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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. I'm feeling all Scotusy, and it's certainly summer. Now we're in the summer of Scotus, as it were.
J. Aughenbaugh: Listeners. This is yet another episode of our podcast that is devoted to the end of the Supreme Court term where they issue all of their really important case decisions.
N. Rodgers: We have a couple of cases we want to talk about today, right?
J. Aughenbaugh: Yeah. Today's episode is not going to be one of our longer ones. We're going to be discussing three Supreme Court decisions that were recently published. Two of them deal with guns.
N. Rodgers: Can we do those two last and do Moore v first?
J. Aughenbaugh: Our first case is-
N. Rodgers: Wait. Sleepy alert for those of you who are about to freak out because we're going to talk about tax law. This really isn't as boring as you think it is.
J. Aughenbaugh: I'm going to lay out the particulars, and when we get to the importance, then you'll understand why so much attention has been paid to this case. The name of the case is Moore versus United States, and it was decided on June 20th 2024. The case concerned an interpretation of the 16th Amendment. For those of you who are unfamiliar with the 16th Amendment, and Nia, will be sure to include the text of the 16th Amendment on our Research Guide. This amendment gives Congress the power to pass an income tax. What was at issue in this case is that the 9th Circuit Court of Appeals, which covers the far Western states of the United States; California, Oregon, Washington, Hawaii, Alaska, blah, blah, blah. That court held that a married couple could be taxed on earnings that were not realized income, but were retained and reinvested by a corporation in which they were minority shareholders. Now, what was at issue here was when Donald Trump was president, the Trump administration convinced Congress to make changes to the United States tax code.
J. Aughenbaugh: Now, the changes reduced tax revenue to the federal government. One of the offsets was what's known as a mandatory repatriation tax, an MRT. Basically, it imposed a tax rate that was variable between eight and 15.5% on any pro rated shares of American shareholders and companies. Basically, the Moores claimed that because they never generated any, if you will, dividends from these shares, because the dividends were reinvested into the company, that they should not be taxed on those dividends.
N. Rodgers: Because they never saw a profit. They personally did not profit from this dividends. Although one could argue that they indirectly profited from those dividends.
J. Aughenbaugh: Well, there you go. The Supreme Court had to answer the question, whether or not the 16th Amendment allowed Congress to tax unrealized dividends or sums of shares without apportionment among the states. Because an income tax does not need to be equally apportioned among the states? It's levied directly on an individual. But every other tax is supposed to be apportioned evenly among the states. Was this tax, this MRT allowed per the 16th Amendment? The Supreme Court said, Yes, it is.
N. Rodgers: The text of the 16th Amendment reads, the Congress shall have power to lay and collect taxes on incomes from whatever source derived without apportionment among the several states and without regard to any census or enumeration.
J. Aughenbaugh: That's right.
N. Rodgers: It does seem to be from the actual text from whatever source derived, means that the Congress can put a tax on anything if they want to.
J. Aughenbaugh: That's right. The vote was 7-2. The majority opinion was written by Justice Kavanaugh. He basically concluded that Article 1 of the Constitution gives Congress broad power to lay and collect taxes. That includes direct taxes, like those imposed on persons or property and indirect taxes, those imposed on activities or transactions. He said, the Constitution is clear. Direct taxes must be apportioned among the states. Well, indirect taxes are permitted without apportionment, but must be uniform throughout the United States. Taxes on income are indirect taxes and the 16th Amendment does allow taxes on income and that tax or taxes don't need to be apportioned. Now, the importance of all of this, there are two significant features of this decision, for those of you who are still following a law.
