Mechanical / Animal

Summary

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Divided Argument — "Mechanical / Animal"

Episode Date: June 28, 2026
Hosts: Will Baude & Dan Epps

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Episode Overview

This episode of Divided Argument, hosted by Will Baude and Dan Epps, dives into a packed week of Supreme Court decisions as the term draws to a close. The hosts focus on two substantively unrelated but methodologically connected cases: Wolford v. Lopez (Second Amendment, Hawaii guns case) and Peng v. Isabella County (takings and tax sales). The central theme is the Supreme Court’s use of “mechanical” versus “animal” (i.e., value-laden, less-formalistic) analysis in constitutional doctrine and how state property law intersects with federal constitutional rights.

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Key Discussion Points & Insights

1. The State of the Court and Triage Season

• The hosts note a flurry of major decisions pouring out in late June, listing big pending cases (executive powers, transgender athletes, election law, campaign finance, birthright citizenship, and surveillance/geofencing).
• Triage Mode: They're recording rapidly to cover as many of the new decisions as possible before the justices leave for summer.

2. Quick Takes on Recent Decisions

• Monsanto v. Durnel (FIFRA Preemption): Preemption of state tort claims by the Federal Insecticide, Fungicide, and Rodenticide Act. Baude notes it’s “a very significant case out of Missouri” with a “7-2” split and a Thomas concurrence questioning FIFRA’s constitutionality.
• Two Trump Immigration Wins: Not covered in detail this episode, but flagged as future topics.
• 7 Conservative 6-3 Wins: Epps observes a clear ideological split in recent decisions, noting, “That’s a lot... you can tell whether it’s a conservative term or a really conservative term.” (09:44)
• Prediction/Retrospection on Surprises: Baude admits being “surprised by Hamani,” noting the challenges of predicting outcomes.

3. Are All Supreme Court Terms Conservative Now?

• The term trend: If Trump loses key cases but conservatives win everything else, “nobody [is] happy by issuing that combination of wins and losses.” (11:18)

4. Methodological Connection: State Property Law & Constitutional Rights

Framing by Epps

• Both Wolford (gun rights vs. Hawaii’s redefinition of trespass) and Peng (takings/just compensation in tax sales) pose the question: "Can states redefine property and other private law entitlements to avoid federal constitutional limits?"
• These cases are discussed as evidence that the Court is indirectly creating a "nationalized version" of property/tort law in some constitutional contexts, rather than permitting states total control.

5. Case Breakdown: Wolford v. Lopez (Hawaii Guns Case)

Summary

• Hawaii enacted a law requiring express permission from private property owners before someone can carry a concealed weapon onto their property, even in public-facing places.
• The Supreme Court, referencing NY State Rifle & Pistol Ass’n v. Bruen, holds this violates the Second Amendment.

Key Analytical Steps

• Bruen Framework Steps:
  1. Is there a burden on “keeping and bearing arms”?
  2. Is the regulation consistent with historical tradition?
  • Epps: “Bruen test has two steps... Step one is, is this telling you you can’t keep [or] bear arms... Step two, you have a more nuanced historical question…” (20:43)
• History & Analogues:
  • Hawaii and others flipped the default for guns after Bruen, but not for other items (e.g., “no shirts, no shoes, no service”).
  • Alito’s majority finds Hawaii’s historical analogues inadequate, some being anti-poaching laws and others racist Black Codes.
  • The hosts note the Black Codes were explicitly oppressive, but discuss whether their use in argument says something about general principle or merely racial targeting.
• Property Law and Consent:
  • Both agree “there is no right to bear arms on private property without consent.” The issue is what the default is (express vs. implied consent), and whether a state can redefine it just for guns.
• Step Zero or Step One?
  • The majority treats Hawaii’s law as a gun regulation; dissent sees it as a property rule.

Notable Quotes

• On Bruen's Historical Test:
  • Will Baude: “Application of step two of the Bruen framework called for a more difficult exercise of judgment... [the framework] is not mechanical.” (37:11)
• On Property Law in Second Amendment:
  • Baude: “Is it constitutional to flip the default if you have a good reason, if you have a problem, and if you’d flip it... as the places where the reason obtains?” (41:51 - Barrett’s concurrence summary)
• On The Black Codes Analogue:
  • Epps: “You might have thought that the core problem with the black codes was that they applied to black people, that it was the inequality that was the problem, not that... would be unconstitutional on other grounds if they were applied to everybody.” (33:17)

Other Opinions

• Barrett (concurrence): Focused on scope/reasonableness—states can flip rules with sufficiently good reasons in narrow contexts.
• Kagan (solo concurrence): Minimalist; upholds the challenge without critiquing Bruen’s methodology.
• Jackson (dissent): Critiques the subjective, “animal” quality of the Bruen analysis as “malleable... gives the Court license to strike down gun laws when it wants to.” (36:11/36:48)

Memorable Segment

• On algorithmic vs. “animal” legal reasoning:
  • Dan Epps: “I come away from reading opinions like this... this is nowhere near algorithmic. And I think there’s a lot of hard value-laden questions that have no clear answers about this level of generality question.” (36:51)

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6. Case Breakdown: Peng v. Isabella County (Takings for Tax Sales)

Summary

• Issue: When local government seizes and sells property for unpaid taxes, must it pay previous owner the actual value (realtor price), or just the (usually much lower) net proceeds of a quick, “tax auction” sale?
• Holding: The Constitution only requires "just compensation," not market value; the fair price at a properly conducted auction suffices.

Points of Interest

• Unanimous/Majority-Heavy (Alito): Most of the Court agrees with this pragmatic rule.
• Thomas Concurrence: Argues for more rigorous adherence to 19th-century property law, suggesting government should try to sell personal property before real.
• Practical Impact: Changing this rule would “cripple tax collection” nationwide.
  • Epps: “This is a process that jurisdictions all over the country use and have used forever... clearly right answer to me.” (49:22)

Notable Quotes

• Baude: “Isn’t the majority obviously right? ...The idea that that’s fair market value on Zillow is a useful gloss... But if it’s a fair tax sale... why isn’t that just compensation?” (48:58)

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7. Conceptual Connection and Closing Thoughts

• Both Wolford and Peng show how federal rights can override or reshape state-defined property rules.
• Baude and Epps discuss how “background legal principles”—not just local statutory definitions—inform constitutional analysis.
• Justice Barrett’s approach is lauded as a model for giving more explicit reasoning principles, not just “analog squinting.”

