Courthouse Steps Oral Argument: United States v. Rahimi

United States v. Rahimi, set to be argued before the Supreme Court this fall, raises the question of whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.
When executing a search warrant on Texas resident Zackey Rahimi's home in relation to a series of shootings in which he was a suspect, police found a rifle and pistol. Rahimi, however, was subject to a domestic violence restraining order after the alleged assault of his former girlfriend, a protective order that specifically barred him from possessing a firearm. He was indicted under 18 U.S.C. § 922(g)(8) (a federal statute that makes it illegal for those who are subject to domestic violence restraining orders to possess a firearm).
Rahimi challenged that indictment, arguing the law is facially unconstitutional and violates the Second Amendment. Initially, both the federal district court and the U.S. Court of Appeals for the 5th Circuit upheld the law, but, following the Supreme Court's decision in Bruen, the Fifth Circuit reversed and vacated Rahimi's conviction. The decision was appealed and oral argument is set to go on before SCOTUS on November 7, 2023.
Please join us as we break down and analyze how oral argument went before the Court.

Featuring:

Mark W. Smith, Senior Fellow, Ave Maria School of Law, and Host of the Four Boxes Diner Second Amendment Channel

Episode Transcript

(00:01):
Welcome to TeleForm, a podcast ofthe Federal Societies Practice Groups. I'm Nick
kas Barrett, Vice President and Directorof Practice Groups at the Federal Society.
For exclusive access to live recordings andpractice group TeleForm programs, become a Federal
Society member today at fedsoc dot org. Hello, and welcome to this Federal
Society webinar call today, November seventh, twenty twenty three. We're delighted to

(00:24):
host a post oral argument Courthouse stepson United States versus Raheemi, which has
argued earlier today before the Court.My name is Cala Kleist, and I'm
an assistant director of Practice Groups hereat the Pedulist Society. As always,
please note that all expressions of opinionare those of the expert on today's program
as a Federal Society and takes noposition on particularly legal or both policy issues.

(00:45):
Now, in the interest of time, I'll keep my introduction of our
guest today brief, but if you'dlike to know more, you can access
this impressive full bio at zak dotorg. Today, we are fortunate to
have with us Professor Mark Smith,who is a constitutional attorney, professor of
law and the host of the fourboxes diners, Second Amendment n Those videos
in YouTube have been viewed over twentythree million times. Fess Smith is a
visiting fellow Oxford University's Department of Pharmacology, and he's also a senior Fellow with

(01:08):
the Aube Maria School of Law.Fester Smith is a New York Times bestselling
offer who Quickly Who Frequently Excuse Meappears on the Fox News channel. Fess
Smith has been published in manual utterviews, including the Harvard Journal of Law and
Pope Policy. He has a graduatein New York Law School and a former
Treasure law clerk. And I leaveit there as a last note throughout the
panel before I hand it off.If you have any questions, please smit

(01:32):
them buy the question and the answerfeature as we will be getting to those
later in the program. But withthat, thank you about joining us today,
Fresis Smith. The floor is yours. Thank you, Caylen. I
appreciate that. So today was ahuge day for the Second Amendments right to
keep in bear arms. We hadabout a ninety minute oral argument started at
ten am. What's interesting about thisSecond Amendment argument is that the government had

(01:53):
to go first because usually over theyears it's those that support the right to
keep in bare arms to keep losingin the low record. Highly unusual that
we had a situation here where theSecond Amendment advocates, if you will,
the person advancing the Second Amendment actuallyprevailed in the lower court. Specifically,
in a three to zero decision inthe Fifth Circuit Court of Appeals out of

(02:14):
New Orleans, was a decision thatsaid that the relevant federal statute here,
which is a gun control statute eighteenUSC or eighteen US Code nine two G
eight, was unconstitutional on its face. Is what the Fifth Circuit said.
Specifically, what nine twenty two GAsays is that if you are subject to

(02:37):
a civil and that's key, ifyou are subject to a civil domestic violence
firstraining order, then you are notpermitted under federal law, as per Congress,
to be able to possess a firearmanywhere in the United States. And
mind you, just to give youa sense of the scope of this law.
If you, let's say, arein a dispute, let's say with

(02:59):
an X spouse or someone you're gettingto going through a divorce with, whatever
it is, and let's say Boston, Massachusetts, and there is an order
entered that says that you too aresupposed to stay away from each other during
the pendency of the divorce. Andyou go ahead and move all the way
across the United States to Phoenix,Arizona, thousands of miles away from your
expouse or the person you're going througha divorce, or to whatever it is

(03:22):
ex employee, doesn't, whatever ithappens to be. Then under nine twenty
two G eight, you are notallowed to possess a firearm even though you're
thousands of miles away from the personwho's also subject to that domestic violence restraining
or and the other context I wantto bring, and then then we'll talk
specifically about what happened this morning.Is one of the other things that was
raised in the Amikas brief and actuallymention an oral argument is many times these

(03:46):
domestic violence restraining orders are mutual,and what that means is that they basically
apply to both parties. And asyou know, sometimes one party may be
more dangerous than the other party orthelessin the for the good of the order.
It's not unusual, and this wasbrought up by many Amikus briefs,
I believe also by several public defenderoffices across the country that both parties are

(04:12):
basically disarmed, and that might bethe case where a person who's a potential
victim is disarmed as much as theperson that might be the potential perpetrator.
And I should note that that playeda big role as I see it in
the Fifth Circuit's decision that says thenine to twenty two G eight was unconstitutional
under the Second Amendment. Now,with that context in mind, let's talk
about what happened today, what Ithink is going to happen, and then

(04:34):
where I think all this goes.So begin with to cut to the chase.
It's in my opinion that mister Rahimi, the man, the criminal defendant,
is likely to lose this case.I suspect he's going to lose this
case. It could be as muchas seven to two, eight to one,
possibly even nine to zero. It'shard to say for sure, but

(04:55):
I think that mister Rahimi himself isgoing to lose this case because at the
end of the day, the Departmentof Justice, when they were arguing this,
bear in mind that in the briefing, and this is quite interesting.
In the briefing, the Department ofJustice argued there was really two types of
people that legislators such as Congress candisarm in America. One category of those

(05:17):
that are not law abiding. Theother category is those who are not responsible.
And what the Department of Justice arguein their briefs in the Reheemi case
was that if you were not responsibleand or you were not law abiding,
you could be disarmed. Now thatargument that the Department of Justice advanced and

(05:39):
remembror again reminder of the Department ofJustice spoke first. The Solicitor General,
who did a great job as shealways does, spoke first. And what's
interesting, in literally the first fewminutes, Chief Justice John Roberts immediately quizzed
her on this by saying, well, let me get this straight, counselor,
if I drive thirty miles per hourin a twenty five mob per hour

