Vollständiges Transkript von What Rahimi Decision Means for the Second Amendment

advocate for policy change here in Texas and at a national level, and also to educate the community. Start audio 00:02:24.630 --> 00:02:35.840 Kelly Roskam (she/her/hers): Wow! I love that so much. So getting back to United States versus Rahimi Natalie, how would you describe the case in terms of its importance for victims and survivors of domestic violence. 00:01:44.370 --> 00:01:48.739 Kelly Roskam: The majority opinion was written by Chief Justice John Roberts. 00:01:48.830 --> 00:01:50.559 Kelly Roskam: and while this is an important victory for survivors and victims of domestic violence. 00:01:50.559 --> 00:01:51.130 Kari Still: I mean, after all, Heller did say its list was a non-exhaustive one. 00:01:51.130 --> 00:01:52.950 Tim Carey: largely due to procedural issues, not on the merits, though justices lead on. Thomas really wanted to take this case. 00:01:52.950 --> 00:01:55.000 Mary Anne Franks: I would say that my reaction was not particularly surprised that I thought that the court was going to be very embarrassed by this case as it should be, and so was going to try to find a way to rule against Rahimi, but still try to defend its position. That it staked out in Bruen. And really you can't do both of those things, and that's why you got this mess of a decision that we're left with. But you know there's there's good news in the sense that it would have been much worse had they said that Rahimi's claim here was the correct one. But it's disappointing, because this case should have never been before the court, and the court has not done a lot to, I think, provide any sense of relief or predictability about any of the cases going forward. But yes, if the bar isn't held. And this was basically a good decision. Start audio 00:05:09.___--> 00:05:15.___ stop audio Kari Still: Like Tim mentioned earlier, the majority's opinion was silent on Bruen’ s plain text, this threshold step of that framework. Start audio 00:05:16.___ -> 00:05:43.400 Kari Still: Roberts, kind of simply notes that it was, you know, the conduct was covered, and the government was required to justify its regulation. But we don't really have a lot of clarity from the court as to where the plain text step falls now. And so I want to ask you, Marianne, um why do you think the court was silent on the plain text step? And what do we take away from that silence? And how should courts be doing this plain text, step um in future cases. 00:01:55.000 --> 00:01:55.060 Kelly Roskam: I don't think we should start the full on celebration just yet. 00:01:55.060 --> 00:02:00.060 Kelly Roskam (she/her/hers): But of course the court isn't willing to go so far as to let us know what those other categories are, although I'm sure the lower courts thought it would be really nice. 00:02:00.060 --> 00:02:00.130 Kari Still: Yeah, this should have been an easy 9 to 0 case. But Justice Clarence Thomas, the author of Bruen, was the lone descending justice in the court's decision, and he would

have struck down this Federal law under a very rigid application of Bruens test. 00:02:00.130 --> 00:02:05.480 Kari Still: And that being said, there's still other pending petitions and second amendment cases for the court to consider in its next term, prohibitions on persons under felony indictment, and yet more felon and possession. Prohibitions. 00:02:05.480 --> 00:02:12.930 Tim Carey: Right. It's like, how do we do that? What can legislatures rely on to prohibit categorically, arguably, we should rely on evidence based research to determine who is a special danger of misusing firearms. But again, it's an open question now. 00:02:12.930 --> 00:02:15.220 Kelly Roskam (she/her/hers): So I fully expect to see a second Amendment case before the Supreme Court again before too long. In the meantime we'll watch to see how lower courts apply Bruen in other cases, in light of the absolute and definitive clarity provided for in Mahimi. Start audio 00:07:31.150 --> 00:07:50.099 Tim Carey: So that's Rahimi. After much buildup, the Supreme Court ultimately made the only logical and acceptable decision to uphold a critical Federal law protecting victims and survivors of domestic violence, but did so in a scattered fashion. That leaves many questions about how courts should apply the Bruen test for another day. 00:02:15.220 --> 00:02:20.100 Tim Carey: So yeah, justice Thomas was not breathing a sigh of relief. The man was enraged. His descent was about twice as long as the majority opinion. 00:02:20.100 --> 00:02:21.080 Kelly Roskam (she/her/hers): Also misdemeanor offenses for violent behavior. So consider, for example, domestic violence, misdemeanors. Although I have not seen a serious challenge to this post. Bruen. 00:02:21.080 --> 00:02:23.689 Kelly Roskam (she/her/hers): That would make the most sense, I think. Resume audio 00:08:57.400 --> 00:09:03.840 Tim Carey: And on the topic of methodology. We should also look closer at how the Court dealt with their historical analogies. 00:02:26.690 --> 00:02:30.030 Kelly Roskam: And we're all deeply surprised that he is the lone Dissenter. 00:02:30.030 --> 00:02:31.400 Tim Carey: Absolutely Start audio 00:02:32.730 --> 00:02:39.039 Tim Carey: an additional caveat is that even though this case gives the appearance of consensus with its 8.1 ruling. 00:02:32.150 --> 00:02:33.530 Tim Carey: To find serious. 00:02:33.530 --> 00:02:36.070 Tim Carey: What's on the horizon for the second amendment in a post-rahimi world? 00:02:36.070 --> 00:02:37.030 Tim Carey: This could also, this dangerous principle could also apply to unlawful users of controlled substances. If the type of substance is indicative of a dangerous or impulsive behavior. 00:02:37.030 --> 00:02:38.160 Natalie Nanasi: Well, I move 2 minds. On one hand. Start audio 00:02:53 --> 00:03:11.070 stop audio Natalie Nanasi: where there were survivors and advocates who were so terrified about the prospect of abusers who had protective orders against them, having access to firearms, think we can all breathe a sigh of relief. Start audio 00:03:28.640 --> 00:03:50.420 Natalie Nanasi: On the other hand, I don't want to lose sight of the fact, and I know you all have spoken about this, that the opinion is very narrowly written, and we have a strong dissent. We have 3 concurrences from the conservative justices that that, and, I think, very reasonably read to suggest that 00:02:38.160 --> 00:02:39.280 Kari Still: So on July second the Supreme Court issued orders in 8 pending second Amendment cases. Essentially the court granted review, but vacated the decisions of the lower courts below, and remanded the cases back to those lower courts to further evaluate the second Amendment challenge in light of Rahimi. 00:02:39.280 --> 00:02:44.779 Tim Carey: the decision itself was actually rather narrow, and there are many concurrences within it. 00:02:45.700 --> 00:02:47.320 Kelly Roskam: And concurring opinions are written by a judge, or perhaps a couple of judges, who agree with the ultimate outcome of a case, but may disagree on the reasoning, or perhaps have something additional to say that all of the judges of the majority could not get on board with. 00:02:47.320 --> 00:02:54.060 Tim Carey: And there's many, many more. But I do want to stress that this opinion says that dangerousness can be used as a historical principle for justifying gun regulations. Not that it is the only principle. 00:02:54.060 --> 00:02:59.570 Kelly Roskam (she/her/hers): 5 of those 8 cases were challenges to prohibitions on fire and possession by those convicted of felony offenses, including cases challenging the law as applied to quote-unquote, non-violent felons. 00:02:59.570 --> 00:03:00.640 Kelly Roskam (she/her/hers): Anyway. 00:03:01.380 --> 00:03:01.440 Kelly Roskam (she/her/hers): But best of luck to the courts, identifying those additional principles. 00:03:01.440 --> 00:03:02.900 Kari Still: And I'm pretty sure the founding fathers didn't just let prisoners keep their guns and their cells for company. 00:03:02.900 --> 00:03:05.250 Tim Carey: And there were 5 of them here. There were 5 separate concurrences, making the total number of opinions in this case 7. 00:03:05.250 --> 00:03:07.240 Tim Carey: I mean, it's obvious Robert said so. Start audio 00:10:31.620 --> 00:10:48.160 stop audio Tim Carey: This general principles approach may be effective for defending all manner of other policy areas. For instance, Chief Justice John Roberts mentioned firearm storage requirements as a potential area where we have a national tradition that could be used to justify different regulations that we use today. Start audio 00:03:50.100 --> 00:04:03.390 Kelly Roskam (she/her/hers): It would be kind of ridiculous not to be able to analogize a law to prevent, you know, like fires that would injure individuals. Then, you know, access to firearms by toddlers who shoot other toddlers. 00:03:07.240 --> 00:03:07.810 Tim Carey:

