Chapter 1: What is the main topic discussed in this episode?
Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have a divided argument in this case. All persons having business before the Honorable Supreme Court of the United States are advised to give their attention.
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. And I'm Will Bode.
Dan, where are we?
We are live, one of our rare live shows. And we are in your home city of Chicago, where we are at Northwestern Law School, being hosted by the student chapter of the Federalist Society. We did one of these, was it just last year? It was. Okay. And we had a great time. And so we are doing a reprise.
And, you know, the can't see at home, but I'd say there's, you know, it's probably 90 to 95% of the student body is represented in the audience. So we're very grateful. And the room mic is not set up to capture the thunderous laughter and applause we just got. So you'll just have to take my word for it. So, you know, Often we like to record when we've just had a big drop of opinions.
We haven't had a big drop of opinions in the last couple days. So instead, we're going to do another somewhat rare thing, which is an argument recap slash recap. preview, both cases involving Second Amendment rights, although with one of those cases, we can have a debate whether it's really a Second Amendment case or not.
The two cases... I don't know if you remember this, Dan, but when we were here last year, I think we also did an argument preview about gun cases. I think last year it was the Smith and Wesson lawsuit brought by the state of Mexico.
Is that where we did that? I thought, okay, I've lost track. Something about Chicago makes us think about guns. Well, it is a city with some gun violence, but really kind of distant to St. Louis. So I've got to stick up for my home city in that regard. So there are two cases.
The kind of recap case is going to be Wolford versus Lopez, and the preview case is going to be United States versus Hamani. Um, Wolford, uh, was argued, uh, just recently. Uh, it was argued, you know, nine days ago at the court. And then Hamani, uh, is, is not actually, uh, totally fully briefed yet. Um, I think the reply brief still has yet to come in and it's going to be argued.
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Chapter 2: What is the significance of Wolford v. Lopez in Second Amendment discussions?
I won it in a trivia competition.
Chief Justice trivia? Yes. Okay.
I'm very proud of it. Thank you. Anyway, so I think we don't know that's at the default. So to back up to what Hawaii has done, Hawaii took the default rule that property owners can say no guns and said, we're just going to assume that all private property is no guns unless the property owner says guns, guns allowed.
So if you walk around Chicago, there are a ton of these like no guns allowed in the movie theater, no guns allowed in this establishment signs. So Chicago has the ordinary default. But Hawaii decided to flip the default to say you can't take your gun to any ā piece of private property, unless you get the affirmative consent of the owner.
Either with a sign or I think you are allowed, there's some dispute about this at the argument, I think if there's no sign, you are allowed to go onto the property, maybe even with your gun for a minute, to say, hey, I'd like to get gas at your gas station, do you mind if I bring my gun or something?
Yeah, and I think these laws have bite on the assumption that most property owners are not going to do something to change the default either way. In a world where every property owner was going to put up a sign one way or the other, expressing their preference as to whether... someone bearing arms could enter the property, I think the default rule wouldn't matter, right?
Because it would just be individual property owner's choice shaping whether the weapon was able to be brought on the property. But I think they matter because we assume, and this seems accurate, that most property owners and most businesses are just not going to make an explicit choice one way or the other. So this is a default rule that is going to control a large number of cases in places.
Right. And I think to add that this could be true, not just because property owners don't care, but because of sort of the social dynamics around guns, especially in a state like Hawaii, where there isn't a strong gun culture and a lot of people don't like guns. Like you might well have somebody who runs a coffee shop in Hawaii whose view is, I'm I don't really care, man. You want to have a gun?
You aren't bothering anybody. Like it's fine. I'm not going to put up a no gun sign. But if he has to put up a gun sign, suddenly like the anti-gun people are going to get upset about it and they're going to complain to him about it. And then he doesn't want that either.
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Chapter 3: How does Hawaii's gun consent law affect private property rights?
Like, is it even, do we even get to, like, whatever the level of scrutiny or historical analysis is, or do we just not get there because it doesn't even implicate the right in the first place? You're going to think I'm joking, but I once tried to write an article about this problem. in the context of the First Amendment, right?
So there are some areas where when property and First Amendment law intersects, we say like, oh, there's real scrutiny here. Like there used to be a property right to your reputation. That was what libel was about. And then of course, the Supreme Court said, well, obviously the property right in your reputation still implicates free speech and we have constitutional scrutiny of libel.
Or copyright. There's like property rights to various kinds of expression. And most of the time we just think that's fine. But there are cases where courts worry about whether that property right in your own expression would interfere with freedom of speech and you end up with fair use doctrine and all that stuff. But it takes on like graffiti, right?
Like if I complain that if I like try to put my Ayn Rand graffiti on your house and then they prosecute me for it, I don't even get to the stage of saying like strict scrutiny or something. They just say like this is not a first-time case at all. Like you're just not allowed to spray people's houses. It doesn't really matter whether it's speech at all.
In part, I guess that's because there's a well-established default rule there that you're not allowed to spray paint on someone's house unless they give you permission to do so. I guess so.
Although there are also cases about like soliciting. So there are cases about, you know, can the states have a default rule that says nobody is allowed to ring anybody's doorbell to hand out pamphlets? And the answer is actually, they probably can't have that rule.
And so why can you have a default rule about no graffiti, but not a default rule about no knocking on people's door to give them, you know, pamphlets about saving their soul?
Do you think you can have a default rule that just says you can't go up to someone's door, period, regardless of the purpose?
Probably, yes.
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Chapter 4: What are the implications of the Bruin decision on gun 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. gun cases, but it seems to be his first trip to the Supreme Court. And he is making the kind of the hardcore argument, like no flipping the default. I don't even concede that any of these cases don't raise second amendment questions. There's got to be a national tradition. There's no national tradition, kind of a very broad argument.
I think the perception when he showed up with that argument among a lot of people who wanted him to win was that was not a good way to win the case.
And that was my impression from listening is that it was maybe not as effective as it could have been.
Right. So then the United States Solicitor General, the Deputy S.J. Sarah Harris, a very experienced, very good advocate, she shows up with the United States brief on his side with a much different and more limited argument. So she doesn't want to say you can never flip the default or anything like that. She wants to say the big problem here is pretext.
The big problem here is you can look at the law and tell this is not really a property law. This is really an anti-gun law in part because of its over-inclusive, under-inclusiveness, the way it's gerrymandered to avoid various things. And so you should really kind of think of this as in the First Amendment context as
After Smith says that neutral laws that burden religion are going to be okay, the next year the court strikes down a law anyway in the Church of Lukumi Babalu'aye versus the City of Hialeah, where it's like a ban on ritual sacrifice of animals. And the court's like, this is obviously a religion thing, even though it never says that. So she's making sort of that kind of argument.
So the court's already sort of presented with the, you know, you could strike this down on broad grounds or narrow grounds, and the justice spent a lot of time kind of working with both advocates to figure out what to do.
And I think it's fair to say it looks like the challengers to the law are more likely to prevail. Did you come away with that impression? I'm not sure it's going to be a route. And I think that there's still some possibility it could go both ways. But they've definitely got some votes.
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