Mechanical / Animal

[00:00:11] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:27] [Dan Epps] And I'm Dan Epps. So, Will, it's that time of the year when the court is finally dumping everything on us.

[00:00:34] [Will] They're flooding the zone. They're keeping the podcasters from talking about jurisdiction or immigration or—

[00:00:40] [Dan] Yeah. We will get back to some of the things that we're going to miss this week. You might have to wait until later in July, but I want to talk about a lot of cases that are coming down and that will be coming down. We're in triage mode at the moment. So we're recording on the afternoon of Thursday, June 25th. The court released another batch of opinions since our recording session on— was that yesterday? Wednesday?

[00:01:11] [Will] I don't know.

[00:01:11] [Dan] I think it was. And they're medium to big, I would say.

[00:01:16] [Will] Yeah, big. Medium to big. Okay, sure.

[00:01:19] [Dan] Medium to big. Medium to big. Not the biggest, biggest, but we're getting into that period where we really start to get the blockbusters.

[00:01:29] [Will] The outstanding cases left are the unitary executive cases, Cook and Slaughter, the transgender athlete cases, two election law cases, the campaign finance case and the Election Day case, birthright citizenship.

[00:01:44] [Dan] Birthright citizenship.

[00:01:45] [Will] And Chatrie, the geofencing case.

[00:01:47] [Dan] Yeah. All big ones.

[00:01:49] [Will] Except the campaign finance case.

[00:01:51] [Dan] I would say. Well, I mean, I don't know. It could be big.

[00:01:54] [Will] If Roman Martinez pulls out any votes, it will be a big case.

[00:01:58] [Dan] Oh, you think it's any votes?

[00:02:02] [Will] I mean—

[00:02:03] [Dan] You don't think it'll be a conservative-liberal?

[00:02:06] [Will] Maybe you're right.

[00:02:08] [Dan] Usually those election cases, campaign finance First Amendment cases turn out that way.

[00:02:14] [Will] He came up with these great jurisdictional arguments, which are probably correct. Among other things, it's not clear the case is either not ripe or moot because it's not clear who the candidates are. The best part of which, I don't know if you followed this, is that JD Vance, who's supposedly one of the plaintiffs in the case, it's not clear what election he's a plaintiff with respect to. He sued when he was running for Senate, but he's obviously not running for Senate again. And he will not say that he is a candidate for the presidency in 2028.

[00:02:44] [Dan] Yeah, that seems like a standing issue, right?

[00:02:48] [Will] Yeah. I mean, it should be. Now, everybody knows he's a candidate for the presidency in 2028, but at some point, the fact that you won't say you are should matter, but it won't.

[00:03:01] [Dan] Okay. Well, we will see. The court is not going to release opinions on Friday, June 26th. It will be releasing opinions on Monday, the 29th.

[00:03:14] [Will] Okay. I'll clear my calendar.

[00:03:15] [Dan] That almost certainly will not be the final day. I think maybe they can get done before July by having a meaty day on Monday and then a meaty day on Tuesday.

[00:03:29] [Will] Yeah, this is right. This is right.

[00:03:31] [Dan] So my hope is that we'll record once, twice, maybe even three times next week to clear the deck a little bit, and then we will be in our mini hiatus.

[00:03:46] [Will] All right.

[00:03:47] [Dan] Okay. So any other small items before we get into substance and tell you what decisions have come down and which ones we're going to talk about?

[00:03:56] [Will] There's one interesting blog post I saw on the Volokh Conspiracy by Josh Blackman, "Did Justice Jackson lose the majority in Landor to Justice Gorsuch?" That hypothesizes that Landor was a flip, that Justice Jackson had the assignment and then Justice Gorsuch took it over, and gives various arguments for why that might be true. And of course, it took a long time. We talked about that. I texted this to you, and you expressed skepticism.

[00:04:28] [Dan] I mean, mainly because it's a lot less plausible for there to be two votes that flip.

[00:04:34] [Will] Well, okay.

[00:04:36] [Dan] You tend to see these flips in cases that go 5-4 to 4-5 or whatever.

[00:04:42] [Will] Yeah.

[00:04:42] [Dan] But I mean, so you'd need two people to then move in lockstep together.

[00:04:48] [Will] Right. So aside from how long the opinion took to issue, which I think we can't put too much stock in, here are— I don't really believe this theory, but here are two points that do give me some pause. So one is Justice Gorsuch has two November assignments and Justice Jackson doesn't have any. And Justice Gorsuch's other— now sometimes that happens just because the wrong people are in the majority, but Justice Gorsuch's other majority assignment was Rico v. United States, a case we've barely thought of that was 8-1 with a dissent only by Justice Alito. So if you knew that Justice Gorsuch is writing Landor, why can that case not be written by Justice Jackson? That's, I guess, just one question. And then the only other thought is we talked a little bit about how Landor has these two issues, the statutory issue and the constitutional issue, and then avoids the statutory issue to decide the constitutional question instead. And that's weird.

[00:05:44] [Dan] Yeah.

[00:05:44] [Will] And you could imagine that weirdness is connected to flip, that Landor was going to win on statutory grounds and then Justice Gorsuch wrote a constitutional dissent that was sufficiently persuasive that it pulled people off or something. I don't know. But the assignment lineup and then the sort of weirdness we talked about, about what grounds they resolve on, maybe those are two ingredients for something interesting going on behind the scenes.

[00:06:07] [Dan] Yeah. No, I mean, it's interesting. I'm not going to dismiss it out of hand.

[00:06:13] [Will] Now, again, a flip in which— I don't think it's true, but if you imagine a flip in which originally Landor was going to win on a statutory interpretation question and then somehow it turned into the statute's unconstitutional, 6-3, is like a wild flip. But I just thought I'd mention it.

