How SCOTUS gutted our gun laws | Crooked Media
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June 23, 2022
Strict Scrutiny
How SCOTUS gutted our gun laws

In This Episode

Today the Supreme Court released its opinion in NYSRPA v. Bruen, saying that the constitutional right to carry a gun extends beyond the home. Kate, Leah, and Melissa break down the opinion and what it means for the future of gun regulations and states’ rights.




Leah Litman: [AD]




Leah Litman: Welcome back to Strict Scrutiny, your podcast about the Supreme Court’s selective enforcement of constitutional rights and some non-constitutional rights to. Where are your hosts? I’m Leah Litman.


Melissa Murray: And I’m Melissa Murray. Pew pew pew


Leah Litman: Are those lasers or guns? It’s Marjorie Taylor Greene’s space laser guns.


Leah Litman: Okay. Cool


Kate Shaw: This is going to be a mash up of the gun case and the yet to be decided environmental regulation or the limitation of environmental regulation case potentially? No, this is not yet. But I’m Kate Shaw. I don’t think I said that. We have a breaking episode for you today of course.


Leah Litman: This is a breaking episode because society is breaking.


Kate Shaw: Or if you’re Sam Alito, it is already broken. And that is why, as Melissa’s gesture indicated, we all need to be carrying guns everywhere all the time.


Melissa Murray: But before we get into that, though, I think it’s worth noting that today is Justice Clarence Thomas birthday. Pew, pew, pew. Those are celebratory shots. Yes. The kind of gunshots you hear on the 4th of July when you just fire them. Happy birthday. Justice Thomas. And we will note that this birthday boy has given himself a hell of a gift, the gift of an expansive and far reaching, unprecedented Second Amendment. Congratulations, sir. This really is self-care. Love it. Love it for you. So on Thursday, we got the Supreme Court’s long awaited opinion in Nice Cerpa versus Bruin, and just one day shy of the one month mark from the tragic shooting in Uvalde, Texas, that occurred on May 24th. And as the Senate is in the process of taking up the first meaningful federal gun regulation in 30 years, we had earlier speculated that this decision was long awaited, and it really didn’t have to be because it seemed pretty clear back in November where the court was coming out on this and perhaps the court reading the room after both Buffalo and Uvalde had resisted releasing this opinion so close to those events. But now that the Senate is sort of talking about gun control, it seems safe to release an opinion that makes gun control kind of pointless.


Leah Litman: Yeah, they got to put the kibosh on that immediately. I will engage in some rank speculation later on about what might have delayed this.


Kate Shaw: We’ll talk about this, I think the implications of this decision for other kinds of gun regulations later. But I don’t want to leave the impression that we think that this opinion, as awful as it is, imperils what the Senate is talking about. In fact, on federal gun regulation, I actually really don’t.


Melissa Murray: No, no, no. I just meant that the fact that they were talking about it, it was like, okay, we’re doing something now. We can release this opinion. The Senate’s doing something. We can release this opinion.


Kate Shaw: And there’s been no unbelievably horrifying mass shooting in the last 24 hours. So let’s strike while the iron is hot and get the opinion out. Elderly apparently has another theory anyway. As is probably clear, the court’s six Republican appointed justices adopted in this opinion an expansive reading of the scope of the Second Amendment and did severely restrict government’s ability to regulate firearms. Although, again, how much exactly this opinion restricts that authority very much remains to be seen.


Leah Litman: So the case involved a challenge to New York’s restrictions on public carry gun permits in order to obtain a public Kerry gun permit. New York requires individuals to show some additional special need beyond just an ordinary desire to carry a gun for self-defense. And in the majority opinion by Justice Thomas, the court held that that New York regime violates the Second Amendment.


Kate Shaw: That does mean that similar regimes in states like California and New Jersey, which have similar regimes to New York, also likely violate the Second Amendment. That’s the Thomas majority opinion. There were several separate writings that I think provide important clues about what the court might do with the Second Amendment and gun regulations in future cases. But let’s start by breaking down the Thomas majority opinion. So, as we said, released on his birthday. Maybe coincidence? Maybe not. Not a coincidence.


Melissa Murray: No, no, no. I’m serious.


Leah Litman: This is one possible rank speculation birthday gift to himself.


Melissa Murray: And a birthday gift he’s been waiting for for a long time. So, I mean, and if you read this opinion, like he has been saving up for this, like he’s been working on this for some time in his head. And, you know, I think June 23rd is Gemini Light, you know. So I have to say, of all of the star signs, Gemini is my least favorite and not because of Justice Thomas, but just like generally it’s like they’re just kind of a lot. This opinion is kind of a lot. So it’s true to form on his birthday. And again, this is, I think a kind of form of self-care for him. Like this is how he feeds his soul. And, you know, it is maybe for his birthday that.


Kate Shaw: He’s always hungry and it is really sated by this opinion.


Leah Litman: I am resisting making a joke I want to make because we are putting together a video of this episode. And it’s a.


Melissa Murray: Can’t they edit the video?


Kate Shaw: We can no longer do that. No, we have to be more careful. Resist Leah. This is growth.


Leah Litman: Be more mindful because the video editing is not as precise as the audio editing, and ooof. it’s hard.


Kate Shaw: One thing about the kind of authorship of this opinion, we had been speculating based on other writings that this was likely going to be Barrett or Thomas, who both had yet to write for the sitting. And I was just like, There is no way Thomas has this opinion because he is the furthest out there member of this conservative bloc. And there would need to be somebody writing something more measured.


Melissa Murray: Kate, like, okay, can we go back to when you sort of floated this? And Leah and I were like, Girl, you crazy?


Kate Shaw: Well, that was. You’re right and I was wrong. Okay, so so let’s walk through what Thomas actually says in this mammoth opinion. First, as a baseline matter, the opinion makes clear that the Second Amendment applies outside the home, and the Supreme Court had never held that previously. The Heller case from 2008 was about a prohibition on just owning a gun in your home. The court very explicitly did not touch questions of carrying guns outside. The 2010 MacDonald case was also about a handgun ban, basically not about carrying anything outside the home. So the lower courts have been wrestling with this question. It was pretty clear the Supreme Court was going to say yes, the Second Amendment, whose language references keeping and bearing arms, does extend outside the home. But that’s a very important doctrinal development that this opinion represents.


