Latest / rationally BASED / Episode 35 | AR-15s at the Supreme Court: The Second Amendment's Next Test

Transcript

Episode 35 | AR-15s at the Supreme Court: The Second Amendment's Next Test · rationally BASED

0:00
SPEAKER_01: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:04
SPEAKER_01: I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.
0:08
SPEAKER_01: And I'm Josh Kleinfeld, Rouse Professor of Law at Scalia Law School.
0:12
SPEAKER_01: And Josh is back at Scalia Law School in his wonderful recording studio with a very special guest.
0:18
SPEAKER_01: Catherine is out today.
0:20
SPEAKER_01: Catherine, of course, is also very special, but she is traveling for work today.
0:24
SPEAKER_01: So we are joined by Professor Joel Aliseya, who is the St.
0:28
SPEAKER_01: Robert Bellarmine Professor of Law and the Associate Dean for Faculty Research at the Catholic University.
0:34
SPEAKER_01: And I should add, he is the director of the Law School's Center for the Constitution and the Catholic Intellectual Tradition.
0:41
SPEAKER_01: Joelle, hi, you have so many titles.
0:44
SPEAKER_01: Yeah, maybe too many titles, but uh thanks for having me on, guys.
0:48
SPEAKER_01: It's good to be here.
0:49
SPEAKER_01: Though, you know, no title is as good as Josh Kleinfeld's philosopher statesman uh from a previous episode.
0:55
SPEAKER_01: But okay, we have an episode.
0:58
SPEAKER_02: If everyone chair in the philosopher statesman chair of law, I'm I'm all in.
1:03
SPEAKER_02: That would be really cool.
1:04
SPEAKER_01: See, uh Catherine is not here and everything falls apart.
1:07
SPEAKER_01: Okay, my job is to tell you what this episode is going to be about.
1:09
SPEAKER_01: We have an episode for you about gun rights.
1:12
SPEAKER_01: So this is another Supreme Court preview, plus a little bit of a deep dive.
1:16
SPEAKER_01: The Supreme Court has a big Second Amendment case this term.
1:19
SPEAKER_01: It has finally taken up the question of whether AR-15s, the most popular semi-automatic rifle in the country, is protected by the Second Amendment.
1:26
SPEAKER_01: So, first we'll break down that case and the arguments.
1:29
SPEAKER_01: There's been something of a Second Amendment revolution in the last 18 years or so.
1:33
SPEAKER_01: We'll provide that context.
1:34
SPEAKER_01: Second, we'll go back to the beginning, my favorite.
1:37
SPEAKER_01: What is the original meaning of the Second Amendment?
1:40
SPEAKER_01: Why is the militia prefatory clause there anyway?
1:43
SPEAKER_01: We'll talk about legal scholarship.
1:44
SPEAKER_01: We'll get Joelle's view on this as well.
1:46
SPEAKER_01: And third and finally, you won't want to miss somewhat more philosophical discussion about what rights are and whether they are regulable in the public interest and how to think about that and the tiers of scrutiny.
1:56
SPEAKER_01: So lots to talk about.
1:58
SPEAKER_01: Let's dive in.
2:14
SPEAKER_01: Well, let's get started with the case at the Supreme Court this term.
2:17
SPEAKER_01: It's actually two cases that have been consolidated Vera Montes v.
2:21
SPEAKER_01: Cook County, that's Cook County, Illinois, and Grant v.
2:24
SPEAKER_01: Higgins.
2:24
SPEAKER_01: And the question here is whether the Second Uh Amendment, as and actually really the 14th Amendment, which incorporates the Second Amendment or has been held to incorporate the Second Amendment against the states, protects this right uh to possess an AR-15 semi-automatic rifle.
2:41
SPEAKER_01: Now I'm gonna throw it over to you two.
2:43
SPEAKER_01: You might know more about guns uh than I do, but one thing is I was preparing for this episode that I found really interesting, and I believe I got this from the briefs for the uh Viramantes or the individual in Cook County.
2:55
SPEAKER_01: Uh I don't know that much about guns, uh, but AR-15s are not assault weapons.
3:01
SPEAKER_01: Like that's just like a pejorative name.
3:03
SPEAKER_01: All they are is a rifle that's semi-automatic, just like a handgun is semi-automatic, right?
3:09
SPEAKER_01: Um, which uh it's not like a machine gun where you just one pull the trigger, right?
3:14
SPEAKER_01: You have to pull the trigger, all right, each time.
3:16
SPEAKER_01: So it's just like a normal handgun that most people have or that many people have, but just a rifle version uh of it.
3:23
SPEAKER_01: So that so just so we're talking, why don't you guys set up actually?
3:26
SPEAKER_01: So I maybe I have already embarrassed myself.
3:29
SPEAKER_01: So why don't you tell me, did I get that right, Joelle?
3:31
SPEAKER_01: Do you or Josh, do you want to describe you know what an AR-15 actually is?
3:35
SPEAKER_02: I mean, I mean, as the resident Alaskan who grew up shooting guns in my backyard.
3:40
SPEAKER_01: Uh which also explains you know your accent, which I always joke is probably German, actually.
3:46
SPEAKER_02: Um it's neither of the above.
3:48
SPEAKER_02: It is in fact a speech impediment.
3:50
SPEAKER_02: Uh but uh people know that.
3:52
SPEAKER_01: I uh I I assumed I assumed it's something you picked up in Germany with all your philosophical studies.
3:58
SPEAKER_02: Everyone assumes something where I grew up, everyone sounds like Sarah Palin.
4:02
SPEAKER_02: Uh that's the Alaska sound.
4:04
SPEAKER_01: Really?
4:05
SPEAKER_01: I didn't know that.
4:06
SPEAKER_02: Anyway, sorry, Josh, go ahead.
4:07
SPEAKER_02: Okay, so I grew up, I grew up shooting guns.
4:10
SPEAKER_02: Uh we are so habituated to the term assault weapon uh or assault rifle, we almost don't notice that it's essentially propaganda.
4:18
SPEAKER_02: It's like calling some knives murder knives and other knives kitchen knives when they're essentially the same knife.
4:23
SPEAKER_02: It's propaganda.
4:24
SPEAKER_02: Uh, it was popularized by 1980s uh gun control advocates.
4:29
SPEAKER_02: The technical distinctions between guns, uh, and I'm no no great expert here, I just a casual shooter, but there's various things that affect the force of the bullet when it hits, the kinetic energy it brings.
4:40
SPEAKER_02: And those would be things like the velocity of the bullet, the size of the bullet, and the yaw, which is its, I believe that's defined as its uh rotation on its axis.
4:50
SPEAKER_02: Uh and then of course there's range elements.
4:53
SPEAKER_02: One thing that makes rifles really different from handguns is range and the accuracy of your typical shooter.
4:59
SPEAKER_02: You know, you see in the movies people shooting handguns at great distances with great accuracy.
5:04
SPEAKER_02: That is an extremely rare skill.
5:07
SPEAKER_02: A lot of people can shoot rifles accurately, and handguns, I mean, I can't, I can't hit a barn at 12 yards with a handgun.
5:15
SPEAKER_02: Uh and finally, um, the automatic, semi-automatic, manual action distinction.
5:21
SPEAKER_02: Automatic means it's like an Uzi.
5:23
SPEAKER_02: You press the trigger and it just keeps on firing.
5:25
SPEAKER_02: Uh, semi-automatic is like most guns you see in the movies.
5:28
SPEAKER_02: You press the trigger, press the trigger, press the trigger.
5:30
SPEAKER_02: You don't have to reload with each one.
5:32
SPEAKER_02: Manual action would be like a shotgun where you have to go chom, chch, boom, which is which is manually reloading.
5:39
SPEAKER_02: The bottom line in this case is that Cook County, that's the litigant in this case, it's just essentially Chicago, banned semi-automatic rifles like AR-15s, as have many other jurisdictions.
5:52
SPEAKER_02: And there's been a big Second Amendment revival in the Supreme Court for the last 15 years.
5:58
SPEAKER_02: But the unanswered question of the Second Amendment revival is: does a ban on this type of weapon violate the Second Amendment?
6:06
SPEAKER_02: Cook County's claim is that so-called assault weapons are military-grade weapons, not self-defense weapons, not hunting or personal use weapons, and they are allowed to ban this special class of particularly destructive weapons.
6:21
SPEAKER_02: So, Joel, can you fill us in on the background to this case?
6:25
SPEAKER_02: Sort of the big picture, what was the Second Amendment law and local law about guns like before Heller, and what's happened since then?
6:34
SPEAKER_02: Great.
6:34
SPEAKER_00: Yeah, so that was very helpful background.
6:37
SPEAKER_00: The Second Amendment is an unusual constitutional right in our uh history in that it is so recent that the Supreme Court has gotten into the business of really interpreting it.
6:48
SPEAKER_00: Um, and that's that really, that story really starts in 2008 with this case called District of Columbia versus Heller, which for the first time interpreted the Second Amendment to protect an individual right to keep and bear arms.
7:00
SPEAKER_00: That is to say that the right is yours personally, not a right that you only have insofar as you are serving in a militia.
7:09
SPEAKER_00: And we'll talk later on, I think, about the militia clause of the Second Amendment, that prefatory clause, and how that has uh uh figured into interpretations of the Second Amendment.
7:19
SPEAKER_00: But uh before 2008, uh the Supreme Court had uh uh and other courts had generally thought of the Second Amendment uh more as more oriented towards a militia and had thought of the Second Amendment as not applying against the states, not restricting state uh action.