This is, even after the solicitor general file, a supplemental brief, asking the court to still take these cases after Rahimi, since they didn't really see a material difference, and how they would be ruled on. And the court said. 00:03:07.810 --> 00:03:09.920 Tim Carey: Exactly, and another significant takeaway is the consideration of historical laws in totality rather than one by one. 00:03:09.920 --> 00:03:15.390 Tim Carey: And that really showcases how fragmented the court's view is of the Bruen test, and how it should be applied, if at all. 00:03:15.390 --> 00:03:16.320 Tim Carey: There was also no discussion, really of the plain text step of the two-part Bruen test that was introduced to us a few years ago. They kind of dove straight into that historical analysis piece. 00:03:16.320 --> 00:03:18.830 Tim Carey: The courts can't examine or dismiss historical laws in isolation anymore, or at least they shouldn't. 00:03:18.830 --> 00:03:21.910 Tim Carey: The concurrences, just as top line matter roughly go as follows, justice Amy Coney Barrett wrote what she thought originalism was. Start audio 00:03:59.870 --> 00:04:11.840 stop audio Kari Still: and Justice Brett Kavanaugh went at length in what could have been a law review article discussing how he thought originalism should be done, and how originalism is really the only constitutional test to be applied today. Start audio 00:04:31.640 --> 00:04:42.010 Kelly Roskam: And justice Neil Gorsuch's concurrence can be summed up pretty neatly, as originalism is the only right way, and also the framers, in their infinite wisdom. 00:03:21.910 --> 00:03:22.900 Kari Still: Oh, but the court loves Elizabeth, pretty logger! 00:03:22.900 --> 00:03:25.160 Tim Carey: We've seen courts like the 5th circuit set up strawman analogies comparing historical laws to modern regulations, one by one and saying, Yeah, the aspect of this other historical law is similar to this modern one, but this other aspect is different. So the law isn't similar enough, and then they move on to the next law. 00:03:25.160 --> 00:03:27.870 Kelly Roskam (she/her/hers): Don't we all but the court, said Lower Courts. We've given you everything that you need in our recent opinion, find the principles 00:03:27.870 --> 00:03:35.210 Tim Carey: and the court also clarified, or perhaps reiterated focus of this historical base test to focus more on a principled approach. As Chief Justice John Roberts said in a quote that will likely be the hallmark of this opinion. 00:03:35.210 --> 00:03:36.100 Kelly Roskam (she/her/hers): done. 00:03:37.670 --> 00:03:41.450 Tim Carey: Another one of these cases that was Gvr. It had to do with the unlawful users of controlled substances pertaining to habitual user of marijuana. Start audio 00:01:22.560 --> 00:01:36.480 stop audio Kari Still: In what case tries to bring New York's carry licensing law back in front of the court, and this time challenging New York's good moral character requirement which

requires applicants to show that they have the essential character, temperament, and judgment necessary to be entrusted with a weapon. Start audio 00:04:40.747 --> 00:04:43.850 Kelly Roskam (she/her/hers): New York just cannot quit this Supreme Court. 00:03:41.450 --> 00:03:42.990 Tim Carey: Now, courts can clearly count the relevant aspects of several historical laws together when identifying historical principles. Here, both going arm laws and surety laws dealt with people posing a risk of danger to others, with firearms, with surety is not relying on criminal charges to regulate conduct and going arm laws, allowing for the deprivation of firearm access. Resume audio 00:12:49.080 --> 00:12:57.220 stop audio Kelly Roskam (she/her/hers): But what legislatures clearly cannot do is just disarm. Broadly quote-unquote. Irresponsible people. Resume audio 00:10:39.580 --> 00:10:49.849 Kelly Roskam (she/her/hers): So the majority rejected what it characterized as the Government's assertion that Rahimi could be disarmed simply because he was not quote unquote, responsible. 00:03:42.990 --> 00:03:50.420 Tim Carey: Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law is trapped in amber. Start audio 00:04:01.290 --> 00:04:12.129 Kelly Roskam (she/her/hers): So it reiterated from Bruen that the historical analogy doesn't require twins to modern laws, but rather that they should be analogous. It also sort of 00:03:50.420 --> 00:04:07.210 Natalie Nanasi: in another set of circumstances, potentially in the next case, involving intimate partner violence and firearm regulations. We might not get such a similar ruling right? So I'm split about it right. 00:04:07.210 --> 00:04:08.690 Kari Still: And another category of laws that may benefit from this more principle. Based approach are laws that restrict guns and sensitive places, and these laws have been recognized by the Supreme Court as one category that is consistent with the Second Amendment. Start audio 00:16:05.820 --> 00:16:20.609 stop audio Tim Carey: the court specifically mentioned in Heller and Bruin that prohibitions on firearms, in courthouses, legislatures, and polling places, as well as schools and government buildings can be constitutional, and that list is also not purported to be exhaustive. Start audio 00:04:42.080 --> 00:05:01.349 Kari Still: Yes, exactly. And I think in utilizing this more principle, based approach for sensitive places, challenges lower courts, can assess the regulatory tradition of these types of laws as supportive of more of a generalized principle, that the presence of weapons in these spaces is just incompatible with the intended function or the purpose 00:04:08.690 --> 00:04:12.770 Tim Carey: Yeah. Only this court seems to be able to make good news feel bad. Start audio 00:04:18.100 --> 00:04:19.439 Kelly Roskam (she/her/hers): Unique, gift. 00:04:12.770 --> 00:04:20.339 Kelly Roskam (she/her/hers): soft introduced the concept of searching for the principles that underpin those historical laws, not the particular historical laws themselves. 00:04:20.339 --> 00:04:24.413 Kari Still: Yeah, I guess in what was supposed to be like a very common sense result that was reached here. The majority's opinion just quite frankly glosses over the perilous realities of intimate partner violence, and even beyond the facts of the case, the majority really fails to mention domestic violence at all. Start audio 00:05:28.990 --> 00:05:35.660 Kelly Roskam (she/her/hers): Oh, I I guess maybe I would just ask Natalie. Were you surprised that there wasn't more discussion of just 00:04:24.413 --> 00:04:30.699 Kelly Roskam (she/her/hers): And sort of rebuked the 5th circuit for not doing that correctly. 00:04:30.820 --> 00:04:42.190 Kelly Roskam (she/her/hers): So, in applying this new principle based approach, the majority relied on 2 historical laws to identify a principle of disarming those deemed dangerous, those who pose a credible threat to the physical safety of others. 00:04:42.190 --> 00:04:44.340 Kelly Roskam: with the risks and benefits of firearms 00:04:44.340 --> 00:04:44.760 Tim Carey: New York and the 5th circuit. Both Start audio 00:01:44.370 --> 00:01:51.090 Tim Carey: the court flat out denied cert in a case about Illinois' assault weapon and large capacity. Magazine bans. 00:04:44.760 --> 00:04:46.960 Kelly Roskam (she/her/hers): and those were historical surety laws 00:04:46.960 --> 00:04:47.040 Kelly Roskam: in perpetuity. 00:04:47.040 --> 00:04:48.870 Kelly Roskam (she/her/hers): which allowed a justice of the peace, to require an individual found to pose a risk to others, to post a bond, a monetary bond, and going armed laws which prohibited riding or going armed to the terror of the people that was punishable by imprisonment or forfeiture of arms. Start audio 00:05:04.670 --> 00:05:08.___ stop audio Kari Still: And as we dive a little bit deeper into some of those key takeaways... Begin audio 00:00:30.___ --> 00:00:36.___ stop audio Kari Still: ... we are so delighted to be joined by our special guest, Dr. Mary Anne Franks, who is a legal scholar and professor at law Resume audio 00:00:39:___ --> 00:00:53.560 stop audio Kari Still: at George Washington Law School. She's authored an award-winning book on Constitutional law, and has published extensively on the Second Amendment the doctrine of self-defense and on gun violence and gender-based violence issues. Welcome, Mary Anne, we're so excited to have you. Start audio 00:05:47.030 --> 00:06:06.359 Kari Still: and for this discussion we are so delighted to be joined by our special guest, Doctor Marianne Franks, who is a legal scholar and professor of law at George Washington Law School. She's authored an award-winning book on Constitutional Law, and has published extensively on the Second Amendment the doctrine of self-defense and on gun violence and