[00:06:28] [Dan] Okay. I don't think any other follow-up that we're going to deal with right now. We want to get into some substance. So what did we get today, Thursday?

[00:06:40] [Will] We got a lot. We got a lot. We got four cases today, Thursday. One, Monsanto v. Durnell, is a case about the preemptive effect of everyone's favorite federal statute, FIFRA. 7 U.S.C. 136, the Federal Insecticide, Fungicide, and Rodenticide Act, which apparently preempts a huge swath of state tort claims that Roundup causes cancer, argued by a friend, maybe even a friend of the show, Ashley Keller. His first Supreme Court loss, I think. But if you don't lose some cases, you're not taking enough cases, I guess.

[00:07:15] [Dan] I am not deep into the issues in that case, but it is a potentially quite consequential case for this set of issues, right? Because there are literally many thousands of these suits that have been out there in the country against Monsanto.

[00:07:34] [Will] Yeah.

[00:07:34] [Dan] And I don't know enough about the issues to know exactly how many of these that kills versus just calls into question versus doesn't affect, but presumably a lot.

[00:07:47] [Will] Yeah, I think it's a very significant case out of Missouri. This case, yes.

[00:07:52] [Dan] And one that the Wilkinson Stekloff folks have been involved in. I've never worked on the issue, as have— I think a lot of big firms have been in on these cases. I think this is a big deal for our friends in the big law defense bar, of which both of us have many.

[00:08:07] [Will] It's also interesting because it has a dissent by Justice Jackson, joined by Justice Gorsuch, the unusual 7-2.

[00:08:14] [Dan] Yeah.

[00:08:15] [Will] And a concurring opinion by Justice Thomas, who true to form believes that FIFRA is unconstitutional on both federalism and separation of powers grounds. But anyway, we're not going to talk about that. There are two big immigration wins for the Trump administration, Mullin v. Doe and Mullin v. Al Otro Lado, one about the legality of the Remain in Mexico policy and the other about the legality of terminating temporary protected status, including for Haitians, which have several interesting jurisdictional and constitutional issues in them, and I definitely want to return to them in a future episode. But not this episode.

[00:08:52] [Dan] Yeah.

[00:08:54] [Will] And then we also have Wolford v. Lopez, the Hawaii guns case.

[00:08:58] [Dan] Which is a case that we previewed. This is going to be another one where it's a 6-3 conservative win. So just to step back for one second, this week there have been, let me count them, one, two, three, four, five, six, seven conservative, 6-3 wins. The kind of classic ideological line splits, I think.

[00:09:29] [Will] We're counting just of the nine merits opinions?

[00:09:31] [Dan] Yeah. So I've got the two immigration ones, Wolford v. Lopez, Landor v. Louisiana, Blanche v. Lau, Cisco v. Doe, and— yeah, it sounds about right. That's a lot. Usually at this time of the year, they start to kind of— one, you can kind of tell whether it's a conservative term or a really conservative term, but sometimes there's ones that surprise you. I don't think there have been big surprises this week.

[00:10:00] [Will] I was surprised by Hemani, and so were you, as we established. I guess that was last week.

[00:10:04] [Dan] Yeah, I was slightly more equivocal. I don't know why we— why did you say that? In retrospect, that seems like a dumb prediction.

[00:10:11] [Will] Well, all predictions are dumb in retrospect once you know what happened.

[00:10:16] [Dan] Well, but even putting that aside, trying to evaluate it, why did you say that?

[00:10:25] [Will] Why did I say that Hemani was going to lose?

[00:10:30] [Dan] I mean, there were some really hard questions for the government at the oral argument.

[00:10:32] [Will] Because I didn't think the court took the Second Amendment seriously when it came to criminal defendants, and I was wrong. And I apologize to the court for doubting their good faith. Okay.

[00:10:45] [Dan] So the tale of the term remains to be told. I think that the common wisdom is we'll get a couple losses for the Trump administration next week, birthright citizenship and Cook, the Federal Reserve case. And maybe that will color the end-of-term recaps. But in general, I think it's turning out to be a pretty conservative term.

[00:11:08] [Will] If that happens— let's assume that happens, and of course Trump lost Learning Resources v. Trump— what that will mean is Trump lost the three cases he cared most about and the conservatives won everything else. And thus Trump will think the court is an activist court full of libs that can't be taken seriously. And all of our listeners will think the court is an activist court that— well, not all of our listeners, but— the court will just make nobody happy by issuing that combination of wins and losses.

[00:11:38] [Dan] That's possible. I don't know. It might make you happy.

[00:11:43] [Will] Not totally. I mean, I'm still mad about the Rooker-Feldman thing.

[00:11:48] [Dan] Okay, we'll get to that. That one's maybe in early August for us.

[00:11:53] [Will] Oh, God. I can't wait that long, Dan. I'm going to—

[00:11:56] [Dan] What do you think? No, it's going to be good for me because I am going to be teaching fed courts in the fall. That's something I'm excited about and terrified about because I've not taught the class before and it is maybe the hardest class in law school, both as a student and as a professor. So I will need some help with Rooker-Feldman among many other things.

[00:12:16] [Will] It's one of the most fun classes to teach. When I was on the entry-level teaching market, I had to fight with some prospective schools about whether or not I was up to the task of teaching fed courts. Nobody is ever up to the task of teaching fed courts. Fed courts teaches you, but it's great.

[00:12:34] [Dan] Well, I think you'll get there eventually. Okay, so as always, we're trying to maintain a tight schedule. So two cases to talk about, one I think we'll have a little bit more to say about than the other, that seem unrelated, but I think are actually deeply related at sort of a conceptual, methodological level.

