraged

569
00:34:27,400 --> 00:34:30,919
Speaker 6: by this ruling, and they're also frankly really encouraged by

570
00:34:31,880 --> 00:34:35,480
Speaker 6: a Biden appointee being the person to write a decision

571
00:34:35,520 --> 00:34:39,120
Speaker 6: saying we're going to look for precedent in the seventeen

572
00:34:39,200 --> 00:34:42,839
Speaker 6: nineties instead of the eighteen sixties, where you just have

573
00:34:42,920 --> 00:34:46,480
Speaker 6: a lot less regulation of firearms because these sort of

574
00:34:46,560 --> 00:34:50,720
Speaker 6: weapons were not as concerning and they were really essential

575
00:34:50,840 --> 00:34:52,320
Speaker 6: to fighting off the British.

576
00:34:52,640 --> 00:34:57,319
Speaker 2: The Supreme Court agreed to hear kapeals of rulings upholding

577
00:34:57,520 --> 00:35:01,120
Speaker 2: assault rifle bands in Illinois and can even though there

578
00:35:01,200 --> 00:35:03,400
Speaker 2: was no split in the circuits at that point.

579
00:35:04,239 --> 00:35:06,320
Speaker 6: That's correct. Even though there was no split in the

580
00:35:06,360 --> 00:35:10,440
Speaker 6: circuits at that point. And you hear folks on background

581
00:35:10,480 --> 00:35:14,279
Speaker 6: from the liberal perspective who advocate for more restriction of

582
00:35:14,320 --> 00:35:18,280
Speaker 6: the guns sort of concerned that the Third Circuit would

583
00:35:18,400 --> 00:35:21,920
Speaker 6: go into this gap here created by the Supreme Court

584
00:35:22,360 --> 00:35:25,040
Speaker 6: and make a decision when perhaps they wouldn't have to

585
00:35:25,120 --> 00:35:28,080
Speaker 6: and they could have waited. But you also have to

586
00:35:28,120 --> 00:35:31,080
Speaker 6: recognize that the Supreme Court at this point hasn't taken

587
00:35:31,120 --> 00:35:34,480
Speaker 6: on the high capacity magazine question, so whether or not

588
00:35:34,880 --> 00:35:37,520
Speaker 6: you can have you know, magazines that have ten or

589
00:35:37,520 --> 00:35:40,400
Speaker 6: more bullets or you know, dozens more in some cases.

590
00:35:40,840 --> 00:35:43,720
Speaker 6: And so the Third Circuit here is pushing into something

591
00:35:43,760 --> 00:35:46,960
Speaker 6: that the Supreme Court may not get to in their

592
00:35:47,000 --> 00:35:47,719
Speaker 6: case this year.

593
00:35:48,920 --> 00:35:50,759
Speaker 2: Why would they take that up unless there are at

594
00:35:50,840 --> 00:35:54,200
Speaker 2: least four votes who want to reverse those decisions, because

595
00:35:54,239 --> 00:35:57,120
Speaker 2: otherwise they would just leave the decisions in place until

596
00:35:57,160 --> 00:36:01,080
Speaker 2: there is a circuit split. But I've been proven wrong before,

597
00:36:01,600 --> 00:36:05,600
Speaker 2: and so how many states about have similar regulations?

598
00:36:06,760 --> 00:36:09,920
Speaker 6: Yeah, so there's about a dozen states that have assault

599
00:36:10,400 --> 00:36:14,640
Speaker 6: rifle bands and a few more that have high capacity

600
00:36:14,719 --> 00:36:17,879
Speaker 6: magazine bands. And so the tricky thing here is that

601
00:36:18,040 --> 00:36:21,640
Speaker 6: these things are extremely common June, and folks on the

602
00:36:21,719 --> 00:36:25,799
Speaker 6: left or the right, or you know, restriction and rights

603
00:36:25,960 --> 00:36:30,160
Speaker 6: advocacy will agree these are incredibly common weapons and incredibly

