Can Trump Be Gagged?

Interesting elements in Hunter Biden indictment.

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Prompted by Hunter Biden’s indictment, David and David go through a slew of second amendment cases to try and figure out which kind of gun control is constitutional. The two also discuss:

-An attempt to get a gag order on Trump

-Friend of the pod smackdown

Show Notes:

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  1. Avatar photo
    Nate Swanson

    What is the name of the Eighth Circuit case discussed during this episode? I'd like to read the opinions by Judges Stras and Colloton.

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  2. Fawnspady

    Our daughter bought us “naw dawg” mugs. How do we send you a picture? We love them.

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    PB3

    David, can you expound a little further at some point about your hesitation about the "entire premise" of exploring what Founding-Era (or any time-specific) legislatures had to say about the "window" of a particular constitutional provision's meaning?

    As a self-professed originalist and textualist, frankly, that hesitation perplexes me. As you and Sarah have both said, originalism is less a plug-and-play outcome than it is a general framework necessary to reach the true meaning of a certain constitutional phrase.

    By "originalism," I mean original meaning, not original intent. Originalism certainly isn't a straight path to a single answer. But a contemporaneous text or recorded reference matters only to the extent that it informs the publicly understood meaning of the Second Amendment as of enactment. My most relevant prior in this question: I agree entirely with Justice Scalia's* argument that the Federalist and Anti-Federalist Papers provide equal weight to constitutional interpretation because they both inform how the relevant constitutional provisions under debate were commonly understood as of their enactments.

    Thus, I'd argue that originalism demands a specific "window" of time into which judges can peer into a provision's meaning; otherwise, they risk straying from its original public meaning and thus supplant the legislator's proper role in addressing the issue.

    * All honor and praise be upon him.

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  4. Anthony.G.Kaufmann

    David French, in typical fashion, is shying away from the truly important topics of the day:

    *SEC football is looking a little shaky, David. Defend your conference!
    * My beloved Utah Utes have a transitive victory over Tennessee - how does that make you feel?
    * Are you prepared for Coach Prime to lead the Crimson Tide next year?
    * What class did you roll in Baldur's Gate 3?
    * Early thoughts on Starfield?

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    1. Biglaw_Blues

      Starfield is phenomenal but they really needed to explain how things work better. I shouldn't have to dive into YouTube videos to figure out how to properly build an Outpost. etc.

      Also, no city maps??? I have city maps in my pocket right now, and this is supposed to be the 24th century with faster than light travel. Ugh.

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  5. Biglaw_Blues

    David (French) left out some important context for the 2A that listeners would probably find helpful:

    The exact test was unclear after Heller, the only data point was that rational basis (where the government almost always wins) does not apply. After, the question was whether intermediate scrutiny or strict scrutiny applies. The joke is that "rational basis is where the government wins, strict scrutiny is where the plaintiff wins, intermediate scrutiny is where the judge wins."

    Following exactly that, there was a bevy of caselaw in the lower courts were they claimed they were applying intermediate scrutiny except almost every single gun rights case *lost.* Many commentators---including my humble twitter account (which David Latt follows!) called it "fake intermediate scrutiny." (note, this was part of the "two step" test at step two which vacillated between strict scrutiny and intermediate, but the courts would inevitable find it wasn't a "core" interest, apply IS, gun rights lose). Judge Van Dyke in CA9 even wrote a parody opinion (which was wild!) that excoriated the practice.

    When Bruen came up, the issue was that (1) intermediate scrutiny had been so abused by lower courts that they had to take the toy away from the judges because they could absolutely not be trusted, but (2) strict scrutiny would be too drastic, because it would blow up tons of gun regulations, including those that had been around since the Founding.

    The answer was the Text, History, and Tradition Test, which officially codified an originalist jurisprudential approach---which is essentially an evidentiary burden but on the basis of law, rather than fact.

    The standard actually comes from then-DC Circuit Judge Kavanaugh (in what was seen as a job application for SCOTUS) where he explained: "Indeed, governments appear to have *more* flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller." (emphasis Kav's). Unhelpfully, that case is also called Heller---Heller v. Dist. of Columbia, 670 F.3d 1244 (D.C. Cir. 2011).

    He's right, but the issue is that the *judicial burden* on having to litigate an evidentiary hearing on the state of the law at the Founding is quite difficult, or at least unusual for litigators. This is **especially true** for folks who think that originalism is BS lol.

    I sympathize with Mr. French's argument based on practical concerns about litigation, but his substantive points about the law is just bad. Mr. Latt has it right, and the lower courts more than emphasized this point.