(06:00):
speed limit zone, have I somehowbasically lost my right to keep darns because
now I'm not law abiding, I'mnot responsible. And immediately the Department of
Justice and I think this is goingto be actually a potential prompt for DJ
in future cases. She immediately conflatedher position and said, no, not
true. Really, at the endof the day comes down to whether or
not you, as an American citizenare dangerous. Now what's quite interesting is

(06:26):
people then, you know, theCourt then kind of said, well,
that's interesting because you know, youcouldn't have said that in your briefs and
said dangerousness was the touchstone here,and basically the Department of Justice, you
know, the Solicitor General kind ofsaid, well, yeah, dangerousness is
really the key. Yes, weagree, but there's different ways you can
kind of get there. And atthe end of the day, the Court
should always defer, as I seeit, this is what they argued to

(06:48):
defer to the legislative body in thiscase, Congress. So when that said,
I do think that a comment byNeil by the Chief by by Justice
Neil was telling because once John Robertor Chief Justice John Roberts made the comment
that got the Department of Justice toconcede that really dangerousness is the key issue,

(07:10):
meaning if you are dangerous i e. A physically violent danger to yourself
or to someone else, then youcan be disarmed, which is really where
the question from Chief Justice John Robertstook The Department of Justice. Justice Gorsich
then sort of followed up and basicallyindicated that, hey, well, if
that's the case, then here itseems to me that you know, the

(07:32):
record is such that mister Rahimi seemsto be dangerous since, of course he
admitted and consented to the entry ofthis restraining order. And if you look
at the terms of the restraining order, it's essentially conceding that the affidavit submitted
by mister Raheem's ex girlfriend, Ibelieve it is said he was violent toward
her in veryous, specific ways.He consented and agreed to the sworn statement

(07:56):
and consented to the entry of thisrestraining order. It seems to be at
that level he may very well bedeemed dangerous. And then on a related
note, Justice Gorges went on toindicate that there seemed to be plenty of
history at the time of our founding, such as surety laws and also a
frey laws that would indicate that someonewho is a violent danger to themselves or

(08:18):
to others could be disarmed. Thatdid not seem to be a particularly controversial
proposition. So where a lot ofwhat happened here in the oral argument was
the Department of Justice under Merrick Garlandand the Solicitor General course trying to broaden
the scope of the interpretive methodology ofBrune And this was a very big deal
because from the point of view ofthe Second Amendment community, those interest were

(08:43):
concerned. I would say that becausemister Raheemi himself, mister Rhemi, the
man had a record, at leastbased on the court filings, that he
was somewhat of an odious character.He had been involved with multiple shootings,
he had engaged in violence against hisex girlfriend, and had done other things
that were untoward. I think therewas even allegations that he might have been
connected to being to the drug tradein certain respects. So on this record,

(09:09):
obviously the man, mister Rahimi,did not look particularly good or sympathetic,
and I think there was concern onthe part of those that are want
to robust or broad interpretation of theright to keep embarrenments that this particular case
could be a problem in the senseof bad facts could make bad law.
And I think the flip side,of course, was that the Department of

(09:31):
Justice under Joe Biden that obviously issympathetic as a general matter to more gun
control. I think that's fair tosay that the Solicitor General basically was trying
to expand the scope of those typesof people that could be viewed as able
to be disarmed, and on arelated note, was trying to expand the

(09:54):
scope of historical analog laws that couldbe used to justify modern day gun control.
And I'll get to those specifics injust a couple minutes here. So
with that tension going on, Iwould say, mister RAHEMI will lose this
case. There will be a holdingthat eighteen Usc. Nine to twenty two
G eight on its face is constitutional. However, so at one level,

(10:16):
mister Raheemi is not going to behappy. But then the question becomes is
when the decision comes out, howwill let's say the Biden administration view the
outcome of the case favorably or unfavorably, And how will let's say the Second
Amendment community view the case favorably orunfavorably. Here's where I think it's going
to come out, and then I'llelaborate on the Range case, which I
think is coming down the pike.I think the Department of Justice is going

(10:39):
to view this as a missed opportunity. I think they thought this is a
very strong case for them to againhave bad backs make bad law, and
I think that they were very excitedat the prospect of pushing this Raheemi case
to the front of the line ofSecond Amendment cases before the Supreme Court,
because historically Second Amendment cases that arebrought before the Court tend to be very

(11:01):
sympathetic towards the citizen. Hell Oryou had an individual that was a former
law enforcement officer who could not geta handgun MacDonald was. You had Otis
MacDonald, an individual who'd lived inChicago in a crimeer an area, could
not get a handgun, a sympatheticsecond amendent plaintiff. In the Kaitano versus
Massachusetts case, you had Jamie Kaitano, a woman who had been stoked by

(11:22):
an ex boyfriend and needed to usea stun gun to protect herself. So
and of course in Brune you hadindividuals that were undeniably upstanding citizens that just
wanted to carry a gun for selfdefense when they could carry a gun for
all other reasons, but for selfdefense. So in every single one of
those second amendent cases, we sawthe really the citizen was very sympathetic.

(11:43):
So in this instance with mister Raheemi, his background of the allegations in the
record, he obviously was nowhere nearany of those other individuals. So I
think that again the idea of beingthis was a very good case to really
test what's known as the Brewin methodologyof interpreting this second amendment, which is
the text first, that historical analogueloss second. I think the idea on
the part of the Department of Justicewas that to make sure that individuals like

(12:09):
mister Rahemi cannot go free, thecourt might bend over backwards and loosen or
water down the interpretive methodology of Hellerand Bruin of text first and historical analog
second that methodology. But I don'tthink it's going to work out that way,
because it seemed pretty clear that thejustices thought that it was a very

(12:30):
straightforward case that if you are adanger to society you can be disarmed.
That there was a lot of examplesof this going all the way back to
the time of the founding, Soit doesn't appear to be a particularly controversial
issue here. On a related note, it seems to me that the US
Supreme Court is not going to getinto some of the natty little questions that
can come up in these cases,because it sounded as if they wanted a

(12:54):
narrow ruling here, they would simplysay that on its face, eighteen Usc.
Nine to twenty eight QG eight isconstitutional under the Second Amendment. But
I think they're going to write somethingin there that says, hey, but
nevertheless, there's a lot of defensesthat could be raised in future, you
know, in the future criminal casesinvolved in this commerce clause arguments that says

(13:15):
that they, you know, Congressslacks the authority to enact this kind of
local domestic law enforcement statutes. Youcan see due process arguments. In fact,
I should note that several times dueprocess came up. What process was
afforded to mister Rahimi in the contextof the procurement of the state domestic violence
restraining order that arose out of thestate of Texas. And at the end

(13:37):
of the day, I think JusticeBarrett really hit the nail on the head
where she's basically saying, look,you know, then argue do process down
below? Your client consented to theentry of this order. The order specifically
says he's not allowed to have agun, and he signed off and swore
to it with a notary and thereis a Sowren appetavit that he didn't challenge
or disagree with. So it seemsto me the due process as a legitimate

(14:03):
issue, and I think the Courtacknowledges it is a legitimate issue, but
it was not really preserved in thiscase. I think they're going to say
that although the statute is going tobe upheld under the Second Amendment, there's
a whole lot of as applied challengesthat can be brought against the government on
behalf of American citizens in various ways. Now, from the perspective of the

(14:24):
expectations of the Second Amendment community,I think there again was a lot of
concern that the Supreme Court would usethis case to water down or possibly even
reject the brew and methodology. Butit's pretty clear that's not going to happen.
And I think that one of thebest tells about this is a comment
made by Justice Barrett about the BrianRange versus Garland case which came up today.