Final Quote

• Baude (on methodology): “If it’s not mechanical, presumably it’s animal, and if it’s animal, what kind of animal is it?” (37:47)

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Timestamps for Key Segments

• Overview of Court’s agenda & case status: 00:26 – 03:46
• Discussion of case assignments and theory of flipped opinions: 03:56 – 06:29
• Case rundown & conservative win statistics: 06:39 – 10:00
• Discussion of ‘conservative’ nature of the Term: 10:00 – 12:16
• Property law as backdrop for both main cases: 13:46 – 16:39
• Wolford v. Lopez—case facts & analysis: 18:19 – 47:35
• Peng v. Isabella County analysis: 47:35 – 55:05

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Memorable Moments, Quotes & Dynamics

• Spontaneous acknowledgment of the subjective nature of Supreme Court jurisprudence:
  • “This is nowhere near algorithmic.” – Dan Epps (36:51)
• Extended analogy to free speech cases to clarify conceptual issues in defining the “right” involved.
• Amused lament about the “spirit of aloha” not applying to federal law:
  • Baude: "The Second Amendment cannot give way to the spirit of aloha in Hawaii.” (47:35)
• Meta-commentary on their own attempts to reconcile methodological confusion, both serious and self-deprecating.
• Teaching/Fed Courts as the "hardest class in law school," Baude: “Nobody is ever up to the task of teaching Fed courts. Fed courts teaches you, but it’s great.” (12:16)

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Conclusion

This episode threads together high-concept themes—mechanical versus value-laden (“animal”) judicial reasoning, federal constitutional limits on state control over private law, and methodological transparency. Baude and Epps deliver insight into the Supreme Court’s current Second Amendment and takings doctrine, while questioning the actual operation, limitations, and future directions of these frameworks. The lively dynamic makes abstruse doctrine accessible and lively, and meta-observations about the law’s lack of algorithmic neatness highlight the creative, judgment-driven aspect of Supreme Court constitutionalism.

Transcript

[Dan Epps]

Oh, yay. Oh, yay.

[Will Bode]

Oh, yay.

[Dan Epps]

The judicial power of the United States shall be vested in one Supreme Court. Unless there's any more question, we'd be able to find an argument in this case. All persons having business before the honorable

[Will Bode]

the Supreme Court of the United States are admonished to give their attention. Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode.

[Dan Epps]

And I'm Dan Epps. So, Will, it's that time of the year when the court is finally dumping everything on us.

[Will Bode]

They're flooding the zone. They're keeping the podcasters from talking about jurisdiction or immigration or.

[Dan Epps]

We will get back to some of the things that we're going to miss this week. You might have to wait till later in July, but I want to talk about a lot of cases that are coming down and that will be coming down, but we're in triage mode at the moment, so we're recording. On the afternoon of Thursday, June 25, the court released another batch of opinions. Since our recording session on. Was that yesterday? Wednesday?

[Will Bode]

I don't know.

[Dan Epps]

I think it was. And they're medium to big? I would say.

[Will Bode]

Yeah, big. Medium to big. Okay, sure.

[Dan Epps]

Medium to big. Medium to big. Not the biggest biggest, but we're getting into that period where we really start to get the blockbusters.

[Will Bode]

The outstanding cases left are the intertech executive cases, Cook and slaughter, the transgender athlete cases, two election law cases, the campaign finance case, and the election day case. Birthright citizenship.

[Dan Epps]

Birthright citizenship.

[Will Bode]

And Chatri, that geofencing case. Yeah.

[Dan Epps]

Yep. All big ones.

[Will Bode]

Except the CAFE finance case, I would say.

[Dan Epps]

Well, I mean, I don't know. It could be big.

[Will Bode]

If Roman Martinez pulls out any votes, it will be a big case.

[Dan Epps]

Oh, you think it's. Any votes? I mean, you don't think it'll be a conservative? Conservative.

[Will Bode]

Liberal, maybe.

[Dan Epps]

You're right. Usually those election cases, campaign finance, for some of my cases, turn out that way.

[Will Bode]

He came up with these great jurisdictional arguments which are probably correct. Like that, among other things, it's not clear. The case is either not ripe or moot because it's not clear who the candidates are. The best part of which, I don't know if you follow this, is that J.D. vance, who's supposedly one of the plaintiffs in the case, it's not clear what election. He's a plaintiff. With respect to, he sued when he was running for Senate, but he's obviously not running for Senate again. And he will not say that he is a candidate for the presidency in 2028.

[Dan Epps]

Yeah. That seems like a standing issue, right?

[Will Bode]

Yeah. I mean, it should be. Now everybody knows he's a candidate for the candidate for the Presidency, 2028. But at some point, the fact that you won't say you are should matter. But it won't.

[Dan Epps]

Okay, well, we will see. The court is not going to release opinions on Friday, June 26th. It will be releasing opinions on Monday, the 29th. Clear my calendar, that almost certainly will not be the final day. I think maybe they can get done before July by having a meaty day on Monday and then a media day on Tuesday.

[Will Bode]

Yeah, that seems right. That seems right.

[Dan Epps]

So my hope is that we'll record once, twice, maybe even three times next week to clear the deck a little bit, and then we will be in our mini hiatus.

[Will Bode]

All right.

[Dan Epps]

Okay. So any other small items before we get into substance and tell you what decisions have come down and which ones we're going to talk about?

[Will Bode]

There's one interesting blog post I saw on the Vola conspiracy by Josh Blackmun. Did Justice Jackson lose the majority in Landor to Justice Gorsuch? That hypothesizes that Landor was a flip, that Justice Jackson had the assignment. And then Justice Gorsuch took it over and gives various arguments for why that might be true. And of course, it took a long time. We talked about that. I texted this to you and you expressed skepticism.

[Dan Epps]

Yeah, I mean, mainly because it's a lot less plausible for there to be two votes that flip.

[Will Bode]

Well, okay.

[Dan Epps]

I mean, you tend to see these flips in cases that go 5, 4 to 4, 5 or whatever. So you'd need two people to then move in lockstep together.

