Ayn Rand Graffiti

Oh, yay. Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have to find an argument in this case. All persons having business before the Honorable Supreme Court of the United States are admonished to give their attention. Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. And I'm Will Bode. Dan, where are we? We are live, one of our rare live shows, and we are in your home city of Chicago, where we are at Northwestern Law School, being hosted by the student chapter of the Federalist Society. We did one of these, was it just last year? It was. Okay. And we had a great time, and so we are doing a reprise. and, you know, can't see at home, but I'd say there's, you know, it's probably 90 to 95 percent of the student body is represented in the audience. So we're very grateful. And the room mic is not set up to capture the thunderous laughter and applause we just got. So you'll just have to take my word for it. So, you know, often we like to record when we've just had a big drop of opinions. We haven't had a big drop of opinions in the last couple of days. So instead, we're going to do another somewhat rare thing, which is an argument recap slash preview, both cases involving Second Amendment rights. Although with one of those cases, we can have a debate whether it's really a Second Amendment case or not. The two cases... I don't know if you remember this, Dan, but when we were here last year, I think we also did an argument preview about gun cases. I think Last year it was the Smith and Wesson lawsuit brought by the state of Mexico. Is that where we did that? I thought, okay, I've lost track. Something about Chicago makes us think about guns. Well, it is a city with some gun violence, but really kind of distant to St. Louis. So I've got to stick up for my home city in that regard. So there are two cases. The kind of recap case is going to be Wolford versus Lopez. And the preview case is going to be United States versus Himani. Wolford was argued just recently. It was argued nine days ago at the court. And then Himani is not actually totally fully briefed yet. I think the reply brief still has yet to come in. And it's going to be argued. I think it's going to be argued by the end of the term. Yeah, for sure. Okay. So should we go kind of in chronological order? Because the cases are pretty different, presenting different Second Amendment issues, but I think both quite interesting. So should we go with Wolford first? Yeah, let's start with Wolford. Okay. Do you want to lay out the issues in Wolford for us? Yeah. So this is a case that comes from one of my favorite states, Hawaii, where until recently there were basically no guns because Hawaii required you to get a permit to openly carry a firearm, carry a firearm in public, and then didn't give anybody permits, which was a nice trick. that was declared unconstitutional by the Supreme Court in New York, in the Bruin case out of New York, where the court said the small number of states that basically don't grant gun permits can't do that because there's a right to carry guns, keep and bear arms in public. So afterwards... Some kind of right. We're still figuring out the exact contours of that right. Exactly. So we know, and then in Bruin, the court said, you know, there's a presumptive right to carry. Now, of course, dangerous people can be disarmed, We later learn in a case called Rahimi, the court says in Bruin that the government can restrict you from carrying firearms into so-called sensitive places. But it doesn't really tell us what is a sensitive place except to say that you can't say that like all of the island of Manhattan is a sensitive place. There's litigation now about like, but can you say the subway is a sensitive place, which might for many people be de facto the same as saying Manhattan. And one of the things several jurisdictions did, including New York, including Hawaii after this, was to try to pass new laws restricting the carrying of weapons in public now that suddenly they had to let people carry weapons in public. Yeah, new laws restricting them in certain ways. I think we should be careful in how we describe it because at least in this case, everybody seems to agree that there is a rule that on private property, a property owner can deny consent for the carrying of firearms. Right. So the private property owner has the right to tell you you can't come in and has the right to tell you you can't come in conditionally on carrying a firearm. No guns here. Yeah. And just at the outset, I mean, that is the way the case is being framed and litigated. Do you think that is a firmly settled principle such that, you know, Texas or Florida could not overrule it? Just say a rule that you always get to carry your firearms, whatever the private property owner wants or says. Oh, I think that's not, it's not at all clear that the Texas or Florida couldn't do that. And I think some states have laws that give at least some of those rights. some of those rights. Yeah. I think in the briefs, they talk about, they mention a Florida law where it says you can at least store your handgun in your vehicle at your place of employment. But I wonder, I mean, would it violate some kind of property rights in some way that would make it a taking or due process violation if the state were to go much further and say that you can always, you know, you go to someone's house, you can always bring your gun, even if they don't want you to. So there's a case about this involving shopping malls in California, where the court said, you know, the First Amendment does not give you a right to leaflet in private shopping malls, because it's private property, so there's no state action. Then California said, well, that's okay, the good people of California will give you a right to leaflet in shopping malls. And the shopping mall said, that's a taking and or compelled speech. And the court said, no, this is just something where the state can go either way. So similarly, there's been some scholarship about the right to keep and bear arms, arguing that the right to bear arms implies the right not to bear arms. And that implies that property owners should have a right to not allow any arms bearing on their property, like a Second Amendment right, the same way there's a First Amendment right not to live free or die on your license plate and not to have Ayn Rand stickers or whatever on your laptop. I don't know why you wouldn't want them. Do you have such stickers on your laptop? You don't have your laptop here, so I can't check. No, I have an Ayn Rand pin. I went with the Chief Justice Roberts pin today, but I have an Ayn Rand pin. The Chief Justice has his own pins. Can I see that? How do I get one of those? Does every justice have a pin? I don't know. Okay. I won it in a trivia competition. Chief Justice trivia. Yes. Okay. I'm very proud of. Thank you. Anyway, so I think we don't know that side of the default. So So to back up to what Hawaii has done, Hawaii took the default rule that property owners can say no guns and said, we're just going to assume that all private property is no guns unless the property owner says guns, guns allowed. So if you walk around Chicago, there are a