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Ghost Guns & NCAA's $2.78 Billion Settlement · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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Speaker 2: These guns were being purchased and used in crime. They
0:13
Speaker 2: were sold to be crime guns. There was a one
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Speaker 2: thousand percent increase between twenty seventeen and twenty twenty one
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Speaker 2: in the number of these guns that were recovered as
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Speaker 2: part of criminal investigations. And it makes perfect sense because
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Speaker 2: the whole reason why you would want to get your
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Speaker 2: hands on one of these unseerialized, untraceable firearms is if
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Speaker 2: you are a prohibited person or you want to use
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Speaker 2: that gun in a crime.
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Speaker 3: US Solicitor General Elizabeth Prelager argued that the Supreme Court
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Speaker 3: should uphold the Biden administration's regulation of ghost guns, nearly
0:45
Speaker 3: untraceable firearms that can be assembled at home in as
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Speaker 3: little as twenty minutes. During oral arguments today, the justices
0:53
Speaker 3: grapple with the question of whether ghost guns meet the
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Speaker 3: definition of firearm under the Federal Gun Case Act that
1:01
Speaker 3: would allow the government to regulate ghost guns in the
1:04
Speaker 3: same way it regulates other firearms. The analogies were plentiful.
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Speaker 3: Justice Samuel Alito, who seemed skeptical of the government's argument,
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Speaker 3: like in gun kits, to cooking ingredients.
1:18
Speaker 1: I show you I put out on a counter some eggs,
1:22
Speaker 1: some chopped up ham, some chopped up pepper, and onions.
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Speaker 1: Is that a Western omelet?
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Speaker 2: No, because again those items have well known other uses
1:34
Speaker 2: to become something other than an omelet. The key difference
1:37
Speaker 2: here is that these weapon parts kits are designed and
1:40
Speaker 2: intended to be used as instruments of combat, and they
1:42
Speaker 2: have no other conceivable use.
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Speaker 3: But Justice amy Cony Barrett jumped in comparing gun kits
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Speaker 3: to meal kits.
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Speaker 2: I know, preloger, I just want to follow up on
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Speaker 2: Justice Alito's question about the omelet. Would your answer change
1:56
Speaker 2: if you ordered it from Hello Fresh and you've got
1:58
Speaker 2: a kit and it was it's like turkey chili.
2:01
Speaker 1: But all of the ingredient answer in the kit?
2:03
Speaker 2: Yes.
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Speaker 3: Joining me is Kevin Tobia, a professor at Georgetown Law.
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Speaker 3: Many people might expect that this is a Second Amendment
2:10
Speaker 3: case since it concerns guns, But tell us what the
2:14
Speaker 3: question before the court.
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Speaker 4: Was here, right, So it's not a secondmendent case. It's
2:19
Speaker 4: a statutory case. So it concerns the Gun Control Act
2:23
Speaker 4: of nineteen sixty eight, And there's two questions in the case.
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Speaker 4: And so both of them involve the meaning of different
2:29
Speaker 4: language in this statute. So the first one is about
2:32
Speaker 4: a provision of the statute that defines firearm to include
2:37
Speaker 4: any weapon which will or is designed to or may
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Speaker 4: readily be converted to expel a projectile by the action
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Speaker 4: and explosive And so the first question is whether that
2:45
Speaker 4: definition encompasses gun parts kits. The second question is about
2:50
Speaker 4: another part of the STETSUL definition, which includes firearm to
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Speaker 4: also include a frame or receiver of any such weapon.
2:57
Speaker 4: So those are the two interpretive questions. And as you say,
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Speaker 4: it's second a medic case. So it's in many ways
3:01
Speaker 4: it's like last terms case Garland versus Cargol, that bump
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Speaker 4: stock case. That was another statutory case that involved questions
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Speaker 4: related to firearms law.
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Speaker 3: So a lot of the oral argument seemed like sort
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Speaker 3: of mind numbing, with the justices discussing, you know, the
3:17
Speaker 3: partially assembled guns and the pieces tell us what was
3:20
Speaker 3: going on there? Is they you know, tried to explore
3:23
Speaker 3: the parts of the gun.
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Speaker 4: Yeah, it's a great question, and in some ways it
3:27
Speaker 4: may also be reminiscent of again that kind of Cargole
3:30
Speaker 4: case about the bump stocks. The opinion in Cargol had
3:33
Speaker 4: a lot of technicalities about different parts of the gun.
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Speaker 4: So the question that in some ways is actually kind
3:37
Speaker 4: of simple, right before you get to like all the
3:39
Speaker 4: kind of complexity that they were working through, which is
3:41
Speaker 4: what counts as a firearm for this law, right, And
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Speaker 4: so these gun parts kits are kits that are sold,
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Speaker 4: they're marketed and sold as kits that you couldn't buy
3:50
Speaker 4: and assemble and construct into a functional firearm. And so
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Speaker 4: you know, a lot of the conversation was drawing analogies
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Speaker 4: to different sorts of goods, playing you know, kind of
3:59
Speaker 4: with language and trying to understand you know, what counts
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Speaker 4: as an omelet or what counts as a table. Right,
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Speaker 4: So you know, even before getting to the technicolity's guns, right,
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Speaker 4: some of these examples, like Justice Alito offered this example
4:09
Speaker 4: kind of hostile to the government's position that if we
4:11
Speaker 4: just have you know, peppers and mushrooms and eggs, that's
4:14
Speaker 4: not an omelet yet. So in the same way, right,
4:17
Speaker 4: like a collection of gun parts is not is not
4:19
Speaker 4: a firearm yet. And just as Barrett, actually you're sort
4:22
Speaker 4: of responded and said, well, what if those come in
4:24
Speaker 4: a in a Hello, fresh kit. We actually might understand
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Speaker 4: that as an omelet even though it's not completely assembled yet.
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Speaker 4: And you know, the example of Nikia table came up
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Speaker 4: as well. So, as you say, right, some of the
4:33
Speaker 4: argument got into the technicalities of like what exactly is
4:35
Speaker 4: included in these parts kits? What's a frame and receiver.
