Weekend Law: Vampire Gun Rule & Trump Headed for SCOTUS Loss

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2:02And it looks like the Supreme Court's conservative justices are about to drive a stake into it. At oral arguments on Tuesday, the conservatives were roundly skeptical of the law. Chief Justice John Roberts wanted to know why the Second Amendment was being relegated to second-class status. It is a very clear constitutional right under the First Amendment. If I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, give me your vote, that's exercising the First Amendment right. But you say that it's different when it comes to the Second Amendment.

2:40And Justice Samuel Alito wanted to know why Hawaii even needed the law. So what then is the big deal about this statute? Why does it matter if store owners and owners of private property that are generally open to the public don't like guns? Why is it a big deal to say they want people carrying guns to stay out? Just put up a sign. My guest is a Second Amendment expert, Adam Winkler, a professor at UCLA Law School. Adam, explain the Hawaii law for us and why it's called the Vampire Rule. It's called the vampire rule because the traditional legend of the vampire is that they can't go onto private property without the owner's consent.

3:23And that's a real limit to vampires' ability to attack people and suck their blood if they can't break in or whatnot. So this case is Wolford versus Lopez. And the question in the case is whether the Second Amendment is infringed by a Hawaii law that requires gun carriers to obtain affirmative permission before bringing their guns onto private property that is otherwise open to the public. And so that's why it's kind of thought as the vampire rule. Do you, like a vampire, have to get affirmative permission? Now, of course, private property owners can prohibit guns from their property. The issue here is the default rule.

3:59Most states say that you can bring your guns unless the property owner affirmatively says no, you can't, typically by posting a sign that says no guns allowed. Hawaii and several other states have adopted a different rule. Property owners must affirmatively consent in advance to people bringing guns on their property. So why does the government say that violates the Second Amendment? Well, it goes back to this history and tradition test that was established by the Bruin case a few years ago. And in that case, the Supreme Court said that for a gun law to be constitutionally permissible, it has to be consistent with the tradition of gun regulation in the 17 and 1800s.

4:41And the gun challengers here are saying, one, that there isn't a history and tradition of a default rule requiring affirmative consent in advance for people to bring guns onto private property that's open to the public. And two, that the consequences of Hawaii's law are devastating for gun carrying. The Supreme Court has said you have a right to carry guns in public. And if the default rule established by Hawaii and several other states like California stands, then gun owners really won't be able to carry their guns around because they couldn't even stop at a gas station without affirmatively first getting consent.

5:19So it would effectively nullify the right to bear arms. So as far as the history and tradition test, Hawaii did present historical evidence to support the gun law, including an 1833 law in place during the reign of King Kamehameha and an 1865 Louisiana law. But it didn't seem that was enough for the conservative justices. Brett Kavanaugh said there's no sufficient history. Case closed. Well, the real challenge of applying Bruins history and tradition test is in part that there's often not much of a tradition of anything when it comes to regulating guns besides sort of racist gun laws and, you know, a couple laws here and there.

6:02And so it's hard to find consistency or predictability. The Ninth Circuit here said that there was a national tradition of prohibiting the carrying of firearms on private property without consent. Yet several justices in the oral argument suggested there was no such history. And the challenge of Bruin with regards to, say, default rules for private property that's open to the public is that there really weren't default rules in either direction in the 17 and 1800s. And so once again, we're trying to figure out the constitutionality of modern laws by reference to analogies to a tradition that didn't exist in either direction in many of these cases.

6:43Justice Samuel Alito told Hawaii's attorney, Neil Katyal, you're relegating the Second Amendment to second class status. And the chief justice compared it to the First Amendment, allowing a political candidate to walk up to someone's door to campaign. Quote, you say it's different for the Second Amendment. What exactly is the distinction? Isn't the distinction obvious that in one you're carrying a weapon that can hurt people and the other you're carrying pamphlets? Well, it would seem that that would be a pretty viable distinction. It might not lead to the outcome that the challengers hope for or even might not necessarily lead to the outcome that Hawaii is hoping for.