Leah Litman: So the court distinguishes the New York law from so-called shall issue jurisdictions, which the court describes as where state authorities must issue concealed carry licenses whenever applicants satisfy certain threshold requirements without the officials exercising any discretion to deny licenses based on a perceived lack of need or suitability. And it suggests its opinion doesn’t call those shall issue jurisdictions into question.


Melissa Murray: You can still have threshold requirements to get a concealed carry permit. So what’s the real problem with New York’s situation here?


Leah Litman: So the real problem is the court suggests it has some discretionary component that invites individual officials to decide whether any particular individual has a need. And the courts suggest that’s too vague and unfettered a requirement for officials to apply in a consistent way. And the six states with may issue regimes like New York include D.C., California, Hawaii, Maryland, Massachusetts and New Jersey. The court specifically single them out. What do all of these things have in common? Do they all.


Melissa Murray: Love the color.


Leah Litman: Blue? That is one of the things.


Melissa Murray: And even more so have like massive populations.


Leah Litman: Right. Because like even though it’s just six states, we’re talking about like a quarter of the US population and 80 million some people who are going to be affected by this ruling. So despite the court’s protestations, oh, well, we’re only deciding, you know, a case that involves six states. It is not so convincing. Now, I’m not entirely convinced that the court is going to hold its fire with respect to these shall issue jurisdictions if and when, you know, they come before the court in part because of a series of footnotes. So in the footnote on the shall issue jurisdictions, the court does the majority keep the door open to some challenges, saying any permitting scheme can be put toward abusive ends and so they did not rule out constitutional challenges to shall issue regime suggesting if there were lengthy wait times or exorbitant fees that that would be a reason to invalidate their regimes. And part of why I’m concerned about this is, you know, we don’t know whether the New York regime is actually as standardless as the court suggests it is. This case was decided on what are called pleadings. The original complaint that the plaintiff files in which they just make the allegation that this is how the regime functions, there hasn’t been any actual evidence collected to substantiate the idea that this is how the regime functions.


Melissa Murray: So I hear you on this, but I want to defend Justice Thomas for a minute here, like you suggest that these footnotes are merely an invitation to more litigation. But I want to suggest that these footnotes suggest growth. Right. This is growth because this is Justice Thomas saying I’m not going to eat the marshmallow, leave the marshmallow here. I’m going to go away for a while. I’m going to wait. I’m going to put these in some footnotes. I’m going to wait. I’m not going to blow up the whole Second Amendment today on my birthday. I’m going to wait.


Leah Litman: I’m not denying that he’s not blowing up these regimes today. I’m just saying he’s basically. Set aside this marshmallow to be eaten later. And credit is due.


Melissa Murray: He could have eaten this marshmallow today. It is his birthday.


Kate Shaw: He and three friends could have eaten the marshmallow today. But the thing about the Supreme Court is to have a genuine bonfire. You need five. And I don’t think we’ll get to the Kavanaugh and Roberts concurrence in a minute, but I don’t think those two were ready to basically say no even shall issue regime where you have to get a quick background check survives second amendment scrutiny. I don’t think they’d go that far.


Melissa Murray: This is restraint. This is a court restraint.


Kate Shaw: Keeping a majority.


Leah Litman: He also, in a separate footnote singles out three shall issue states as being more like may issue anyways those states being Connecticut, Delaware and Rhode Island.


Melissa Murray: What do they have in common?


Leah Litman: Another mystery. But I just I’m just not clear on whether this line is going to hold in a future case, even though I completely agree. This opinion, as written makes perfectly clear that the lower courts should not invalidate shall issue regulations on his birthday.


Melissa Murray: I want you to be fair to Justice Thomas. Like this is a decision that does exhibit restraint. He’s not it’s not as maximalist as you think.


Leah Litman: But like this is the Overton Window, because it was a possibility but he was going to write. He was going to write in this opinion. By the way, every single gun regulation including the as yet to be enacted federal legislation is unconstitutional. Now, the fact that he didn’t do that is personal growth. I guess that’s what happens when you turn 74. But like, it’s just like very low hanging fruit.




Kate Shaw: We can either return to one thing that you said earlier, Leah, about the oddness of this case having been decided on the pleadings now. Breyer talks about that in his dissent, but it is like this pretty evidence, free speculation. It seems like, oh, it’s hard to get a permit in New York, but there isn’t really evidence of just how hard it is. There is an assumption that there is just like both excessive discretion and an excessively high bar you have to clear. And those two things are fatal. And I think in the absence of real evidence of how hard it is to get these permits, and I think it is, you know, it’s genuinely not easy to do, but how hard like usually litigation helps us answer those questions. And Alito, in his concurrence, which we will get to, he’s like, there’s no evidence to point to. So he has to basically say, well, oh, remember there was a question somebody asked the solicitor general at the oral argument, the New York solicitor general saying, you know, if somebody basically says, I’m an ordinary person, I work at night, I have to walk through darkened, crime infested streets to get home. Right. This is Alito’s formulation because he thinks New York City is actually Gotham. And she says there’s been a lot of muggings in this area and I am scared to death. And the street basically says, well, in general, that’s not enough. And Alito basically says, well, you know, that’s evidence that like complete hypothetical scared person that I just conjured that the AG said, well, maybe that wouldn’t be enough. Like that’s tantamount to somebody being denied a permit. That’s actually part of this suit. And it’s just like it’s pure speculation, but that’s what this case is. It’s not really grounded in evidence at all about the New York regime.


Leah Litman: Just vibes.


Kate Shaw: Just vibes.


Melissa Murray: Well, so did you also notice the Alito concurrence had a little shout out in the footnotes to Eric Adams, the mayor of New.


