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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And today we are going to visit the TikTok sale. Did it actually comply with the ban or sale law? A couple more loose ends on the shootings in Minneapolis. Specifically, a lot of you wanted to know about the Federal Tort Claims Act. Well, well, well, say no more. We're going to FTCAU from here to kingdom come and we've got lots of circuit cases to touch on. Two second Amendment cases, a qualified immunity case, and TAMNA makes its way back to the circuit courts. And of course, we've got to do more with nine year old Claire's letter. This is our last chance to talk about nine year old Claire's letter. Nine year old Claire wants to be a lawyer someday and she has lots of questions on what makes a good lawyer. Is being a lawyer hard? Is being a lawyer a good or even great job? And what are some of the things I should do now as a nine year old that could help me become a lawyer when I get older? All that and more on advisory opinions.
- [01:25]
B
Do you love that Dispatch's journalism but don't have time to read it all? We hear this pretty frequently from our members, which is why I'm very excited to introduce Dispatch Voiced, a members only podcast feed that helps you keep up with our work on your schedule. Here's how it works. We've built two feeds, editors picks for our biggest stories, and the Morning Dispatch for our daily newsletter. Powered by realistic AI voice models created by 11 laps apps, these high quality audio versions are delivered right to your favorite podcast player. Whether you're commuting at the gym, out grocery shopping, even walking the dog, Dispatch Voice fits our reporting into your schedule. Jonah Goldberg's latest column, the biggest news from Capitol Hill, our most colorful cultural analysis. Now it's all available in your podcast feed. Ready when you are. Most episodes use advanced AI narration that sounds remarkably like a professional audiobook reader and will occasionally feature authors reading their own work too. Ready to take the Dispatch on the go? Members can set up their feed on their account page@thedispatch.com not a member yet. Start listening today when you join the Dispatch.
- [02:39]
A
All right, David, you ready to launch into this?
- [02:41]
C
I'm ready to dive in. But first, but first, before we do that, I want to talk about your book Last Branch Standing. And I want to repeat the offer that exists between now and February 9th for a signed book plate from the one and only Sarah Isger. Actual ink from her Actual pen will have touched that book plate. No auto penning for you, Sarah, right?
- [03:07]
A
Do not have an auto pen. Yeah, I wish I did actually, but I don't. My signature is messy and pretty ugly. But you'll see that if you go to prh.com lastbranch book plate because it will actually show you what my best signature looks like. After several attempts, David, it's pretty embarrassing. Like doctors and 13 year old boys are lapping me for signatures in handwriting. All right, we're going to move on, but just to be clear, if you have pre ordered at any time before February 9th and filled out this form at prh.com lastbranchbookplate I will send you a signed bookplate. Doesn't matter where you ordered it from, it doesn't matter when you ordered it. You just have to have ordered the book and filled out this form. So I have your address so I know where to send the bookplate. Prh.com lastbranchbookplate okay, David, I wanna talk TikTok. So by my count, 367 days after the TikTok sale was supposed to go into effect, shutting down TikTok updates from companies that sort of allow apps and updates on your phone here did not go into effect under the Biden administration. In fairness, the last few hours of the Biden administration did not go into the effect. For the first year of the Trump administration, we were harping and harping and David, it finally worked. All of our harping or did it? So just to be clear, the law prohibits, quote, any cooperation with respect to the operation of a content Recommendation algorithm between ByteDance and any new potential American owner. The question now is, does this sale actually comply with the law? Let's call that 2024 law the ban or sale law. I think that's a good name for it. So bytedance will maintain ownership of the algorithm and license it to the spinoff. The algorithm's recommendations will be stored in Oracle's US Cloud system, but the two companies will retain global product interoperability, whatever that means in practice, with ByteDance maintaining control over e commerce and marketing, at least TikTok will be majority US owned and will operate under defined safeguards to protect US user data and secure the algorithm. But ByteDance will control 19.9% of the new company. Oracle Silver Lake and Emirati investment company MGX will each own 15% and ByteDance will have a seat on the board. So to be clear, ByteDance is the largest owner though does not own a majority of it, has a seat on the Board still has the algorithm and has global product interoperability. So, David, the question is, did they comply with the ban or sale law that prohibited any cooperation with respect to the operation of a content Recommendation algorithm between ByteDance and the American owners?
- [06:16]
C
It's really hard to know, but on its face, if ByteDance is the plurality shareholder here, I've got some real concerns. And then, you know, if you look at it, if you zoom out a little bit, what you have here isn't Trump compliance or like Trump drag kicking and screaming into compliance here by our quickly abandoned countdown of, or count up of TikTok days. What it really seems more like to me is Trump sort of keeping TikTok alive while he was able to help political allies execute a deal. And, you know, some of the owners, the new owners, are very closely allied with Trump. And it's, it's very interesting to me to see how already we're beginning to see, you know, allegations that anti Trump content is being suppressed under the new owners. And already there's allegations of new waves of tech censorship coming out of TikTok under the new owners. But whatever conclusion you want to draw here, whether it is door number one is there's not full compliance, or door number two is, well, it's just delayed compliance, but it's now full compliance. That corporate gobbledygook means that the law's been complied with, which I'm highly skeptical about. This was an absolute failure of the rule of law. This was an absolute failure. Presidential defiance for more than a year of a law passed for urgent national security reasons. And by the way, just to remind everybody, lest you think I'm sort of like warped by Trump Derangement Syndrome or whatever on this, the original TikTok ban idea came from Trump 1.0. It was a Trump policy I agreed with back in the day. Right? And so Trump has reversed Trump here, and I wish Trump had not reversed Trump, that Trump 1.0 was completely right. And yet what we had was just absolute defiance leading into what I do not believe to be compliance right now.