gender-based violence issues. 00:04:48.870 --> 00:04:51.609 Tim Carey: They got it right the 1st time. Basically 00:04:51.970 --> 00:05:00.390 Tim Carey: Justices Sonia Sotomayor and Elena Kagan wrote together saying that they were pleased with the court's relaxing of the Bruen framework 00:05:00.670 --> 00:05:01.500 Tim Carey: in this case, but they'd also be happy if we returned back to the means and scrutiny interest balancing that courts did before Brueng. 00:05:01.500 --> 00:05:07.049 Kari Still: is incompatible with the intended function of the location, or place itself. 00:05:07.630 --> 00:05:09.230 Kelly Roskam (she/her/hers): And this sort of more flexible principle, based reasoning is absolutely essential for regulating firearms in modern places that didn't exist in the 18th century, but where guns are incompatible with their purpose, like 00:05:09.230 --> 00:05:10.250 Kelly Roskam: Me too. Start audio 00:05:36.920 --> 00:05:50.799 Kari Still: And Justice Ketanji Brown Jackson wrote separately in what we would describe as a fiery, straight talk, concurring opinion. Highlighting how Bruen is terrible! It's unworkable. It's creating madness and chaos in lower courts, and it should be abandoned. 00:05:21.580 --> 00:05:26.310 Kelly Roskam (she/her/hers): domestic violence, shelters and children's playgrounds and children's summer camps, and all these other locations that I don't think our framers anticipated. 00:05:26.310 --> 00:05:28.040 Kelly Roskam (she/her/hers): so, in other words. 00:05:28.100 --> 00:05:31.150 Kelly Roskam (she/her/hers): they were found to be a danger to others. 00:05:31.150 --> 00:05:33.133 Tim Carey: Unless you're Justin Gorsuch. Start audio 00:07:35.630 --> 00:07:44.439 Kelly Roskam (she/her/hers): It also could be that the principal standard sets the stage for these felon in possession cases. 00:05:33.580 --> 00:05:35.740 Kelly Roskam (she/her/hers): and Justice Barrett appears to be more clearly on board for this slightly broader generalness principle. Where she repeats this line from a dissent. When she was on the 7th circuit, where she says, history is consistent with common sense, it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. 00:05:35.740 --> 00:05:41.269 Kelly Roskam (she/her/hers): the really fatal outcomes for domestic users with firearms. 00:05:42.180 --> 00:05:44.069 Natalie Nanasi: Quite frankly, I wasn't 00:05:44.140 --> 00:05:44.560 Natalie Nanasi: I? I think that my expectation for this court was pretty low. I was expecting a narrow opinion, maybe not as narrow as this one. But 00:05:44.560 --> 00:05:51.460 Mary Anne Franks: Yeah, I think it was always going to be difficult for the court to stick to this notion of the plain text, because you think about where we're starting from? 00:05:51.460 --> 00:05:52.110 Kelly Roskam: She also wants you to know that Bruen is absolutely 100%, not her fault. 00:05:52.110 --> 00:05:56.230 Mary Anne Franks: You start from the plain text of the second Amendment. You don't get to an individual right to bear arms at all, and you certainly don't get to self defense, and then you certainly don't get to the right of someone who is under a protective order to have weapons. None of that makes any sense. And so it's not surprising that the court kind of allides that and just presumes a lot of things to say. Well, this is clearly within the ambit of the second amendment. We're more or less taking that for granted. And we're just gonna move on to this question of finding a historical analog. Start audio 00:06:36.__ --> 00:06:00:06:49.___ stop audio Mary Anne Franks: The pretense that's being offered here, that we're doing anything like textualism or originalism. It's really just can you find something that we've done before? That looks the same, and if not, you lose. Start audio 00:06:51.___ --> 00:07:22.239 Mary Anne Franks: And the great irony is not even the right word for it. But for Roberts to say, well, we just don't understand why the Fifth circuit and these courts aren't following our very clear instructions in Bruen and you've got the author of Bruen saying you all the majority aren't following my instructions, because I would have ruled the other way. So, as I think, was very directly put by Jackson's concurrence in particular, where she says, when you, when you point out the confusion that 00:05:56.230 --> 00:05:57.450 Kelly Roskam (she/her/hers): So 00:05:57.570 --> 00:05:57.670 Natalie Nanasi: no, because I think, as Carrie said, the court doesn't seem to be too concerned about the lived experiences of survivors. They are very focused in the 18th century. They are very focused, especially as we see in the concurrences with 00:05:57.670 --> 00:05:57.879 Kelly Roskam (she/her/hers): a lot to think about from this opinion, and I'm sure that every time I read it I will think of even more significant things from it. Resume audio 00:12:38.250 --> 00:12:39.480 stop audio Tim Carey: That's what we all. [Insert transition music] Natalie Nanasi Interview Start audio 00:00:05.510 --> 00:00:15.119 stop audio Tim Carey: Now with a broader understanding of the court's opinion. In Rahimi we have another special guest to discuss potential applications of this ruling in the context of domestic violence. Start audio 00:00:21.720 --> 00:00:45.089 Tim Carey: We are joined by Natalie Nanasi, an associate professor at Smu, Deadman School of law in Dallas, Texas. She is the founding director of the Law School's hunter, legal center for victims of crimes against women, where she teaches and supervises students representing survivors of gender-based violence in a broad range of legal matters, and oversees students' systemic advocacy. Efforts 00:05:57.879 --> 00:06:04.349 Kelly Roskam: She let us know that by the way, she was not on the court when Bruen was decided. Start audio 00:06:11.160 --> 00:06:12.749 Tim Carey: Not my mess y'all. 00:06:06.380 -->

00:06:09.110 Kari Still: Welcome, Mary Ann. We're so excited to have you. Begin audio 00:00:53.560 --> 00:00:55.579 stop audio Mary Anne Franks: I'm so excited to be here. Thank you. Start audio 00:01:40.980 --> 00:01:51.859 Kari Still: I wanna start by asking you about your reactions to the courts ruling and us versus Rahimi, particularly because you filed a brief in this case, and, like us, have probably been monitoring it for quite some time now. 00:06:13.665 --> 00:06:17.690 Tim Carey: And it was also odd that none of the Conservative justices joined any other occurrences. I mean only Justices Sotomayor and Kagan 00:06:17.690 --> 00:06:22.640 Natalie Nanasi: showing us their commitment to originalist analysis. 00:06:22.640 --> 00:06:23.320 Tim Carey: concurred together. Everyone else had their own different views. 00:06:23.320 --> 00:06:26.800 Natalie Nanasi: I think anytime you start thinking about intimate partner violence in in the same sentence as you're also thinking about 00:06:26.800 --> 00:06:32.180 Kelly Roskam: Except Sam Alito, so the only. The only exception to this is, despite being active at oral argument. Just as Samuel Alito joined none of these concurrences, and didn't write his own either. 00:06:32.180 --> 00:06:38.860 Natalie Nanasi: what was going on in the founding era. You're gonna get yourself into trouble. And so we see Start audio 00:18:20.380 --> 00:18:32.290 Natalie Nanasi: I read the majority opinion as being a pretty decent rebuke of the 5th circuit, not just as Robert, some of his language 00:06:40.340 --> 00:06:45.669 Tim Carey: Yeah, oddly absent. Maybe it thought he said everything he had to in his Bruen concurrence. 