Leah Litman: York, so much in that Alito concurrence. But let’s let’s save it


Kate Shaw: Okay. So a couple more things to highlight in the Thomas opinion in terms of how this opinion definitely changes the test that’ll be used for evaluating gun restrictions going forward. Basically, before this opinion today, the Court of Appeals following Heller had coalesced around this kind of two step framework for determining whether gun restrictions were permissible. So at first, asked whether a law regulated activity that fell within the scope of the Second Amendment and then considered the extent of the burden and how much the law restricted the core of the Second Amendment. And that test basically did let courts consider the strength of a state’s interest in a particular kind of firearm regulation. And that test had, as used by the lower courts, resulted in most but definitely not all gun laws being upheld. And this opinion replaces that test with the following one and of quote here from the opinion When the Second Amendment’s plain text covers an individual’s conduct and he clearly thinks carrying a gun outside the home is covered by the plain text of the Second Amendment. The Constitution presumptively protects that conduct. To justify its regulation. The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. So any law that regulates carrying guns outside of the home and any other law that regulates guns in any other way is basically going to be judged against what the historical record shows. And if the current regulation looks like previous regulations, then it’s likely going to be upheld or at least has a chance of being upheld. And if not, if the government tries novel approaches to address, you know, the novel uptick in terrible, devastating gun violence, that’s probably not going to work because there’s not going to be a historical parallel that those defending the law can draw. So courts can’t, for example, consider empirical evidence about how much a restriction might reduce gun violence. Right. That’s not the relevant question.


Melissa Murray: Because the study wasn’t fielded in 1789.


Kate Shaw: 1791 Right? Yeah. No, that’s the relevant question is whether a firearm regulation is similar to ones that have historically existed in this nation. And I think it is just like a wild way to interpret a constitutional provision, in particular in an area in which we have seen so much societal and technological change over 230 years. But it is, you know, an essentially backward looking test that just asks about historical regulations.


Melissa Murray: Shockingly, a backwards looking test. The majority opinion basically says that this new backwards looking test doesn’t allow us to have as many gun regulations as the previous test had permitted, and that’s by design. The court makes clear that and this is a quote If the last decade of Second Amendment litigation has taught this court anything, it is that federal courts are tasked with making such difficult empirical judgments regarding firearm regulations under the banner of, quote unquote, intermediate scrutiny. That’s where you sort of think about whether the means and the imposition on the Second Amendment right justify the ends of the state as trying to achieve often defer to the determinations of legislatures.


Leah Litman: Because, you know what’s bad settling issues in the political process, that’s bad.


Melissa Murray: It’s really mean. There is a kind of sort of odd logic. She was like, you know, we don’t need judges making these decisions, but we don’t need legislators making them either. What we need is us just making them just like, you know, no law, just vibes us vibing about this and vibing in a 1789 way.


Leah Litman: I just want to underscore again that the court has basically made explicit that courts cannot and should not consider evidence that a gun regulation will reduce gun violence. It’s like here is our originalist case for not giving a shit about whether laws will reduce death. That’s that’s the new term.


Melissa Murray: Did you not understand that? The Founding Fathers basically sat around in Philadelphia listening to Dua LIPA constantly on loop that summer.


Leah Litman: They were James Madison’s fave right dudes on a Spotify stuff. Yeah. Yeah.


Melissa Murray: The other thing, too, and this again, is rank speculation. But it was Justice Breyer and Heller who had really made the pitch for kind of means ands testing and intermediate scrutiny for gun restrictions. And this is basically like, get the fuck out of here, Steve, with that. I’m glad you’re retiring. This is over, and so are you.


Kate Shaw: Although Thomas doesn’t single Breyer out by name. Yeah, he just totally rejects the method. Yeah, Alito, of course, as much as Alito does. Right.


Leah Litman: Let’s make it personal. Yeah, right. Hit you on the way out.


Kate Shaw: Yeah. Yeah. In terms of Thomas, though, explaining how the test works. Right. He basically says when a challenge regulation addresses a general problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenge regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed this societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. But the opinion also underscores that the Second Amendment’s reference to arms does not apply only to those arms in existence in the 18th century, which makes the test so much more insane. Right? Like it’s worth pressing on as the framers would have regulated guns that existed at the founding, the same way they would regulate assault rifles like the guns change. But we’re stuck with the tests that yokes us to the regulations of way less lethal guns. And that’s just what the Constitution requires.


Melissa Murray: Selective historic sizing is fine. There’s nothing wrong with selective historic sizing. The opinion also reaffirms that and this is a big question oral argument that states have the authority to regulate, quote unquote, sensitive places. And it approvingly cited Helen discussion of long standing laws forbidding the carrying of firearms in sensitive places like schools and government buildings. And then it lists some of these sensitive places where weapons had previously been altogether prohibited. So legislative assemblies, polling places, court houses.


Kate Shaw: Oh, curious.


Leah Litman: How convenient. How convenient.


Melissa Murray: Wow


Kate Shaw: And vehement that the place they do their work is supposed to be a gun free zone and the rest of us are F’ed.


Melissa Murray: At oral argument, Justice Kagan, the native New Yorker, had raised the question of the New York subway, which those of us who live in New York City use on a regular basis. And it’s like wide open. There are no checkpoints to check for guns, like it’s kind of a free for all. And she was like, you know, so is that a sensitive place where we could prohibit guns and apparently not public transit stadia?


Kate Shaw: Well, no, I don’t think we can say apparently not. I really don’t. I think not.


Melissa Murray: If you’re not listed here, right?


Kate Shaw: It’s not listed, no. What the presumptively. Okay, things are like where Thomas and his friends work and then polling place like the legislature, the courts and then polling places. Those are presumptively fine, but.


Melissa Murray: Everything he does is going to be open to litigation.


Kate Shaw: Absolutely not that it’s presumptively off limits. Just that like those defending those kinds of sensitive places, limitations are going to have to draw historical analogies to other kinds of sensitive places that were subject to regulation, like in the 1820s. And if you can find an analogy to a nightclub, as Justice Breyer points out in his dissent, wasn’t that cute? Then you might be okay. And if not. And so the okay corral is kind of like a nightclub. And so we can I mean, that those are the kinds of regulations.


Melissa Murray: What is the analogy to the subway? What? No.


Leah Litman: 17 horses in buggies.


Kate Shaw: Yeah, yeah. I’m going on the open road, I think would be the analogy. And there were all kinds of restrictions on carrying in on roads openly. But the concealed carry historical record of regulation is, I think, distinct from the open carry historical record. But these are the kinds of questions that the lawyers in New York City and New York state and cities and states in all of the places that are now going back to the drawing board are going to have to try to figure out how to defend. But I do think it’s important to underscore that the majority opinion certainly says limits on guns in sensitive places completely can withstand this opinion and its new test. But. What is going to qualify is very much a decision for another day.