7:22But it just highlights what's happened, a continuing rhetoric that we see among the conservative justices, which is that the Second Amendment, they feel, is being treated like a second-class right because courts are upholding gun laws. And in upholding gun laws, they are not treating the Second Amendment with the amount of respect that they want. What was surprising about this oral argument was not that some of the justices said that the Second Amendment is being treated like a second-class right. We've seen that argument made time and again by Clarence Thomas, by Neil Gorsuch, by Sam Alito. What was surprising in this case was that the chief justice voiced that concern.

8:02He suggested that the Second Amendment was being unfairly treated like a disfavored right distinct from the First Amendment. And that's surprising because the chief justice, we've sort of all thought to be somewhat reluctant to expanding Second Amendment protections beyond Bruin and Heller. And this suggested that maybe he did agree with the more conservative colleagues that the Second Amendment needs more protection, that the courts need to be striking down more gun laws right now. You're an expert on the Second Amendment. Do you think it's a disfavored amendment or it's being relegated to second class status?

8:37I personally don't, but I do recognize that the courts are really struggling right now to try to figure out what the Second Amendment means, where it applies, and what is constitutionally permissible. And I think it really comes back a little bit, at least to this history and tradition test established by Bruin. It has really left the lower courts in chaos. The Supreme Court said the reason why we need this history and tradition test is going to limit judicial activism, prevent judges from imposing their values on the Constitution, and provide more predictability. But instead, what we've seen is tremendous inconsistency in the lower courts, tremendous disagreement over the scope of gun laws, and in part because the history and tradition of gun regulation, there is a history and tradition, but it's very different kinds of gun laws than we have today.

9:24Truth be told, that if we really seriously applied this Bruin test, then a whole raft of gun laws that are widely accepted would not be constitutionally permissible. We didn't have background checks back in the 17 and 1800s or anything like it. We didn't have bans on felons possessing firearms or anything really like it. And we didn't have bans on the mentally ill possessing firearms back in the 17 and 1800s. These are all modern 20th century inventions. And yet the court says we have to find analogies back in the 17 and 1800s. It's proven very difficult for the courts. One difficult issue that's arisen in these cases is how to think about the history of racist gun laws in America.

10:07One thing there's been a lot of in the 17 and 1800s was gun laws that prohibited people who were African American, for instance, from possessing firearms. In these racist gun laws, the courts have kind of struggled with how to figure out how to apply them. And that came up in this case. You know, obviously, you can't look at those gun laws and say, well, there's a principle that we can discriminate on the basis of race in our gun laws today. No one would accept that conclusion. But do those laws nonetheless reflect a measure of governmental authority to regulate guns? And if they do, then it would seem that that's part of the history and tradition of gun laws and something that speaks to the extent of government authority to regulate guns.

10:50In this case, Hawaii relied on an 1865 law from Louisiana that restricted gun carrying on premises and plantations without the owner's consent. Neil Gorsuch said that that was an outlier and part of the Black Codes, and so it should be completely ignored. Ketanji Brown Jackson said no, said that if we ignore those laws, then we aren't really looking at the full history and tradition of gun regulation as Bruin requires. And so this has become a recurring problem in these cases, and it'll be interesting to see what the court here says that might sort that out. Liberal Justices Sonia Sotomayor and Ketanji Brown Jackson seemed open to the argument that the law is better understood as a matter of property rights and trespassing rather than as a gun regulation.

11:37But Justice Gorsuch rejected that outright. So what about property rights here? Well, it is a difficult issue, right? Because we do recognize that private property owners can prohibit people from coming onto their property. And even a property that's open to the public, generally, you can prevent someone from coming on your property if you don't want to do business with them. Obviously, with the exception of things that are prohibited by the Civil Rights Act or whatnot, you can't prohibit on the basis of race or sex or national origin. But generally, you could prohibit someone from coming onto your property if you didn't like the fact that they weren't wearing shoes or they weren't wearing a shirt.

12:13And what's at issue here is whether they could prohibit you from coming on if you'd have a gun. Now, obviously, there's a difference between not having a shirt and having a gun in that there is a constitutional right to have and to carry a firearm. But generally, we think that your constitutional rights do not extend onto someone else's private property. And so this case poses a real challenge to the court how to think about private property rights in the context of an amendment that does say that you can carry firearms in public. Would you say it's pretty clear that the conservatives intend to strike the Hawaii law down?