    Lastly, Mr. French's point that state legislators may be dumb is entirely correct. But so what? It's an *evidentiary burden* to show what the state of the law was at the Founding. This has to go through the process that HLA Hart called "pedigree." There's books that could be written about this, but it's the whole point of having courts, and I would point out that the prior law is only relevant insofar as it reflects the *current* law. Despite being a conservative, I don't think he's quite figured out what the *methodological* exercise of originalism is asking forShow less

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    1. MathewA

      "(2) strict scrutiny would be too drastic, because it would blow up tons of gun regulations, including those that had been around since the Founding."

      Yep. treating the 2nd amendment the same as the first would blow up a bunch of clearly unconstitutional gun regulation. There's no way these judges would tolerate the same type of regulation for guns as regulation for speech.

      But the job of a judge isn't to make policy, but to correctly interpret. So use strict scrutiny, blow up those gun regulations.

      If enough people don't like that, then pass a darn constitutional amendment.

      For example, small arms including machine guns are clearly covered by 2a (see US V Miller 1938). But I'm sure there would be broad agreement to ban machine guns with an amendment.

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      1. Biglaw_Blues

        I think that's a natural reading of Miller, honestly: but,

        1. Miller was an engineered, non-adversarial case that should be given no weight.
        2. There's enough wiggle room about 'suitable for militia service' that gov't could just define the militia in such a way that undercuts any particular arm. Remember, it upheld the lack of protection for the sawed off shotgun, which had a good case of being useful given the Trench Gun issues of WWI---and Germany's freakout over it as a war crime.
        3. Practically, SCOTUS just isn't comfortable with expanding anything past machine guns. (Which is an interesting case since they're not illegal, just heightened taxation etc requirements).
        4. There's a real danger that Justices *could* find that gun regulations pass SS anyways. It's not difficult to see how progressive justices could find that absolute bans on "extremely dangerous weapons" (or whatever) is as narrowly-tailored as possible and the interests are compelling.

        Tiers of scrutiny is inherently an interest balancing. And Progressives will always be able to just say that it's met. With THT, they have to make an *evidentiary* showing

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        1. MathewA

          "It's not difficult to see how progressive justices could find that absolute bans on "extremely dangerous weapons" (or whatever) is as narrowly-tailored as possible and the interests are compelling."

          Fair point.

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    2. Biglaw_Blues

      I will also add that originalism *is* our law. See Baude's article on this. If I remember right he called it an "official story" or something.

      This is a fundamental shift from the unwritten British "constitution" to the written American Constitution. See "Fixation" principle. With the exception of fixating a 'floating' term such as "unreasonable" searches and seizures. (I refuse to use the evolving standards of decency example, booo).

      The argument that figuring out the contours of our supreme binding law is too difficult so judges have free reign is simply ultra vires. It's certainly true that after following rigorous methodological approach to analyzing the law, judges may not come up with a persuasive 'answer' in a given case or controversy that requires a judgment.

      But operating in legal uncertainty shapes the judicial power just as much as legal surety. This shouldn't be conceptually difficult even if the practice is quite difficult.

      I also know that Mr. French's riff about originalism in this pod isn't something that he applies in other contexts. I've heard him do quite well explaining why the Alien and Sedition Acts aren't probative in 1A analysis. (That's the ultimate "pedigree" check btw).

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  6. Shane Davitt

    I think David (French) makes a good point about the fallibility of political actors. We often act like summing up the history of all these imperfect humans will lead us to the truth. There is something beautifully democratic about that, but it’s also scary. Especially when we limit our search to narrow periods of time, like the founding or early reconstruction. Outliers of bad behavior are less easily distinguished in small sample sizes.

    On drawing analogies to history, I think one of the frightening thing about originalism is that history is often clear enough to not need analogies. The founders really didn’t care much about domestic violence, and most wouldn’t have countenanced gun restrictions merely to stop abusers. (I’m relying on what I’ve heard from discussions of Rahimi, but it sounds like there’s not much controversy about the history.) I suspect some conservatives will think of ways to analogize out of that reality, by pointing to some logically similar restriction that will allow the government today to control abusers. But history has given a specific answer. It seems pernicious to blind ourselves to that, especially if we profess a belief that history should be our guide when the text is silent or unclear.

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  7. Indy Tim

    "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, . . ."

    To say that this provision applies to a presidential candidate seems to have a real hiding elephants in mousehole problem. Clearly the drafters of the amendment know how to include very significant offices such as Senator or Representative in Congress. It would be hard to believe that President was accidently omitted and meant to be covered by the catchall "any office" provision.

    "But Congress may by a vote of two-thirds of each House, remove such disability."