(14:50):
Now, the reason why I bringup the Brian Range versus Garland case
is because it is the case thatthe Third Circuit co Appeals en Bank issued
a decision that says that Brian Range, who had been prohibited from possessing firearms
under a different provision of eighteen USC. Nine to twenty two G. Keep

(15:13):
in mind that Gun Control Statute eighteenUSC. Nine to twenty two G is
the list of prohibited people. Itincludes people like those subjects of domestic violence
restraining orders. It also involves felonsthat's nine twenty two G one, those
that have been dishonably discharged from themilitary, those that have been involuntarily committed
to a mental health institution, andso on. So that's what nine twenty

(15:33):
two G is. So what's interestingis this, I think this is quite
telling. Justice Barrett made a referenceto the Range case. Now, the
Range case, as we sit hereis up on cert it's up on a
cert petition. The Third Circuit enteredin order that said that Brian Range,

(15:54):
a non violent felon who was convictedsomething like twenty to twenty five years ago
of failing to disclose something like fivehundred dollars in income on an application to
the state of Pennsylvania's welfare program tocollect you know, food stamps or some
sort of welfare, and that hefailed to disclose that income that was,

(16:15):
you know, he pled guilty tofraud by not disclosing that and as a
consequence, because of the penalties thatwere potentially applicable under that statute to mister
Range, he qualified as a felonas that term is defined by eighteen Usc.
Nine twenty two G one, Sohe lost his gun rights. He
brought a lawsuit under the Second Amendment, applying Bruin of course, saying that

(16:37):
he's entitled to his right to keepingtheir arms because there's no historical analogue law
at the time of the founding thatsays that nonviolent felons or anyone that's non
violent could be disarmed permanently. Andthe Third Circuit agreed with mister Range and
says, indeed, in with respectto mister Range himself, because there's no
evidence of dangerousness or physical danger,business or violence or anything along those lines,

(17:03):
we the Third Circuit Court of Appealson Bank agree that mister Range is
entitled to have his second A memorrights in eighteen Usc. Nine to twenty
two G one is unconstitutional as appliedto mister Range. Now, the reason
why it's very important to understand thisRange case in conjunction with the Raheemi case
is that both of these cases wereavailable for the Department of Justice to seek

(17:26):
Sirchiri this spring, and just theDepartment of Justice decided to push the Raheemie
case first, and they waited untiljust about I don't know, a month
ago to seek cerch in the Rangecase, even though many commentators included myself,
pointed out that the Range credit casewas much more typical situation and is

(17:49):
the case that the Supreme Court shouldtake. It is the case that the
Department of Justice should push. Andthe reason why that's the case is if
you look at the number of prosecutionsand convictions every year nine to twenty two
G one dealing with felons in possession, it is literally thousands and thousands of
people every year get caught up innine twenty two G one. In contrast,

(18:11):
the Rehemi case speaks to nine twentytwo G eight and there's only something
on the order of magnitude of fifteento thirty. That's one five to thirty,
fifteen to thirty convictions every year undernine twenty two G eight. So
it's rarely used. And I mentionedthis because it is pretty clear from Justice
Barrett bringing up the Range case,even though cert has not been granted,

(18:33):
and the Range case, I shouldnote, is coming up for conference before
the Supreme Court on November seventeenth.It's coming up in just a couple of
weeks. So I think it's quitetelling that the US Supreme Court is focused
on this Range case. And Icould see a real scenario where the Supreme
Court grants cert in a few weeksto the Range case, and we see

(18:53):
two Second Amendment cases in this term, dealing with nine twenty two one nine
twenty two G one on the Rangecase and nine to twenty two G eight
the Raheemi case. And now onemight say that that Range case could be
held pending the outcome of Raheemi,and that would have been true up until
this morning's argument. And this isanother example where I point out that it's

(19:17):
strangely enough that although going into thisargument, I think the Department of Justice
was optimistic about what the Raheeming casecould do for their gun control agenda,
and I think the Second Amendment communitywas concerned about what the Supreme Court might
do with a Reheemi case that couldcut back on Second amend rights. I
actually think it may now backfire.And the reason why I say this is

(19:37):
because any colloquy between the Court andthe Solicitor General today trying to understand how
the Department of Justice went from theirpapers being that people that are dangerous and
unusual cannot have guns to I apologize. In the briefs they were trying to
say people that were lawbeying, werenot law bying, or not responsible could

(19:59):
lose their gun rights to dangerousness andhow do this got how this gotten morphed
in the context of the or argumenttoday the Solicitor General trying to explain it
away by saying, well, whatwe're what we're really getting at your honors,
was in if we're trying to say, there's two buckets of people that
can be disarmed by Congress or bythe legislature. The first bucket are those

(20:21):
that are not law abiding, andthose are people that are convicted of a
crime. And then the Solicitor Generalsaid, but there's a second bucket.
That other bucket are those people thatare not responsible. And the distinction that
I think that the Solicitor General istrying to make here and argued it,
but you'll see why I think it'sgoing to backfire. In one second,
she was arguing that the Raheemi caseis an example of the latter category,

(20:45):
where if you are not responsible,we can take away your guns even if
there's no criminal conviction, because keepin mind that the nine twenty two G
eight prevents you from having a guneven if if you are not criminally convicted.
The domestic violence restraining order is acivil process, and that civil process

(21:07):
gives rise to denying your right tokeep in bear arms, which, of
course the Supreme Word has repeatedly saidis a fundamental right on par with other
fundamental rights. So the interesting thingis the Department of Justice taking the position
that the Raheemi case falls into thebucket of those people that are not responsible
Americans, and then in contrast,she was arguing that people that have been

(21:27):
convicted, who've been convicted of acrime fall into the other basket of those
people who can be disarmed. Thoseare people that are not lawbinding. But
the problem, I think from theSolicitor General's point of view, and I
think Justice Barrett picked up on this, which is why she asked about range,
is by delinking responsibil people or irresponsibleto people from law buying or not

(21:52):
lawbinding people, by creating two buckets, there she's I think the Solicitor General
has basically opened the door for theSupreme Court to take the Range case and
the Hemi case, because now theReheemi case can be used in this term
to clarify what it means to benot responsible, which I think is just
dangerous and likewise dealing with the nonlaw binding component, which is really the
Range case. And I think Barrettsort of signaled that there's a good chance