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Speaker 4: It was also interesting that more broadly, a lot of
4:40
Speaker 4: the justices were drawing these analogies to other sorts of
4:43
Speaker 4: items that were pretty comfortable to call tables even though
4:46
Speaker 4: they're unassembled, or omelets even though they're unassembled.
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Speaker 3: And it was interesting when the attorney representing the manufacturers
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Speaker 3: and gun rights advocates, Peter Patterson, tried to compare these
4:59
Speaker 3: ghost gun kits to a hobby quote, just like some
5:03
Speaker 3: individuals enjoy working on their car every weekend, some individuals
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Speaker 3: want to construct their own firearms. Chief Justice John Roberts said,
5:12
Speaker 3: drilling a hole or two, I would think doesn't give
5:15
Speaker 3: you the same reward that you get from working on
5:18
Speaker 3: your car on the weekends, And then more pointedly said,
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Speaker 3: what is the purpose of selling a receiver without the
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Speaker 3: holes drilled in?
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Speaker 4: Yeah, so I thought that that line of questioning from
5:29
Speaker 4: Justice Roberts was really interesting, I think, especially if you're
5:32
Speaker 4: trying to read the tea leaves and sort of think
5:34
Speaker 4: about where some of these justices will vote. And I
5:36
Speaker 4: think Roberts is a kind of important one in this case.
5:38
Speaker 4: He asked, if you say, straight up right, like, what's
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Speaker 4: the purpose of selling a receiver without the holes drilled
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Speaker 4: in it? Interesting question also because it refers to that
5:45
Speaker 4: thing as a receiver, right, which arguably it is. And
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Speaker 4: you know, one answer from Patterson, representing Vendorstock is you
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Speaker 4: know people buy this as a hobbyist, right, in the
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Speaker 4: same way you might buy like a collection of unassembled
5:57
Speaker 4: parts to make a ship or like a little toy
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Speaker 4: ship or model or something, or working on a car
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Speaker 4: and you enjoy it. And Justice Roberts really did not
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Speaker 4: seem to be buying that answer, right. He said, you know,
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Speaker 4: drilling a hole or two like doesn't really give you
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Speaker 4: the kind of reward you get from working on your
6:10
Speaker 4: car over the weekend. And I think he's exactly right there, right, So,
6:13
Speaker 4: like when you look at how these guns are marketed
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Speaker 4: as well, these parts kits are not marketed for hobbyists,
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Speaker 4: like they're not described by language like this is a
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Speaker 4: really leisurely, enjoyable, difficult build.
6:23
Speaker 2: Right.
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Speaker 4: They're marketed in terms like this is extremely fast and easy,
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Speaker 4: this is ridiculously easy, like this is dummy proof, like
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Speaker 4: you can do this really fast with no expertise. And
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Speaker 4: so I think that analogy that Patterson was trying to
6:35
Speaker 4: draw between buyers of these kits and buyers like hobbyists
6:38
Speaker 4: just really fell apart. And I think there's a great
6:39
Speaker 4: question from Justice Roberts and also give some insight into
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Speaker 4: where he might stand on this case.
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Speaker 3: Even the justices that you might consider as sort of
6:49
Speaker 3: antagonistic to the government's argument, some of the more conservative justices,
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Speaker 3: does anyone believe that this is not a kit to
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Speaker 3: assemble a gun? I mean, it just seems so op
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Speaker 3: VI is what's going on here? Are they just trying
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Speaker 3: to look for a loophole to get out of it?
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Speaker 4: Yeah, so I think everyone agrees that these are kids
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Speaker 4: to be assembled into a gun. You know what kind
7:09
Speaker 4: of Vanderstock's argument is that just because of the kid
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Speaker 4: that you could assemble into a gun does not in
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Speaker 4: fact make it a firearm within the meaning of the statute.
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Speaker 4: And so the sort of question, you know is, and
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Speaker 4: the government sees the statutory meeting a firearm to include
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Speaker 4: these kits, and so you know, one of the kind
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Speaker 4: of like interesting thing that kind of came out today
7:24
Speaker 4: to your question is like there was some discussion. There
7:27
Speaker 4: was a lot of discussion actually about kind of like
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Speaker 4: where to draw the line. And I think even Patterson
7:31
Speaker 4: conceded that a firearm that's disassembled as a firearm, and
7:34
Speaker 4: so the sort of question about like how close does
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Speaker 4: it have to be. And so you know, the government's
7:38
Speaker 4: argument the ats and with a general plugger, their argument is,
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Speaker 4: you know, once it's readily convertible, which these kids they
7:44
Speaker 4: think are, or more precisely the sort of APS standard,
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Speaker 4: you know, that's good enough. And so the term firearms
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Speaker 4: shooting compass these kids which could be readily converted to
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Speaker 4: function as firearms very quickly.
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Speaker 3: Justice Gorsuch asked questions of a textualist nature. Where do
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Speaker 3: you think the textualist analysis gets you here?
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Speaker 4: So there's two questions in the case, right, So the
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Speaker 4: first one is about whether a parts kit falls under
8:11
Speaker 4: the Part.
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Speaker 1: A of this statute.
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Speaker 4: So any weapon which will is designed to or may
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Speaker 4: readily be perverted to expel a projectile by the action explosive.
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Speaker 4: As a matter of textualism, I think that question in
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Speaker 4: this case is extremely straightforward, that these parts kits fall
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Speaker 4: under that language just as part of the ordinary meaning
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Speaker 4: of firearm. And then you underscored by the statutory language.