[Will Bode]

Right. So aside from how long the opinion took to issue, which I think we can't put too much stock in, I don't really believe this theory. But here are two points that do give me some pause. So, one is Justice Gorsuch has two November assignments and Justice Jackson doesn't have any. And Justice Gorsuch's other. Now, sometimes that happens just because the wrong people are in the majority. But Justice Gorsuch's other majority assignment was RICO versus United States, a case we've barely thought of. That was 8:1 with a dissent only by Justice Alito. So if you knew that Justice Scorsese is writing Landor, why can that case not be written by Justice Jackson? That's, I guess, just one question. And then the only other thought is we talked a little bit about how Landor has these two issues. The statutory issue and the constitutional issue and then avoids the statutory issue to decide the constitutional question instead. And that's weird. And you could imagine that weirdness is connected to flip like that. Lander was going to win on statutory grounds and then Justice Gorsuch wrote a constitutional dissent that was sufficiently persuasive that it pulled people off or something, I don't know. But the assignment lineup and then the sort of weirdness we talked about about what grounds they resolve on, maybe those are two ingredients for something interesting going on behind the scenes.

[Dan Epps]

Yeah, yeah. No, I mean it's interesting. Yeah. I'm not going to dismiss it out of hand.

[Will Bode]

Now, again, a flip in which I don't think it's true, but if you imagine a flip in which originally Landor was going to win on a statutory interpretation question and then somehow turned into the statute's unconstitutional, 6, 3 is like a wild flip. But I just thought I'd mention it.

[Dan Epps]

Okay. I don't think any other follow up that we're going to deal with right now. We want to get into some substance. So what did we get today, Thursday?

[Will Bode]

We got a lot. We got a lot. We got four cases today, Thursday. One, Monsanto versus Durnel is a case about the preemptive effect of everyone's favorite federal statute, FIFRA, 7 USC 136VB, the federal insecticide, Fungicide and Rodenticide act, which apparently preempts a huge swath of state tort claims that Roundup causes cancer argued by friend, maybe even friend of the show, Ashley Keller. His first Supreme Court loss, I think. But if you don't lose some cases, you're not taking enough cases, I guess.

[Dan Epps]

I am not deep into the issues in that case, but it is a potentially quite consequential case for this set of issues because there are literally many thousands of these suits that have been out there in the country against Monsanto. And I don't know enough about the issues to know exactly how many of these that kills versus just calls into question. Versus doesn't affect, but presumably a lot.

[Will Bode]

Yeah, I think it's a very significant case out of Missouri, this case. Yes.

[Dan Epps]

And one that the Wilkinson Stecklaw folks have been involved in. I've never worked on the issue, as have. I think a lot of big firms have been in on these cases. I think this is a big deal for our friends and the big law defense bar of which both of us have many.

[Will Bode]

It's also interesting because it has a dissent by Justice Jackson, joined by Justice Gorsuch. The unusual seven 2. And a concurring opinion by Justice Thomas, who, true to form, believes that FIFRA is unconstitutional on both federalism grounds. But anyway, we're not going to talk about that. There are two big immigration wins for the Trump administration. Mullen vs. Doe and Mullen vs. Zala Torlotto. One about the legality of the remain in Mexico policy and the other about the legality of terminating temporary protest status, including for Haitians, which have several interesting jurisdictional and constitutional issues in them. And I definitely want to return to them in a future episode, but not this episode.

[Dan Epps]

Yeah.

[Will Bode]

And then we also have Wolford vs Lopez, the Hawaii guns case,

[Dan Epps]

which is a case that we previewed. This is going to be another one where it's a 6, 3 conservative win. So just to step back for one second, this week there have been, let me count them. 1, 2, 3, 4, 5, 6, 7 Conservative, 6, 3 Wins, the kind of classic ideological line splits.

[Will Bode]

I think we're counting just of the nine merits opinions.

[Dan Epps]

Yeah. So I've got the two immigration ones. Wolford, Landor, Blanche, Cisco and Exxon.

[Will Bode]

Yeah, it sounds about right.

[Dan Epps]

So, I mean, that's a lot. I mean, usually at this time of the year they start to kind of one, you can kind of tell whether it's a conservative term or a really conservative term, but sometimes there's ones that surprise you. I don't think there have been big surprises this week.

[Will Bode]

I was surprised by Hamani and so were you, as we established. I guess that was last week.

[Dan Epps]

Yeah, I was slightly more equivocal.

[Will Bode]

I don't know why we.

[Dan Epps]

Why did you say that? In retrospect, that seems like a dumb prediction.

[Will Bode]

Well, all predictions are dumb in retrospect, once you know what happened.

[Dan Epps]

Well, but even putting that aside, I mean, like trying to evaluate it. Why'd you say that?

[Will Bode]

Why did I say that Hermione was going to lose?

[Dan Epps]

I mean, there were some really hard questions for the government at the oral

[Will Bode]

argument because I didn't think the court took the Second Amendment seriously when it came to criminal defendants. And I was wrong and I apologize to the court for doubting their good faith.

[Dan Epps]

Okay, so the tale of the term remains to be told. I think that the common wisdom is we'll get a couple losses for the Trump administration next week, birthright citizenship and Cook the Federal Reserve case. And maybe that will color the kind of end of term recaps. But in general, I think it's turning out to be a pretty conservative term if that happens.

[Will Bode]

Let's assume that happens. And of course Trump lost learning resources. What that will mean is Trump lost the three cases he cared most about and the conservatives won everything else. And thus Trump will think the court is an activist court full of libs that can't be taken seriously. And all of our listeners will think the court is an activist court that not all listeners, but, you know, the world. Just make nobody happy by issuing that combination of wins and losses.

[Dan Epps]

That's possible. I don't know. It might make you happy.

[Will Bode]

Not totally, but I'm still mad about the Ricker Feldman thing.

[Dan Epps]

Okay, we'll get to that. That one's maybe in early August for us.

[Will Bode]

Oh, God, I can't wait that long. Dan, what do you think?

[Dan Epps]

No, it's going to be good for me because I am going to be teaching Fed courts in the fall, and that's something I'm excited about and terrified about because I've not taught the class before and it is maybe the hardest class in law school, both as a student and as a professor. So I will need some help with Werker Feldman. Among many other things.

[Will Bode]

It's one of the most fun classes to teach. When I was on the entry level teaching market, I had to fight with some prospective schools about whether or not I was. Whether or not I was up to the task of teaching Fed courts. And nobody is ever up to the task of teaching fidcourts. Fidcourts teaches you, but it's great.