Melissa Murray: Okay, one, can we stop you being an optimist for a minute? Like what are actually the chances of, one, this litigation is going to happen. There’s going to be challenges over what counts as a sensitive place. Like what are the chances that this maximalist court is going to be like? Yes, there are quote unquote sensitive places beyond the places that we work that we would limit arms of the Second Amendment limits arms.


Kate Shaw: Yeah. I mean, I think you’re right that Thomas is going to it may be sort of per the footnote that Leo was highlighting earlier, interest in saying no. Like everyone has to be like carry a gun literally everywhere. But I just think that Kavanaugh and Roberts may be willing to say rough historical analogies are enough to justify a limitation on the subway and limitations on bringing again to sort of two large gathering places, which there’s lots of evidence in historical record that did exist, also justify limitations on carrying guns to sports stadiums and other, you know, like really crowded areas. So there’ll be active litigation around it. Absolutely. But I’m not prepared to say right now that any of those things is necessarily going to fall under this new test.


Melissa Murray: I love your new rose tinted glasses. They’re beautiful on you. They look great.


Kate Shaw: I don’t know if they’re new, but thank you.


Leah Litman: Having announced this new test to determine what restrictions are consistent with the Second Amendment, the court then applies the test to the New York regime and frames it as follows quote, The burden falls on respondents that is the state to show that New York’s proper cause requirement is consistent with this nation’s historical tradition of firearm regulation, the court concludes. The requirement is not consistent with that historical tradition because there isn’t any historical tradition limiting public carry only to those law abiding citizens who demonstrate a special need for self-defense. The court writes off basically all of the historical analogs that New York identified on the ground, that they only restricted the manner of public carrying you can’t carry for the purpose of terrorizing others, or the restriction only required individuals to post a bond before carrying rather than prohibiting it entirely.


Melissa Murray: It’s also worth noting here that the court is really focused on history, obviously, but as we said before, it’s a kind of selective invocation of history. So there is an interesting point where not only does the court gesture toward history, but in some places it kind of like says that it doesn’t have to think about history at all either. So there’s one part of the opinion where the court says, of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute, which goes to the point like they’re being completely selective in actually being upfront about it. That’s the respondent’s burden to present to us the historical evidence that makes their case. Nevertheless, we think a short review of the public discourse surrounding reconstruction is useful. And then this is where Justice Thomas really lets the rubber meets the road. This is all the stuff he loves talking about. This is essentially a reprise of his concurrence and McDonald versus City of Chicago, where he talks about how in the period following reconstruction, the failure of the states to protect the Second Amendment rights of newly freed African-Americans basically made these individuals uniquely vulnerable to white supremacist violence. And MacDonald, he talks about Emmett Till and a million other things. So that’s a history that’s being invoked here, also being invoked. And if you recall our earlier episode with Joe Blocker from Duke, they also invoked the Statute of Northampton. So if you were playing that drinking game, you should be on the floor in a puddle. Now they also talk about colonial era history. For starters, we doubt that three colonial regulations could suffice to show a tradition of public carry regulation. In any event, even looking at these laws on their own terms, we’re not convinced that they regulated public carry akin to the New York law before us, but not content to stop at the colonial period. Justice Thomas brings up BLM and you know that Justice Alito was right there cheering him on for this because.


Leah Litman: Oh, yeah.


Melissa Murray: Who could be more stalwart supporters of Black Lives Matters than these two? And so this is where they really get into it. They talk about the Freedman’s Bureau, the reconstruction period, the violation of black citizens rights. And I mean, it says a short prolog is an order and then goes back to the Civil War. It’s like five pages on this. It’s a lot. But the piece de resistance here is the invocation of Dred Scott versus Sanford. And I have to say, he really turned Dred Scott inside out to make this point. Do you want to talk about it or shall we?


Leah Litman: She was. I’m happy.


Melissa Murray: Please, I want you someone. You should talk about it.


Leah Litman: Dred Scott is the decision that how old black Americans could not be citizens and invalidate the Missouri Compromise and here is how Justice Thomas relies on Dred Scott. Writing for the court in Dred Scott versus Sanford. Chief Justice Tani offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens. If free blacks were citizens, Tani fretted. They would have the right to keep and carry arms wherever they went. Thus, even Chief Justice Tani recognized parentheses, albeit unenthusiastically. In the case of blacks, that public carry was a component of the right to keep and bear arms. Because if there’s anybody’s legal analysis and analysis of history, we should rely on it. Is Chief Justice Tani’s in Dred Scott. Thank you, sir. Boom lawyered.


Melissa Murray: And it actually he takes a lot of that from an amicus brief filed by an interest group of African-American gun owners. And so we’ve talked about this before on the show, but there is, I think, among the conservative legal movement, an effort to sort of repackage some of their core interests, whether it’s abortion or gun rights in the language of racial justice. And I think here this particular interest group, not only furnish them with a lot of evidence, do that. Justice Thomas was already quite amenable to this, having written about it in the past.


Leah Litman: Oh, yeah, yeah, yeah.


Kate Shaw: All right. So bottom line, this is an incredibly consequential opinion in terms of what it’s going to do. It invalidates the New York law, the laws on the books and, you know, six other states and I think makes it will make it more difficult to defend other kinds of gun regulations. But it also feels to me like an unbelievably damning indictment of originalism as a method for, you know, the reasons that it always was just identifying like it is so selective it will say things like, okay, there is there are a couple of analogs of laws that look like New York’s, but there’s only a few. So there’s both. Like it just feels like this constant moving of goalposts in terms of what you even need to show historically to justify what you’re doing today. And there isn’t even really a defense of the method, like why should this be how gun regulations under the Second Amendment or maybe anything under any constitutional provision are evaluated? But the opinion just kind of charges full steam ahead. And does it and you know, there is now an originalist majority on this court. And I think it really the task of dissenting justices are going to be in dissent for a long time. To clearly articulate an opposing vision of how constitutional interpretation should work, I think is incredibly urgent. And I think Breyer actually really does that here. Okay. So we should shift to the separate writings because those are important. We’ve obviously been unable to resist already teasing the Alito concurrence a little bit.