ton of these like no guns allowed in the movie theater, no guns allowed in this establishment signs. So Chicago has the ordinary default. But Hawaii decided to flip the default to say you can't take your gun to any piece of private property unless you get the affirmative consent of the owner. Either with a sign or I think you are allowed – there's some dispute about this at the argument. I think if there's no sign, you are allowed to go onto the property, maybe even with your gun for a minute, to say, hey, I'd like to get gas at your gas station. Do you mind if I bring my gun or something? Yeah, and I think these laws have bite on the assumption that most property owners are not going to, you know, do something to change the default either way. Right. That, you know, in a world where every property owner was going to put up a sign one way or the other expressing their preference as to whether someone bearing arms could enter the property, I think the default rule wouldn't matter. Sure. Because it would just be individual. property owner's choice shaping whether the weapon was able to be brought on the property. But I think they matter because we assume, and this seems accurate, that most property owners and most businesses are just not going to make an explicit choice one way or the other. So this is a default rule that is going to control a large number of cases and places. Right. And I think to add that this could be true, not just because property owners don't care, but because of sort of the social dynamics around guns, especially in a state like Hawaii where there isn't a strong gun culture and a lot of people don't like guns. Like you might well have somebody who runs a coffee shop in Hawaii whose view is, I don't really care, man. If you want to have a gun, you're not bothering anybody. Like it's fine. I'm not going to put up a no gun sign. But if he has to put up a gun sign, suddenly like the anti-gun people are going to get upset about it and they're going to complain to him about it and then he doesn't want that either. And so you can imagine that actually requiring property owners to take a stand on a culturally contentious issue in a place where gun rights are in the minority position pressures it. In the same way, that would be true of a lot of minority viewpoints, minority political views. I don't know if that's the design of the law. The defenders of the law might also just say, look, we took a poll and most people don't want guns on their property, so the default rule should be the thing that matches most people's preferences, and in Hawaii, people don't like guns, and they don't want guns around. And so, sure, if you want to, you can opt in, but the default rule should be the thing that is the default for most people. So I guess the kind of the question in this case, and so this is to back up one second, this law and several other states laws like it were passed in the wake of the court's decision in Bruin, right? Which, you know, I'd say expanded the scope of Second Amendment rights, or at least elucidated the court's understanding of Second Amendment rights in a way that that does, you know, you know, limit what states can do. And so this is a potential workaround. Right. And I think both sides seem to agree on that framing somewhat. I mean, actually, both sides seem to agree. I think the way Hawaii put it is, you know, until a couple of years ago, there just wasn't really a tradition of carrying guns in Hawaii at all. So we just hadn't really thought about it either way. And now for the first time, the Supreme Court has told us that there has to now become a tradition of letting people carry guns in Hawaii, fine. But we've got to figure out how to make that work. Yeah. And so the weird thing about the case is, this is sort of what I was getting at earlier. There's kind of disagreement about whether this is a second amendment case at all, if that makes sense, right? It's like, do you even, is this just a property case, right? Is this just a question about, you know, how a state shapes its property rules? And obviously those choices might have downstream implications for people's ability to carry weapons? Or is this just a case about, you know, the state trying to burden a right directly? Right. Like, is it even, do we even get to like whatever the level of scrutiny or historical analysis is, or do we just not get there because it doesn't even implicate the right in the first place? You're going to think I'm joking, but I once tried to write an article about this problem in the context of the First Amendment. Right. So there are some areas where when property and First Amendment law intersects, we say like, oh, there's real scrutiny here. Like there used to be a property right to your reputation. That was what libel was about. And then of course the Supreme Court said, well, obviously the property right in your reputation still implicates free speech and we have constitutional scrutiny of libel. Or copyright. There's like property rights, various kinds of expression. And most of the time we just think that's fine. But there are cases where courts worry about whether that property right in your own expression would interfere with freedom of speech and you end up with fair use doctrine and all that stuff. but it takes on like graffiti right like if I complain that if I like try to put my Ayn Rand graffiti on your house and they prosecute me for it I don't even get to the stage of saying like strict scrutiny they just say like this is not a first-rumped case at all like you're just not allowed to spray paint people's houses it doesn't really matter whether it's speech at all in part I guess that's because there's a well-established default rule there that you're not allowed to spray paint on someone's house unless they give you permission to do so? I guess so. Although there are also cases about soliciting. So there are cases about, can the states have a default rule that says nobody is allowed to ring anybody's doorbell to hand out pamphlets? And the answer is, actually, they probably can't have that rule. And so why can you have a default rule about no graffiti, but not a default rule about no knocking on people's door to give them pamphlets about saving their soul? Do you think you can have a default rule that just says you can't go up to someone's door, period, regardless of the purpose? Probably, yes. Okay. And certainly you can have a default rule that says like, you know, you can go up to somebody's door, but you can't open the door and like come up to the second floor and knock on their bedroom door. You can't find them, right? Like, you know, you can have lots of. Yeah. And that is a property rule, right? Because, you know, the property owner owns the walkway up to their door. They own the porch and unquestionably has the right to exclude people from that. And so if you put up a sign saying do not enter, I think that would trump anyone else's ability to enter your property. Yes. But, you know, traditionally there's what we call like I think an implied license, right? That absent such a sign, there's an implied license to walk up to someone's front door for a limited purpose. This comes up in a pretty