N. Rodgers: Because you're waiting for the gun cases.
J. Aughenbaugh: Yes.
N. Rodgers: We know what we know, but this is important.
J. Aughenbaugh: Well, this is important for two reasons. One, as Kavanaugh made it very clear. If the Supreme Court agreed with the Moores, then significant parts of the Internal Revenue Code, the tax code would be unconstitutional. The US treasury would lose potentially trillions of dollars in loss tax revenue. That would force Congress to either "drastically cut critical national programs or significantly increase taxes on the remaining sources available to it, including income because that's clearly allowed by the 16th Amendment. " On one hand, the majority, and again, the majority was comprised of four conservative justices and all three liberals. The only two who voted against it, were Neil Gorsuch and Clarence Thomas. The second thing that is important about this case, and I want listeners to pay attention on this one going forward. There are a number of prominent liberal members of the United States Senate, including Bernie Sanders and Elizabeth Warren, both of whom when they ran for president in 2020, made it very clear that they would like to impose a "wealth tax." The Supreme Court in this decision does not support necessarily a wealth tax. If you read Kavanaugh's majority opinion, Coney Barrett's concurrence, and very clearly, Clarence Thomas' dissent. A wealth tax may not necessarily be approved by the United States Supreme Court. Why? Because a whole bunch of wealth is unrealized. Let's just say, for instance, a huge tribal bureau.
N. Rodgers: Reputation, for instance, can add to your "wealth". In the sense that if you invest in a property, and you're well known for investing. If you're Warren Buffett and you buy something, that cache is a certain kind of wealth.
J. Aughenbaugh: But also, wealth is measured in a lot of different ways. The property you own but could sell, both real estate and other kinds of property. Your shares in a business. If you sold those shares, then that could be taxed because you actually realize the money.
N. Rodgers: But if that property has been in your family for 300 years, the likelihood of you selling it is not great. It's wealth, but it's untapped wealth in the sense of, it's actually technically a liability because you have to pay taxes on it.
J. Aughenbaugh: It exists on paper, but it's not yet been realized. See, the problem for the Moores was, their dividends did get reported.
N. Rodgers: Did get realized by the company. They benefited the company. They didn't benefit them individually. I see where they're saying you shouldn't tax us on something that didn't benefit us personally and individually. Correct me if I'm wrong, but what the Court is basically saying is, yes, but you did benefit from the indirect.
J. Aughenbaugh: Yes.
N. Rodgers: Reinvestment into this thing in which you had shares because your shares either became more valuable or you were given more of them or whatever.
J. Aughenbaugh: Whatever, yes.
N. Rodgers: Whatever you did realize an indirect benefit from that. It's complicated. Tax law is so complicated. Man, we need a tax law that says 10% like tithing in churches.
J. Aughenbaugh: But that's known as a flat tax.
N. Rodgers: It's regressive because it harms poor people more than it does with wealthy people. I know that.
J. Aughenbaugh: But it would be simpler.
N. Rodgers: It would be easy peasy to do your taxes. Everybody would be able to get resork, and that's that.
J. Aughenbaugh: It would also get rid of a whole bunch of tax breaks, that Americans.
N. Rodgers: Don't even know they have.
J. Aughenbaugh: Well, they either don't know what they have or they want to get rid of other people's tax breaks, but not for theirs.
N. Rodgers: Yes. I understand that it's regressive, but there's also something to be said for being so simple that you no longer need lawyers to do it.
J. Aughenbaugh: Yeah. You don't have to hire people with [inaudible] degrees.
N. Rodgers: If you think that criminal lawyers are expensive, it's because you've never met a tax attorney?
J. Aughenbaugh: Yes.
N. Rodgers: It's almost better to go to jail.
J. Aughenbaugh: On one hand, the Supreme Court giveth, the MRT is constitutionally allowed. On the other hand, if you're a proponent of a future wealth tax, I wouldn't necessarily sell the farm on that being declared constitutional by the current Supreme Court. In doing my math, the vote would more than likely be six to three a wealth tax is unconstitutional. All six of the conservatives, would say, sorry, this is just unconstitutional.
N. Rodgers: Now, what's interesting about our gun cases to me is that we have two different gun cases. One of them was six to three, and one of them was eight to one. The six to three was clearly more controversial among the justices. I put to you that that is because the defendant in the other case, even though they're not supposed to care, was a reprehensible human being.
J. Aughenbaugh: Or at least his behavior.
N. Rodgers: His behavior was right what he'd been accused of. I wonder if that had some mild effect. But anyway, we don't get into that.
