Stephen Gutowski 0:01 Exclusive details on republican efforts to block President Biden's connections and a conversation with Duke University's Jake Charles that more on this week's episode of the weekly reload podcast. Welcome ladies and gentlemen to another episode of the weekly reload podcast. I'm your host Stephen Gutowski, I'm also the founder of the reload Comm. This week, we're going to be talking about republican efforts to block President Biden's gun actions, a big rolling out of the Fourth Circuit, and an update on President Biden's ATF nominee and where he stands. First, we're going to talk a little bit about some exclusive stories that we've gotten here at the reload. two letters have gone out from Republican members of the House of Representatives to the ATF and DOJ trying their best to convince the administration to abandon its attempts to unilaterally and install new gun restrictions. The first was one from 37 Republicans in the House who are calling on the ATF to give up its proposal to ban ghost guns essentially, that's what the proposal targets on serialized firearms, unfinished firearms by expanding the ATF power to regulate what is considered a firearm in the first place. And so these republicans argue that that is a that is taking the ATF power well beyond what the statute that regulates firearms allows for and so they they say it should be dropped. And then you have the entire House Judiciary Committee Republican caucus calling on the ATF to drop their attempt at banning ar 15 pistol braces or at least pistol braces that are commonly used on air fifteens. They argue along the same lines that this is beyond the scope of what the ATF has the power to do. And they also asked the ATF a number of questions about the details of the proposal who came up with it? What agencies were involved whether the Office of Management and Budget for the White House was involved, or DOJ specifically looked at the proposal, they asked for clarification on a number of points that affect whether or not a brace is considered illegal or not essentially considered to be something that has to be registered with the ATF in order to remain legal, or otherwise the owner would face a federal felony and potentially years in federal prison. They don't register. So they've given the agency till the end of the month to reply with answers to their their questions. And we'll see how that goes. We'll see whether or not this has any impact on the Biden administration's thought process when it comes to these sorts of executive actions and how the ATF reacts to such a unified response from the party that could potentially win back control of at least one house of Congress and the upcoming elections here and once again, be responsible for oversight of have control over the oversight of the agency. You just saw in another exclusive story for the reload that essentially all the two of the republicans in the senate signed on to a letter regarding the pistol brace ban, saying it should be dropped as well, just a few weeks ago. So the republican party has absolutely coalesced around opposition to these actions from the bait administration. The the gun industry has certainly mobilized as well as the gun rights movement itself. You've seen over 100,000 comments on the pistol brace ban proposal that's going through this. Both of these plans are going through public rulemaking which means they have to accept public comment and respond to that public comment before the rule can be finalized doesn't necessarily mean that his comments are going to block the rules from becoming final. But you have seen in the past even with gun regulations like the attempt to ban so called green tip ammunition for ar fifteens and similar rifles in the past was blocked after overwhelming negative karma yo flood of negative comments came into the ATF in regards to that proposal under President Obama. So certainly the pistol Brace ban is perhaps approaching that level of a negative response and with unified Republican opposition to the idea, there may be some effect there. We'll have to wait and see whether or not the administration believes that the juice is worth the squeeze, I suppose you'd say in this situation. But at the same time, you saw President Obama or sorry President Biden's ATF nominee. skits reached another level of limbo, essentially. There hasn't been any change, which is interesting because he received a tie vote in the Senate Judiciary Committee 11 to 11. Vote David shipment is the nominee. He's a controversial nominee because he has a long history of supporting much stricter gun laws than probably most of the democrats in the senate support. Things like you know, the Solomons bans registration and even confiscation of certain firearms. And he's made a lot of controversial comments mocking new gun owners last year, pushing a conspiracy theory about helicopters being shut down in the Waco standoff, which is not true. And he spent a lot of time during his confirmation, walking a lot of those things back and apologizing for them. And additionally, promising he would not let his personal opinions on gun policy affect the way he carried out his job. If you were to get the ATF director position. Democrats argue those who support him argue that the agency needs a new director because it hasn't had a confirmed one in so many years at this point. But republicans say that he's too extreme and that he's an active means literally, gun rights guy. He's literally a gun control activist. He works for Giffords, which is one of the major gun control groups. He still works for them. He's worked for a number of control groups since he left the ATF about a decade ago. And so they don't they don't want an activist in control of a regulatory agency that is supposed to be neutral and nonpartisan. So that's where the rub is. And it turns out a lot of democrats are still on the fence about this. You've got Joe Manchin has not come out and said whether or not he would vote for Chipman. You have angus king in Maine independent there who has this in the same situation. Yet john Chester's office told me specifically that he has not made up his mind yet, on Chipman. And you've seen all of the republicans now come out in opposition to him because Pat Toomey of Pennsylvania, who obviously has been involved with push to expand background checks to private sales with Joe Manchin in the past. He came out this week and said he's not going to vote for Chipman, Susan Collins already said no, I believe every republican now is going to vote no on shipment if he's put up for a vote, which remains to be seen. So that means they'll have to corral all 50 democratic senators to get his nomination through and right now, they don't have the votes to do that. Or they would have already scheduled it they as soon as Chuck Schumer, the majority leader knows he has enough votes to get Shipman through, it's almost certain that he will move quickly to do that. And so at the same time, the Minority Leader Mitch McConnell could put him up for a vote as well, if he knew he had the votes against him. Although that seems like a less likely scenario, because you don't see the minority party trying to challenge you know, confirmation vote like that very often. Usually, if there aren't the votes, it simply gets dropped and never comes up for a vote. Like you saw with President Trump's a pf nominee when he ran into trouble for his past comments on on gun control as well. But so that's still in the state of limbo. And for longer, it stays in a state of limbo, the more interesting it'll it'll be to see whether or not he can actually get 50 votes. So then we also saw this week, a big ruling out of the Fourth Circuit, where the ban on sales of handguns to people between the ages of 18 and 20 was struck down as unconstitutional as conflicting with the Second Amendment by a Appeals judge in the Fourth Circuit, which could have major impacts going forward. For now, it's likely to be appealed to an unbound hearing of the full court of the Fourth Circuit which I think most onlookers expect