00:06:46.910 --> 00:06:47.720 Kelly Roskam: Yes. 00:06:48.120 --> 00:06:52.080 Tim Carey: He's never been shy about his opinions, though so definitely conspicuous. 00:06:52.440 --> 00:06:53.530 Kari Still: Never. 00:06:53.530 --> 00:07:04.999 Tim Carey: But we'll parse deeper into the meaning of the courts ruling and their many concurrences with the additional insights of a special guest, legal scholar and advocate, Marianne Franks. [Insert transition music] Mary Anne Franks Interview [audio moved] Start audio 00:02:44.300 --> 00:03:15.119 Tim Carey: And we can dive a little deeper into the content of the decision itself. So some general table setting the majority opinion, made a couple of key points, 1st being that there's a high bar for facial challenges like in this case. Rahimi was challenging this Federal law in every application, saying, there's no possible one where it could be constitutionally executed. And the court reiterated that that is an incredibly high standard to reach, and Rahimi just did not get there in this case. 00:07:10.910 --> 00:07:22.240 Kari Still: And even though the court's ruling Rahimi was pretty narrow, the majority still acknowledged Heller's presumptively lawful list of categorical restrictions, and specifically referenced those laws that bar possessions by felons and the mentally ill 00:07:22.240 --> 00:07:24.980 Mary Anne Franks: lower courts are having, and you pretend as though that confusion is coming from some other place other than the court's own disoriented take on things that's really dishonest. It's clearly a problem with the precedent that was set by Bruen. Start audio 00:07:37.___ --> 00:07:59.859 Mary Anne Franks: This is, again, if you are trying to defend the indefensible, you're trying to tamp down the worst excesses of your own rulings. This is what it looks like. You rule against Rahimi, and you act as though it should be obvious that you would rule against Rahimi, even though, of course, everything they said in Bruen would suggest, otherwise, as the author of the Bruen opinion makes clear. 00:07:24.980 --> 00:07:42.649 Kari Still: and while the Federal law at issue in Rahimi is based on individualized assessments of one's dangerousness. The majority went out of its way to emphasize that it was not casting doubt on the types of laws that categorically bar firearm possession by certain groups of people that legislatures deemed to pose a special danger of misusing them. Resume audio 00:01:40.169 --> 00:01:50.459 Kari Still: and, importantly, the majority appears to subtly remind us that Heller recognized many such provisions that would fall under this presumptively lawful status. 00:07:44.590 --> 00:07:50.170 Kelly Roskam (she/her/hers): Some felonies undoubtedly relate to dangerousness, and recall that the Chief Justice had specifically mentioned that the opinion should not be read to 00:07:50.170 --> 00:07:53.369 Tim Carey: We'll be sure to follow Rahimi's impact in the cases to come 00:07:53.440 --> 00:07:54.230 Tim Carey: for. Now, thank you for listening to sufficiently analogous. Your 1st stop for thoughts on the second amendment. Credits and outro music Kelly Roskam: Sufficiently Analogous is a podcast from the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. Produced by Tim Carey, Joe McHugh, Kelly Roskam, and Kari Still. Audio production from Matthew Martin, Philip Porter, and Holly Cardinell. Distribution and social media by Shakun Kashal. 00:07:54.230 --> 00:08:00.620 Kelly Roskam (she/her/hers): preclude legislatures from prohibiting individuals on a categorical basis, where they they believe that they'll misuse firearms. Start audio 00:02:31.740 --> 00:02:33.410 Tim Carey: Now we look to what's next? 00:08:00.620 --> 00:08:14.790 Kelly Roskam (she/her/hers): So do you think, as they skipped over sort of this plain text, do you think other courts are going to continue to grapple with what it means to be part of the people, or you know what's included in keeping and bearing arms? 00:08:15.660 --> 00:08:20.000 Mary Anne Franks: I really don't know that we've gotten much guidance at all. You look at what happens in the wake of Rahimi Start audio 00:08:54.200 --> 00:09:05.290 Mary Anne Franks: And so the courts

really saying, Well, obviously, you've got enough guidance now, and that just doesn't make any sense, because clearly there isn't much guidance that's being offered here in part, because Rahimi 00:09:04.210 --> 00:09:05.330 Tim Carey: First, st Chief Justice Roberts wrote that the greater deprivation of liberty necessarily encompasses the smaller deprivation of temporary disarmament. 00:09:05.330 --> 00:00:09.070 Mary Anne Franks: is actually a very narrow case. Start audio 00:11:04.940 --> 00:11:20.840 Tim Carey: And that point you raise Mary Anne about this perceived obviousness of their opinions Really came center stage in Rahimi, where Roberts, Chief Justice Roberts put the onus on lower courts for their mistaken application of Bern. 00:09:13.270 --> 00:09:20.570 Tim Carey: Since going arm laws were punishable by imprisonment, it makes sense that modern laws can disarm dangerous people without imprisonment. Resume audio 00:02:49.770 --> 00:02:59.549 Kelly Roskam (she/her/hers): Basically, you can't exercise your second amendment rights if you're incarcerated or dead. And I just like that makes like, why prohibit somebody who can't have them. 00:10:49.960 --> 00:10:52.899 Kelly Roskam (she/her/hers): stating that the term is very vague. 00:10:53.440 --> 00:11:05.239 Kelly Roskam (she/her/hers): But if you remember, from our discussion of the oral argument. The Solicitor General was not saying that Rahimi could be disarmed because he was not responsible in the colloquial sense. 00:11:05.620 --> 00:11:13.500 Kelly Roskam (she/her/hers): She proposed that the term not responsible would be intrinsically tied to the danger that you would present if you had access to firearms. 00:11:13.520 --> 00:11:16.990 Kelly Roskam (she/her/hers): Essentially, whether the individual was dangerous. 00:11:18.050 --> 00:11:21.010 Kari Still: And let's be clear. This responsible term didn't just come out of thin air. The court used this term in Heller several times to clarify who exactly is entitled to the Second Amendment right. 00:11:21.010 --> 00:11:26.549 Tim Carey: honestly reading through it, felt like Roberts, was gaslighting these lower courts in many ways. 00:11:26.660 --> 00:11:29.760 Tim Carey: because saying that, like together, surgery and going arm laws confirm what common sense suggests. 00:11:29.760 --> 00:11:32.650 Tim Carey: It's nice to know that even the Supreme Court is mystified by their own language. From time to time. Resume audio 00:05:06.430 --> 00:05:26.149 Kelly Roskam (she/her/hers): Not only that, but the majority in Rahimi actually kind of adopts the underlying premise that the Solicitor General was proposing. Finding that the relevant principle of the historical laws it evaluated was that individuals found to be a credible threat to the physical safety of others could be disarmed, consistent with the Second Amendment. 00:11:32.650 --> 00:11:40.960 Tim Carey: As I mentioned earlier in the Amber quote, talking how courts were mistaken, and their application of what they said. But as you've already highlighted 00:11:41.710 --> 00:12:00.779 Tim Carey: Justice Thomas wrote the opinion in Bruen. He's like. This is what I mean. And then a Rahimi, he wrote the descent. He's like, What's the deal, everyone. This is what I meant the 1st time. And so how mistaken are courts really, in applying this test, given what the court is laid out for them, and Bruen and Rahimi? 00:12:01.660 --> 00:12:38.919 Mary Anne Franks: Yeah, I think it's. It is undeniable that the problem here is not the lower courts. Well, I mean, the problem is sometimes the Fifth circuit. But the problem is not largely lower courts. It's, you know you've been dealt. You have so many judges being quite explicit about how they're they're saying to the court. We would like to know what to do here, and you really haven't answered any of the questions we need to know which 1st of all, yes, there's that textualism question which the court just really never grapples with, because it can't right after you've got Heller and Bruen making the second amendment means something that just is completely unworked from the text, how are you going to do a textual interpretation that makes sense? 