[Dan Epps]

Well, I think you'll get there eventually. Okay. So as always, we're trying to maintain a tight schedule. So two cases to talk about. One I think we'll have a little bit more to say about than the other that seem unrelated, but I think are actually deeply related at sort of a conceptual, methodological level. Okay. The first one is Wilford, which is one you mentioned a second ago, which is this Hawaii Second Amendment case. Basically, can Hawaii change its property rules by saying that you cannot bring a concealed weapon onto private property absent express consent from the owner of that property? Can they do that? The court is going to say no, Second Amendment violation. And then we have this other case, which is a takings case. Also a little bit of 8th amendment in there. Peng versus Isabella County, Michigan. This case is about when the municipality seizes somebody's property to satisfy a tax debt and then they auction it off. That is a tax auction, tax sale, very standard thing that governments all over the country do to satisfy tax debts. Whether the measure of compensation the owner gets for that seizure is the net proceeds of the sale or whether it's the municipality, the government would have to compensate the owner in terms of the actual fair market value of the property, which is significantly more than what is typically gained at a tax auction. Tax auctions for various reasons, you can get houses for significantly below what they would sell for using a traditional process with a Realtor in Zillow and all that stuff.

[Will Bode]

Okay.

[Dan Epps]

Okay. So those seem different, right?

[Will Bode]

Sure. I don't want to step on your in your reveal. Go ahead.

[Dan Epps]

Okay, well, maybe you think they are different, but they're both cases that are of interest to me. Danielle, my wife and I are working on a follow on to our 2023 Fourth Amendment in general Law paper. That's about other places in constitutional law where the court looks to definitions of private law entitlements like property contracts, torts, in shaping the scope of federal constitutional rights. And both of these cases involve that question. Right. In Wolford, the case is about can Hawaii change its law of trespass, which is both property and tort traditionally in a way that impinges on Second Amendment rights? Can it redefine that as a matter of state law? Or is there some kind of, you know, basically constitutionalized, almost constitutionalized version of trespass law that kind of overrides what Hawaii is trying to do? Likewise in Pang, part of the analysis is going to turn on is what the municipality is doing here, the county, is it consistent with kind of these broad background principles of property? Right. We're not going to just look at the local municipal property law. The court is going to do some kind of generic transubstantive analysis of property law. So similar methods, I think, different legal contexts. And both of these cases are ones that we're going to discuss at some length in the forthcoming paper. Not yet forthcoming. It's forthcoming to be forthcoming. We are finishing it right now and hoping to send it out in a few weeks. Okay, we can break each of them down. But what do you think about that high level framing? Were you about to disagree?

[Will Bode]

No, I like that high level framing. I mean they're both about property and background legal principles and about the relation from the state's power over property and deviation from background legal principles. I don't know if the court is thinking about them in the same boxes. The court's Second Amendment box and its takings clause box might turn out to look pretty different and maybe should look pretty different. But. But that doesn't mean that not instances the general problem.

[Dan Epps]

So I would push back on that a little bit because we do at least see in Wolford, we do See in a footnote, a citation to another case that kind of Peng builds on Tyler versus Henneman County. So I mean, I do think that there's maybe at least some understanding at the court that these, at some high level, these kind of questions about can states change positive laws of property in order to evade constitutional rights? I mean, they're aware of that connection.

[Will Bode]

Yes. Right. I guess that's one way to think about the problem. Is just like how much of property law is up to states and how much of it is drawn from general law principles or something like that. A different way to think of it, which might be the court's way of thinking about it is of course property is state law. But when are changes to property law suspect? When do they have a kind of suspect motivation? And a suspect motivation is changing it to get around a real constitutional right.

[Dan Epps]

Yeah. And that's going to lead me to a question I had for you about Walford that we can get to in a minute.

[Will Bode]

Shall we break these cases apart and if so, which case should we talk about first?

[Dan Epps]

Yes, I mean, Walford's the bigger one. Maybe we should do that one and then we can do a little bit of comparison to Peng after that.

[Will Bode]

So Walford we already previewed.

[Dan Epps]

Yeah. Go back and listen to that episode whenever it was.

[Will Bode]

Probably most listeners are already familiar with the core of it, but the core of it is that four years ago in Bruen, the Supreme Court clearly held that you have a right to carry handguns around outside the home for self defense. This prompted Hawaii and several other states to try to figure out what to do about the fact that people were suddenly going to carry handguns around in Hawaii for the first time. And so they passed a property law saying you can't carry guns onto property even when it's ordinarily open to the public, without the sort of express permission of the owner, not necessarily in writing, but some kind of express permission of the owner.

[Dan Epps]

And prior to this point, and I think everybody agrees that even if a premises is open to the public, if the owner puts up a sign that says, hey, everybody can come shop here, but no guns, they're allowed to do that. Right.

[Will Bode]

Everybody agrees you can do that if it's explicit.

[Dan Epps]

Explicit non consent.

[Will Bode]

The default rule is when you open things to the public, you can then have sort of implied reservations. Right?

[Dan Epps]

Yeah. And so this is flipping the default, as came up at Royal argument, but

[Will Bode]

flipping the default just for guns. Right. It's still the case that you open your property to the public, you can presumptively There are also other things that I could expressly limit. I could say no hats, no shirts, no shoes, no service. And it's not flipping the default for any of those things. Many people in Hawaii, I think, would still like to go to various places without a shirt or without shoes. And that's okay. You don't need to get the express permission of the owner to not have a shirt or not have shoes.

[Dan Epps]

That's probably right. Yeah. I mean, in Hawaii, it's warm, it's tropical. I assume there's lots of more places you can go there without shirts and shoes than there are in Illinois or Missouri.

[Will Bode]

Yeah, it's chill.

[Dan Epps]

Okay. So I find this case really interesting, and it's very hard to know

[Will Bode]

how

[Dan Epps]

to approach it conceptually. And so the Bruin test has a few steps, right? What are those steps?

[Will Bode]

I hate this. Okay. The Bruin test has two steps, as I understand it. Step one is, is this telling you you can't keep bare arms, which is a kind of broad textualist frame. Are you in the right? And then step two, once you're in the right, you have a more nuanced historical question, which is, is this regulation consistent with our tradition of regulation? And I think, again, the Court thinks of this as like its free speech test. And many of my colleagues who teach and love free speech law will deny this is how free speech law works. But the Court thinks of this as in the free speech context. Step one is this speech, which is a pretty broad frame, and a lot of things are speech. And then step two is, okay, if it's speech, then we ask, is this regulation in one of the historically permitted categories of regulation, et cetera?

[Dan Epps]

Yeah. Okay. And then there's this question that comes up in this case about when does history come in? Right. I think some history comes in at step one. Right. Because at least you have to figure out whether the thing is unarmed.

[Will Bode]

I don't think Justice Barrett agrees with that.

[Dan Epps]

Don't you at least have to figure out whether a stun gun is a firearm at the first step?

