Battle Over Gun Rights Escalates

million guns, uh, the solution is not more guns. The language used by Judge Roger Benitez comparing an a R fifteen rifle to a Swiss army knife quote good for both home and battle, drew outrage from gun safety advocates and victims of gun violence. Chris Brown is the president of Brady United Against Gun Violence. It's so shocking to have this judge say that is like a Swiss army knife. A Swiss army knife doesn't kill hundreds of people within

ten seconds. That's what this weapon does. Joining me his Second Amendment expert Adam Winkler, a professor at u c l A Law School, Adam explain the ruling for US well. The ruling in Miller versus Banta held that California's restriction on military style assault weapons was unconstitutional under the Second Amendment. The judge compared the a R fifteen rifle to the

Swiss army knife, good for both home and battle. What's behind this comparison, Well, perhaps the most surprising thing about the opinion was the judge's equating of a military style assault rifle to a Swiss army knife. Of course, a military style assault rifle is far more dangerous than a Swiss army knife. But the point that the judge is making is that like a Swiss army knife, many people will have this kind of device and it's perfectly lawful,

and they don't do anything wrong with it. And indeed he makes the point in the opinion that knives kill more people in California than assault rifles every year. The way he wrote the decision, do you think it was designed to shock? I don't know if it was designed to shock, but it's certainly designed to get the attention

of the courts of appeals. And the judge was very careful to detail what was the basis of his ruling, What are the facts that he accepted, Who are the witnesses and experts that he found most persuasive and what was the data that he thought was most influential and that will impart influence the Court of Appeals when they hear this appeal in this case, because they'll be limited in some ways by the facts as the lower court

found them. What was the state's argument, Well, the state argued that these military style assault weapons are not constitutionally protected by the Second Amendment, that they're not commonly used for self defense, and that they have special dangers kind of like a machine gun even though they're not machine guns, but like a machine gun in that they present special,

unusual dangers in a five our arms. But the judge rejected those arguments, finding that military style of rifles were really no different from other types of rifles, and that prohibiting access to these weapons, which are not associated with a lot of criminal misuse or criminal violence relative to other firearms, was unconstitutional. As I've said before, I don't know much about guns, but isn't this the style of

gun that's been used in mass shootings? This style of gun has been used in many high profile mass shootings, which is partly why the gun safety movement has been trying to ban these weapons. However, it is important to recognize that in more than half of mass shootings people use handguns, and it's not clear that the use of military style assault rifle really is going to change mass shooting. You can do the same kind of damage in the kind of close rain confines of most mass shootings with

a handgun or other type of rifle. Similar assault weapons bands have they been upheld by other federal district courts or appellate courts. We have seen other states bands on

military style assault rifles be subject to judicial review. Most courts have upheld those laws, finding that while these military style weapons are in common use and thus probably protected by the Second Amendment, at least at first glance, the courts have generally said that the government has sufficiently strong reasons to limit access to these weapons because of their

special dangers. Judge Benitez, however, in California, did not buy into the argument that these firearms posed special dangers, and that's why he compared them to Swiss army knights. And it's a minority of states that have these assault weapons bands, that's right. There's only a handful of the fifty states have these military style assault rifle bands. There have been efforts to ban them at the federal level, include including a ten year period in which they were banned at

the federal level. But gun safety advocates have not been able to get the these laws adopted in other states, and I think no matter how many states adopt them, these laws are likely to run into some hostile treatment when this issue gets to the United States Supreme Court. And some of the talk after this opinion has been, well, gun rights advocates are becoming emboldened by the federal judiciary that's become more conservative and the Supreme Court that's become

more conservative. Well, there's no doubt about that that the Court has become more conservative. The federal courts generally have become more conservative. In fact, Judge Benitez, who's got kind of a long history of striking down California gun regulations, has often been overturned on appeal in the Ninth Circuit, but recently he's had some of his opinions upheld on appeal, in part because the Ninth Circuit has become more conservative.

But I do think that the appointment of three justices to the Supreme Court by President Trump, all of whom have strong pro gun records, suggests that restrictions on military style assault rifles are likely to run a foul of the new Supreme Court. The state says it will appeal benitez Is ruling to the Ninth Circuit. The state is also appealing the judges seventeen ruling against the states nearly two decade old ban on the sales and purchases of

magazines including more than ten bullets. That decision was upheld in August by a three judge panel, but the Ninth Circuits set in March that an eleven member panel will rehear the case. The state is also appealing benita as a decision in April of blocking a team California law for acquiring background checks for anyone buying ammunition. So Adam explain why all these gun cases came before this same judge. Well, gun rights groups have done some forum shopping and have

been pursuing litigation in Judge Benitez's court. They've been trying to get Judge Benitez to be the one who rules on their cases. It's a smart strategy for litigation because they know that the district court, the trial court, will control the interpretation of the facts on the ground credibility of witnesses, what evidence is appropriate and probative um, and the courts of Appeals are often limited in their ability

to really control the record of a lawsuit. So UH that this is part of a concerted effort by California gun rights groups and UH, so far it's looking to prove pretty successful when it reaches the Ninth Circuit. I know that one of his rulings was upheld on appeal by a three judge panel and it's going to the full circuit. So when this reaches the Ninth Circuit, what are the chances now that the circuit has changed a

bit after President Trump's appointees. Well, it's very hard to predict what's going to come out of the Ninth Circuit. It used to be that the Ninth Circuit was a very reliable progressive or liberal circuit where on issues like guns, you could count on the Court of Appeals to overturn a decision like the one we had from Judge Benitez

on assault weapons. But because of the Trump appointees on the Ninth Circuit, it's a much more balanced bench than it once was, and you never know who's going to be appointed either for the three judge panel that will hear the appeal or even the eleven member on bomb panel that might hear an appeal or re hearing of whatever that three judge panel decides. It used to be that they were reliably liberal, but now it's a much more balanced bench. Our gun rights food is becoming bolder

in court because of the more conservative federal judiciary. I'm not sure that gun rights advocates have become more bold in their lawsuits in the federal courts. Truth be told, for the last fifteen years, they've really been aggressively pursuing litigation to challenge gun control laws. Really ever since the