- [08:14]
A
My take one, it doesn't matter what happened in the end, because for a year, as you say, David, a law passed by Congress signed by the President did not go into effect and was blatantly disregarded. So that's bad, regardless of what happens next. Two, I agree it's gobbledygook. I agree how it actually works matters. But again, any cooperation with respect to the operation of the algorithm between ByteDance and a new owner is prohibited by definition. ByteDance owns the algorithm still and is licensing it. That sounds like cooperation. If you have an ongoing license relationship, I don't know how else you would describe where someone owns something and they license the usage of it to you. That sounds like cooperation. So I don't really see how this isn't in violation of the law. And of course bytedance maintaining not just ownership, but the largest single owner of the American company. All bad. My number three point is for your own personal TikTok use, I don't think this solves your personal national security risks at all. I see no guarantees here that China will not still be able to have access to your data. Potentially though that one in fairness is in the details and I do not know it just if they are the single largest owner, I'm pretty confused on. On how they won't. But. But fair enough. They have said they've taken efforts to protect user data, so maybe so. And then the last point that I'll make on this, David, is to your point about how they are now using the algorithm in the United States and the allegations that they are suppressing anti Trump content. I got no problem with that. Do whatever you want. Like this is the same thing we've seen from Twitter, from Facebook, from any of these social media companies as long as they are American owned. And again, we just went through why that may not be the case here. But whatever, it doesn't violate some law for them to decide the only thing you're ever allowed to post on TikTok are videos hailing Trump or for that matter attacking Trump. And they take down all other content. They have not violated your rights one bit as the law at least. You know, we believe the First Amendment works today, same as any other company that wants to put a sign up in their window or send an email to their users. I mean all of that. Right. Nevertheless, in the net choice case disclaimer, my husband was counsel of record in that case it was left undecided whether the algorithm itself is the speech of the underlying corporation and how that's all going to work. Fascinating legal question left on the table. But. But that Kagan, you know, opinion sure leans into the fact that it looks like it probably is corporate speech. Maybe. Probably, meh meh. But the decision to moderate content, as in to take down certain content, et cetera, they said that was corporate speech. So there we are. It's a mess, David.
- [11:23]
C
When I think of like TikTok suppressing say anti Trump speech or back in the day Facebook suppressing the lab leak theory or Twitter Clamping down for a bit on the Hunter Biden laptop story. I have the same feeling. I don't like it. And they can do what they want.
- [11:40]
A
When they can't do what they want is when the government tells them they must. That is a violation of the First Amendment right. The government shall make no laws, slash, threaten you to kingdom come.
- [11:51]
C
And I can agree with it or not agree with it, and I can patronize your company or not patronize your company. So my, you know, in the hierarchy of concerns, I'm far more concerned about the government moving to regulate speech than I am for TikTok moving to regulate speech. But I don't like it when TikTok does it. But you know what? There are reasons why I'm not on TikTok. I choose not to be right now. But if I'm an American, I can't suddenly choose not to be subject to a government that suppresses free speech. So I'm much more concerned about governmental interference with speech than I am with the decision of any social media company that I don't have to patronize in their decisions to suppress free speech. I may not like it. I do not like it. And I've long thought that major social media companies should. A major social media company should adopt a First amendment based framework with variations depending on the nature of your audience and things like that, but generally a First Amendment based framework. I've long thought that. But it's their choice. There's a very good reasons, from naked Machiavellian standpoint, why Trump would have done exactly what he did. And now, you know, he, he was. He has not paid a price for his violation of the rule of law and he's reaping the rewards in TikTok, nominally under the control of good friends. Great job all around, guys. Just really, really good work. Congress stick sticking to your guns and upholding the law that you passed overwhelmingly, by the way.
- [13:20]
A
David, we won't cover this for a while, given that it won't be on appeal for a while. But that trial in Los Angeles has started in which families are suing meta snap, TikTok and YouTube, claiming that their platforms are harmful to children and addictive for them. So we'll see how that goes. And interestingly, by the way, TikTok settled, right, rather than go to trial on that one, which I think is a weird choice, I gotta tell you, because, like, if the trial's gonna go forward anyway, I think I would want my lawyers there with some standing to, you know, especially on appeal, as we Start arguing like legal liability issues. It's a weird choice to, to settle out. If you could settle out the whole trial and not have it go at all, I'm like, yeah, that makes perfect sense. But going without you, the legal standard is still going to apply to you.
- [14:12]
C
I'm somewhat stumped by that decision. However, I think when you're dealing with TikTok, all other things might not be equal. This might be a situation where our little PRC affiliated app had maybe more skeletons. It's not outside the realm of possibility that maybe there's more skeletons here that they didn't necessarily want being brought out into open court. Who knows? Who knows? But you know, I think when you're looking at big Tech, it's always been appropriate to sort of say there's big tech, you know, there's meta, there's Twitter, et cetera, and there's TikTok. And thinking of TikTok a little bit separately from Big tech is, you know, I, I, I do think there might be a little apples and oranges there just because I'm not so sure that they're going to come in with the same kind of factual record. But you know, we'll see.