are less likely to come out on the same with the same decision striking down the prohibition on selling handguns to young adults. But if it does survive that, or if the Supreme Court takes up the case, you could absolutely see a major shift in not only federal law, which is directly implicated here, there's the Gun Control Act, bans, licensed dealers from selling handguns to young adults, although they can still buy long guns, and they can still possess handguns and buy them in private sales or have someone buy you know, give them a handgun as a gift. You simply can't buy the gun directly from a dealer under the wall. So if that goes away, you could also see a number of state laws affected by this down the line because there are several states that ban certain classes of weapons from ownership by young adults, purely based on their age, including in California and even more recently in Florida. After the Parkland shooting, they banned young adults from being able to you know, quote unquote, assault weapons, or ar fifteens. And, and the like. So this ruling could have a big impact down the line. It's a fairly major religions believe it's the first time a district court has held that the ban on sales of handguns to young Americans is actually unconstitutional. So we're gonna see where that all rolls here, going forward, and make sure to stay on top of it for you guys ever to reload. But coming up next, we have a interview with Duke University's wonderful director of their center for firearms law. Jake Charles, who discusses more about some of the Federal federal litigation that's been going on lately, specifically, the California assault weapons ban case. And we talked about some of his objections to the language of the ruling or the way the opinion was written, which I think he has some interesting points to raise. But we also go back and forth about, you know, his point of view on it. Certainly something I think that's going to be a little different than what you might hear on other gun podcasts. So I think we get into a very fruitful discussion. And I think it's going to be illuminating. So here we go. Right now, you're gonna head over there and check it out. And we're here with Jake Charles from Duke University. Jake, thanks for being with us. Today, I wanted to bring you on to the podcast to discuss a different point of view than I think a lot of my listeners will have heard to this point on the Miller versus Bonta decision out of California on the striking down the assault weapons ban, they've had their since 1986 1989. Right. But this ruling is a pretty significant one, it's the first time a district court has struck down a statewide assault weapons ban. I mean, it's really only eight of those in the country to go after. But this is the first time you've seen one struck down at this level in the federal courts. So it's very significant deal. And I thought you had an interesting analysis of it, some critiques of it. And I wanted to get your point of view on the whole decision and why you have issues with it. But first, can you introduce yourself and tell us a little bit about your background? And a little bit about what you do at Duke University? For any listeners who who haven't heard of you before? Jake Charles 13:51 Yeah, absolutely. So first of all, thanks for having me on. I'm really delighted to be talking about this case, like you said, it's a really important case that as some big implications for a second and a doctorate and also for the status of gun laws in California and across the across the country. As we see the the case getting appealed. So I am the Executive Director of the Center for firearms law at Duke law school. The Center for firearms law, was started in 2019 by two faculty co directors, Joseph bloquer. And Darrell Miller, who've written a lot about the Second Amendment and in the writing about it. Since the day Heller came down when we first got a reinvigorated court doctrine that could be discussed in constitutional law casebooks and kind of across across the whole realm of legal legal Academy. And so in my work at the center, I focus my scholarship and research on the second amendment and the regulation of firearms through both statutes and through the constitution and through the criminal law as well as through civil regulatory mechanisms. And yeah, we are at the center, we host conferences and colloquia And symposia, bringing scholars together with practitioners to discuss the Second Amendment and the kind of burgeoning legal doctrine that surrounds it. Stephen Gutowski 15:10 Wonderful. And obviously, I've quoted you a number of times and stories that I've written over the years as a legal expert on on second amendment litigation and laws. And, and you obviously study a whole breadth of firearms, regulation and law across the United States, and at the federal level. But I thought you had a pretty interesting critique of this ruling in particular, where, you know, from what I've seen, on in a lot of conservative media, of course, there's been quite a lot of praise for the decision, not just because of the outcome, which obviously a lot of gun rights activists, like, of course, because it strikes down California is so opens ban. But also, there's been a lot of praise for sort of the open nature of is this sort of easily digestible nature of this ruling that's written in a way that the average person can understand, I guess, what the judge Benitez is getting at with this decision, it's laid out in a way that's really something that just a normal person can read and at least understand the arguments, whether they agree with them or not. So that that I think, has been the universal praise that I've seen on the right for this decision, in addition to, you know, the belief that it's correct on the, the merits of the case, but you brought up a number of critiques for the way that judge me does handle this case, including, I mean, obviously, there's been a lot of focus on some of the the metaphors that he employed as a Swiss Army knife, one, in particular got a lot of gun control advocates upset because they don't like the concept of comparing a rifle to a knife or utility knife, I guess was the point there. But your critique goes obviously a bit more in depth than that surface level critique about metaphors being used. Can you explain sort of your main objection to the way that Benito has laid out this this particular ruling? Jake Charles 17:31 Yeah, for sure. And so maybe I'll I'll start with kind of the stylistic or rhetorical critiques, which would you know, I've written about on the center runs a blog called second thoughts in which I've written about this case in a lot of other cases. And so the concerns I have about the style and the rhetoric, I just want to first say, one, they're not connected to the outcome of the case. So I have not made these kind of stylistic or rhetorical critiques and other decisions that strike down laws like the DC Circuit decision and rain, even the ninth circuit's decision by Judge Lee affirming judgment, he does his decision striking down California, California has large capacity magazine ban. So so it's perfectly fine with me to see a court decision striking down a law under second and grounds. That's not what I take issue with in this opinion. But what I take issue with in this opinion is and just a second caveat, I understand why gun rights supporters would, would be cheering this it speaks in the language of the gun rights community, right. And so for folks living in California, and thinking that ever more and more restrictions are being laid on their right to keep and bear arms, I can understand why you feel vindicated by decision that speaks in that language to me, if not effective as kind of a persuasive strategy, right. So folks who are not already going to agree with the outcome of the case are not going to be persuaded by the tone and the rhetoric that judge Benitez uses. And you know, just a few. A few things. To give illustrations of that, that I think are kind of unnecessary. In the way that judge Benitez talks