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Speaker 4: The statue explicitly contemplates things that could be readily converted
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Speaker 4: to expel a projectile, which just seems to be explicitly
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Speaker 4: describing things like these parts kits. And in question, the
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Speaker 4: sort of second question in the case is about the
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Speaker 4: meaning of the frame or receiver of any such weapons
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Speaker 4: the statue, and many of Justice Gorsug's questions had to
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Speaker 4: do with that second question. So there the question is,
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Speaker 4: if these companies sell an eighty percent receiver, which, as
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Speaker 4: the government says, you have to drill a few holes
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Speaker 4: in to convert this to a one hundred percent functional receiver,
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Speaker 4: does that count as a frame or receiver within the
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Speaker 4: meaning of the statute? And so, you know, one kind
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Speaker 4: of notable fact about the statute is it does not
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Speaker 4: have the same sort of readily convertible language when it
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Speaker 4: describes frame or receiver. And so Justice Gorsuch was asking
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Speaker 4: a number of interesting questions about that, and you know,
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Speaker 4: it's kind of going in I think, especially kind of
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Speaker 4: post Garland versus Cargill. I would not have kind of
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Speaker 4: as a matter of politics, expected Justice Gorsage to be
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Speaker 4: favorable to the government in this case, but his questions
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Speaker 4: sort of suggested some openness to following the text in
9:29
Speaker 4: this case to a place that might not lead to
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Speaker 4: the sort of conservative politics. So he was asking, you know,
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Speaker 4: when you look at this statue and look at the context,
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Speaker 4: every other part of the statute is contemplating convertible parts
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Speaker 4: in addition to fully functional parts, and so in that context,
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Speaker 4: might we understand frame and receiver kind of just giving
9:46
Speaker 4: them the ordinary meaning in that context to also include
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Speaker 4: things that are extremely close to functional and frame and receivers.
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Speaker 4: I thought it was a really interesting kind of exchange
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Speaker 4: between Gorsuch and this was the general from that point.
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Speaker 3: So you think that Gorsich might come out on the
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Speaker 3: government side here.
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Speaker 4: You know, these predictions are always kind of tricky.
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Speaker 3: I know I'll make some though, too, So.
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Speaker 4: I would say, going into the case, you know, I
10:07
Speaker 4: think kind of politics tells you a lot about how
10:09
Speaker 4: these cases are going to come out. But after the
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Speaker 4: oral argument, I think Justices Robert Barrett Kavanaugh, and Gorsich
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Speaker 4: all asked questions that I think were indicating that they
10:18
Speaker 4: were taking the text really seriously, and we're I think
10:21
Speaker 4: seriously contemplating the persuasive arguments from the government about the
10:25
Speaker 4: straightforward textual meaning of the statue. So yes, I think
10:27
Speaker 4: all four of them are sort of conceivably votes for
10:30
Speaker 4: the government here, as are the.
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Speaker 3: Three liberal justices. Of course, before the oral argument, the
10:35
Speaker 3: Court intervened twice to allow the regulation to remain in
10:39
Speaker 3: place until it issues a decision here, and one time
10:42
Speaker 3: it was over the descents of Justices Clarence Thomas, Samuel Alito,
10:47
Speaker 3: Neil Gorsich, and Brett Kavanaugh. So a lot of people
10:50
Speaker 3: were looking at this and sort of predicting that the
10:54
Speaker 3: Chief Justice and Justice Barrett might be the ones to
10:58
Speaker 3: side with the liberals here, and that certainly seemed to
11:01
Speaker 3: be the case from the oral arguments.
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Speaker 4: I think that's right. So I think Justice Barrett as
11:05
Speaker 4: always asked them really kind of insightful questions. So when
11:08
Speaker 4: Justice Alito was giving these examples about you know, well,
11:11
Speaker 4: like if you have like eggs and ham and pepper,
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Speaker 4: like is that an omelet, right, Barrett says, well, you know,
11:15
Speaker 4: she essentially says, is that the right analogy, right, like
11:17
Speaker 4: to a gun parts kit, like if these things are
11:19
Speaker 4: all sold together in a Hello Fresh kit, like that
11:21
Speaker 4: actually is more like an omelet. And so it's sort
11:23
Speaker 4: of an interesting response that seems, you know, again kind
11:26
Speaker 4: of as a textual matter, favorable to the government's reading.
11:29
Speaker 4: In response to the first question presented Roberts, who I
11:31
Speaker 4: mentioned before, right, you know, ask this kind of pointed
11:34
Speaker 4: question about what's the purpose of even selling these eighty
11:36
Speaker 4: percent receivers, And he did not seem to be buying
11:38
Speaker 4: the idea that they were sold for hobbyists, but rather
11:41
Speaker 4: the arguments that these are sold, you know, basically for
11:44
Speaker 4: teenagers or other people who cannot purchase a normal firearm
11:47
Speaker 4: to you know, also potentially commit crimes. So I think
11:50
Speaker 4: both Roberts and Barrett their questioning suggests sort of favorability
11:53
Speaker 4: with the government's reading. And then surprisingly, I think, you know,
11:56
Speaker 4: in light of the stay decision, Justice Kavanaugh right said
11:58
Speaker 4: today to the government, your statutory interpretation has forced So
12:02
Speaker 4: Justice Kavanaugh seemed also pretty persuaded by a lot of
12:05
Speaker 4: what the government had to say. And as I was
12:07
Speaker 4: discussing previously, Justice Gorsich was asking a number of questions
12:10
Speaker 4: that suggested that his reading of the text seemed to
12:12
Speaker 4: overlap quite a bit with the government. So I was
12:15
Speaker 4: surprised by those latter two given the vote.
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Speaker 1: On this day.
12:17
Speaker 4: But it was interesting to see all four of those
12:19
Speaker 4: justices asking questions at least kind of suggested that they're
12:22
Speaker 4: reading the text in that way as well.
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Speaker 3: Coming up, but what about the Supreme Court's recent decision
12:26
Speaker 3: tossing out a ban on bump stock. This is bloomberg.
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Speaker 3: The Supreme Court seems likely to uphold a Biden administration
12:36
Speaker 3: regulation on ghost guns, the difficult to trace weapons found
12:40
Speaker 3: in increasing numbers at crime scenes. I've been talking to
12:44
Speaker 3: Professor Kevin Tobia of Georgetown Law. So the Solicitor General
12:48
Speaker 3: mentioned several times the explosion in crimes committed using ghost
12:54
Speaker 3: guns and that the new regulations are crucial for solving
12:58
Speaker 3: gun crimes. And also you had a group of twenty
13:01
Speaker 3: major cities filing with the Supreme Court saying that the
13:05
Speaker 3: regulation appears to have been effective at reducing the use
13:08
Speaker 3: of ghost guns. Where does that fit into the Supreme
13:12
Speaker 3: Court's analysis, especially if it's a textualist analysis.
