Stephen Gutowski  0:01  
an update on the NRA and interview with the Dispatch's David French on the Supreme Court and red flag laws that more on this episode of the weekly reload podcast.

Unknown Speaker  0:14  
I gave him poison, just for fun.

Stephen Gutowski  0:16  
All right, ladies and gentlemen, welcome to another episode of the weekly reload podcast. I'm your host Stephen Gutowski, founder of the reload. And before we begin, let me just remind everyone that reload members actually get this episode early, at least 24 hours early this time. This weekend, we're having a big Fourth of July sale. So I think people should jump on into that and get their 25% off before that ends. And members will have exclusive access to this podcast during the weekend. So let's get right into the news of the day first, was at the NRA board meeting. This Saturday was the first one they had since the bankruptcy strategy failed when the bankruptcy was dismissed by a federal judge. Just a few weeks back, and the NRA was clearly trying to move on. I was the only reporter to attend the meeting. And as far as I could tell, there weren't any average nra members there either. But the meeting did not mention the bankruptcy filing and it didn't mention at all. No one brought up the New York case against the NRA the case where the Attorney General Letitia James, a Democrat and a longtime NRA. Opponents political opponents is seeking to dissolve the group over accusations of financial impropriety by top executives, including CEO wayne lapierre. But the group did talk about their political efforts. Jason Ma, the head of the Institute for legislative action, which is the NRA his political arm, their lobbying arm, he gave a frank and realistic round up I thought of the state of play, I suppose you would say on the Second Amendment, especially in regards to President Biden's appointment of David shipment of gun control activists who's worked for Giffords gun control group in recent years to the ATF. He said that there are four key senators still on the fence on that one, I believe they were to me, mansion, right, as you'd expect, and then King and tester as well from Montana. So they said that the fight is going to come down basically to a 5050 votes potentially at 5149. But maybe I've actually spoken with toonies office and they told me that he's has not made up his mind yet on whether he'll vote for Chipman but has concerns about the nomination. So we'll see where he goes Senator Collins from Maine republican moderate Republicans that she's not going to vote for Chipman. So it will likely come down to whether democrats can actually get all 50 of their senators on board with this nomination. But who may also talked briefly about the effort by President Biden two three weeks executive action Institute new powers for the ATF especially in regards to what classifies what qualifies as a firearm. You know, the President is trying to broadly expand that definition in order to give the ATF more power to go after so called ghost guns, which are you know, uncivilized homemade firearms, which are legal for people who are not prohibited persons and felons to make in their own home. I did a trip recently to Florida to actually cover the gun makers match where people who enjoy doing that building their own firearms all got together to do a competition. So you can read about that in the in the members section on the website. But President Biden wants to crack down on that because he believes it's leading to more criminals building their own firearms. So he wants to expand the ATF power in that regards. And then he also wants to effectively ban all pistol braces stabilizing pistol braces,

and require that those in current circulation be registered under the National Firearms Act, where people would have to pay a $200 fine Find a fee registration fee in order to continue to keep the guns they already own with pistol braces on them, or they would have to surrender those guns or dismantle or destroy them. So, you may said that those proposals are likely to garner several 100,000 comments, the pistol brace, one is already over 100,000 comments, I actually left one myself at the request of the ATF or at the suggestion of the ATF, which you can read again in the members section of the reload calm, but he doesn't believe who made that. It's a guarantee those comments while they are overwhelmingly negative will actually stop the administration from pushing through the proposals to change federal regulation in order to accomplish what they want to accomplish. So who may had a fairly blunt and realistic description of the situation? I think, in my view, at least, and he went on to say that the the NRA, while obviously, in the context of this happening is still in serious legal struggle with the New York is in amaze estimation, still the most powerful gun rights group in the country because they are having great success at the state level. He pointed to the passage of permitless carry in Texas, as an example of this and in many other states, actually, just recently, and he said essentially, that the NRA is, you know, the one in the room across the country, with lawmakers while they're making laws or formulating questions for people like Chipman at hearings, and that nobody else in the gun rights community has that level of influence, and is able to get their talking points in front of and used by members of the US Senate was one of the examples he gave. So that was his speech. A few days later, I found out that during executive session, and this is reported on the reload comm first before anywhere else, but during executive session. The announcement was made that the group wants to pursue a $5 million fund in order to supplement or potentially replace their directors and officers insurance, which is insurance that protects members of leadership. organizations like the NRA or in businesses from lawsuits stemming from accusations that they haven't lived up to their fiduciary responsibilities. And so certainly the NRA board and its leadership, like wayne lapierre could face those kinds of suits brought either by the New York Attorney General herself or by potentially nra members in a class action suit. There's already someone there's already a lawyer attempting to intervene in the New York case for this purpose, at least partially for this purpose. With a few nra members on board. It's not clear, obviously, where those legal actions are going to end up. But obviously, there's a risk there and apparently Lloyds of London who had been providing or is currently providing DNO insurance, as it's called to the NRA leadership has decided not to renew their policy with the NRA. And so this fund was created as a way to either replace that coverage or potentially supplement new coverage from a different company down the line, it's not clear exactly which way that's going to go. Although, as an array board member phil journey told me, you know, if Lloyd's of London won't insure you Who the hell will implying that, you know, Lloyds of London has a certain reputation for taking on almost any sort of risk under the right circumstances. So it will be interesting to see whether or not the NRA can actually replace that insurance and how much these individual board members are liable for expenditures made under their supervision that are found to be

not in the interest of nra members. You know, things like private flights for personal travel or you know, hobbies We've been a lot of contention about fancy suits, bought for wayne lapierre by Ackerman McQueen, the former NRA contractor and, and, you know, different luxury trips made around the world on the NRA dime. So that's something to look out for the the long term for sure. But we'll I'll be continuing to cover that I'll be continuing to bring you the latest news. Often before anyone else, including anyone in any major publication, you can think of the New York Times The Wall Street Journal, Washington Post, we beat them all on this story for sure. So I plan to continue to try to do that in the future on not just generate stories, but all sorts of gun stories going forward. And that's hopefully why he might consider signing up for a membership. But anyway, today on the meat of the podcast, we are going to have David French from the dispatch, who has had a long career litigating Second Amendment issues. And following along how the court has handled the topic, and we are going to discuss that with him. He's also an early advocate, at least on the right for red flag laws. And we'll ask him a bit about how he thinks that movement has gone to dates and what concerns he has with the laws that have already been passed in a number of states. So without further ado, let's get on to the interview with David. All right, we're here with the dispatches. David French, David's going to talk with us a little bit today about the Supreme Court's big gun case, as well as some of the other gun cases going on around the Federal Circuit courts and, and maybe a little bit of a red flag walls laws as well. So Hey, welcome, David. Thanks for coming on. Thank you. Thanks for having show.