about the opposing side or opposing positions. You know, it he'll say, you know, the Attorney General Snyder's as opposed to just the Attorney General says are the Attorney General argues he'll talk about things as a bromide or this myth, he talks about the media drumming up, you know, false claims, and it just it comes off to me less like a normal judicial opinion where one is weighing the facts and the evidence on both sides and recognizing that, even if you think the outcome question is easy, that there are kind of sincere arguments on both sides. So the way I read the opinion is This is saying, hey, gun grabbers y'all. Y'all are just wrong. And you're just doing this because you want to exterminate the Second Amendment, not because you have legitimate concerns about public safety. And even if you're doing so in a way the constitution doesn't allow you're doing it in good faith. It doesn't read to me, like judge vetoes things California has enacted its regulations. Stephen Gutowski 20:21 Well, I mean, and obviously, there's quite a lot of people who probably would agree with him on Oh, yeah, certainly. Yeah. And so yeah, I guess the question here is whether the, with the at least the stylistic approach to how judge Benitez wrote this opinion, whether he was trying to persuade people in the middle or on the, the pro ban side of things, or whether he's just sort of, I guess, fed up and not gonna take it anymore? Jake Charles 20:50 Yeah, yeah. Yeah. So he's had a number of these cases. I talked about the LCM case, he's had a couple other cases. And so yeah, he might just say, like, I've heard these same arguments, I found them on persuasive before, and I find them on persuasive now. And, you know, I'm done. I'm done, given the benefit of the doubt to the state of California, and I'm just gonna say, I'm just gonna lay it out here. You know, what you're doing is not okay. Stephen Gutowski 21:14 But you ultimately find that to be perhaps a detriment to what he's trying to accomplish, Jake Charles 21:21 you know, kind of personally, and as a matter of judicial style, I think that's not the most effective way to write a judicial opinion. Because, you know, like it or not his opinion, is going to be binding on people who disagree with it. And so, you know, to the extent that one one key element of laying out the reasoning of your ruling and additional judicial opinion, as opposed to just an order that says this law is unconstitutional, here's the order go serve it. The one of the rationales for writing out your decision is to, you know, enhance rule of law values and enhance public respect for the law. And to give the losing side here here, I analyzed your arguments, and I found them unpersuasive for these reasons. And so but he, I mean, he Stephen Gutowski 22:07 does that's one of the key I certainly just whether or not he does it in a way that is going to be, I guess, I guess your your issue with his stylistic approaches that you don't feel that it can reach people like you or like, you know, an average person who isn't already convinced that the gun that the Solomons ban is unconstitutional. You don't think it's going to persuade those people? You know, because I, you know, you read the opinion and I do agree with the general take that it's, it's a fairly easy and approachable opinion for the regular person to read through and have an understanding of where he's coming from. And why he decides things he does is certainly is a bit of a bomb throwing opinion, which, which obviously, excites a lot of people who, you know, I agree with the outcome. But could certainly turn people off. Obviously, there's the you have, I think the critique of the Swiss Army Knife thing is kind of that really overblown. It's like the first metaphor. It's comes comes like, Oh, we read the first, you know, page. First metaphor, so we're upset about that. I do also find it somewhat ironic to have people complain that he's comparing an AR 15 to, or he's comparing a Swiss Army knife to a military style weapon, which is ar 15, which, in reality, like the only of those two things, only one has ever been employed by a military which was, which is the Swiss Army knife. Not to not to get into the debate about effectiveness of the weapon, or anything like that. But I just find it sort of ironic your the way that the governor of California, Newsome made this overheated statement in response to the ruling, but obviously, there's also things like the back the weird vaccine comparison in there, he makes some sort of claim about vaccines have killed more people than rifles do. Yeah. Which is very odd. I don't know if that's a typo or just a complete misunderstanding of obviously there's been a meaning conservative in some parts of the for the further right media that says vaccines are killing people because a complete misunderstanding of how the back the adverse effect effect reporting system works doesn't there's been no proof that vaccines have killed anyone. There. People have died after at some point after they took the vaccine, but there's never been any causal proof at all that vaccines A handful have killed anyone. So yeah, there's obviously a few of the sort of metaphors he uses don't really hold up very well and could be alienating, like the vaccine one in my, in my view, but I guess your style is that stylistically is one thing, right? That is the, the real important thing about this ruling is whether or not it stands up on the the core of the case, the merits of the case, and whether or not his reasoning is likely to be adopted elsewhere, because that's when you can see this case, really having a long term impact. Because if the Ninth Circuit doesn't adopt his his line of thinking on the core issue of whether or not solchen span is unconstitutional, or the Supreme Court doesn't ultimately adopt it, then it's really not going to have any practical effect in real life. Especially now that the emergency state has been granted to hold up the enforcement of this ruling until the the Ninth Circuit gets around to hearing it so that you also have obviously, some more important critiques. I think beyond the stylistic approach of Benitez and whether his rhetorical flourishes are too much or whether he's wherever someone comes down on if this ruling was written, well, to help the average person understand the reasoning, or if it was written in an overheated manner, that's going to alienate people who don't already agree with the idea that the Second Amendment protects air fifteens and, and other kinds of firearms. What really matters long term here is whether or not his legal framework is going to be influential or is persuasive and will be adopted elsewhere. So what are some of your thoughts on? Jake Charles 27:01 And I'll say? Yeah, so also, I have critiques of the substance, some of the reasoning, I am much more comfortable saying that the outcome is clearly within the range of reasonable disagreement on second amendment questions. So almost to the extent that I'm more, I guess, my kind of more critical style and tone because I think it is a really important constitutional question that I am of the substance. So there are some things about the substance that I think are debatable, and I might come down one way on them. Whereas judge penis came down another way, but I think, kind of the substance and the the rationale for getting there is well, within what's what's debatable and secondary, Stephen Gutowski 27:49 so you find the substance is actually more defensible than the style of the ruling. Right. So that Jake Charles 27:58 that's what that's what I was saying, you know, I recognize that other people will disagree with that. And other people will say, style doesn't matter at all, you know, all the matters of the alt right. You know, for me, yeah, I think, you know, I think it does, but, you know, obviously, styles not binding on anybody. It's only that kind of that. Stephen Gutowski 28:14 Yeah, but I think it's still there's an interesting discussion here that you brought up in both of your pieces on on the ruling, as to