(22:14):
we may see both of these casesthis term, which again I think is
ultimately favorable for the Second amendmagers prudenceto continue to get these cases because you
know, in many years we'll seethree, four or five Fourth Amendment cases,
We'll see multiple First Amendment cases.We've never seen a Supreme Court term
where there's been multiple Second Amendment cases, and there's really no reason why that

(22:36):
can not occur. Now. Theother critical thing here, and I just
want to remind all of you ofthe Heller slash ruined methodology. In Heller,
the Supreme Court concluded that the Districtof Columbia's handgun band was unconstitutional.
Now, the methodology of interpreting theSecond Amendment that the Heller Court did was

(22:56):
originalism and what I mean by thatis, they started off with a tech
to the Second Amendment. They definedall the terms of the text at the
Second Amendment using eighteenth century lexicography,dictionaries, or other sources. And then
after that they turned their attention andobviously they concluded that a handgun was a
form of arm as in the rightof the people to keep in their arms.
So then what they did is theyshifted the burden to the garment and

(23:18):
said, okay, is there anyhistorical tradition in American law of disarmy people
of these commonly owned handguns? Andthey concluded though there wasn't, and they
created the incommon use test. Butthe way the court did it and Heller
was again they looked at the textfirst, and then they looked to see
is there a historical tradition that couldjustify the government being able to regulate handguns

(23:38):
in some way? And Heller,is there a historical tradition of banning commonly
owned arms? And the Heller courtsays no. So I mentioned that because
this is a very important point tokeep in mind. It's often lost in
commentary, which is when people talkabout the Bruin methodology, which of course
arises from the twenty twenty two decisionof Nice surper versus Bruin. The Supreme

(24:02):
Court's methodology of interpreed the second isidentical to Heller's. It's it's the same
methodology. You start with the text. If the text is implicated by the
modernity gun control law or by theconduct that the American citizen wants to engage
in with guns, then the textis satisfied. The Second Amendment is presumptively
viewed as binding, and the law, the gun control law is presumptively is

(24:26):
presumptively viewed as unconstitutional, and thatshifts the burden. It shifts the burden
to the government. No different thana criminal case where if you're indicted or
charged with the crime, you're presumedinnocent. The burn shifts to the government
to show that you are guilty ofthe crime. Works the same way metaphorically
here. Once the text implicates amodernity gun control law, the burn shift

(24:48):
to the government and the government hasto meet its burden. So this is
the critical part of today's Raheemi cases. I see it. The question is
what is the government's burden? Nowwe know what the government its burden is
A concept under the Bruin case,it says the government's burden is to come
forth with proof of a long standing, well established, historical tradition going back

(25:10):
to the founding of a type ofgun control law that is analogous to the
modern gun control law they're trying touphold. So they basically it's a comparison
of the gun control law in today'scase of Rahemi eighteen Usc. Nine to
twenty two G eight. You can'tyou lose your gun rights if there's a
domestic vines restraint order. You comparethat moderety gun control law with some historical

(25:33):
laws going all the way back.Now, obviously, the more narrow the
analog that you're looking for, theharder it is for the government to satisfy
it's burden once the burden shifts toit. The broader, more generalized analog
that government is allowed to use tojustify its monity gun control law, the
easier it is for the government towin. So a major part of what

(25:56):
was happening today at argument, andyou could see this with the callacquy going
back and forth between Justice Kagan,Justice Sodom R, and Justice Brown Jackson
with the Solicitor General and with MatthewRight, the attorney represented mister Raheemi out
of the Federal Public Defender's Office.You saw a lot of colloquy on that

(26:17):
side of the bench Laser focused onwhat kind of historical analog or what kind
of history can be used to justifya modern day gun control law. Now,
the first thing, and I thinkthis is quite telling, is that
I think it was Justice Brown Jacksonwas concerned and I think Justice Kagan expressed
concern as well whether or not youactually need a regulation on the books at

(26:42):
the time of the founding or atthe relevant time period. There can be
some debate about the relevant time period. At the end of the thing,
I think it's correctly the founding,But we don't need to get in that
specifically, because the truth is,when you're dealing with the Federal Statute,
which is what we're dealing with inRaheemi eight and USC nine to twenty two
G eight was passed by Congress,you don't need to get into the historical
debate of whether or not post fourteenthAmendment history can potentially be relevant to the

(27:07):
meaning of the Second Amendment because you'redealing with the federal statute and the Second
Amendment, when was adopted seventeen ninetyone, applied to the federal government,
so you don't need to worry aboutthose fifth Fourteenth Amendment late nineteenth century historical
analog debates. In this context,what's quite interesting is that, you know,
Justice Kagan and Justice Brown Jackson reallyseemed to be interested in whether or

(27:29):
not regulations were needed at all.In fact, this was clearly the position
taken by this Solicitor General where shewas arguing, especially in this particular case
here, where she said that domesticviolence maybe wasn't really considered as a real
problem at the time of the Founding, which by the way, is not
true. If you look at someof the Meekes briefs submitted in the Raheemi
case, you'll see that domestic violencewas absolutely frowned upon. There was all

(27:53):
sorts of criminal and civil remedies aswell as religious remedies by the way,
to deal with domestic violence at thetime of the Founding. So to suggest
that domestic advice was not considered asocial problem that the Founding is simply not
true. Nevertheless, there was alot of back and forth about whether or
not regulations are actually needed and oneof the concerns I think Justice Brown Jackson

(28:14):
really expressed was, well, waita minute, this seems odd. If
there are no regulations, then can'twe look to other historical evidence. And
I don't know what that other historicalevidence would be. Presumably, you know,
affidavits or stories by historians explain whatthey think the history is. But
the Supreme Court in Bruin was veryclear about the type of history. Specifically,

(28:36):
it has to be regulations. AndI just want to because I think
this is important because this is wherethe fight was taking place in a big
part of today's argument is the meaningof this language here from Bruin, which
again is really just an embellishment ora reiteration of the Heller test and laid
out more specifically in Bruin because alot of the lower courts were not applying
this test correctly between two thousand andeight when Heller was decided in twenty twenty

(29:00):
two when Brwin was decided, andthis is what Bruin said, and you'll
see why this argument today became soimportant. Specifically, they write, in
keeping with Heller, we the SupremeCourt holds that when the second amendments playing
text covers an individual's conduct. TheConstitution presumptively protects the conduct. That's the
presumption right shifts to the government tojustify its regulation. The government, in

(29:22):
this case Congress, the government maynot simply posit that the regulation promotes an
important interest. Rather, the governmentmust demonstrate, and this is the key,
that the regulation is consistent with thisnation's historical tradition of firearm regulation.
That's what Brwin says. It specificallysays nation's historical tradition of firearms regulation.