How are you doing today? 

David French  12:00  
I'm doing very well, lots of lots of Supreme Court developments over the last week or so not not dealing with guns, but just in general. So I've been very busy.

responding to that writing about that.

Stephen Gutowski  12:16  
Yes. You have obviously had a long interest in the court and and what goes on there. Can you give us a little bit about your background for listeners who might not know as much? Yeah.

David French  12:28  
So I'm a senior editor at the dispatch. And columnist for Time Magazine. Before that I was a national review, senior writer at National Review, and I was before that a constitutional litigator for a long, long time. So I graduated from Harvard Law School in 1994. And I think I had my first constitutional, I worked on my first constitutional case, not Second Amendment related but constitutional case when I was still in law school. So I've been working in the arena of constitutional law for a really long time mainly doing first amendment work, mainly doing Fifth Amendment 14th amendment, sort of the classic Bill of Rights type work that civil liberties lawyers do, and did that a ton. And, and, and I would say a big focus of my writing since I stopped litigating has been constitutional law and also a gun owner, and have paid very close attention to the legal developments in the Second Amendment. And I'm mostly interested in, in follow most with the most interest, the constitutional developments. I live in Tennessee. And Tennessee is, you know, one of the most permissive states in the union when it comes to gun laws. So we have a real atmosphere, a real gun rights culture here in the state. I've sometimes joke to people that you you know, you get issued an AR out when you cross the state line. But it's a it's a, it's a definitely a con rights culture here in this state. I would say even more than a lot of red states. Yeah, here in Tennessee.

Stephen Gutowski  14:15  
And I think there's a lot to talk about on the constitutional front when it comes to second amendment lately. Rather huge development, with the Supreme Court taking up its first ever gun carry case out in New York. Now New York has what's called a may issue, gun carry law. So if someone applies for a permit there, even if they go through all of the requirements, and pass the training that's required, pass the background check that's required. They can still be denied, at least the full right to carry a gun in New York. Or the privilege or whatever you want to call Obviously, there's a long standing debate over over that exact topic, which is exactly what the Supreme Court is slated to decide here, how far does the right to keep and bear arms extend outside of the home. And so, you know, there's eight of these laws across the country's not it's not a very popular policy, but it is in place in some of the biggest states, New York, California, Massachusetts, Maryland. And so it affects quite a lot of people, I think about 25% of the country by population lives in a may issue state where essentially, they aren't guaranteed that they'll be able to obtain a license even if they qualify under the the technical guidelines, because essentially, the decision is left up to government officials in New York, I believe it's left up to local judges, to issue the permits, and they can issue you different kinds of permits. And your New York system is a little bit different from some of these other states. But effectively, it's the same principle of the judges can decide whether or not you actually get to carry a gun anywhere just based off of their own subjective determination. A lot of places require what's called a good reason to obtain one of these gun carry permits, which is different from most of the rest of the country, which is either what's called shall issue which is where you go through the permitting process, you pass the background check and their training requirements. And then the government has to issue you a permit. That's what most states have at this point, including where I am in Virginia. But then there's a third policy called permitless, carry or constitutional carry, as activists like like to call it where you don't need a permit at all to carry a gun concealed, that as long as you are legally allowed to possess a firearm, so you're not, you know, a convicted felon or someone who's been convicted of domestic domestic misdemeanor domestic violence or been, you know, committed to a mental institution as a threat to yourself or others. Then you can carry a gun without having to obtain a permit first. That's what they have done there. And Tennessee where you are?

David French  17:26  
Yep. As of yesterday, I mean, the law was passed earlier in the year signed earlier in the year but went into effect believe yesterday, July one. So

Stephen Gutowski  17:33  
yeah. And so that's becoming much more popular 21 states have that now. But essentially, what the Supreme Court is going to decide is whether or not this more restrictive policy may issue is constitutional or not, whether or not it violates the Second Amendment. Where do you see the court going on this question?

David French  17:53  
Yeah. So this is really interesting, because when you talk about the Second Amendment, right, let's give people a little bit of constitutional background. That was a great background as to what are what are the various carry regimes that exist? Very few people realize that the vast majority of your gun, your concrete gun rights protections are coming from state law right now. So state laws if you're a gun owner, state law is shaping your rights more than anything else? Because right, the Supreme Court's gun rights jurisprudence since Heller and McDonald two cases that one settled that there's an individual right, that the Second Amendment protects an individual right. And McDonald, which incorporated that right, and in other words, require states and local governments to protect that right. That involved keeping a handgun in the house for self defense. That's if you're going to say what does the what under current Supreme Court jurisprudence is clearly absolutely protected by the Second Amendment? It's a one sentence answer, answer having a handgun in your home for self defense.

Stephen Gutowski  19:03  
It's really not very expensive at this point.

David French  19:05  
No, that's it. That is it. And then the Supreme Court since the Heller decision has not taken a meaningful case until it took a case recently that which it then went when New York changed its laws. Yeah. Ended up dismissing the cases, essentially mood and

Stephen Gutowski  19:25  
I think I want to talk about that a little bit later to some of the strategies that we're probably going to see use charity to counteract gun rights activists in court, after the Supreme Court cases decided, especially if it's decided in the favor of what gun rights activists want, but But yeah, certainly the court has not been very talkative on the second amendment to the point where many of the justices had publicly complained about this fact. Yeah. Thomas has called the court's treatment of the second limit. You know, as though it were a second class, right that they've litigated the First Amendment a million times, but have basically had two cases in the entire history of the Supreme Court that dealt with the core issue. But really only, only Heller, it really dealt with the core issue of what the Second Amendment even means and what it protects. You know, you had Miller before that, which sort of was, you know, talking about the fringes of, of didn't really make a succinct ruling on what the Second Amendment actually means. And then, and then McDonald, as you said, really just incorporates Heller to the site, so that the court has not spent much time discussing the Second Amendment at all up to this point. And so now, we have a significant case, this gun gag case what so we have basic standard of you have a right to the most commonly owned, basically category of firearms for self defense. Well, Sadr ism. So