13:17
Speaker 4: So that's interesting so right. So, you know, if you
13:19
Speaker 4: think about textualism sort of as stated, with the idea
13:23
Speaker 4: that the court will resolve this question just by looking
13:25
Speaker 4: at the statutory text and giving that language the meaning
13:28
Speaker 4: it would have in the eyes of an ordinary reader,
13:31
Speaker 4: you might think those conserations about the practical consequences are irrelevant.
13:35
Speaker 4: Like that's exactly the sort of political, you know, consequential
13:37
Speaker 4: decisions that they're trying to screen off with textualism. So
13:40
Speaker 4: what's interesting is if that's right after today, it looks
13:43
Speaker 4: like actually a majority of the justices are inclined to
13:45
Speaker 4: read the text in line with the government. That would
13:48
Speaker 4: be the three Democratic appointees and then potentially Roberts, Kavanaugh,
13:51
Speaker 4: Barrett Gorsich. I think Roberts in particular was responsive to
13:57
Speaker 4: some of the government's arguments about the practical consequences kind
14:00
Speaker 4: of over and above the text, right to this idea
14:02
Speaker 4: that and there's a kind of relationship between the consequences
14:05
Speaker 4: and the text.
14:05
Speaker 2: Right.
14:05
Speaker 4: So, currently, federal law prohibits selling firearms to twenty one
14:08
Speaker 4: year olds. It requires backgrounds, text serialization, all these requirements,
14:12
Speaker 4: and if the court decides that these kits are not firearms, right,
14:16
Speaker 4: those requirements will not apply at the federal level. And
14:18
Speaker 4: so there's a real concern right that, again, if people
14:21
Speaker 4: who are buying these kits are not hobbyists but rather
14:23
Speaker 4: people who just want a firearm, there's a real circumvention
14:26
Speaker 4: concern that, you know, basically all of the law that
14:29
Speaker 4: would apply to firearm regulation, you know, effectively is meaningless
14:33
Speaker 4: because someone could just get a ghost gun and build
14:35
Speaker 4: their own kit in twenty minutes or however long it takes.
14:38
Speaker 4: And so, you know, some of Robert's questions, I think
14:40
Speaker 4: we're very much kind of responsive to that set of
14:43
Speaker 4: concerns and the principle that if you read the statute
14:46
Speaker 4: and in sort of that way the way van Astock
14:48
Speaker 4: wants it to, you'll render you a big chunk of
14:51
Speaker 4: federal law meaningless. And so I think that that was
14:54
Speaker 4: also a point that was un besides but both of
14:56
Speaker 4: us those are general but then also by Justice Roberts
14:59
Speaker 4: in some of his his questions, was.
15:01
Speaker 3: There any argument about agency power and whether Congress gave
15:06
Speaker 3: the ATF the power to change the definition of firearms
15:10
Speaker 3: to cover these kits?
15:12
Speaker 4: There was like sort of scattered discussion of that question
15:14
Speaker 4: throughout the oral argument. You know, just just as Jackson
15:18
Speaker 4: and I think in particular with asking an intriguing series
15:21
Speaker 4: of questions that are you sort of think of as
15:24
Speaker 4: like in a Postloper Bright world. She was asking questions
15:26
Speaker 4: about like what's the court's role, what's Congress role, what's
15:29
Speaker 4: agency's role. I'm not really sure how much those considerations
15:32
Speaker 4: are going to sort of ultimately make a difference here.
15:35
Speaker 4: I have a feeling that, you know, the court is
15:36
Speaker 4: just going to kind of proceed and treat this as
15:38
Speaker 4: a sort of stastal interpretation case. There's no invocation of
15:41
Speaker 4: major questions, doctrine and those sorts of concerns at least
15:44
Speaker 4: explicitly with all those questions, right, I'm sort of waiting,
15:46
Speaker 4: as with everyone else, kind of what interpretation and what
15:49
Speaker 4: will look like in a post Looper world. I mean,
15:51
Speaker 4: there's some emphasis from the vander Stock side as well.
15:53
Speaker 4: There's some dispute about like did the ATF change their
15:56
Speaker 4: interpretation over time? So solicars and our player Leger describe
16:00
Speaker 4: the ATFS approach as very much consistent. Right, So there's
16:03
Speaker 4: actually nothing dramatically new about the ATF. They've always been
16:08
Speaker 4: attempting to categorize as firearms weapons that are extremely close
16:12
Speaker 4: and what's changed is just the state of the world. Right,
16:14
Speaker 4: there's now these parts kits that are readily convertible to
16:17
Speaker 4: functional firearms that didn't exist, you know, at that scale
16:20
Speaker 4: in nineteen sixty eight. So there's a little bit of
16:22
Speaker 4: back and forth about that question. Some of the most
16:24
Speaker 4: interesting discussions was Justice Jacksonville, though I'm not sure we
16:26
Speaker 4: got a kind of complete answer and certainly not that a
16:28
Speaker 4: complete answer from the CORD about yet, what interpretation is
16:31
Speaker 4: going to look like in the in the post Sloper world.
16:34
Speaker 3: So tell me, I know you wrote a brief in
16:37
Speaker 3: the case in Amicus priest.
16:38
Speaker 4: In this case and some others. I've been working with
16:40
Speaker 4: linguists to you know, one way Ton't kind of think
16:43
Speaker 4: about what we're doing is, you know, mirroring what historians
16:46
Speaker 4: are doing for originalism with linguistics intextualism. Right, So the
16:51
Speaker 4: CORD is going to approach this case. I think today's
16:53
Speaker 4: oral argument clarifies they're going to purchase the case as
16:55
Speaker 4: textualists trying to give the language its ordinary meaning. And
16:59
Speaker 4: there's you know, decades of work in linguistics that would
17:02
Speaker 4: be relevant to that sort of linguistic question. Right, like,
17:05
Speaker 4: what does the mean? What's the ordinary meaning of firearm?