(29:47):
And one of the big issues goingon today was that Justice Brown Jackson,
just as sign of Mari and JusticeKagan, we're really trying to say that
that framework or that discussion of regulationin Bruin is not really fair. That
they could look at high level generalizedviews of history at the time the founding
or any whatever the relevant time periodis to try to glean principles from American

(30:12):
history to then in turn justify modernday gun control laws. Now, again
there's no specific issues along that linein this case, but it's pretty clear
what the Department of Justice was tryingto do is to try to influence the
way the Raheemi decision will ultimately bewritten to try to say that, yes,

(30:33):
indeed, history outside of the contextof actual laws such as state constitutions,
such as the federal constitutions, suchas common law, such as statutes,
that other things other than those things, those historical items can be considered.
And because of course, if youbroaden the scope of what can be
considered to justify modernity gun control laws, you'd increase dramatically the odds of modern

(30:56):
day gun control laws being upheld.So let me carry on. So again,
that was a big issue, butI don't think it's going to succeed
because it seemed to me, basedon that comment from Justice Gorsich, that
there were plenty of laws at thetime of the founding that said that if
you were violent you could be disarmed. They're not seem to be allowed of
controversy on that proposition. So Ithink we are going to see a decision

(31:18):
in Raheemi that says that if youare violent physically violent, you can be
disarmed at least during the period oftime that you are deemed violent, and
that nine twenty two is facially constitutional. Now, just a couple other items
I do want to flag. Someof the people were wondering whether or not.
The decision as to whether not misterRaheemi himself is part of the people

(31:41):
would occur at the textual level,because again, as I pointed out in
Bruin and Heller, you start withto text the Constitution, then once it's
satisfied, you shift to the historicaltradition of government regulation of firearms in this
country. Now, the Department ofJustice in their briefs was trying to argue
that Raheemi, who undeniably is anAmerican citizen, that mister Rahimi actually was

(32:06):
not part of the people as inthe defense, as in the word or
term as it's used in the SecondAmendment, i e. The right of
the people to keep in bear armsshall not be infringed. The Department of
Justice in their brief and really laserfocused to say that mister Raheemi, by
virtue of his conduct, would bepulled out textually from the word the people.
But that really did not get alot of play in today's oral argument,

(32:30):
because I think it's pretty straightforward ifyou look at the Heller case and
Bruin, they define the people asbasically all American citizens and then some anyone
that's connected in any real continuous waywith the United States, which obviously includes
American citizens are part of the peopletextually, And of course, keep in
mind that the people is not justfound in the Second Amendment. That phrase

(32:51):
is also found in the First Amendmentand the Fourth Amendment. And I don't
think there's going to be any suggestionthat if somebody who's violent or danger or
responsible and gets pulled out of thepeople textually from the Second Amendment, they
would also theoretically be pulled out ofthe text of the First Amendment and the
Fourth Amendment, and that would bequite shocking to a lot of people that
have already been convicted of crimes nolonger have Fourth Amendment rights to a search

(33:13):
to assert the exclusionary rule, orarguments against unreasonable searches and seizures. So
I think that the argument DJ madeand spend a lot of time on in
the brief is not going to goanywhere in terms of mister Rhemi is not
part of the people. Again,I think the issue will turn on whether
or not historically mister Raheemi can bedisarmed as a matter of the tradition in
America of disarming violent people. Theother thing, excuse me, The only

(33:37):
other point I will make here beforeI open it up the questions I've been
going about thirty minutes is this.There were two very powerful arguments that were
made in the Amikas briefs that Iactually think will have real play down the
road, but not going to haveplay here, and it's prettypparent it's not
going. One is due process arguments. It's clear that the Supreme Court is
interested in what kind of level ofdue process might be required before you can

(34:00):
be deprived of the fundamental right tokeep in their arms. Obviously we know
in the context of those people thatare mentally ill and are involuntarily committed,
there's a whole host of protections associatedwith that process under what are often known
as the Baker Acts or civil commitmentstatutes. Those require availability of attorneys and
experts, and that they can't affordit, you know, they're provided with

(34:22):
it by the state, a highstandard of clear and convincing evidence, an
actual trial, the ability to confrontwitnesses, and so on and so on.
So I think the due process issueis going to play a big role
in future eighteen USC. Nine totwenty two G eight cases. But basically
everyone agreed that this had been waivedand wasn't really part of the question presented.

(34:42):
It would not be dealt with inany robust way in the Reheeming case.
But look for due process issues associatedwith First Amendment I should say Second
Amendment challenges down the road. Theother thing that I think is very powerful
is there was a very powerful commerceclause argument using a whole host of precedents,
saying that there is nothing in Articleone of a US Constitution that would
allow Congress to step in and dowhat they're doing visa VI. These local

(35:07):
law enforcement activities, which Course nineto twenty two G eight deals with local
domestic violence restraining orders done at thestate level or the local level. And
I think there is a pretty goodargument based on some commerce clause arguments that
have prevailed in the past, including, for example, the case involving I
think the Violence Against Women's Act.So I do think you we're going to

(35:28):
start to see some commerce clause argumentsagainst some of these federal statutes. Obviously,
that argument would not apply to guncontrol law enacted at the state level
because you don't have an Article oneprom or interstate commerce problem interstate interstate commerce
argument. But I do think weshould keep our eyes on that coming down
the pike. And with that said, that is my quick summary and I'll
be happy to answer any questions.Obviously a lot of news. Ninety minutes

(35:52):
was a long argument, a lotof back and forth. I think both
lawyers did a great job, andI have to applaud specifically Matthew Right.
Tough case. I think, atough client, probably a lot of difficulties,
and I think he did an upstandingjob and an extremely difficult case against
the Solicitor General of the United States. So those federal public defenders, they
have tough jobs, and Matthew Wright, I think acquitted himself well today.

(36:14):
So happy to open up the questions. Well, thank you for that presentation.
Really appreciate it, and I knowour audience has already some many questions,
so we'll just top straight in.First question from our audience. Do
you have a take on why thecourt didn't address Article one arguments today?
Yeah, I think it was viewedas waived because it was discussed to some

(36:35):
degrade, But basically, from allevidence, the argument about the commerce clause
and Article one was not discussed,presumably because it wasn't raised in time.
Also, the question presented in Raheemiitself specific to the Second Amendment. But
I think at the end of theday, if you look at the record,
it appears as if the commerce clauseargument had not been made previously.