interesting Fourth Amendment case that I taught just last week. You know Florida versus Jardines where the question is is it OK for the police to bring a drug dog up to someone front door to sniff the house to figure out whether there are drugs there Normally, we say drug-sniffing dogs are always fine. They don't qualify as searches. They don't implicate your privacy. But the court there says, well, the difference here is that it's an entry onto property. It's an entry onto the curtilage of the home, which is treated for Fourth Amendment purposes as if it's a home. And that requires doing so with the scope of an implied license under property principles. And the court says under those kind of generic property principles, we think there is no such implied license here. Therefore, it's basically a warrantless entry into the home. And I promise this Fourth Amendment stuff is actually going to come back as we talk more about this case because it intersects with some other areas of law in an interesting way. Yeah. So also, so the way the case has gotten framed, the challengers are limiting their challenge to the application of this law to private property that is otherwise open to the public. So they're not claiming a constitutional challenge to the ability to like bring your gun to somebody's dinner party without getting their advanced consent. But the, you know, hypos people kept talking about, you know, what about a restaurant or what about the chief justice kept asking about, you know, what about a gas station? Right. Although I think the advocate for gun rights was not willing to, you know, disclaim the broader argument, right? Well, I think what he kept saying is even the broader argument implicates the Second Amendment. So he's not willing to concede that any of those are not Second Amendment cases. I think he would say that maybe the broader argument, he loses the level of scrutiny or whatever, you know, be justified to have a rule that flips the default for entering into somebody's house. But he didn't want to say those are not Second Amendment cases. Yeah. Okay, there's so many different threads to pull on here. I find this just a really fascinating case. case. Let me ask you this question at the outset. Do you think if we had one state, let's say Massachusetts, that had always had this default rule as a matter of property law, do you think that there would be a plausible argument that today the Second Amendment should overrule that default law? Or is part of the problem here, and I know this relates to the Bruin analysis, but that's not exactly the question I'm asking, is part of the problem here that these states have flipped what was apparently a longstanding default? I think that should help. But I will say one of the refrains of the argument, at least from the challengers, was under Bruin we have a history and tradition test and it has to be a national tradition. I'm not sure whether that's how the – I guess I'm still playing around with the kind of threshold question about the definition of property rights, which, I mean, I think we can say in general is something that the sovereign gets to control. Yeah. So I think if you had a state where the property, where the default right had been flipped for everything, like the default rule was just like, you can't go into a gas station at all until you stop outside the gas station and holler, like, hey, can I get some gas? And the guy says, then I think there would definitely not be a second one. I think if you had a state that had always singled out guns for special disfavor under property rule, that had always said there's a presumptive implied license to enter except for the gun, would probably still be on scrutiny land. But, you know, to the extent that the state, you know, generally has the power to define the scope of implied licenses and so forth to enter property, it can do that kind of, you know, in a plenary way insofar as it's not implicating the Second Amendment. Right, at least insofar as it's not singling out the Second Amendment. I think one of the questions that arises in the speech context arises here, arises of their constitutional rights is what if they do that and have a different rule for the exercise of a constitutional right? But if they were to say, you know, it's the default rule now in Hawaii is if you're selling vacuums, you just can't do that. You can't walk up to someone's front door absent some kind of indication that they actually want you to sell them a vacuum. Right. I think that would be okay. Okay. All right. So that's maybe our threshold question. So another thing that's just maybe a place to start is that the oral argument featured three advocates. So one for the state of Hawaii defending the law, and then in a way two different sets of challengers. One person representing the private petitioners, a lawyer named Alan Beck, who I think is a first-time oral advocate. He's been litigating a ton of these Ninth Circuit gun cases, but it seems to be his first trip to the Supreme Court. And he is making the kind of the hardcore argument, like no flipping the default. I don't even concede that any of these cases don't raise Second Amendment questions. There's got to be a national tradition. There's no national tradition. Kind of a very broad argument. I think the perception when he showed up with that argument among a lot of people who wanted him to win was that was not a good way to win the case. And so. And that was my impression from listening is that it was maybe not as effective as it could have been. Right. So then the United States Solicitor General, the Deputy S.G., Sarah Harris, a very experienced, very good advocate. she shows up with the United States brief on his sign with a much different and more limited argument. So she doesn't want to say you can never flip the default or anything like that. She wants to say the big problem here is pretext. The big problem here is you can look at the law and tell this is not really a property law. This is really an anti-gun law, in part because of its over-inclusive and under-inclusiveness, the way it's gerrymandered to avoid various things. And so you should really kind of think of this as in the First Amendment context after Smith says that neutral laws, the burden of religion are going to be okay. The next year the court strikes down a law anyway in the Church of Lukumi Babaluaya versus the city of Hialeah where it's like a ban on ritual sacrifice of animals. And the court's like this is obviously a religion thing even though it never says that. So she's making sort of that kind of argument. So the court's already sort of presented with the, you know, you could strike this down on broad grounds or narrow grounds, and the justice spent a lot of time kind of working with both advocates to figure out what to do. And I think it's fair to say it looks like the challengers to the law are more likely to prevail. Did you come away with that impression? I'm not sure it's going to be a route, and I think that there's still some possibility it could go both ways. But they've definitely got some votes. Yeah, definitely. I think the wind was at their backs. The court clearly wanted to strike this