Not the Trump Apologist Podcast

And: the best definition of history and tradition.

By and
106

What do the 6th, 9th, and 11th circuit all have in common? Well, they’re all part of this episode’s circuit palooza! But don’t fret, there’s also:
-One city manager’s revenge
-a gag order for a former president
-David makes Sarah regret asking the difference between a clip and a magazine
-California’s magazine ban has no likelihood of success
-There’s levels of scrutiny to this
-Sarah’s judicial writing crushes
-a listener’s question!

By and
Comments (106)
Join The Dispatch to participate in the comments.
 
  1. Adam Rosser

    Sorry for being late to comment on this pod -- I just signed up as a member.

    I thought for a moment that Sarah was going to press David on one of my main thought bubbles re 2nd Amendment, but didn't quite get there.

    If 'common use for lawful purposes' is the test, then doesn't that mean that anything can be banned as long as the ban occurs before it becomes common? Say, for example, there was a ban on hand-held laser weapons, or hand-held rail gun introduced now. The weapons could never become common. Same would have been true if magazines over 5 rounds were banned a century ago.

    The other problem is 'common where?'. If AR-15s are uncommon in NYC for lawful purposes (for argument), why would you not be able to ban them there? Surely, something which is common in hunting country can be vanishingly rare elsewhere. Why is that sort of regulation not acceptable?

    Related to that is the risk that one state could legalise truly unusual weapons. What if Tennessee legalised owning (or carrying in public) a fully automatic belt-fed machine gun. If it becomes common in Tennessee, or even just one county, does that become the lowest common denominator for the whole country?

    Strikes me as an odd test for an originalist to propose or adopt. Its meaning will change over time, not due to community attitudes (as with obscenity), but rather the due to speed of regulation to prohibit innovation.

    That said, I am an Australian and (as with many of us) strongly in favour of our national ban on semi-automatic weapons and the very, very limited availability of handguns. To my outsider's perspective, the 2nd Amendment is the thing most likely to lead to secession (picking up that scenario from David's excellent book). If California wanted to limit weapons but was prevented from doing so while remaining in the union, I could see a schism. It is the area of US culture that is most markedly different from Australia's, which is hard to understand given we have such commonality in other physical and political respects.

    Collapse
    1. Avatar photo
      WKDawson

      I'm from the US (currently living in Japan where guns and crimes involving guns are rare). It really seems like we have lost our sense there in the US. I still have trouble with the 2nd amendment writing saying "well-regulated militia" and understanding how an originalist interpretation would allow someone like me, who knows __nothing__ about guns (in the practical sense), __the right__ to go down and buy a semiautomatic rifle or pistol without at the very least having to get a license and training like you would to drive a car. The sort of "test" you have to do to drive a car in the US is laughable compared to Japan, but at least there is some formality involved. A lot of people in the US seem to think it is a "right" to drive, but it is actually a privilege. [Footnote: It is also true that we typically get a license as a teenager, and our peers will laugh at us if we cannot even back a car properly, so the real test is when you drive with a "jury of peers". A car is also a necessity, not a luxury, in the US. So at some level, whereas I consider the system rather lax on getting a driver's license, the necessity of considerable experience has an element of self-correction built into it. For kids who grow up on a farm, I'd imagine a similar "jury of peers" operates when learning to use a gun. So I have little doubt that hard knocks shape their sense and respect for such things. On the other hand, someone like me does not have the "jury of peers" to correct me (a necessary part of learning), so even in the most genuinely honest of situations, I am unlikely to know how to use such things properly. ]

      I really don't understand why it is so hard to demonstrate that you can hold a gun properly, shoot some minimum score correctly without doing something stupid, know the laws about guns in your state, and have some lessons about what happens when you are an idiot. A farm kid could pass that in a snap, and the rest of us would get at least some proper lessons that make us less of a danger to ourselves and others.

      Collapse
  2. Avatar photo
    Michael Berkowitz

    Great discourse on Text, History and Tradition! Probably too long for a tatoo...

    Collapse
  3. K Youngers

    I agree that Judge Sutton's opinion is an admirable piece of writing. David and Sarah emphasized that the opinion is generous, which I suppose it is. Yet I have a sneaking feeling that he thoroughly enjoyed writing this paragraph (and I don't begrudge it him - he is entirely correct):

    "Other considerations that the Court has highlighted when recognizing a new suspect class do not improve plaintiffs’ chances of success. [...]