7:37
SPEAKER_00: But in 2008, the Supreme Court said this is an individual right to keep and bear arms.
7:41
SPEAKER_00: Two years later, in a case called McDonald versus Chicago, the court held that the Second Amendment applies against the state, so both the federal and state governments are subject to the right to keep and bear arms.
7:52
SPEAKER_00: Uh and then the court was largely silent for a long time.
7:56
SPEAKER_00: There was a little case called Catano, uh, but it wasn't really until uh 2022 in a case called New York State Rifle and Pistol Association versus Bruin, where the court got back into the action of interpreting the Second Amendment.
8:10
SPEAKER_00: And Bruin's a hugely significant case, not just for the Second Amendment, but for constitutional rights generally, because it established the methodology for interpreting Second Amendment, uh, for adjudicating Second Amendment claims uh in ways that have implications for other rights, which I, again, I think we'll talk about at the end of the episode.
8:28
SPEAKER_00: But in Bruin, the court said, well, the way that we're going to uh adjudicate rights uh under the Second Amendment is to first ask whether the plain text of the Second Amendment protects the right claimant's assertion.
8:40
SPEAKER_00: So let's say you want to carry handguns in public, which was the uh issue in in Bruin.
8:47
SPEAKER_00: Uh, well, are you a member of the people?
8:50
SPEAKER_00: Is what you're carrying an arm?
8:52
SPEAKER_00: And are you keeping or bearing that arm?
8:55
SPEAKER_00: In Bruin, the answer was yes to all three of those pretty easily, pretty straightforwardly.
9:00
SPEAKER_00: So the court says after you've shown that, under the plain text of the first of the Second Amendment, the amendment presumptively protects your conduct.
9:08
SPEAKER_00: And then the burden shifts to the government to figure out whether uh there's some sort of historical tradition of firearms regulation that allows the government's regulation in this case.
9:18
SPEAKER_00: So in Bruin, the the New York had to show that its restriction on carrying handguns in public uh was supported by some sort of historical tradition.
9:28
SPEAKER_00: And they had no historical tradition to support that.
9:30
SPEAKER_00: And so it was an unconstitutional regulation.
9:33
SPEAKER_00: So what's distinctive about this methodology is it is that it's based purely on text and his and history, historical tradition, rather than on things like the tiers of scrutiny, which we'll talk about in a minute.
9:43
SPEAKER_00: Um after Bruin, you had three subsequent uh three other cases which I won't go into detail about.
9:49
SPEAKER_01: Joel, can I interrupt you there for a minute?
9:51
SPEAKER_01: So I'm following the arc here.
9:53
SPEAKER_01: If DC V Heller was wrong, we would never get to Bruin, right?
9:57
SPEAKER_01: Because the Second Amendment, I can't remember if you quoted it, but right, the the question about collective versus individual right is because there's this prefatory militia clause which says a well-regulated militia being necessary for the security of a free state, comma, the right of the people to keep and bear arms shall not be infringed, right?
10:13
SPEAKER_01: And so if it's not an individual's right to bear arms, but somehow the right for arms to be kept in some local arsenal, and if you're called up for the militia, then you can go access those arms, then we wouldn't get into Bruin and all this other stuff.
10:27
SPEAKER_01: But because in DC V Heller they said it's an individual right, and now there's a question of what is the scope of that right, we have to address this question of okay, well, what can the government regulate or how much can it regulate it?
10:39
SPEAKER_01: Uh and so that's where Bruin comes in and adopted this history and tradition test.
10:43
SPEAKER_01: And okay, so if I got that all right, then go ahead and continue with the three uh cases since Bruin.
10:48
SPEAKER_00: That's perfect.
10:49
SPEAKER_00: That's exactly right.
10:50
SPEAKER_00: Um, and then the the three cases since Bruin, um uh a case called Rahimi, another case called Hamani, and a case called Wolford, those three cases followed on to Bruin's methodology and applied that methodology to particular uh circumstances.
11:07
SPEAKER_00: Um, each of those uh uh you know implicated different aspects of the Bruin methodology.
11:13
SPEAKER_00: I can go into them if you wish, but I think that um none of those three cases is like uh is like earth shattering in terms of the Bruin methodology.
11:22
SPEAKER_00: They're just kind of refinements and and little elaborations of the Bruin methodology, at least in my view.
11:28
SPEAKER_00: Um But uh this case that we're at right now, Vermontes, and I should you know disclose that I'm working on the case for uh the firm that's handling the the uh petitioners uh side of this, um for Cooper and Kirk.
11:41
SPEAKER_00: So I'm I'm directly involved in the case.
11:43
SPEAKER_00: But um Veramontes uh implicates a question that has been lingering in the lower courts now for several years, whether bans on AR-15s are constitutional.
11:53
SPEAKER_00: 11 states ban AR-15s in some form.
11:56
SPEAKER_00: Um and so this uh is it it's been a case it's been an issue that many lower courts have held uh uh is it's not a violation of the of the constitution, not a violation of the Second Amendment.
12:09
SPEAKER_00: The Third Circuit recently did say that it was unconstitutional to ban AR-15s in a case out of New Jersey, um, and in an uh an opinion by a uh uh a judge who was appointed by President Biden, which was very interesting, right?
12:22
SPEAKER_00: Um, because these things have tended to break down, unfortunately, in my view, uh on along more lines of uh who appointed the the judge in question.
12:31
SPEAKER_00: But um, but now that there is a real debate about it, it's it's gone up to the Supreme Court.
12:36
SPEAKER_02: Can I just ask you one thing?
12:38
SPEAKER_02: I bet some of our listeners are thinking, why isn't this completely obvious?
12:42
SPEAKER_02: I mean, yeah uh Heller said that you have an individual right to keep and bear arms for self-defense, an AR-15 is a arm, it's a gun.
12:51
SPEAKER_02: So are so are other semi-automatic rifles.
12:55
SPEAKER_02: So done.
12:55
SPEAKER_02: Case closed.
12:56
SPEAKER_02: Can you explain why it's hard?
12:59
SPEAKER_00: Uh so I don't think it's hard.
13:02
SPEAKER_00: Um from a devil's advocate position, I'll I'll do my best to say, like, what are the arguments on the other side of this?
13:09
SPEAKER_00: And I I should say I just don't I don't think it's hard under uh uh Bruin or under Hellern for reasons that we'll discuss later.
13:16
SPEAKER_00: But if I think the move that a lot of courts and a lot of commentators have tended to make is to say, well, even if you're applying Bruins two steps, on the first step, whether this is an arm, you need to take into account historical traditions restricting certain types of arms.
13:34
SPEAKER_00: There are, there have been bans on certain types of arms in in the past.
13:37
SPEAKER_02: And there was a phrase, there was a phrase in Heller, and it was repeated in Bruin, and really in this entire case law, uh, and it it's a phrase from uh 18th century law when the Constitution was established, and it is dangerous and unusual weapons.
13:51
SPEAKER_02: So um even when the amendment was adopted, it was possible uh to ban or regulate, quote, dangerous and unusual weapons.
14:01
SPEAKER_02: And that's essentially what I take these um cities to be trading on when they ban semi-automatic rifles like AR-15s.
14:10
SPEAKER_00: Is that fair?
14:10
SPEAKER_00: I think that's that's that's true for the vast majority of the arguments that are being made.
14:14
SPEAKER_00: There are some arguments that are not quite in that vein, but you're right that that's probably uh the best argument they're gonna be able to make is to say, well, look, there is this tradition of banning dangerous and unusual weapons.
14:24
SPEAKER_00: We think that this is one of those, they are 15, therefore we can ban it.
14:28
SPEAKER_00: Now, arms bans in general are extremely unusual in our history uh up until the 20th century.
14:34
SPEAKER_00: Uh so even though there is this historical tradition, it has not applied to very many arms in general uh before the 20th century.
14:42
SPEAKER_00: Um and the the the way the argument that a lot of uh people have made is to say, well, you have to take into account that tradition in defining whether the AR-15 is an arm to begin with at step one of Bruin.
14:54
SPEAKER_00: Um and that isn't that has real ramifications because insofar as the dangerous and unusual weapons exception is imported into step one, it becomes the burden of the rights claimant to show that this isn't um a dangerous and unusual weapon.
15:10
SPEAKER_02: And so for the viewers, the way we lawyers tend to phrase this is to say something of the form um, it may be literally the case that a, I don't know, a um a machine gun that shoots atomic weapons is an arm, but it's not an arm, it may be literally a gun, but it's not an arm within the meaning of the Second Amendment.
15:34
SPEAKER_02: That would be how it's phrased, not within the meaning of the Second Amendment's use of the term arms.
15:38
SPEAKER_02: If you're I'm trying to steel man the other side, this is how they'd argue.
15:42
SPEAKER_02: That is what they would what they would say, yes.
15:43
SPEAKER_01: And what Joel, what Joel says, okay, but Joelle, your point is that that really goes to the second step of the Bruin inquiry, right?
15:49
SPEAKER_01: So let me so first of all, why do we have Joel on here, other than he's just a stand-up guy and really, really smart, period?
15:55
SPEAKER_01: He also wrote an article called Why Bruin Was Right, or Bruin Was Right in the University of Pennsylvania Law Review, which kind of goes through this.
16:02
SPEAKER_01: So again, prior to Heller, we wouldn't even get to the step two.
16:06
SPEAKER_01: But after Heller, it's an individual right.
16:08
SPEAKER_01: You have to look at the text, people, arms, are they keeping or bearing it?