00:12:39.170 --> 00:13:01.510 Mary Anne Franks: But then you've also got these questions of Well, do you mean when you say history and tradition and the original meaning, do you mean 1791, do you mean 1868? The Roberts even says, well, we know that there's been all this controversy over which one it is. We're not going to answer that right now. So again, just sort of highlighting this and then saying, But why don't you understand what we're doing here. Start audio 00:14:04.___ --> 00:14:17.299 stop audio Mary Anne Franks: Again, as much as for policy reasons, or just for reasons of order and and sense. I I wouldn't want to agree with Thomas, but in terms of actually applying what Bruen says. Of course he is correct about that. Start audio 00:14:19.230 --> 00:14:22.949 Kari Still: Oh, man, I'd never like to acknowledge when he's correct about anything. 00:13:11.810 --> 00:13:15.759 Kelly Roskam (she/her/hers): please come back indications to litigants. 00:13:15.960 --> 00:13:25.300 Kelly Roskam (she/her/hers): But my sense is that this is the beginning, not the end of protecting victims and survivors. So, Natalie, what else should we be doing? 00:13:25.370 --> 00:13:27.689 Kelly Roskam (she/her/hers): In addition to these protective orders 00:13:27.990 --> 00:13:29.290 Kelly Roskam (she/her/hers): to keep people safe. 00:13:30.730 --> 00:13:32.150 Natalie Nanasi: Whoa! Goodness. 00:13:32.320 --> 00:13:35.314 Natalie Nanasi: how much time do you have on this podcast. Start audio 00:13:42.470 --> 00:13:43.920 Natalie Nanasi: we're now back 00:13:44.110 --> 00:13:48.290 Natalie Nanasi: to where we were prior to Rahimi. As we said. 00:13:48.600 --> 00:13:56.780 Natalie Nanasi: we at least have this moment of panic behind us. We

know that we don't have to worry 00:13:56.890 --> 00:14:04.409 Natalie Nanasi: for now about the constitutionality of disarming offenders with protective orders against them right 00:14:05.040 --> 00:14:06.229 Natalie Nanasi: to me. There's 00:14:06.960 --> 00:14:11.010 Natalie Nanasi: no end to the amount of work that needs to be done to actually 00:14:11.410 --> 00:14:19.579 Natalie Nanasi: keep survivors safe. I think, in the interest of time. Let me focus in one area which I've written about extensively, which is. 00:14:20.340 --> 00:14:23.260 Natalie Nanasi: as I've been saying for many, many years. The laws on the books on this issue at the intersection of independent partner. Violence and firearms are actually pretty decent. Right? Start audio 00:14:42.480 --> 00:15:01.129 Natalie Nanasi: But despite the fact that the Federal laws are good, half of the States have pretty decent laws on the books, the enforcement is just not happening on the ground. That has been true for decades since the Laundenburg Amendment. 00:14:23.260 --> 00:14:28.689 Mary Anne Franks: Let's say he's consistent, maybe not correct, but he is consistent when he says that's what I said. I said what I said. 00:14:30.337 --> 00:14:32.720 Kari Still: I kind of want to ask you a little broader question about like the Court's directive for lower courts to apply more principle based approach. Um I think the court calls it principles that underpin our regulatory tradition. So how do you read the court’s language here? And what kind of slight revision of this phrasing might change the Bruen framework and other applications? 00:14:32.720 --> 00:14:43.199 Tim Carey: I think her point neatly sums up what you've been saying that the narrowness of Rahimi leaves all of these doors half open for different perspectives and evidence to be taken in different ways. 00:14:43.450 --> 00:14:48.919 Tim Carey: One last question to you then is, where does the court really leave us with Rahimi? Start audio 00:33:17.400 --> 00:33:34.519 Mary Anne Franks: I worry. That Jackson is is just correct, right when she says, you know, we're creating chaos and and in the and as the when the court figures out how far it wants to go, or how it wants to to put this really subjective test into practice. 00:14:54.080 --> 00:15:01.210 Mary Anne Franks: I think what the court is really trying to say, but can't say, because again of where it's boxed itself in. The court is trying to say, well, we say it's not trapped in amber, and we don't need a twin. Okay, so what does it mean? Well, in this case it means we can find 2 laws that once you smush them together, kind of look like something like this law. And that's going to be okay. 00:15:01.210 --> 00:15:14.860 Natalie Nanasi: We just don't see good enforcement. There are a lot of reasons for that. Happy to talk about that, if y'all would like. But really it's it's an interesting space, because you have an intersection of Federal law, sometimes State law, but exclusively state and local enforcement. You need a lot of cooperation happening within a lot of different actors in the criminal legal system. And you just have 00:15:14.860 --> 00:15:25.009 Mary Anne Franks: That's because of the principle here, and the principle that they've extracted from the surety and the going armed laws is that if you present a credible threat of danger to someone else. 00:15:25.120 --> 00:15:25.700 Mary Anne Franks: and I would say honestly, That's that's a perfectly sensible principle, and and it would have made a lot of sense in Heller. It would have made a lot of sense in Bruen. I don't know why. There, I do know why, but the fact that they're bringing it out now, though, is so confusing, because if you actually thought that that was the right way to approach this kind of interpretation, we wouldn't be on this path, and it's really hard to see how that principled approach 00:15:25.700 --> 00:15:38.920 Natalie Nanasi: systems that are not set up to actually ensure that even when you have a judicial order and a federal law saying, this person should not have a firearm. You don't see those firearms being 00:15:38.920 --> 00:15:42.169 Natalie Nanasi: taken away from those people. Start audio 00:15:54.000 --> 00:15:59.799 stop audio Kari Still: Well, Natalie, thank you so much for joining us today and offering your expertise on these very important issues. Start audio 00:25:41.620 --> 00:25:42.650 stop audio Natalie Nanasi: Thank you. [Insert transition music] Decision Implications Start audio 00:00:04.030 --> 00:00:14.720 Tim Carey: With a better understanding of the Rahimi opinion and its potential implications for domestic violence, we can start to speculate on how this decision may impact other types of gun violence, prevention, laws. 00:15:49.650 --> 00:16:08.125 Mary Anne Franks: isn't really the same thing that they keep decrying out of the out of the other side of their mouth, which is, we don't want policy arguments. We don't want activism. We don't want living constitutionalism. You've got Kavanaugh doubling down on this idea that no, you can never do policy because it's so subjective and unpredictable. Start audio 00:17:07.240 --> 00:17:23.980 Mary Anne Franks: when, in fact, you look at this mess of a decision, and you see, the history and tradition is just picking out your friends and and trying to figure out which ones you wanna recognize at the party. That that is, that's what's going on here. So you know Tammy used the term gaslighting. I think that's that's pretty appropriate, because 00:17:23.980 --> 00:17:39.000 Mary Anne Franks: the court is literally saying, you can't. You know we're being objective or being neutral, being settled. But over and over again, footnote after footnote shows that every court has problems following this because they don't know what you're talking about. Start audio 00:17:42.600 --> 00:17:45.___ stop audio Mary Anne Franks: It's a very evasive way, or ... Start