down. I think so. It sounded to me like the justices were struggling because they want at least three things out of Second Amendment doctrine. And I'm not sure they can have them all. One is they want like a real history test. Justice Kavanaugh kept saying, Justice Kavanaugh got annoyed with the SG for bringing in pretexts. Why can't it just be a straight history test? It's just, is there a historical tradition for this regulation? No, case closed. They also want something that's like the First Amendment. There are a lot of First Amendment analogies. So the court has a case where they said if you want to receive certain kinds of, I think it was communist speech or something, you have to send a postcard saying, I would like it. You have to opt in. The court struck that down. So they say, look, analogize the First Amendment. This Hawaii is treating the Second Amendment worse than how we could do the First Amendment. So they seem to also want something that's like First Amendment-like. And they seem to want something where they don't have to think about the purpose of the law or any kind of balancing at all. Like they said in Bruin, no balancing, no sort of means and scrutiny. And I think it's actually very hard to have all three of those things. Like a historical test, a test that's the same as the First Amendment, and a no-purpose test. At least in part because historically purpose mattered. And under the First Amendment, the purpose of it matters. and the First Amendment is not very historical. So it's just like three good things to want doctrine to be, and they seem to just think they could all be there together. Yeah, I think that's right. And you could imagine there being some divergence in which of those paths the justices take, even though they may try to kind of muddle them together. I mean, I thought Justice Gorsuch is maybe a little bit more open to some kind of a purpose argument, where at least he had this, this is an exchange that, you know, because my own pet interest was particularly interesting to me. This is on the transcript, page 44, which is he references other lines of cases. He says to the government, we don't allow governments to redefine property rights in other contexts that would infringe other constitutional rights. I'm thinking here of the takings clause in Tyler versus Hennepin County. And that's a takings clause case we discussed on this show maybe two years ago. The state had a rule that if the government seizes your property for unpaid taxes and they sell it to satisfy the debt, government gets the overage. Even if you only owe $20,000, the government sells it for $100,000, government gets to keep everything. And one of the state's arguments was, well, that's just the way we've defined the relevant property interest. We have this rule of forfeiture. And the court said, no, you have to kind of, you know, the Taken's Clause is going to look not just to pure positive law. It's going to rest on some other kinds of, you know, more general principles of property. Yeah. Is that a purpose argument or is it something else? I don't, I think it's not quite a purpose argument. I think it is more of a history argument, although it's not the kind of neat and clean kind of history that Justice Kavanaugh wants. And I will say, if you go further into the general law, one of the things you discover is that at the general law, the purpose mattered. The general law in general was quite tolerant of legislative regulation of general law rights as long as it was for a public reason and not out of hostility to the right. That was one of the important principles. And you have written about the general law background of the Second Amendment. Yeah. Do you want to just hum a few bars on that just to give people your basic argument there just so they can see where you might be coming from? Sure. So this article I wrote with Robert Leiter, who is, of course, not responsible for anything I'm about to say. But the general idea was that the Second Amendment was when Heller described it as a preexisting right. And then in the Fourth Amendment context, again, the court describes it as a preexisting right. What they mean is this is one of these rights at unwritten law just sort of recognized in Anglo-American tradition as a form of general law before Erie, kind of what now we might call federal common law. But it wasn't really federal common law. It was just kind of common law. And that's actually why in state constitutional decisions about the right to keep bare arms throughout the 19th century, you see the courts all talking as if they're talking about the same thing. Like the Alabama Supreme Court will uphold or strike down some law and cite a bunch of cases from other jurisdictions saying they're talking about the same thing. It's just the right of Americans to keep and bear arms. That happens to be referenced in their constitution and sometimes regulated in different ways in different places. Like they talked about the right of trial by jury this way too or the right of freedom of speech. And because of that, when we think about history and tradition, the nature of regulation, we should be thinking about that piece of the fabric. And so that means that the Second Amendment was intended to make clear that those background general law principles apply to the federal government, but not necessarily to encode them? Yeah. So the – I mean this in fact was part of the debate when the constitution was enacted was should there be a bill of rights? And the standard federalist talking point was we don't need a bill of rights. You already have rights that are recognized in unwritten law. They don't need to be in the constitution because they're already there and we don't have any power to infringe them. And the anti-federalist talking point was like, yes, we agree in principle but we would feel safer if you put them in the constitution anyway. And so they compromised on putting them in the constitution anyway. but at the time at least the official story about why they're doing that is to make extra clear that Congress doesn't have the power to abrogate them. Because of course sometimes common law could be changed by the legislature and there were some enumerated powers that you could argue might be used to infringe the right to keep and bear arms. Okay. So back to this case, I don't know if you've thought about this prior to this case, but does your approach tell us anything or does it lead us to sort of the same approach the court is already taking to these kind of cases? I think – so I think the general law approach looks a lot like the solicitor general's approach, which is to say actually this kind of regulation – it's not so clear this kind of regulation is categorically forbidden. Like there is a lot of regulation of the right that's permitted if it's done for a proper purpose and neither to sort of functionally extinguish the right or out of hostility to the right. But there are these arguments that some of these laws are enacted out of hostility to the right rather than just attempt to regulate. I think that's kind of the right lane to be in. I do think this is where I sort of was thinking about the court wanting two things we