16:12
SPEAKER_01: And so I guess my question at step one for you can you give me like an example of what wouldn't qualify?
16:17
SPEAKER_01: So I'm wondering if like the people, does that include aliens?
16:21
SPEAKER_01: Actually, is there that's an open question?
16:24
SPEAKER_00: Actually, there's a debate about that as to whether uh aliens qualify as part of the people under the second amendment at step one.
16:30
SPEAKER_00: Yeah.
16:30
SPEAKER_02: Okay, literally persons, but within the uh meaning of the second amendment when it says people, we might understand that to mean the demos, the citizenry.
16:39
SPEAKER_00: Yeah, and Heller says that it's all members of the political community.
16:42
SPEAKER_00: So that so political community might suggest that it doesn't include those who are not citizens.
16:47
SPEAKER_01: Which we're jumping ahead a little bit, but you know, depending on the purpose of the clause, if it's for like a partly for collective self-defense and militia service, that's always been reserved for citizens, actually.
16:56
SPEAKER_01: So that's interesting.
16:57
SPEAKER_01: Okay, so the people might exclude aliens, but that's not an issue in this case.
17:02
SPEAKER_01: Arms, I want to run something by you.
17:04
SPEAKER_01: I run this through everyone who writes about the Second Amendment because I had a student when I was teaching at Arizona State University, a really, really bright student.
17:12
SPEAKER_01: I'm embarrassed to say, I don't know what happened to him.
17:14
SPEAKER_01: His name's Ken, I can't remember his last name.
17:16
SPEAKER_01: He wrote a paper for me.
17:17
SPEAKER_01: And it was a great paper.
17:19
SPEAKER_01: And what he explained is actually this whole dangerous weapons thing, this whole tanks, bazookas, nuclear weapons, like why are those excluded?
17:27
SPEAKER_01: It's because they actually weren't arms, that there was a well-established distinction between arms and ordnance.
17:33
SPEAKER_01: Artillery shells are ordnance, you know, bazookas arguably ordnance, tanks, ordnance, not arms.
17:40
SPEAKER_01: And so that is not an issue in this case, because there's no question that an AR-15 wouldn't be ordnance.
17:45
SPEAKER_01: It's not a tank, but I just wanted to flag that for the listeners.
17:48
SPEAKER_01: And Ken, I can't remember your last name.
17:50
SPEAKER_01: If you're listening to this podcast, please send me the latest draft of that paper.
17:54
SPEAKER_01: It's been years and people are asking me about this.
17:56
SPEAKER_01: But so I thought that that was super um interesting.
17:59
SPEAKER_01: And keeping and bearing, I mean, would that be like you like does that also solve like the tank problem?
18:05
SPEAKER_01: Right.
18:05
SPEAKER_01: I'm trying to figure out how much work, again, to our audience, how much work can this first textual step step do?
18:10
SPEAKER_01: A tank, you're not really keeping a tank.
18:12
SPEAKER_01: I mean, I guess you could have a barn and you could put it a tank in the barn, and then are you keeping a tank?
18:17
SPEAKER_01: Maybe, right?
18:18
SPEAKER_01: But there there seems to, or do you have to be able to bear it?
18:21
SPEAKER_01: If I can't carry it in my arms, right?
18:24
SPEAKER_01: What do you what is your sense of the word keep and bear?
18:27
SPEAKER_01: Does that do any work here?
18:28
SPEAKER_01: Again, it wouldn't uh solve the AR-15 problem, right?
18:31
SPEAKER_01: But it might solve the tank problem.
18:33
SPEAKER_01: I'm just trying to figure out how much work does it does each of these components do.
18:37
SPEAKER_00: Yeah, I I guess I would say that I think I I don't think it's a problem if step one uh allows in a lot of claims at this at under the Second Amendment, because number one, the language is phrased very broadly, right?
18:54
SPEAKER_00: So if we're going to respect the the language itself and it was written in a way that creates a pretty broad right, then it shouldn't surprise us that a lot of rights claimants get in the door at step one.
19:05
SPEAKER_00: Number two, that's not unusual in our constitutional law.
19:08
SPEAKER_00: If you think under the free speech clause, uh your fur your first responsibility as a rights claimant under the free speech clause is to show that speech is at issue.
19:17
SPEAKER_00: Now, if your speech is a form of conduct, that can be more difficult to show.
19:22
SPEAKER_00: But leaving aside expressive conduct cases, which are their own beast, generally that's a very easy thing to show at step one, is that speech is at issue.
19:30
SPEAKER_00: And once speech is at issue, it becomes the government's burden to show that it's either a categorical exclusion from speech, or if it's not a categorical exclusion, you're usually in some form of intermediate strict scrutiny.
19:42
SPEAKER_00: So the burden's on the government.
19:44
SPEAKER_00: So it's not that unusual in our constitutional law for step one for the rights claimant to actually not be that difficult to surmount, and for the government to have a pretty significant burden at that point to show that it can infringe on uh the right.
19:58
SPEAKER_00: And the way that the Bruin methodology works out, I think, is pretty similar, but in this case, it's based on the actual language of the Second Amendment.
20:06
SPEAKER_01: Okay, so I know we wanted to talk a little bit about also what came before Heller, but but before we get to that, just bring this cover, this part of the conversation home for us in terms of how this case would come out under the Bruin analysis.
20:16
SPEAKER_01: Of course, you are um uh on the briefs or at least consulting for one side of this.
20:23
SPEAKER_01: And that's just because you're smart and you know something, and so uh, which is totally fine.
20:26
SPEAKER_01: So tell us how you think this should come out.
20:28
SPEAKER_01: So clearly, whatever the work, the first step does, people keeping and bearing and arms, AR-15s clearly fall within them.
20:36
SPEAKER_01: Notwithstanding, by the way, some circuit courts who said otherwise, but I think we here can all agree there are arms.
20:42
SPEAKER_01: The second step is history and tradition.
20:44
SPEAKER_01: Why don't you explain a bit more about the history and tradition test, what the court has to show, or the petitioners have to show, or what the government has to show to justify the regulation.
20:53
SPEAKER_01: And this test has come under attack a lot, and you're the leading defender of it.
20:57
SPEAKER_01: So just take it where you will.
20:59
SPEAKER_00: Yeah, so you're I think you're right that step one, as applied to the AR-15, should be extremely easy, and it is uh, frankly, kind of mystifying that the lower courts uh don't don't see that uh when it comes to step one.
21:12
SPEAKER_00: Uh so yeah, an AR-15 is an arm, uh as that as that term is understood.
21:17
SPEAKER_00: So that means that the uh burden now shifts to the government at step two to show that they have a historical tradition of firearms regulation that justifies a ban on AR-15s.
21:28
SPEAKER_00: There's really only one such tradition, uh, and we know that because Heller was itself an arms ban case, right?
21:36
SPEAKER_00: In Heller, the District of Columbia banned the possession of uh handguns, right?
21:41
SPEAKER_00: So that was a ban, that was a ban on a type of arm.
21:44
SPEAKER_00: What did how did the court analyze it?
21:46
SPEAKER_00: It looked to uh the dangerous and unusual weapons exception, which it said supported a test for common use.
21:54
SPEAKER_00: Is the arm in common use?
21:56
SPEAKER_00: And Heller says that if an arm is in common use, it can't Cannot be banned because it doesn't fall into the dangerous and unusual weapons exception in our historical tradition.
22:06
SPEAKER_00: So if you just take that same analysis from Heller and transport it over to this case, Viramontis, and looking at the AR-15, the question is, are AR-15s in common use?
22:17
SPEAKER_00: Now the court has not definitively said what the criteria are for assessing whether something is in common use.
22:24
SPEAKER_00: Heller looked at various things and different justices have looked at various things.
22:28
SPEAKER_00: But in general, what they've tended to look at is how many of these arms are there out there in private hands that are generally being used for lawful purposes?
22:38
SPEAKER_00: And second, uh, how many states allow this arm, right?
22:42
SPEAKER_00: And haven't banned them.
22:43
SPEAKER_00: Well, 39 states allow AR-15s.
22:45
SPEAKER_00: There are about 60 million of them out there in private hands, in the hands of about 24 million uh gun owners.
22:52
SPEAKER_00: Uh so as compared with handguns, uh, I mean, AR-15s are the most popular rifle in America.
23:00
SPEAKER_00: They are uh by far the majority of semi-automatic rifles.
23:04
SPEAKER_00: So it seems to me like if you just apply the Heller analysis here, it's very hard to say how you could ban AR-15s if you couldn't ban handguns, unless you're gonna limit Heller basically to its facts and say that no other arm is protected from being banned.
23:19
SPEAKER_00: Um, in other words, if you're gonna say that the R-15 can be banned, I don't see how any arm couldn't be banned except handguns.
23:27
SPEAKER_01: Um and to be to be clear, and then Josh, I I'm gonna throw it back to you by dangerous.
23:33
SPEAKER_01: All guns, in a sense, are dangerous in the sense of being lethal, but that's not what the test means, right?
23:38
SPEAKER_01: It means dangerous as in they are associated with some kind of nefarious or illegal conduct, like sawed-off shotgun shotguns, right?
23:45
SPEAKER_01: Or guns with obliterated serial numbers, or I don't, I don't know, like buoy knives used to be used.
23:51
SPEAKER_01: That's an interesting question, right?
23:53
SPEAKER_02: Can does dangerous encompass weapons that are just, you know, they're not associated with nefarious purposes, but they are just more dangerous than the typical gun, more destructive.
24:05
SPEAKER_02: So that would be like a machine gun.