(36:58):
That's not the stay. It's nota great argument, but I think in
this context it was waived and notraised, and I think that's probably the
problem in this context. Got it. Next question, do you think Justice
core susa's comments about the appropriate levelof generality going both ways? We're hinting
at semi automatic rifle bands and magazinecapacity limits and whether're not those violate second

(37:19):
moment? Well, actually, Ihave a note. I'll tell you this.
The answer is for those of youinterested in the quote unquote assault weapon
bands, very good news for you, because there's two concessions that were made,
one specific to now. Just justto be clear about our terminology,
the phrase assault weapon is a politicalpropaganda term. Anything can be an assault

(37:45):
weapon. If I pick up acandlestick and hit someone over the head,
it's an assault weapon. Right.So with that said, what we're really
talking about when we talk about quoteunquote assault weapon cases are commonly owned semi
automatic rifles and magazines that hold morethan ten rounds. That's right down in
the middle. That's what we're talkingabout. No different than these semi automatic

(38:06):
pistols and the handguns and the revolversprotected in Heller in two thousand and eight
and reference in the Kitano Concurrence byJustice Solito again in twenty sixteen. Now,
when that said critical and this issomething that's important. When the Solicitor
General was arguing this morning, shesaid, I made a note of this.

(38:30):
She said that once the Supreme Courtdetermines the relevant historical principle, there
is no need to go back anddo a historical analysis. Now, this
is damning for those that are thosejurisdictions that are trying to enact semi automatic
bands of semi automatic rifles or magazinesor any kind of arms. And here's

(38:54):
why the Heller decision did the methodologywe talked about, which is the brief
methodology, they're the same. Youstart with the text burnished us to the
government. Then you do the historicalwork at the historical regulator or I should
say the historical analog level. That'sthe legal interpretation. That's the process where
you interpret the Second Amendment. Nowat the end of that process that gives

(39:19):
rise to a legal test. Andthe Supreme Court in Heller came up with
the legal test, having done textsfirst in history. Second, they came
up with the legal test of ifan arm. If an arm is in
common use today by Americans for lawfulpurposes, it cannot be banned. So
by this concession here, and I'msure you're going to see this quoted in

(39:43):
Second Amendment related briefs down the road, the Attorney General of the United States
and this Solicitory General have said thatonce the Supreme Court decides the legal test
governing a particular kind of Second Amendmentchallenge, that's it. It's game over.
It's just positive. And when youlook at Heller, it's dispositive that
the legal test for any kind ofarms band, such as quote unquote assault

(40:05):
weapon bands, is the incommon usetest. I income, if it's in
common use for Americans for love ofperson, it cannot have been. And
the reason why that is is becausethe historical laws that the Heller case figured
out was that the only historical traditionof banning any kind of arm at the
time of the founting were those bandsthat prevented carrying dangerous and unusual dangerous and

(40:30):
unusual guns. And if something isin common use, it cannot by definition
be dangerous and unusual because it cannotbe unusual. So this morning's concession by
the Solicitor General and the Department ofJustice to me is an extremely big deal,
not a good deal if you laygun control and bans on a quote
unquote assault weapons, and a positivedeal if you support the Second Amendment right

(40:52):
to keeping worms as ridden. Thankyou. We have a couple of questions
have been relating to this issue dangerousnessand groups being classified ins dangerousness, So
I'll roll them into one. Ifthe Court does proceed with the dangerous dangerousness
standard, what would be sort ofthe restrictions limitations on Congress deeming particular groups

(41:16):
dangerous? Well, I think thatthere's well, there's two theories that are
being advanced in today's argument, soto be fair, I'll touch on each
of them. The Department of Justice'sargument is that really decisions about So they
really said, look, if you'redangerous, you can be disarmed. But
then they went on to say,and this is the Solicitor General's office,

(41:37):
that the determinator, the person thatdecides ooh is dangerous, and what constitutes
dangerousness is the legislative body. Sothere's this notion in the argument today by
the Solicitor General that we are todefer to Congress at the federal level and
the state legislatures at the local levelto determine what is dangerous. Now,

(41:58):
that's highly unlie likely to think thatthe article three judges in the Supreme Court
are going to allow Congress to simplylabel something dangerous without real pushback in his
analysis, So, I don't thinkthat's going to fly, But that was
the argument by the Department of Justice. But then if you look at what
dangers is, I think it's prettyclear what we're talking about is violence,
physical violence, not metaphors like oh, that presidential candidate is a danger to

(42:22):
democracy. I don't think that's goingto fly under the second amendent analysis.
But again, I think we're reallytalking about violence. People who aren't violent
to themselves or to others is whatwe're really talking about dangerousness. And I
should note when I mentioned that Rangecase is pending, that really is the
critical issue in the Range case,because the Third Circuit on Bank said that

(42:44):
mister Range gets his you know,he never loses his Second Amendment rights under
nine to twenty two G one becausehe was never found by anyone to ever
be violent or dangerous or anything,and thus he has his right to keep
him by arms. It cannot betaken away by Congress. So I do
think and keep in mind, justfor those of you who remember Confirmation hearings,
one of the reasons why I thinkJustice Barrett actually got on the Supreme

(43:06):
Court is because of a very powerful, well thought out originalist decision that she
wrote in a dissent in the caseof Cantor versus Bar when she was on
the Court of Appeals. And inthat case she said that nonviolent felons under
certain circumstances can indeed get their gunrights back or never lose their gun rights
because they're not found to be dangerous. And she did an originalist analysis.

(43:28):
And I think that dissent she wrotein Canter versus Bar is significant because that
was certainly helped her get on theSupreme Court. As my guess, and
I think that you know, she'swell verse, and she is the one
that brought up the Range case.So I do think the next this case,
coupled with range is going to behow they really draw that line,
because what we're talking about here isline drawing. Who's on one side of

(43:50):
the line as dangerous and who's onthe other side of the line as not
dangerous. Got it? Thank you. Other question, and this is more
general. You mentioned that the randomcase. Are there other Seconmendment cases coming
up or possibly coming up in thisterm? Well, there are four gun
really right? You have the Raheemicase and possibly the range case. You

(44:14):
also, of course have this isnot specific to guns per se, but
you have the First Amendment case involvingthe ner I think is NRA versus Vuloh.
I think I pronounced that correctly.That came out of the second circuit.
I'd say that's by the NRA,so obviously touches on guns. Of
it is the NRA. That's aFirst Amendment argument about whether or not the
State of New York engaged in sortof violations of the NRA. Is First

(44:36):
Amendment political speech that familiar with that, But that's the gist of it.
And you also have Shart has beengranted to the so called bump stock case,
which is a very big deal.If you start talking about regulatory issues
facing gun companies, people in thegun space, people that don't stabilizing braces,
frames and receivers again, those sortof technical issues. So right now
there's three gun cases, and ifRanges granted cert there will be for gun

(44:59):
related cases before the Supreme Court,two of which will touch on the Second
Amendment. And with that said,I actually did a video on the four
box of Diner channel just the otherday on a case that was argued out
of the Fifth Circuit. In thatcase that speaks to, I believe eighteen
to twenty year olds, and onething we should be looking down the chessboard
at is will there be an eighteento twenty year old case that says that