J. Aughenbaugh: But the behavior in both of these cases is reprehensible. The first gun case is Garland versus Cargill, and this was decided on June 14th of this year 2024. What was at issue was the Trump administration, the ATF, alcohol tobacco and firearms administration, which is, I believe, part of the Justice Department, banned bump stocks. For those of you who are not gun aficionados, bump stocks, when attached to rifles, speed up how quickly bullets can be fired. Now, for years, multiple presidential administrations, both Conservative and Liberal, Republican and Democrat, held, that bump stocks were permissible.
N. Rodgers: Then 217 rolls along and people were at a country music concert in Las Vegas and a madman shoots several hundred people, didn't he? How many people did he?
J. Aughenbaugh: I know over 50 people died and he used a bump stock.
N. Rodgers: Because what he was trying to do is get as many bullets. He injured approximately 867 people. He killed 60, and he wounded 413.
J. Aughenbaugh: Yeah.
N. Rodgers: He fired more than 1,000 rounds before they stopped him. That gave an impetus to we got to do something about this. That's where you get to Trump era.
J. Aughenbaugh: The Trump administration re-reinterpreted a 1986 law that barred civilians from owning machine guns. Actually, the ban on machine guns actually goes as far back as the Roosevelt administration in the 1930s.
N. Rodgers: Like Tommy Gun.
J. Aughenbaugh: The problem is, or at least what became a problem for the Supreme Court was that instead of Congress revising the 1986 law, the Trump administration just went ahead and reinterpreted the 1986 law.
N. Rodgers: Got you.
J. Aughenbaugh: Again, as I mentioned before, what became the most significant, if you will, element in the majority decision. By the way, for listeners, for those of you keeping score at home, the vote was six to three, and the majority opinion was written by Justice Clarence Thomas. For Thomas, the Trump administration, changing its interpretation of the '86 law was problematic because previously, the ATF had ruled that it was legal to own bump stocks. He said, if you look at the definition of machine gun.
N. Rodgers: I was going to say, it comes down to the definition of machine gun.
J. Aughenbaugh: He said the definition of machine gun does not match the definition of what a bump stock does to a rifle. His majority opinion goes into minute detail. Basically, most bump stocks are a piece of molded plastic or metal that replaces the butt end of a rifle and the handle closest to the trigger. What the piece allows the gun to do is to slide back and forth more quickly, more freely. When you take a shot with a bump stock, the recoil from the shot causes the gun to bump between the shooter shoulder and trigger finger. It allows you to more quickly go ahead and shoot, which then basically, according to opponents, allows the rifle to become an automatic weapon. Because with a bump stock, a rifle can shoot between 400 and 800 rounds per minute. That approaches the speed, if you will, of a machine gun.
N. Rodgers: But machine guns fire between 600 and 1500 rounds per minute.
J. Aughenbaugh: That's right.
N. Rodgers: That's where he's drawing the line as a bump stock doesn't actually turn it into a machine gun because it doesn't quite get you at the highest, it doesn't get you 1,500 rounds a minute.
J. Aughenbaugh: This is not a constitutional law case. According to Thomas in the majority opinion, and Alito in his concurrence, the problem here is who?
N. Rodgers: Definitions.
J. Aughenbaugh: Change the definition because for Thomas and Alito, if the federal government wants to ban bump stocks, they can but it has to be Congress not the President.
N. Rodgers: That's their interpretation of the Constitution, that's a law and if you want to change the law, that is Congress. That is not the executive, the executive does not change the laws.
J. Aughenbaugh: That's right. The executive branch executes a law passed by Congress.
N. Rodgers: But Congress is the one that writes the laws so if Congress wants to fix this, in their opinion, all they have to do is rewrite the 1986 law to say machine guns or guns using bump stock or they could write something more broadly and say anything that allows a gun to fire more than X number of rounds per minute would be illegal.
J. Aughenbaugh: For listeners who are wondering, how can the federal government regulate guns, it's because guns are bought and sold across state lines, which means Congress can regulate guns based on which of its constitutional authorities, Nia?
N. Rodgers: Commerce Clause.
J. Aughenbaugh: Yes. The Commerce Clause.
N. Rodgers: Excuse me, I got a little something in my throat.
J. Aughenbaugh: Okay.
N. Rodgers: Because the Commerce Clause the answer to everything. I don't have a mug that says because of the Commerce Clause because it's the answer to all things. But it does make sense that from Thomas' point of view, Congress should be clear about what they mean when they tell you what you can and cannot buy in the United States.