audio 00:17:46.___ --> 00:17:53.020 Mary Anne Franks: ... no the better word honestly is cowardly, because it's it's a refusal to face the consequences of what they have set out 00:17:53.040 --> 00:18:13.690 Mary Anne Franks: in Bruen, and it's and instead of trying to say something, maybe, along the lines of judicial humility for what they did in Bruen, admitting something about the judicial activism. That is is the only way to interpret that case, they double down on this notion that no, no, no, we're really doing something originalist. We're really doing something that honors the founders somehow, even though it makes no sense. 00:18:14.310 --> 00:18:24.749 Kelly Roskam (she/her/hers): And maybe I missed this. But so so they've identified this one principle, right? That, you know where judges make a finding that somebody is a credible threat to the safety of others. 00:18:24.790 --> 00:18:32.320 Kelly Roskam (she/her/hers): But I don't see how courts are meant to pluck out these other principles from, you know, a hodgepodge of historical laws. But maybe I'm wrong. 00:18:32.320 --> 00:18:39.610 Natalie Nanasi: chastising the way that they analyze the way that they actually sought and how he told them. I love it. You're supposed to seek harmony, not manufacture conflict right in some respects there's there's a pretty strong rebuke from the majority opinion to the 5th circuit. Start audio 00:25:54.330 --> 00:26:15.340 Tim Carey: So. Yes, in the opinion Robert says, Hey, everyone, this law is fine. No need to worry. And then the conservative concurrences come in and say, Well, maybe not. So. What issues do you see in these concurrences? Some of the justices highlighting is potential avenues arguably welcome mats for future cases in this area. 00:18:39.610 --> 00:18:41.000 Mary Anne Franks: Yeah, I don't know how you do that. Start audio 00:18:56.___ --> 00:19:10.009 Mary Anne Franks: If your principle is so narrow as to say credible threat of violence towards someone else, are they signaling that what they're saying there is that felon and possession laws that deal with nonviolent felonies are unconstitutional? That's 1 way to read that. 00:19:10.050 --> 00:19:17.320 Mary Anne Franks: There's also of course, the drug addiction part of the statute. So the hunter Biden case made that brought that into prominence. 00:19:17.330 --> 00:19:29.180 Mary Anne Franks: You've got restrictions on people owning weapons when they're addicted to drugs being addicted to drugs is not inherently violent, so are they suggesting that that, too, is unconstitutional. It's really hard to say. 00:19:29.680 --> 00:19:31.000 Tim Carey: Yeah, and and reading Barrett's concurrence ... Start audio 00:19:41.___ --> 00:19:51.610 stop audio Tim Carey: She's like, well, actually, like in this instance, the court hit the right approach. But you can't principal too much, or else it's bad. And then we're like, but but how. Start audio 00:19:56.110 --> 00:19:57.___ stop audio

Tim Carey: And then she states that ... Start audio 00:19:58.730 --> 00:20:14.759 Tim Carey: harder level of generality problems can await another day which, more or less for me, was saying, we're we're just gonna make up these principles as cases come to us. Y'all in the lower courts, See you in a year or 2. 00:20:15.530 --> 00:20:43.400 Mary Anne Franks: Yeah. And and what's upsetting about Barrett in particular, both what is intriguing and upsetting about Barrett's position on this is, she seems to see clearly the damage that's being done. But she's also still trying to preserve legitimacy of the approach. I mean, she's not being all that convincing sometimes, but she's still trying. She's still voting oftentimes on this pretense that we are doing something like originalism, you know, in some kind of format. 00:20:43.590 --> 00:21:14.069 Mary Anne Franks: And what is so upsetting about this case and about and again, this is echoing reproductive rights cases. But in so many of the courts cases just this absolute indifference to the real world consequences of that instability, that unsettled nature of the doctrine, not least because the entire selling point of originalism is supposed to be well, it's settled right. It's not going to change with the vicissitudes of time. Or what have you? It's going to be easy and predictable, and we're just calling balls of strikes and everything will be calm. 00:21:14.160 --> 00:21:25.000 Mary Anne Franks: and we know that everything is in chaos. You see that everything is in chaos. And you basically say, as a matter of kind of saving face. If you were a principal Conservative. If there is such a thing on the court right now, you say... Start audio 00:21:27.___--> 00:21:32.790 Mary Anne Franks: We'll just keep saving face, and every time these really bad cases come to us we'll knock them down and say, Well. 00:21:32.800 --> 00:21:42.000 Mary Anne Franks: clearly we didn't mean that right, but in the meantime, not only do people die, people are also being incentivized to have weapons to look at each other like enemies... Start audio 00:21:55.___ --> 00:22:01.310 Mary Anne Frank: And the court just doesn't seem to care. The majority just does not seem to care. We'll sort it out as litigation unfolds. 00:22:02.950 --> 00:22:19.660 Kelly Roskam (she/her/hers): So I don't wanna say that this sort of this new principles idea is a quiet quitting of Bruen, but maybe it's like a quiet alteration. Did the decision to Rahimi make any other quiet alterations to the framework? 00:22:20.950 --> 00:22:26.000 Mary Anne Franks: You know, it's hard to say, I mean, because that's a big one, right? If what you're really saying is, we didn't mean what we said in Bruen. Start audio 00:22:37.___--> 00:22:41.___ stop audio Mary Anne Franks: You're basically abandoning Bruen. Right? You're saying we're looking for principles. Start audio 00:22:43.___ --> 00:22:45.___ stop audio Mary Anne Franks: That means that they're willing to

... Start audio 00:22:46.___ --> 00:22:48.___ stop audio Mary Anne Franks: ... cobble together certain examples to get a certain result. Start audio 00:23:00.___ --> 00:23:02.__ stop audio Mary Anne Franks: I worry that... Start audio 00:23:04.___ --> 00:23:11.189 Mary Anne Franks: ... the signals you're getting from Kavanaugh and from Gorsuch in this attempt to legitimize what cannot be legitimized. 00:23:11.200 --> 00:23:16.569 Mary Anne Franks: You get Kavanaugh all going full on saying tiers of scrutiny are are nonsense, and they should be abolished. 00:23:16.580 --> 00:23:23.840 Mary Anne Franks: That's bad, right? But but that's what Bruen already said. Right? One of the scariest things about the Bruen decision was essentially we don't. 00:23:23.920 --> 00:23:45.080 Mary Anne Franks: It is almost a closed circle. Right? It's basically if you make a plausible claim about something that might have something to do with the second amendment. Basically, any person challenging that law is going to win. We're not going to do this means in scrutiny. We're not going to do all the things that we have been doing for decades to try to say. Look, the government's interest might be compelling 00:23:45.080 --> _______ stop audio Mary Anne Franks: all that stuff Kavanaugh says is made up, and should go out the window fine, by the way, for him to say it's made up. But all laws are made up, and so that the contrast to what else is there? Start audio 00:13:12.820 --> 00:13:16.720 stop audio Kari Still: there's interest balancing. Isn't this where means-end scrutiny comes in? Start audio 00:24:09.___ --> 00:24:26.969 Mary Anne Franks: Of course you want some kind of means in scrutiny. You need to ask the question of, When does a right need to give way to other more important rights? And we do that in literally, every context, including the 1st amendment, which is one of the most absolutist amendments we've got, and has some of the most sweeping interpretations. 00:24:27.040 --> 00:24:34.670 Mary Anne Franks: Back in Heller, right? Scalia saying, No right is unlimited, just like the 1st Amendment is limited in all these ways. The Second Amendment has to be too. 00:24:34.790 --> 00:24:36.000 Mary Anne Franks: so I'm nervous about the fact that ... Start audio 00:24:49.___ --> 00:24:52.___ stop audio Mary Anne Franks: ... Gorsuch essentially says, we do want things to be trapped in amber. Start audio 00:25:47.870 --> 00:25:49.170 Kelly Roskam (she/her/hers): Terrifying, really. 00:25:51.270 --> 00:26:06.400 Kelly Roskam (she/her/hers): So. I did see some suggestion that, you know some of the language in Rahimi could be read to sort of blunt this idea from Bruen that we should read historical silence to mean unconstitutionality. Do you read that the same way? 00:26:06.890 --> 00:26:07.000 Mary Anne Franks: I think you can. Start audio 00:26:08.___ --> 00:26:12.589 Mary Anne Franks: The trouble I have there is the the caveat, I think, will always be. 00:26:13.000 --> 00:26:15.650 Mary Anne Franks: What does the majority want to happen in this case, and they will always make the doctrine. There will always be some kind of loophole that they'll be able to interpret to make sure they get the results they want. Start audio 00:26:51.340 --> 00:27:03.339 Mary Anne Franks: So I do think they're leaving themselves enough leeway to make sure that when it comes to result they want or don't want, they can. They can fudge it so that that can happen. But so I'm not comforted by that, but I think it probably is in there. 