17:07
Speaker 4: You know, how do we use that and understand that
17:09
Speaker 4: in ordinary context? And so in this case, I worked
17:12
Speaker 4: with a group of linguists to do a couple of things.
17:14
Speaker 4: I'll just kind of mention two. One is, you know,
17:17
Speaker 4: we just looked at just in kind of in context,
17:19
Speaker 4: like how do people use the term firearm and especially
17:22
Speaker 4: how do the buyers and sellers of these terms describe them?
17:26
Speaker 4: And one thing that's you know, might be sort of
17:27
Speaker 4: surprising is that at least some of the marketers and
17:30
Speaker 4: sellers of these gun parts kids just explicitly describes on
17:33
Speaker 4: this firearms. They don't say like these these are just
17:36
Speaker 4: these are mere parts that could be a firearm. They
17:38
Speaker 4: say this, you know, this is a firearm. This is
17:39
Speaker 4: a gun, This is a rifle. And so, you know,
17:41
Speaker 4: part of the point that we make in the brief
17:43
Speaker 4: is it just seems like even the sellers and also
17:47
Speaker 4: buyers of these kids in their customer reviews, understand these
17:50
Speaker 4: to be firearms, even though they're like technically not assembled
17:53
Speaker 4: or technically not finish. You got an eighty percent receiver
17:56
Speaker 4: that's you know, requires a little bit of drilling. The
17:58
Speaker 4: second thing we did is we ran a survey of
18:00
Speaker 4: ordinary Americans. So we presented participants in a survey study
18:04
Speaker 4: with a description of gun parts kits and ask them
18:06
Speaker 4: whether they thought it's a firearm, and we found them
18:08
Speaker 4: that the majority of participants said yes. And so you know,
18:11
Speaker 4: this and some other kind of work in linguistics, I
18:13
Speaker 4: think just kind of like fills in I think the
18:14
Speaker 4: background for the quarter. That's what we're hoping to do
18:17
Speaker 4: anyway with our brief that you know, to interpret the
18:19
Speaker 4: statue here, the term firearm to include these parts kit
18:22
Speaker 4: is completely consistent with how we ordinarily understand terms like that,
18:25
Speaker 4: and it's also nothing special about firearms. So in lots
18:28
Speaker 4: of different contexts we understand categories like these artifact nouns
18:32
Speaker 4: like firearm, table, bicycle to include members that are like
18:36
Speaker 4: not perfectly complete. And so you know, if you buy
18:39
Speaker 4: a table from Ikia, as an example, the government has
18:42
Speaker 4: kind of invoked, I think effectively, if you buy a
18:44
Speaker 4: table from Ikia that's not assembled, but it's still a
18:46
Speaker 4: table even though you have to put it together. If
18:48
Speaker 4: you buy a customizable belt and you have to punch
18:51
Speaker 4: holes in it, you got to buy the extra tool
18:54
Speaker 4: and actually like drill kind of punch the hole in
18:56
Speaker 4: the belt yourself. We still understand that you bought a belt,
18:59
Speaker 4: and so you know, that's all part of the point
19:00
Speaker 4: that for the Court to give this the such of
19:02
Speaker 4: this interpretation, it's not like there's something sort of special
19:05
Speaker 4: or dispointive about firearm, although there are also clear signs
19:09
Speaker 4: in this statute that that's the meaning that Congress was
19:12
Speaker 4: really underscoring.
19:13
Speaker 3: You mentioned the Cargol case, where just a few months ago,
19:18
Speaker 3: the Supreme Court, in a six to three decision, tossed
19:22
Speaker 3: out a ban on bump stocks, the device that lets
19:26
Speaker 3: semi automatic weapons fire as rapidly as a machine gun.
19:31
Speaker 3: Does that case have implications for this ghost guns case?
19:38
Speaker 4: So, going into the oral argument, I think, especially if
19:41
Speaker 4: you think that the Court's decision is primarily driven by
19:45
Speaker 4: politics and not actually by textualism, which is a view
19:47
Speaker 4: that many people have, then it's very plausible that this
19:50
Speaker 4: case comes out in this six to three way Garland
19:53
Speaker 4: versus Cargol did with the six conservative justices together in
19:56
Speaker 4: the three liberals dissent, And so that case it actually
19:59
Speaker 4: considered different firearm statue. So it concerns the definition of
20:03
Speaker 4: machine gun and these bumpstock devices. So that's the device
20:06
Speaker 4: that was used in the twenty seventeen Laus Veig is shooting,
20:09
Speaker 4: most deadly shooting in the US history. And so the
20:12
Speaker 4: kind of technical definition of machine gun is any weapon
20:15
Speaker 4: in the statue, any weapon which shoots automatically more than
20:18
Speaker 4: one shot without manually reloading by a single function of
20:21
Speaker 4: the trigger. And so basically the bump stock is a
20:23
Speaker 4: device that you could attach to semi automatic that will
20:25
Speaker 4: basically make the gun fire at the rate of a
20:28
Speaker 4: machine gun. And so the whole debate in that case,
20:30
Speaker 4: and this is kind of getting back to your first
20:32
Speaker 4: question about like all the technicalities of a gun, Like
20:34
Speaker 4: that opinion actually included diagrams of guns and the trigger
20:37
Speaker 4: and like how it functions, and so basically the conservatives
20:40
Speaker 4: read that definition single function of the trigger to mean
20:42
Speaker 4: that the trigger kind of presses and depress, and the
20:45
Speaker 4: way the bump stock works, like the trigger actually presses
20:47
Speaker 4: and depresses every single time. The liberals read single function
20:50
Speaker 4: of the trigger to mean, you know, one initial pull,
20:53
Speaker 4: like what's the function of the trigger, Someone the user
20:55
Speaker 4: of the gun pulls the trigger, and then everything you know,
20:58
Speaker 4: and then it fires essentially automatic. You know, it's an
21:01
Speaker 4: interesting and kind of complicated case. I mean, I think
21:04
Speaker 4: the simplest thing to say about it is, wherever you
21:06
Speaker 4: come out on Garland versus Cargo, whether it's sort of
21:08
Speaker 4: easy or difficult case. Textually, the case that they heard today,
21:11
Speaker 4: Vanderstock as a matter of language is like just much
21:14
Speaker 4: more straightforward, And you know, I think it's reassuring actually
21:17
Speaker 4: that the court's oral argument, many of the questions, especially
21:20
Speaker 4: from Barrett and Roberts and Corsach in Kavandah, really seem
21:23
Speaker 4: to recognize that fact, right, you know, especially the first
21:26
Speaker 4: question and also the second. These gun part kits are
21:29
Speaker 4: firearms in ordinary English, and then the statute explicitly talks
21:32
Speaker 4: about weapons that could be readily converted to expel a projectile,
21:36
Speaker 4: which you know also really underscores that these sort of
21:38
Speaker 4: kits are included. And the context indicates the same with
21:41
Speaker 4: the frame of receivers. And so, you know, sorry, long answer,
21:43
Speaker 4: but I guess just to say for this oral argument,
21:45
Speaker 4: I think if you think the core is a primarily
21:47
Speaker 4: a political actor, you see the Bumpstock case, you think
21:50
Speaker 4: this is going to come out the same way. Six
21:51
Speaker 4: y three after the oral argument, I've got a little
21:54
Speaker 4: more hope that the Court's going to follow the text,
21:56
Speaker 4: although time will tell. We'll find out sometime next year.