(45:22):
eighteen to twenty year olds are partof the people textually and there's no historical
basis to disarm eighteen to twenty yearolds. In fact, it's just the
reverse, because if you look atthe Militia Act of seventeen ninety two,
adopted by Congress literally one year afterthe Second Amendment became the law of the
land, eighteen to twenty year oldswere actually part of the so called national

(45:43):
militia who had an obligation to bringwith them to militia musters their very own
privately procured firearms, ammunition, blackpowder, rifles, and muscuts and one
now, so obviously eighteen to twentyyear olds had a right to acquire guns
at the time of our founding becausethey have a rage to acquired guns at
the time of the founding, theycouldn't have shown up from militia duty,

(46:04):
which was of course, you know, connected the Militiact to seventeen ninet two.
So I think the next case comingup, if you want to look
down the chessboard, is probably thatcase out of the Fifth Circuit dealing with
federal firearms dealers being able to sellguns to eighteen to twenty year olds.
I think that's a federal statute that'slikely going to be struck down by the
Fifth Circuit. That means the Departmentof Justice will speak cert next spring,
I'm guessing, and we'll have togrant cert because whenever our federal statute struck

(46:28):
down and the SG asked for acert it's almost always granted. So I
think that will be a case fornext term. If you're trying to look
down the chessboard, got it.Continuing on on the question of other cases,
an audience member asks, and youmay have touched on this a little
bit in your sort of opening,how will today's arguments affect the Range case,

(46:50):
help, hurt, etc. Ithink it's going to increase the odds
of Range being granted CERT. TheDepartment, As I mentioned, you know,
the Department of Justice had an opportunitybecause the Department of Justice argument is
that Range should not be dog.I should argue that they argue that the
Range case should be granted CERT,but that it should be held pending the
outcome in Raheemi, because they're interrelatedand the same concept. But the Range

(47:15):
lawyers came back and said no,they're different because Raheemi deals with the civil
process of disarming people under nine twentytwo G eight, people who are getting
disarmed civilly who have never been convictedof a crime. It's really a form
of, if you think about it, preventative justice, trying to prevent prevents
someone ahead of time from doing violence. In contrasts the Range cases, someone

(47:38):
has been convicted of a crime already, but because the crime had nothing to
do with violence or danger or anythinglike that, they should never lose their
right to keep them there arms regardlessof how Congress defines the law. So
and again, I think the Departmentof Justice Solicitor General's office had an opportunity
to try to explain how they're interrelated, but instead, as I understand the

(48:00):
argument, the Solicitor General actually brokethem apart into separate buckets, which I
think dramatically increases the odds of itbeing GRANTEDSERT and that range being GRANTEDSERT,
because now there's no need to holdit back because this solicster General just said
they're really distinct problems. Thank you. Another audience question, you mentioned the

(48:21):
Commerce Clause as a basis to attacksection ninet twenty two. Is it likely
to be the avenue the topples lawslike nine twenty two OHO in the wake
is Miller and Duncan b Bonta,what are other barriers to go to his
hearing such a challenge. Well,I think Duncan, b Bonta and Miller
out. If you're talking about thestate cases. I don't think the Commerce

(48:42):
Clause helps there, because, asI mentioned, the Commerce Clause is really
something that is a restriction on federalauthority, federal power, because you're trying
to interpret Article one of the UnitedStates Constitution. Article one is the list
of a numerate of powers given tothe Congress. But Miller, I think
Miller versus Manta and Duncan versus Bontothose arise out of California state laws.

(49:04):
So you really aren't going to havea commerce clause problem there. But yeah,
I do think that you could havestrong commerce clause arguments going forward.
Keep in mind that before Judge thenJudge Alital became Justice Alleital, he wrote
a descent in a case called Ryebar Rybar. In that case, he

(49:27):
said that in his descent that awhat's known as the Hughes Amendment and the
Huge Amendment says that you can nowlonger make and manufacture new machine guns for
Americans outside of exceptions for law enforcementand manufacturers and whatnot, but ordinary Americans
cannot buy new machine guns after nineteeneighty six. And in his descent,
Justice Alito asked, well, howis this ban on making and ban on

(49:53):
acquiring new machine guns manufactured after nineteeneighty six? How is this consistent with
Article one Commerce claw jurisprudnce. Nowthat was decided by Judge Alito in the
nineteen nineties, and the ride ofour case, but I do think that
there will be more of a focuson federal power. We are certainly seeing
concerns by this Supreme Court about,for example, presidential power and executive power

(50:15):
with some of their regulatory case issues, which is why I think the bumpstock
case is an issue of ATF authority, and of course the Loper Bright case
dealing with I believe that's want.I don't want to strew this up,
but it's one of the fish andwildlife related federal agencies. Which is the
question presented there is is the Chevroondoctrine still good law or should we overturn

(50:37):
it? That's a big deal andthat's coming up this term. And of
course, you know, cutting backon federal government authority, meaning bringing it
back to as where it was originallyby our founding fathers visions certainly something the
Supreme Court appears to be attuned to. Next audience question. There was some
interest from bron Jackson and Solcergenner andrewriting what they termed confusing Brewin test.

(51:01):
Given the arguments today, how likelyis a new Secondmendment test given the result
of this case. I'm sorry becauseyou just say, say, what kind
isfully so there was some interest atleast from just Brown Jackson in this listener
of General in rewriting what they termedthe confusing Brewin test. Given the arguments

(51:21):
today, how likely is a newSecond Amendment test to be the result in
this case? Yeah, I thinkat this point after an argument is zero
percent. And just to take thatquestion a little bit to the next level,
why I think it's zero percent.Like I said, there Brown and
Justice Brown Jackson, Justice King andJustice some are there was back and forth
with like the Department of Justice aboutagain, how do we deal with problems

(51:44):
where there is no historical tradition ofregulating guns and yet we want to regular
guns today? And the answer aswell, you know you can because you
know, unless you want to amendthe Constitution, the Constitution is what it
means at the time it was adoptedin seventeen ninety one. This is the
critical language from the case that therewas a lot of back and forth on,
and it's crystal clear. And there'sabsolutely nothing that occurred in the briefing

(52:06):
or absolutely nothing that occurred in ourargument today that I think will cause the
Supreme Court to cut back on whatI'm about to read, which could not
be clearer. And keep in mindsix that's six Supreme Court justices sign off
what I'm about to read in thebrewin case, this is what it says,
quote, when a challenge regulation addressesa general societal problem that has persisted

(52:30):
since the eighteenth century, the lackof a distinctly similar historical regulation addressing that
problem is relevant evidence that the challengeregulation is inconsistent with the Second Amendment.
And then it goes on. Iwon't read all of this, but the
bottom line is it's crystal clear thatif there's a general social problem that has

(52:50):
existed since the eighteenth century, andthis is where you've got into some of
the debate about domestic violence, diddomestic violence exist at the time of the
Founding and wasn't viewed as a problem, because obviously the Department of Justice doesn't
like this language. Because if youhave domestic violence as a legitimate not a
legitimate, but a real problem thatwas considered and dealt with at the time
of the Founding in the eighteenth century, and one of the solutions was no