Melissa Murray: This is an Alito Stan podcast.


Kate Shaw: I’m sure he was devastated not to get this majority right.


Leah Litman: Boy, did he bring that Alito’s gun to Alito Energy, right? Just like incredible nastiness.


Melissa Murray: Trolling. No, truly.


Leah Litman: Toledo. So Justice Breyer wrote the main dissent. And so Justice Alito says it is hard to see what legitimate purpose can possibly be served by most of the dissents lengthy introductory section. And then he somehow makes it even worse. So the introductory section noted the epidemic of gun violence in the United States, including recent mass shootings. And Justice Alito says how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.


Melissa Murray: I mean.


Kate Shaw: It’s so provocative. It’s such bizarre, sloppy, like causal reasoning. Like, you know, this law, which is about to make.


Leah Litman: Only of his clerks, right, when he puts this into the opinion, are like, hey, boss, like you’re making some great points. But like, is this really the way to message this or is it. No. Yeah. Yeah. I as I was saying it I was like, no.


Melissa Murray: We didn’t just get Troll-lito vibes. We also got a little woke-lito flavor here because, you know, he’s not going to let Justice Thomas go it alone on advocating for racial justice with expanded gun rights He was going to get in there himself. So he notes, you know, there’s a whole discussion about the various amicus briefs that were filed here, many of which surface the stories of individuals who had been the victims of violent crimes and then were prohibited from subsequently being able to publicly carry a weapon to protect themselves. He then notes that in other incidents, a law abiding person was driven to violate the Sullivan law. This is the New York law because of fear of victimization and as a result was arrested, prosecuted and incarcerated. That little snippet was taken from the brief for the black attorneys of Legal Aid. That was the coalition of Legal Aid lawyers and black public defenders that came in to draft an amicus brief that was filed in support of dismantling the law. He then goes on to note that some briefs were filed by members of groups whose members feel that they have special reasons to fear attacks. And then, he notes the brief of the Asian Pacific American Gun Owners Association. Obviously, Asian-Americans have been the particular subjects of certain kinds of racial violence in recent years. He also talks about the brief for Black Guns Matter, which is another black gun owners, interest groups as well as the brief the Independent Women’s Law Center.


Leah Litman: Betty Freed ALITO Right. In true form.


Melissa Murray: I mean, the feminism. The critical race theory of this part of the opinion, like who says you’re not woke, sir?


Kate Shaw: And in the paragraph that precedes the one that you were just describing, Melissa, he talks about he offers a couple of anecdotes about individuals like bystanders who were armed, who interceded to stop violent encounters and attacks. And if you sort of connect that up, what he’s suggesting, I think with the invocation of Buffalo, he is maybe his clerks actually did get a word in because he doesn’t quite say this New York law is responsible for what happened in Buffalo, but it almost feels like he is suggesting the disarming of individuals who are out there in New York who could have stopped a buffalo from occurring is a result of this law. So it is like, again, I don’t think he’s he can’t quite bring himself to say that explicitly. But that’s a suggestion like somehow will be safer if more people have guns and there is just absolutely no evidence to support that. But who needs evidence?


Melissa Murray: No. Well, not unless you can get it from 1789. Like that kind of evidence would matter. But all the other methods.


Kate Shaw: Isn’t that inconvenient?


Leah Litman: Exactly. Only if it’s briefed in the party is and only if it would like, lead to the invalidation of rights.


Kate Shaw: Yeah. Yeah. We should also say that, you know, he’s not only taking general aim at the Breyer dissent, he also sorry, terrible. But he names them. Right. Like he cannot stop himself on our dudes, like the last week or two on the court.


Melissa Murray: Let Steve live. Let him live.


Kate Shaw: No, no. Alito has no interest in like having this, you know, being gracious. He mentions Breyer. He says, like Breyer’s dissent in Heller. Right. The 28 case we’ve talked about a couple of times, the real thrust of today’s dissent is that guns are bad and that states and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller, and while the dissent protested, it is not arguing Heller. It proceeds to do just that like it is. This is maybe the nastiest opinion I’ve ever seen from Alito, and there’s a lot of competition. There’s also a Barrett concurrence that’s not that significant, and it notes that there are some debates about originalism. And she, at least, I think, is sort of aware that the court is not exactly being like principled or clear about like when mid-19th century evidence might matter, when it might not, how to value.


Leah Litman: But she’ll sign on anyways.


Kate Shaw: But she wants she’s got enough like an intellectual vanity to at least like, acknowledge that it’s like a complete hot mess in the majority. And she’s like, I see that. And I think we should probably do something about it down the road, but I’m not really sure what. And here’s some citation. So like my originalist scholar friends and then like, that’s it.


Leah Litman: The big separate writing that we wanted to draw attention to is a concurrence by Justice Kavanaugh that was joined by the Chief Justice. And this is significant because it represents both of their views. And given that both of their votes are necessary to invalidating future gun regulations, this could prove to be like where the court actually goes in future cases. So the two of them say they are just invalidating may issue not shall issue regimes. And I think they were more clear. On this point, then the majority was, like they say explicitly, the court’s decision doesn’t prohibit these shall issue regimes and they define permissible shall issue jurisdictions as regimes that require a license applicant to undergo fingerprinting, a background check, a mental health records check, training and firearms and laws regarding the use of force and more. You know, again, I do wonder whether this line will hold or whether they will say in future cases that decisions like this one lay the breadcrumbs or groundwork for invalidating shall be regimes. But I do think they were more clear on drawing this as a lie than that majority was.


