Speaking of pretty good cases, here's a guy who knows one that Tim the lawyer Sander for Tim's the vice president for litigation for the Goldwater Institute, longtime a friend of the Armstrong and Getty Show, and one of the great explainers of the complex that we've ever run into. Tim. How are you, sir? I'm great? How are you guys good?
Who do you like in the Bengals Rams matchup? I heard there was some football game yesterday several you're you're famously, for our listeners, not a sports fan, but you do. You do have the same sentiments about the Olympics that it's crazy that it's happening. I know it's it's crazy, and it's it's immoral that that the United States would would have anything to do with an institution that has become a favorite playground for totalitarian dictatorships. Yeah, I would agree,
I would agree. So, uh, there was news last week about a significant Second Amendment decision. I will let you lay it out because you can do it better than me. Um. And then if you're not a big fan of litigation, you might be interested to hear that one of the Joe just laid a verbal whooping down on on the court as a whole. At least that's the way I read it. But Tim, what are the basics? First? Yeah, that's all right. That that was really spectacular. So this
is a case from California. It was decided by the Ninth Circuit Court of Appeals on the question of whether the COVID shutdowns of guns stores violated the Second Amendment. So the Ventura count did, is there any other discussion that? And that is what the what the court said remarkably enough, So the Ventura County imposed these these shutdowns of various businesses, and if they were kind of discriminatory, they allowed, for example, bike stores to remain open shut down, but shut down
gun stores. Now, I'll add a footnote here to say that the Arizona constant or the Arizona law, is different from California, and this and that Arizona law expressly forbids the shutting down of a gun store under circumstances like this, because we take our our Second Amendment right very seriously in my home state, but in California they don't. And so the question that the court addressed was whether that
violated the Second Amendment. The court said yes, But what was really remarkable was that one of the judges, Judge Van Dyke, wrote a separate opinion where he said, look, I expect that I'm going to be overruled on this by my other fellow judges on the Ninth Circuit, and here's what they're going to say, and here's why it's wrong. And it's really quite quite a uh an angry sarcastic opinion. Oh wait a minute, angry sarcasm. Now you're working my side of the street. Can you give us some of
the basics of what he said to his brethren. So what happens is when the when the Court of Appeals decides the case, it's three judges who hear an appeal and they decide that appeal, and then if you're one of if you lost that appeal, you can ask for what they call on bank rehearing, which is where all of the judges on the circuit will review the case and hear it all over again and correct the three
judge panel if they think they were wrong. And so what Judge Van Dyke said is I expect that that's what's going to happen to me because I've enforced the Second Amendment and I know that my fellow judges in the Ninth Circuit don't take the Second Amendment seriously. So I expect that they're going to overrule me, and here's what they're going to say. And he wrote a fake opinion that was like a draft of what he expects
they will say when they overrule him. And the reason he did that was to show that the Ninth Circuits precedent when it comes to the Second Amendment is so vague, so meaningless, so malleable, that it can basically come up with any conclusion you want, and so that the odds are stacked against people who want to exercise their constitutional right to defend themselves. So he wrote this fake opinion.
He said, here's what they're gonna say, and then he added footnotes in the opinion that says, so he you know these we use these words as if they say means something, but they actually don't. We're just making this stuff up as we go along. And it's written in this very sarcastic tone that is quite refreshing for those of us who agree with him that the Ninth Circuit does not take Second Amendment rights seriously. Well, my understanding of his blast was saying that the Ninth Circuit decides
case by case. In this case, the Second Endment is okay. In this case, I don't like it and it doesn't yield the result I would like. And so no, no, you don't get the results in this case, treating it like it's not a constitutional right at all, but like watching football, it's a hobby. Yeah. So for here's a good example. So he goes through in his fake opinion that he expects his just his fellow judges to issue.
He lists, uh, the history of the we consult the history of the Amendment, and then he had a footnote. He says in the footnote, here's the deal. Whenever we think the history helps us in upholding the challenge regulation of gun rights, we're happy to rely on it and stuff one of our tests. But most of the time, either the history doesn't help us to uphold the gun regulation, or it's indeterminate, or it's just hard to value it. So we usually skip over this step of our test
by assuming that the regulation burden Second Amendment conduct. But that's okay, because the real beauty of our test is it's amazing flexibility at the various stages in balancing the government's asserted interests against the claimed impact on the Second Amendment. So, in other words, although we we often say that we care about history, the reality is that we only use the history when it allows us to take away your gun rights, and then if not, we ignore it. Which
it's true. He's just not not usually supposed to say that in public, is the thing. How how long were the gun stores actually closed? It was a couple It was several weeks if I remember right, but I think it was. That's incredible. Yeah, so during a time when we know that not only was COVID going on, but violent riots in major cities across the United States. Gosh, maybe people would want to have a firearm to defend themselves, but no, we can't allow that. Yeah, that we're talking
about that last week. That's what even makes it so much more outlandishes at a time where crime is spiking and it's one of the top issues in America and the riots everywhere in your local target is being looted coincident with the authorities making it clear we are not going to intercede in this violence. Yeah, while defunding the police, they closed gun stores. That's amazing. And as the as the as the saying has it when the cops are minutes or when seconds count the cops are minutes away.