    "Concerns about a “political[ly] powerless[]” group and a dysfunctional political process also do not supply a reason for heightened review. Rodriguez, 411 U.S. at 28. Whatever may have been true in the past about our society’s treatment of individuals with gender dysphoria, some of it surely lamentable, it is difficult to maintain that the democratic process remains broken on this issue today. The President of the United States and the Department of Justice support the plaintiffs. A national anti-discrimination law, Title VII, protects transgender individuals in the employment setting. Fourteen States have passed laws specifically allowing some of the treatments sought here. Twenty States have joined an amicus brief in support of the plaintiffs. The major medical organizations support the plaintiffs. And the only large law firms to make an appearance in the case all entered the controversy in support of the plaintiffs. These are not the hallmarks of a skewed or unfair political process—and they offer no explanation for inviting a greater political dysfunction problem: the difficulty of amending the Constitution if the federal courts err in choosing to occupy the field."

    Collapse
  4. Davidbenjaminlat

    1. I guess I already knew this, but AO listeners can never have too much of the Second Amendment! It's remarkable how much the topic has dominated the comments here (even though Sarah and David talked about tons of other stuff).

    2. On the issue of why most circuits maintain their ideological orientation, I generally agree with Sarah and David, and I think strategic retirements are a big part of it. But I would note that some circuits have "evolved."

    (a) The Ninth, while still left-leaning, is not nearly as left-wing as it used to be. An influx of moderate Obama appointees moved the court rightward. And then two of the most-liberal judges, Judges Stephen Reinhardt and Harry Pregerson, were replaced by Trump appointees—Judges Kenneth Lee and Daniel Collins, respectively. This explains how you can get an en banc decision like Fellowship of Christian Athletes v. San Jose Unified School District (because there are now enough Republican/conservative appointees that folks on the right can get "lucky" with the en banc selection process).

    (b) The Fourth Circuit has moved quite a bit left. Back when Judges Luttig and Wilkinson were on it together, it was regarded as one of the most conservative courts in the country. Today I'd describe it as... unpredictable. (I think Judge Luttig has moderated a lot since leaving the bench, but back when he was on the Fourth Circuit, he was a conservative stalwart.)

    Collapse
    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Lat in the comments!!! The best! (And all great points obvi)

      Collapse
    2. William James Sneeringer

      Thanks for this! Very helpful.

      Collapse
  5. Avatar photo
    Aylene Wright

    Sarah and David, this comment regards not this episode but the last episode on whether firing people for making pro-Hamas statements is justified. At the time I heard the episode, my answer was "of course". But now, I am not so sure. Because of what's happening to Alicia Keyes.

    (The following is cross posted from the comment section from Jonah's Wednesday syndicated column, BTW).

    Alicia Keyes recently made some reference to paragliding on social media, that many pro-Israel people assumed was a pro-Hamas reference to the 10/7 attack. Keyes took down the post and put up a groveling apology of the type I see, when people get on the wrong side of angry social media mobs over more conservative opinions.

    In this case, some pro-Israel people defended her, pointing out she's actually performed in Israel despite criticism from pro-Palestinian people.

    But what if this had been a non-public figure, with no public record of being pro-Israel? What if some naive teenager, who wasn't paying attention to world events at all, put up a post saying "I really want to learn how to fly a paraglider, they look so cool", today, and ten years later a prospective employer reads that, assumes she meant that as a pro-Hamas statement, and rescinds a job offer?

    I don't know what the "actual definition" of cancel culture is, but I think your prior concept of whether the "cancelled" opinion is within the Overton Window, is inadequate. I recall someone at the Atlantic once mentioned a guy who was fired for making the "ok" sign that he probably didn't even make, and certainly didn't make as a white supremacist gesture.

    Cancel culture warriors often act like witch hunters of yore, and cancel even people who don't even hold the views that they think deserve cancellation.

    PS: Would also love to know what the former President of FIRE, thinks of the statement they released on this topic. (Although they didn't actually address whether private employers firing people for pro-Hamas comments, was something they disagreed with, I got the impression they would be wary of the whole trend.)

    https://www.thefire.org/news/israeli-palestinian-conflict-escalates-so-must-our-commitment-free-speech

    Collapse
    1. Avatar photo
      Michael Berkowitz

      First of all, bold move posting a comment about the previous podcast. I normally assume nobody will read it if I do that, but maybe it's just that nobody reads 𝗺𝘆 comments...

      As to your question, I square the circle like this: I think an employer should be able to largely fire at will, and even more so for rescinding a job offer. However, I don't think third parties should hound him into doing it. I believe that's part of Nick Christakis's definition of "canceling".

