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- [00:00]
Michael Popak
Sometimes the United States Supreme Court can't count to 5. They can only count to 4. They can only count to 4. They can't make bad law concerning gun rights. We got two cases on today's list for the Supreme Court in which the Supreme Court has allowed a ban on AR15 and other long assault rifles in states like Maryland and across the country as consistent with the Second Amendment but with a huge asterisk. There's. And similarly, they are allowing a ban in Rhode island and therefore in other states on high capacity magazines which feed the bullets into the weapon at a high rate of speed. Both of those things, for now, do not appear the way those cases have been developed to violate not only the Second Amendment on the language of the Second Amendment, but as reinterpreted by this United States Supreme Court through a decision by justice alito back in 2022. We call the BRU decision, which says in order to have these bans survive constitutional analysis, there has to be a historical analog, a historical tradition of banning these types of weapons going back to the old timey times. And we have in the dissents and in the statements by Kavanaugh, by Thomas in the Maryland case, we know what they're going to do in the next year or two in these cases. So don't be surprised if I come back with a hot take. And I tell you a year from now that they are not going to allow an AR15 ban and they're going to find that it's inconsistent with the Second Amendment. But for now, procedurally, they're not finding that. Confused. You won't be at the end of my hot take. I'm Michael Popak. You're on the Midas Touch Network and on Legal af. Let's get into these, these cases. The Supreme Court is trying to wrap things up here at the end of the month. This has been a long term for everybody. It started in the first Monday of October and goes until they issue their last decision at the end of this month. Of course, the other asterisk there is that they're doing emergency applications, like every day. They're popping them like Tic Tacs and we're going to have hearings, potentially oral arguments, potentially, and certainly rulings throughout the summer. But this is what they've decided to do on two controversial cases which the gun lobby and gun enthusiasts and people like Donald Trump are who, who love guns without restriction are lamenting. Maryland's assault weapon ban went up to the 4th Circuit Court of Appeals. It bans AR15. It was passed originally in the wake of the Sandy Hook disaster, elementary school massacre of children and teachers, small children and teachers. You'd think there'd be public sentiment to support this. And so Maryland instituted an assault weapon ban primarily focused on the AR15. The problem with the AR15 in America is that it's proliferated. It is like the number one long arm that people have in their homes. But according to both the Maryland courts, Maryland federal courts, and Rhode island federal courts and others, they are very similar to military grade weaponry like the M16. And if they are military grade weaponry or something like it, then they shouldn't be allowed, you know, a citizen should not be allowed to bear them. They're not bearable. I mean, they're unbearable for sure. But that's one of the tests. Is this something that is bearable? People can bear these arms. Just because we've allowed them to proliferate doesn't mean they're consistent with the Second Amendment. And those two federal courts have said, nah, those are military grade and those are outside the protections of the Second Amendment. Even as reinterpreted by the Supreme Court in 2022 in that Bruin decision. Because we looked at the historical antecedents and the historical precedent here, and we think people in the late 1700s, early 1800s would have banned these things as well, of course, Alito, Thomas and Gorsuch. And in his own way, Kavanaugh rejected that. That's why I said they can't count the five. These two rulings, at least for now, indicate that Roberts, Chief Justice Roberts and Amy Coney Barrett have slid over to. As we have said, they are the center, center right, center right, right of this court and they help make the law. Because if they join with the three on the moderate wing, the Democratic appointed justices, they'll form a bloc, a voting bloc of five, and things will go their way. And that's what we just had, effectively five to four. Now on the five to four, let's talk about the decision. This means for now, what came up from Maryland, what came up from Rhode island is currently the law of the land. States can have on their books, bans on large capacity magazines and bans on AR15. But Kavanaugh pointed out, here's the big asterisk that there are cases percolating in other courts below that will reach the United States Supreme Court. He said maybe this coming term, opening in October or the following term. And he thinks at that point that a case will be ripe to present to the court the sole issue of whether something like an AR15 is protected by the Second Amendment as a right to bear a personal right of an individual in their home, not a military right. Or is it something that's outside the protections of the Second Amendment? It wasn't squarely addressed in these particular cases. Let me read to you from the decision by Kavanaugh or the his statement before I get to the dissent by Thomas this is all about the AR15 this allergy season.