some of the implications of the way that Benitez gets to the finish line in this argument. Obviously, he, he really takes a couple different approaches, I guess you could say throughout this ruling, you see this occasionally. Especially I think, when a judge anticipates that the next level of review is not going to be friendly towards his, towards his reasoning. he could, he can try to adopt a couple different standards of review, to go through them all and say, Look, even if you look at it in a different way, it's still going to be an unconstitutional law. And so Binney does does that in this case, and he does. He goes through at least two different things, maybe three, I guess he could pull out of there. Can you can you just walk us through your view of them? You just lay out the three that that you noticed in some of the issues, maybe we can take them one by one, I guess? Jake Charles 29:24 Yeah, yeah, absolutely. So the first kind of test that Judge vinita supplies is one that he also applied in the LCM case, and he calls it the simple Heller test or just the Heller test. And this is for judge Benitez. If this is maybe one of the things that I take the most issue with on the substance, where Judge betas takes a test from Heller. That he says means when an arm anything that qualifies as an arm under the Second Amendment is in common use by law abiding citizens for lawful purposes. That is And query of whether or not the state can regulate and or ban it. Right. And so, without respect to whatever the state's interest are, how nearly tailor this is to the interest, normal kind of inquiries that we see in secondary cases, in particular, and then in constitutional law, generally. And so, you know, I take issue with this, because I just don't think this is the best reading of the Heller decision, or the best kind of way that you would synthesize how second member doctrine is developing in all the other courts of appeals. And so to the extent that coherence in the doctrine is something that's important, and you know, to me as legal scholar like, when we can, we can say what's going on with the doctrine in the secular space. This one is an outlier for that kind of reasoning. That doesn't mean that this current Supreme Court might not adopt this reason. I just don't think that's currently where the doctrine is, or the or the best reading of Heller. Right. And that's the case because Heather was dealing with one particular type of ban on one particular type of weapon. And it would have been easier, it would have been easy for the court to say what judgment this takes to be the simple test. And the court says expressly in Heller, we're not setting out any particular standard here. There's going to be time enough for us to get Yes. Stephen Gutowski 31:23 I guess that's the problem with Heller. Right. I discussed this with David French on a previous episode podcast, then. I mean, Heller is a compromise ruling, it doesn't really lay out a clear standard for how Second Amendment cases should be adjudicated going forward. It just kind of says, Well, this handgun ban is certainly not constitutional. At the very least, the second amendment means anything. That means that you can have a handgun in your home for personal protection, because handguns are, you know, the quintessential self defense weapon right now. Obviously, the easiest way to read Heller, and then get a simple test, like what Benitez tries to do here is just going by a common new standard. Yeah, certainly this court doesn't say this is how all Second Amendment cases should be decided. But you can read the text and and think well, that's at least one takeaway that you could have. Certainly, I understand where you're coming from in the sense that it's not. It's not what the court says, should be used as a standard for other cases, because the court doesn't really do that at all. Which is why we have this Yeah. At least from a gun rights advocates point of view this this last decade of gun litigation, where the court just sort of ignored the whole issue after Heller McDonald. You know, Sanatana was just kind of reaffirms the idea that it's not just limited to 18th century weapons being protected. But otherwise, the courts kind of abandoned, its, its foray into second amendment litigation. Now, obviously, it's this, the latest case will likely result maybe not, I will say will likely result in some more clarity on the issue. But I mean, they've been doing first amendment cases for how many centuries now? With the Second Amendment, they have got it like, if you count Miller, which Benitez does certain tests in a certain way? They've only been doing they've only had what, four cases? And most of them don't result in any sort of like McDonald is just incorporating Heller to the state's standards. Yeah. So Trina just says, what we said in Heller is still true. So you've got one Miller maybe counts as a second one, but no, he doesn't really talk about much other than just that short barrel shotguns aren't protected by the Second Amendment. Because they're not suitable for military for military use. And that case, you know, there's a lot of issues with that. But yeah, I mean, I guess, if you're, if you're looking at Jake Charles 34:29 how did you, yeah, there's a way to read Heller. To get that I don't think that's the best way because in my view, what Heller is doing in that portion, where it's talking about common use is it's juxtaposing weapons that are outside protection of the Second Amendment dangerous and unusual weapons. And it's saying the opposite will be weapons in common use. And for me, that's the question of whether you get second image scrutiny at all. So the similar to when we think about a First Amendment case, and we think about something like say securities fraud That's just considered outside the scope of the First Amendment, it doesn't get first amendment scrutiny at all. Whereas if we're talking about a political campaign donations, then we're in first amendment land. And then we apply a level of scrutiny. Right. And so for me, the common use test is to the extent that it's a useful test, and there's some useful parts of it, it's the same kind of thing. It asks the question, are we even in second amount land? Are we getting second image scrutiny? And so we look at something like a hand grenade. And we might say it's not uncommon used by law abiding citizens for lawful purposes, so it doesn't get second scrutiny at all. Whereas a move to stun guns, it is in secondary land, do we move to the scrutiny step? And so that's why I see it's still being a function of the two part framework as opposed to a standalone test that's going to handle the inquiry. So Stephen Gutowski 35:47 what was the second? In your ideal reading of Heller? What, at least here in your reading of Heller, what would the second step then be? after that? Jake Charles 35:57 Yeah, so I think I think Heller leaves this open. And I think that with the way that this lower courts are doing, it makes a lot of sense, to my mind. And so this is, step two, are moving to the second kind of line of argument of judgment. This is opinion where he goes on to, you know, he says, The Heller test is my preferred test, and I'm gonna analyze it this way. Vinny says, I recognize the ninth circuit's adopted this two step framework. So I'm gonna move on to the two step framework. So in the ninth circuit's two step framework, step one is this coverage question and it asks, does the LOD issue burden conduct that's protected by the Second Amendment? And then if the answer to that question is yes, then you move to the second step where you apply some sort of some form of means and scrutiny as to some way where you're testing whether the law issue is tailored enough to the government's interest in regulating that activity. And so I think, you know, I think that Stephen Gutowski 36:54 makes, you know, makes isn't that the kind of balancing test that Heller warned against using in segment in the cases? Jake Charles 37:03 Yeah, so there, you know, as you well know, there is this heated