Kate Shaw: I think, very, very clear. You know, I do think that there are questions about whether the line will hold, as you pointed out earlier, Leah. But I think that they were pretty unequivocal that at least for now, no one in those states should worry about their regimes being constitutionally questionable. Doesn’t mean there won’t be further challenges, but as of today, they’re all sound. The other thing about the concurrence and this I think is really critical. CAVANAUGH And the chief basically sign on to and reaffirm key language in the Heller opinion that says that certain gun regulations are consistent with the Second Amendment. But a lot of people in the years since Heller have been really unhappy with that paragraph or couple of paragraphs that basically says that lots of kinds of regulations of guns are presumptively permissible even under Heller. So I think there was some fear that somehow this opinion would try to repudiate that part of Heller. And I think it’s really important that these two votes, which, as you just said, are required to the outcome in this case, basically say that language remains a part of our body of law regarding the Second Amendment. So they write, you know, as Heller and McDonald established and as the court today again explains, the Second Amendment is neither a regulatory straitjacket nor regulatory blank check properly interpreted. The Second Amendment allows a variety of gun regulations, and then they quote this part of the Scalia opinion in Heller that says that like most rights, the rights secured by the Second Amendment is not unlimited. And they tick through a number of kinds of longstanding regulations and prohibitions that the court says the Heller opinion should not be taken to cast doubt on. And there’s also a footnote in Heller that says, we gave a list of examples of presumptively permissible regulations, but that does not purport to be an exhaustive list. There are others. And so, you know, I have always thought that that’s a really important part of the Heller opinion. And I do think it’s important that Kavanaugh and Roberts make clear that it remains an important part of the law of the Second Amendment and gun regulations.


Leah Litman: Yeah, and this is a potentially significant narrowing of the majority opinion. This is the bit of rank speculation I wanted to offer. Was this concurrence added or was it like fleshed out and given more teeth after the mass shooting events in Buffalo and Uvalde Day? And that is what caused some of the delay in releasing this opinion. I have no basis right for this. This is pure rank speculation, but I can imagine someone like Justice Kavanaugh or the Chief Justice thinking like, okay, I agree, this regime is invalid, but like let’s slow our roll on how far we go today, even though it is still the YOLO Court.


Kate Shaw: Do you think equally likely that they read my op ed with John Bash in The New York Times, reminding everyone of this language and how that.


Leah Litman: Was going to be my number two guess. Yeah, absolutely.


Kate Shaw: Pretty likely. Pretty likely. Yeah. No, but I do think that it as big and broad as the Thomas opinion is, this language is really important.


Melissa Murray: Yeah. Regardless of whether Justice Kavanaugh on the Chief Justice have managed to sort of narrow the scope of what I think is written to be maximalist. If not now, then eventually this is still a really significant decision. And Justice Breyer really understood that and made that very clear in his dissent. He writes, Many states have tried to address some of the dangers of gun violence just described by passing laws that limit in various ways who may purchase, carry or use firearms of different kinds. The court today severely burdens states efforts to do so. And, you know, this dissent is really peak. Justice Breyer Lots of statistics. It’s very much reprise of his Heller dissent, where it was just like jam packed with statistics and empirical evidence about how states were essentially functioning as laboratories of democracy, trying to figure out what worked best for their particular circumstances. And he continues in this particular dissent to defend that notion of localism. And there’s a really interesting discussion of New York scheme, which the court has sort of dismissed out of hand as offering state officials too much discretion. He notes, it’s kind of exactly the right amount of discretion because. As it allows these individuals to sort of tailor their permitting decisions based on local circumstances. So he talks about the fact that there’s a series of criteria in the rural counties in New York that the state officials think about and look at when people apply for these permits that are completely different from the different considerations that are used in counties like Manhattan, which is in New York City. So, I mean, this really goes to your point that this would have been a place where maybe developing a record on this would have been helpful and would have helped the dissenters a little more here. But in the absence of that record, you don’t really get to have much engagement with the sort of sensitive local questions and the distinctions that the state officials are drawing.


Kate Shaw: Breyer responds directly to Alito’s charge that his dissent is really basically just just boils down to the claim that guns are bad. But of course, he does it, like in a very gracious and polite way, says, no, I’m not just saying that guns are bad, as Justice Alito has suggested. He asked why. I’ve begun my opinion by reviewing some of the dangers and challenges posed by gun violence and what relevance that has to today’s case. And he offers, I think, a really important answer to that question, which is, he says, the reason I’ve talked about all of this is because they illustrate that firearm regulation presents a complex problem, one that should be solved by legislatures rather than by courts, and one that, just as you were saying, Melissa, might be solved differently by legislatures in different parts of the country or even in different parts of the same state, because the conditions on the ground vary dramatically. That is federalism. And yet, you know, the majority opinion really binds the hands of regulators to be responsive to those local on the ground conditions.


Melissa Murray: Federalism is only important when you’re restoring to the states the authority to prohibit abortions.


Kate Shaw: I guess it’s for for suckers now, too, huh?


Leah Litman: Some suckers.


Kate Shaw: I do think that I said something about this earlier in the episode, but I do think that, you know, it is a very vintage Breyer, pragmatic. You know, let’s ask about what kinds of the constitutional interest at stake, the kinds of reasonable regulations that government might permissible to engage in. And it just like offers a very distinct model for how to do constitutional reasoning.


Melissa Murray: I like that this is the way he’s choosing to go out. I don’t think this is the last dissent we’re going to hear from him at all. But this one, I think, was, you know, in credit, like he was trying to get in a lot of hits. Right. So there’s the defense of localism, the defense of empirical evidence. Also a defense of the administrative state in here is I mean, you know, this is a guy who is privy to what his colleagues are up to. And he’s sort of loading up the last set of opinions that he’s going to issue with all of these defenses of the things that they are likely working to dismantle. Good on you, Justice Breyer. We salute you, sir. Breyer Hive writes Brier Patch. But I like the Breyer.


Leah Litman: Know the Breyer hive, especially in light of Beyonce’s release. That’s definitely the one. It’s just I wanted to give some love to the buyer folk.


Melissa Murray: Beyoncé issued that opinion for Justice Breyer. You won’t break my soul. Exactly.


Leah Litman: Exactly. She gave him his walk out music.


Melissa Murray: Yes, I hope he does that. I hope they play it really loud as he walks out with this like little box. Which scissors like Stephen Breyer.


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Melissa Murray: All right. We don’t want our regular episode to be unduly long. So we’re going to briefly note some of the other opinions that came down today. And one of them, I think, was another sort of birthday present to Justice Thomas. Right. So this was the decision in Vega versus Chico. This is the case that considered whether or not you could file a Section 1983 claim because of a violation of your Miranda rights. So in this decision, the majority of the court limited remedies that are available to enforce this disfavored constitutional right teeing up another big theme of this term and the Roberts court in general, which is the idea that you can have constitutional rights. You just can’t use them anywhere. They don’t go anywhere.