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Michael Popak
That's B E E K E E.
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- [07:35]
Michael Popak
Code legalaf here's what Kavanaugh had to say. He starts with In District of Columbia vs. Heller, this court ruled that the Second Amendment must be interpreted in light of constitutional text, history and tradition. That was then carried on in Bruin in 2022. This case, Kavanaugh writes, primarily concerns Maryland's ban on the AR15, a semiautomatic rifle. Americans today possess an estimated 20 to 30 million AR15. That's a staggering number, folks. And AR15s are legal in 41 of the 50 states, meaning that the states such as Maryland that prohibit AR15s are something of an outlier Given that millions of Americans own AR15s and that a significant majority of states allow them, the petitioners have a strong argument that AR15s are in common use by law abiding citizens and therefore are protected by the Second Amendment under Heller. In short, Kavanaugh says he expects in the next term or two, he says additional petitions, appeals below will likely be before this court shortly. And in my view, this court should and presumably will address the AR15 issue soon. Tom Thomas goes further. He's the author of the tremendous expansion of Second Amendment rights in 2022. And he just says basically everybody has the right to bear arms. It's a personal right. And he thinks that the other five people on the court have misinterpreted his ruling in Bruen. And because they're so popular, they should remain available to Americans. Despite the tremendous human toll that AR15 take. It is always something like an AR15 generally that is used at a mass shooting. At a school shooting in Las Vegas, it was another form of a bump stock attached to a long rifle, creating an automatic weapon, if you will. That is, these are the killing machines of people that want to take out mass casualties and kill children. But the Republicans don't care about it. The fourth Circuit Court of Appeals that this case is based on, or the appeal that came up from it, was 10 to 5. Yes, they supported the ban, but 5, 5 Republicans, many of them Trumpers, voted against it. That's why this appointment of federal judges by Donald Trump that we're now watching on full display is so important because you can see the rulings that they're making. What happens next? This will end it for this term. States, there's about nine or 10 of them, maybe a few more that will enact it, that will try for an assault weapons ban and cite to these cases. But they do so at their own risk and their own peril because Kavanaugh has signaled that as soon as a better case to decide the AR15 issue and whether it's consistent with the Second Amendment comes up, he's going to vote against it. Question is, is Roberts and Amy Coney Barrett going to slide over and join them? They only need one more vote and then I think, folks, we're going to see AR15 being declared by this Supreme Court a year or two from now as being consistent with Second Amendment rights. And that is ultimately very scary. In the meantime, large capacity weapons and large capacity magazines can also be banned, subject to future rulings of this court. Having expanded and opened the Pandora's box in 2022 I don't think let me manage expectations. This case should be these two cases should be seen as putting the genie back in the bottle, putting Pandora back in the box. It's not. It's just delaying the inevitable, which we'll cover here at the intersection of Law and Politics on the Midas Touch Network. I'm Michael Popak. Wednesdays and Saturdays at 8:00pm Eastern Time, join me for Legal AF the Podcast. We are the number one law and politics podcast on YouTube podcast rankings in their new rankings and that is a testament to your loyal support. Come on over to Legal AF, the YouTube channel Legal a FMTN where I've got about a dozen contributors, several podcasts you're going to love in collaboration with the Midas Touch Network, legal A FMTN Subscribe Help us get to our 700,000 Plateau in the next month and then legal AF the substack where I'll be posting this particular order for you on Legal AF Substack. So until my next report, I'm Michael Pop. Can't get your fill of Legal af. Me neither. That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including including a daily roundup that I do called Wait for It Morning af. What else? All the other contributors from Legal AF are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on Substack Come over now to free subscribe.
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