24:07
SPEAKER_02: Yeah.
24:07
SPEAKER_00: Yeah.
24:08
SPEAKER_00: So I think that the best way to think about that is to look at where what's the source of this historical exception.
24:14
SPEAKER_00: And basically the source of the historical exception are affray laws.
24:18
SPEAKER_00: These are laws that have to do with uh bringing terror to the public uh through either the type of arm you're you're you have or the manner in which that arm is being uh wielded.
24:30
SPEAKER_00: And so is it it's theoretically possible that you could have an arm that is not inherently something scary, but it's being wielded in a way that is uh so unusual, like not at all what you would do with an arm if that you were uh carrying lawfully uh for lawful purposes, that it could potentially fall into that kind of exception.
24:49
SPEAKER_00: Or if you uh but the more conventional situation would be that you're carrying an arm or you're possessing an arm that is so outside the norm that the only reason you would possess it would be for some sort of nefarious purpose.
25:03
SPEAKER_00: And so if it's in common use, then therefore it cannot be the kind of arm that you're possessing for some sort of nefarious purpose inherently such that it would justify banning it altogether.
25:13
SPEAKER_00: A nuclear arm would certainly be something that would be my fantasy of a nuclear machine gun.
25:17
SPEAKER_02: Yeah, that would be right.
25:18
SPEAKER_02: So um uh and I guess you could only shoot that once and then you yourself would die, as as I think about it.
25:26
SPEAKER_00: Um so I think I I think thinking about the where did this exception come from is helpful in understanding the contours of the historical tradition.
25:35
SPEAKER_01: Okay, uh Josh, I know you had some thoughts before, you know, when we were chatting earlier about like how do we even get here?
25:42
SPEAKER_01: Tell me, you know, before Heller, what was tell that to the audience.
25:45
SPEAKER_02: Okay, so longtime listeners of the pod know that I am obsessed with uh uh highly discretionary exercises of judicial uh authority over the constitution.
25:56
SPEAKER_02: And I think there's something deeply undemocratic about it, and it troubles me, it keeps me up at night.
26:01
SPEAKER_02: And um uh and so I'm particularly interested in the world before Heller.
26:07
SPEAKER_02: So recall what Joel said.
26:08
SPEAKER_02: He said Heller was decided in 2008, and it was like late in the game for our constitutional rights to be revived.
26:16
SPEAKER_02: It was essentially, it was morabut.
26:18
SPEAKER_02: It was a dead right for what, a hundred years or something?
26:21
SPEAKER_02: The court just didn't take Second Amendment cases.
26:25
SPEAKER_02: Um, the lower courts approved every ban that uh that cities and states wanted to put into place.
26:30
SPEAKER_02: And effectively, uh, we when I was growing up, uh, we had no Second Amendment rights.
26:37
SPEAKER_02: There were there were organizations that protested that and individuals, things like the NRA.
26:42
SPEAKER_02: But um a community could regulate the guns essentially however that they wanted.
26:48
SPEAKER_02: And then 2008, uh DC V.
26:51
SPEAKER_02: Heller was like a bombshell.
26:54
SPEAKER_02: Why?
26:54
SPEAKER_02: Why did courts allow the Second Amendment to be essentially read out of the Constitution?
27:00
SPEAKER_02: Well, one explanation is it was a militia clause, a well-regulated militia being necessary to the security of a free state.
27:07
SPEAKER_02: That's that's a doctrinal answer.
27:10
SPEAKER_02: Uh I don't buy it.
27:12
SPEAKER_02: I think the militia clause uh was the excuse, not the motivation.
27:16
SPEAKER_02: The motivation was um judges just they're members of the enlightened uh educated class of America, and that class has historically not liked guns.
27:26
SPEAKER_02: So, you know, they're gonna be very, very invested in the First Amendment.
27:30
SPEAKER_02: They like that one, not the Second Amendment, they don't like that one.
27:34
SPEAKER_02: And I think it's just not right as a matter of the rule of law, of the judicial role, and of fundamental premises of democracy uh to read a right entirely out of the Constitution.
27:49
SPEAKER_02: Uh it's one thing to give the right the best reading you can.
27:53
SPEAKER_02: Inevitably, when you give it the best reading you can, your premises about justice and good sense will creep into the analysis.
28:01
SPEAKER_02: And so some rights might be more expansive and some more narrow.
28:05
SPEAKER_02: But to just render a constitutional right, which itself was the product of a democratic supermajority of the past, to just render it a nullity strikes me as a profound abuse of the judicial rule.
28:18
SPEAKER_02: Uh I think uh analytically, we see a number of instances of this in constitutional law, just uh provisions of the constitution that are effectively read out of the document.
28:28
SPEAKER_02: They are nullities for purposes of litigation.
28:32
SPEAKER_02: Uh and we see other provisions that are not only vigorously upheld, but exaggerated in their scope.
28:42
SPEAKER_02: Um, and the lesson I take from it all is that we think that putting something in the Constitution means it's really sacred, really protected.
28:51
SPEAKER_02: That's what you do if you if you as a political community regard something as sacred.
28:56
SPEAKER_02: I think what it really means is it means judges control it rather than legislatures or private litigants or uh agencies of the executive or any anyone else.
29:08
SPEAKER_02: Essentially, what it means when you give something to in put something in the Constitution is you've decided to consign its fate to the judiciary.
29:17
SPEAKER_02: That is not the same thing as elevating this right and making it sacred.
29:22
SPEAKER_02: It's just an assignment of power to a certain group of people.
29:26
SPEAKER_02: And judges, by and large, reflect the opinion of the educated class.
29:29
SPEAKER_02: And so what you get is less a protection of sacred rights than a House of Lords with control over certain pieces of the democratic puzzle.
29:37
SPEAKER_02: So these are themes I hit a lot.
29:40
SPEAKER_02: It's not a skepticism of the law.
29:43
SPEAKER_02: Uh, I believe in the law, it's a deep skepticism of the judiciary.
29:48
SPEAKER_02: And it's a skepticism that I bring up here because the Second Amendment is just such a vivid illustration of it.
29:56
SPEAKER_02: I mean, for essentially, I don't know exactly how long, 70 years, 100 years, the Second Amendment was dead.
30:03
SPEAKER_02: And then we had a Republican majority on the Supreme Court.
30:07
SPEAKER_02: It was 2008.
30:09
SPEAKER_02: Uh, and suddenly the Second Amendment was alive again.
30:14
SPEAKER_02: And then it was really, really alive because there's been more Republican appointees to the Supreme Court than Democrat appointees.
30:21
SPEAKER_02: And uh I I guess I have a couple of questions.
30:24
SPEAKER_02: One is, and it's it's to both of you, have I taken the right lesson from this history?
30:30
SPEAKER_02: Should I focus more on the militia clause?
30:32
SPEAKER_02: Is my hard realism, not about the law, but about the judiciary, warranted in this example?
30:39
SPEAKER_02: Or am I uh, I'm sure you both think I'm taking it too far, but what do you think?
30:44
SPEAKER_01: Can I jump in first?
30:45
SPEAKER_01: And I want to push back a little, Josh, because this strikes me as cutting both ways, especially with respect to things you've said in the past.
30:52
SPEAKER_01: So, like, I get it, if you're sit, if you if you're you or me, and we had been born a few decades earlier, and were practicing lawyers or politicians or just the people in the 1960s and 70s and or 80s, and what you get is judges on the one hand totally making up rights that aren't in the Constitution, and on the other hand, literally writing out rights that are actually there.
31:18
SPEAKER_01: That's inconsistent, that's hypocritical, and it's a double wrong, and that's extrajudicial power to decide to ignore things that are there and to enforce things that aren't there.
31:28
SPEAKER_01: That's a big problem.
31:29
SPEAKER_01: But those days are over.
31:30
SPEAKER_01: Let's presume that they are mostly over, and I think they are actually over.
31:34
SPEAKER_01: What is a consistent way to think about rights, you know, in a democratic society, with nevertheless a constitution that wants to carve things out?
31:42
SPEAKER_01: So, you know, when we talk about federal welfare spending, you talked about, you know, how dare you, Elon, take something away from the democracy in my defense.
31:50
SPEAKER_01: Well, as well, the constitution gives it to the state democracies.
31:53
SPEAKER_01: Birthright citizenship, you prefer an interpretation, as do I, though, you know, I think it's really the best meaning.
31:59
SPEAKER_01: Um being sort of an expert in this or having specialized and focused uh on this, uh, we should leave to the democracy the question of unlawfully present aliens and temporary visitors.
32:12
SPEAKER_01: Why wouldn't someone say, well, we should leave the question of gun regulations to the democracy?
32:17
SPEAKER_01: Because what do judges know about gun safety and how dangerous things are, you know, um, unless you're Judge Van Dyck on the Ninth Circuit doing a YouTube video showing how guns, you know, work.
32:27
SPEAKER_01: I guess he knows uh something about guns.
32:28
SPEAKER_01: But like what is what is what is the through line?
32:31
SPEAKER_01: Is the answer, or how how are we supposed to be consistent in this respect?
32:35
SPEAKER_01: Is the answer that just some rights are just there and they're clearer and the meaning is more evident, and we should enforce it because that's what a constitution is, right?
32:44
SPEAKER_01: It does take some things away.
32:46
SPEAKER_01: And is the difference that my reading of the spending, so-called spending clause, really the taxing clause, is open to competing interpretations, birthright citizenship's open to competing interpretations, such that we should favor the one that's you know, uh pro leaves questions to the democracy.