Leah Litman: These things are totally consistent with one another. We are not overruling cases. We’re just not allowing you to give them any force or effect.


Melissa Murray: Exactly. Miranda is still good law until you actually try to use it. So not surprisingly, this birthday gift to Justice Thomas was written by Justice Alito. In this opinion, Justice Alito held for the six Republican appointed justices that when officers fail to give you Miranda warnings and when those warnings are admitted at your trial, you can’t sue the officers under the Section 1983 statute, which generally allows you to sue state and local officers for violations of your constitutional rights. So make it make sense, Leah.


Leah Litman: I mean, the only way to make this make sense is to understand that the Republican appointed justices hate Miranda. Right? They believe it’s wrong. They are unwilling to, in their words, extend it, but more accurately, to apply it in a sensible way. As Justice Kagan notes in her dissent, you know, the majority has to concede that Miranda announced a constitutional rule, otherwise it couldn’t be imposed on the states. And unless, you know, Miranda was a constitutional decision, there would be no reason why Congress couldn’t displace the requirement that officers provide you Miranda warnings. But the Supreme Court has said Congress can’t displace those warnings. And Justice Alito once again invoking like Leroy Jenkins. I know. What about that one now, Melissa, you got it is like. Sure, but who cares, right? I’m just going to blow through Miranda now. The court says we think Miranda is prophylactic and goes beyond what the Constitution requires. And, you know, this decision doesn’t overrule Miranda, to be clear. But but, you know, I just feel like when Justice Alito gets the chance, he will say, you know what, we should overrule Miranda because the foundations of that decision have been undermined by our precedents like Tyco. And he’s basically inviting a cert petition to overrule Miranda in this footnote that says whether the Supreme Court has the authority to create prophylactic rules, which he described Miranda as has been a subject of debate among jurists and commentators, and then says, like for purposes of deciding this case, we kind of follow its rationale. But if you actually invited us to reconsider whether the court had the authority to reach the decision in Miranda, maybe the answer would be different.


Melissa Murray: I really think Justice Kagan or Justice Sotomayor should just have a stock footnote that they put in every dissent or opinion that they write. That is whether a justice of this court can have a spouse who sends text messages to Mark Meadows and continue to participate in the work of this court is a question that is up for a considerable debate.


Leah Litman: Right is a question. not before us today?


Kate Shaw: Exactly.


Leah Litman: But maybe. Yes


Melissa Murray: Ladies, put it aside. Make it like a macro and just like put it in all your opinions.


Leah Litman: Or at least put it in the draft and then take it out in the final version. Right. Like we do in these episodes. I mean, I just I just want to note for the record, I was the one suggesting that they should take out the respectfully when they say I respectfully dissent. And someone on this podcast was like, Leah, it’s a work environment. They have to work together and that was you Melissa. That was you.


Kate Shaw: You were defending Sotomayor’s decision to use respectfully somewhere. So it was reflexive. And yeah, it’s like. You know.


Leah Litman: I mean. Look its like it’s a context specific judgment.


Melissa Murray: I think I said that in 2020.


Leah Litman: Ugh no, that was like.


Kate Shaw: Two weeks ago.


Leah Litman: Yeah, sorry, girl, I’ve got the receipts.


Melissa Murray: We go back and check the tape I’m reading. Even if I said it in 2021, a lot has happened since then.


Leah Litman: 2022.


Melissa Murray: A lot has happened since January.


Leah Litman: I’ll give that to you. A lot has been happening throughout 2022. We all need to do some Bayesian updating.


Melissa Murray: I was going to pin that on Kate.


Leah Litman: I saw you. I saw you reaching for that and. No, no, no.


Kate Shaw: I probably would have just gone along with it, like. Oh, yeah, I’m sure I said that. But I happened to remember you said that.


Melissa Murray: Leroy Jenkins


Kate Shaw: No, I listened to your your episode last week and I too learned and then did a little Googling and but it didn’t help that much.


Leah Litman: So Justice Kagan wrote the dissent in which she highlighted, you know, the theme, Melissa, you introduced this case with, which is a right without a remedy, isn’t much of a right at all. Justice Kagan noted, like, look, when someone has unwarranted statements introduced at their trial, they might have their conviction reversed. But she says, then what remedy does he have for all of the harm he has suffered? Section 1983 is supposed to provide that remedy, and the big quote is The majority here as elsewhere, injures the right by denying the remedy. And she cites, you know, other cases.


Melissa Murray: From this term versus Bull the Bivens case. The shade.


Kate Shaw: The playbook is identical. It is the kind of like the way they sort of mouthed the words, we are just not extending Miranda or Bivens, but really are completely draining them of any force. Like it’s exactly the same move and she is just calling them out on it.


Leah Litman: Yeah. Also, I am old enough though I am not an older worker to remember that the Conservatives said the exclusionary rule that is excluding evidence that’s unlawfully obtained was unnecessary because plaintiffs could just sue for civil damages. Nope.


Melissa Murray: Anyway, at any good birthday party when you leave, you get a favor as a guest. So like a little gift bag. And at this particular party for Justice Thomas, there weren’t a lot of opportunities for the Liberals to really enjoy themselves. So today the court offered a little gift bag to the Liberals to send them home, and that little gift bag was Nance versus Ward. So this was the unusual case where a death penalty litigant actually won at SCOTUS. Amazing. Like, huge.


Leah Litman: These are so few and far between. I mean, they are always worth noting.


Melissa Murray: Well, well, wait. There’s more. So wait until we tell you what exactly this highlight of the day actually got us. So the question in this case is whether a prisoner who is challenging a method of execution is unconstitutional in a way that would require a state to use a method of execution that is not authorized by state law can actually bring their claim under the general civil rights statute, again, Section 1983, or whether they’re obliged to bring that claim under a habeas proceeding.


Kate Shaw: And this is really significant because if such prisoners have to bring these claims and habeas proceedings and I’m not a habeas queen like lawyer, but I know enough to know that they’re almost certainly going to lose because there are many, many restrictions on what are called second or successive habeas petitions. Basically, federal law makes it, you know, really restricts your ability to bring second or successive petitions. But that’s almost always how you have to bring these kinds of method of execution challenges, because the state won’t know or establish execution protocols until your death warrant assigned, and that’s invariably going to be well after your conviction. So you have to do this in habeas. That’s how you’re going to do it, and you’re going to encounter lots of virtually insurmountable obstacles if you do that.