[00:12:56] [Will] Okay.

[00:12:57] [Dan] Okay. The first one is Wolford, which is one you mentioned a second ago, which is this Hawaii Second Amendment case. Basically, can Hawaii change its property rules by saying that you cannot bring a concealed weapon onto private property absent express consent from the owner of that property? Can they do that? The court is going to say no, Second Amendment violation. And then we have this other case, which is a takings case, also a little bit of Eighth Amendment in there, Pung v. Isabella County, Michigan. This case is about when the municipality seizes somebody's property to satisfy a tax debt and then they auction it off— that is a tax auction, tax sale, very standard thing that governments all over the country do to satisfy tax debts. Whether the owner— the measure of compensation the owner gets for that seizure is the net proceeds of the sale, or whether the municipality, the government, would have to compensate the owner in terms of the actual fair market value of the property, which is significantly more than what— right— is typically gained at a tax auction. Tax auctions, for various reasons, you can get houses for significantly below what they would sell for using a traditional process with a realtor and Zillow and all that stuff. Okay. So those seem different, right?

[00:14:45] [Will] Sure. I don't want to step on your— in your appeal. Go ahead. Okay.

[00:14:51] [Dan] Well, maybe you think they are different, but they're both cases that are of interest to me. Danielle, my wife, and I are working on a follow-on to our 2023 Fourth Amendment and General Law paper that's about other places in constitutional law where the court looks to definitions of private law entitlements like property, contracts, torts in shaping the scope of federal constitutional rights. And both of these cases involve that question, right? In Wolford, the case is about can Hawaii change its law of trespass, which is both property and tort, right, traditionally, in a way that impinges on Second Amendment rights? Can it redefine that as a matter of state law, or is there some kind of basically constitutionalized, almost constitutionalized version of trespass law that overrides what Hawaii is trying to do. Likewise, in Pung v. Isabella County, part of the analysis is going to turn on what the municipality is doing here, the county— is it consistent with these broad background principles of property? We're not going to just look at the local municipal property law. The court is going to do some kind of generic trans-substantive analysis of property law. So similar methods, I think, different legal contexts, and both of these cases are ones that we're going to discuss at some length in the forthcoming paper. Not yet forthcoming. It's forthcoming to be forthcoming. We are finishing it right now and hoping to send it out in a few weeks. Okay. We can break each of them down, but what do you think about that high-level framing? Were you about to disagree with me?

[00:16:40] [Will] No, I like that high-level framing. I mean, they're both about property and background legal principles and about the relationship from the state's power over property and deviation from background legal principles. I don't know if the court is thinking about them in the same boxes. The court's Second Amendment box and its Takings Clause box might turn out to look pretty different, and maybe should look pretty different. But that doesn't mean they're not instances of the general problem.

[00:17:10] [Dan] So I would push back on that a little bit, because we do at least see in Wolford, we do see in a footnote, a citation to another case that kind of Pung builds on, Tyler v. Hennepin County. So I mean, I do think that there's maybe at least some understanding at the court that these, at some high level, these kind of questions about can states change positive laws of property in order to evade constitutional rights. I mean, they're aware of that connection.

[00:17:47] [Will] Right. I guess that's one way to think about the problem is just like how much of the positive— how much of property law is up to states and how much of it is drawn from general law principles or something like that. A different way to think of it, which might be the court's way of thinking about it, is of course property is state law, but when are changes to property law suspect? Like when do they have a kind of like suspect motivation, and I suspect motivation is changing it to get around a real constitutional right.

[00:18:15] [Dan] Yes. Yeah. That's going to lead me to a question I had for you about Wolford that we can get to in a minute.

[00:18:20] [Will] Shall we break these cases apart? If so, which case should we talk about first?

[00:18:23] [Dan] Yes. Wolford's the bigger one. Maybe we should do that one, and then we can do a little bit of comparison to Pung after that.

[00:18:31] [Will] So Wolford, we already previewed.

[00:18:33] [Dan] Go back and listen to that episode, whenever it was.

[00:18:35] [Will] Probably most listeners are already familiar with the core of it, but the core of it is that four years ago in Bruen, the Supreme Court clearly held that you have a right to carry handguns around outside the home for self-defense. This prompted Hawaii and several other states to try to figure out what to do about the fact that people were suddenly going to carry handguns around Hawaii for the first time. And so they passed a property law saying you can't carry guns onto property even when it's ordinarily open to the public, without the sort of express permission of the owner. Not necessarily in writing, but some kind of express permission of the owner.

[00:19:13] [Dan] And prior to this point— and I think everybody agrees that even if a premises is open to the public, if the owner puts up a sign that says, hey, everybody can come shop here but no guns, they're allowed to do that, right? Everybody agrees you can do that if it's explicit, explicit non-consent.

[00:19:32] [Will] The default rule is when you open things to the public, you can then have implied reservations. Right.

[00:19:40] [Dan] Yeah. And so this is flipping the default, as came up at oral argument.

[00:19:45] [Will] Well, flipping the default just for guns. It's still the case that you open your property to the public, you can presumptively— there are also other things that I could express a limit. I could say no hats, no shirts, no shoes, no service. And it's not flipping the default for any of those things. Many people in Hawaii, I think, would still like to go to various places without a shirt or without shoes, and that's okay. You don't need to get the express permission of the owner to not have a shirt and not have shoes.

[00:20:11] [Dan] That's probably right. Yeah, I mean, in Hawaii, it's warm, it's tropical. I assume there's lots more places you can go there without shirts and shoes than there are in Illinois or Missouri.