J. Aughenbaugh: That's one of the purposes of law.
N. Rodgers: The Congress doesn't want to do it because it's hard.
J. Aughenbaugh: Extremely difficult.
N. Rodgers: It's wildly unpopular with some people and wildly popular with other people.
J. Aughenbaugh: Yes.
N. Rodgers: You've got very divided American opinion on whether people should be allowed to own a bump stock slash, whatever. I personally am not a huge fan of people owning machine guns because my family hunts and you would never hunt with a machine gun, that's stupid. If you killed an animal with a machine gun, you couldn't eat it because you'd have to be sled in it.
J. Aughenbaugh: How would you go ahead and carve out enough digestible meat?
N. Rodgers: Yeah.
N. Rodgers: I grew up in a family that supports gun ownership, and I support gun ownership within reason. I don't think that there's any reason to own a machine gun because the only reason you would own a machine gun, in my mind, is to kill other people. It's not to kill animals. Unless you think you're going to be attacked by wild bores out in the wilderness or whatever, it's very unlikely. That could be fixed, he's saying basically.
N. Rodgers: This case presents the classic, if you will, letter of the law versus the spirit of the law because Thomas' majority opinion, in particular, if you contrast it with Soda Mayor's main dissent, Thomas is saying, by the letter of the law.
N. Rodgers: Mara saying, y'all knew what they meant.
N. Rodgers: Yeah.
N. Rodgers: Which is what your mom says. You knew what I meant when I say. It's Aughie doing the Thomas thing of, you didn't say I couldn't go to this guy's house. I just said I couldn't go to this guy's house. You knew what I meant. I meant don't go to anybody's house. Come straight home. That's not what you said. Exactly.
N. Rodgers: This is the classic conundrum within interpreting laws, whether it's constitutional law or statutes, or ordinances.
N. Rodgers: It's always letter versus spirit.
N. Rodgers: Spirit.
N. Rodgers: What did they mean versus what did they say? Because the founders didn't say a bunch of stuff because it didn't exist at their time.
N. Rodgers: That's right.
N. Rodgers: The founders could not make a rule against using AI to write your papers in college. The AI did not exist. The founders had to rely on sayings they didn't do this in the Constitution, but they should have. Be ethical in all of your dealings with other people or whatever, but then you'd have to decide the interpretation of ethics, and my goodness. Anyway. But our other case is a lot more clear. It's 81, which to my mind, is for this Supreme Court, pretty good numbers.
N. Rodgers: Well, it's pretty good numbers.
N. Rodgers: It's always Thomas who dissents. He dissents about everything.
N. Rodgers: Yeah, it's either Thomas or Alito. The name of the case is United States versus Rahimi, and this was decided on June 21st of 2024. The basic question for the case is whether a federal law that disarms individuals subject to domestic violence protective orders violates the Second Amendment. As Nia pointed out listeners, the vote was not even close. It was eight to one, and the majority opinion was written by Chief Justice Roberts.
N. Rodgers: Were there any concurring opinions?
N. Rodgers: Oh, there were a bus load.
N. Rodgers: That kept the truck. We've got a bunch of concurring opinions.
N. Rodgers: Yeah.
N. Rodgers: Everybody had something to say about this.
N. Rodgers: In this particular case, it touches upon a theme that we're going to revisit in our last episode of this version of Summer of Scotus because there is a division among the conservatives that is becoming increasingly obvious but I will briefly touch upon it.
N. Rodgers: But we get five concurrences, in case anybody was wondering. There's only nine justices. There's already a majority opinion.
N. Rodgers: Yes.
N. Rodgers: Then five more concurrences. There are six opinions.
N. Rodgers: There were seven total. Seven out of the nine.
N. Rodgers: Because there's a dissent.
N. Rodgers: Seven out of nine.
N. Rodgers: Had something to say.
N. Rodgers: This is the reason why constitutional law students hate the modern court because you will get cases like this. In the constitutional law teachers like me are like, well, you need to know all the concurrences and dissents in their life.