    Omitting President also does not create an absurd result. It seems to be in harmony with the clause that allows the disqualification to be removed. A Senator or Representative following the civil war could conceivably by elected by mostly (exclusively?) former confederates. But with broad national support the disability can be removed. The President cannot be elected with solely the former confederate states. So if the candidate for President wins, despite being a former confederate insurrectionist, apparently his support is broad enough nationally and the writers of the 14th Amendment were okay with that.

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    1. Richard A Schafer

      There is in fact evidence that the drafters of the amendment meant to include the President. In the Baude article (p. 109), they cite Senator Johnson specifically asking why the President wasn't covered and the response of Senator Morrill, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” As to why Representatives and Senators might be mentioned, but not the President, I once thought that significant, but as someone else pointed out to me, nowhere in the Constitution are either mentioned as holding an "office," much less an "office, civil or military, under the United States."

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      PaulH

      I don't think elephant in a mouse hole argument is particular apt. The provision overall is quite broad; it applies to very important officials (Senators and Representatives) and then uses the term "any office" civil, military, state, federal. That is not "catchall" provision intended to fill in the gaps (i.e. not a mouse hole) -- it is a free-standing, sweeping clause that precludes people from serving in many very important positions (e.g. cabinet positions). So why wouldn't that language include the President and the VP? Why would it be necessary to specifically include President and VP in such a sweeping statement? Both positions are referred to as "offices" numerous times in the Constitutions. In my view VP and President weren't omitted by "accident", they were omitted because those are defined as offices of the United States and there was no need to mention them explicitly.

      On the other hand, if the drafters had intended to exclude the President and the VP from such sweeping language, why didn't they make that explicit? Was that just an accident? Mukasey in his op-ed makes some arguments, but they strike me as textually strained at best and aren't grounded in any larger view of the Constitution that was prevalent then (or now). If there was some ambiguity in the Constitution about whether or not the President and VP were "offices" then the analytical tools he uses might be appropriate and necessary. But when the text clearly refers to them as offices, I don't see a need to resort to that type of analysis.

      And, I can't see what the drafters motivations would have been to exclude the President and VP. The provision is as whole is clearly intended to be sweeping and to keep Confederates well away from any sort of power. Why would we then assume that they were OK with Confederates taking the most important positions? That doesn't make sense. The idea that a national vote would constitute an implicit removal of the disability is clever -- but there is no evidence that anybody at that time ever thought of that argument.

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      1. Indy Tim

        The provision is as whole is clearly intended to be sweeping and to keep Confederates well away from any sort of power.

        The provision isn't as sweeping as you suggest. Only people who swore an oath prior to participating in insurrection were disqualified from office. Plenty of former confederate soldiers served in the House and Senate. A former confederate soldier represented Colorado in the Senate until 1921.

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          PaulH

          Yes, I was using shorthand. I don't think that changes the analysis at all.

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          1. Indy Tim

            It absolutely changes the analysis. In your formulation section 3 is a sweeping provision designed to keep former confederates away from power. But that isn't true. Many more former confederates could hold office following the civil war than were disqualified. The fact that section 3 allows most former confederates to run for office supports my conclusion that the drafters would have allowed for a former confederate to be president even if he swore an oath prior to the war. Post civil war was not a period of trials and executions. It was a period of amnesty and pardons.

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  8. Dustin K Ragan

    If somebody wrote "This rule applies to any spouse of Donald Trump (including Marla Maples and Ivana Trump", would anybody think Melania was not included?

    The any office argument feels similar to me.

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  9. New reader

    What I don’t understand is how all the confederate officers were able to run for office after being pardoned when the 14th amendment doesn’t say “unless pardoned”. It just says you are barred from office if you have “engaged” in insurrection. Does pardoning make it so that the thing being pardoned never happened legally? If so that might answer my question.

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    1. Indy Tim

      Being a member of the confederacy did not bar you from running for office. You were only disqualified if prior to joining the confederacy you "having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States"

      So if January 6th was in fact an insurrection, almost all participants are not barred from running from political office in the future.

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      1. New reader

        Thanks so much!

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  10. Avatar photo
    Rjosephpaquette

    I find the issue about gun possession by felons interesting. It is a right. And if it were up to me, felons would go through a similar process to get voting rights back and gun ownership rights back. They should be granted in a case by case basis; in a transparent and consistent manner.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      First, I always chuckle when I see your name.

      Second, I think there's a good argument for nonviolent felons who've completed their sentences and paid any necessary restitution to receive their Second Amendment rights back. I don't have the same feeling regarding violent felons, or people who've committed nonviolent gun crimes.

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        Rjosephpaquette

        I know in some states you petition to get the voting rights back. Your case is reviewed individually. Id like to see the same with gun rights. Also, wouldn't it help if judges outlined a period of gun prohibition as part of the sentence. Say, you get 15 years probation and if successfully completed, your voting and gun rights are returned (as part of the sentencing).

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