[00:20:22] [Will] Yeah, it's just, it's chill.

[00:20:23] [Dan] Okay, so I find this case really interesting, and it's very hard to know how to approach it conceptually. And so the Bruen test has a few steps, right?

[00:20:42] [Will] What are those steps? Oh, I hate this. Okay, the Bruen test has two steps, as I understand it. Step one is, is this telling you you can't keep bear arms, which is a kind of broad textualist frame. Are you in the right? And then step two, once you're in the right, you have a more nuanced historical question, which is, is this regulation consistent with our tradition of regulation? And I think, again, the court thinks of this as like its free speech test. And many of my colleagues who teach and love free speech law will deny this is how free speech law works, but the court thinks of this as, in the free speech context, step one is, is this speech, which is a pretty broad frame and a lot of things are speech. And then step two is, okay, if it's speech, then we ask, is this regulation in one of the historically permitted categories of regulation, et cetera.

[00:21:38] [Dan] Yeah. Okay. And then there's this question that comes up in this case about when does history come in? I think some history comes in at step one, right? Because at least you have to figure out whether the thing is unarmed.

[00:21:51] [Will] I don't think Justice Barrett agrees with that.

[00:21:53] [Dan] Don't you at least have to figure out whether a stun gun is a firearm at the first step?

[00:22:01] [Will] You do have to figure out whether it's a stun gun. And I guess even Justice Barrett agrees history is relevant at the first step, so okay. I give you that. Yeah.

[00:22:11] [Dan] But the idea is, because I don't think it's just literally look at the text. I think there's a little— you have to read those words in context. But I don't think you then— at the first step, you don't then go do a bunch of historical analysis of laws in 1791 or 1868. Right.

[00:22:28] [Will] I mean, yeah. And it is a little confusing. Possession of nuclear weapons, right?

[00:22:35] [Dan] So I mean, on page 2 of the Barrett opinion, she says, "We looked to history that elucidates how contemporaries understood the text." So you figure out what those words mean.

[00:22:43] [Will] Right. Although, if what we know is nobody thought that bans on cannons or nuclear weapons were a problem, we might not have enough historical information to know they were not a problem because nuclear weapons were not arms, or they were not a problem because nuclear weapons were obviously something you could regulate. Yeah.

[00:23:02] [Dan] So maybe you err in favor of proceeding to the second step. I'm not sure.

[00:23:05] [Will] But so I think fight one in the case, the scissor between the majority and the dissent is, should we even think of this as a regulation of bearing arms or not? Yeah.

[00:23:19] [Dan] So can we describe that as a step zero?

[00:23:22] [Will] Well, I think the dissent might want to say it's a step zero dispute. Like, this is not even a Second Amendment case, it's a property case. But the majority thinks it has to be a step one case, because the question is, is it a Second Amendment case, which is to say, does it restrict the right to bear arms? So maybe there's a step meta-zero, zero prime, about whether or not you have a step zero or a step one, the scope of step one. Yeah. And I find that whole dispute very strange. Why? Well, I mean, it comes up in other constitutional rights too. That you have something that is in form a regulation of one body of law, but with special treatment of some constitutional right. Again, this happens in the First Amendment all the time. We say corporations can take any lawful act they want to, except they can't make campaign contributions or campaign expenditures. And then some people say, "Oh, that's not a free speech law. This is a corporations law." Other people say, "No, no, it's not a corporations law. It's a free speech law." Yeah. And I don't know if there's an answer to that question. Like, you know.

[00:24:36] [Dan] Yeah, although, I mean, it's interesting because it is— I think it is common ground that there is no right to bear arms on private property without consent. I mean, and then there's a separate question about, like, how do you define consent and what's the default, right?

[00:24:59] [Will] Well, right. So I think it's right that—

[00:25:01] [Dan] Like you do not— okay, there's at least common ground. I mean, I don't think there's common ground among all the Second Amendment folks. I think there is going to be a push. The next step will be you can't even ban them without— with express non-consent. But that if at least there's— for purposes of this case, I think there's common ground that there is no right to bear arms on private property when you have been told—

[00:25:29] [Will] Even, I think, no right might be a little bit confusing. I mean, so yes, in the sense that a property owner has the right to exclude you because of your gun, has the right to say no guns and take that gun out of my house. If it was truly no rights, there's no Second Amendment scrutiny. Imagine we said that for the First Amendment. So it's similar in the First Amendment context. There's no right to go into somebody's living room and speak if it's not your living room. But if the state passed a special trespass law that said, in general, if you disobey the host's requests when you're somewhere, he can kick you out or whatever, the normal remedies apply. But if you disobey the host's requests with respect to political speech about Donald Trump, then the death penalty, or life in prison without parole. Yeah. We might still say, well, even though there's no right to do it at all, the selective targeting of it could still violate free speech. So similarly, even though there's no right to carry a gun on private property without the owner's permission. Lots of states like Chicago and Illinois have a law that make it a crime, a different kind of crime from ordinary trespass, to carry a gun onto property without the owner's permission. And it's not obvious. I mean, this might be constitutional, but it's not obvious that's because they don't infringe the constitutional right at all. Again, they're saying that this form of trespass, trespass with a constitutional right, is a crime in a way that trespass without not wearing shoes or not wearing a shirt isn't a crime usually. Okay.

[00:26:57] [Dan] And so I think this leads me to a question that I think something you said set up a minute ago, which is, is the problem here going to be the change? There is sort of a dispute about this, but imagine that Hawaii had had a different background. In fact, Hawaii has had just a very long tradition of just totally banning firearms, which kind of means that this property question didn't really have to come up. But imagine that Hawaii had a long tradition of some limited right to concealed carry, but also had a long tradition that it required express consent. Yeah. That law now, that law, if that had been a bedrock property law principle for, you know, however long Hawaii has been admitted to the Union, would that be unconstitutional now, or is it only the change?