21:59
Speaker 3: It'll be an interesting decision to read. Thank you so much, Kevin.
22:02
Speaker 3: That's Kevin Tobia of Georgetown Law. A note. Michael Bloomberg,
22:07
Speaker 3: the founder and majority owner of Bloomberg LP, the parent
22:10
Speaker 3: company of Bloomberg Radio, is a donor to groups that
22:14
Speaker 3: support gun control, including Every Town for Gun Safety. Coming
22:19
Speaker 3: up next on the Bloomberg Law Show. The NCAA's two
22:23
Speaker 3: point seventy eight billion dollar settlement with colleges over student
22:28
Speaker 3: athletes gets a judge's preliminary approval. A judge has granted
22:34
Speaker 3: preliminary approval to the two point seventy eight billion dollar
22:38
Speaker 3: legal settlement that would transform college sports by allowing schools
22:42
Speaker 3: to pay players. For decades, student athletes played for scholarships,
22:48
Speaker 3: a few expenses, and little else, while coaches and athletic
22:51
Speaker 3: departments brought in millions. This settlement would set up a
22:55
Speaker 3: revenue sharing arrangement between schools and athletes, putting millions of
23:00
Speaker 3: dollars into the pockets of college athletes. Joining me is
23:04
Speaker 3: James Nusbaum a partner at Church Church Hill and Antrim
23:08
Speaker 3: with a practice in sports and higher education law. He's
23:12
Speaker 3: also a former college athlete who played football at Northwestern.
23:17
Speaker 3: James explain how this settlement will work, and perhaps you
23:21
Speaker 3: should start with an explanation of name, image and likeness
23:27
Speaker 3: just in case someone hasn't been paying attention closely to
23:30
Speaker 3: this area.
23:31
Speaker 1: Name, image and likeness is a unique term that was
23:34
Speaker 1: crafted by the NCAA. I think what it's normally known
23:39
Speaker 1: as for attorneys, particularly those that work with intellectual property
23:43
Speaker 1: as rights of publicity. So the idea that any person
23:48
Speaker 1: has the right to control how their name, how their image,
23:52
Speaker 1: how their likeness is used to endorse products or in
23:56
Speaker 1: this case, endorse athletic departments and promote the team teams
24:00
Speaker 1: and the schedules and the games, which leads to revenue
24:04
Speaker 1: that the schools and even the NCAAA through its championships receive.
24:10
Speaker 1: The schools and the NCAA were able to profit off
24:13
Speaker 1: of the students rights of publicity, but the students weren't,
24:16
Speaker 1: and so a couple of years ago, the NCAA changed
24:19
Speaker 1: their rules regarding whether or not students could profit off
24:23
Speaker 1: their name images like that, So you might hear it
24:25
Speaker 1: called their nil. So now these lawsuits, many of them,
24:28
Speaker 1: have popped up alleging that students before the rule change
24:32
Speaker 1: should have also been able to profit from their name,
24:35
Speaker 1: image and likeness. And so this lawsuit ultimately tries to
24:39
Speaker 1: resolve three different lawsuits. One of them is related to
24:43
Speaker 1: those name, image, and likeness payments, and the other two
24:46
Speaker 1: are related to student athletes alleging that they should have
24:49
Speaker 1: been compensated generally for their participation in athletics, and the
24:53
Speaker 1: other one for Alston back payments. So that's the case
24:57
Speaker 1: that went to the Supreme Court and said that student
25:00
Speaker 1: athletes could receive up to approximately six thousand dollars for
25:05
Speaker 1: other educational related expenses.
25:08
Speaker 3: So let's say a school as a star football team.
25:13
Speaker 3: Which athletes on the football team get to partake in this?
25:18
Speaker 3: I mean, suppose you have some who are famous and
25:21
Speaker 3: some who are sitting on the bench.
25:23
Speaker 1: It's a great question. So there's three primary components of
25:27
Speaker 1: the settlement. The first ones the BACKPAI damages to former
25:30
Speaker 1: student athletes for their lost name, image, and likeness opportunities
25:34
Speaker 1: that student athletes weren't able to be compensated for during
25:38
Speaker 1: their time as student athletes. The other two or forward looking.
25:42
Speaker 1: One of those is an expansion of benefits that can
25:46
Speaker 1: be paid to student athletes. So there's an increased benefits
25:51
Speaker 1: pool where colleges that choose to opt into the settlement.