[Will Bode]

You do have to figure out whether it's a stun gun. And even just a spare degree sister is relevant at the first step? So, okay, so I'll give you that. But the idea is, because I don't

[Dan Epps]

think it's just like, literally, you look at the text, I think there's a little. You have to read those words in context. But I don't think you. Then you don't. At the first step, you don't then go, do A bunch of historical analysis of laws in 1791 or 1868.

[Will Bode]

Right. Yeah. And it's a little confusing. So possession of nuclear weapons. Right.

[Dan Epps]

On page two of the buried opinion, she says we look to history that elucidates how contemporaries understood the text. So you figure out what those words mean.

[Will Bode]

Right. Although if what we know is nobody thought that bans on cannons or nuclear weapons were a problem, we might not have enough historical information to know they were not a problem because nuclear weapons were not arms, or they were not a problem because nuclear weapons were obviously something you'd regulate.

[Dan Epps]

Yeah. So maybe you err in favor of proceeding to the second step.

[Will Bode]

I'm not sure, but. So I think fight one is fight one in the case scissor between the majority and the dissent is should we even think of this as a regulation of bearing arms or not?

[Dan Epps]

Yeah. Can we describe that as a step zero?

[Will Bode]

Well, I think the dissent might want to say it's a step zero dispute. This is not even a Second Amendment case. It's a property case. But the majority thinks it has to be a step one case, because the question is, is it a Second Amendment case, which is to say, does it restrict the right to bear arms? So maybe there's a step meta00 prime about whether or not you have a step zero or a step one? The scope of step one.

[Dan Epps]

Yeah.

[Will Bode]

And I find that whole dispute very strange.

[Dan Epps]

Why?

[Will Bode]

Well, I mean, it comes up in other constitutional rights too, that you have something that is informal regulation of one body of law, but with special treatment of some constitutional right. Again, this happens in the First Amendment all the time. We say corporations can take any lawful act they want to. Oh, except they can't make campaign contributions or campaign expenditures. And then some people say, oh, that's not a free speech law. This is a corporation's law. Other people say, no, no, it's not a corporation's law. It's a free speech law. And I don't know if there's an answer to that question.

[Dan Epps]

Yeah. Although, I mean, it's interesting because I think it is common ground that there is no right to bear arms on private property without consent. I mean, then there's a separate question about how do you define consent and what's the default right?

[Will Bode]

Well, right.

[Dan Epps]

So I think it's right that you do not. Okay. There's at least common ground. I mean, I don't think there's common ground among all the Second Amendment folks. I think there is going to be a push. The next step will be, you can't even ban them with express non consent. But that if at least there's for purposes of this case, I think there's common ground that there is no right to bear arms on private property with

[Will Bode]

when you have been told I think no right might be a little bit confusing. Yes. In the sense that a property owner has the right to exclude you because of your gun, has the right to say no guns and take that gun out of my house. If it was truly no right. There's no Second Amendment scrutiny. Imagine we said that for the First Amendment. So it's similar in the First Amendment context. There's no right to go into somebody's living room and speak if it's not your living room. But if the state passed a special trespass law that said, in general, if you disobey the host's requests when you're somewhere he can kick you out or whatever, the normal remedies apply. But if you disobey the host's requests with respect to political speech about Donald Trump, then the death penalty or life in prison, we might still say, well, even though there's no right to do it at all, the selective targeting of it could still violate free speech. So similarly, even though there's no right to carry a gun on private property without the owner's permission, lots of states like Chicago and Illinois have a law that say to make it a crime, a different kind of crime from ordinary trespass to carry a gun onto property without the owner's permission. And it's not obvious. I mean, this might be constitutional, but it's not obvious. That's because they don't infringe the constitutional right at all. Again, they're saying that this form of trespass, trespass with a constitutional right, is a crime in a way that trespasses without not wearing shoes or not wearing a shirt isn't a crime usually.

[Dan Epps]

Okay, I think this leads me to a question that I think something you said set up a minute ago, which is, is the problem here going to be the change? There is sort of a dispute about this. But imagine that we have Hawaii had had a different background. In fact, Hawaii has had just a very long tradition of just totally banning firearms, which kind of means that this property question didn't really have to come up. But imagine that Hawaii had a long tradition of some limited right to concealed carry, but also had a long tradition that it required express consent. Would that law, now that law, if that had been a bedrock property law principle for however long Hawaii has been admitted to the union, would that Be unconstitutional now or is it only the change?

[Will Bode]

I think that would also be a problem because I think the Court also thinks that the Second Amendment protects a, as the Court puts it in page 18, the general understanding of that codified right. So an outlier legal rule adopted in a few locales is not enough. Imagine that the other 49 states have always had the traditional rule and Hawaii has always had the opposite rule. Because Hawaii is weird and because the spirit of aloha moved them or whatever, I think the Court would say tough. The Second Amendment means the same thing in Hawaii, it means everywhere else. And so you have to assess that rule as if it were enacted anywhere else. I'm not saying I agree with that, but that seems to be the way the Court thinks about it.

[Dan Epps]

So in that case, it would clearly just. The Second Amendment overrides local property law.

[Will Bode]

Yeah. Now if you imagine it's not just Hawaii, if you imagine that the country was split into two major traditions, the tradition of people who believed more strongly in guns than in property and the tradition of people who believed more strongly in property than guns, maybe that mapped into urban, rural, maybe that mapped onto something else then. And if that had always been true, then I think the Court would say our history and tradition does not require one or the other. They would say the history and tradition allows either of those things. And there are some things like this, by the way, like in the 19th century, Judd Campbell has an article about this, sort of trying to chart various gun regulations and suggesting there are some places where there just clearly was a Southern tradition and a northern tradition, which were different and were each sort of constitutionally motivated and sincere. But they just were two rival traditions, both of which had some pretty solid status with respect to, I don't know, concealment or I forgot what the issues were. So you could imagine that being true for some things. But that said, the majority does begin kind of by throwing a shade on the change a little bit. Yeah, the setup to the opinion is like we had Bruen and then the small number of states we said in Bruen were being bad. After Bruin, Hawaii and four other states singled out in Bruin flipped the default rule. California, Hawaii, Maryland, New Jersey and New York, the Bruin 5. And they say, look, Hawaii enacted a bunch of laws and they list all the. Another thing Hawaii did is have a very large category of so called sensitive places, which are places you can't carry a gun even with the owner's consent, which includes every hospital, every place at which medical or health services are customarily provided, every restaurant that serves alcohol, schools, beaches, playgrounds, fairs, water parks, every public gathering, public assembly or special event, and then the launch of this one. They don't say the first thing is bad, but they sure imply that that list is very long and broad and problematic, even though it's not formally part of the analysis.