David French  21:07  
here, this this is this is where it gets interesting. Okay, so the actual holding of Heller, like the the the pure holding of it dealt with that the DC law regarding handguns for in the home in the home for self defense. And then there's a lot of dicta. So you if you have any case, a Supreme Court case had always has a holding in the holding of this precise rule announced by the court. And then what's called the dicta is sort of all the reasoning around it. Like it's all the rhetoric around it. And so, in the Heller case, the precise holding was this super narrow thing. But there was also a lot of sort of discussion about the history of the Second Amendment, sort of, you know, Scalia talks about there are certain kinds of regulations that are going to be fine, and there are certain kinds of regulations that are probably not going to be fine. And all of this is the dicta. So for example, and this is something we can get to when we talk about like assault weapons bans. There is this discussion of guns that are in a common use for a lawful purpose. Okay, if a gun is in common use by law abiding, you know, common law abiding us that, can those kinds of guns be banned? And so that's, that's one issue that is not at all related to what the Supreme Court's gonna decide. So what's the Supreme Court's gonna decide in, in the New York State Rifle and Pistol Association case, that's coming up next turn, is just really basically when the Second Amendment says, keep and bear arms? Does it mean, and bear outside the home? Do you have a right to bear outside the home? And

Stephen Gutowski  23:03  
it's kind of common? And so what almost, yeah, this is, you know, I had Charles cook on the previous episode of the podcast, and we talked a little bit about just the Second Amendment and like, a little bit about what it means. And, you know, to me, I guess you'd call me a textualist. Just because like the Second Amendment is so plainly written. In my mind, I know that, you know, there's obviously a lot of discussion about the preparatory clause and the well regulated militia where they state why the Second Amendment matters, essentially. But the the actual clause that includes the right is is fairly straightforward. It's, you know, people have the right to keep and bear arms, like, bear Well, what is bear arms? It's just you get into these kind of ridiculous arguments that just try to force people not to read the plain language, does bear rhymes, meaning that you can bear arms outside? Well, I mean, isn't that extremely obvious? I, you know, not to discount anyone's, like, good faith argument. It just seems to me just reading the text of the moon is very straightforward. Now, I, you know, when obviously, you can say that about the first amendment in a lot of places. And, you know, I don't I don't discount the idea of like, having to figure out what infringement means. Right. I think that's more complicated than just, you know, every single gun law that has ever exist is an infringement and therefore, they're all unconstitutional. Like, I think that there's more discussion to be had than that. But this idea that like, What does bear mean, outside the home? Well, doesn't have to.

David French  24:53  
Yeah, I mean, let me put it this way. I would fall out of my chair in shock if the Supreme Court did not strike down the New York law. Now, does that then mean that everyone in New York gun owners can say, Alright, I'm going to get my permit. Now these states are in localities are very those states and localities are very creative at fallback measures. So, so Okay, what? What amount? So if it's a permit, and I'm required to give you the permit, if you jumped through the hoops, how many hoops Are we going to make you jump through? How expensive is this permit gonna be? So that will just sort of start you on another jury saw that happen? you're brand new. DC? Oh, yes. So if you're a New York gun owner, it's like, you'll get a win and all likelihood, in all likelihood, you'll get a win. And then you'll start to learn in that new journey. Yeah, yeah.

Stephen Gutowski  25:49  
I mean, it's not going to be navigating the new certainly, there'll be they'll come up with something to try and test the boundaries, because they don't agree with the concept. Yeah, you know, that and that happens on all sides, of course, with all issues. But, but But of course, the, you know, the gun control people or people who wants stricter gun control, you're not just gonna lay down and coway because the Supreme Court ruling they, they didn't do that after Heller. And it's unlikely they'll do that after this case. But what I really want to get to here is what what do you envision the most likely, ruling being? I think there's two important questions, right, there's, will they strike down the law? Or will they punt? It seems like you think they're going to strike down the law? You know, because they could do something like what they did with 2016. The case out of Massachusetts, CERN, CERN, Trento, I forget how to pronounce it. But it's the stun gun case, where I mean, it was unanimous decision that said effectively, like, you know, of course, we reaffirm what was already said in Heller, which is that the Second Amendment applies to modern weapons, and not just ones that were in existence at the time of the ratification. But they didn't really it was a two page ruling that said, Senate back down to the Massachusetts Supreme Court, and it didn't really give a lot of new insight into the case. You could see something like that, perhaps happen in this case? Or you could see them strike down the wall. But the question then is, how far do they go and striking it down? What, you know, did they just say you have to be shallow issue you have to give you can't get rid of this Good, good reason claws sort of subjective decision making by government officials involved here? Or do they go all the way to permit list care that you can't even no way?

David French  27:51  
No way they're going to permit lists. So I, what I think will happen is they'll essentially take the true may issues states, if you're a true may issue jurisdiction is one that that quite literally is. You don't get it, you don't have a right. It is completely up to us, Hawaii. I think that will go away, that will go away. Now. The what kinds of conditions that can be placed. In other words, so shall issue is a little bit of a misleading kind of description. Because it's not shall no matter what it's, it's here, we have a permitting process. And if you jump through the hoops, then you get it, then the legal entitlement to receive the permit is created when you finish the permitting process. So I would expect that what the court is basically going to do is going to say, it is too up to you to create a permitting process. But they're going to let they're gonna give some basic guidelines to the permitting process, that limit that removed discretion, in other words that remove a discretion of a state official to deny it. And that would be my best guess. So which all that's going to end up doing. It's really interesting, because this is actually what will actually end up happening in my view, is that the court will rule for the second amendment but in such a way that doesn't take care of 95% of the controversies over the Second Amendment. So Roberts Court, it will it will rule for it will rule for the right to bear arms. It will not tell New York state what a proper permitting process looks like it will tell it what it doesn't look like then then New York will put in place a new system that will probably be subject to another legal challenge but a an important legal principle will be established and that will be that there is a right just as It's a right to keep a handgun in the home for self defense, there's going to be a right to bear, a handgun handgun outside of the home for self defense, subject to undefined state regulation, and then that's going to lead us. It's funny because, you know, there's this sort of school of thought that the Supreme Court normally has that. It does not ever just resolve all the legal issues at once or rarely does very rarely does it do that. And usually, when it does that, it's super controversial, like Roe v. Wade, for example. But so the Supreme Court rarely decides everything at once it decides things incrementally. And then it kind of sits back and watches. And it watches what there's a phrase that the law mature, how will the law mature in the lower courts. And the reason why it does that is sometimes the lower courts reach legal conclusions sort of on their own, that the Supreme Court agrees with, or at least doesn't have a big problem with and is just going to sort of let it stand out there. But you know, one of the jokes that I've heard about Supreme Court jurors, Second Amendment jurisprudence is it's not that they just let the law mature, like the law has grown a beard and has learned to drive it is there's a lot of maturing that's gone on. And it's time for the Supreme Court to step in. And there's two other areas to look for. After this very, I expect and you know, you can have me back on after if I'm wrong. But I expect it'll be a limited ruling that you can bear arms, but then there's going to be here's a couple other interesting tests and questions. One is assault weapons bans. And which leads to one question, and the other one is, what is the second amendment? Yeah,