12:45It did seem like all six of the conservative justices voiced significant skepticism about Hawaii's law and are likely to vote to strike Hawaii's law down. There was some skepticism, however, by Amy Comey Barrett about whether this law was constitutionally invalid. She asked whether states could require consent before gun owners carry on to private property that isn't open to the public. And the lawyer for the challengers in this case said that states could not require such consent. And Justice Barrett voiced skepticism about that, saying, wait, so you're suggesting that states could not prevent people from bringing guns into my private home or the home of Neil Gorsuch?

13:30But nonetheless, she generally seems skeptical of Hawaii's law. And I would expect Hawaii's law to be struck down, at least based on the tenor of the oral argument. There are similar measures in four other states. California, Maryland, New York and New Jersey. If the court strikes down the Hawaii law, will those fall as well? It seems likely that's the case. You know, it's possible you might see a more narrow ruling that only looks at some of the particularities of Hawaii's law, but I don't think that's likely. Finally, the court has expanded gun rights since Bruin, but there have been cases here and there where they allowed restrictions like the ghost gun restrictions and the restrictions on people with domestic violence restraining orders against them.

14:15Do you understand where the line is for the conservative justices? Well, I think this is really a difficult issue. What the Supreme Court said in the Rahimi case, where they upheld the ban on domestic abusers subject to a restraining order from possessing firearms, is that there was a history and tradition of banning gun possession by dangerous people. Now, that seems like that would lead to believe that, you know, felons can be banned from having firearms. There's a case the Supreme Court set to hear later this term on whether unlawful users of controlled substances can be prohibited from possessing firearms.

14:48Presumably the reason there is because they're dangerous and one would think that the Rahimi case would lead to the substance abuser ban being upheld. But the difficulty even there is that Rahimi drew on analogies to some laws in the 1800s that actually didn't prohibit dangerous people from possessing firearms. They prohibited some people from carrying guns in some circumstances, but none of those laws that the court cited to prohibited someone from having a gun in their home and using it for self-defense, which is exactly what the substance abuser ban does and what the ban on felons in possession does.

15:23And so it seems like, again, it's going to be about the dueling analogies to a historical tradition that is ambiguous and frankly, just not that helpful in deciding the constitutionality of modern gun laws. It's been great having you on again, Adam. Thanks so much. That's Professor Adam Winkler of UCLA Law School. And now a note, Michael Bloomberg, the founder and majority owner of Bloomberg LP, the parent company of Bloomberg Radio, is a donor to groups that support gun control, including Everytown for Gun Safety. The thing about AI for business, it may not automatically fit the way your business works.

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17:54David Super:The president, by your own admission, cannot fire someone for disagreeing with his policy choices. You've conceded that, correct? Correct. All right. So it's not as if keeping her is going to tort any right he has to run the department, because he has none. He's conceded that. On policy, he does not. In the 112-year history of the Federal Reserve, no president has ever tried to fire a governor from the board, and the Supreme Court indicated they're unlikely to permit President Trump to be the first to do so. On Wednesday, Supreme Court justices across the ideological spectrum expressed concerns about the implications of Trump removing Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations, concerns that it would upend the Fed's independence and rattle the markets.

18:54Justices Brett Kavanaugh and Amy Coney Barrett, both Trump appointees, posed skeptical questions to the U.S. Solicitor General, who argues on behalf of the federal government.

19:05David Super:Your position that there's no judicial review, no process required, no remedy available, very low bar for cause that the president alone determines, I mean, that would weaken, if not shatter, the independence of the Federal Reserve. Justice Sotomayor brought up the public interest here. and we have amicus briefs from economists who tell us that if Governor Cook is, if we grant you your stay, that it could trigger a recession. Both Cook and Federal Reserve Chairman Jerome Powell sat through nearly two hours of arguments in the packed courtroom. Cook has denied any wrongdoing and the threshold for an emergency intervention by the court is high and includes a showing of irreparable harm to the president, something several jaunstices, including Ketanji Brown-Jackson, said there was no evidence of.