debate about whether or not what the courts of appeals are doing is the version of justice breyers dissent that the Heller majority expressly disclaims and it says, you know, we, the second is not subject to a free standing interest balancing test. I think there are a couple important responses to that. But I'll be the first to say that Heller is really unclear here on whether this kind of scrutiny is consistent with what it envisions for second amendment cases. So one response to it is, you know, the Heller court expressly disclaims justice briars test on the grounds that it says we know of no other enumerated constitutional right, who is subject to this kind of test, that that it could not be talking about scrutiny that if it says that because first amendment claims are subject to intermediate scrutiny and some context and strict scrutiny in other contexts, so, you know, that's just one context, the First Amendment, you know, obviously, there's other other constitutional rights, other kinds of doctrinal frameworks that implement them. But sort of guide you one of the biggest rejoinders is just if Heller meant to say that Justice Breyer was proposing just normal tiers of scrutiny that it uses in the First Amendment context, than it should have said that was off the limit off off off the table, too. But what it says was, it's a free standing proportionality interest balancing test. That, you know, if you look closely at Justice breyers opinion, there's some relationship there between that intermediate scrutiny for sure. But he's not using the language of intermediate scrutiny or strict scrutiny. He's not using the language in his dissent that the courts normally use in first amendment context. And then the court of courts of appeals have been using and second, I'm in context. Stephen Gutowski 38:58 Right. But either way beneath has comes down. on that second step, the Solomons been bailing that second step, anyway. Yes. What do you think of his analysis in that in that department? Jake Charles 39:14 Yeah, so I think, kind of in the two stages, one, what's the burden? Isn't the burden on protected conduct? I think, you know, there's, you know, kind of there's this business conundrum and a lot of these questions about, about assault weapons bans, because, you know, they are based on these huge, I guess, not all cosmetic features, but features that are not making the weapon necessarily more deadly. Right. And so, one of the questions is, what's the government's interest in regulating? Let's just call them cosmetic features? What's the government's interest in regulating cosmetic features? The other the flip side of that is, you know, what's the constitutional right to In a cosmetic feature, so if the weapons the same, then what's kind of what's the burden on the protected? Right? So I think, you know, the way that judge Benitez resolves it is, you know, a perfectly reasonable way to resolve and says, you know, this is a burden on protected conduct. And then he does, you know, he says this is the most severe restriction, because it's an absolute ban. So it should be categorically unconstitutional. And I'll just say, you know, one other stylistic thing here, he says, no other courts ever done this test before. But you know, that's incorrect. The DC circuit and ran when it struck down, DCs may issue handgun licensing scheme, did the same thing and said was categorically unconstitutional, because it was a complete ban. So that is part of the doctrinal framework, right? One, you know, either it's so severe, it's a total prohibition, and in which case, we're not going to apply any scrutiny. If it's a less severe burden on a core right, then we're going to apply the strict scrutiny. And then if it's a lower burden, or if it's not the core of the right, then we're going to apply intermediate scrutiny. And as you say, judge me if goes through each of those levels. And so just focusing on intermediate scrutiny here, which is what kind of all the other courts of appeals that have looked at these laws have done. The question there is whether or not this is a reasonable fit with the state's interest. And, you know, one kind of one criticism that I have of Judge being as here is in the formulation of what the state's interest in regulation is. And he describes it narrowly as preventing gun crime. And, you know, to me, and I think I looked the briefs and, you know, this will be in the state of California if it didn't raise any broader interest. But states can have broader interest in regulating guns that are not only in preventing gun crime, right, it can have an interest in regulating guns, because accidents, it can have an interest in regulating guns because of commit suicide, it can have an interest in regulating guns, even and at his most controversial, it can have an interest in regulating guns, because, you know, it thinks that that's makes for a society where less people are less fearful of going out and doing different activities. So, so if you said judge Benitez does, and if you do define the interest narrowly as crime reduction with guns, then the evidence that you're looking at is good, it reduced crimes with guns. And so if you have a broader public interest and a broader base of evidence that you're looking at, and then how Judge beetus deals with the evidence, you know, I think that this is an area where it's fair to say that there are really compelling statistics on both sides of it, and experts with PhDs and economics, who have reached diametrically opposed conclusions on whether or not assault weapons bans do anything. And so, you know, as Judge mitas as the Trier of fact, in this case, he can make the factual conclusions that, you know, he sees fit to find based on the record before him, and so, you know, whether I would have come to a different conclusion or not, is kind of irrelevant. He's the Fact Finder, he's looking at the evidence. I think it's, you know, I think there's, you know, there's enough out there that you can support whatever point you're making. Yeah. Stephen Gutowski 43:26 Beyond that aspect of it, because certainly, you could argue one way or the other. I mean, obviously, it's fairly clear that assault weapons, as defined in California, being mostly rifles aren't a major driver of crime. Certainly not for gun murder, or murder. Generally. If you're looking at the FBI statistics, which obviously the binita has notes in, in his ruling, but you're more interested in the philosophical aspects of some of these things. So, because beanitos gets into Miller, and as you wrote, sort of resurrects it, in a certain sense. Whereas Hillary had gone away from the idea that the right the Second Amendment is connected to militia service. Obviously, the right itself, as as written, I think is fairly clearly not predicated on militia service. It's sort of justified perhaps by in the the text of the amendment by the need for a militia for, you know, the security of a free state but the right itself is isn't in any way. At least not in the text. predicated on that service, but, but obviously, Miller came down on the idea that well, the guns too To be protected, they have to at least be useful in a malicious service, because there's so there's a justification connection here between the, the right and the malicious service. And then Heller sort of said the exact opposite. It's like, well, maybe when this was written, you know, it was useful. It was intended to replace militaries. And what, you know, we obviously, there's a whole conversation we had about the founders views of standing armies versus militias, and an armed populace, and so forth. And, you know, I talked fairly extensively about that with Charles cook, and podcasts. But But Heller ultimately says, it doesn't really matter. If you're, you know, 1911, or your your Glock is useful in throwing off a modern tyrants. Because the rights, the actual right is disconnected from the preparatory clause that just sort of explains why the founders thought this right was important. Rather than makes the right rely on on that idea to