[Dan Epps]

Okay, so let's try to break this down efficiently. So that's the majority, right, Justice Alito. And a lot of the opinion is going to be about this historical analog question, and the answer is going to be there are some laws that Hawaii pointed to to try to justify what it did here. And the Court is going to conclude that those historical analogs are inadequate for a couple of reasons. So some seem to be primarily about poaching, hunting. And so that presented certain risks that I guess are different from what Hawaii was trying to do here in the Court's estimation. And then there were these laws like Louisiana's that were implemented as part of the Black Codes, designed to oppress newly freed slaves in the wake of the Civil War that limited their ability to bear arms on other property. And so the Court is going to basically say it's almost laughable to even rely on the laws in that second category. It's going to say, yeah,

[Will Bode]

I'm not sure it's wrong about those things, but both of them are a little weird in that the first point. So these laws, it's not clear on their face that these laws that are anti poaching laws or anti closed lands laws are so limited, some of them sure look like the Hawaii law. Now, again, I think maybe the Court is doing a nuanced historical analysis and figuring out what the laws are really about. Although I'm sure that most PhD equipped historians would disagree with the Court for good reasons or bad reasons. And maybe these laws were enacted not in the era of textualism, but in the era of the mischief rule. And so you can't really understand what they do without understanding why they're doing it. But it does drive home how tricky the analog thing is. If even when you find a law that looks just like the law you want to enact, then you're told, oh, well, that one doesn't count because it was about deer, the blackcoat thing. I mean, obviously it's like an unwritten rule of, or now written rule of sprinkle practice that you don't want to be coming in here and saying, what we're doing is okay because it's like the Black Codes.

[Dan Epps]

But yeah, it's a very awkward position.

[Will Bode]

You might have thought that the core problem with the black codes was that they applied to black people, that it was the inequality that was the problem, not that the things they did would be unconstitutional on other grounds if they were applied to everybody.

[Dan Epps]

Yeah, and I think that this is a point that Justice Jackson makes her indecent, which I actually thought was a good point. I think it could have been distilled a little bit more cleanly. But basically I think what she's saying is, well, what's the problem with those laws? Would they have been understood at the time to be inconsistent with our tradition of gun regulation? Or would at the time it had been thought, of course we can do this with respect to firearms if we want to, but we're only choosing to exercise our legislative discretion to apply this to black people. In which case the problem is not. It actually is maybe relevant evidence on the second Amendment question, but problematic under the equal protection clause.

[Will Bode]

And now who do you think is right about that?

[Dan Epps]

I really don't know. I really don't know. I think it's quite plausible that it's the second thing that maybe there would have been some understanding that of course trespass law is a state law matter and that can be tweaked as needed.

[Will Bode]

So I'm sympathetic to the majority on this in that as I understand the basic sort of run of show, the 14th Amendment is adopted to constitutionalize the Civil Rights act, which is adopted to stop the black codes. And the way the 40Amendment was supposed to do this was mostly the privileges of immunities clause. Most of the thing that was supposed to make the black coats unconstitutional was the guarantee that all citizens had privileges immunities rather than the equal protection clause, the due process clause. And this is disputed, but that's a conscious choice. But the frame is the 14th amendment to adopt a kind of race neutral set of rights and liberties rather than other tactics you might take. But then when you got into how the privileges of Munich clause was going to work and how they were going to decide what counted as an abridgement of the 14th amendment, then maybe race came in again after all because people agreed. Well, of course you can regulate rights, you just can't regulate them unreasonably or abridge them or do things that are not in the police power. And so then maybe Justice Jackson's right after all. But maybe only at step it does make me think these things do kind of go to this step 2 Reasonableness of regulation question. And yeah, then it's just not obvious to me whether Assuming we all agree that the Black Code, the Louisiana Black Code, is an unreasonable regulation of the rights of African Americans, there might be multiple features that made it unreasonable. That it took away one of their core natural rights and that it did so without taking away the core natural rights of white people. I find that hard.

[Dan Epps]

Yeah. And so it's interesting. It's a very kind of strident dissent by Justice Jackson, really calling out the entire Bruin project and saying it is very kind of malleable and gives the court license to kind of strike down gun laws when it wants to. I think that maybe lands a little bit. I mean, I think that I come away from reading opinions like this and Amani and Rahimi and I just, like we talked about this a little bit last time, but like, this is nowhere near algorithmic. And I think that there's a lot

[Will Bode]

of hard

[Dan Epps]

value laden questions that have no clear answers about this level of generality question. When you say there's this old law, it's like this law today for this reason, or it's not like this law

[Will Bode]

today,

[Dan Epps]

do you look at the specific reason that the law was enacted or the more general reason? I don't know.

[Will Bode]

So look, the majority agrees with you. So one of my favorite parts is on page nine where Justice Alito says application of step two of the Bruin framework called for a more difficult exercise of judgment. And then they note that in Rahimi, Justice Thomas and the majority came out to different conclusions. And they say that fact, the fact that dissent applied the same test but came to the opposite conclusion, exhibits how Heller's history based methodology, true to the warning contained in that groundbreaking decision, is not mechanical. So I think everybody's on the same page that it's not mechanical.

[Dan Epps]

Yeah. But the question, I guess is how not mechanical?

[Will Bode]

I think how well, and just whether the court is doing it. Well, it's fine, I think, to have law that's not mechanical. And then you want to know, okay, well, if it's not mechanical, presumably it's animal, and if it's animal, what kind of animal is it? And it could be that it's not mechanical, but the court's judgments are kind of reasonable and correct, or at least reasonable and defensible. And the other would also be defensible. The one thing that I don't love or the one thing, I mean, my sense of the 19th century Cased law like this that they're drawing upon, and this is something Robert Leiter and I have written about in our general law in the right to keeping barms article that I wrote about a little bit in a second piece by Rahimi is that indeed the law is not malleable, but the law in the 9th century just had some balancing to it. Like part of the question they asked was, what's the extent of the restriction on the right and what are the reasons for it? And are the reasons sufficiently good? And that's like the one thing that Bruen says you're never supposed to do and the court still says you're not supposed to do, but it looks like they're coming increasingly close to doing it

[Dan Epps]

in choosing how to draw the animals.