20:02So the question is, to what extent do we believe that the president or the public is harmed by allowing Ms. Cook to remain in her position for the pendency of this case? I'm not sure that we We have evidence here that Ms. Cook is an immediate threat to the public. The decision in this case could set a crucial precedent for the president's influence over the central bank and his attempt to further expand presidential power. My guest is constitutional law expert David Super, a professor at Georgetown Law. David, at this point, the Supreme Court doesn't have to definitively resolve whether Trump can fire Cook.

20:50The issue right now is whether Cook can stay on the job while her challenge to the firing plays out in the lower courts. If you just go by the oral arguments, did it seem like there were at least five justices who would vote to prevent Trump from firing Cook? I think so.

21:08David Super:The government's lawyer faced pretty tough questioning from seven justices, and it only takes five. There's a lot of niceties in this case, but what it comes down to is whether the Federal Reserve will be independent, whether it will exercise its enormous powers based on best expert judgment and the directions given by Congress, or whether it will be just a tool of the sitting president who can use it irresponsibly to advance his political fortunes. And explain the four cause requirement in the Federal Reserve Act. Certainly. The Federal Reserve Act creates the Board of Governors, allows the president to appoint people to that board with Senate confirmation, and provides that once appointed and confirmed, they cannot be removed except for cause.

22:00David Super:That effectively means that they must do something wrong or fail to do their jobs in order to be removed. It's not just up to the president to fire them anytime he wants. He can fire his chief of staff anytime he wants, but members of the Federal Reserve Board, he has to have a good reason, a cause to do it. Cook argues that even if the mortgage fraud allegations were true, that isn't grounds for firing her for cause. What did you hear from the justices on the for-cause requirement? Well, there was less clarity as to what they were thinking about that, at least my take on the argument. There are some statutes that provide considerable detail as to what is caused.

22:47David Super:This statute isn't really one of them. And some justices, particularly Justice Thomas, seem to be thinking that that difference between this and other laws means that anything that Trump says is cause is good enough. But there were other justices that seemed responsive to the notion that if the president can just make up any old cause he wants, that there is effectively no independence for the Federal Reserve. And I think that the extreme nature of the argument here that the solicitor gentleman had to make is going to bite them. The essence of Dr. Cook's argument is all this information was available before I was appointed and confirmed.

23:35David Super:Congress could have taken that into account in deciding whether to confirm me. They didn't. And the good cause requirement is supposed to relate to something one does on the job. I didn't have this job when I sought those mortgages that Trump is saying are improper. There was an extraordinary amicus or friend of the court brief filed in this case, signed by every living former chair of the Federal Reserve, as well as six former Treasury secretaries and other experts, warning about how a decision for Trump would affect the Fed's independence and the long term stability of the economy. And Justice Barrett took note of that.

24:18David Super:Well, the elephant in the room is the copious evidence that non-independent central banks are very bad for countries' economies. You can look at Russia, you can look at Turkey, you can look at other countries that do not have independent central banks, and they have enormous economic trouble as a result. The justices know this, and even if philosophically they'd like to let Trump have his way, I think they don't want to be blamed for throwing the economy into a recession. And to her credit, Justice Barrett put that out on the table and gave the Solicitor General the opportunity to respond. He didn't do much with it, but she gave him a chance.

25:02Cook is also arguing that she should have been given notice and an opportunity to be heard to contest the allegations before she was fired. And all the Trump appointees pushed the Solicitor General to explain why that wasn't done. With the question sort of hanging in the air, what was the president afraid of? You know, Justice Gorsuch posited a sit down across the table in the Roosevelt Room, where the president provides Ms. Cook, Governor Cook, with the evidence and waits to hear what her response is, gives her a chance to defend herself. I mean, it just wouldn't be that big a deal.

25:36David Super:And what's the fear of more process here in the sense that process protects you in the sense of helping you make better, more accurate decisions? And it helps process helps you then convince people on the outside that you've made a considered thorough, appropriate decision. What's the concern about more process? And some of the justices seemed almost incredulous that the solicitor general was contending that Trump's social media posts constituted formal notice to Cook. Certainly, social media, particularly one's own personal social media platform, is not a conventional way of giving notice. It's a way of doing public politics.