[00:27:54] [Will] I think that would also be a problem, because I think the court also thinks that the Second Amendment protects a, as the court puts it on page 18, the general understanding of that codified right. So an outlier legal rule adopted in a few locales is not enough. Imagine that the other 49 states have always had the traditional rule, and Hawaii has always had the opposite rule because Hawaii is weird and because the spirit of aloha moved them or whatever. I think the court would say tough. The Second Amendment means the same thing in Hawaii it means everywhere else, and so you have to assess that rule as if it were enacted anywhere else. I'm not saying I agree with that, but that seems to be the way the court thinks about it.

[00:28:33] [Dan] Yeah. So in that case, it would clearly just— the Second Amendment overrides local property law. Yeah.

[00:28:41] [Will] Now, if you imagine it's not just Hawaii, if you imagine that the country was split into two major traditions, the tradition of people who believed more strongly in guns than in property, and the tradition of people who believe more strongly in property than guns. Maybe that mapped onto urban/rural, maybe that mapped onto something else— then, and if that had always been true, then I think the court would say our history and tradition does not require one or the other. They would say the history and tradition allows either of those things. And there are some things like this, by the way. In the 19th century, Jud Campbell has an article about this, trying to chart various gun regulations and suggesting there are some places where there just clearly was a Southern tradition and a Northern tradition, which were different and were each constitutionally motivated and sincere, but they just were two rival traditions, both of which had some pretty solid status with respect to concealment, or I forget what the issues were. So you could imagine that being true for some things. Yeah. That said, the majority does begin by throwing a shade on the change a little bit.

[00:29:46] [Dan] Yeah.

[00:29:47] [Will] The setup to the opinion is like, we had Bruen, and then the small number of states we said in Bruen were being bad, "After Bruen, Hawaii and 4 other states singled out in Bruen flipped the default rule: California, Hawaii, Maryland, New Jersey, and New York. The Bruen Five." And they say, "Look, and Hawaii enacted a bunch of laws," and they list all the— another thing Hawaii did is have a very large category of so-called sensitive places, which are places you can't carry a gun even with the owner's consent, which includes every hospital, every place at which medical or health services are customarily provided, every restaurant that serves alcohol. Schools, beaches, playgrounds, fairs, water parks, every public gathering, public assembly, or special event. And then they launch into this one. They don't say the first thing is bad, but they sure imply that that list is very long and broad and problematic, even though it's not formally part of the analysis. Okay.

[00:30:49] [Dan] So let's try to break this down efficiently. So that's the majority, right? Justice Alito. And a lot of the opinion is going to be about this historical analog question. And the answer is going to be there are some laws that Hawaii pointed to to try to justify what it did here, and the court is going to conclude that those historical analogs are inadequate for a couple of reasons. Yeah. So some seemed to be primarily about poaching, hunting. And that presented certain risks that I guess are different from what Hawaii was trying to do here in the court's estimation. And then there were these laws like Louisiana's that were implemented as part of the Black Codes. Yeah. Designed to oppress newly freed slaves in the wake of the Civil War that limited their ability to bear arms on other property. And so the court is going to basically say it's almost laughable to even rely on the laws in that second category. Yeah.

[00:32:06] [Will] So I'm not sure it's wrong about either of those things, but both of them are a little weird in that— the first point, so these laws, it's not clear on their face that these laws that are anti-poaching laws or anti-closed lands laws are so limited. Like, some of them sure look like the Hawaii law. Now, again, I think maybe the court is doing a nuanced historical analysis and figuring out what the laws are really about, although I'm sure that most PhD-equipped historians would disagree with the court, for good reasons or bad reasons. And maybe these laws were enacted not in the era of textualism, but in the era of the mischief rule, and so you can't really understand what they do without understanding why they're doing it. Yeah. But it does drive home how tricky the kind of analog thing is, if even when you find a law that looks just like the law you want to enact, then you're told, "Oh, well, that one doesn't count because it was about deer." Yeah. The Black Codes thing, I mean, obviously, it's like an unwritten rule of— or now written rule of Supreme Court practice that, like, you don't want to be coming in here and saying, like, well, what we're doing is okay because it's like the Black Codes. But—

[00:33:15] [Dan] Yeah, it's a very awkward position.

[00:33:17] [Will] You might have thought that the core problem with the Black Codes was that they applied to Black people. Like, that was the inequality that was the problem, not that the things they did would be unconstitutional on other grounds if they were applied to everybody.

[00:33:34] [Dan] Yeah, and I think that this is a point that Justice Jackson makes in her dissent, which I actually thought was a good point. I think it could have been distilled a little bit more cleanly, but basically, I think what she's saying is, "Well, what's the problem with those laws? Would they have been understood at the time to be inconsistent with our tradition of gun regulation, or would, at the time, it have been thought, 'Of course, we can do this with respect to firearms if we want to'?" "but we're only choosing to exercise our legislative discretion to apply this to black people," in which case the problem is not— it actually is maybe relevant evidence on the Second Amendment question, but problematic under the Equal Protection Clause.

[00:34:19] [Will] And now, who do you think is right about that? I really don't know.

[00:34:22] [Dan] I really don't know. I think it's quite plausible that it's the second thing, that maybe there would've been some understanding that, of course, trespass law is a state law matter. That can be tweaked as needed.

