God, Guns, and Trump

David et David

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After a brief trademark SCOTUS update, Guest Host David French and Perennial Guest David Lat break down the trickiness of vouchers for religious charter schools. Plus:

-Text history and tradition versus strict scrutiny in 2nd Amendment cases

-Top profits for law firm partners

Show Notes:

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  1. Sean Smith

    On the topic of the WA judge who applied historical analysis to the regulation of firearms and concluded that regulations have generally increased as weapons have become more potentially dangerous, that might be relevant if a complete CONSTITUTIONAL analysis didn't also require the judge to look at the ultimate purpose of the 2A: To give the people the means, if left with no reasonable alternatives, to fight the government. It makes zero distinction between hunting or "sporting" arms and all others. I'm sure this sounds stark raving insane to most folks in AD 2023, but the very attributes that make a modern firearm so devastatingly awful in the hands of a homicidal maniac also make the same weapon highly effective for defense, particularly against well-armed and/or multiple assailants. Why do you suppose SWAT teams carry modern, fully capable military arms instead of break-action single shots? An "assault" rifle might just as well be called a "defense" rifle. And in a situation where I'm discretely carrying, I have a very steep tactical advantage against a lunatic who walks into a crowded public area and starts spraying bullets. He doesn't know who or where the armed good guys are, whereas we all more or less instantaneously know who and where he is. There need to be more of us.

    Guns are with us in their hundreds of millions. The people who misuse them are well-known and very small minorities, as statistically roughly three quarters of those currently incarcerated for violent crimes have prior violent felony records. If we were truly serious about ending the great majority of gun crimes, we'd simply pass a law that says if a firearm was used as the instrumentality of a crime (i.e., you pointed the gun at someone and threatened his life, fired the gun in the commission of a crime, maliciously injured someone, whatever--you didn't just have a gun in the glove box of your car when you assaulted a guy in a bar or have a gun in the house when you were selling drugs), it's an automatic life sentence. Perhaps carve out a couple of other narrow exceptions, such as when someone honestly believes he's defending his family from a home invasion when the cops do one of their idiot no-knock raids at the wrong address at 3 a.m., for example, or when a shooting is obviously accidental. But for all intentional crimes committed with firearms, lock up every offender without exception. No early release, no appeal, your life as a free human is over. Anyone not deterred from gun crime by this will by definition be someone with such an irresistible propensity toward violence we needn't lose much sleep over the permanence of the sentence. Seriously, can we just knock it off with all of these stupid feel-good laws that only law-abiding people follow? It's an unfunny joke.

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    TheMatMan

    I take a offense at the we cannot have "nice things" because the Satanists always show up line. If you look at the actual tenants of the Church of Satan, it is exceedingly begin. They do not worship the Christian concept of Satan, it's ignoramus Christians who throw fits over the name alone. They show up to troll the religious; they point out the blatant hypocrisy of the area's majority religion where their adherents expect special treatment under the laws of the land while attempting to deny those same special protections and treatment to minority religious sects.

    On a total non-sequitur aside, for me, the most frustrating things David French does on this podcast is go into lawyer mode when discussing religious speech. He will waffle between "It's speech just like any other" and "It's special religious First Amendment speech" in the same paragraph because he's so used to arguing these cases. I guess the advantage is it helps me recognize where the special pleading comes in. Sorry, feeling a bit punchy right now. I would love to listen to David making the Church of Satan's argument as vehemently as he does his own faith's.

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    Kevin M. James

    I found the Biglaw discussion both depressing and puzzling.

    Depressing that people would put themselves and their families through that until the point where they start making millions a year…and then *keep* putting themselves and their families through it for years after. (How many years at $7 million per does a person possibly need to be secure? Me, if I work until I am 120, I will still be extremely unlikely to come near $7 million in total lifetime earnings…and there’s a whole lot of people out there struggling a lot more than I am.) I guess there never really can be enough money or status once you start chasing it, can there.

    Puzzling that it is necessary for people to do this. Are there so few people out there capable of performing this work at an acceptable level that the people who are fit for it have to put in life-destroying numbers of hours per week to meet demand? Is it not possible for people to choose to trade money for hours away from the office? Wouldn’t it make sense on several levels to spread the wealth a bit more when both the level of income and what it takes to get said income start to veer into the obscene? (Lots of licensed lawyers out there who’d love a bit more lucrative work…add up the folks making under six figures in the average year and the ones not practicing at all and you’ve got what, around half the people who passed the bar?) Or are the sort of people who are apt to make partner in Biglaw just not wired that way?