[Will Bode]

Yeah, I mean, the court thinks that these law, like the law on Hamoni and the law here are both overly broad, not serving a not sufficiently tethered to a reasonable purpose in light of how broad they are. And Justice League even has a kind of long poor Joshua type hypothetical about a woman who needs a stun gun to defend herself. Jamie Cayetano, a young Boston woman who came up in Cayetano versus Massachusetts. And what would happen if she were trying to shop for groceries.

[Dan Epps]

I had forgotten about this case. It was a little summary reversal. Yeah.

[Will Bode]

You can never forget this case. This is the other unanimous second Amendment case, or at least possibly unanimous. Some reversals we don't know for sure. And it seems like that's what's driving it. That's not totally unreasonable. It is the kind of balancing that the same justices purport to condemn here and elsewhere. So it's a little awkward.

[Dan Epps]

Yeah. Did you also notice that in Justice Jackson's dissent, she kind of calls out Alito a little bit for what he said in his dissent in Ramos vs. Louisiana, which is the Krimpro case from six years ago about non unanimous juries.

[Will Bode]

Oh, I think I remember this.

[Dan Epps]

So in that case, one of the things that the majority by Justice Gorsuch harped on was that this is actually Louisiana again. The Louisiana law that had allowed for non unanimous juries had clearly racist motivations. It was passed in the wake of the Civil War, designed to make it less likely that even if you ended up with black jurors that they would have any power. And it kind of makes a big deal about that. And that made Alito very mad. He leads off his dissent by saying this has nothing to do with anything. It's totally not relevant. It's not the same exact thing. It's not a perfect gotcha. But before I even got to the Jackson dissent, that was the first thing I thought of when I got to the majority's discussion of the Black Code.

[Will Bode]

Yeah, well, maybe Alita's just following precedent,

[Dan Epps]

the precedent of his in Ramos.

[Will Bode]

He lost on the question of whether or not you should consider the racist origins of regulations of Bill of Rights. He lost. And so that's possible. No, I've. Yeah.

[Dan Epps]

Okay, so then we should get to our other case, but should we just talk about the kind of other separate opinions? Is there anything else you want to say? So we have a Barrett concurrence that is 14 pages. So it's a meaty concurrence. It's not a concurrence in the judgment. She's fully on board. And Justice Thomas and Justice Gorsuch join for a small part of it. What do you think she's trying to accomplish there?

[Will Bode]

Well, as usual, I think she is actually imposing a. She's trying to explain what's going on in a more conceptual way and maybe a more rigorous way. And so I think she's. I mean, she's trying to say, look, what these analogs show is that you can flip the default rule if you have a good reason, if you have a problem, and if you'd flip it sort of as the places where the reason obtains. And so with the possible exception in New Jersey, what they did was they flipped the default rule with respect to a certain category of property where there was a certain problem, and here they're doing something much broader, and that makes it different. And this picks up something she was asking at oral argument, which was like, suppose you had a rash of armed robberies at gas stations. Could they flip the default world at gas stations? And I think she thinks the answer is yes, even though.

[Dan Epps]

Yeah. Not clear that the others think that.

[Will Bode]

Not clear that the others think that. Not clear that the lawyer for the petitioners thought that. But what she doesn't think is just because you had armed robberies at gas stations, you could flip the default roll for everybody. And that's, again, a kind of reasonableness, scope, type inquiry. That makes sense to me, but. But it's not very mechanical, as you say.

[Dan Epps]

Yeah. So, yeah, I think we'd look. I guess we'd kind of look at. Is the thing that was motivating this flipping of the default rule for this category kind of sufficiently bad in the same way that all these harms caused by the poachers or whatever were. So, yeah, maybe it leaves some flexibility with Hawaii if they want to kind of come back with something more targeted.

[Will Bode]

But what I like about her spin on this, which Is the other thing I was going to say, I find a little missing from some of the majority type analysis is just a little bit more of an explanation to explain why these things are going on. Because one way to do history and tradition is it's kind of mechanical, but not mechanical. You look for an analogy and then you just stack up the two analogies and ask yourself, are they sufficiently close? And because it's not mechanical, you just squint at it and be like, I don't know, does this feel like that? And I do think that's kind of empty. And so I think she has been the most devoted to kind of trying to emphasize what you do with the analogies is try to get something out of them, like a principle. And so we said she was one of the first court appeals judges to say, like one of the core principles of these histories, that you can take guns away from people who are dangerous. And that's like what a lot of the analogies go to show. And that was what led the court to Rahimi. It was like, if you're dangerous, you can take some of these guns away. If you specifically are dangerous, there's some reason to think you're dangerous. And then the question is, what else do we have? Okay, so not just you're dangerous, but these are dangerous places or dangerous situations is what she gets out of the poaching examples. And I like that because then actually with the First Amendment, the doctrine kind of developed to give you some telos. The thing we're worried about is the government picking and choosing views, especially on topics adjacent to politics and a lot of rules. But that's the thing they're ultimately looking for. And I think that ultimately helps a lot if you know what you're trying to do.

[Dan Epps]

Yeah. And then Justice Kagan, interestingly, does not want to say a lot. She doesn't join it formally, but she sort of says, I would uphold the challenge to Hawaii law because as Justice Jackson shows in part three of her opinion, it is a modern day analog of colonial and founding era laws applying to hunting. And then she says she doesn't want to get into the Bruin step. One thing, I guess any of the questions about is this really property? And she doesn't want to resolve the Black Code question.

[Will Bode]

So is this just minimalism or is this A minimalism? B, Jackson descent exhaustion, like she's just doing too much. Or C, I guess it seems like also in Hamioni, Justice Kagan is going out of her way more not to kick Bruin Justice Kagan is going out of her way to at least purport to be applying Bruin and not complain about applying Bruin and not say it's hard to apply. And Justice Jackson spends a lot more time being against the enterprise.

[Dan Epps]

Mm. That may be. I mean, it may be part of a larger project just to try to do her best to build bridges and play a little bit nicer with the majority. I mean, I know that that's something that's been reported that she's more of someone who's trying really hard to build bridges and avoid, even if she can't change the outcomes, but maybe reign in, rein things in. I mean, I notice that she. She was in the majority in Monsanto, which is, I think, a case that maybe Lane's conservative oligarch Sotomayor was there, too. I haven't seen the stats, but I think she's probably voting with the conservatives more than the other two.