exist, right. So whereas Benitez in Miller, store goes back to this militia service concept, when he's justifying why a ban on ar fifteens and other rifles that would actually have a dual use this is where the the whole Swiss Army Knife metaphor comes in is that like, it's useful for home defense, but also useful for essentially, throwing off land. Yeah, the fence of the people, I guess, as a as a concept, like the philosophical revolutionary concept of being able to resist tyranny. So it has this tool use both well, and then I believe he also talks about its use in, you know, competitive shooting, and things like that as well. And so it has all these uses, but one of them that he zeroes in on is this use as a tool in potential military service or revolutionary service or armed resistance to tyranny. So that's sort of a interesting wrinkle to I think his his talk, one thing that I think, frankly, from my point of view, gets ignored quite a lot. Heller is a good example of it, where, you know, the President himself and again, I talked about this with Charles cook, but sort of mocking the whole concept of the founding founding era, which was that you could through armed resistance of the general populace, you could throw off a tyrannical government, if need be, and that you, in fact, had a right to do it. And that the Second Amendment is part of that, because a lot of the a lot of Heller just focuses on this quintessential self defense weapon argument, but like handguns are important because their people use them to defend themselves, you know, from criminal Ingress, which is true, of course, but sort of brushes aside, what was, I mean, to me, is kind of the core of what the Second Amendment is in the bill of rights for. So, you know, I thought that was interesting that Miller there that. Benitez in Miller talk talks about this point, and brings it back up. What do you think? Are some of the issues with that? Or? And do you think that's going to be something that stays as like? are other courts likely to get back into discussing this concept? Yeah, so I think Jake Charles 49:17 I'll agree with you on the history, I think, you know, that kind of the most accurate reading of what the mindset would have been of the folks who were sitting around thinking of the second minute and 1791, where that they didn't want standing armies. And so the best way to not have a standing army was to have citizen militias. And the benefit of citizen militias was that you're not going to terrorists tyrannized a people because you're not gonna have a military force to terrorize them with you're gonna have a citizen militia that's going to be staying up to you with arms if you attempt to terrorize the people. Plus, if you're going to do defense, broad or you're going to do a defense of your homeland, you're going to want the citizens who are you know, connected to their homeland and finding for their homeland, as opposed to what the founder is, would have thought as a mercenary army as a standing army who didn't have kind of the same connections to, to America. Stephen Gutowski 50:10 Right. And obviously, things have evolved quite a bit round perceptions of military service and standing armies now are quite different than they were in the founding era. But I mean, they had just completed a war successfully completed a revolution where armed militias have made up of, you know, average people helped to win that war. Obviously, they had a regular army in addition to that, but but, you know, it just seems sort of odd the way that we approach it now. In the 21st 20. Yes, the 21st century, right to the 22nd century quite yet, but but but yeah, in terms of Yeah, I mean, in terms of this, it just seems like something that we don't talk about much in the jurisprudence of the Second Amendment now. And to see it brought up by Benitez i thought was pretty fascinating. Because it's just kind of this ignore thing. And then Heller, it really like that skill, it really just completely dismisses the idea. When that felt to me, like kind of a going back to that whole compromise ruling aspect of Hell, I felt like a way of saying, Oh, we aren't going to we're not striking down the National Firearms Act. That's what it felt. Because it's like, yeah, you know, it deals with Yeah, small arms that would be useful in military service. And so, you know, when he writes that section about em sixteenths and, and how, you know, the those are, it's okay to still, you know, we're not casting doubt on regulations of those. It just feels like kind of a cop out like this thing about, well, maybe when this segment was written, you know, it had this component to being useful in you know, armed resistance to tyrannical. militaries are tyrannical governments, but oh, well, that's, that's sort of the vibe, the Joe Biden line of like, now you'd need an F 15. a nuke to fight the government. It's like, one, is that even really true, as we sit here pulling out of Afghanistan today? And to like, I mean, it presents, I don't want to get too far off track and talked about this in the previous podcast, but he presents a kind of nihilistic view of the world where basically, it's impossible to ever overcome. A tyranny and modern tyranny. With armed revolution is essentially the argument how, because I guess technology is advanced too far. And tyrants can just do whatever they want. And there's no way an armed populace could stop them. But it's sort of you'd think there'd be more thought put to it in the litigation, at least. Yeah. Jake Charles 53:07 Let me say one word on Heller. And then I'll say, what I think of Judge Benitez but I do think is a resurrection of this Miller rationale. So in Heller, you I think you're absolutely right. And I think, you know, the, this was called the insurrectionary theory of the Second Amendment, and it was invoked for a while, as the Second Amendment started being rejuvenated in scholarship in the 80s, and 90s. And there is some good writing by a law professor named Riva Siegel, that talks about how what Heller was doing was taming the Second Amendment and making it kind of more palatable for a 20th century 21st century audience. Because what's happening in the mid to late 90s, that the militia movement is getting a lot of bad press right. And so in order to distance itself from the militia movement, that is challenging government authority, Heller turns and says, it's a self defense, right? It's not a right to resist tyranny. And so that, for first and second clauses of the Second Amendment are dealings and Heller can say, It's alright, if we don't match these up anymore. That's just changing historical circumstances, or we're not changing the core of that right, which is self defense. I think it's very unlikely that the founders were concerned that the states we're going to eliminate the right to self defense, right, there was a common law right to self defense that was not being threatened at the time. But they did have experiences with, with monarchs and tyranny and tyrants, disarming the populace. But, you know, Heller vindicates the self defense, rooted Second Amendment right. Judgment itas is reading of Miller. You know, if all you have is Miller it's not a bad reading. I If you have Heller, it's really hard to square. One. It's hard to square Heller Miller in the first place. But to it's hard to it's hard to really get this militia right out of out of Miller post Heller, because it's To me, it's impossible to say that you have a militia right to an AR 15 and not in a militia right to an M 16. Right. You know, how is the militia right, the judge Benitez vindicates gonna draw the lines that Heller draws. And so you might just want to say that Heller drew the lines poorly. But if we're going to accept that Heller is kind of a law here, it's really hard for me to say that there's going to be a militia right to a certain weapon that's going to be vindicated in court. And you know, that, you know, kind of getting back to the tyranny notion. You know, I think the founders, yes, whatever, recognize the have a right to rebel against