604
00:36:30,160 --> 00:36:33,360
Speaker 6: common tools. So you know, you're going to see little

605
00:36:33,360 --> 00:36:36,959
Speaker 6: girls in Wisconsin where I'm from, using them for hunting, right,

606
00:36:37,000 --> 00:36:39,800
Speaker 6: They're very common. And so you know, part of the

607
00:36:39,920 --> 00:36:43,799
Speaker 6: argument is can these states restrict and do they have

608
00:36:43,840 --> 00:36:46,480
Speaker 6: the right to while the rest of the country doesn't

609
00:36:46,560 --> 00:36:46,960
Speaker 6: want to?

610
00:36:47,239 --> 00:36:48,440
Speaker 1: And does the court step in?

611
00:36:48,480 --> 00:36:51,080
Speaker 2: And at what point and why did they remand the

612
00:36:51,160 --> 00:36:53,200
Speaker 2: case back to the district court.

613
00:36:53,760 --> 00:36:58,759
Speaker 6: So New Jersey's law here is somewhat expansive from the

614
00:36:58,800 --> 00:37:03,840
Speaker 6: perspective of gun rights advocates. It covers, you know, different

615
00:37:04,280 --> 00:37:07,560
Speaker 6: features on weapons and some shotguns and things like that,

616
00:37:08,000 --> 00:37:11,400
Speaker 6: certain things that make them more likely or able to

617
00:37:11,440 --> 00:37:14,040
Speaker 6: be used in mass shootings, which is what New Jersey

618
00:37:14,160 --> 00:37:16,200
Speaker 6: is putting its foot down and saying we want to prevent.

619
00:37:16,680 --> 00:37:20,080
Speaker 6: So from the state's perspective, they have broader categories beyond

620
00:37:20,120 --> 00:37:24,360
Speaker 6: some automatic rifles they're trying to limit access to because

621
00:37:24,360 --> 00:37:27,319
Speaker 6: they're worried about its use in gun violence. And from

622
00:37:27,360 --> 00:37:30,200
Speaker 6: the state of the gun rights advocates, they're saying, listen,

623
00:37:30,239 --> 00:37:32,960
Speaker 6: a lot of these things are really common for use

624
00:37:33,000 --> 00:37:38,319
Speaker 6: in other lawful you know, things, shooting tournaments, hunting, you

625
00:37:38,440 --> 00:37:42,200
Speaker 6: name it. Advocates in this space find this Third Circuit

626
00:37:42,200 --> 00:37:45,960
Speaker 6: decision really interesting because it touches on something they're going

627
00:37:46,040 --> 00:37:49,120
Speaker 6: to be watching Justice amy Cone and Barrett on. We

628
00:37:49,280 --> 00:37:53,000
Speaker 6: have the situation where the Chief Justice and Barrett haven't

629
00:37:53,000 --> 00:37:57,360
Speaker 6: really come down either way for or against rights to

630
00:37:57,600 --> 00:38:02,200
Speaker 6: owning assault rifles. And we also have this big question

631
00:38:02,280 --> 00:38:06,240
Speaker 6: out there about how Justice amy Coney Barrett will treat

632
00:38:06,880 --> 00:38:11,640
Speaker 6: either a lack of conflict or conflict between precedents the

633
00:38:11,680 --> 00:38:15,319
Speaker 6: states are relying on from the seventeen nineties and what

634
00:38:15,360 --> 00:38:17,600
Speaker 6: states are relying on in the eighteen sixties.

635
00:38:17,600 --> 00:38:18,040
Speaker 1: And so what.

636
00:38:18,000 --> 00:38:21,239
Speaker 6: Advocates tell me is a big question floating out there

637
00:38:21,320 --> 00:38:25,560
Speaker 6: is can states rely on restrictions when there were more restrictions,

638
00:38:25,880 --> 00:38:28,200
Speaker 6: you know, at the time of the Fourteenth Amendment.