Stephen Gutowski  31:47  
that's what I was gonna ask you like, what do you think that they will establish an actual standard to judge Second Amendment cases by because I think that's one of the that's been one of the biggest criticisms of Heller is that they really do any of that. It's just kind of decided that this one really rare law in DC, which was a total handgun, right, which really only existed in like two, part two cities in the whole country. That, you know, it's set this base level of Okay, at least the Second Amendment protects this, this thing, and these these particular extremely rare laws are not constitutional. But it doesn't give any guidance for how courts should determine whether or not a wall violates the Second Amendment because it's it's really a very much of a compromise. ruling that goes out of its way to say it's not implicating certain federal laws, like the National Firearms Act. Right. And, you know, pretty much all of the Federal Firearms laws to that point, even though you can certainly, depending on how you read Heller, you could implicate those laws as being potentially unconstitutional if you go with you know, Kavanagh's text history tradition standard, because the court rejected balancing tests for the Second Amendment. So okay, well, what is the new test? And I think effectively, most lower courts have decided to just use a balancing test that is somewhere, you know, below intermediate intermediate scrutiny, and which is a really loose standard, effectively. Yeah. And then other courts, as we've seen in California, just recently, here in this we can transition into talking a little bit more about that the future of the second patent litigation overall, but other courts, like judge Benitez in California have used much stricter standards, or Kavanaugh in his dissent in Heller to where they look at Heller and they say, well, we're Barrett even in her in her case about the non violent felon lifetime gun ownership and but, you know, you see them come up with these other standards, and you've just kind of seen a mishmash of standards across the court system. And, you know, Bennett Benitez says that, basically, whether or not something is in common use for self defense, that's the Heller test. And then Kavanaugh says Texas rich tradition beneath Barrett says maybe Texas rich tradition, maybe intermediate scrutiny. And so do you think that they're really gonna clear that up and set up any kind of standard to go forward with on second limit cases?

David French  34:41  
Maybe Probably not. Maybe Probably not. They can, they can. But here's so different. Let's put it this is going to get a little Let's peel the onion a little bit. So there's a kind of there's a kind of legal challenge, which is like an assault weapons ban or a large capacity, so called large capacity magazine ban, where there's an argument you don't need a test at all, like in this in the sense of when I say test, you don't need to decide if it's strict scrutiny, which is the most restrictive on the government, rational basis, review, Least Restrictive on the government, intermediate scrutiny intermediately restrictive on the government, that you say like, as you said, text history and tradition says if you can't, you just can't ban a gun. That's unlawful, common use for lawful purpose. So you don't have to apply strict scrutiny. Intermediate scrutiny, you don't have to apply rational basis review, you just can't do that. You just can't ban a gun in lawful use in common use for lawful purpose. That's one school of thought. But that even that you still have to have a test because there are other kinds of restrictions. So, you know, for example, like a bump stock ban, which, you know, bump stocks are not all that common, they're really not, I mean, you might have a decently large number of them if you add them all together in the whole country. But as a percentage of gun owners, for example, a bump stock is very rare, I would say most gun owners don't even know what a bump stock is much less than half one. And, and so, you know, so in those kinds of circumstances, they're still going to be in need for a test, there's going to be a need for a to decide a level of review. Now, if you're a gun owner, and you're a gun rights advocate, you're huge. When you think of tests, think of it like this strict scrutiny. If I'm challenging a government regulation, I'm almost always going to win. If it's rational basis review, if I'm challenging a gun regulation, I'm almost always going to lose. If it's intermediate scrutiny, I'm still almost always going to lose. Because one of the interesting this intermediate scrutiny test is really not all that strict, truthfully, to for the government. And so as a general matter, a lot of the the Second Amendment cases in the lower courts have applied some version of in the range of an intermediate scrutiny type standard. And under an intermediate screws, if that's the if that's the test if that is the test. as a general matter, assault weapons bans have been upheld as a general matter under those kinds of reasonings, large capacity magazine bans have been upheld. The judge

Stephen Gutowski  37:40  
said that it wouldn't. California has a weapons ban wouldn't pass intermediate scrutiny either. And so Barrett said, Well, what the nonviolent felons ban as well. So it kind of as, as usual, it depends on

David French  37:54  
the court, the actual court decisions have been largely by and large, upholding assault weapons bans. And so that's why the tat the test matters, a huge deal at the test is a huge deal. But then the other question is, do you even apply that test? And so a lot of Second Amendment advocates say, wait a minute, Heller, if you look at that dicta from Heller, the common use for a lawful purpose, that is the test, that's the test, it's not, you know, compelling governmental interest advanced by the least restrictive means it is, which is strict scrutiny. It is, is it common use for a lawful purpose. There's the test. And so that's one of the things that the court is probably ultimately going to have to decide when it comes to things like an assault weapons ban, or comes to things like a large capacity magazine ban, but a lot of gun regulations don't implicate flat bands like that. They might be, you know, what's your permitting process? What is your what is the standard, you know, what's our background check standard, like what offenses count, as offenses that can remove from you the ability to carry a handgun? And those aren't, you know, those aren't banning a category of weapons, those are limiting your access to otherwise lawful weapons. And they're gonna have to announce a test on that at some point. I mean, it would think will it be this next term? Maybe? I don't know.

