Will Baude

So they're not claiming a constitutional challenge to the ability to, like, bring your gun to somebody's dinner party without getting their advanced consent.

But the, you know, hypos people kept talking about are, you know, what about a restaurant?

Or what about, the chief justice kept asking about, what about a gas station?

Well, I think what he kept saying is even the broader argument implicates the Second Amendment.

So he's not willing to concede that any of those are not Second Amendment cases.

I think he would say that maybe the broader argument, he loses the level of scrutiny or whatever, you know, be justified to have a rule that flips the default for entering into somebody's house.

But he didn't want to say those are not Second Amendment cases.

I think that should help, but I will say one of the refrains of the argument, at least from the challengers, was under Bruin, we have a history and tradition test, and it has to be a national tradition.

Yeah, so I think if you had a state where the property, where the default right had been flipped for everything, like the default rule was just like, you can't go into a gas station at all until you stop outside the gas station and holler, like, hey, can I get some gas?

And the guy says, then I think there would definitely not be a second one.

I think if you had a state that had always singled out guns for special disfavor under property rule, that it always said there's a presumptive implied license to enter except for the gun, we'd probably still be in scrutiny land.

Right.

At least insofar as it's not singling out the Second Amendment.

I think one of the questions that arises in the speech context arises here, arises of the constitutional rights, is what if they do that again?

have a different rule for the exercise of constitutional rights.

So that's maybe our threshold question.

So another thing that's just maybe a place to start is that the oral argument featured three advocates.

So one from the state of Hawaii defending the law, and then in a way two different sets of challengers.

One person representing the private petitioners, a lawyer named Alan Beck, who I think is a first-time oral advocate.

He's been litigating a ton of these Ninth Circuit cases.