639
00:38:28,000 --> 00:38:30,120
Speaker 1: Enactment about guns.

640
00:38:30,680 --> 00:38:33,399
Speaker 6: If there was nothing touching on that at the time

641
00:38:33,400 --> 00:38:36,239
Speaker 6: of the founding or does that silence at the time

642
00:38:36,280 --> 00:38:39,879
Speaker 6: of the founding limit what states can rely on when

643
00:38:39,880 --> 00:38:43,319
Speaker 6: they're reaching back and saying we have a history of

644
00:38:43,400 --> 00:38:45,479
Speaker 6: regulating firearms in this way.

645
00:38:46,239 --> 00:38:48,839
Speaker 2: Have you talked to legal experts about how they think

646
00:38:48,880 --> 00:38:50,520
Speaker 2: the Supreme Court might handle this?

647
00:38:51,480 --> 00:38:54,040
Speaker 6: It is not an open and closed thing. We have,

648
00:38:54,840 --> 00:38:57,960
Speaker 6: you know, liberal advocates looking at this decision and saying

649
00:38:58,080 --> 00:39:02,160
Speaker 6: they don't see how the Supper Court could adopt exactly

650
00:39:02,200 --> 00:39:06,440
Speaker 6: this because it creates questions about, you know, when you

651
00:39:06,520 --> 00:39:09,719
Speaker 6: make a call on if something is popular, and when

652
00:39:09,760 --> 00:39:11,640
Speaker 6: you make a call on if the state could regulate it.

653
00:39:12,000 --> 00:39:15,720
Speaker 6: We also have conservative advocates hoping that the justices will

654
00:39:16,080 --> 00:39:18,600
Speaker 6: you know, lean in and consider the things that these

655
00:39:18,680 --> 00:39:21,040
Speaker 6: judges are saying in the Third Circuit because it could

656
00:39:21,120 --> 00:39:25,560
Speaker 6: give gun owners, you know, stronger latch into the law

657
00:39:25,680 --> 00:39:27,560
Speaker 6: to fight for the rights that they seek.

658
00:39:28,120 --> 00:39:32,640
Speaker 2: I think the Heller decision, instead of clarifying things, has

659
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Speaker 2: just made it more confusing, and ever since Teller, the

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Speaker 2: lower courts are trying to figure it all out.

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Speaker 6: When Heller came down, we have this like scrutiny regime

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Speaker 6: right and the idea of like a test as to

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Speaker 6: whether something is unusual and dangerous works in a scrutiny

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Speaker 6: regime because then it's balancing between like the rights of

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00:39:54,000 --> 00:39:55,680
Speaker 6: the gun owners and the.

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Speaker 1: Public to protect.

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00:39:56,719 --> 00:39:59,560
Speaker 6: But in a world where we're talking about historical analogs,

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Speaker 6: it does don't make as much sense because now that's

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Speaker 6: like living constitutionalism. It's like against the idea that you

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Speaker 6: look back in time to history, because you have these

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Speaker 6: perpetual slices in time for when guns become popular or regulated.

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Speaker 1: It's a time machine problem.

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Speaker 6: And the more I peel back this onion and the

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Speaker 6: more I talk with people, the more I'm not like

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Speaker 6: satisfied with like how you square Heller and this idea

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Speaker 6: that if something is not unusual or unusually dangerous, you

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Speaker 6: know you can have a right to it, and this

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00:40:33,040 --> 00:40:35,240
Speaker 6: idea that there has to be a historical analog because

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Speaker 6: newly unusual and historically dangerous stuff comes up all the time.

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Speaker 1: And so I'm not satisfied. I don't see a path

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Speaker 1: forward that's easy.

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Speaker 2: I think a lot of experts on the Second Amendment

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Speaker 2: may agree with you. Alex, thanks so much. That's Bloomberg

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Speaker 2: Lawn Senior correspondent Alex Ebert