33:02
SPEAKER_01: But can't you make an argument about the Second Amendment that it's open to competing interpretations?
33:07
SPEAKER_02: I don't know.
33:07
SPEAKER_02: Like, do you understand what I'm saying here about how Yeah, I mean, fundamentally you're asking if I'm being inconsistent in my sort of I'm upset about minimizing the second amendment.
33:17
SPEAKER_02: Yeah.
33:17
SPEAKER_02: Uh I I think it's a uh a very fair question.
33:21
SPEAKER_02: You know, I I don't take it amiss.
33:23
SPEAKER_02: Here's how I think about it.
33:24
SPEAKER_02: Um any constitutional right is the product of a democratic supermajority of the past.
33:32
SPEAKER_02: And democratic supermajorities of the past do have a do have the authority, the legitimate authority, to take things away from mere majorities of the present, uh, to set them aside.
33:44
SPEAKER_02: Um what I object to is so what makes the Second Amendment different from, say, the welfare question we previously discussed, uh, or uh certain interpretations of the birthright question as we pre previously discussed, um is the clarity, the textual clarity of the right in the Constitution.
34:08
SPEAKER_02: So here's what I mean.
34:10
SPEAKER_02: If um if the Constitution is quite unclear about whether something is permitted, let's say welfare, uh social security, then you should let the democracy have its head.
34:23
SPEAKER_02: You should let the present-day majorities dictate the the way the political system works.
34:30
SPEAKER_02: If the Constitution is relatively clear, you should uphold it against democratic majorities.
34:38
SPEAKER_02: So here's what I notice it doesn't say health care in the Constitution, doesn't say welfare in the Constitution, it says right to keep and bear arms in the Constitution.
34:50
SPEAKER_02: So judges should be uh vigorous about upholding the right to keep and bear arms.
34:55
SPEAKER_02: They should not be rigorous about in involving themselves in in uh the welfare issue.
35:00
SPEAKER_02: And you'll notice my birthright citizenship argument was that there's it's what it means to be subject to the jurisdiction thereof is uh open-ended and ununsettled.
35:13
SPEAKER_02: I agreed with uh Justice Kavanaugh in that respect.
35:16
SPEAKER_02: And that being the case, we should allow the present-day democracy to um not allow soil-based birthright citizenship uh if it chooses.
35:28
SPEAKER_02: It should not be.
35:29
SPEAKER_02: So what I'm trying to do, and if I actually, I mean, what I want is where the constitution is clear, judges should vigorously uphold it, and where it is unclear uh or indeterminate, uh, the present-day democracy should be able to determine the issue.
35:47
SPEAKER_02: Now, how do you operationalize the concepts of uh clear and unclear?
35:52
SPEAKER_02: And uh, you know, if I had uh a perfect theory of that, I would have written a classic of constitutional law, and I haven't uh uh because it's I do I don't have a complete theory of that.
36:03
SPEAKER_02: But that's the kind of theory I'm striving for.
36:05
SPEAKER_01: So, Joelle, you can you can seize on what Josh just said in my response, but let me also move it on to the next thing I want to talk about, which is speaking of clear versus not clear, constitutional amendments and rights, is the Second Amendment clear or unclear?
36:20
SPEAKER_01: Why is the militia clause there?
36:22
SPEAKER_01: Again, the um a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
36:29
SPEAKER_01: Can you set up like what does this mean?
36:31
SPEAKER_01: Why is the militia clause there?
36:33
SPEAKER_01: Why does it not limit, or does it limit, uh, the purposes for which an individual might uh keep and bear arms?
36:40
SPEAKER_01: Let's just talk about the original meaning, which might at the end of the day help answer this question that Josh and I are raising about, you know, how clear it is might determine how judges should do it or how how evident its content is.
36:49
SPEAKER_01: But take it where you want.
36:51
SPEAKER_00: So I I will answer that question, but I do want to say something about the discussion you and Josh were just having to the disappointment of viewers who might want me to move on uh to original meaning stuff.
37:02
SPEAKER_00: Um I'll I'll say that I think a lot of that discussion, even Josh's framing of it, right, really depends on what baseline you're using for determining whether a right has been created or negated, right?
37:18
SPEAKER_00: Like, well, what is the standard by which you're deciding that?
37:21
SPEAKER_00: And I think implicit in what Josh was saying was us uh an understanding of the right as it was originally understood, that that right as originally understood should be enforced where clear to the hilt of its clarity, right?
37:35
SPEAKER_00: And where uh it's and to to uh fall back from what that right as originally understood meant is something illegitimate of the for the judges to do, uh, and to create a right kind of out of whole cloth, like the right to abortion in Roe.
37:50
SPEAKER_00: That has nothing to do with the original meaning.
37:52
SPEAKER_00: That is also uh a wrong, right?
37:54
SPEAKER_00: I would think under Josh's uh framing of it.
37:57
SPEAKER_00: Um and uh I certainly agree with that, uh because I'm an originalist, right?
38:04
SPEAKER_00: But I do want to point out that there that premise is is something that you know many constitutional theorists disagree with and and could, in good faith, disagree with, right?
38:14
SPEAKER_00: They could say, well, no, I actually don't think that the baseline is what is the original meaning.
38:20
SPEAKER_00: I think the baseline should simply be whatever accords with uh the will of the democratic majority at any given point in time.
38:28
SPEAKER_00: And so to the extent that the democratic uh majority comes later on to uh to favor some new right that isn't in the constitution, uh then uh, and here's the part that I think is a problem for living constitutionalists, by some process we get from that to judges who are not elected can uh make, can say that that is in the constitution, right?
38:50
SPEAKER_00: Um but uh my my point is just to say, like that while I completely agree with Josh's uh uh framing that there that we we should enforce the original meaning uh where it's clear and not make up new rights, I do think that that requires the antecedent political theory justification to what something you said, which is that those in the past have the legitimate authority to bind those in the future, those living today, right?
39:18
SPEAKER_00: I agree with that, and I've made arguments to that effect in my own scholarship, but that I think is the key disagreement in a lot of constitutional theory is whether the the dead can bind the living, right?
39:30
SPEAKER_00: And and many living uh constitutionalists would just think it obvious that that the past can't bind the present in this way, legitimately consistent with democratic theory.
39:40
SPEAKER_00: Um, and you know, I I agree with you that they can, but uh that's that's the key point.
39:45
SPEAKER_02: Very, very quick response, which is totally uh I find that totally persuasive, and it's why I am a kind of originalist.
39:54
SPEAKER_02: Um uh Randy Barnett uh once joked with me that I'm an originalish, not originalist.
40:02
SPEAKER_02: Uh but I I think I'm an originalist, just a peculiar sort of one.
40:07
SPEAKER_02: And my thought is we should use originalist methods to identify the core of a right.
40:13
SPEAKER_02: And uh we should take that as binding uh until amended by formal constitutional means.
40:19
SPEAKER_02: Uh but because of alarm, legitimate alarm uh about uh the abuse of power by the judiciary globally and and in America's own history, uh our originalist attitude should be that the answer the Constitution gives a non-answer to most contemporary questions.
40:45
SPEAKER_02: So where the core of the right is at stake in contemporary cases, judges should enforce it.
40:52
SPEAKER_02: But the universe of cases in which judges say originalism gives no answer to this should be much more expansive than it is ordinarily taken to be.
41:03
SPEAKER_02: And so, in all of those outside of the court cases, judges should just say it's not up to us, non-answer.
41:11
SPEAKER_00: So I think part of the problem with that, and I know you want to get onto original meaning, Alan, I'll get to that, but um Second Amendment.
41:17
SPEAKER_00: I uh I I do want to just uh say that I think the problem with that that framing is there are many constitutional provisions, including individual rights provisions, where it would not really be practicable to uh to speak so clearly and so directly to the broad range of circumstances that you intend for this provision to address.
41:45
SPEAKER_00: And so the only thing you can do in that circumstance is to put in place certain principles that you expect to then be applied in the future, uh, according to the original meaning of those principles.
41:58
SPEAKER_00: And and that won't be crystal clear how they apply, right?
42:02
SPEAKER_00: So just by the design of the provision, it would it lends itself to a lack of crystal clear application.
42:09
SPEAKER_00: And if you were to say, well, only words crystal clear will we apply it, uh, well, then you would just kind of be neutering the provision, right?
42:16
SPEAKER_00: The the whole point of the provision.
42:18
SPEAKER_01: Um the level of generality, as you yourself, Joel, say in a lot of your writing, is itself a question of the original meaning of the provision in question, right?
42:27
SPEAKER_01: Yeah.
42:28
SPEAKER_01: Um so okay, I'm gonna pivot us because Catherine, Catherine is going to absolutely cut me off uh if I don't uh move us on to the original meeting.
42:36
SPEAKER_01: I know Josh had a response, but I assume he was going to agree with everything you said.
42:40
SPEAKER_02: All I was saying was let's go on to the second amendment.
42:43
SPEAKER_02: I have a million responses.
42:44
SPEAKER_02: So Joelle and I spent three hours over uh cigars and chicken wings the other day talking about these various uh various things.
42:51
SPEAKER_02: And I I hope we can spend another three, but we got to go on to the second amendment.
42:55
SPEAKER_01: And Joel is a leading young constitutional theorist.
42:58
SPEAKER_01: He doesn't just you don't just write about Second Amendment, Bruin, Tears of Scrutiny.
43:02
SPEAKER_01: You you write about constitutional theory and originalism more broadly.
43:04
SPEAKER_01: So I commend your work to everybody uh who's listened.