- [15:00]
A
Fair enough. This is a negligence and negligent failure to warn case, so lots of interesting questions. Remember, this is a state case. This is going to a jury. What caused the plaintiff's alleged injuries? Design features of the platform that supposedly addicted the child, and were the features negligently designed to foster compulsively harmful usage? You know, infinite scroll, autoplay, appearance altering image filters? Or will the jury decide that it was content of others that she watched on the platform that supposedly harmed her? That would trigger First Amendment free speech protections and potential immunity under Section 230. So again, like, we don't do trials. There's a good reason for that because they're pretty fact based. But when we get to the pure legal questions on negligence and negligent failure to warn, we will do one of our rare state court proceeding, you know, law questions. It'll be interesting.
- [15:57]
C
Well, you know, it's a really important question and a really important issue, even moving beyond sort of the question of social media because you know, there's a lot of question about pornography, for example, and is it addictive? What is addiction? You know, so this is something that has been talked about an awful lot in the context of porn regulation because there's a, those of us who favor porn regulation will say this thing, this is addictive. And then on the other side, you know, There's a lot of strong libertarian arguments that say, whoa, be really careful with the word addiction. That is, it is not a synonym for, you know, compulsion, or it's not a synonym for habit. You know, so these are not all the same thing.
- [16:37]
A
Or, David, you could just adopt Justice Alito's interpretation, which is that it has no value and therefore isn't First Amendment protected.
- [16:45]
C
That's this massive, you kids get off my lawn vibe there. That. But, you know, it really is. But it's a very, very interesting and very important question because some of this stuff here, when you're talking about gamifying things or funny, funny images and funny sort of templates that you can put over your face and all of that, it strikes me as sort of like suing lucky charms because they have a brightly colored box and they say it's magically delicious. Which, by the way, is truth in advertising. It is magically delicious. It's fine for a company to want to make its product attractive. That's okay if you're talking about addiction. And that's why it's so important to define what addiction is. Because addiction to me implies something that has essentially overcome the will. You know, when I, when I'm thinking about addiction, I'm thinking about a situation in which the exercise of raw self discipline, sort of to pull yourself out of it is difficult to the point of virtual impossibility. But it's a really, it's a very interesting and very consequential question and I'm going to be fascinated to see how this plays out.
- [17:50]
A
You know, David, I'll just speak from my own brain, but there is a huge difference. We just binged the first season of Pluribus based on your recommendation. Amazing premise. We'll see if they actually can carry through on some of the execution that I think they need to come in season two. But awesome premise. The autoplay at the end of a one hour show, it's hard to overcome in the sense that I want to keep going, but it's very different than the 30 second video. Scroll to the next 30 second video. I can't explain why that's different for my brain, but it's much easier for me to say, like, okay, well, we're done with that. We've come to a close. Moving on then. This 30 second video has come to a close. I'm not going to see what the next video is. So, yeah, I think you're right that the definition of addiction and the application of the definition of addiction matters a whole whole lot in the context of social media. All right, David, let's do a quick revisit on Minnesota and those police involved shootings. Quick clarifications. One, the shooting, the second shooting in Minnesota was done by customs and Border Patrol, not ice. The first shooting were ICE officials. The second one were cbp. And just for those that were like, wait, what's the difference? CBP are in charge of the border. ICE is in charge of interior enforcement. In theory, of course, here in Minneapolis, we had them both present. Second, when we talked about those administrative affidavits and we were talking about the difference between administrative and judicial affidavits, we talked about how judicial affidavits are signed by a neutral person, the judge. Right. Article 3 independents versus the administrative warrants are signed potentially by an immigration judge who is within the executive branch, fireable by the executive. You know, we talked about the unitary executive application to administrative warrants. It's worth noting though that for many of these, in terms of what we're actually talking about in Minnesota, for instance, they aren't even signed by an immigration judge. They're just signed by a supervisor in ice. Now for our purposes, I don't think that makes any difference because either way, someone's in the executive branch. They are not a neutral arbiter with Article 3 protections. But to the extent like the vibes theory applies here, it's even worse vibes because it's not even a pretend neutral person with the title judge within the executive branch. And then David, we got a lot of questions about the application of the FTCA to this situation. Like to remedies. Okay, so sure, they can't sue a la 1983 because it's a federal officer, because that's really been foreclosed by Bivens. But what about this other avenue, the Federal Tort Claims act that specifically is for suing the federal government when they have torted you by the way. For our non lawyers listening, it took me a long time to understand what torts are. It's nothing. It's just like it means the word harm basically. Yeah, they hurt you in some way. You know, if I poke David, I torted him. I also potentially assaulted him, you know, depending, but whatever. So David was. When we get back from this break, you're going to break down everything we need to know about the FTCA as applied to everything. Full law school course on the FTCA as applied to police involved shootings. We'll be right back.
- [21:15]
C
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A
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- [22:58]
B
Dispatch is journalism but don't have time to read it all. We hear this pretty frequently from our members, which is why I'm very excited to introduce Dispatch Voiced, a members only podcast feed that helps you keep up with our work on your schedule. Here's how it works. We've built two feeds, Editor's picks for our biggest stories and the Morning Dispatch for our daily newsletter. Powered by realistic AI voice models created by 11 Labs, these high quality audio versions are delivered right to your favorite podcast player. Whether you're commuting at the gym, out grocery shopping, even walking the dog, Dispatch Voice fits our reporting into your schedule. Jonah Goldberg's latest column the biggest news from Capitol Hill, Our most colorful cultural analysis. Now it's all available in your podcast feed. Ready when you are. Most episodes use advanced AI narration that sounds remarkably like a professional audiobook reader and will occasionally feature authors reading their own work too. Ready to take the Dispatch on the Go. Members can set up their feed on their account page@thedispatch.com not a member yet. Start listening today when you join the Dispatch.