      All that to the side, I can't see how an employee who vocally justifies killing babies doesn't create a "hostile work environment" -- whether or not there are Jews at the firm.

      Collapse
      1. Avatar photo
        WKDawson

        I read some of your comments. ;-) [The comments can be long, in which case, I rarely can read through even half of them.] But it is not like you are never at least read.

        Collapse
        1. Avatar photo
          Michael Berkowitz

          Thanks, that's encouraging.

          Collapse
    2. MathewA

      I agree that too often mob cancel culture happens based on thin pretexts, and based on flimsy facts. So we should be hesitant to use it.

      But on the flip side, if someone puts out a clear statement supporting the murder of civilians, killing of children and babies etc, I don't have a problem at all with them losing their job offer.

      Collapse
  6. Avatar photo
    Buddy Atkins

    David,

    Every time you suggest that AO spends too much time on THT I am going straight here into the comments to tell you otherwise.

    You and Sarah are amongst the foremost champions of explaining the "political" difference in judicial rulings are not based in the political ideology of the judges/justices, rather in their different ideas of judicial interpretation. And your listeners are HERE FOR IT.

    Continue to teach us. THT is the flavor of the week, but we grow every time you teach us about the various forms of judicial interpretation.

    Collapse
  7. Bradgreenwald

    A few other commenters have stated variants of these points but I am going to throw them out in concise form for discussion (or maybe even response!)

    1. I would love to hear more thoughts on Sarah's question to provide evidence that lower courts would apply strict scrutiny to strengthen 2A rights over current practice, which was clearly SCOTUS's goal in Bruen. David's hypo about banning AR-15s due to an insurgency was a bit terrifying, honestly, but to take a more prosaic example, how does "banning firearms that can fire more than one shot without reloading is a compelling state interest in its citizens's safety" fail strict scrutiny in, say, the Ninth Circuit. Are there examples of "less aligned" lower courts will listening to SCOTUS about 2A rights when applying any sort of balancing test?

    2. I would suggest that you are making a mistake talking about "In wide use" as if it is separable from "for a legal purpose"? It seems to me that is a somewhat unnatural reading of the opinion.

    3. Correct me if I am wrong, Bruen did not overrule Heller, so "in wide use for a legal purpose" is *also* good law, right?

    4. We should be looking for explicit grants of power in the Constitution. If current practice was to regulate at a '1', and the text in the constitution makes a broad statement about the right, we should presume that they meant a '1'. Otherwise, I would suggest that the text would have been different and explicitly granted more power to the state. Maybe a form of major powers doctrine.


    PS: A side note -- after a 5 minute digression to ensure that the terms 'clip' and 'magazine' are understood and not misused, David refers to filling a magazine with "bullets" LOL. Surprised only one comment teasing you about this!!!

    Collapse
    1. Bobby D

      I agree that it’s improper to separate wide-use inquiry from the legal-purpose inquiry. Also, it’s unclear to me what “wide use” means when one is speaking about a firearm that doesn’t have much use except as a silly prop to signal tribal affiliation. I’m an avid hunter and shoot skeet a few times a month. Nearly all of my friends and acquaintances own firearms. I’m not aware of any of us who owns an AR or an AK. I understand that those with tactical training may want to have such guns for the purpose of maintaining their professional skills. But that’s a very limited number of people.

      Collapse
      1. Bradgreenwald

        OK, let's do that for 1A: I am an avid reader, and I read news magazines daily. Neither I nor any of my friends read "The Nation" even though nearly all of them read news magazines. In fact, this magazine doesn't have much use except as a silly prop to signal tribal affiliation with the socialist cause. Therefore, it is fine for Texas to ban "The Nation" as socialist propaganda.

        Does that analogy misrepresent your claims above? If not, you can see why point 1 in my post continues to concern me.

        Collapse
        1. Bobby D

          I doubt that you could successfully argue that such a magazine is merely a prop to signal tribal affiliation, even though its readership largely hails from one tribe. By contrast, having an AR or an AK with a high-capacity magazine doesn’t have a legal civilian use. I’ve pointed that out repeatedly and this thread, and no one has identified any such legal civilian use. It’s basically a cosplay accoutrement.

          In the end, I think that the California law will probably be struck down. But, as someone who detests the performative and tribal nature of our culture these days, I think this does raise an interesting question. Also, I’d .like to see gun stores and gun ranges return to focusing on the needs of hunters and sportsmen rather than the ephemeral wants of the tough-guy cosplay crowd.