43:07
SPEAKER_01: Again, we're talking uh with Joelle Alisea of the Catholic University.
43:11
SPEAKER_01: Okay, set us up.
43:12
SPEAKER_01: What does the Second Amendment mean?
43:13
SPEAKER_01: What's the original meaning?
43:14
SPEAKER_01: Why is the militia clause there?
43:16
SPEAKER_00: Yeah, so I'm I'm going to uh maybe disappoint you, Alan, and say that um I actually think that Heller gets this right.
43:24
SPEAKER_00: Um you know, it's become very unfashionable to say that in the Academy, even on the right, uh, to say that uh Heller just gets the original meaning correct.
43:33
SPEAKER_00: Uh, but I think it's a very persuasive opinion.
43:36
SPEAKER_00: Um and Heller acknowledges that the prefatory clause of the Second Amendment, uh, in announcing one of the purposes of the Second Amendment, maybe you could say the primary purpose of the Second Amendment, uh, focuses on the militia and says, look, the the the the the perhaps the the main reason we're putting this into the Constitution is to ensure that uh The people have arms in order to uh serve in a militia when necessary, uh, to uh both at both to defend the state, but also to defend themselves against the power of the state, where the state uh is abusing its own authority, right?
44:16
SPEAKER_00: Um, and there's a long historical tradition of political thought that that that uh relates to that, right?
44:22
SPEAKER_00: Of having arms as a check against abuses of governmental power.
44:26
SPEAKER_00: I've always found that to be the most persuasive, by the way, political theory justification for the uh the right to keep and bear arms is as a check against excessive governmental authority, tyrannical governmental authority.
44:38
SPEAKER_00: Um but Heller points out correctly, in my view, that uh the prefatory clause, even while announcing the purpose of the Second Amendment, uh, does not purport to limit the operative clause, the second half of the Second Amendment, uh, to only the militia.
44:55
SPEAKER_00: And indeed, the historical context and the and the wording of the of the Second Amendment strongly suggests that it's not limited to just the militia context, that it is an individual right, even if you're not serving in a militia, uh, to keep and bear arms.
45:11
SPEAKER_00: Uh so I think Heller just gets that right to say, look, we we we would we need to take into do, we need to take account, of course, of what the purpose of this amendment is.
45:20
SPEAKER_00: So Heller would not disagree with your point on that, Alan.
45:23
SPEAKER_00: Um but we it would be actually a misreading to then constrict what the actual statement of the right is, the right of the people to the people to keep and bear arms shall not be infringed, to constrict that to only this announced purpose, uh, when in fact at the time there's strong historical evidence showing that it was thought of to be beyond just that purpose.
45:45
SPEAKER_01: So because oh, go ahead, Josh.
45:47
SPEAKER_02: Sorry, Alan.
45:48
SPEAKER_02: Why doesn't it say um the individual right of self-defense being necessary to the liberty of a free people, the right to keep and bear arms shall not be infringed?
45:59
SPEAKER_02: You know, sort of a different preface, if it really is naming an individual right that I too think is a natural right, the right to self-defense.
46:07
SPEAKER_02: Why doesn't it say that?
46:08
SPEAKER_02: I have a theory in hand.
46:11
SPEAKER_02: Well, should we state how you think it would be phrased?
46:14
SPEAKER_02: I would think that if it if if I were writing the amendment and sort of aping it's uh a well-regulated militia being necessary to the security of a free state phraseology, uh, but I wanted to articulate the right to an individual right to bear arms for self-defense, I would say something like the right to defend oneself being necessary to the liberty of a free person, the right to bear keep and bear arms shall not be infringed.
46:42
SPEAKER_02: I would I would rewrite it in that way to capture the intuition.
46:45
SPEAKER_02: So it's just curious to that it would make explicit reference in its prefatory clause to a militia.
46:53
SPEAKER_00: Well, I don't think it's curious that it would make explicit reference to a militia.
46:56
SPEAKER_00: I mean, that might very well be the primary purpose that for which it's added to the Constitution.
47:02
SPEAKER_00: I'm not I'm not debating or disputing that the uh that people serving in a militia for purposes of defense of the s of the state and potentially for resistance against the state, that that might be the primary motivation for it having been put in the constitution.
47:17
SPEAKER_00: I'm simply saying that that can't be the only uh uh way in which the right is is understood because of the language that they use, you know, the people, which in all other rights contexts in the Bill of Rights refers to individual rights, um, and uh the historical context where this right, going all the way back to the English Bill of Rights, right, was understood to be an individual right.
47:44
SPEAKER_00: Uh so in in my view, it it actually is kind of anachronistic to read back into uh this language our modern day preconceptions of well, the only reason you would uh have firearms is to serve in the armed forces in some capacity.
48:00
SPEAKER_00: It's like, well, actually, that's not how they thought about it at all, right?
48:03
SPEAKER_00: Um, and and in announcing the purpose of the right as being tied to the militia does not limit the right in that way.
48:09
SPEAKER_01: So let me try something on you guys, because this is my opportunity to do all my fringe Second Amendment ideas, which are all right and correct in my view.
48:16
SPEAKER_01: Uh but uh it doesn't mean, you know, like ordinance versus arms.
48:19
SPEAKER_01: It's just brilliant when I read that.
48:20
SPEAKER_01: It just seems right and no one else uh has said it.
48:23
SPEAKER_01: So again, Ken, you have to write that paper, but let me try two things on uh three things on you.
48:27
SPEAKER_01: Number one, easy point that someone often makes is well, the militia is just the people, right?
48:31
SPEAKER_01: It's actually not different.
48:32
SPEAKER_01: And I actually found that persuasive that when you look at it, the militia is the body of the people.
48:35
SPEAKER_01: We could it's called the unorganized militia.
48:37
SPEAKER_01: And then you can organize it when you call it, but it doesn't say, you know, a well-regulated and organized militia, right?
48:44
SPEAKER_01: It just says a militia, which is the people.
48:46
SPEAKER_01: But I have a theory as to why it's included there.
48:49
SPEAKER_01: And then let me give you a spin on the original meaning.
48:52
SPEAKER_01: So the theory is, which I don't know if it's right, but it just seems so totally plausible and likely, which is remember, James Madison was really concerned about about implications of writing rights, writing down rights.
49:03
SPEAKER_01: If you enumerate rights, what are the implications?
49:06
SPEAKER_01: One is if you don't include some right, is the implication that that power has been assigned into the federal government because it's not in the enumerated exceptions from government power.
49:16
SPEAKER_01: But the other thing is, if you do include a right, does that imply that otherwise the government might have had power over the right in question?
49:22
SPEAKER_01: Right?
49:23
SPEAKER_01: So a big argument against the need for the freedom of the press protection is, well, what power does Congress have over freedom of the press?
49:30
SPEAKER_01: Now, it turns out that the NFederalists were right about this because the necessary and proper clause is a little bit more elastic, you know, than what had come uh before.
49:38
SPEAKER_01: And so it's good that we had the Bill of Rights.
49:40
SPEAKER_01: But if you want to avoid the implication that these rights were otherwise assigned into the general government, well, what power would the government have to interfere with guns?
49:50
SPEAKER_01: If you just read Article 1, Section 8, there's nothing in there except the militia clause, the power to regulate and organize the militia.
49:57
SPEAKER_01: And so if you want to tie the right to the only conceivable basis that Congress has to regulate it and to suggest that it doesn't otherwise have some broader basis of regulation, then you limit it to the, you know, you mentioned the militia, not to limit it, only because the militia is the only context in which Congress plausibly could regulate the right or potentially infringe the right.
50:18
SPEAKER_01: So that's sort of my my theory.
50:21
SPEAKER_01: There's no evidence for this.
50:22
SPEAKER_01: There's no silver bullet, but it's so plausible and elegant that I feel like it's got to be right.
50:26
SPEAKER_01: Okay, last point, and then I want to invoke here uh Robert Leiter, Professor Leiter, who is uh currently the chief legal counsel, general counsel, or maybe he's the head of the ATF.
50:38
SPEAKER_01: Yeah, uh of uh the Alcohol, Tobacco, and Firearms Bureau.
50:42
SPEAKER_01: So he is a um bad ASS, family-friendly, so I'm not gonna uh say that out loud.
50:47
SPEAKER_01: And he's also a professor.
50:49
SPEAKER_01: I guess he's on leave, right?
50:50
SPEAKER_01: But he's a professor at the Scully Law School at George Mason University.
50:54
SPEAKER_01: And I must say there, you know, there there are times when you read stuff and it's like, I now get this.
50:59
SPEAKER_01: I now get this.
51:00
SPEAKER_01: And Robert Leiter has a series of papers on the Second Amendment, and I just get it, right?
51:05
SPEAKER_01: It just makes sense to me.
51:06
SPEAKER_01: And I'm gonna try uh to explain uh what it is, and and but he'll have to come on the show when he's done with ATF and correct me.
51:13
SPEAKER_01: Basically, you know, there's this individual right for all sorts of purposes, right?
51:17
SPEAKER_01: Defense, hunting, whatever it is.
51:19
SPEAKER_01: There's this collective right, which, as you said, Joelle, could be used to you know suppress government tyranny or to combat government tyranny.
51:27
SPEAKER_01: But the real reason actually is that first, the intermediate thing you said, which is you it is the right of the people to have guns in their home, an individual right to have guns in their home, so they can immediately immediately come to the defense of the state when necessary.
51:42
SPEAKER_01: The Constitution actually tells us about the militia.
51:45
SPEAKER_01: When can Congress call forth the militia, provide for calling forth the militia, to suppress insurrection, repel invasion, and to help execute the laws of the Union?