can't have. The court wants a historical approach in which it doesn't have to get into kind of messy questions. And I think the general law approach that we describe is a historical approach that does get into messy questions. So you have to kind of choose between your want for history and your desire to work. Is it exclusively backwards looking or does it contemplate the general law, you know, which is found not made, can evolve? Maybe the general law can evolve, although not through things like, I mean, because it's found not made, not through things like judges trying to change it. And the more relevant thing, and this is what Justice Barrett kept flagging, is that the general law does proceed at a certain level of generality. So there are these laws that say you can't carry guns on enclosed or improved land without the owner's permission. A surprising number of them, actually. It's like, you know, the court says you've got to find a law like this. And look, New Jersey did it. Look, Louisiana did it. And the argument of the challengers is, well, those are different because those are anti-poaching laws that only apply to enclosed lands. And Justice Barrett asked, more or less, okay, well, suppose it's true that those are anti-poaching laws. Does that mean that under our history and tradition, you can only flip the default rule to stop poaching Or does that mean you can flip the default rule to stop a major social problem the legislature believes is a problem For instance she says what if Hawaii had a rash of gas station robberies And they said gas station robberies are the 21st century equivalent of poaching. Like, it's a problem. And to stop it, we need to flip the default by saying no guns at gas stations unless the store owner says you can. The challenger, at least Alan Beck, said, no, you can't do that. That would be unconstitutional. You can't regulate gas station robberies the way you can regulate poaching. But I'm not sure that's right. Do you think that she of the conservative justices is the one who's sort of most kind of squishy on Second Amendment arguments? No. Squishy? Well, maybe like she's— Never. She seems to be maybe, you know, willing to be a little bit more flexible with the history test. I think this is a case where different justices have different things they care about. I think she is probably the person who takes the history, who's probably the deepest into the history and into the approach and understands the nuances that the history require. But she's also said we can't assume that early governments always legislated to their fullest extent of their powers. Right, but there's a different way in which Justice Kavanaugh is the squishy one. Like Justice Kavanaugh multiple times that argument was like part three of Heller says all these kinds of regulations are okay. That's got to be true, right? But Justice Kavanaugh is also the one who wants a strict history test and those things in Heller are kind of made up and not all of them are actually historically supported. And I think it's Kavanaugh and Roberts who wrote separately in Bruin just to say we want to be clear. We're just striking down a thing that's happening in four states. We would implicitly, we would never strike down a thing that was happening in a lot of states. So depending on the axis, you could think of them as the median squishes or something. And this is, I think, one of the things that's interesting with this court is just because a bunch of the justices have slightly different methodological approaches, different justices can be in play for different reasons. So Justice Kavanaugh cares more about the pragmatics and the outlier problem. Justice Barrett cares more about the history maybe. The chief also had argument brought up several times just like distinctive facts about Hawaii, which I don't know if you know these facts about him, but he represented Hawaii a lot in private practice. I mean, like Rice versus Cayetano when Hawaii... This brings us back to why you won the trivia contest. He also was a summer associate in Hawaii. He's still a summer. Instead of going to a New York or DC firm, he saw a posting on the Gannon House bulletin board for a firm hiring in Hawaii and figured why not. I admire that. Yeah, me too. Okay, so do you really think he would be open to a Hawaii-specific rule? I don't think the court would say so in so many words, but I think it just might affect how you think about it. It might affect the extent to which you think of this as obvious hostility to the right. Does the fact that this is happening in Hawaii only now mean it's just obviously those libs who hate guns trying to do sneaky anti-gun things? or are you more like the think, no, this is actually like a reasonable legislature using the aloha spirit to try to solve a social problem? Yeah. I mean, in theory, I mean, I think it should be okay for a state to say, look, here are the constitutional boundaries that the Supreme Court has given us. We, you know, don't love where this ends up and let's try to come up with rules that work within those boundaries that still let us accomplish what we want to accomplish. I think so. I mean, I think this should be fine. Sometimes the court doesn't think so. Like sometimes in the speech context, if you enact a law that says something like we are banning as much speech on the internet as we can, but caveat, we'll protect whatever we have to. I think one of the early like anti-internet porn statutes more or less said that. It had like a savings clause. It was like we're banning all the porn in all the different ways, but okay, whatever we can't ban because the First Amendment is saved. Yeah. You can't do that. That's a little different, right, where you're kind of just – you're not even defining the scope of the exception. Right, but you're just literally saying we would like to walk as far up to the line as we can. We will let the court draw whatever line it wants. Here at least, Hawaii has drawn the line, and the question is just whether the line is over the line, over the other line. Which line? Yeah. Okay. And then it's really interesting questions about what the historical analogs are. There's some debate about which laws count. There's some debate about whether some of the earlier laws count. Were they only applying to kind of hunting land or what did it mean for land to be improved? Could that extend to a retail store or not? Yeah. I thought that was an interesting historical argument. I wasn't sure who got the best of it. I did think that with respect to the party briefs, I thought the Hawaii brief on which the Council of Record is Neil Kachal was more effective. I read through it and I was like, okay, there are a lot more counter arguments than I anticipated. Okay. So many interesting threads there. I mean, one of the other historical precursor laws is one that kind of embarrassingly was passed in Louisiana as part of the Black Codes immediately after the Civil War by a legislature hostile to the rights of newly freed slaves. Yeah. And really interesting debate there about whether those can inform the history and tradition. And again, I thought that Kochal kind of danced around that in a way that was more