Essays in Anthropology: Variations on a Theme

Similarly, snow can only make things cold because it is its nature to be cold. Experience shows that if I am cold and thirsty, my desires for warmth and drink.

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I'm not an expert in, in, those kinds of federal courts or, s-or, or civil procedure type of uh, analysis. Uh, but uh, at the outset you said that uh, this is the first case in a decade interpreting the Second Amendment. Uh, let's be clear on that. That's why this is so important. Uh, in Heller, in , the Court struck down a complete ban on functional firearms uh, in the home. And so we have not had any fleshing out of the Second Amendment right to keep and bear arms since Heller. You can't have a ban inside the home. Well, lower courts have been all over the place in terms of what standard to apply when evaluating uh, whether open carry or concealed carry uh, rules, restrictions, bans, uh, magazine limits, how many uh, bullets, uh, you can, how many rounds you can, you can have in a particular uh, uh, firearm.

All these different restrictions that are, that are put in by cities, by states. Uh, and so the Second Amendment in effect means different things in different parts of the country depending on which Circuit you're in, which is the classic situation where the Supreme Court steps in to give uh, uh, guidance. So um, you know, those are the, you know, you've gotten a flavor for why um, so many people don't want this to be mooted out. And uh, you know the b-it's the, the, I think what ultimately the Supreme Court is going to do is roll in the mootness discussion into the merits of the case.

They haven't yet scheduled it for argument. But they also haven't ruled on the mootness.

And th-the Supreme Court clerk directed the parties to continue filing briefs, uh, as if it weren't moot. So uh, you know, we'll see. Probably in the December calendar, maybe January, they will finally have argument. And look, the mootness issue provides an off ramp. If John Roberts say doesn't want in the end to make a uh, uh, a determination on the Second Amendment, or to start uh, fleshing out that jurisprudence.

US Supreme Court 2nd Amendment guns case: What's at stake?

This is a way that if he wants to, he could cobble together uh, a coalition to dismiss the case without taking a position one way or another. Jeffrey Rosen: [] Adam, Ilya's reference to capable of repetition, but evading review uh, peaked my interest that uh, I remember from my first weeks in law school uh, [Kila Marr] my wonderful con law teacher uh, cited that as the core of uh, our discussion of r-reproductive rights cases including Roe.

And the Court h-h-heard abortion cases, even though uh, the particular case might be moot uh, after a pregnancy come to terms or an abortion takes place because uh, it is capable of repetition so, y-yet evading review. So tell us about the relevance of the clear desire by some Justices including Justices Thomas and Gorsuch to hear a Second Amendment case. Justice Thomas has complained that the Justices have heard 35 First Amendment and 25 Fourth Amendment cases since They've repeatedly turned away Second Amendment challenges.

Um, so again d-d-describe the kinds of cases that the Court has refused to hear uh, Justice Thomas, Gorsuch, Justices Thomas and Gorsuch's objections. And what that might say about whether the Court will hear this case on the merits. Adam Winkler: [] Well, uh, thank you, Jeff. And uh, I-I think Ilya is right that um, because um, mootness is a prudential issue, we don't know exactly how the Court's gonna rule, and the Court has plenty of leeway on how it goes about it.

One thing that's worth noting is that it's not really true that this problem here uh, such as uh, state law, or a city rule that restricts where you can take your gun uh, and requires you only to take it to one of seven places as New York City Police Department rule did. Uh, whether that's really capable of repetition yet evading review, um, there's no other city or state that has such an ordinance in place.

New York no longer has such a, such an ordinance in place. New York City Police Department cannot put an ordinance like this back in place because its been prohibited by state law to do it. So it's hard to imagine this as being one of those situations where it's capable of repetition, yet avoiding review. The only way this could be repeated would be for a state to pass a law or some other government law uh, uh, lawmaking authority were to pass a law that were uh, a brand new through the process of um, bicameralism and presentment with it the at the state level to the governor.

Um, before you get such a law on the books. Uh, if that's all that it takes to eliminate the idea of an advisory opinion, well, then I would suggest that there is no such rule uh, against advisory opinions. Um, because any state could adopt any law if you wanna take hypotheticals.

Um, there is no law on the books here. Now, part of, I can't uh, fault the, the, challengers from being disappointed that they've already received everything that they re-that they wanted, or requested in their brief, so are in their complaint. Um, largely because what they were really seeking was not what they asked for. Uh, while they were challenging these particular provisions of New York law, what they were really seeking was a broad and expansive new Second Amendment case at the Supreme Court that would articulate broader and more protective Second Amendment principles.

Uh, this fits in to what you say with regards to Justice Thomas complaining that the S-Second Amendment is being treated like a second class right.

More Perfect

That the lower courts have since Heller, upheld the vast majority of gun control laws out there. And applied uh, relatively deferential standard of intermediate scrutiny to gun laws.