51:53
SPEAKER_01: It is to help the country in its dire times of need.
51:57
SPEAKER_01: In other words, it seems to me that this is the Red Dawn Amendment.
52:01
SPEAKER_01: Okay?
52:01
SPEAKER_01: Don't watch the recent Red Dawn, watch the 1980s Red Dawn.
52:04
SPEAKER_01: A bunch of Cubans, you know, parachute into the heartland, and you are gonna say, okay, let's organize a militia.
52:10
SPEAKER_01: No, you get your guns from your garage and then you go and you fight the Cubans, right?
52:14
SPEAKER_01: It's so you can repel invasion and suppress insurrection and come to the defense of the state when necessary.
52:19
SPEAKER_01: And that was thought to require that you keep arms in your home so you can be prepared to come out immediately when necessary.
52:27
SPEAKER_01: So it is an individual right for collective self-defense.
52:30
SPEAKER_01: And if that's true, then AR-15s obviously are at the core of that.
52:35
SPEAKER_01: Isn't that so?
52:36
SPEAKER_01: Anyway, what do you think?
52:37
SPEAKER_01: Am I right, Ron, crazy?
52:38
SPEAKER_01: Or Robert's right, Ron, crazy?
52:40
SPEAKER_00: Uh so I think, you know, Robert's article, which I think is still a draft.
52:44
SPEAKER_00: I don't think he's published it yet, but that um but that article, um, you know, customarily for for Robert is insightful and uh and very learned.
52:54
SPEAKER_00: And I agree with a lot of what it says.
52:56
SPEAKER_00: Um he he does everything he says is consistent with Heller, in the sense that he does not take a position in that article on whether uh the Second Amendment protects the right to uh keep and bear arms for self-defense against private violence, for example, which is what Heller was really focused on, right?
53:18
SPEAKER_00: He does he says his view does not reject that, nor does it require that.
53:22
SPEAKER_00: It's just kind of agnostic as to that.
53:24
SPEAKER_00: Um but he strongly agrees with Heller that the Second Amendment is an individual right, it's not one that you only have when exercising connection with militia duty, right?
53:35
SPEAKER_00: Um But the the big disagree, and and to your point, he would say in that article that uh if you take his view that it's an individual right, but for the purpose of ensuring that you can serve in uh a militia, that that would easily encompass AR-15s as protected arms, because what the kinds of arms that would be paradigmatically protected under his view would be those arms that are uh uh conventionally used for military purposes, right?
54:05
SPEAKER_00: Conventionally possessed for those purposes.
54:07
SPEAKER_00: And AR-15s would definitely be in that realm.
54:09
SPEAKER_00: Okay.
54:10
SPEAKER_00: I think where the big where there is disagreement potentially between me and and Robert, and you know, I'm I'm not exactly sure, I'd have to, you know, talk to him about it, is that he rejects, I read him as rejecting the common use test, as saying that's not the test for determining whether arms can be banned.
54:27
SPEAKER_00: Um, and it's instead this kind of connection to militia service, like whether whether it would be an arm that would be used in militia service.
54:35
SPEAKER_00: And I disagree with that to some extent and agree with it on to some extent.
54:40
SPEAKER_00: I agree in the sense that I think it's perverse to interpret which arms can be banned in the way that, for example, the Seventh Circuit did in a case called Bevis, where it said, well, insofar as an arm is most useful for military service, that's when it can be banned.
54:57
SPEAKER_00: That seems like a complete inversion of the purpose of the Second Amendment and the preparatory clause.
55:03
SPEAKER_00: So that that seems like that can't be correct.
55:05
SPEAKER_00: And I and Rob, I think, is completely right about that.
55:08
SPEAKER_00: But um, but I don't think that that means that you can, that the only arms that are protected are those that are most useful for military purposes, because there is this established historical tradition of the arms that were traditionally banned were those that were dangerous and unusual, that is to say, those that were not in common use.
55:28
SPEAKER_00: And so I take the Second Amendment as really reflecting a historical judgment that we're going to allow the people themselves, through their considered judgment, to decide what arms can be banned.
55:39
SPEAKER_00: And how do we do that?
55:40
SPEAKER_00: By looking to have they brought an arm into common use, have they banned it widely?
55:46
SPEAKER_00: Um, or is it generally legal and generally available and possessed by the people themselves?
55:51
SPEAKER_00: And if it is, then they've decided that this is an arm that should be protected by the Second Amendment.
55:57
SPEAKER_00: That seems to be the best understanding.
55:59
SPEAKER_01: Yeah, I okay, so one last point about this, and then I want to get your thoughts on a bigger question of like, let's assume the right covers this.
56:06
SPEAKER_01: How do we know when the government can regulate it and the kind of limits it can put on it?
56:10
SPEAKER_01: And we only have about 10 more minutes, so it'll be our sort of our last topic.
56:13
SPEAKER_01: But Blackstone described it as self-preservation, right?
56:16
SPEAKER_01: And I think that captures it.
56:18
SPEAKER_01: It's a right of self-preservation, individual self-preservation, defense of your own life and property, and of collective self-preservation.
56:25
SPEAKER_01: And the individual right to collective self-defense, I think cut covers covers both.
56:30
SPEAKER_01: Um, but okay, so I got the last word on that.
56:32
SPEAKER_01: How do we think about final topic, regulating rights generally?
56:36
SPEAKER_01: So, you know, like why are time, place, and manner restrictions okay?
56:41
SPEAKER_01: Um, why are on speech, why are economic regulations and restrictions okay?
56:46
SPEAKER_01: Why do they not abridge the privileges and immunities?
56:49
SPEAKER_01: Why are some regulations, for example, of exceedingly dangerous weapons okay?
56:55
SPEAKER_01: How do we know which regulations deny or abridge or infringe the right in question?
57:00
SPEAKER_01: And those which simply regulate it, make it more regular.
57:04
SPEAKER_01: Uh, do you have a theory about that?
57:05
SPEAKER_01: And I asked because a one way that we do this is tiers of scrutiny, right?
57:09
SPEAKER_01: And uh I can sort of describe this, but you've been a critic of it.
57:13
SPEAKER_01: In the 14th Amendment context, right?
57:14
SPEAKER_01: How do we know what an unequal law is?
57:17
SPEAKER_01: All laws make distinctions.
57:19
SPEAKER_01: So there are heuristics, right?
57:20
SPEAKER_01: If you if you classify on the basis of race, that's almost never gonna be a proper regulation.
57:26
SPEAKER_01: And so we give it strict scrutiny.
57:28
SPEAKER_01: You need a compelling interest, and as we know, really tailored, gender gets intermediate, intermediate plus, everything else gets rational basis.
57:35
SPEAKER_01: The First Amendment, too, like the court protects is political speech, say.
57:39
SPEAKER_01: If assuming that's right, well, the fact that viewpoint discrimination is per se unlawful, content-based restrictions get strict scrutiny, mere time, place, and manner get intermediate scrutiny.
57:49
SPEAKER_01: You're just trying to figure out, you know, uh, is this a covert attempt by the government to deny the right in question?
57:56
SPEAKER_01: Or is there a legitimate purpose it's aiming at that can be seen as consistent with the right and regulating the right?
58:01
SPEAKER_01: So it seems to me that the tiers of scrutiny are plausible, but you've fought back against that and defended this history and tradition test.
58:07
SPEAKER_01: What do you think?
58:09
SPEAKER_02: Could I could I jump in there real quick?
58:11
SPEAKER_02: So um, Ilan and I have debated the uh tiers of scrutiny on the pod before.
58:16
SPEAKER_02: Um and uh and I want to point out that rational basis scrutiny is the reason we're called rationally based.
58:24
SPEAKER_02: It's a play on the so thank you to the court for that.
58:26
SPEAKER_02: But I'm I'm also a skeptic of the tiers of scrutiny.
58:30
SPEAKER_02: And you know, one thing that troubles me uh is where do these come from legally speaking?
58:35
SPEAKER_02: I I mean, uh the court just made them up.
58:38
SPEAKER_02: Uh the court made up the idea that there's such a thing as strict scrutiny and rational basis, and economic regulations will get uh rational basis scrutiny, and regulations that say touch on race or the content of speech will get strict scrutiny.
58:52
SPEAKER_02: The court made up a third tier, intermediate scrutiny for gender.
58:56
SPEAKER_02: It's just it's just gloss.
58:58
SPEAKER_02: It's all uh second-order gloss by the courts.
59:00
SPEAKER_02: And the other problem is when you there's a sort of technical desiderata that sort of arises around the tiers of scrutiny, uh, compelling state interest, a significant state interest, an important state interest, narrow tailoring, et cetera.
59:18
SPEAKER_02: But when you look past it, it's just the court sitting in judgment on the quality of the reasons given by other branches of government.
59:25
SPEAKER_02: So Congress says we should regulate, I don't know, um uh the speech of foreign students.
59:32
SPEAKER_02: So we should um take away there.
59:34
SPEAKER_02: And the court says, you do not have a compelling reason.
59:37
SPEAKER_02: Well, what if I did that with how you spend your money, right?
59:40
SPEAKER_02: What if you said to me, uh, I want to buy a sports car?
59:43
SPEAKER_02: And I said, What's your reason?
59:45
SPEAKER_02: And you said, well, it's fun, it looks cool.
59:47
SPEAKER_02: And I said, that's not a compelling reason, that's merely a significant reason.
59:51
SPEAKER_02: No, you may not buy the sports car.