a tyrannical government. I think it's more tricky whether they would have thought that's the kind of right that you go to court to vindicate though, you know, it's the declarations, like we appeal to the judgment of mankind for our actions. So it's kind of like you have a higher tribunal when you're exercising this kind of right. Yeah, if the government's are tyrannical that you got to take up arms against that, it's, it's kind of odd to think I'm going to go to their courts and ask their judges to adjudicate it Stephen Gutowski 56:19 right now. Certainly. But that's, that's where Charles cook had a really good point on this, which is essentially that like, I think it was New Hampshire, perhaps had a clause in their constitution that enshrined the right to revolution. But no, I think Tennessee does, too. Maybe, right. But no right to keep in bear arms at the same time. And so it's sort of this pointless? Just think it was medicine called them like, you know, paper, paper or parchment barriers. Yeah. Like the, the concept is that the right to armed resistance against tyranny exists. And so the way to protect that is by practically allowing the armed populace to be armed, I guess, is the basic concept right there. Like as far as like, yeah, it's hard to go to federal court and prove your, you know, your revolution against the federal government was protected by, you know, the Constitution, but it's a different thing. When you're proving that your right to own firearms as a populace. It can be protected, better, that the actual practical application of it can be protected better than, you know, this philosophical concept of the right to armed revolution against tyranny, right to throw off turns. Jake Charles 57:50 Yeah, I agree. I just think that kind of whatever underlying value we're gonna ascribe to the second amendment is going to drive a lot of questions about, you know, to which arms that applies what the government has to show. And so if, you know, if anti tyranny is the under girding rationale, then hard to see how any kind of restrictions, you know, on weaponry in general, Stephen Gutowski 58:16 yeah. When I'm trying to serve weapons, small arms. But on an individual basis? Jake Charles 58:24 Maybe I mean, you know, I could see an argument for not drawing the line there. Right. If the militia is a collective group that's going to act in concert in the name of whether people rise up against a tyrannical government, and you think, you know, why not have all the weapons that they can have? And I know there are there are these genuine arguments that that a person should have a second have a right to whatever weapons the government gives it? So yeah. Stephen Gutowski 58:47 Right. I mean, I think that's something that the people who filed this Firearms Policy Coalition types. Yes, really, fairly philosophically, consistent on point. You know, I wouldn't be surprised if the response by a lot of people. Yes. At least within reason, you know, really? Yeah. Well, then I get Yeah, obviously, you're always going to have some argument over where the line is. But, I mean, it's certainly I think we're still at such early point in the litigation of of the Second Amendment and what it protects that we're still like that common use method, common new standard, is still very useful because, you know, hello, all Hello establishes that you can have the handgun, which is, as you know, the quintessential self defense weapon, as a category is extremely popular in the United States and universally throughout the state in the country. And you can't just completely ban the ownership of it within someone's home, but that that's what Heller establishes. It's not much it didn't really have much of an effect. In fact, the probably the most practical effect of the Supreme Court cases from Heller to McDonald's is Katrina to this point. And I always pronounce the treenode. I have no idea how to pronounce any I call it k tonic. Or we pronounce that name. We need more McDonald's. That's an easy one. Miller's not bad. But probably the biggest stupid districting down actual laws has had been with stun guns. Ironically, yeah, because there's not that many handgun bans to begin with, it was a very fringe policy to start with. But, you know, the idea seemed to be that they would build from there. And then they just really didn't do that. Until now, perhaps. But you still have a lot of firearms in places that are extremely popular that ar 15 is the most popular rifle in the entire country. And so, you know, that's where like, common use Yeah, it's, it's a flood standard, because like, what is, first of all, what's in common use? I, you know, but presumably, the most popular rifle in the country would qualify to any reasonable person. And then, you know, okay, this, so if it's in common use, it can't be banned. What, you know, does that you brought this up as a critique, obviously, that does that mean, if some new technology comes along, as long as they ban it early? That it's okay. Or, you know, there's, you know, several 100,000 machine guns in the NFA registry right now. Is that common use is if a man has got guns that Yeah, yeah. And obviously, some people would say, Yes, of course. Like I said that PC contingent would would certainly agree that yes, it should, perhaps I would agree. Yeah, certainly. But, but, but if Jake Charles 1:02:02 you're gonna make sense of Heller on its own terms, and Heller says, Sure, hell, there's hella guns out. And these one thing that how to make sense. Stephen Gutowski 1:02:09 And you can't really in a lot of ways, because here's a compromise, ruling, it's meant to get five people on board with saying at least the handguns, we can't ban, and then we'll figure out the rest some other time. And we'll put in some some stuff in here to make sure that we're not striking down all these laws that exist out there. We're just going after this specific law. That's all it does. And, you know, and you know, it creates a philosophical point that that matters. But But beyond that, it doesn't have a huge practical effect in the real world anyway. That's why I think this the common use standard still matters today, because you still have states that Yeah, maybe it's a minority position. There's only eight states with assault weapons bans, that hasn't been a new one since. Really, the, the 90s, Maryland, updated theirs in like 2013, and they've been a bunch of updates to the other ones. Maryland was probably the most significant expanding of it in 2013, because it went from like, a very small number of, of, I believe handguns to what you traditionally think of as an assault guns ban in 2013. But other it's a fairly stable pot, it's not growing, there's not more, more states aren't adding solvents, bans, but which makes it kind of ironic that we spend so much time talking about it, but it does, I will say that it does affect a lot of people, because some of the biggest states have, right California, New York, Massachusetts. And that's where like, you still have places that are banning leaving the most basic, popular, the most popular firearms out there. And so it's hard to as much as there are problems with that standard. It makes it useful in the short term in the transition to building out a broader, more more complex reading of the Second Amendment because like, we're still at such a bare bones level of litigation on the subject, that that's where these things come in, and like there's critiques of them, but but, you know, I mean, we still have complete and total bans on the most some of the most popular guns in the country is, I think, the big issue that you're looking at when you you read something like Miller, the the Bonta and go through like the standards that they put in or even Heller to write with, with Kavanagh, his interpretation of, of assault weapons bans and Heller that relies on text history tradition, it's like well, this is a really complicated standard To try and suss out what it means. But it comes down to this point of like, well, but I think a lot of people, especially, obviously, on