effective than I expected because his argument was, well, that law was accepted by the Radical Reconstruction Congress when readmitting Louisiana to the union, which means it actually is consistent with people's understandings at the time. Right. Yeah. He said, look, this part of the law, it's true. This was enacted by a very bad legislature as part of a very bad law. But then the good guys were okay with it. And so that actually shows that even at the time, this was thought to be a permissible form of regulation. That's the story at least. I don't think that was, I mean, I don't know if it's going to work, even if it's right. It did remind me a lot of Ramos, which the court justice mentioned several times, where the court strikes down non-inanimous juries, at least in part. One of the moves in the case is that non-inanimous juries were adopted by racist legislatures for bad reasons. And then Justice Alito in dissent is like, I don't know. This has nothing to do with the case. Right. He's like, this argument is going to kind of get out of control. Like, are we saying that if it had been done by, you know, was also done by Puerto Rico, maybe for okay reasons. So I'm not sure that the... Yeah, do you think he'll flip on that here? Just kind of dodge the issue? I don't know. I think the issue of to what extent race taints the use of historical evidence to do things the justices want to do or don't want to do is not a place where they're at their best intellectually. Let's just say that. Okay. So another case to talk about, are there any other kind of interesting threads running through Wolford that we didn't pull on? Not yet. Okay. Because I think there's a lot going on there and I think it's really interesting. Okay. So let's talk about U.S. versus Hamani. As I said, this case has not been argued yet, so we have less of a read on how it might come out. But one important difference in terms of the posture coming to the court is this is one where the federal government, the SG's office, is defending the law that is challenged on Second Amendment grounds. And the law here is Title 18. We're going to Title 18 of the U.S. Code, Section 922G3. And that is a provision that's part of a very, very comprehensive set of gun laws limiting the ability of certain classes of people to possess firearms. This one says someone may not possess a firearm if they are an unlawful user of or addicted to any controlled substance. And then defines controlled substance by reference to the Controlled Substances Act. Yeah. Okay. So not – and just to be clear, this is not just someone who has been convicted of such a crime, but anyone who is presently addicted to or an unlawful user of such a substance is not supposed to have a gun. Right. If you've been convicted of a drug felony, then you're already separately barred by the felon and possession clause, which is not part of the statute. But this is just like if they can show that you are a user, then you can be convicted. This statute has also gotten a little narrower over time. My understanding is the United States doesn't bring prosecutions under the addicted to prong for fear that would trigger the like status-based crime problem. Suppose you are a drug addict who's a clean drug addict. Like, you know, you don't do drugs because you were addicted to them. But you're like, you know, addiction is a lifelong problem. Now you want to have a gun. I think even the United States agrees you can have a gun. Like if you've forsworn drugs, don't have any drugs, the fact that you're addicted to them is not a reason to stop you from having them. I guess it depends on how we define addicted. If you're currently presently addicted and cannot stop using the drugs. But the point is they think it's the using. And then even, at least in the briefing now, they seem to concede they have to show that you're a habitual user, which I don't think has always been the United States' position. I remember a case when I was clerking anyway, where somebody was convicted under this space list, It's just like they found some meth in his trailer and they found a gun. And at the time, everybody thought like, you know, meth plus gun equals conviction, even if you're not a felon, even if you have no. Which is not an implausible reading of the statute. Unlawful user of. Right. Right. If you use meth one time, that's a substance that is, you know, in the Controlled Substances Act. If you use it one time, I think you're an unlawful user of. Yeah. Yeah. So is this somehow, I haven't traced the threads here, but is this related to what got Hunter Biden in trouble? It's not this law, but I know that he was being investigated for obtaining a firearm while I think failing to disclose that he was a present user of, I think it was crack. Right. I think that's why they make you disclose is because that makes you a prohibited person to transfer a firearm to. So on the flip side, meanwhile, on the respondent side, I think everybody agrees that Congress could stop you from using drugs, using a gun while you're on drugs. Like one of the longstanding traditions is like if you are drunk, you should put your gun away first. And there were times when you had to check your guns at the opening of the bar or whatever. So they concede that like if you could show that he was high and had his gun at the same time, that would be a valid conviction. But the question is, what if, as in many cases, somebody might get high regularly, own a gun, but relatively responsibly, like, put the gun away while they're getting high so they're not using and carrying at the same time? Can that be a crime? Okay. The government, you know, defends this law on Second Amendment grounds, largely based on sort of founding era laws applying to drunkards or habitual, sometimes just drunkards, sometimes habitual drunkards. And so those laws did not forbid possession of firearms by someone who was a consumer of alcohol, because I think that would have made it a crime for basically everybody to possess weapons at the time. I mean, you know, it was just the amount of alcohol consumed at the time of the founding is just hard for us to believe. And in fact, part of it was just that, you know, clean water was hard to come by. And so the way to get around that was just to drink a lot of beer. Yeah. The justices all lived in the same boarding house in D.C. And by all accounts, part of how John Marshall kept them under control was he always brought them an era. And, you know. Yeah. So those laws apply to habitual drunkards or drunkards, which is a little different. And so the respondents say that supports our view of, like, you know, don't drink and carry. But not necessarily a rule that you can't be a regular user. It sounds sort of more like addict, right? Maybe. Yeah. I mean, someone who just like can't stop drinking. Yeah. Who's just drunk all the time. Yeah. Sort of like an addict. Yeah. So that's what's funny is that we sort of abandoned that piece of the statute. Maybe that's the better hook. Now, again, part of this is the level of generality problem, right? So I assume when we get to argument, Justice Barrett will say something like, well, look, obviously you can, you know, drinking is