59:53
SPEAKER_02: Well, that would be a clear sign of my financial supremacy over you.
59:57
SPEAKER_02: It's almost like a paternalistic relationship.
1:00:00
SPEAKER_02: And the court is setting itself up in a in a way that appears pretextually um law-bound, but is in fact just um discretionary power of a branch of government that should not be uh in the position of a father to a child, but acts like a father to a child.
1:00:18
SPEAKER_02: So that's what troubles me about the tiers of scrutiny.
1:00:21
SPEAKER_02: You think Bruin gives us an alternative, I'm all ears.
1:00:25
SPEAKER_00: Okay, so in our limited time remaining, I'll say that uh I agree, Josh, that the problem with the tiers of scrutiny is fundamentally one of democratic legitimacy.
1:00:35
SPEAKER_00: Uh it puts the judges in the position of making unconstrained normative judgments and empirical judgments that supersede those of the democratically elected branches and states, um, with no basis in the Constitution for them to do that.
1:00:52
SPEAKER_00: Right.
1:00:53
SPEAKER_00: Uh now you said, well, they're kind of double checking the reasons given by the people uh in enacting democratic legislation.
1:01:01
SPEAKER_00: I actually don't think that that in principle is a problem.
1:01:05
SPEAKER_00: Uh it's what's the source of the uh the authority for them to do that, and where are they deriving the kind of checklist of reasons that can be given, right?
1:01:18
SPEAKER_00: What Bruin does is uh is it says, well, it does matter what the reason is for restricting a particular right, but we're going to limit the right, the the reasons that can be given to those that were historically accepted reasons for restricting the right.
1:01:32
SPEAKER_00: So if the judges are asking in the AR-15 example, right, um, if if this if the state of uh Connecticut says, well, we're banning AR-15s because we just don't like private people owning rifles.
1:01:46
SPEAKER_00: We just don't like it.
1:01:47
SPEAKER_00: We think that that it's unnecessary in our civilized society.
1:01:51
SPEAKER_00: That's a reason.
1:01:52
SPEAKER_00: It's a reason that is directly at odds with the historical understanding of the Second Amendment, which would not have permitted that reason as a reason for restricting the right.
1:01:59
SPEAKER_00: So it is the court intervening to say your reason is not a good reason, but the but it's not based on their own judicial normative view of this of the right to keep and bear arms.
1:02:10
SPEAKER_00: It's rooted in a democratically legitimate source, which is how that Second Amendment was understood at the time that it was ratified.
1:02:18
SPEAKER_00: They're enforcing that against the current majority under the Bruin methodology, because the Bruin methodology, by focusing on text and then history, is trying to recover, as the court has said, the original contours of the right, which is to say we understand that rights are have to be regulated in the public interest and that there have to be accommodations of different uh uh uh uh people's uh abilities to exercise their rights, you know, in a in an or in a civil society.
1:02:46
SPEAKER_00: And so that means that if you look at the original meaning of these rights, there is a lot of scope for regulation of rights.
1:02:55
SPEAKER_00: But what matters is whether that scope was authorized by the original meaning of the right itself, not whether the the court now is stepping in based on its own normative view of the right and the importance of the right and saying, yeah, we're gonna let this or we're not gonna let this through, right?
1:03:13
SPEAKER_00: That's the problem with the tiers of scrutiny.
1:03:14
SPEAKER_00: It substitutes judicial judgment of the significance and importance of a right for the original meaning.
1:03:19
SPEAKER_02: So what is so one thing Ilan has pointed out when we've talked about this in the past is one way or the other, the court has got to decide when a public interest trumps an individual right.
1:03:29
SPEAKER_02: And the traditional metaphor is balancing.
1:03:32
SPEAKER_02: There's no getting around it.
1:03:33
SPEAKER_02: I mean, it's like um the First Amendment says Congress shall make no law bridging the freedom of speech, but you can't yell fire in a crowded theater.
1:03:40
SPEAKER_02: I can't say your money or your life, I can't uh uh I can't I can't hire someone and say, you know, the operative crime is to say, go kill the witness.
1:03:51
SPEAKER_02: Uh that's speech, but it's regulable.
1:03:53
SPEAKER_02: So we with every individual right, a sensible society carves out certain kinds of exceptions.
1:03:59
SPEAKER_00: Yes.
1:04:00
SPEAKER_02: And the tears of scrutiny or any sort of balancing test ordinarily helps courts do that.
1:04:06
SPEAKER_02: You think Bruin shows us a better way, and it has to do with this analogistic reasoning.
1:04:10
SPEAKER_02: Can you say a bit more about that?
1:04:12
SPEAKER_00: Yeah, so Bruin says, we're gonna how are we gonna figure out what the uh principles are of this of the Second Amendment?
1:04:19
SPEAKER_00: Well, we're gonna look at when this amendment was ratified, uh, what were the kinds of restrictions on the right that were generally understood to be permissible?
1:04:29
SPEAKER_00: And you might look at a lot of different sources for that.
1:04:32
SPEAKER_00: You could look at treatises, you could look at statements by the founders, you know, there are political theory tracks that might be relevant to that.
1:04:38
SPEAKER_00: But probably the most direct way to know that is how, in fact, did they restrict the right at this time?
1:04:44
SPEAKER_00: Were there regulations at the time that were broadly understood to be fine?
1:04:48
SPEAKER_00: And that uh and that gives you an insight into what are the principles that are embedded into the right that allow for regulation.
1:04:58
SPEAKER_00: Now, of course, because we live in a different uh world today than we did at the founding, the kinds of regulations that are enacted by legislatures today might not be identical to the regulations at the time.
1:05:10
SPEAKER_00: But what matters is whether the underlying principle of the regulatory regimes at the time of the founding, for example, uh, those principles would support similar laws today, right?
1:05:22
SPEAKER_00: Even if they're not identical.
1:05:24
SPEAKER_00: And that gets you into one of the biggest criticisms of the Bruin methodology, which is, well, at what level of generality, how abstractly do you define those original historical principles?
1:05:34
SPEAKER_00: Because if we define the Second Amendment's historical principle as allowing regulation of anything that seems to be threatening to other citizens, like, okay, well then the legislature can just do whatever it wants.
1:05:46
SPEAKER_00: It could just completely eviscerate um the Second Amendment because it could determine that uh all AR-15s are dangerous, right, to somebody, right?
1:05:54
SPEAKER_00: Um so it matters greatly how abstractly you define that historical principle.
1:05:58
SPEAKER_00: And that's one of the major uh sources of debate in constitutional theory circles right now, with me defending Bruin and offering ways to address the level of generality issue in, in my view, in a principled manner.
1:06:11
SPEAKER_00: And critics of Bruin, uh perhaps most prominently on this issue, at least of level of generality, Sharif Girgas of Notre Dame, um and Sephie Barclay of Georgetown, along with a lot of uh uh non-originalist scholars on the left, arguing that there's just no way to resolve this level of generality issue in a way that is uh true to Bruin's aspirations, right, uh, to be principled.
1:06:33
SPEAKER_01: So I might give myself the moderator's prerogative here of last word in the last 90 seconds, which is maybe these tests can all be made to cohere if done properly, right?
1:06:42
SPEAKER_01: I just wonder if the real question is do we have to understand the purpose of the right in question?
1:06:47
SPEAKER_01: So this is something I've written a little bit about in the 14th Amendment context.
1:06:50
SPEAKER_01: Why would a gay code, equivalent to the black codes, be unconstitutional?
1:06:54
SPEAKER_01: Well, because being gay is irrelevant to property rights, it's irrelevant to contract rights, it's irrelevant to gun rights.
1:07:00
SPEAKER_01: There's nothing about being gay, right?
1:07:02
SPEAKER_01: So basically, if you say gay people can't own guns, you're denying the right in question.
1:07:05
SPEAKER_01: You're not regulating it because being gay has nothing to do with the right in question.
1:07:10
SPEAKER_01: Now, should marriage be limited to a man and a woman, oh, we have to know and understand the purpose of the right of marriage.
1:07:17
SPEAKER_01: And then it becomes a harder question.
1:07:20
SPEAKER_01: Contract killing, you can prohibit it because the purpose of contract rights is not to facilitate murder.
1:07:25
SPEAKER_01: It's to facilitate productive, lawful, economic exchange.
1:07:29
SPEAKER_01: And so if we understand that the purpose of the Second Amendment is this individual right to collective self-defense, that answers the question, right?
1:07:37
SPEAKER_01: Of well, you should have AR-15s, which are like the standard thing that a militia member would have had or would have.
1:07:43
SPEAKER_01: Uh, and so history and tradition can help inform that.
1:07:47
SPEAKER_01: Tears of scrutiny can help figure out, suss out if the government is trying to get around it under disguise.
1:07:52
SPEAKER_01: But at the end of the day, aren't we really aiming at the purpose, uh, figuring out what the purpose of the right in question is to make sure that that isn't being denied and that it is instead being genuinely regulated.
1:08:02
SPEAKER_01: Anyway, that's my spin on it.
1:08:03
SPEAKER_01: We are out of time, so we will not get Joelle and Josh's um reactions to that.
1:08:07
SPEAKER_01: But boy, what a really fun experience.
1:08:09
SPEAKER_01: Joelle, we'll have to have you back because that was way too much to talk about in a short hour.
1:08:13
SPEAKER_01: To our listeners, please hit that like and subscribe button.
1:08:16
SPEAKER_01: Do not forget, leave us a rating and a review on Apple, especially if you haven't yet.
1:08:20
SPEAKER_01: And we will see you next.