- [24:11]
A
All right, David FTC Amy yeah.
- [24:14]
C
Okay, so I'm very glad to get into this because both in response to AO and also in response to some of my work over the times, I've gotten a lot of thoughtful emails, including from law professors saying jumping up and down an email form and basically saying, what are you doing? Remind people that there is a Federal Tort Claim act, that there are ways in which you can sue the federal government, even if it's not a section 1983 style lawsuit. And so I thought I'd walk through that a little bit because I do think that we have given a little bit of short shrift to that. I'm going to explain a little bit you might understand after I explain why why we've got a little bit of short shrift because some of its applicability in this area can get a little bit vague. So we're going to take a little walk down memory lane. Sarah, to last year, because last year we talked about this case and we brought it up again recently. This is Martin versus United States. This was the wrong house FBI raid in suburban Atlanta. And what the court was looking at was this special sort of 11th Circuit approach to the Federal Tort Claims act, where the 11th Circuit had a very plaintiff friendly read of sort of who can sue and what you can sue for, but then a very defendant protective standard, sort of a supremacy clause immunity. And what the Supreme Court did in the case was to essentially say the 11th Circuit's analysis is sort of wrong coming and going. It doesn't it's a little too plaintiff friendly on the front end and it's way too defendant friendly on the back end. But in the course of that case, Justice Gorsucci writes, the majority opinion does a really good job of describing the Federal Tort Claim act and what it is. And let me just read a little bit here to kind of give you a flavor of it. It says the FTCA waives the federal government sovereign immunity from suit as to certain torts committed by federal employees acting within the scope of their employment. So that's a really critical point right there, Sarah, that this is talking about torts in the scope of their employment. If they violate your rights, if they commit a wrong against you while they're in the scope of their employment, as opposed to something that's outside the scope, like a drunk driving accident off duty. This is while they're doing their job. Okay, I'll continue with Gorsuch, but that waiver is subject to statutory exceptions, including two relevant to a law enforcement misconduct case like this one. The first is the intentional tort exception in section 2680H, which bars claims against the government for 11 enumerated intentional torts. This is wild, Sarah, by the way. Can I just pause on that? The Federal Tort Claims act gives you a right to sue the government for when they commit a wrong against you and injure you, except when they commit 11 different intentional torts, then you can't sue. Okay. The second is the discretionary function exception in section 2680, which bars claims against the government that are based on an official's exercise of discretionary functions. Section 268, 2680H, also contains a law enforcement proviso which countermands the intentional tort exception, allowing suits for six specified torts, including assault, battery first, false imprisonment, and false arrest. So, for example, you could, in theory sue the border Patrol officer who pepper sprayed Alex Preddy. If that was without justification, that would be a classic assault. While most courts hold the law enforcement proviso applies only to the intentional tort exception, the 11th Circuit's approach is different in two key respects. First, it held that the proviso overrode all of the exceptions, including discretionary function. Supreme Court said no to that. But then the Supreme Court also said, wait, your Supremacy Clause defense is no. No. So, no to the Supremacy Clause defense? No. No to the broad discretionary function exception. And so where does that leave us? So where that leaves us, Sarah, is you have a kind of. It is very clear, for example, that you can sue, say, for assault under the Federal Tort Claims act, but then you have this discretionary function exception which allows for the court to determine whether the federal officer was operating within their discretionary function. And in that circumstance, it's a tougher analysis. And this is why a lot of people want to get back to bivens and section 1983. And the circuit courts have not really clearly identified when the discretionary. Under what circumstances is a federal officer no longer operating in a discretionary function? So sometimes they'll say it's where there's extreme carelessness. Sometimes they'll say where there is a constitutional violation. If you can sue for assault and there's a discretionary function defense, some courts will say, well, you can't make that defense if you have violated the constitutional rights of the plaintiff. Other courts don't say that. Others will say it's more like carelessness or say negligence style analysis. And Justice Gorsuch in his opinion basically says, you know, folks really want us to work all this out, but we're not going to do that right now. So what, what we're going to do is we're going to remand this Back to the 11th Circuit for a very careful analysis and, and explanation of the underlying issues and approach. And so it is not all that clear, Sarah, whether when I sue under Federal Tort Claims act and one of my justifications for the discretionary function exception not applying is a violation of constitutional rights, that's not necessarily going to get me there. And so it's a, one of the reasons why then we don't talk about the Federal Tort Claims act is it's a tougher procedure with a more difficult proof process than say, a straight up case for a violation of the constitutional rights. Now, straight up cases for the violation of constitutional rights have the qualified immunity hurdle when it's state officials that, you know, I have been stamp jumping up and down and stamping my feet over for a long time. But that's the Federal Tort Claims Act. It is not the case that there's no chance of recovery under the Federal Tort Claims Act. It is the case that it is an imperfect law, highly imperfect law with wide gaps in coverage could allow for large scale constitutional violations with no, no remedy and no compensation. So that's a little bit about the ftca. It is just complicated, difficult and unclear. And other than that is perfect.