          Collapse
  8. Aaron H Frank

    California is not the first state to ban "large capacity" magazines - thanks David for the explanation of magazines vs clips! Here in CT we banned LC magazines shortly after the Sandy Hook shooting. The idea was that if the shooter had to reload that might have given police more time to intervene and the loss of life would have been less.

    Our law also required owners of said magazines to turn them into police departments by a certain date without, I believe, any compensation.

    Collapse
    1. Bobby D

      NJ also bans such magazines. For semi-automatic handguns, NJ bans magazines that hold over 6 rounds. My 8-round magazines are all modified to limit them to 6 rounds.

      I generally find these laws to be annoying, but I understand their broader purpose. The cut-and-dried nature of these laws makes it a lot easier to get bad guys off the streets.

      Collapse
  9. Rakerr36

    I’m not sure how to make requests for topics, so I’m dropping mine here. I’m deeply interested in the recent trouble in which the National Association of Realtors finds itself. The WSJ editorial page yesterday sent up a flare on Burnett (see also here: https://www.mow.uscourts.gov/content/burnett-et-al-v-national-association-realtors-et-al). Wondering if Sarah and David would be interested in talking about the case and antitrust—and the significance of two defendants (Anywhere and RE/MAX) settling out of court.

    Collapse
    1. Bobby D

      I recently helped my parents sell our family farm in NW New Jersey. I offered the realtor a rate of 30% of whatever the farm was sold above the Zillow FMV with no money to the buyer’s realtor. It was refused. We sold it for 20% above that rate in a private sale with no realtors. I’d love to see the realtor monopoly taken down. I’d also love to see a lot of realtors sent to prison for UPL. It’s such a disgusting industry.

      Collapse
  10. McGoogles

    Two questions from the magazine discussion:

    (1) I was never clear how Bruen was supposed to interact with Heller. Did Bruen replace or supersede Heller? Heller said "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Does Bruen call into question prohibitions Heller supported?

    (2) At one point, David mentioned the "irreparable harm" criteria. What irreparable harm does someone suffer by not being able to have a large capacity magazine? Can they still own and use an AR-15, just with a smaller capacity magazine?

    Collapse
    1. Avatar photo
      Treadmill

      With regards to (2), I believe that it is legally appropriate to say that any time the government classifies an object as illegal and requires its relinquishment and/or destruction without recompence, then the financial loss is, in fact, a "harm."

      Furthermore, I am distressed by the number of people in this ordinarily erudite forum who have basically declared "I do not need nor do I *see a need* for X, so passing laws that restrict X clearly pass strict scrutiny." That's now how constitutional rights work - the first restriction is on the government, who needs to *prove* that the restriction not only will have a desired effect (more frequent reloads = fewer deaths, in this case), but that the effect is sufficiently impactful so as to overcome the constitutional restriction placed on the government. Let me say this again: no citizen should ever need to show a *need* for a possession or activity that is not directly tied to a specific harm and is--in fact--explicitly protected under the constitution. The onus is on the government to show the clear and tailored benefit to any restriction (infringement, if you like), not on the citizen to prove a "need."

      Collapse
    2. MathewA

      "What irreparable harm does someone suffer by not being able to have a large capacity magazine"

      If you had a home invasion with multiple intruders (which does happen), and you needed to fire more than 10 rounds (which also happens) then it's certainly a possibility that the home owner could be killed while reloading. That would be pretty irreparable.

      Not to mention in other contexts seem to believe that citizens not being able to recognize constitutionally protected rights to be an irreparable harm. For example, if a state passed a law stated you couldn't write articles with more than 500 words. Would that be an irreparable harm?

      Collapse
      1. Avatar photo
        Treadmill

        I disagree with the entire framing of the argument that you're trying to engage here. Trying to address your quoted question only leads to madness and silly hypotheticals involving large-scale home invasions or implausibly large sounders of wild pigs.

        The only question that matters is "what is the compelling government interest that overcomes a person's right to arm themselves in whatever means they see fit?"

        Collapse
        1. MathewA

          ""what is the compelling government interest that overcomes a person's right to arm themselves in whatever means they see fit?""

          basically none. The vast majority of gun regulations IMHO are plainly unconstitutional to me. Exceptions might be prohibitions on violent convicted felons from owning a gun.

          Collapse
      2. Daniel.Rabiner

        with that logic, there can be no limits on the size of a magazine period. The worst shot you are, the more bullets you'll need.

        Collapse
        1. MathewA

          agreed there should be no limit

          Collapse
Load More