[00:34:35] [Will] So I'm sympathetic to the majority on this in that, as I understand the basic run of show, the 14th Amendment is adopted to constitutionalize the Civil Rights Act, which is adopted to stop the Black Codes. And the way the 14th Amendment was supposed to do this was mostly the Privileges and Immunities Clause. Most of the thing that was supposed to make the Black Codes unconstitutional was the guarantee that all citizens had privileges and immunities. Rather than the Equal Protection Clause, the Due Process Clause. And this is disputed, but that's a conscious choice with the framers of the 14th Amendment to adopt a kind of race-neutral set of rights and liberties rather than the other tactics you might take. Yeah. But then when you got into how the Privileges and Immunities Clause was going to work and how they were going to decide what counted as an abridgment of the 14th Amendment, then maybe race came in again after all, because people agreed, well, of course you can regulate rights, you just can't regulate them, like, unreasonably, or abridge them, or do things that are not, you know, in the police power. Yeah. And so then maybe Justice Jackson's right after all, but maybe only at step— it does make me think these things do kind of go to this, like, step two reasonableness of regulation question. And yeah, then it's just not obvious to me whether— assuming we all agree that the Louisiana Black Code is an unreasonable regulation of the rights of African Americans, there might be multiple features that made it unreasonable, that it took away one of their core natural rights and that it did so without taking away the core natural rights of white people. So yeah, I find that hard. Yeah.

[00:36:12] [Dan] And so it's interesting. It's a very strident dissent by Justice Jackson, really calling out the entire Bruen project and saying it is very kind of malleable and gives the court license to kind of strike down gun laws when it wants to. I think that maybe lands a little bit. I mean, I come away from reading opinions like this and Hemani and Rahimi, and I just— like, we talked about this a little bit last time, but like, this is nowhere near algorithmic. And I think that there's a lot of hard, you know, value-laden questions that have no clear answers about this level of generality question. When you say, "There's this old law. It's like this law today for this reason, or it's not like this law today, and do you look at the specific reason that the law was enacted or the more general reason?" I don't know.

[00:37:11] [Will] I mean, so look, the majority agrees with you, right? So one of my favorite parts is on page 9, where Justice Alito says, "Application of step two of the Bruen framework called for a more difficult exercise of judgment." And then they note that in Rahimi, Justice Thomas and the majority came out to different conclusions. And they say, "That fact, the fact that dissent applied the same test but came to the opposite conclusion, shows, exhibits how Heller's history-based methodology, true to the warning contained in that groundbreaking decision, is not mechanical." So I think everybody's on the same page that it's not mechanical. Yeah.

[00:37:45] [Dan] But the question, I guess, is how not mechanical?

[00:37:48] [Will] I think how not— well, and just whether the court is doing it well. It's fine, I think, to have law that's not mechanical. And then you want to know, okay, well, if it's not mechanical, presumably it's animal. And if it's animal, what kind of animal is it? It could be that it's not mechanical, but the court's judgments are kind of reasonable and correct, or at least reasonable and defensible, and the other would also be defensible. The one thing that I don't love, or the one thing I mean— my sense of the 19th century case law like this that they're drawing upon, and this is something Robert Leider and I have written about in our general law article that I wrote about a little bit in a second piece about Rahimi, is that indeed the law was not malleable, but the law in the 19th century just had some balancing to it. Part of the question they asked was, "What's the extent of the restriction on the right, and what are the reasons for it, and are the reasons sufficiently good?" And that's the one thing that Bruen says you're never supposed to do, and the court still says you're not supposed to do. But it looks like they're coming increasingly close to doing it.

[00:38:55] [Dan] In choosing how to draw the analogies. Yeah.

[00:38:59] [Will] I mean, the court thinks that the law in Hemani and the law here are both overly broad, not sufficiently tethered to a reasonable purpose in light of how broad they are. And like, Justice Scalia even has a kind of long, poor-Joshua-type hypothetical about, like, a woman who needs a stun gun to defend herself— Jaime Caetano, a young Boston woman who came up in Caetano v. Massachusetts— and like, what would happen if she were trying to shop for groceries? I had forgotten about this case.

[00:39:29] [Dan] It was a little summary reversal. Yeah, you can never forget this case.

[00:39:32] [Will] This is the other unanimous Second Amendment case. Or at least possibly unanimous. Some reversals, we don't know for sure. And it seems like that's what's driving it. That's not totally unreasonable. It is the kind of balancing that the same Justices purport to condemn here and elsewhere. So it's a little awkward. Yeah.

[00:39:55] [Dan] Did you also notice that in Justice Jackson's dissent, she kind of calls out Alito a little bit for what he said in his dissent in Ramos v. Louisiana, which is the crim pro case from six years ago about non-unanimous juries. Oh, I think I remember this. In that case, one of the things that the majority by Justice Gorsuch harped on was that— this is actually Louisiana again. The Louisiana law that had allowed for non-unanimous juries had clearly racist motivations. It was passed in the wake of the Civil War, designed to make it less likely that even if you ended up with Black jurors, that they would have any power. And it kind of makes a big deal about that. And that made Alito very mad. He leads off his dissent by saying this has nothing to do with anything. It's totally not relevant. Yeah. It's not the same exact thing. It's not a perfect gotcha, but before I even got to the Jackson dissent, that was the first thing I thought of when I got to the majority's discussion of the Black Codes. Yeah.

[00:41:00] [Will] Well, maybe Alito's just following precedent.

[00:41:02] [Dan] The precedent of his—

[00:41:05] [Will] Ramos v. Louisiana, on the question of whether or not you should consider the racist origins of regulations of Bill of Rights, he lost, and so. That's possible. No, I've— yeah. Okay.