Stephen Gutowski  39:29  
Yeah. Well, so getting into that a little bit, or going a little bit beyond that, I guess. So that, let's say the Supreme Court. Well, I think, just want to talk briefly here about why the effect that a Supreme Court ruling is going to have regardless of what it ends up being on on how these cases are litigated from both ends of you know, the right argument. And because I think you know, if you see I think that there's how the Supreme Court decides this case is going to really have a major impact on the strategies of both parties, interested party parties here, whether you're gun control advocate or gun rights advocate. You know, if the court punts on this case, I think that's the most obvious, like, easy thing to predict what will happen after that, which is just basically, you'll you'll continue to see the lower courts, in more liberal districts uphold basically every gun well, that that's being challenged. So this California assault weapons ban being struck down, the ninth circuit will simply reverse the decision and uphold it. If the supreme if the Supreme Court signals that they're going to punt again on the Second Amendment, and they're not really going to do necessarily anything moving forward? No, I think that's probably the most the least likely outcome, right, as you talked about earlier. But if the Supreme Court signals by striking down the New York law, however they do it whether they issue a standard or not. That I think that changes a lot. In terms of what gun right gun control activists do, or a lot of the democrats who are defending these stricter gun laws, like the ones California, because then the question becomes like, how do they respond to that. And I think that, for me, the most reasonable strategy that I've heard put forward as to what they'll likely do, is basically minimization, which is what you saw with the last New York case of the Supreme Court took up, right, they, instead of getting a ruling, they didn't want they, they changed the wall, and just gave the plaintiffs what they wanted in order to avoid setting a precedent, you know, they defended that law all the way up until the captain Supreme Court, and then suddenly they reversed themselves, and said, nevermind, we're going to change, right, we don't want this case to go forward. And and the court at that point, basically agree, like agreed to let them do that. And you saw the same thing in DC, right? They lock with their gun carry law, they used to have a total ban on gun carry all together, there was no way to get a permit to legally carry a gun in the city. No civilian at least. And that got shut down. So they put in a may issue law, similar to one in New York and Maryland and elsewhere. And then that got struck down. And so they had to decide at that point, between appealing that decision to the Supreme Court, or just accepting it and trying to find some solution that they could live with. And they decided to, I guess, bite the bullet is, perhaps that the proper term here and just not appeal a decision and implement, you know, their version of shall issue, which includes, of course, you know, a lot of fees and special training regimen, which to be fair is not totally uncommon. Some states do that North Carolina does that. But it's very expensive process. And it's a very long training course, that costs a lot of money. So that's what they ended up doing, instead of trying to appeal to the Supreme Court and worry that they would lose, essentially. And so I feel like you could see a lot of that happen from the Attorney General's involved in defending these laws. But also, you could see a lot of courts practice minimization as well by issuing very narrow rulings in favor of the gun rights plaintiffs. And then not really giving them what they actually want, and forcing them essentially to start over again, maybe rolling, you know, as applied something is, as applied to the particular plaintiffs This is unconstitutional. There's a lot of ways that they can avoid, you know, landmark cases making it to the court through the way that they rule on something. Is that what you expect to happen? What do you see coming?

David French  44:27  
Oh, my goodness. Yeah. So basically, what will happen is that, you know, and this, this isn't just a second amendment thing, this is just the way things work in life is if you have, for example, a blue jurisdiction, and it gets a court in a court strikes down a resume a regulation that is very important to the voters of that jurisdiction. Okay. You're going to have the legislators in that jurisdiction are going to be have every incentive to minimize the effect of that ruling every incentive. So let's say, you know, the Supreme Court strikes down New York's law and says you have to have a permitting process. That is a shell a shell diversion of a shall issue permitting process. Like we said earlier, I doubt they'll say, well, the permit can't cost any more than X number of dollars, I doubt they'll be as so precise as to say the permit process has to take no longer than X amount of time. You know, that would be unusual for the court to lay it all out like that, they might say something that the permitting process can't be so burdensome, that it effectively results in a denial of the right to carry. But they're probably not because there's multiple different kinds of permitting processes, my permitting process in Tennessee, when I got a concealed handgun carry permit, we didn't call them concealed carry permits in Tennessee, but handgun carry permit in Tennessee, before we went permitless carry, I did it pretty quickly. And just all the scheduling and making sure I could get the course done and the fingerprinting and all of that, it still took a few months for it to happen. And that's an estate that was very gun rights friendly. And so what you would see is a lot of these jurisdictions saying, Okay, well, we're going to make the permit cost as much as we can possibly make it cost without being immediately struck down in court, or we're going to make the courses that we ask you to take to be as long and burdensome as possible without them being immediately struck down in court. And so and so that's what you'll see happen. And, and so, you know, then you go into this whole litigation phase of well, just like with DC and Heller as well, did you really do what you're supposed to do here? Or did you do the minimum that the Supreme Court said, but it's really, the Supreme Court really wanted you to be more open than you are? Which is, you know, one of the reasons why, when it comes right down to it, in the absence of these very sweeping Supreme Court rulings, which again, are very rare, they're very rare in all categories of law. They're, they're rare in the absence of these very sweeping Supreme Court rulings, that's why, you know, a lot of our our rights are protected more by legislation than we realize. And the second amendment is no exception to that. I mean, I I enjoy a wide, broad degree of gun rights here in Tennessee, and 99% of that is state legislation, not judicial rulings. And so the Supreme Court might make that 2% of that is juja judicial ruling and 98% is state regulation, or maybe three years down the road, it might be 5% of that is judicial rulings and 95% of state legislation, but

Stephen Gutowski  48:06  
I don't sure, but the balance is going to be very different in a blue. Oh, yeah. Oh, yeah, I would imagine. But real quick, just last last point on this topic. What so let's say that, you know, the Supreme Court strikes down New York's gun carry, you know, regime and but doesn't necessarily, you know, they do a more incremental, like you're talking about, and they don't necessarily issue a solid standard, as to which to judge second amended cases by what effect Do you think that will have on litigation in the Ninth Circuit on the assault weapons ban in California? Like, what? Just to just to dial it in? Like on a specific example, how do you think the ninth circuit will handle that case? How do you think the Attorney General of California will handle that case? If the Supreme Court essentially signals that, hey, we're going to start taking more Second Amendment case, oh, they're

David French  49:04  
going to defend this assault weapons ban to the to the end. I think that the attorney general of California and the governor, there's, there would be a huge political price to pay if they didn't just if they didn't fight tooth and nail for the assault weapons ban in California. So I think they'll defend it, you know, all the way to the Supreme Court. And now, the interesting thing is denied. It's far from clear that this case that the Supreme Court decides next term, it's far from clear whether it'll have anything to do at all with the legal standard applicable to the California assault weapons ban, but I