00:26:15.650 --> 00:26:26.030 Natalie Nanasi: Oh, there there are many. So you know, we definitely saw both Justice Kavanaugh and Justice Barrett talking generally about how 00:26:26.560 --> 00:26:53.360 Natalie Nanasi: new problems additional questions can await another day. But I think where we saw it most clearly, wasn't Justice Gorsuch's concurring opinion. There's a section of the opinion where he lays out, quote unquote all these other circumstances and other issues that have not been resolved by the Court's decision in Rahimi. So, for example. 00:26:53.510 --> 00:27:06.730 Natalie Nanasi: he talks about a situation in which there hasn't been a judicial finding of a credible threat against a person. He talks about permanent disbarment not being settled by this opinion, and, as we know, most protective orders are limited in duration. 00:27:06.730 --> 00:27:12.210 Tim Carey: Yeah, it's almost when Barrett's concurrence again, when she talks about historical regulations reveal a principle, not a mold. Perhaps it's less of like a physical mold, and more like like a fungus. 00:27:12.210 --> 00:27:20.889 Natalie Nanasi: and therefore the firearm prohibition is similarly limited. But there are instances where you have exceptionally violent individuals, where you do see permanent protective orders entered for the survivor. Safety. 00:27:20.889 --> 00:27:21.000 Mary Anne Franks: Maybe so. Start audio 00:27:41.___ --> 00:27:47.___ stop audio Mary Anne Franks: The suggestion that if there's silence, that means something specifically, and you can't get around it. That's really again, it's terrifying for legal interpretation. It's not just for the second amendment. It's for everything. Start audio 00:07:06.900 --> 00:07:24.989 stop audio Kari Still: So I did find some appreciation for the majority's closing remarks in its opinion, emphasizing the role of courts to seek harmony and avoid manufacturing conflicts when deciding these cases, and then specifically criticizing the 5th circuit for doing just that. But then, again, what did the court really think would happen? Start audio 00:29:25.940 --> 00:29:38.340 Mary Anne Franks: That is it right? And I I wrote a piece in this magazine right when the decision came out as my reaction piece, and and the the phrase I use and and I I do want to commit to here is that this is the the court treated 00:27:26.510 --> 00:27:52.060 Natalie Nanasi: We

don't have an answer around what the constitutionality is of a protective order that is ex parte. So typically the way a protective order works is that the 1st step is to get a very, very short-term ex parte emergency order, and then to come back and have a full-fledged hearing. So what do you do in that interim time? That's still unresolved. 00:28:16.930 --> 00:28:21.000 Natalie Nanasi: opening up a huge loophole right Start audio 00:08:04.520 --> 00:08:20.179 stop audio Kari Still: Natalie, can you weigh in on some of the concerns raised by Justice Thomas and his dissent about how these protective orders are civil in nature, and his critique that civil protective orders don't afford persons the same protections as those in the criminal justice process. Start audio 00:30:25.___ --> 00:30:29.220 Natalie Nanasi: This false, in my opinion, distinction between 00:29:38.340 --> 00:30:00.009 Mary Anne Franks: the 5th Circuit's decision as this kind of monster, and what I am suggesting, if that's a monster you created. And so it's good that you are pushing that monster away. But the fact that you're not recognizing, not willing to admit that you're the one who put us there is really alarming, because it means you're just going to keep doing it and try to disclaim responsibility. Once it becomes obvious what you have done. 00:30:01.640 --> 00:30:10.659 Kelly Roskam (she/her/hers): Yeah. Well, and maybe Justice Jackson was the only one to really come out full throated and say exactly that. 00:30:11.210 --> 00:30:19.000 Mary Anne Franks: Yeah, that's what I like about the 2 concurrences from the Liberal justices together. So Jackson, just saying, you have caused this 1st of all. And ... Start audio 00:30.28.___ --> 00:30:42.359 Mary Anne Franks: she's saying the court is intervening, creating these things, putting us on this path, and then backing away while people die. Right? So she's been the voice, I think, most strongly articulating what is happening here. 00:30:29.250 --> 00:30:52.760 Natalie Nanasi: criminal and civil remedies. This was something that Judge Ho's opinion in the 5th circuit really fixated on really perpetuating a lot of myths, that civil orders are just handed out, that there's no due process, that if it was, quote unquote, real domestic violence. If the person really felt afraid for their safety, they would just go ahead and 00:30:52.760 --> 00:30:54.230 Mary Anne Franks: but, and mentions that no one has asked none of the parties have asked us to reconsider Bruen. And I just thought, well, one of the amicus briefs did that. That was, that was kind of my whole point. But, but yes, that she says the history and tradition approach, let's be honest about what that means. Start audio 00:31:13.200 --> 00:31:24.190 Mary Anne Franks: When you do history and tradition, you are essentially saying women don't get rights. You're saying that non white men don't get rights, that that's that's what it means. Let's just be honest about what that means, because 00:30:54.230 --> 00:31:20.249 Natalie Nanasi: file charges. They would call the police, and you saw the 5th circuit kind of using that civil criminal distinction as a reason to strike down the protective order firearms, regulations. So but yes, to your point. I know. In our work. In the clinic we see survivors day in and day out. 00:31:20.250 --> 00:31:24.190 Natalie Nanasi: who do not want to call the police when they are being abused by their significant others. 00:31:24.190 --> 00:31:30.420 Mary Anne Franks: it is just an objectivized way of trying to make it sound principle for what is really nothing more than naked preference for patriarchy or racial patriarchy, because that's what history and tradition has to mean in this country, because that is what our history says, and is. Start audio 00:43:22.___ --> 00:43:27.479 Mary Anne Franks: Heller was a radical decision, and it really just broke constitutional interpretation. 00:31:30.420 --> 00:31:32.300 Natalie Nanasi: a B women of color. 00:31:32.480 --> 00:31:37.270 Natalie Nanasi: who are afraid of either 00:31:37.890 --> 00:31:59.259 Natalie Nanasi: really disproportionate consequences that are going to befall their abuser. If they are arrested, they may understand intuitively that if their abuser goes to jail he will come out of jail angrier, and her life will be at risk, because she was the one that put him there. 00:31:59.330 --> 00:32:00.609 Natalie Nanasi: She may 00:32:00.730 --> 00:32:11.510 Natalie Nanasi: intuit, or know from experience that when he goes to jail he will lose his job, and unemployment is then a risk factor for increased abuse. Start audio 00:32:50 --> 00:32:53 stop audio Natalie Nanasi: I work a lot with immigrant survivors here in Texas Start audio 00:33:03 --> 00:33:12.519 Natalie Nanasi: They're afraid that if they call the police it's not their abuser that's going to be arrested. They are going to be questioned about their immigration status and deported. 00:33:12.520 --> 00:33:31.740 Natalie Nanasi: Right? I mean, there are just. I could go on and on and on about the reasons that somebody who is legitimately afraid for their safety, afraid for their life is not going to call the police right, which is why the protective order was created. In the 1st place, right survivors are coming from a lot of different circumstances. Start audio 00:33:41 --> 00:33:50.169 Natalie Nanasi: There are plenty of people who do want to call the police, who do want to see their abusers arrested, and there are also plenty of people who just want the abuse to stop 00:33:34.540 --> 00:33:50.170 Mary Anne Franks: she states it very clearly. She says, the rule of law suffers. She says, key to our democracy is our legal standards, that foster stability, facilitate consistency and promote predictability. And she says, you know, Bruen doesn't do any of those things, and so it isn't just that. It's not just that. It's a bad ruling, which is bad enough, right.