It's amazing a number of places in the country where uh, you know, were either churches were closed violating the First Amendment or guns stores were closed violating the Second Amendment and overturned by courts. Eventually, I think in all the eat ice cream until you were in a coma. Yeah, right, yeah. For whatever reason. Tim Sandiford, the vice president for Litigation for the Goldwater Institute, is on the line. It's almost hard to understand you because you're so hoarse from sharing
your hometown rams to victory over the weekend. I I was really excited, you know, I just can't sleep unless I know what group through, what ball through what apparatus? Well said, so, as long as we are honored with your presence today, Tim's but what else are you guys working on at the Goldwater Institute that might be of interest to the peeps. We are waiting for the Supreme Court to decide whether to take a major challenge to
the Indian Child Welfare Act. This is a law I've talked on your show about a number of times, a federal law that essentially bars states from protecting abused and neglected children if those children are eligible for membership and an Indian tribe. So a white or a black or a Hispanic child who is being abused or neglected, the state can come in and rescue that child from the
abusive family. But if the child is biologically eligible for a membership in an Indian tribe, the state basically can't do that, and federal law basically prohibits them from being adopted by adults of other races. It's a really scandalous and disgraceful law that imposes literal separate, separate, but equal on really these on Indian children, who are the most at risk demographic in the United States. So the Supreme Court has been asked to take up whether that's concert
tuitional or not, and they keep postponing that decision. So I was hoping that this morning they would announce whether they were going to hear that case, and it turns out will have to wait at least another week. But so that's what we're really keeping an eye on. Yeah, that's a good one, and keep us updated on that. Is it a big deal that the Supreme Court announced today that they're going to take up the case on racial preferences for universities and and will that get into
the whole affirmative action thing in general. Absolutely, that is a huge deal. Uh. You know the that's the lawsuit against Harvard which has been excluding Asians in order to promote other races. And that case has been you know, rejected by the lower courts. But I think the Supreme Court is going to take that a lot more seriously.
Another case that was that the Supreme Court announced today that it will take is a case that's being litigated by our friends at the Pacific Legal Foundation, which is called sack At versus Environmental Protection Agency. Now what's really amazing is this case is more than a decade old. The Supreme Court has already decided one aspect of this case ten years ago, and now it's back again. And this case involves the federal government's authority to regulate what
they call wetlands. That's the Clean Water Act, which allows the federal government to regulate not just water, but land that occasionally gets wet. And in this case, these property owners try to build a house on perfectly dry land that the federal government said was a wet land and the first time around, they just wanted to get a hearing in court. The Supreme Court said, yes, you get
us hearing in court. And now they're back again at the conclusion of that hearing to ask whether what limits are there on the federal government's power to regulate land that it claims is a wet land. Yeah, I know that that. I remember that case vividly, and some of the particulars of it were enough to make you insane. These poor people, it's a it's a lot in a subdivision erroneously described as a wet land, and they just there was nobody to talk to too, so they just
kept finding them and finding them. And federal federal power under federal environmental laws people think of it as like protect the animals and Bambi and and all that sort of thing. But what federal power under the environment laws really is is basically federal zoning. It basically allows federal bureaucrats in Washington, d C. To decide what gets built in what neighborhood win, as long as they can come up with some vague notion of federal authority. And their
vague notion is, well, this land is a wetland. What is a wetland, it's basically whatever the federal government says it is. Or when it comes to the environment, the Endangered Species Act. If there's an endangered bug or an endangered fern on your property, now it falls under federal authority, and federal bureaucrats get to decide basically at will what you are and aren't allowed to do with that property.
It's something the Constitution does not contemplate at all. And yet that's basically the law that we live under today. General question, and if you want to take a pass on it, you gan because I don't want to get you any sort of trouble. But now take a pass. That's a football reference, right, throw one you don't take.
But yeah, you have expressed that the only thing, the only thing that bothers you at all about the fact that you don't follow sports at all, as you miss out on some references that are regularly used, you know, in court for instance, which so again I'm trying to remember the name and it's out of my head right now.
A libertarian guy with Kato I think, wrote a column recently on how originally, even as a libertarian, he thought the government was fine getting involved in all kinds of things that he usually didn't like because the unique circumstance of the COVID pandemic. But in retrospect he looks back on it and thinks, now, we'd have been better off if they hadn't in the long run. Where are you on it? Because I know in the beginning you were. You are also making the argument as a guy who
doesn't like a lot of government control. But this is a unique situation. Do you think maybe where we've ended up? Do you feel any differently now? I have? I don't, but remember that that I have a different situation than a lot of people because I live in Arizona. We didn't have a big statewide shutdown in Arizona like a lot of other states did. I thought shutdowns were a
bad idea to begin with. But other kinds of regulations, you know, uh, for example, if employers want to require their employees to be vaccinate, there was something like that. That's perfect consistent with libertarian principles, nothing wrong with that. So it depends on what kind of restriction or regulation you're talking about. I think, for the most part, typically the government has a role in in setting basic safety standards, and if that means requiring greater safety standards in the
time of pandemic than otherwise. I'm okay with that in principle. Whether they actually work or not is a different question, and the answer is problems. What about the businesses can't be closed down? I know it didn't do in Arizona, but it just seems in retrospect now you know, people would have made the decision on their own to not go to the to the barbershop, and maybe the barbershop would have closed down because they didn't have enough business to stay open. But that seems like a better way
that that's true. We know that's true because in a lot of places when the when the shutdowns were lifted, the businesses did not go back to full People still didn't come to the businesses because a lot of people worth choosing on their own to stay home rather than go to the business. And that's perfectly legitimate, and the businesses then have a pressure to come up with safer ways to operate, which is how the market ought to work.
So in the long run, yes, I don't think that those kinds of government interference were very effective, and they probably transgressed libertarian principle to innovate, not regulate. Final thought for me, very briefly, Tim, someday we ought to have a talk about how, you know, the realities of an equity society where the government picks winners and losers, assigns rights based on historical wrongs, the rest of it. What that would actually look at it that look like at
the legislative level, the lobbyist level. That's sort of thing, But we're totally out of time. Tim Sander for Vice President for Litigation, Goldwater Institute. Tim, thanks a million, Always a pleasure. Thanks guys, we got more on the way to stay with this text line four one five to nine five KFTC