- [31:09]
A
Great. All right, David, we have a lot of circuit cases that I thought we would just like tap on, you know, like floating, touching. Moving on. First of all, two interesting gun cases, one out of the 4th Circuit and one out of, you guessed it, the 5th Circuit. Start with the 5th Circuit. So in this case, Hembury was convicted of 2018 possession of methamphetamine in Mississippi state court. In 2022, he was charged with possession of a firearm by a convicted felon in violation of everyone sing it together 922G. He filed a motion to dismiss the indictment arguing that 922 violates the Second Amendment as applied to him. Now, this is sort of just a fun procedural fact about this case, David. He actually pled guilty, but retained his right to appeal on this specific issue. Smart guy, I think, right? He's like, yeah, yeah, I did it, but like, I want to challenge the whole law as applied to me, but I don't, we don't need to go through A trial for this. So he argues that possession of drugs, notably opium, was not illegal at the founding and is a more recent invention in the last century, rendering the government's analogs insufficient. The government says, one, there was severe punishment for possession of contraband, like stolen horses and whatnot, including death, by the way. And two, we had a tradition of disarming dangerous persons. So, David, I like this because we're really starting to distill what I have called the vertical problem with text, history and tradition, the level of generality. Because which is it? Is it the sort of higher level of generality? You possess contraband. Now, we're going to define contraband in 2026, not, you know, 1792, but today it is contraband. And back then, if you had something that was contraband, we could, let's say for our purposes, disarm you. And he's like, no, no. Methamphetamine back in 1792 was opium, and opium wasn't contraband back then. I find that very low level of generality to be pretty dumb because, like, we didn't. I mean, the theories of medicine that we didn't have at that point would boggle the mind. I mean, David, the word scientist didn't exist until 1834. So, you know, germ theory, obviously many decades away, antibiotics, hundred years away. So, yeah, the fact that opioids weren't banned as contraband, like that's meaningless to me. We didn't have modern medicine. But under the text, history and tradition test, I guess I am at a bit of a loss of how you're supposed to do this. So anyway, David, they said as applied to him, based solely on the possession of methamphetamine, 922 was unconstitutional, violated the Second Amendment, and you've got, once again a concurrence by Judge Willett. Can someone please commit a 922 crime so that. And then argue that 922 violates the limitations of the commerce clause so that Judge Willett can finally have an on point case. The concurrences, y', all, he's. He's telling you how to bring this case and nobody will do it for him. I don't know what's wrong with you people. So, yeah, David struck down as applied to Mr. Hembury on the grounds that it violates the Second Amendment as applied to him. But again, that Perhaps the whole 922 framework is outside of Congress's limited powers. If I could just read you a snippet from that. In September 1787. When we the people first glimpsed the document that would become our founding charter, it wasn't exactly love at first sight. Impressive as it was, the Constitution was incomplete and conspicuously so. For all its world shaking ambition, it bore a striking omission. Unlike nearly every state constitution, it contained no Bill of Rights. How could Madison, Hamilton, Washington, Wilson, Franklin, plus the documents 34 other signatories have made such a choice? The Federalists answered with a structural defense. A Bill of Rights, they contended, would be not only unnecessary, but would even be dangerous. Why? Because a state constitution operates on the premise that everything which is not reserved is given. The federal Constitution rests on the opposite rule. Everything which is not given is reserved. I want to remind you, this is a case about whether 922 applies to a guy convicted of simple possession of methamphetamine.
- [35:47]
C
But we always need a civics lesson, Sarah. We always need a civics lesson. So, yeah, keep going.
- [35:52]
A
And nobody is better at the civics lesson than Judge Willett, I'll grant you. Okay, we're going to go through some Federalists versus anti Federalists history split the difference. The anti Federalists lost their fight against ratification. The Constitution took effect in 1789 and has served the nation with distinction ever since. But they succeeded in securing a Bill of Rights. Most states voted for the Constitution only after proposing amendments, and the first Congress promptly obliged. The Bill of Rights followed, ratified in 1791. Fast forward nearly 240 years, and cases like this one vindicate the anti Federalist instinct to hedge their bets. As I have previously explained 18 USC 922, the federal felon and possession ban rests uneasily alongside a bedrock principle. Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. Given the expansive interpretation of the commerce power, the natural first place to look is the interstate commerce clause. And then he goes through his very familiar dance through that. This case vividly illustrates the Constitution's deliberate redundancy. Individual liberty is preserved not by any single safeguard, but by four interlocking mechanisms working in representative government. Separation of powers, federalism, and the Bill of Rights. The framers trusted none of them to suffice on its own. These protections, however, do not run on autopilot. Each generation must decide whether to honor these structural limits and as boundaries to uphold, or to treat them as obstacles to outwit. When the Bill of Rights halts an aggressive assertion of federal power, it should sharpen our respect for those limits, not lull us into forgetting them. The Judiciary should heed that lesson as well. In an appropriate case, I remain open to reconsidering whether 922 truly falls within Congress's enumerated powers. For now, however, I join the Majority's conclusion that 922, as applied here, violates Hembri's rights to keep and bear arms.
- [37:54]
C
So this case is so interesting to me, Sarah, because I want to break it down for folks, because he's talking about a difference between somebody who has a felony for possession as opposed to somebody who has a felony for trafficking. And what they say is if it's a felony for trafficking, that's going to fit within the text, history and tradition of permanently disarming. And I think that Judge Willet uses the phrase permanently disarming quite a bit. And I think it's a very effective rhetorical device. Because when you think it through, imagine that when you're 20, 25 years old, you have a felony, a nonviolent felony for drug possession. And then let's suppose you've not used drugs, touched a drug for 25, 30, 35, 40 years. Is it really the case that this right of self defense, this right of armed self defense, that you forfeited it for all time with no violent felony conviction, with no conviction for trafficking, with a felony possession conviction? I think he really does raise. Okay, if, if the bottom line of the text, history and tradition is that unusually, unusually dangerous weapons can be regulated and unusually dangerous people can be prohibited from possessing guns, it really does get into the definition of sort of who is, what is an unusually dangerous person. And I honestly think that's where the jurisprudence is headed. And so it would not surprise me, Sarah, if you had an ultimate finding here coming from the Supreme Court, especially for sort of non violent felons, that once they serve their time and pay their restitution or whatever, that they could have a restoration of their right of self defense in the same way that some people can get a restoration, you know, people can get a restoration of, say, voting rights after a felony conviction. So I, I find this issue to be very, very interesting under that construct because I do think the unusually dangerous weapons, unusually dangerous people construct is really where the court is heading with its text, history and tradition approach. So I, I found this case fascinating if I had to list the second Amendment issues that the Supreme Court's going to end up addressing. Large capacity magazines, you know, assault weapon regulation and felon in possession. These are sort of the big three. And which felon's in possession, is it going to be all Felons in possession. Still, I'm very interested in the outcome here.