00:33:50.170 --> 00:33:56.000 Natalie Nanasi: right. They don't want to have the criminal legal system involved in their lives. They don't want to open that door. Start audio 00:33:31.790 --> 00:33:50.169 stop audio Natalie Nanasi: These abusive situations look very different, depending on the person depending on the situation. And so what we need to do is to provide survivors with options Start audio 00:34:22.810 --> 00:34:38.710 Natalie Nanasi: risk, it is just a different alternative for people, and it's, I think, this this decision in a lot of ways, while yes, there are some issues with it. It is nice to see that the court 00:33:58.860 --> 00:34:02.000 Mary Anne Franks: but it's a bad ruling that can't even confront how bad it is. Start audio -> 00:34:19.___ -> 00:34:30.___ stop audio Mary Anne Franks: whose life matters right? Who gets to die? Who gets to decide who dies? I mean, it's an impossible position to put courts in, especially if those courts are principled courts who are trying to do the right thing. 00:34:38.710 --> 00:34:46.892 Natalie Nanasi: has rejected that false dichotomy that the 5th circuit set up, and is just recognizing that survivors are looking to the legal system to seek safety in different ways, and that civil and criminal are comparable. 00:34:46.892 --> 00:34:53.560 Mary Anne Franks: qualified to do? That seems like a problem, an inherent problem with any test to, to say, we don't have the 00:34:53.560 --> 00:34:53.940 Kelly Roskam (she/her/hers): Well, it didn't seem like there was a ton of disagreement about that like. It was very brief coverage of this criminal civil distinction, and then it was just sort of like moving on. 00:34:53.940 --> 00:34:59.420 Mary Anne Franks: take something you don't have institutional competence and make that the basis for how you decide these cases. 00:34:59.450 --> 00:35:04.500 Mary Anne Franks: So you had all these courts that are principled, saying, We can't do this. And then you have courts like the 5th circuit, who are like, yeah, of course, we can do that. We know more than historians. We know more than experts, scientists, women, doctors. They're fine with it. There's a certain type of judge. There's a certain type of court that, of course, loves this kind of chaos, because 00:35:04.500 --> 00:35:05.309 Natalie Nanasi: Thank goodness. Start audio 00:13:05.520 --> 00:13:11.769 Kelly Roskam (she/her/hers): Well, so I mean, we've identified the narrowness of the opinion sort of the the 00:35:17.320 --> 00:35:26.000 Mary Anne Franks: what it really comes down to is you get to decide, based on pure, naked ideological preferences, how you want the Constitution to be interpreted. Start audio 00:35:44.960 --> 00:35:47.706 stop audio Kelly Roskam (she/her/hers): 5th circuit, the most confident circuit in America. Start audio 00:36:00.190 --> 00:36:05.710 Tim Carey: But, Marianne, it sounds a lot like judicial policy making. I thought, that's what interest balancing did. 00:36:05.880 --> 00:36:08.210 Tim Carey: The objective approach. 00:36:08.210 --> 00:36:10.000 Mary Anne Franks: We're trying to move away from judicial activism, right? Start audio 00:36:49.190 --> 00:37:12.570 Mary Anne Franks: but that is one of the most maddening parts of all. This is that yes, it is constitutional gaslighting right. This idea that this thing that is so blatantly activist, so blatantly ideological, is being sold to us as the objective approach is being sold to us as balls and strikes. It's being sold to us as neutral. That is incredibly frustrating, because it means that the very people who are acting in the 00:37:12.590 --> 00:37:19.490 Mary Anne Franks: most emotional, hysterical, ideological way are refusing to admit that they're doing that. 00:37:23.370 --> 00:00:37.500 Tim Carey: there are so many questions that were explicitly asked to the court by other courts who aren't like in that penumbra of the 5th circuit of trying to like meaningfully engage. Like most notably Judge Higginson, his concurrence in the US v. Daniels case, explicitly laid out a list of questions. It's like court. Please answer these questions because we don't know what to do. And the court seemed to miss that... Start audio 00:37:52.___ --> 00:38:01.___ stop audio Tim Carey: ... aside from Justice Jackson, who went through and clarified, and her concurrence, these are all the questions that are still unanswered in this opinion.... Start audio 00:38:12.___ --> 00:38:59.789 stop audio Tim Carey: ...looking at which historical sources are suitable for the Bruen analysis. What level of generality should courts use to validate historical sources who is protected by the second amendment from a historic perspective to what conduct is the second amendment's plain text apply to what historical era or eras should courts look to, to divine historical tradition of gun regulation. How many analogies add up to a tradition? Must there be evidence that those analogies were enforced or subjected to just so authority? How much support can non statutory sources lend, I mean all these questions and more. Justice. Jackson's nakedly lays out like we were asked to resolve these, and we did not. and likely won't until another case comes their way. Start audio 00:39:04.024 --> 00:39:15.050 Mary Anne Franks: She's pointing out that the court is abdicating its responsibility. Right? That the the anchor that you're supposed to provide through judicial interpretation is something that the court seems absolutely uninterested in in providing. 00:39:15.270 --> 00:39:19.000 Mary Anne Franks: and I think the question that that raises is, who's interest does that serve? Start audio 00:39:53.__ --> 00:40:05.020 stop audio Mary Anne Franks: it's meant to provide the court with the means to maneuver so they can get the political results that they want. So they have to leave it uncertain. They have to let the chaos rain because they want to be able to pick and choose. Start audio

00:40:16.___ --> 000:40:53.970 Mary Anne Franks: And if the Second Amendment case is brought by someone they don't like because it's always been kind of a a tricky position, right for this court? Because they don't like criminal defendants on the one hand, but they really love guns. So that's tricky. They also kind of love domestic abusers and stalkers. But you know, so how does all this fit together? Will they need enough room to be able to say? Well, depending on which way the political winds are blowing, we'll, we'll make the decision according to that again, the exact opposite of what they're claiming to do and exactly the thing they have accused liberals, progressives for doing with constitutional interpretation. So every accusation is a confession once again. 00:40:54.910 --> 00:40:56.229 Kelly Roskam (she/her/hers): Just balls and strikes. 00:40:56.470 --> 00:40:58.019 Mary Anne Franks: Just balls and strikes. Start audio 00:45:50.___ --> 00:46:05.____ stop audio Mary Anne Franks: So when you do history and tradition, no matter where it is, whether it's the First amendment, second Amendment or, or whatever else, you're just adding more power to the people who always had more power and making vulnerable communities more unsafe. And there isn't any way around that. Start audio 00:46:29.970 --> 00:46:40.120 Tim Carey: And speaking of saying the quiet part out loud, can the Bruen test ever really be made into a stable consistently applicable framework? 00:43:27.480 --> 00:43:49.319 Mary Anne Franks: And then Bruen comes along and people start to think of Heller as being sensible, right? Because Heller had some limitations in it. But what we don't realize, I think, until it's too late is that once you go down that path the court never rolls back, they never roll back their power, they always expand it, and once they've established something like a second amendment individual. It just gets bigger and bigger and bigger. It never gets smaller and smaller and smaller. 00:43:49.611 --> 00:44:08.240 Mary Anne Franks: So once you get to Bruin it. It's you know, what comes after Bruin is Rahimi, because it's more extreme, more extreme, more extreme. So maybe you get kicked back a little bit because this is an embarrassing case. But then, so the next case comes along. That's less embarrassing. And you're right back on radical track to just the most expansive interpretation possible. Start audio 00:44:14.___ --> 00:44:26.___ stop audio Mary Anne Franks: you look at Scalia's let list of obvious things that we could prohibit. And you think? Oh, those were the days, even though, even though we're talking about limitations on a right that you just made up. But but okay, at least there's some limitations on it. Start audio 00:34:33.___ --> 00:34:46.390 Mary Anne Franks: And what we saw right already in the wake of Bruen was immediately courts saying, we're not historians. We can't do this. We're not equipped to do this? Why would the test set us up as courts to do something that we are not 00:46:40.570 --> 00:46:45.299 Tim Carey: Seeing that Justice Jackson's questions that persist after this opinion. 00:46:45.820 --> 00:46:49.369 Mary Anne Franks: I don't think so. I I think what you get is.. Start audio 00:46:52.__ --> 00:46:58.___ stop audio Mary Anne Franks: ... the absolute certainty that if you have a chaotic doctrine that allows you to pick and choose whatever you like Start audio 00:47:01.___ --> 00:47:03.___ stop audio Mary Anne Franks: Whoever's in power will be able to use that. Start audio 00:47:22.___ --> 00:47:37.___ stop audio Mary Anne Franks: There was a time when we might have described what conservatives do in these contexts as hypocrisy and now it's something much worse. It's not, I want one standard for you and one standard for me. It's, there's one standard and it's the standard by which I went. If I don't win, then I change the standard. That's it. That's all there is to it. Start audio 00:14:06.160 --> 00:14:32.109 Tim Carey: what you've highlighted emphasizes just how fractured the court itself is on Bruen. Justice Jackson places point front and center when she stated in her concurrence that. And I quote this case highlights the apparent difficulty faced by judges on the ground make no mistake. Today's effort to clear up misunderstandings is a tacit admission that lower courts are struggling. In my view the blame may lie with us, not with them. 00:57:40.520 --> 00:57:53.359 Kelly Roskam (she/her/hers): Sure. Well, thank you, Marianne, for coming on the pod. It's so amazing to have your perspective. I've been a longtime fan of your work, and just so excited to have talked about this with you. 00:57:54.030 --> 00:57:56.580 Mary Anne Franks: Bailing is mutual. Thank you so much for having me. [Insert transition music] Start audio 00:00:04.740 --> 00:00:14.750 Kelly Roskam (she/her/hers): Wow! That was a truly insightful conversation with Professor Marianne Franks about the majority opinion, the concurrences, the dissent.