N. Rodgers: I like the idea that the Court will say, we arrived at the right conclusion, but for all the wrong reasons. Here you go. Here is what we didn't put in and this is what we didn't put in. This is basically what a concurrence is. What you have with Rahimi is there is a protective order against him?
N. Rodgers: Yes.
N. Rodgers: The police took away his firearm and he protested that under the Second Amendment, he has the right to bear arms, which is what the Second Amendment says. He has the right to own a weapon. The state had said, yes, accept that you're a known violent individual.
N. Rodgers: It was a federal government law.
N. Rodgers: There was a protective order against an active protective order against you. Not like they've been retired, but it was active. He posed a credible threat to the physical safety of another person?
N. Rodgers: That's right. Now, we can get into whether or not the various issues with protective orders because, in many states, protective orders are handed out like checks at the end of the work week. In many states, you don't even have to have a hearing about it. You understand what I'm saying?
N. Rodgers: It can be ubiquitous, and that's problematic for removing people's weapons.
N. Rodgers: A number of other liberties that may flow from the fact that the State has said, there's a protective order against you. But what the Supreme Court said here was pretty clearly, that when a court has found that a person poses a credible threat to the physical safety of another, that individual may be temporarily disarmed, and that's consistent with the Second Amendment.
N. Rodgers: They can't keep your gun forever.
N. Rodgers: That's right.
N. Rodgers: They can temporarily disarm you because they're concerned about your anger management.
N. Rodgers: Yes. Now, the importance of this case is.
N. Rodgers: Stem from Bruen?
N. Rodgers: Yes. Two terms ago, in the Bruen case, B-R-U-E-N. The Supreme Court went ahead and said that going forward, government regulations of the Second Amendment have to comply with the if you will, the original interpretation of the liberty at the time the Second Amendment was written and that any current or future regulations, you have to be able to show that they were consistent with what the liberty meant at the time the Second Amendment was written, or you have to show analogs, that there were, regulations or restrictions that were commonplace at the time the Second Amendment was written. According to Roberts, at the time the Second Amendment was written, various states prohibited dangerous individuals from having firearms.
J. Aughenbaugh: Here's the money quote from his opinion. If you look at early and early American gun laws, you can conclude that they "confirm what common sense suggests." When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Now, Clarence Thomas' dissent completely disagrees with that conclusion because he said, at the time the Second Amendment was written, no state had such restrictions. But there were a whole bunch of concurrences. Yeah, go ahead.
N. Rodgers: My difficulty with that is that at the time of this if you think about the time of the founders, women had no rights. His partner, who happens to be in this instance, a woman who took out that restraining order would not have been able to do that in the colonial period, which meant there would have been no basis for him having his weapon removed.
J. Aughenbaugh: Yes.
N. Rodgers: I decry Bruen. This is what I'm saying. I decry Bruen. I decry the idea that we have to find some basis in 250 years ago, people not being able to see the future and not being able to.
J. Aughenbaugh: Well, I would decry that part of the logic of Bruen because you could extend it also to people of color, poor people, people without property, etc. On the other hand, Bruen would also go ahead and point out that once the 14th Amendment was passed, many White Southerners wanted to take away the firearms of recently freed African American males. For Bruen, the 14th Amendment extends the liberty. But that's not what the concurrence is really focused on.
N. Rodgers: No. It's just me being crabby about Bruen.
J. Aughenbaugh: Sotomayor, joined by Kagan, made it very clear that they still opposed Bruen, but they agreed with the court's ruling in this case. Gorsich went ahead and said, the reason why Rahimi had to lose this case is that he made a facial challenge to the law and didn't show and applied challenge. Because according to Gorsich, Rahimi went ahead and filed this before the federal law took away his firearm. You should have waited until afterwards. Most of the time, let's say a legislative body passes a law, and you don't like the law, and you lost in the political process. If you file an immediate challenge to the law on its face, as it's written, most courts will go ahead and say, Yeah, come back to us after it's been applied to you.