- [40:23]
A
All right, David, we've got one from the 4th Circuit. This is expanding on the sensitive places problem in Bruin where they said, like, you know, look, there's all this stuff, but it's still possible for state governments to ban possession in, quote, unquote, sensitive places. So Maryland passed a law that defines a whole lot of places as sensitive places. You have a three judge panel of the 4th Circuit going through each one of those, and so shall we. David. We hold that Maryland's prohibition on guns in government buildings is constitutional. We hold that Maryland's prohibition on guns in public transportation is constitutional. That was actually two to one on the panel. We hold that Maryland's prohibition on guns on school grounds is constitutional. We hold that Maryland's prohibition on guns within 1,000ft of a public demonstration is constitutional. That was two to one. I know. And pretty applicable. Yeah. Given recent events. We hold that Maryland's prohibition on guns in state parks is constitutional and that Maryland's prohibition on guns in state. State forests is likewise constitutional. That was also 2 to 1. We hold that Maryland's prohibition on guns in museums is constitutional. That's 2 to 1. We hold that Maryland's prohibition on guns in health care facilities is constitutional. That one was unanimous. We hold that Maryland's prohibition on guns at stadiums, racetracks, amusement parks and casinos is constitutional. That was 2 to 1. We hold that Maryland's prohibition on guns in locations that sell alcohol is constitutional. That was 2 to 1. We hold that Maryland's prohibition on carrying guns on private property held open to the public. Now, remember, this is the same as the Hawaii case that the Supreme Court just heard arguments on is unconstitutional, according to this panel. So that was actually unanimous. The other direction. Now, David, any of these of particular interest to you or that you think the majority got wrong?
- [42:22]
C
Almost all of these are pretty conventional. If you're a. If you have a concealed carry permit like I do, you just kind of have gotten to the point where, you know, if it's a government building, very unlikely to be a par. You know, to be lawful. Certainly not mass transit, certainly. Certainly not going into school. The ones that kind of I have questions about are the public demonstration, and the other one is state parks and forests. I have some questions about that, to be honest. And then as far as the private property, again, let's go back to the Hawaii. It just. If a default that private property is not accessible to the exercise of your constitutional right, just having that sort of as the default legal basis is extraordinarily chilling. Just extraordinarily chilling. And so in the exercise of that. Right. So yeah, I'm going to say demonstrations and state parks and forests are the ones that an eyebrow raises there. What about, what about for you, Sarah?
- [43:26]
A
Yes, but I'm going to also add, even though I think it's subsumed into the private property, the places that sell alcohol, I get why we may want to ban people from carrying guns into those places, but I don't think they're sensitive places. Sorry. Like meh, the large gatherings, stadiums, they said casinos, amusement parks. That's interesting. I don't think those are sensitive places under really any definition of sensitive places. Why they're on the list and why I think I'm very like, I personally would like guns to be banned in those places is because they're mass casualty events. You can't escape them if someone starts shooting. It's very different than a state park in that sense. So like me personally, as Sarah yeah. I want to ban guns in those places. Do I think that that's what sensitive places means in a second Amendment analysis? I don't know that I do, David. Or at least I might need a line by line. Like it's not just like large places like stadiums might to me be different than amusement parks, might be different than casinos, for instance. But you know, I think all of this hinges on what the Supreme Court does in the Hawaii case, even though it's not directly applicable to this case because again, they actually sort of preempted the Supreme Court potentially in this one by finding that that private property without permission part of the Maryland law was already unconstitutional. David when we get back, I've got a few more circuit cases and of course a couple more answers for our best emailer ever. Wait, she didn't email. She wrote the most beautiful. She has better handwriting than I do. David. As you can see from my signature that everyone's getting on their name plates. You'd rather Claire signed your book, but you're stuck with me. We'll be right back.