Um, the challengers here along with at least several Justices uh, are really eager to get the Supreme Court to articulate uh, stronger principles such as a higher standard of review, or more clear principles for the right to carry a gun in public uh, then they've received from the courts so far. Uh, and for them that's what this case is really about. Although, technically and formally, uh, the challengers have already s-received the relief they were formally re-requesting.

Jeffrey Rosen: [] Ilya, help our listeners understand the difference between strict scrutiny and intermediate review. Uh, some uh, of New York's defenders including Members of the House of Representatives have said that intermediate review is appropriate when the core Second Amendment right is not implicated. They describe the core Second Amendment right as defined in Heller as a right to uh, possess guns in the home.

So they say that any regulation involving guns outside the home should be subject to intermediate scrutiny, which as con law junkies recall, means that the law has to be substantially related to an important governmental interest. Think that uh, strict scrutiny is the better standard, that means the law has to be necessary to achieve a compelling governmental interest.

Tell us about the difference between these two standards. And why you think a higher standard is constitutionally appropriate? Ilya Shapiro: [] Yeah. I think that's right. An-and I think you've uh, you've fairly described uh, uh, Cato's position. Uh, the point is that no right is absolute. So it's not a matter of uh, if you apply strict scrutiny, then that means uh, restrictions on children or the uh, the mentally ill, or those who are uh, violent uh, criminals, or ex-felons, or something like that uh, that those kinds of restrictions have to fall.

Uh, no. Uh, just like means uh, of uh, time, place, and manner uh, uh, restrictions. Th-the First Amendment uh, especially core political speech is, is very protected by the First Amendment. That doesn't mean that I can go to your residential neighborhood at AM and start uh, discussing my views of uh, President Trump on a megaphone.

The Next Big Second Amendment Case?

Uh, uh, again, because that would disturb the peace. And, and, and whatever else. So, so similarly there, there's certainly room for regulation. But like uh, uh, like all rights, certainly those that are listed in the, in the Bill of Rights, um, uh, th-they, they do need to be subject to uh, this, uh, th-this heightened scrutiny. Meaning that the, th-the government really needs to justify uh, uh, its, its restrictions, its regulations.

Um, in fact, you know, uh, some people say that strict scrutiny is uh, is essentially fatal. Uh, very few laws have ever survived strict scrutiny. Whereas, intermediate scrutiny can uh, uh, survive. These are semantic games to uh, to a certain point. Uh, but the uh, th-the thing is the, th-the Supreme Court really does need to uh, determine uh, or, or, guide courts about whether they're to apply kind of uh, a text in history standard, whether they ha-well, if Heller banned a uh, an interest balancing, you know, d-different interest that different parties in, in Second Amendment cases might have.

Uh, intermediate scrutiny has only really been applied to uh, sexual discrimination uh, cases. That's where it came about. Before that, it was just rational basis. Is there some conceivable rational basis for a law? Uh, or strict scrutiny. But then we have this, this intermediate now. Um, i-in a, in a sense this is, this is kind of s-uh, semantics. It's uh, it's all uh, artifice that the court has come up.

Justice Stevens’ Regret isn’t Heller. It’s the Second Amendment.

It's not like these s-standards of review are in uh, or standards of scrutiny are, are, are in the Constitution. Um, but uh, b-uh, I-I do think that for such an important right as uh, the right to keep and bear arm, the right to armed self-defense, uh, that the government needs to do more than simply kind of wave at having an important interest a-and not really tailor very much uh, what its rules might be. Jeffrey Rosen: [] Adam, in a recent op-ed in the LA Times, of course, we need to talk about gun violence in America. The question is how to do it effectively.

So most of the regulations have been upheld ranging from uh, assault weapons bans to uh, uh, other important regulations. Help us understand how big a deal it would be if the Supreme Court were to require strict scrutiny rather than intermediate scrutiny? And also help our listeners understand whether you think the text history and structure of the Second Amendment require strict scrutiny, or not? Adam Winkler: [] Well, great Ja-Jeff. I'm happy to do so. And uh, uh, I-I disagree with Ilya on the idea that the difference between say strict scrutiny and intermediate scrutiny is only semantic.

It may turn out to be only semantic. I think that even if the court were to apply strict scrutiny in the gun context, they would end up upholding a lot of gun laws. We've seen that for instance at the state level where in some states they require strict scrutiny as a matter of State Constitutional Law to review gun regulations.


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And often, those gun regulations are upheld. But I do think that the strict scrutiny is honestly applied, and sincerely, and consistently applied it would result in basically a curtailing of the entire gun regime that we have in America. Ilya says it wouldn't effect s-th-things like bans on felons possessing firearms. But if the compelling governmental interest in restricting felons from possessing firearms is that people with a dangerous past can't be trusted with guns again in the future, well, uh, there are plenty of felons uh, and felonies that are not violent felons uh, or felonies.