N. Rodgers: You have not yet experienced harm.
J. Aughenbaugh: Harm. That's right, or injury. That was Gorsich's point. Kavanaugh, he had no problem with Robert's majority opinion. He responded directly to Sotomayor's concurrence. He said, the Bruen decision and the Rahimi decision were appropriate because they interpreted the Second Amendment as it was understood at the time it was adopted. Then Kavanaugh goes on to say, if the public no longer approves of that understanding, it should be the people and their representatives, not the unelected judiciary who updates or revises the Second Amendment. That's classic strict constructionist thinking.
N. Rodgers: If you want the Second Amendment changed, go out there and change it. There's a process for doing that. There's a process for amending amendments. I mean, we amended prohibition 19 and 21.
J. Aughenbaugh: Yeah. I mean, hey, the 16th Amendment which we just previously discussed the imposition of an income tax arose because the Supreme Court went ahead and said, the Constitution doesn't allow an income tax. What did we do? We amended the Constitution so we could get an income tax, which is a more constant consistent revenue stream for the government. Now, the last two concurrences, they put a smile on this old constitutional law Professor Space. Coney Barrett had no problem with Robert's majority opinion. Instead, she wanted to respond, and this is what we're going to touch upon with our last episode. She's got a debate with Thomas about the use of history and tradition. Justice Thomas' majority opinion in the Bruen case, and earlier this semester in a trademark law case, relied upon history and tradition to get at the original meaning of a legal text. Coney Barrett's got a problem with that because in particular, she thinks that the meaning of laws in legal texts sometimes change and evolve, and therefore, tradition in history can't be the only tool that the court uses to figure out the meaning of a legal text.
N. Rodgers: But it can be in some instance, she wants to split the difference between the living document people and the strict constructionist's people.
J. Aughenbaugh: People. That's right.
N. Rodgers: She wants to say sometimes it's very clear what the text is saying. Sometimes the text is being in your face, obvious. But sometimes the text is clearly out of date because it does not take into account in 250 intervening years.
J. Aughenbaugh: You can tell Coney Barrett clerk for Scalia. Because Scalia was a texturist. He was not an original meaning strict constructionist. For Scalia, the meaning of a legal text can change. The common, if you will, sense of the words can change. That was one of the big differences between Scalia and Clarence Thomas. You can tell Coney Barrett is it's like, I know, I am kneeling at the altar of Scalia, not at the altar of Clarence Thomas. Now, Justice Brown Jackson's concurrence, emphasized how this case and a bunch of others in the lower federal and state courts highlight the problem of the Court's Bruen decision. She directly says, I like the outcome of this case, but I think we should reconsider the Bruen decision. This is going to be a fault line going forward on the court as they continue to flesh out what the Bruen decision means.
J. Aughenbaugh: Because Bruen was such an obvious, if you will, line in the sand.
N. Rodgers: Is Bruen going to be one of those cases that you will teach, well, you won't teach 30 years from now because you'll be retired. But that law professors will teach 30 years from now, they will say this was a pivot moment. This was a case that people should know. Like for instance, a common case that most people know who are not lawyers is Miranda. From Miranda, we get the what rights you have as arrestee, and they must be told to you and you must declare that you understand them. Most people know that from Miranda. Will this be like that?
J. Aughenbaugh: Yeah, because much like the Miranda decision that you just mentioned Nia. The Supreme Court then in the subsequent decades afterwards, carved out exceptions to the Miranda warning, the good faith exception. What if somebody goes ahead and just blurts out before you can even give the Miranda a warning? I did it.
N. Rodgers: I'm not sorry. Okay. Well, you have the right to remain silent. From now on, you probably should.
J. Aughenbaugh: You should. But the Supreme Court spent decades afterwards fleshing that out. That's what I think we are now seeing on the court.
N. Rodgers: Oh, is them wrestling with the fallout from Bruen?
J. Aughenbaugh: Because this was an easy decision for John Roberts. This is the common sense ruling that John Roberts is just like, we said this in Bruen, but, hey, let's face it, folks.
N. Rodgers: We probably shouldn't let potential domestic abusers be armed.
J. Aughenbaugh: Yeah, pack heat.
N. Rodgers: That just as from a common sense point of view, even people who were rapidly supportive of gun rights and the Second Amendment would be like, yeah, I'm not sure that guy should have a gun. They know that guy. That guy is their cousin. They don't want him to have a gun because he's not who they think should own guns.