[00:41:21] [Dan] So then we should get to our other case, but should we just talk about the other separate opinions? Sure. Is there anything else you want to say? So we have a Barrett concurrence that is 14 pages, so it's a meaty concurrence. It's not a concurrence in the judgment. She's fully on board, and Justice Thomas and Justice Gorsuch join for a small part of it. What do you think she's trying to accomplish there?

[00:41:51] [Will] Well, as usual, I think she is actually imposing a— and she's trying to explain what's going on in a more conceptual way and maybe a more rigorous way. And so I think she's— I mean, she's trying to say, look, what these analogues show is that you can flip the default rule if you have a good reason, if you have a problem, and if you'd flip it as the places where the reason obtains. And so with the possible exception of New Jersey, what they did was they flipped the default rule with respect to a certain category of property where there was a certain problem. And here they're doing something much broader, and that makes it different. And this picks up on something she was asking in oral argument, which was like, suppose you had a rash of armed robberies at gas stations. Could they flip the default rule at gas stations? Yeah. I think she thinks the answer is yes, even though—

[00:42:45] [Dan] Yeah, not clear that the others think that.

[00:42:47] [Will] Right, not clear the others think that, not clear that the lawyer for the petitioners thought that. But what she doesn't think is just because you had armed robberies at gas stations, you could flip the default rule for everybody. And that's, again, a kind of reasonableness, scope type inquiry that makes sense to me. But it's not very mechanical, as you say. Yeah.

[00:43:12] [Dan] So yeah, I guess we'd look at is the thing that was motivating this flipping of the default rule for this category sufficiently bad in the same way that all these harms caused by the poachers or whatever were? Right. So yeah, maybe it leaves some flexibility with Hawaii if they want to come back with something more targeted. I don't know.

[00:43:35] [Will] Right. Her spin on this, which is the other thing I was going to say I find a little missing from some of the majority-type analysis, is just a little bit more of an explanation to explain why these things are going on. Because one way to do history and tradition is it's kind of mechanical but not mechanical. You look for an analogy, and then you just stack up the two analogies and ask yourself, are they sufficiently close? And because it's not mechanical, you just kind of squint at it and be like, I don't know, does this feel like that? And I do think that's kind of empty. And so I think she has been the most devoted to kind of trying to emphasize what you do with the analogies is try to get something out of them, like a principle. And so we said that she was one of the first Court of Appeals judges to say, one of the core principles of these histories is that you can take guns away from people who are dangerous. And that's what a lot of the analogies go to show, and that was what led the court to Rahimi. It was like, if you're dangerous, you can take somebody's guns away. Yeah. If you specifically are dangerous, there's some reason to think you're dangerous. And then the question is, what else do we have? Okay, so not just you're dangerous, but these are dangerous places or dangerous situations is what she gets out of the poaching examples. Yeah. And I like that, 'cause then that actually, with the First Amendment, the doctrine's developed to give you some telos. The thing we're worried about is the government picking and choosing views, especially on topics adjacent to politics— and a lot of rules, but that's the thing they're ultimately looking for. And I think that ultimately helps a lot if you know what you're trying to do.

[00:45:09] [Dan] Yeah. And then Justice Kagan, interestingly, does not want to say a lot. She doesn't join it formally, but she sort of says, "I would uphold the challenge to Hawaii law because, as Justice Jackson shows in part 3 of her opinion, it is a modern-day analog of colonial and founding era laws that apply to hunting. And then she says she doesn't want to get into the Bruen step one thing, I guess any of the questions about is this really property, and she doesn't want to resolve the Black Code question.

[00:45:44] [Will] So is this just minimalism or is this— I guess so is this A, minimalism, B, Jackson dissent exhaustion. Like she's just doing too much. Yeah. Or C, I guess it seems like also in Hemani, Justice Kagan is going out of her way more not to kick Bruen. Like Justice Kagan is going out of her way to at least purport to be applying Bruen and not complain about applying Bruen and not say it's hard to apply. And Justice Jackson spends a lot more time being against the enterprise.

[00:46:22] [Dan] That may be. I mean, it may be part of a larger project just to try to do her best to build bridges and play a little bit nicer with the majority. I mean, I know that that's something that's been reported that she's more of someone who's trying really hard to build bridges and avoid— even if she can't change the outcomes, but maybe rein things in. I mean, I noticed that she was in the majority in Monsanto, which is, I think, a case that maybe leans conservative. Although Justice Sotomayor was there too. I haven't seen the stats, but I think she's probably voting with the conservatives more than the other two.

[00:47:04] [Will] I guess I think of playing nicely as one aspect, but this is also just maybe more led to the stare decisis thing. I think Justice Kagan— wants to be part of the legal enterprise. That's not to say she won't try to overturn cases she disagrees with, as we've talked about, but that for the most part, she's a lawyer's lawyer. And so if Bruen's the law, she's just going to treat it as law rather than complain about it.

[00:47:30] [Dan] Yeah. Okay. Anything else to say about that before we, I think, just briefly talk about Pung?

[00:47:36] [Will] One thing to say is just that notice the court explicitly called out and rejected the aloha spirit. As we've talked about, there is this principle of state constitutional interpretation in Hawaii about the spirit, how the Hawaii Constitution has to be interpreted in keeping with the spirit of aloha. And in the course of explaining why there's one rule, the court says the Second Amendment cannot give way to "the spirit of aloha" in Hawaii, contra State v. Wilson, this spirit of aloha case. Where I think the court denied cert earlier. So I take it that was an intentional choice to say the Supreme Court, the federal Constitution does not have the spirit of aloha, even if the Hawaii Constitution does. Alas.