not the same thing as smoking pot and a drunkard is not the same thing as a regular user who's not an addict or however we want to get into that. But surely these examples show that it's legitimate under the police power for the legislature to regulate the connection between intoxicating substances and firearms in a reasonable way. And this is a reasonable way. The government also stresses, interestingly, that they say this is not a permanent ban because one of the concerns in these cases is always like, is this a permanent forfeiture of the right to keep and bear arms or is it temporary? And they say, look, it's temporary because anytime you stop using, you can give up your habitual use, then you can have your gun back. When do you go from being a user to a past user? Statute doesn't tell us. It's true. And so it might be, you know, if you were a regular user and you were picked up with a firearm, you should probably have decided to quit yesterday and then say, you know, I'm not a habitual user anymore. Yeah. Okay. So one thing that's interesting about this case is that it has facts that are very helpful for the government and facts that I think they're very unhelpful for the government. And the government seems to have strategically tried to get this particular case in front of the court You know the defendant points out in his brief that there were a bunch of petitions challenging this law before the court and the court said no please grant this one and hold all the other petitions. Why? Well, the government in its brief, you know, describes a bunch of allegations against the defendant. None of these have been proven. None of these are the basis of any criminal convictions, but they paint the defendant as someone who is, I would say, at least kind of like terrorism adjacent. He has expressed some things that make him seem tolerant or even supporting of terrorism. He has connections to Iran, things like that. Things, if you read them, they're a little concerning. And is that because of the drugs or are those unrelated? They are unrelated. And in fact, as far as we can tell, it seems like the government starts investigating him maybe because some of that stuff. At the end, the only thing he ends up being charged with is this statute. And he's not someone who's kind of a heroin or cocaine addict. Instead, he disclosed to the government when they were searching his property that he uses marijuana several times a week. And that fact alone is the basis for the prosecution. All the other stuff is just atmospheric and unproven. And that part that it's, you know, a law being brought to bear against someone who uses marijuana in a way that I think many millions of Americans do, especially in a world where many states at the state level have either entirely decriminalized or significantly broadened access to marijuana. That does seem to make the scope of this law seem quite broad. Yeah. Yeah. So can I ask you a crimpro question about this? So this case arises out of a criminal conviction, right? The other case, Wolfer versus Lopez, is like a lawsuit against the government, you know, trying to stop from enforcing the law. This is a like, I've been convicted, I want my conviction overturned. Shouldn't it be the case that on review of the Constitution out of a criminal conviction, you can only look at the facts that are like admitted by the defendant, charged in the indictment, approved to the jury? to try to defend the conviction on the ground. Isn't it almost inappropriate for the government to bring up facts that are outside the criminal record? So, I mean, I think that, you know, I'm not sure that it's, I would say, it's inappropriate to ever describe the facts that led the government to prosecute someone in a criminal case. I don't think that it's strictly relevant to the legal analysis. Right. But I mean, how could it even be at all relevant to the appeal? You know, I don't exactly know how the record was constructed below. It's possible that some of this background about, you know, the defendant got into the record in some way. Right. But if it wasn't found by the jury, for instance. Yeah. I mean, look, I don't think – I mean, I certainly don't think these facts, such as they are, could form part of the court's rule here. Right? The court is not going to be able to say this law is constitutional insofar as this defendant is a supporter of terrorism. Right? They can't do that. But I don't know. I'm not sure that there's anything stopping the government from just saying, hey, let us tell you a little bit about why this guy got on the government's radar. All right. So I bring this up also because I feel like it could actually be relevant to the rule and the disposition of the case. So if the court wants to say something like it's constitutional to have this rule for a regular user of even marijuana, but not for somebody who used it once or who didn't inhale when they passed the bong around or whatever, then presumably the indictment and the jury instructions will have to say something about this. Like they'll have to indict you as a, like the statute just says user, right? They'll have to indict you not just as a user under the statute, but they'll have to indict you as a habitual user under the statute as construed by Hamani. And then you'll be entitled to a Hamani instruction where they have to prove that you were a user where user is defined to mean use it at least once a week or something. And you, if the next person doesn't admit to the cops how often they use it, they'll have to somehow prove that. Yeah, and this relates to the other big issue in the case that the government kind of glosses over in its brief and I think is planning on dealing with in reply, I assume as a matter of strategy, to avoid exposing itself to a bunch of counterarguments and instead be able to just get the kind of final word. But it's the definitional question, you know, is this statutory phrase unconstitutionally vague? And as the defendant points out in the red brief, apparently there's quite a lot of disagreement, you know, both between circuits and even within circuits about how exactly to define that phrase, unlawful user. Yeah. And so that would be a way that the defendant can win that doesn't turn in any way on the Second Amendment. Yes. It's a little tricky because sometimes when a statute is unconstitutionally vague, the court then narrows it to its core, right? In cases about honest services fraud or whatever, they say, well, okay, we're not sure. But the one thing we are sure is, you know, habitual drunkard. So if you are the marijuana equivalent of a habitual drunkard, it can be applied to you. Other times, as in the Armed Girl Criminal Act, the court just gives up. You know, like, we're not going to try to find a core. We just don't know what this means. And if Congress wants a statute, they can try harder. So going that route then still opens up multiple forks. There's an interesting amicus brief by a friend of the show, Joel Johnson, digging further into some of the vagueness stuff that's drawing on several articles he's written about vagueness. So for those more interested in want to dig deeper in vagueness, that's a good one to look