- [45:12]
C
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- [46:12]
A
All right, David, Two more circuit cases that I just want to gently touch on. 1. It is legally interesting, but honestly, I think the facts just like have grabbed me. This is a qualified immunity case as applied to detectives that were investigating two people who were found dead in their homes. And I just want to read you the facts of this. At approximately 2:20am on April 7, 2008, Kathleen called her mother, Elizabeth Horton, and told her that Pete was there trying to kill her husband. That he said he was going to kill her and that he had covered his tracks so they would not know it was him. The line then went dead. Ms. Horton's son called 911 and reported that Mr. Coons Pete was at Kathleen's house trying to kill Kathleen and Carl. When police arrived at Kathleen's house, the front screen door was shut, but the interior door was ajar. The officers entered the house and found Kathleen's body in the living room with a silver revolver near her left foot and, and a cordless phone near her right foot. She had sustained a single gunshot wound to the back of her head. Carl's body was in a bedroom sprawled across the bed with gunshot wounds to his left chest and left abdomen and an injury to his head. Pillow near his head had a bullet hole going through it. The house contained no signs of struggle or forced entry. So, David, to make a long story short, here they charge Pete, the guy who she says in the call to her mother is at her house trying to kill her. And then her and her husband are both found dead. And spoiler alert, David, it was all a setup. This is the most elaborate framing where you are, you want so badly to frame someone, you kill your husband and take your own life. So what caused her to frame him? She had been a housekeeper for his father and had been embezzling money from the father and had been accused of elder abuse that was about to go to litigation. And that's, I guess, you know, the, you know what leads to this absolutely tragic. He spends over 10 years in jail before they actually test the gun. The gunshot residue sample swabs from her hands and find that there's gunshot residue on her left hand and that she in fact pulled the trigger. One hundred and so days after he's released, he dies of lung cancer. It's just one tragedy after another. Now in this case, the detectives are like, look we relied on this call. Yes, it was hearsay, but there's an exception to hearsay, David. Dying declaration. But as the court notes, not all dying declarations are the same. And in this case, the only evidence potentially linking Mr. Coons to the Scholl's deaths consisted of one, Kathleen's daughter's hearsay report that Kathleen told her she was threatened by Mr. Coons as they walked past each other in a quick trip on April 5. The police then went to the kwiktrip, pulled the video recording and did not find either of the two people in the Quick Trip on that day. They told the defense attorney that there was no video. They did not tell him that they had checked the video. They did not retain the video. You know, okay, number two, Kathleen's mother's hearsay report that Kathleen told her in a phone call on April 7 that Pete was at Kathleen's house and was going to kill her and Carl. But the detectives had reason to think that neither of these hearsay statements was trustworthy, given that Kathleen had recently fabricated a story to her daughter about the quick Trip thing. Lied to several family members about filing police reports and calling the police about Mr. Coons. Lied to her brother about obtaining a restraining order against Mr. Coons, lied to her mother about needing to transport large sums of money for her job. Lied to her mother about the reason she carried a firearm. Lied to her mother about receiving an inheritance from Pete's father. Embezzled money from her current employer. They ignored all that, didn't tell the defense attorney large parts of it. And here you have a panel of the 10th Circuit, David, holding like, look, you don't get qualified immunity. This was a clearly established violation under Brady and under sort of, we'll call them Brady adjacent doctrines about needing to inform defense attorneys of exculpatory evidence that you're finding first.
- [50:38]
C
I think this is a very solid case and that it's mainly interesting because the facts are just so bad and grim.
- [50:46]
A
But they're hard facts for the detectives, too. I gotta be honest. Like, you have someone calling, saying, this guy's gonna kill me. Then you show up and she's dead. I don't know that. My first thought is, like, she framed him with her life.
- [50:58]
C
That's wild. It's a wild situation. But. And the very wildness of it, Sarah, is what makes me think. And we're seeing more and more, and we've only covered a fraction of them here on the podcast, but we're seeing more and more cases where the appellate courts are reviewing the facts. And they're just finding no qualified immunity. It's not that they're challenging qualified immunity. They're just finding no qualified immunity. And it's reminding me, you remember how for a while it seemed as if, you know, when we're reviewing agency actions, all of a sudden the rational basis review of the Supreme Court got amped up on steroids. And so it was still the same legal standard, like on paper, but the outcomes were moving in a very interesting way. And that's what's happening. I feel like on qualified immunity it was. It's not just that they're finding again, you know, they're finding no qualified immunity. I'm just seeing it in more and more circumstances where five years ago, 10 years ago, would they reach the same conclusion? I don't think so.
- [51:58]
A
I was just going to say the same thing, David. Ten years ago, these detectives absolutely have qualified immunity. I actually, I'll be honest, I think this is a close case. And I wonder. I don't think the supreme court's going to take this because they're not going to take a qualified immunity case because then they'd have to resolve qualified immunity. But woof. I mean, these are bad detectives, right? They do not correctly solve the case. There's an argument about, you know, the detective testifying that he would have seen the van if it had been parked, you know, where it was supposed to be parked. There's some evidence that he probably lied about that, that he didn't actually get close enough to see where the van would have been parked. I'd say the two biggest things are one, you know, the potentially lying on the stand, I think that's tough, you know, like if you figure out where the van is and he has to like look behind the house and like there's a fence and blah, blah, blah. The one that sticks out to me is the son in law's car is parked behind his van. And so for him to get his van out, the son in law would have needed to move his van. And the son in law's like, you know, that didn't happen. Like I didn't move my van. So therefore his van didn't move. Like there were lots of things that should have made their spidey sense go off. They didn't tell the defense that she was embezzling from her current employer. Right. And that's what they found. Basically. That's why they don't get qualified immunity. But boy, that phone call makes this really hard. I'm. It's egregious that they didn't test the swabs on the hands. It would have been definitive proof that he didn't do it. But I gotta tell you, David, mostly I sit here and look at this, and I'm like, this defense attorney was terrible. Terrible. Didn't demand that the swabs get tested. Didn't go and check whether the quick trip. Had the video himself relied on the detectives to say that there was no video. A quick phone call could have solved that. You know, maybe they. The defense attorney couldn't have figured out that she was embezzling from her current employer. I'll give you that one. But, boy, woof. David, I don't like this case.
- [53:55]
C
Well, I like qualified immunity being diminished. I just wish it was explicit and not subtle. We should not be dealing with a vibe shift. We be dealing with a doctrine shift.