the gun rights side of things, look at the current situation, some of the states and say, well, there's got to be something, but the second one, and it must be something here. You know, like, we're, there's got to be some line. And we haven't litigated what that line is yet, and maybe we're gonna who knows what the ultimate standard will be. But there's gotta be, there's gotta be something that that goes beyond just the government can ban literally the most popular guns in the country for any reason at once. I guess that's the rub of it. Jake Charles 1:05:47 Yeah, no, I, I can totally see that. And I think, you know, you see similar things, similar arguments with may issue laws, or, you know, functional low issue laws, in some places, say the same issue, the same thing with, you know, bans on those with nonviolent felonies that were 60 years old. So I think, hopefully, we'll get some more guidance when the Supreme Court decide this most recent case. I'm a little skeptical that it's going to give us all the answers to how we're going to decide the next wave of second moment challenges. You know, I think it's probably more likely than not that we'll see another kind of compromise opinion where, if, you know, if Justice Thomas was writing the opinion, it's gonna come out very, very different than either Justice Thomas for a majority, or whoever's running the majority opinion is going to come out. Stephen Gutowski 1:06:40 Right. Yeah, I mean, I guess that's the that's the thing about cases like Miller, you're gonna get a lot of very different standards applied to second minute cases until the supreme court does something to address it. And I mean, this is their opportunity, I suppose, with the gun carry case, and may because yeah, there's a lot of the same critiques of may issue laws. Like what does the bare part of keeping bear arms mean? If If you literally can't carry a gun in public at all? Like, it's the same? It's the same question of what is the bare minimum of what this could possibly mean, you know, doesn't mean that you have to have constitutional carry or permanent, loose carry, right. Maybe they don't go that far. But they've got to set some standard, because right now, like Hawaii, for instance, it's kind of funny that the New York, some of the decisions about what gets picked him up doesn't I mean, I guess there's a lot more that goes into it. Beyond just who has the most radical while but Hawaii, you effectively cannot carry a gun at all, ever. Nobody gets permits, they're like, at least the most of them, they issue states, they actually issue some permits. But I mean, you still have states in the country where it's literally impossible. For the average person, whether they have a clean record, or the most, they're the best train person in history to get a concealed carry license. And so, you know, just like with banning the most popular guns in the country from possession, a lot of gun gun rights, people look at that and say, There's got to be some standard, there's to be something, this must mean something. And I think we're still at the very early stages of figuring out what that line is. And I don't know, maybe the courts going to become more proactive now that they've taken up a case. On the core issue here. Yeah. But I guess I'm not holding my breath. Jake Charles 1:08:45 Yeah, I think I think you're right, both about the value of an opinion, like judge Benitez is, you know, aside from my criticism, oh, but, you know, the value of it is that the Supreme Court has not announced anything yet. And so the more fluctuation there is, and lower court opinions, the more theories that are out there and lower court opinions, the more the Supreme Court has a chance to look and say, you know, this is working, this is not working, like we actually try to apply this kind of doctrine or this kind of framework looks like it really leads to some odd outcomes, or, you know, this one leads to better outcomes. Now, one that's, you know, kind of one of the values that is, is pointed out for the lower court letting things percolate or the Supreme Court letting things percolate lower courts is it gets a chance to see what's working and what's not working. So, you know, several people are going to draw different conclusions about whether the doctrines working now or not, but the spring call, Stephen Gutowski 1:09:39 looks like they've been brewing this cup of coffee for 12 years now, though, already. Let me take a sip. So what what do you have coming up over at Duke University guys have any interesting stuff coming out soon here. Jake Charles 1:09:57 So we're we're in the early stages of planning our fall and spring symposiums and conferences. We're going to be doing some events around democracy and violence and guns and race in guns with a whole bunch of different perspectives on kind of how firearms function in our multiracial democracy. Stephen Gutowski 1:10:18 Wonderful. Yeah. Well, I would encourage my listeners to go over to your website and find some of those symposiums maybe they can attend or watch online themselves. Because I think it's important to bring in and listen to serious points of view that differ from my own. That's, that's why I wanted to bring you on and Have you discussed your, your critique of, of this law, because I'm sure a lot of my listeners haven't heard really serious critiques of, of the opinion. I'm sure a lot of people have heard this Swiss Army knife, freakout thing. But there's a bit more to look at with binita as his solvents been ruling and some interesting applications from it. And that's why I wanted to have you want to have this discussion, because I want to, I want to have the podcast be a space where we can get get people to come on and give their, you know, rational reasoned points of view that and really learn from them, and at least engage with them. And, and I think that's really beneficial. So where can people find you? Where can they follow you? What's the best place that listeners can go and read more from? Yeah, Jake Charles 1:11:32 so you can follow me on twitter at Jacob Charles can see and the Center for firearms law on twitter at Duke firearms law, and you can visit us on the website at firearms law.duke.edu. And we have a blog, you can subscribe to the blog, we'd, we'd love to get readers, we, you know, try to do our best at laying things out fairly. And when we have events, hosting events, we try to bring in folks with different perspectives on these issues. Because, you know, like you said, I agree with you that it's really important to hear multiple perspectives on such an important issue. Absolutely. Stephen Gutowski 1:12:04 All right. Well, thank you for being with us. I really appreciate it. Yeah, thanks. Alright, that's all we've got for you this week on the weekly reload podcast. Thank you for tuning in. I hope you enjoyed that conversation with Jake Charles. Like I said, the goal of this podcast is to bring reasonable people on from different points of view and hear them out, have a discussion with them. And I think we accomplished that in this episode. I hope you enjoyed it. Remember, members get this early. They get this a day early that comes out on Sunday with the members newsletter, which is also exclusive for members as you might realize from the name, but everyone else gets it on Monday. So if you want to hear this a day early, make sure you subscribe to the reload, go over buy a membership, we got yearly, we got monthly. You're gonna love it, you get a lot of extra content. And you get to support what I'm trying to build here at the reload which is of course sober, serious firearms reporting and analysis, something you don't get along with and elsewhere. So anyway, that's all we've got for this week. I really appreciate you tuning in. I will see you again next week. Unknown Speaker 1:13:14 All right. I gave him poison, just for fun. I had one friend. Now there's none. I made the devil right. I broke so many bones. But none of them were ever my own army. I was alone. I broke so many bows. Transcribed by https://otter.ai