25:55
Speaker 1: They don't have to opt in, but those that choose
25:58
Speaker 1: to participate in the provisions of the settlement are able
26:01
Speaker 1: to give expanded financial and other benefits to their student athletes.
26:06
Speaker 1: So those amounts are capped at twenty two percent of
26:11
Speaker 1: the average revenue of the autonomy five conferences and Notre Dame.
26:17
Speaker 1: Your question was which students are given those benefits. Really,
26:22
Speaker 1: there's no rules in the settlement. There's no guidance in
26:26
Speaker 1: the settlement about which student athletes receive those benefits. As
26:30
Speaker 1: you can imagine, the sports that generate the most revenue
26:34
Speaker 1: tend to be the sports where the vast majority of
26:37
Speaker 1: the quote, name, image and likeness money is currently going,
26:42
Speaker 1: so football, men's basketball, some women's basketball. There are definitely
26:47
Speaker 1: student athletes that are influencers on social media or otherwise
26:51
Speaker 1: cultivated a brand that has monetary value associated with it
26:56
Speaker 1: that are not necessarily in those three primary sports. The
27:00
Speaker 1: vast majority of nil money has been going to football,
27:04
Speaker 1: players and men's basketball players, so those are likely to
27:07
Speaker 1: be the students that received the highest proportion of the
27:11
Speaker 1: increased benefits that schools were able to give their athletes
27:14
Speaker 1: as they opted, but it's definitely not required. So what
27:17
Speaker 1: has happened is after the NCAA loosened their name, image
27:22
Speaker 1: and likeness rules, these entities that were kind of colloquially
27:26
Speaker 1: called collectives started popping up businesses that were sometimes not
27:32
Speaker 1: for profits, sometimes for profit that would accept payments from boosters,
27:38
Speaker 1: payments from fans, and then turn around and pay the
27:41
Speaker 1: student athletes in exchange for their name, image and likeness rights.
27:44
Speaker 1: And the reason these collectives were doing this was because
27:47
Speaker 1: there was still a prohibition on schools directly paying their
27:52
Speaker 1: student athletes for their name, image and likeness right. So
27:54
Speaker 1: you have these collectives that for all intents and purposes,
27:58
Speaker 1: were affiliated with very specific schools, using these payments to
28:03
Speaker 1: induce student athletes to attend those schools, which is expressly
28:07
Speaker 1: against NCAA rules. But there is an injunction in a
28:11
Speaker 1: case in Tennessee preventing the NCAA from enforcing its rules
28:15
Speaker 1: against these collectives. So all of these pieces are coming
28:19
Speaker 1: together in this settlement, and now the settlement allows that
28:22
Speaker 1: the schools can enter directly into payments with these student
28:26
Speaker 1: athletes in exchange for their name, image, and likeness, and
28:29
Speaker 1: they wouldn't have to do that through these collectives. Again,
28:32
Speaker 1: back to your previous question of who who gets the payments.
28:36
Speaker 1: One of the things I think schools are grappling with
28:38
Speaker 1: right now is they're trying to remain competitive in football,
28:42
Speaker 1: and they're trying to remain competitive and men's basketball because
28:45
Speaker 1: those sports generate television revenue and they generate ticket revenue.
28:49
Speaker 1: But at the same time, they have other legal requirements
28:51
Speaker 1: like Title nine, and they're trying to figure out one,
28:54
Speaker 1: how does Title nine apply to this expanded benefits pool?
28:58
Speaker 1: And once we know how it does apply, how are
29:00
Speaker 1: we going to allocate our money for these new benefits?
29:04
Speaker 3: Accordingly, speaking about Title nine, plaintiff's lawyers have estimated, as
29:08
Speaker 3: you refer to, that around ninety percent of the money
29:11
Speaker 3: is going to go to football and men's basketball players.
29:15
Speaker 3: Those sports bring in the lion's share of the revenue. Now,
29:19
Speaker 3: many groups have told the judge that that's going to
29:22
Speaker 3: be unfair to women athletes and be a violation of
29:26
Speaker 3: Title nine. Explain the Title nine argument.
29:29
Speaker 1: Yeah, so the argument that it's a violation of Title
29:32
Speaker 1: nine will depend on how Title nine ultimately applies to
29:36
Speaker 1: the Department of Education's Office of Civil Rights has already
29:39
Speaker 1: indicated Title nine will apply to new payments under these benefits,
29:43
Speaker 1: but they haven't given guidance on how they will apply.
29:46
Speaker 1: And so there's two primary ways that they could apply.
29:49
Speaker 1: The first is through the financial assistance analysis, and depending
29:53
Speaker 1: on whether or not the expanded benefits are included in
29:57
Speaker 1: the scholarship analysis, to require that the dollars be assigned
30:03
Speaker 1: proportionally between the sexes based on the proportion of student
30:08
Speaker 1: athletes that are mail and the proportion that there are
30:10
Speaker 1: student athletes that are female, or if it's determined that
30:13
Speaker 1: it's non scholarship financial assistance in a way that it
30:17
Speaker 1: needs to be equitably available to the two sexes. I
30:21
Speaker 1: think that's one way Title nine could apply. The second
30:24
Speaker 1: way is through what's called the laundry list of treatment areas.
30:28
Speaker 1: So essentially Title nine requires that athletic experiences student athletes
30:34
Speaker 1: are receiving is equitable, and they have a list of
30:38
Speaker 1: treatment areas that they use to determine qualitatively are these
30:43
Speaker 1: experiences equal in effect. Two of those are recruiting services
30:48
Speaker 1: and publicity. And so since student athletes are being given
30:52
Speaker 1: this money or they're negotiating these NIL agreements in part
30:58
Speaker 1: as they determine which to go to, I mean that's
31:01
Speaker 1: been part of Judge Wilkins analysis. So the students need
31:04
Speaker 1: to know what their options are as they're making these determinations.
31:09
Speaker 1: I think there's a chance that OCR says, well, that's
31:11
Speaker 1: part of recruiting services. How much you're budgeting in NIL
31:15
Speaker 1: payments is going to affect recruiting, and that's going to
31:18
Speaker 1: affect what kind of student athletes you're attracting to your schools,
31:21
Speaker 1: and how you're treating your male and female student athletes differently.