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    PaulH

    On an unrelated note, I hope that AO at some point covers the legal challenges to the Inflation Reduction Act coming from Merck and the Chamber of Commerce -- at this point 1st, 5th and 8th amendment issues are being raised. The economic impact of the drug price-setting provisions of the act are immense.

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  5. Mshroyer

    One of the Davids mentioned the hypothetical of a Muslim or Jewish charter school. I wonder if they're aware of the circa-2007 controversy about allegedly religious instruction at the Ben Gamla Charter School in Hollywood, FL? https://www.nytimes.com/2007/08/24/education/24charter.html

    (I'm aware of this school and the controversy because I lived across the street from it for a few years, but I have no personal insight into how religious its instruction actually was.)

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    1. Davidbenjaminlat

      That was me, and no, I wasn't aware of this—interesting, thanks for flagging!

      It sounds like this school was presenting itself as a Hebrew-English, dual-language school, rather than a Jewish school (which is why news outlets are referring to the Oklahoma school as a "first").

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  6. KP

    I just listened to the start of David's episode with David Lat wherein they discussed the Supreme Court case about the "Trump Too Small" trademark issue.  I, like both Davids and Sarah, am a free speech defender and understand the concern the Davids expressed about the case from that point of view.  Admittedly I have not thought about this deeply, but here is a different perspective:  To some extent, prohibiting trademarks that use a person's name without their consent, even and maybe particularly political and public figures, might be a protection (rather than a restriction) on-free speech.  Trademark is itself sort of a restriction on free speech, right?  Since it prohibits anyone but the trademark holder from using the trademarked phrase?  So absent the rule, theoretically, some Trump supporter could trademark the phrase "Trump Too Small" specifically for the purpose of preventing anyone else from selling merchandise using the phrase.  Just a thought.

    I love Advisory Opinions!

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    1. Davidbenjaminlat

      A very interesting perspective, and an excellent point—thanks! This would also support the government's position that we should think of the provision at issue here not as a restriction on speech, but a condition for getting a government benefit—the monopoly discussed by Eazy-E below.

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    2. Eazy-E

      I had exactly the same thought! A trademark grants a legal monopoly.

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  7. Helbock

    So the government (made up mostly of lawyers) complains the physicians make to much (eg Medicare) but the top heart surgeons might make as much as 750,000 a year and as a critical care baby doc I might make 420,000 if I work 2800 hours a year. But the equivalent lawyer makes 7,000,000. And I seriously doubt that any lawyer stands on her feet looking carefully through special glasses at what he is doing for 18 hours like our cardiac surgeons do. Lawyers are ripping us off and by being the politician rulers of the country get away with this. Maybe Shakespeare was right.

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  8. Khalekdn

    I'm not seeing the issue with the religious charter school. Unlike standard public schools, there is no state mandate that a child attend a charter school.

    In a state that is 80% protestant, only 8% are Catholic. Weird way of establishing a minority religion. I can't find the statistics on it, but anecdotally, the majority of Catholics here are Hispanic.

    Absent a voucher system (which I would prefer), outlawing religious charter schools means religious education will primarily stay a luxury of the wealthy.

    Concerning your very valid points on entanglement, if a religious institution goes this route, it's accepting state mandates as a compromise. If the state asks too much, there is no requirement to maintain charter school status. Here, I'm thinking private religious universities with an ROTC program (not a perfect analogy, I know).

    Finally, how would standing work? People going are going voluntarily as an option out of their mandated public school. To go through this effort only to claim that you are a victim seems doubtful unless your mission was to join in order to challenge it. Basically, who's the victim? Can't be the tax payers, right? I'm sure there is a way to magic some standing here. How would that be crafted?

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  9. J. Cavaliere

    State courts have to grapple with Bruen, too! Here's a Florida appellate opinion from 5/31 holding that the state's felon-in-possession statute passes Bruen: https://1dca.flcourts.gov/content/download/869960/opinion/download%3FdocumentVersionID=07e47dc6-7af7-4e99-a606-1f10d7501d71

    David & David did a good job with the history and tradition test. My struggle is why looking to history and tradition means looking at legislation. Isn't it possible to have unconstitutional statutes that were simply never challenged as such (especially considering the Second Amendment wasn't incorporated to the states until recently)? The death penalty was fairly routine for felony offenses in the 1790s and 1870s, so test litigation over firearms was not really a priority for convicted felons back in the day. Does that matter?

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  10. Lauragoding

    I see a distinction between a public school where children are assigned to go to based on their address and charter schools in which parents choose to enroll their children. That said, I'm not in absolute support of these religious charter schools, but I do see this distinction and could support them. I'd prefer to throw all efforts into public schools and stop the blurry lines of charters, but education is so complicated so I don't want to over-simplify it.

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