Stephen Gutowski  49:44  
know, it probably won't, but I think the signal there would be, I guess, my mind is that if they rule on a second amendment case, especially with the new makeup of the court, that signals like if they don't just Yeah, right. I would imagine that sends a signal to lower courts, that they're going to be more active on TV. And so they need to be more diligent. Maybe

David French  50:12  
I've seen this movie before, though, you know, like, Heller was going to be the signal of a new era of Second Amendment jurisprudence. And then all of a sudden, it was like walking into a brick wall. And the interesting thing about both Barrett and Cavanaugh is that their jurisprudence so far has been originally much more originalist than many prior judges, justices, but cautious. So they have not been super bold. They've been absolutely what you would call judicial conservatives, you know, originalist? textualist. But they've not been super bold. And so that's the big question in I think the main signal that you'll see, isn't the main signal isn't the fact that they took this case, because this was overdue. I mean, it was so overdue to take a bearing arms case that I couldn't believe they hadn't done it yet. Like I was gobsmacked. They haven't done it yet. But the real signal will be, what does this ruling say. And if this ruling announces a new test, or you know, if this ruling has some expansive elements that I don't anticipate, you know, in an interesting way, that may actually mean that they don't take another case super fast, because they'll want to see what this new standard does in the courts below. So what they might then do is do something that's called GVR. So what a GVR is something called a grant vacate, remand. So sometimes when the court establishes a new test, it'll still have a bunch of cases that are have been appealed to the Supreme Court, but they're the court hasn't acted on them yet. It hasn't denied appeal, it hasn't taken the appeal. And so sometimes what the court will do, is when it announces a new test, it will take all of these cases like that there are all these Second Amendment cases that are just hanging out waiting to see if the court will review them. And the court will GVR them all. And it'll say, we grant cert, we vacate the lower court ruling and we remand it for further consideration at the lower court consistent with the opinion, we just announced in x or y. And so what that that moves the law a lot. But it doesn't mean the Supreme Court's gonna move soon. It just means that the lower courts, so all of this stuff is sort of it can be so complicated, it can make your head hurt. Because, you know, one of the things I think a lot of folks sort of in the public are not familiar with constitutional law think and, and part of this is because of cases like Roe, which, you know, created a right to abortion in all 50 states, or obergefell, which is the recent gay marriage case, they think of the Supreme Court rulings as very decisive, that the Supreme Court settles stuff. And yeah, it does, but it settles by and large, it settles cases, it doesn't settle issues, and the issues get settled slowly over time through lots of cases. But it can take so long, so long for a lot. I remember, you know, one of the you'll sometimes see issues settled without Supreme Court ever decisively weighing in. I mean, for example, I worked for a long time to try to get rid of speech codes on college campuses. And it is now settled law, like it is settled law that if you try to implement a speech, long speech code on college campuses, you're going to lose. But the Supreme Court has never ruled on a modern campus speech code. It just all the lower courts settled these cases over years and years. So it's so hard to predict what they'll do. But if there is a big new test announced, watch for a lot of gv RS that would be all of these other lower court cases, or all these other appeals to the Supreme Court. They say we're vacating the judgment remanding. Now apply the new tests we just announced.

Stephen Gutowski  54:21  
Yeah, right. Certainly, that would be very interesting. I mean, we'll have to see exactly what they do. Because obviously, it's gonna have some very serious Yeah, it's it's moving forward for everyone in the country, I would, I would think, but I just wanted to turn for a moment here to red flag laws. We talked about permitless carry earlier a little bit. And that's sort of been the fastest growing state level gun policy over the last decade, you know, went from two states to 21 states in just about a decade here that adopted permitless carry. Now, of course, almost all of these are states that are triple red, right? And publicans control all of the levers of government in those states, there's only I believe four states left Florida, Ohio, Indiana and Georgia that don't have the policy that are triple red. So, you know, we might be running out of steam there. But obviously, it's had huge, huge, you know, adoption over the last 10 years. And at the same time, we've seen red flag laws have a similar, you know, huge upward slope in their adoption in mostly in triple blue states. So there's not there's 15 triple blue states right now. And there's 19 red flag laws, so it's actually punched above its weight a little bit there, probably because it pulls pulls better than then permitless. Carry does. But regardless, I think the interesting question here is, what your take on red flag laws are in practice, because you were one of the early, you know, proponents for this basic concept of of, you know, these temporary emergency orders to remove someone's guns, if they're in a state of crisis, or if they've, there's evidence that they've, you know, are planning to harm themselves or others. Right, and, but in practice, I wonder what your thoughts are on how these have actually been implemented and whether or not they have the requisite due process protections that they should, because that's been, I think, the main criticism of them in practice, I think you get a lot of people who perhaps support the concept of a red flag law, but have oppose them in practice. And if the NRA has generally supported the concept, but has opposed all of the 19 that have been enacted, because they don't believe there's strong enough due process protections, or an end, I think there's also a common critique about, it doesn't really solve the problem, because all all these laws do. The ones that have passed thus far, is remove the person's guns, and they don't do anything else. When presumably the person if they're enough of a threat to themselves or others to remove their firearms, perhaps there should be, you know, obviously other other measures taken as well. So, what, as someone who was an early supporter of these policies, what is your what's your take on them in practice,