- [54:04]
A
All right, David, last case, this one was from the D.C. circuit. And I just thought you'd be interested in it because. Do you remember Tamina? This was on the terrorism liability. And the Supreme Court basically said, like, no, YouTube is not responsible, you know, for what terrorists watch on their platform, et cetera, et cetera. So this is sort of a follow on to Tamina. But in this case, they find that they are liable. These were pharmaceutical and medical equipment manufacturers and their affiliate suppliers that allegedly made illegal payments in both cash and goods to part of Hezbollah. They did it in an unusual manner, as in not their normal course of business. Those medical supplies and the bribery money all went to enrich Hezbollah, and then that's used to, in this case, attack the plaintiffs who are bringing this lawsuit. And the district court was like, no, no, liability. And the D.C. circuit's like, yes, yes, liability. This is what this law is for. You did it. You knew you did it. You did it for your own enrichment, and you founded a terrorist organization knowingly.
- [55:14]
C
Yeah, I mean, this is. According to the complaint, defendants paid illegal cash bribes directly to the group. This is Jaish Ahmadi. And supplied extra, off the books batches of valuable medical goods. That jam. That's what we call Jaish al Mahdi in Iraq. That JAM monetized on the black market to fund its operation against Americans. And by the way, I just want to say, when you say operations against Americans, my unit in Iraq, we were attacked by jam. JAM was, in many cases, the most dangerous opponent we faced because they had the explosively formed penetrators provided by Iran that could and did penetrate some of the armored vehicles that guys I served with and know were in. And so this one, I'm very glad to see this, the, the evidence here. If you're talking about knowing illegal bribes, I mean, you've got aiding and abet, abetting liability all over the place here, so. And I know firsthand how deadly jam is and I know firsthand how they attack Americans because they attacked us, they attacked my squadron, they killed people I served with and knew in Iraq. And so this is the unequivocally, unequivocally, under these facts, correct decision and one of those circumstances where the correct decision gives me particular satisfaction.
- [56:39]
A
All right, David, time for some more answers to 9 year old Claire. I want to just sort of summarize the others and then I want to actually go through and have us answer her questions for real. I saw many on being curious, not being arrogant, asking questions, never assuming things, listening, you know, studying history and science and sort of being as worldly as you can, writing fiction. And again, back to that like idea of building narratives. Everyone was like, never stop reading. Read everything you can get your hands on. Fiction, nonfiction, just do all the reading. One person put the gif of Michael Scott just saying no. So yeah, there were lots of people who were like, don't do it. Also, you're only nine, you have so much to live for. But this one was a more thoughtful version, I thought. Actors, healthcare, lawyers, colon. If you can do anything else, do it. But if it's a specific calling for you, then the vast and statistically likely array of negatives can be worth it. But you must know specifically what kind you want to be.
- [57:44]
C
I think that's very well stated. And you know, I don't know if this advice is for 9 year old Claire, but this advice is definitely for 19 year old Claire, which is you re. I think one of the major issues, especially with younger lawyers, is sort of the disparity that exists between expectations of the job and reality of the job. You know, in many jobs, in most jobs, you don't go into it thinking I'm a world changer. You know, like you go into it thinking I'm making a living. And then a lot of the things that I'm world changer about or really want to impact my community about, etc. Are outside of the work environment. But the law is one of those professions where people often go into it thinking, as I'm getting paid, I am changing the world or achieving justice or defending the helpless and the vulnerable. And so you have this view of it in your head of my work life is going to feel significant. And then you go into the actual job. And a lot of times, especially when you're younger, even when you're working on big, significant cases, your work feels like drudgery, a lot of stress. You don't necessarily feel like on a daily basis that you're changing the world for the better. It just feels like a job. It feels like a very demanding job. And so that gap between, you know, the movie reality and the daily reality can really mess with your mind. Even for lawyers I know who've kind of gone on to do the kind of work that, you know, is exactly what you imagine for a lawyer, there was a lot of drudgery to get from A to B. And so I think, you know, part of the problem with the mental health of lawyers is just this giant gap between the imagined world of the law and the real world of the law law, which can be very stressful, it can be very tedious, and it doesn't always feel significant. So 19 year old Claire, let's, let's just pause, save this clip in 10 years, Claire, start adjusting your expectations. And with those expectations adjusted, I think that the law is a wonderful profession.
- [59:51]
A
All right, we've got some AO travel coming up. We're on our way to Dartmouth, so the next episode will be a live for from Dartmouth episode. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free. And help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad free feed and early access to all episodes. Two gift memberships to give away access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisory opinionsedispatch.com we read everything, even the ones that say, David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [61:21]
C
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See Terms do you love the Dispatch? Is journalism but don't have time to read it all? We hear this pretty frequently from our members, which is why I'm very excited to introduce Dispatch Voiced, a members only podcast feed that helps you keep up with our work on your schedule. Here's how it works. We've built two feeds, Editors picks for our biggest stories, and the Morning Dispatch for our daily newsletter. Powered by realistic AI voice models created by 11 Labs, these high quality audio versions are delivered right to your favorite podcast player. Whether you're commuting at the gym, out grocery shopping, even walking the dog, Dispatch Voice fits our reporting into your schedule. Jonah Goldberg's latest column the biggest news from Capitol Hill, Our most colorful cultural analysis. Now it's all available in your podcast feed. Ready when you are. Most episodes use advanced AI narration that sounds remarkably like a professional audiobook reader and will occasionally feature authors reading their own work too. Ready to take the Dispatch on the go? Members can set up their feed on their account page@thedispatch.com not a member yet? Start listening today when you join the Dispatch.