J. Aughenbaugh: On the other hand, you see the two polar opposites. You have Sotomayor on one end, Brown Jackson, and then Clarence Thomas. There's no middle ground for those two camps in regards to the Second Amendment.
N. Rodgers: Everybody in this cafeteria is all sitting at their own tables.
J. Aughenbaugh: Well, yeah, right.
N. Rodgers: There nobody's sitting with each other.
J. Aughenbaugh: If this was the playground, they're not sharing toys with one another.
N. Rodgers: Although we say that except that they all agreed, except Thomas. That it is a perfectly reasonable thing for the State to say, not so much in these cases. In these cases, your gun rights are limited. I assume also in cases where you've communicated a threat, something like, I'm going to come there and shoot you all. Then the government probably has the right to disarm you for a little while to make sure that you're not, then they act on that threat.
J. Aughenbaugh: There are two types of laws currently in use by the states or the federal government to temporarily disarm individuals. We talked about the restraining orders in domestic relation cases. The other instance are the so-called red flag laws, where you have demonstrated mental health issues, where you could be a danger to yourself or others if you had a firearm. I think the logic of Robert's majority opinion will probably be used by the lower courts to uphold those red flag laws. Because again, Roberts emphasized that it is a court order. It's not you going to a police department and you convincing the police. It's that you have to go to a court and convince the so-called neutral arbitrator that is a judge, that this person, their second Amendment rights can be temporarily abridged.
N. Rodgers: So Aughie, just briefly from your knowledge of administrative law, I know you haven't followed one of these cases closely, so you may not know the answer. I know that the courts are packed pretty tightly with cases and getting a court date for something can often be a we will see you in three months. Are there courts where there's time built in for things like, I have two hours today where I can hear things like a request for a restraining order or a request for a gun removal or a restraining order, you would still get from the police, but some sort of higher end restraining order like you would get from a judge, or is that done by magistrate versus justice like do you know that?
J. Aughenbaugh: Well, most court jurisdictions have what's known as the emergency order docket. Those are scheduled every day.
N. Rodgers: Okay. So there's somebody who goes through those for an hour or two and does all of that work.
J. Aughenbaugh: You see those kinds of dockets, typically in your larger, more heavily populated jurisdictions, where you may struggle to get an immediate red flag order or domestic restraining order is in your smaller or more rural jurisdictions.
N. Rodgers: I was going to say a rural county. Although I have to say, just as a side note before we wrap up today, that in my very tiny little town in North Carolina that my parents live in, if you were being threatened by your partner and your partner had a gun, the police would come and take their gun away. And it's because they know them. It's an old boy network of, you know what? I don't want you to get yourself in any kind of trouble. Let me just take these for a couple of hours. While you cool down, you go out to your cousin's house and you sit out there on the porch for a little while and let's let everybody just calm down. I have seen that on many occasions, and I feel certain it breaks all kinds of laws to do that. That person's right to bear arms, all kinds of law. But it's kind of that's a lot of times how little towns and rural places handle stuff like that is that family or local police or whoever step in, I don't know. It's an interesting dynamic.
J. Aughenbaugh: Informal justice. When they're taking away your gun, they will not only tell you, spend a couple of hours cooling down, but also get yourself a good attorney. Because if you got a problem with what we're doing, have your attorney file a motion to get your gun back. But nevertheless, we're taking your gun.
N. Rodgers: Thank you Aughie. This is so interesting.
J. Aughenbaugh: These are tough cases.
N. Rodgers: I'm telling you that they're going to drop the immunity case at the last moment on the last day of the last possible like, that is going to be the last one that they do because it has got to be the hardest one they're going to do.
J. Aughenbaugh: I suspect that they will wait to do it until after the first presidential debate, which, for our listeners, will be occurring two days after we recorded this episode.
N. Rodgers: Yes. So you're hearing it much later, and you'll hear us in our next episode when we react to what's going on. It's interesting. Well, thanks Aughie. I'll see you in the next wrap-up episode.
J. Aughenbaugh: Well, thank you, Nia. Always good time talking about the Supreme Court and the various opinions.
N. Rodgers: Yeah. Living for the Summer of Scotus.
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