David French  57:38  
I mean, I think that most of the state laws are insufficiently protective of due process. They're a little they're a little too broad, from the the pattern that I laid out. But I also think that in in many important ways, they're filling a gap that exists. So what we what we've seen, there's what I would look at when I talk about gun, when you think about a gun death problem in the United States, you're generally looking at three buckets, like three groups of kinds of deaths suicide, which is by far the largest, then you have violent gun crime, which is next. And then you have mass shootings, which is a very small percentage of overall gun deaths, but impacts the public far out of proportion to the actual percentage of gun deaths, and you can be a gun rights advocate. And you can say to people all day long, well, actually, your odds of being killed in a mass shooting are far less than being struck by lightning, you know, whatever you want to say statistically. But when somebody is looking at a massive school shooting, that has a giant impact on people, it has a giant impact on people. And I think it has always been the case that the primary threat to gun rights is gun violence in many ways. Now, sometimes gun violence can be a spur for people to purchase firearms. And so for example, if you feel like you live in a very dangerous neighborhood, then that can be a spur to purchase a weapon that can be a that can be a reason why you would buy a gun. mass shootings are a little bit different. A mass shootings are a situation where I think of mass shootings as a kind of emergency and a kind of shocking event. In a in a country and in a community that spurs this sort of demand. We have to do something about this. And the problem is a lot of the do some things that people can advocate for after a mass shooting really will have nothing to do with mass shootings. Like a you know, expanding background checks will if you actually look into mass shootings, expanded background checks wouldn't stopped really, any mass shootings, there's this famous 2017. Washington Post fact check that where Marco Rubio said none of ours at twit maybe 2015 2016 fact check when Rubio was running for President 2015 2016. He said none of the common gun control proposals would have stopped any mass shooting. And Washington Post fact checked it and said True. True, not one of the normal gun control proposals you hear after a mass shooting would stop a mass shooting. But then when you drill into a lot of these mass shootings, what do you find what you find is people who are radiating warning signs, red flags, so to speak. And while our system is decent, at dealing with people who are felons, who you know, at, you know, they're prohibited a felon, you know, in vast majority circumstances is prohibited from owning a weapon. And our biggest problem is, how do we then keep the felon from getting it through straw purchases, whatever, but we, we have good solid laws preventing felons, where we have real problems is in this arena of where somebody had, you know, mental health issues, personal crisis, those kinds of circumstances, we have a real problem. And we don't know what to do about that. So for example, you know, if you ask the average person, her youth, your uncle, your aunt, is in a mental health crisis, what do you do? What do you do about the mental health crisis? Most people have no clue. They don't have any idea. So somebody can be in an actual crisis, and you don't know what to do. And they're, you know, in their crisis, they might not have violated the law, but the crisis is obvious. And so we need better mental health

procedures, clearer, easier to understand for people. But one of the benefits of the red flag law is that if somebody is in an obvious state of crisis, you can it's like pressing a pause on their ability to own a gun and, and harm themselves or others. And so I think that that has a a better with the thing I like about that, as opposed to a lot of these other restrictions, like assault weapons, bans, bans on large capacity magazines, all of those things, absolutely, totally impact by and large, almost exclusively, totally law abiding people. And there's no evidence that they impact criminals at all. So here, you have a problem with a, you know, a school shooting, and you say, Well, I want to ban the large capacity magazines and assault weapons. There's no, the only thing we know that will happen. If you do that is we know that law abiding people will have their second memory rights restricted, we don't have any idea that net will necessarily restrict us a potential school shooter, the benefit of a red flag law, is that it's not a sweeping regulation, it allows you to target people based on bad behavior, not based on their status as a gun owner, but based on behavior. And that's why it is much better construct.

Stephen Gutowski  1:03:23  
Sure, and that I mean, that that's the the reasonable argument for why the general policy is is perhaps a good idea. But obviously, in practice, you still have a lot of the same concerns in that, yes, it's not a large group of people who are having their rights restricted, but it but it is a problematic on an individual level for a lot of people, because the standards that have been used thus far, and a lot of these laws are very loose in terms of, you know, taking someone's rights away even temporarily. Right. I mean, I guess that's one of the, the, you know, backstops for why for the, for this policy being abused is that it's only temporary, but at the same time, like the, you know, generally Shouldn't the standard for depriving someone of their rights even temporarily, be very high. And Shouldn't we practice the same sorts of, you know, standards we have for due process and in other areas where we're restricting someone's right, like, you know, when we're putting them in prison? Well,

David French  1:04:34  
so there's that. That's an interesting question. And there's been a lot of like, ignorant commentary around it. Because people, so yes, the bottom line is when you're talking about a temporary deprivation of a constitutional right. There is actually a pretty well developed body of case law around that. And so for example, you can Have. So the basic view is when you're talking about a temporary deprivation of a constitutional right, that there has to be some degree of due process. Now, you would be surprised to know that the high that the level of due process is not that's required by federal court, by constitutional law is not as nearly as high as your, you know, stating, when you're comparing a temporary removal of guns, or a temporary, let's take an example of a domestic protective order. Okay. So this is very common. And this is something that happens all over the United States of America. And this limits your ability to see your wife, see your children, go to your own home. I mean, these are big, sweeping orders far more sweeping and impacting your life far more than taking your firearms for two weeks, or three weeks, or whatever it is. And in many jurisdictions, you can be you can, a person can go in to a judge and get a protective order barring you from your own home and from, you know, from seeing your kids on an emergency basis before you even have a chance to challenge it. And so, now you have an

Stephen Gutowski  1:06:19  
ability, that's one part that a lot of people do have problems with, right as the, I guess, President Trump, foreign President Trump sort of articulated The, the worst fear of a lot of people with this, which is, you know, take the guns first and then then do then due process, which is kind of, I think, for a lot of people is upsetting, like, it's sort of, you know, defeats the purpose of due process, but

David French  1:06:42  
the process occurred. So. So basically, if you have an emergency, and this is common in a lot of areas of law, you can go in and it's called ex parte you can get orders ex parte on an emergency basis, but then the due process protection comes in that you're allowed to immediately challenge so that you can then immediately challenge and and my general view on it is that an emergency, if you can prove an emergency according to a high standard of proof, then that's, that's constitutionally fine. As long as the person then has the ability to come in and immediately challenge. The I guess the issue

Stephen Gutowski  1:07:24  
has been, the issue has been with that standard of proof. Yeah, that's that, is that where that's the issue? That's the issue. So what standard of proof do you prefer? Would

David French  1:07:36  
you I think it should be a clear and convincing. So you, you generally have the standards of proof that generally occur in the United States are proof beyond a reasonable doubt. That's the standard that is the standard to put someone in prison to deprive them of their liberty for a set amount of time, almost all of their liberties, because once somebody is in prison, I mean, you know, think of the layers of liberty, they're they're stripped from that person. That's generally the standard of proof to separate someone from their freedom. Proof beyond a preponderance of the evidence, like 51% 5149, or 50.1 49.9, is what we use for civil lawsuits. So if I'm going to separate you from your money, as opposed to from your liberty, it's generally going to be a preponderance of evidence. In the middle there is this thing called clear and convincing, clear and convincing evidence that's more than a preponderance but less than proof beyond a reasonable doubt. And I've long thought that that's a good standard for a temporary deprivation of a fundamental constitutional right, in an emergency basis, clear and convincing evidence. And that's something that I think that should also be a general, a general standard to use in, for example, domestic orders. You know, things like

Stephen Gutowski  1:08:58  
what, what's the standard right now for most red flag laws?