Leah Litman: So the court, in an opinion by Justice Kagan for five justices, concluded that people who are challenging a method of execution, then doing so in a way that would require the state to use a method not authorized by state law can bring those claims under the general civil rights statute and don’t have to go through habeas. So Justice Kagan wrote the majority opinion for five justices. The three Democratic appointees, together with the Chief Justice and Justice Kavanaugh, are the even two swing justices.


Melissa Murray: Now, is that what we’re learning.


Leah Litman: To all of those people who were trying to tell us the world that Amy Coney Barrett was going to be a gettable vote and swing justice? Thank you, kind sirs.


Melissa Murray: Well, I also am reminded of the was it an Atlantic profile that Kate raised in one of our episodes last year where they talked about how Justice Kavanaugh essentially fanboys the chief justice?


Leah Litman: Yes.


Kate Shaw: Oh, yeah.


Leah Litman: Yes.


Kate Shaw: Like had a picture of the two of them together on his D.C. circuit chambers wall.


Melissa Murray: I love that. So maybe they are like him. This is maybe this is a place where Chino is not Chino, but he can actually wield some influence bringing Coach Kavanaugh along.


Leah Litman: There you go. So. How did this happen? That is, how did a death penalty litigant eke out this win that basically preserved the ability to bring method of execution challenges? I mean, I do want to give a shout out because this is a huge testament to what was a wonderful argument by Matthew Hollman at the law firm Jenner and BLOCK. You know, perhaps it was too Kafkaesque for the court to shove these method of execution challenges into a procedural vehicle that would always be bounced and never actually address the underlying method of execution claim. But I also do want to highlight what was just a completely devastating clip from oral argument when Justice Kagan gave a long comment in the form of a question about just how perverse Georgia’s argument was. And Georgia was again pressing the claim that you had to bring these method of execution challenges in habeas proceedings. And here is what Justice Kagan had to say.


Justice Kagan Clip: But doesn’t what this ultimately boils down to whether Ballou is completely gutted? I mean, you’re suggesting an approach where it’s like it’s not 1983, it’s habeas. Oh, sorry. In habeas, you run into the second and successive bar. You’re just never going to be able to bring these claims. Or maybe I should say almost never. And it seems as though that’s exactly what Ballou said should not happen. But clearly, all nine justices agreed on one point, which is that somebody in Mr. Dance’s position was entitled to raise a alternative method of execution that had not been authorized by state law. And the court said we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative. For that reason, because he was entitled to identify an alternative that was not authorized, there was a concurrence that really underscored that point. And and now you’re saying, oh, well, you know, really, Buckley didn’t mean what it said. Notwithstanding that it said and a petitioner is always going to be able to do this, what we meant was a petitioner is technically always going to be able to do this. But in 90%, 99% of the time, he’s not going to have an appropriate vehicle. Now, is that really a reading of buccleuch? That would not be, I don’t know, embarrassing.


Leah Litman: We’ll explain what Balu is in a second. That’s a decision she invoked here. That’s the case that basically says how you bring a claim challenging your method of execution. Justice Barrett wrote the dissent for four justices, which says prisoners demanding a method of execution that is an authorized by state law should have to go through habeas proceedings. The opinion also recognizes that they would probably fail and be barred in habeas proceedings. So she, you know, wants to force them into this catch 22 where they’re going to lose. Now, Melissa, I think you kind of like to use this where you were saying, like, wait until we tell you what the highlight of the day is. You know, this this was like the highlights. And what it means is death penalty litigants can file civil rights claims where they will probably lose on the merits, given that this court hates method of execution claims and specifically the claim these prisoners get to raise, you know, an Eighth Amendment challenge to the state’s method of execution is one that requires the death penalty prisoner to choose an alternate method for their execution. Because the court’s eighth Amendment cases, as we’ve underscored, really do require prisoners to propose how the state should kill them. So just to underscore how bleak things are, like the potential to choose how you die is the highlight of opinion days and undertaking the grisly task of telling the state how it can kill you like they will allow you to do that through section 1983, only to have you probably lose on the merits then.


Kate Shaw: Honestly a brutal day for opinions from this court.


Leah Litman: Yes.


Melissa Murray: What a great gift bag to go home.


Leah Litman: What? It’s so.


Melissa Murray: Good. It’s like literally like those gift bags are always filled with, like, terrible toys from from that like, what is that store that you always buy the kids like party stuff goods.


Kate Shaw: Like party goods. Those kinds of things


Melissa Murray: Yeah. And they break, like, in 5 minutes. Like, that’s what this opinion is like. Oh, my God. I got a light saber. Oh, my God. This light saber is literally going to break in 5 minutes. So there it is. Anyway, just to close out this episode, we should give you a little bit of court culture. And so this bit of court culture comes to us from an anonymous source that tipped us off. It’s not just Justice Thomas and Justice Alito who are spreading joy throughout the world. Other federal judges are also. So spreading things. Apparently, the 11th Circuit had its judicial conference recently in May. It was actually rescheduled as originally scheduled for March, but they decided to reschedule it in light of rising COVID rates. That’s relevant. So they decided to hold this in May and they had an in-person meeting in Atlanta. And after the conference ended, apparently an email was sent to all attendees, noting that roughly 25 individuals had contracted COVID, just reported contracted COVID, and that others were likely to have been infected as well. And our anonymous source revealed that they too were infected after being hugged by a federal judge. So.


Leah Litman: Federal judges. The gift that keeps on giving.


Melissa Murray: That keeps on giving. Wow. So thanks for that anonymous tip. I’m glad I wasn’t there.


Leah Litman: Right.


Melissa Murray: Oh, my gosh. I hope everyone is well and that their cases were mild, but it’s just a reminder to everyone that we’re not quite post-pandemic yet. So.


Leah Litman: We are not.


Melissa Murray: Keep it together, folks. Stay vigilant. Like Mad Eye Moody says.


Kate Shaw: All right. We will leave it there. We’ll be back with our regular episode on Monday. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me Kate Shaw produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and our Summer Intern is Anoushka Chander.