31:24
Speaker 1: The second treatment area that I think could be considered
31:27
Speaker 1: as publicity. This area talks about how you're publicizing your
31:33
Speaker 1: men's and women's sports. And so if your school gives
31:36
Speaker 1: a lot more resources or many more publicity opportunities to
31:40
Speaker 1: your male student athletes over your female student athletes, I
31:43
Speaker 1: think that would potentially implicate that treatment area as well. Generally,
31:46
Speaker 1: that's the framework I think the arguments. If you do
31:51
Speaker 1: pay ninety percent of your expanded benefits to your football
31:55
Speaker 1: players and your men's basketball players. I think it's very
31:59
Speaker 1: likely that you will receive Title nine challenges. I think
32:02
Speaker 1: those are very strong arguments. The ration now, or where
32:06
Speaker 1: the ninety percent number comes from, is from an expert's
32:10
Speaker 1: opinion in the proposed settlement, where they've a portion of
32:14
Speaker 1: the back pay damages are going to be paid seventy
32:17
Speaker 1: five percent to football student athletes in fifteen percent to
32:21
Speaker 1: men's basketball student athletes. And you might hear people say,
32:24
Speaker 1: if we're able to pay back pay damages according to
32:27
Speaker 1: their proportions, why can't we pay the forward looking benefits
32:31
Speaker 1: according to those same proportions. And the answer is essentially
32:35
Speaker 1: that Title nine isn't in front of Judge Wilkins. She
32:38
Speaker 1: isn't considering that as she approves these settlements. She's been
32:42
Speaker 1: very clear that she hasn't been considering that. So I
32:45
Speaker 1: don't think it's a strong argument that you can use
32:49
Speaker 1: this experts analysis to justify the discrepancy going forward. If
32:54
Speaker 1: there is a discrepancy and any of the Title nine analysis,
32:58
Speaker 1: schools do have the ability to give a non discriminatory
33:02
Speaker 1: justification for that discrepancy. The revenue generation of fair market value,
33:08
Speaker 1: those sort of business type arguments haven't been found to
33:12
Speaker 1: be non discriminatory in the past, so I think schools
33:15
Speaker 1: that intend to rely on that could could be taking
33:18
Speaker 1: on some risk.
33:20
Speaker 3: You played football at Northwestern. Do you think that this
33:24
Speaker 3: kind of deal where some athletes will be paid and
33:28
Speaker 3: others will not, will have a negative effect on sort
33:32
Speaker 3: of the environment for other students at the university.
33:36
Speaker 1: It's a good question that I'll give a couple of
33:38
Speaker 1: different answers that I don't think it would have changed
33:41
Speaker 1: my athletics experience all that much. I was a walk
33:45
Speaker 1: on student athlete. It was very clear that some of
33:48
Speaker 1: the student athletes were more likely to play, they were
33:51
Speaker 1: more likely to go on to professional careers. I was
33:55
Speaker 1: there because I really liked playing football, but I also
33:57
Speaker 1: was excited about the academics, and I wasn't expecting to
34:01
Speaker 1: get paid even through scholarship. It was fortunate enough to
34:05
Speaker 1: earn one at the end of my career, but that
34:07
Speaker 1: was sort of a bonus, and even at that time.
34:09
Speaker 1: It's longer than I want to admit, but it wasn't
34:11
Speaker 1: that long ago. Like you could tell the sports that
34:14
Speaker 1: were favored on campus, and football and basketball were popular,
34:17
Speaker 1: So I think there was already some divide between those
34:21
Speaker 1: sports and the other sports on the campus. I think
34:24
Speaker 1: this will likely make that divide much wider. I don't
34:29
Speaker 1: think that's necessarily great for the athletic department at the whole,
34:32
Speaker 1: but I do think there are arguments that this is
34:34
Speaker 1: a money making operation and if we can generate more money,
34:40
Speaker 1: high tide raises all ship. I don't think that's a
34:42
Speaker 1: strong argument, but you'll hear it a lot. You'll see
34:45
Speaker 1: schools that are trying to figure out how to come
34:48
Speaker 1: up with this additional revenue. I think there were news
34:51
Speaker 1: reports today and yesterday that Ohio State is going to
34:55
Speaker 1: restrict or eliminate scholarships for men's gymnastics. Ohio State's a
34:59
Speaker 1: huge athletic department. Their football program makes a lot of money.
35:03
Speaker 1: But these schools are going to face tough decisions on
35:06
Speaker 1: how do we find money for these additional benefits that
35:08
Speaker 1: we want to provide to our student athletes. And I
35:10
Speaker 1: don't think it's a coincidence that an announcement regarding men's
35:14
Speaker 1: gymnastics scholarships being cut happens around the same time that
35:18
Speaker 1: the settlement was preliminary approved. I don't think you should
35:21
Speaker 1: be surprised if that continues to happen. So I have
35:24
Speaker 1: to answer your question more directly. I think it's unfortunate
35:26
Speaker 1: that that will happen. I think that's a trend that
35:28
Speaker 1: will probably increase for Olympic sports. I think it's more
35:33
Speaker 1: likely to affect male Olympic sports than female Olympic sports
35:37
Speaker 1: for some of the title nine reasons we discussed earlier.
35:41
Speaker 1: But I think this is the end of a long process,
35:44
Speaker 1: Like there's been a lot of momentum leading towards this,
35:47
Speaker 1: and I think we're finally getting to the point where
35:49
Speaker 1: a lot of schools are going to make these tough decisions.
35:51
Speaker 3: Certainly a lot more to come. Thanks so much, James.
35:54
Speaker 3: That's James Nusbaum of Church, Church, Hittle and Antrim. And
35:58
Speaker 3: that's it for this edition of the Bloomberg Law Podcast.
36:01
Speaker 3: Remember you can always get the latest legal news by
36:04
Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,
36:08
Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm
36:12
Speaker 3: June Grosso, and this is Bloomberg