[Will Bode]

I think of playing nicely as one aspect, but this is also just maybe more led to the stare decisis thing. It's like, I think Justice Kagan, you know, wants to be part of the legal enterprise. Like, that's not to say she won't try to overturn cases she disagrees with, as we've talked about, but that. But that, you know, for the most part, she's a lawyer's lawyer, and so if ruins the law, she's just going to treat it as law rather than complain about it.

[Dan Epps]

Yeah. Okay. Anything else to say about that before we, I think, just briefly talk about Pong?

[Will Bode]

One thing to say is just that, you know, notice the court explicitly called out and rejected the aloha spirit. As we've talked about, there is this principle of state constitutional interpretation in Hawaii about the spirit, how the Hawaii Constitution has to be interpreted in keeping with the spirit of aloha. And of course, explaining why there's one rule the court says the Second Amendment cannot give way to the spirit of aloha in Hawaii. Contrast, State vs. Wilson, this spirit of law case where I think the court denied cert earlier. So I take it that's an intentional choice to say the Supreme Court, the federal Constitution, does not have the spirit of aloha, even if the Hawaii Constitution does, alas.

[Dan Epps]

Okay, so Peng, I think we already sort of set up the question in Peng, and it's a little bit, I'd say, less of a barn burner, a little bit more of a secondary case. And we're only really. We might have gotten to it eventually this summer, but the only reason to talk about it now, I think is because of that interesting conceptual connection that I think people are not necessarily going to have front of mind, but not as divisive. It's a Melito opinion joined by the Chief, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett and Jackson, and then joined in large part by Justice Thomas.

[Will Bode]

Okay, so isn't the majority obviously right? Because all the Constitution requires is just compensation. And the idea that that's fair market value on Zillow is a useful gloss or proxy a lot of the time. But if it's a fair tax sale of the kind we normally use, why isn't that just compensation?

[Dan Epps]

Yeah, I certainly thought that had to be the right answer. Because this is a process that jurisdictions all over the country use and have used forever. And then suddenly if we say you have to get the actual realtor price for this property, it would totally cripple tax collection. It just have a lot of pernicious consequences. I wasn't totally clear why it got granted. Seemed like a clearly right answer to me. It sort of was coming on the wake of this case, Tyler vs. Hennepin county we talked about a couple years ago, which is about if they do one of these sales, do they have to give you the surplus money? If you owe $10,000, they seize the house, sell it for $100,000. Do they get to keep 90,000? No, they have to give it to you. But do they have to then give you another 100,000 that you would have gotten if you'd put the house in

[Will Bode]

the market right now? It is a little weird in that if this is allowed, can you do this for other kinds of takings? Maybe this wouldn't come up. But if they take my house under kilo, they can take my house for general economic development. Can they take my house just because they want the cash and then sell it a tax sale and then give me only the proceeds from the tax sale, just a normal eminent domain. That seems weird. Maybe there's no reason for them to do that because then they wouldn't get anything from it. All they would have is that I would no longer have my house. Although again, if Trump learned about this and just wanted to start tax selling people's houses because he didn't like them and wanted to serve the public, or

[Dan Epps]

unless they could do a tax sale and then have a state instrumentality buy

[Will Bode]

it, I don't understand well enough why it is tax sales systematically underperform.

[Dan Epps]

Yeah, I think it's a combination of reasons. I think one Is you need to have the cash on. I think you can't get financing. I think the way they normally happen is tax sale. You have to bring the cash tomorrow to redeem. And I think they also they carry significant concerns that the homeowner has damaged the property. Often people can't get inside the property to see it or that the homeowner is going to be problematic, carry litigation, risk, all sorts of things like that.

[Will Bode]

So maybe the more interesting challenge is is it unconstitutional for tax sales not to allow financing? Or to the extent that I, the ex owner wanted to let people in to do a pre tax sale showing to boost the price, should I be allowed to do that? Now if it's just the adverse selection thing, it turns out that any given piece of property has a chance of being really problematic and so there's a kind of discount by the risk. Then maybe that's actually true at the fair market value too. Maybe I would say, oh look, the fair market value is X, but the fair market value is really only 90% of X because the market also prices and the risk that I've peed on the floors or whatever. Now the one other thing if you pause is that Justice Thomas has this long separate opinion where he starts citing various principles with the 19th century law of tax sales, including that the government had to try to sell the taxpayer's personal property before it could take his real property. And American foreclosure law and coolie used to have this rule. And so we need to bring that in. That's interesting. That gave me some pause.

[Dan Epps]

Yeah.

[Will Bode]

On Twitter, David Schleicher, Yale law professor and property law scholar, says that this is just because Justice Thomas has totally missed a transformation in the law of state and local taxation. That it used to be that personal property was taxed by a property tax regularly. It was part of the tax base. These were not land taxes. They were sort of quasi wealth taxes. And so in that world where your personal property was also a core part of the tax base, we moved on your personal property first before your interesting. But it's because their property taxes were not the same as our property taxes. It's like all property taxes versus real property taxes. And that this transformation of the tax base of course transforms the. Now it would be a little more confusing. What even is the authority of the Michigan township to say you didn't pay your property taxes, but instead of foreclosing on your house, we're going to come take your car. So I don't know if that's right or I don't know anything about this really, but I thought it was interesting.

[Dan Epps]

Yeah. And it's an interesting opinion. And I think that the majority opinion does contemplate that there have to be some fairness backstop. Right. You can't just be any auction. It has to comply with some minimal standard of fairness not fully defined. But the Justice Thomas opinion seems to say maybe there's a lot more content here. There's a lot of ways we have to make sure that these auctions are really complying with fairness in ways that would affect the amount of money that the homeowner gets and various things like notice. And interestingly, there is also a shorter one paragraph separate opinion by Justice Sotomayor, joined by Justices Gorsuch and Jackson who just says, look, the majority opinion doesn't say what counts as a fair auction and this is preserved. Please lower court deal with it on remand in the Sixth Circuit. Okay. Well, as is always the case, we could spend many more hours talking about the nuances of these issues, but we will have more episodes in the near term.

[Will Bode]

I hope so.

[Dan Epps]

Well, thank you very much for listening. Please rate and review the podcast. Wherever you get your podcasts, Visit our website dividedargument.com for transcripts, blog.dividedargument.com for commentary from friends and US store.dividedargument.com for merchandise. Send us an email pot. You can leave us a voice message through a link at our website or the old fashioned way by calling 314-649-3790.

[Will Bode]

Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your support.

[Dan Epps]

And if there's a long delay before our next episode, which we have already promised, there will not be, but if there is, it will be because we're off in Hawaii enjoying our newfound freedom. Aloha. The case was submitted.