[00:48:23] [Dan] Okay. So Pung, I think we already sort of set up the question in Pung, and it's a little bit, I'd say, less of a barn burner, a little bit more of a secondary case, and we might have gotten to it eventually this summer, but the only reason to talk about it now— I think it's because of that interesting conceptual connection that I think people are not necessarily going to have front of mind, but not as divisive. It's an Alito opinion joined by the Chief Justice Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson, and then joined in large part by Justice Thomas.

[00:48:59] [Will] Okay. So isn't the majority obviously right because all the Constitution requires is just compensation? The idea that that's fair market value on Zillow is a useful gloss or proxy a lot of the time, but if it's a fair tax sale of the kind we normally use, why isn't that just compensation?

[00:49:22] [Dan] Yeah. I certainly thought that had to be the right answer, right? Because this is a process that jurisdictions all over the country use and have used forever, and then suddenly if we say you have to get the actual realtor price for this property, it would totally cripple tax collection. It would just have a lot of pernicious consequences. I wasn't totally clear why it got granted. It seemed like a clearly right answer to me. It was coming on the wake of this case, Tyler v. Hennepin County, we talked about a couple years ago, which is about, you know, if they do one of these sales, do they have to give you the surplus money? Yeah, like if you owe $10,000, they seize the house, sell it for $100,000, do they get to keep $90,000? Right. No, they have to give it to you. But do they have to then give you another $100,000 that you would have gotten if you'd put the house in the market? Right.

[00:50:22] [Will] Now it is a little weird in that, like, if this is allowed, can you do this for other kinds of takings? Maybe this wouldn't come up, but if they take my house under Kelo, they can take my house for general economic development, right? So can they take my house just because they want the cash and then sell it at tax sale? And then give me only the proceeds from the tax sale? Just a normal eminent domain? That seems weird. That seems wrong. Maybe there's no reason for them to do that because then they wouldn't get anything from it. All they would have is that I would no longer have my house. Although again, if Trump learned about this and just wanted to start tax-selling people's houses because he didn't like them and wanted to serve the public—

[00:51:02] [Dan] Or unless they could do a tax sale and then have a state instrumentality buy it.

[00:51:09] [Will] I don't understand well enough why it is tax sales systematically underperform.

[00:51:13] [Dan] Yeah, I think it's a combination of reasons. I think one is you need to have the cash. I think you can't get— okay— financing. I think the way they normally happen is, you know, tax sale, you have to bring the cash like tomorrow to redeem, you know. And I think they also carry significant concerns that the homeowner has damaged the property. Often people can't get inside the property to see it, or that the homeowner is going to be problematic, carry litigation risk, all sorts of things, right, like that.

[00:51:45] [Will] So maybe the more interesting challenge is like, is it unconstitutional for tax sales not to allow financing, or to the extent that I, the ex-owner, wanted to let people in to do a pre-tax sale showing to boost the price, should I be allowed to do that? Now, if it's just the adverse selection thing, it turns out that any given piece of property has a chance of being really problematic, and so there's a kind of discount by the risk, then maybe that's actually true of the fair market value too. Maybe I would say, oh look, the fair market value is X, but the fair market value is really only 90% of X because the market also prices in the risk that I've peed on the floors or whatever. So now the one other thing that gave me pause is that Justice Thomas has this long separate opinion where he kind of starts citing various principles with the 19th century law of tax sales, including that the government had to try to sell the taxpayer's personal property before it could take his real property, and American foreclosure law and Cooley used to have this rule, and so we need to bring that in. That's interesting. That gave me some pause. Yeah. On Twitter, David Schleicher, a law professor and property law scholar, says that this is just because Justice Thomas has totally missed a transformation in the law of state and local taxation, that it used to be that personal property was taxed by a property tax regularly. It was part of the tax base. These were not land taxes. They were sort of quasi-wealth taxes. And so in that world where your personal property was also a core part of the tax base, we moved on your personal property first before your property. Interesting. But it's because their property taxes were not the same as our property taxes. It's like all property taxes versus real property taxes, and that this transformation of the tax base of course transforms the— now it would be a little more confusing what even is the authority of the Michigan township to say, "You didn't pay your property taxes, but instead of foreclosing on your house, we're going to come take your car." So I don't know if that's right, or I don't know anything about this really, but I thought it was interesting.

[00:53:55] [Dan] Yeah, and it's an interesting opinion. I think that the majority opinion does contemplate that there have to be some fairness backstop. You can't just be any auction. It has to comply with some minimal standard of fairness, not fully defined, but the Justice Thomas opinion seems to say maybe there's a lot more content here. There's a lot of ways we have to make sure that these auctions are really complying with fairness in ways that would affect the amount of money that the homeowner gets and various things like notice. Yeah. Interestingly, there was also a shorter one-paragraph separate opinion by Justice Sotomayor, joined by Justices Gorsuch and Jackson, who just says, "Look, the majority opinion doesn't say what counts as a fair auction, and this is preserved. Please, lower court, deal with it on remand," in the Sixth Circuit. Yeah. Okay. Well, as is always the case, we could spend many more hours talking about the nuances of these issues. We will have more episodes in the near term. I hope so. Well, thank you very much for listening. Please rate and review the podcast wherever you get your podcasts. Visit our website, dividedargument.com, for transcripts, blog.dividedargument.com for commentary from friends and us, store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. You can leave us a voice message through a link at our website or the old-fashioned way by calling 314-649-3790.

[00:55:39] [Will] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Debra Cafaro for your support.

[00:55:45] [Dan] And if there's a long delay before our next episode, which we have already promised there will not be, but if there is, it will be because we're off in Hawaii enjoying our newfound freedom. Aloha.