(53:13):
gun control, that does cut backon the power and historical traditions of American
government being able to regulate this,and that is why they were trying to
say that domestic vince was not consideredviolence at the time of the founding.
And also you know the fact thatthey can't find historical regulations. Again,
the critical, the dirty little secrethere is for those people that support more

(53:37):
gun control in America, they desperatelydo not want to be limited to simply
referring to laws on the books atthe time of the founding, even though
there were massive numbers of laws onthe books again, federal constitutions, state
constitutions, common law, blaxos commentary, summarizing laws, you know, all
these things, including statutory law.You got tons of laws. It's just

(53:59):
none of them really help them dowhat they want to do in the modern
gun control context. And is anythinggoing to change Based on what I just
read from Ruin, I think theanswer is absolutely not, although that was
a legitimate concern as of nine thirtyam Eastern time this morning. But the
way this argument went, I wouldsay it's now basically zero percent. But
of course we do won't know untilwe see the opinion. But my guess

(54:21):
is that viewpoint, the gun controlviewpoint, the Merrick Garland viewpoint, probably
is not going to get very farwith Raheemi got it. Well, thank
you appreciate it. I know we'realmost to the top of the hour,
but I'll try to get at leastone, maybe a couple more questions in.
An audience member asks. So itseems a question was asked about CCW

(54:45):
holders. Will this lead to strikingdown the good moral character requirement that is
used in the crony process of somestates. Well, we have an extremely
smart group of commentators and questioners,so there actually is very interesting information on
that front that came out of thismorning's argument. This is another concession that

(55:07):
the Solicitor General made, which againfascinating that they hadn't thought in I don't
know my view, it doesn't appearlike they thought this through, maybe as
far as they needed to. Specificallywhat the estually argued and you'll see why
this involves concealed carry weapons holders.The Solicitor General basically talked about that when

(55:27):
you're dealing with discretionary evaluation of dangerousness, of dangerousness it is likely not allowed
by executive officials. Now, whyis that so important? The Solicitor General
this morning was really arguing that thebranch of government that can make the determination
about who's dangerous and who's not.Is the legislature, the Congress, state

(55:52):
legislature, not the executive branch.Now, who exactly is responsible for dealing
with a lot of these cons carryweapons licensing applications and processes? These are
executive branch officials. These are eitherlaw enforcement officials. These are either people
that work ultimately for governors and states, they're the state police department. These

(56:13):
are executive officers. But if youlook at it, and we'll double check
the transcerp, but if you lookat what the Department of Justice argued this
morning, it seems to say thatthose executive officers, which is the police
department. Police department is executive.That's not a legislative function. That's an
executive function of enforcing the law createdby the legislature. So, according to
the DOJ argument this morning, thediscretion would be taken away from those executive

(56:37):
branch officials, which would include thoselaw enforcement agents and officers who are responsible
for doling out concealed carry permits andseveral states across the country under Shaw issue
permitting regimes. Got it. Thelast question, if responsible is narrowed to

(56:57):
mean dangerous. How could this impactother pending nine twenty two G cases that
deal with habitual drug users and possessionof firearm no suggestion of violence. Well,
before we close, I just wantto say if anyone has additional questions,
it's I get a thousand. Iget like thousands of comments every week,
so it's difficult for me to getto everyone. But if you go
to my YouTube channel, the FourBoxes Diner and your comment there, I

(57:20):
can often respond there. But Imean it's I can't guarantee it. But
if there's people that have questions thatwant to continue to ask me that you
can try it there or on xatfour Boxes down and you can check it
out there. Sometimes they can getto these questions. But with that said,
the issue here is go Kayla.Is the issue about go ahead?
Read that one more time. Ijust want to make sure I get that
right. The question is about ninetwentytwo G cases that deal with habitual drug

(57:45):
users in possession of firearms who haveno suggestion of violence. Yep. Well,
I think that's a great question.I think it's a difficult question in
one sense, in an easy oneanother sense. I think where and this
goes back to line drawing like whois dangerous and who it falls on the
bad side of dangerousness, and whofalls on the good side, meaning not
dangerous. And I think when youstart to deal with activities like and I

(58:07):
think it turns on this. Ifyou're dealing with drug dealing, you're in
the business of drugs. It's yourprofession, if you will. I think
there's a very good argument that thatconduct could very well be beamed dangerous because
the only way to enforce your contracts, if you will, with fellow drug
dealers is presumably by using violence toenforce your arrangements, because you certainly cannot

(58:31):
go to court and say, hey, he sole my cocaine and owes me
twenty percent on the sale. That'snot going to fly. So I could
see a situation where drug dealing wouldbe viewed as violent because it gives rise
to violence. That's how you enforcethe law of your world. Is kind
of like the mafia. The waythey enforce their law, if you will,

(58:52):
on the streets was through the threatof violence. In contrast, I
do think if you're dealing with youknow, hot use, you know,
things like that, obviously, youknow, maybe a different world, especially
where you see the loosening of thesestate pot laws, which is kind of
on because marijuana remains a regulated substanceunder federal law, but a lot of
the states are just letting it goand the Feds don't seem to be doing

(59:14):
much about it. So yeah,I think there's going to have to be
some line drawing here. But Ido think, just conceptually, and don't
hold me to this, if Iwrite a lawry five years from now,
that says something else. But Ido think conceptually drug dealing could be probably
viewed as dangerousness, or organized crimecould be viewed as like door dangerous,
and I think maybe ordinary use perhapsnot so much. I think maybe that's

(59:34):
more kin to like being intoxicated,where if you're actually intoxicated with a gun
at the time in the founding,that could be a problem. But if
you're in a tavern where people aredrinking and you're not drunk, but you're
just around drinking, or sometimes youdrink at home, I'm not quite sure
that would be dangerous. But again, these line drawing exercises will have to
play out down the road, probablyafter Raheemi's decided and maybe range, and

(59:58):
then after that we'll be able todo a better of drawing lines as to
what's dangerousness and what is not dangerousness. Well, got it. I really
appreciate you taking the time. We'llhave to wrap it there. Unfortunately we're
at the top of the hour.I know we didn't get to all the
audience questions, but we really appreciateyou joining us. Fris Smith, thank
you for your time to expertise Ithink, to our audience for joining and

(01:00:19):
participating. As always, we welcomelistener feedback by email at info at feddashsoft
dot org. And as always,keep an eye on our website and you're
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later this week the live streams ofall our National Lawyer's Convention panels which will
happen Thursday through Saturday, including apanel featuring Professor Smith, which will happen

(01:00:43):
I think eleven a m Eastern onSaturday, so audience feel free to tune
in, and with that we canwrap it up. Thank you all for
joining us today. We are adjourned. Thank you for listening to this episode
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