at. So I think that this, you know, obviously the atmospherics are very different when you have the government, which is generally a pretty, you know, this administration is pretty pro-Second Amendment, but you've got the government coming in and strongly defending this law. That is going to change the dynamics a bit. Yeah. We don't have a read on what the court is likely to think about it. The government did accept, you know, a petition by the government. The court did accept a petition by the government suggesting, you know, some perhaps willingness to reconsider the decision reached below. But I'm really not sure what's going to happen. Especially because, and this is why it's nice to talk to these cases in the same episode, because these cases are both being considered in the same term and many ways will be being written. I think it's the same time. I think this case is scheduled for argument early March. I assume it will be natural for them to go, for them to sort of split the difference, right? In a way that they might not, you know, if it was just each case was considered individually. Yeah, it might be hard. It'd be easier to accept a government win in Himani if there's a government loss, or at least a Hawaii government loss in Wolfe. It's going to be a U.S. government win, potentially in both. Right. Because then they might not worry as much about are they sending the right or the wrong signals about the direction of the Second Amendment as a whole. Okay, does your approach, general law approach, have anything to say about this issue? Is there a general law of habitual drunkards? I think the general law approach, I mean, for the same reasons that it pretty strongly supported the conviction of Rahimi, probably pretty strongly supports this one too. Again, bracketing the vagueness problem a little bit, which is real. I think it would say this is within the scope of a reasonable regulation. What if the statute isn't vague? What if it's clear that it applies to everyone that uses even once in the last six months? So let's get rid of vagueness. Let's just have this clear definition. So one concern under the general law approach is when the regulation is so broad to be a functional ban on the right. So that's why I think a founding era law that said anybody who's not a teetotaler can't have a gun probably would have been constitutionally broad. I've never used any of these substances so I don't have a good bead on whether the same thing for controlled substances is similarly unconditionally broad Will you reconsider depending on how this case comes out? You mean if I can keep my... Well, I mean your extensive firearm collection this would no longer be a problem if the government loses here No As our listeners may or may not have picked up on you're a big second amendment guy but actually far from a gun nut you're kind of anti-gun Yeah, guns are dangerous. Okay, yeah. So you're very principled. You're going to just follow original meaning wherever it goes, even if it conflicts with your policy preferences. I believe in freedom. People have the freedom to make dangerous choices. Do they have the freedom to use guns while currently intoxicated? No. Okay. So you think freedom has limits? Yes. Okay. Are you willing to make a prediction on the two cases we've talked about? Yes. So I predict the SG's office runs the table, I guess. I predict the Second Amendment claimants win in Hawaii and they lose in Hamani. So I agree with that with respect to the Second Amendment issues. I'm still a little unsure about what to do about the statutory interpretation issue in Hamani. Because it does actually seem like a real wrinkle in the case. Yes. I would guess that leaves you with a Justice Gorsuch dissent maybe. On vagueness. On vagueness. Do you think the majority will make clear how it interprets the statute so that we will have more guidance going forward? It would seem to be irresponsible not to do that. If you're asking me, do I think the majority of the Supreme Court will do something irresponsible in a judicial opinion? The answer is often yes. But not always. They don't do every irresponsible thing. Yeah, I mean the question is whether they will say this is what it means and it's okay. or whether they will say, you know, it's okay as applied to this core and that's enough to let us dispose of the case and so on. Obviously it would be better to say more, but if they're in a place where they've got eight votes, there may be some desire to keep the band together instead. I don't know. Well, we will see. And maybe we can quickly revisit this one after the argument and we can, you know, check in and see whether those predictions hold up. But Wolford, I mean, what do you think? This is an end of the term case? Yeah, 6-3. Last day kind of case? Yeah. Yeah. And so maybe these cases will both come down the same day. Yeah, Hamani might get out faster. Okay. You know, because I guess if the federal government is winning in Hamani, presumably it's not going to be a 6-3 case. That makes sense. Depending on which, you know, three you're talking about. hard to imagine the three justices who think there's a right to be a habitual drug user with a gun. But maybe not, but not habitual. Fair enough. Yeah. Okay. Any, any final thoughts? We have to let folks get to their next class soon. Do you have anything else you want to add? So one, I guess one general thing to add is I, you know, I think the court's going to have, it's interesting the court has two of these cases already. There was a period, right? It was like Heller, no gun cases for a while. Bruin, then I think no-gun cases for a couple years, then Rahimi. And then there was some question of like, were they going to ever pick up the pace? Yeah. One thing I was struck by in these cases is noting, you know, the number of citations to recent circuit cases, right? So I think these cases are really proliferating in the circuit courts. Yeah. Do you think we'll get a kind of pure felon in possession case? Yes. Yeah, that's got to be coming, right? So one other piece of this is the Hermione case comes out of the Fifth Circuit, which is just striking down lots of convictions. I think just today or yesterday, the Fifth Circuit struck down. So the Fifth Circuit has an as-applied regime for felony possession, including, I think they just said yesterday, that if your felony is meth, that's not good enough to deprive you of a gun. Meth? Meth. A meth addiction. The big Breaking Bad fans down there in Texas. Obviously, if you still use the meth, then apparently you're in trouble. Well, if the government wins your trouble under Hermani in the Fifth Circuit, you might still be okay with that. So I think they'll have to get one. I think the Trump administration has tried to forestall the felon possession cases by resuscitating this neglected part of the statute that lets felons apply for relief from their disability to the attorney general, which had been defunded for a long time by Congress. But Pam Bondi found a workaround. So that might sort of lead to some percolation for a while. But I think the felon case is coming. It is going to get there. All right. 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