David French  1:09:03  
I mean, I don't know the standard of all of them. You know, it's, you know, it varies, you know, pretty widely but clear and convincing is generally not the standard, you're generally going to, gosh, I don't need some as low as probable cause. I'm just trying to think because the lowest possible standard is probable cause. Probable cause is the standard that allows the government to for example, search you initially arrest you. So you'll have probable cause. preponderance of the evidence clear and convincing. And then proof beyond a reasonable doubt. And I don't know you know, there's what 18 states 21 state, how many how many have that was not,

Stephen Gutowski  1:09:53  
there's a 1919. Okay, with red flag. Yeah, I'm not the only one with stuff by the pardon in Vermont. The only one that has permitless carry and a red flag. Well,

David French  1:10:04  
yeah, I don't know what all the demand side standards are. But

Stephen Gutowski  1:10:07  
yeah, well, they do these laws do go back quite a ways in some states. So that, you know, they do change a bit, but I know that one of the main concerns is this lower level of about evidence for the initial seizure of guns. That's been one of the biggest concerns out there so far. And it sounds like you share that concern. And but yeah, it's still like the policy. I like

David French  1:10:32  
the policy. It's what are the details? You know, what's the old saying, devil is in the details? devils in the details? Yeah. And, you know, some of them for, you know, some of them, for example, would say, you keep, you can see, you can seize them for too long, you know, so so the, you know, one of the issues is how long can you? How long can you?

Stephen Gutowski  1:11:01  
Yeah, cuz Some are up to a year.

David French  1:11:02  
Yeah. So how long can you see is that? That's a big issue. Right? You know, so that's a that's a big, that's a big issue. Another one is like, what is a standard that you have to is? Who holds the burden of proof to get them back? You know, there's all kinds of like, nuances to this where you can say, Okay, I like the red flag concept, because it's focused on a gap in the law. And I don't know, did you see that? Do C's, he commissioned a study for two and had commissioned a study to look at school shootings, and suggested a series of policies to respond to school shootings, and he did something in his commission did something that virtually no one has done in response to the school shooting issue. And that is to look at a whole bunch of proposed policies and ask, would they have made a difference in these circumstances? So for example, would expanded background checks have made a difference? Or would a widower read? Were there warning signs that a red flag law would be designed to, to catch? And what it found is that in a number of school shootings, a properly drafted red flag law would have made a difference, again, properly drafted. And that that is a you know, those are those are laws that have the ability properly drafted to fill in a gap in our regulatory regime that's individually targeted, not sweeping, targeted against, you know, all gun owners. And I think that, that that's the sort of the fundamental soundness of it, and then the devils in the details from there, from there forward.

Stephen Gutowski  1:12:53  
Now, do you just last question here? Cuz I know, you've given us a lot of your time, I'm very grateful. Do you see a specific example, in practice already in one of these states that have passed this this policy that you would point to as an ideal, or do you still think that they're just that they all need refinement?

David French  1:13:17  
I'm just a moment. I would say, I think the best one that I have seen is I think Florida is is pretty solid. Overall. I mean, if I look, as a constitutional lawyer, there's it's hard. It's it's somebody who's spent most of my career attacking laws. I am absolutely attuned to nitpick these things. And but I would say, you know, Florida is this is pretty solid. I think it is, it is it is pretty solid. I there are things that I could improve about it. But overall, I think Florida's got a pretty solid red flag law. And it's been used quite a bit since it was passed. And so you know, there's a there's a body of research about the Florida red flag law that I think you're in a couple of years, would be worth some serious now that it's sort of had time to mature. There should be some serious research into the Florida, you know, what they call a risk protection order. Right. And the actual effect in the real world?

Stephen Gutowski  1:14:29  
Yeah, yeah, absolutely. All right. Well, I appreciate you coming on to the reload podcast that very grateful that you were able to give us as much time as you did, and go through all these, these issues that you've written a lot about, you know, throughout your career, and I hope that you'll be able to come back on soon, maybe, maybe after the Supreme Court case, so we can hold you accountable. We might

David French  1:14:54  
Yeah, I mean, it's gonna be interesting no matter how it goes. I mean, that's Oh, yeah, it's gonna be case that spawns 1000 op eds and law review articles, that's for sure.

Stephen Gutowski  1:15:04  
Oh, yeah, absolutely. All right. Well, that's it for our interview here with David French of the dispatch, make sure you head over to the dispatch comm to subscribe to the their many newsletter offerings, including David's and and also to his podcast where he just discusses more legal questions of the day, every day not just guns but all sorts of issues. And that's very insightful. And I will hope to have you back on real soon.

David French  1:15:36  
Yeah, well, we're gonna have there's gonna be cases to talk about, there's no question. Thanks for having me. And congratulations on the launch of reload and you're just killing it, you're doing great work.

Stephen Gutowski  1:15:49  
Thank you, I really appreciate that. It's very kind. Alright, that's gonna do it for this episode of the weekly reload podcast. I really appreciate you guys tuning in to hear some hard news reporting and maybe a little bit of interesting insight from David French there. I hope to continue to have guests with that level of knowledge going forward, you know, this podcast, I think, I'm going to try and make about presenting long form interviews with, with really people who have great insight into the topic who are knowledgeable people who are experts, people who aren't just going to come on and, and sort of repeat the same talking points that you've probably already heard 100 times over on any, you know, cable news opinion show that's out there. So that's my goal here with this podcast. And I hope that you guys will submit some people in the comments down below or replying to one of the members newsletters, who exactly you'd like to see on in the future. And what kind of topics you want to see me cover with this podcast, get a little more in depth to that whole, you know, hour long feature ship some some really interesting nuggets by digging down into the depths of each conversation. So please absolutely reach out through the comments or through email to me and let me know who you want to see and what you want to hear talked about on the next episode of the weekly reload podcast. I will see you guys again real soon. Remember, numbers get this a day. So if you haven't already, otherwise, I will talk to them. I gave them poison, just for fun. I had one friend. Now there's none. I'm a the devil, right? I broke so many bones. But none of them. I was alone. I broke so many bows.

Transcribed by https://otter.ai