Heller decision back in two thousand and eight. The difference is is now gun rights advocates are more hopeful than ever that they'll win in those court cases because the courts have become more conservative, and the Supreme Court in particular, has new members that seem likely to strike down gun control laws in favor of a broad and expansive reading of the Second Amount. Tell us about the Supreme Court. It's going to issue its first major decision on Second

Amendment in two decades next term. Tell us what's before the court. The Supreme Court has agreed to hear a challenge out of New York where it is impermissible to carry a concealed weapon unless you get a permit, and

it's very, very difficult to get a permit. Uh. And this kind of discretionary permitting policy that New York and about ten other states used UM is going to go to the Supreme Court and the Court's going to deside whether you have a right to carry a gun outside the home, and if so, well what kind of permitting process can states impose before you are allowed to carry that firearm? And the composition of the court has changed, as you mentioned, is that the reason why they're finally

taking up a GUD rights case like this. There is no doubt that the changes in the Supreme Court explain why the Court has taken Second Amendment cases both last term and this term. The last term, the Court took a second Amendment case, but it turned out to be moot and so they didn't ultimately issue a ruling um.

But there's no doubt that the addition of new justices has changed calculus on the Supreme Court UM, with Justices Thomas, Alito, Gorsich, and Kavanaugh all saying that it's time for the Court to take more Second Amendment cases and to put more teeth into the Second Amendment. Now with the addition of Justice Sparret, it seems like that group of justices finally

has their majority. Has that ruled on Second Amendment cases? Yes, Justice Sparret, when she was a lower court judge, issued of very controversial ruling where she was actually the dissenting judge of the court upheld a ban on felons possessing firearms. And Justice Barrett when a lower court judge dissented from that ruling, arguing that the lifetime ban on felon's possessing firearms was overbroad and should be restricted and limited. And do you see any progress being made for legislation on

gun control? The prospects for gun control at the federal level do not seem good. It doesn't seem like any proposal for gun regulation would surmount the sixty vote hurdle that you need to pass legislation through the Senate. So so long as the filibuster remains in place, I think the possibility of significant federal gun safety regulation is unlikely. And what can President Biden do through executive order? How much can you do through executive order? Biden can do

some things by executive order, but much right so. Executive orders give the president the ability to um carve out an interpretation of existing federal statutes. But the n r A has written America's gun laws very carefully to restrict the ability of the president um to find that kind of wiggle room. He's going to make some efforts, for instance, to crack down on ghost guns. These are guns that

are homemade that don't have serial numbers. And he might be able to do some things on restricting importation of military style assault weapons, but many of them are manufactured domestically and a ban on imports won't have a significant impact on the gun debate in America. The n r A has has a lot of different problems and is facing lawsuits. Does that have any effect on the gun lobby? The n r A has never been weaker than it

is right now. It's facing a real existential crisis. The New York Attorney General is probably trying to put the n r A out of business, uh and so far looks like the Attorney General is doing a pretty good job of it, and the n r A is uh not mounting a very vigorous defense that's persuasive. There does seem to be a long history of mismanagement of the n r A and some corruption inside. However, that's not going to affect the gun debate that much. Gun rights

have never been stronger in America. The Republican Party is dead set against any new gun control laws. There's a strong new conservative majority on the Supreme Court that seems ready to expand gun rights, and so the n r A is facing untold challenges. But the gun rights movement remains very strong in America. Thanks Adam. That's Professor Adam Winkler of u c. L A Law School. This is

Bloomberg Law with June Brusso from Bloomberg Radio. The Supreme Coourt is ruled that the government can block immigrants with temporary protected status from applying for green cards if they enter the country unlawfully. It was the unanimous decision by the Court, the third such decision on immigration matters in as many weeks. Joining me is immigration expert Leon Fresco, a partnered Hollandon Knight. Leon explained what TPS is and

the facts in the case. Temporary protective status is the status that the federal government has because the Congress conferreted onto the President many decades ago as part of the

Immigration and Nationality Act. And what that status says is during times of very major difficulty in a country, such as a natural disaster or dangerous condition of a military conflict, or even a pandemic which is necessary for COVID, that the government can actually confer something called temporary protective status. Let's say, until whatever a crisis is happening in your country is over, you can stay here without being deported,

and you can work here. The crisis are created in this case is because many people who've had temporary protective status have had for twenty or thirty years because the government searched to feel bad. It never ends the temporary license that says, oh, people have had children, they've had roots in the United States. Now those children are American citizens.

Don't make them go home. People have this luck status for neck came such as a man in this case of a Sense of Sages who came in n and actually got semper and protective status based on earthquoints that happened in a Provador in two thousand and one. When

we're talking about twenty years later. Was he able to get a green card on the basis of his granting of temporary protective status, because you can't get a green card from the side the United States, from an employer unless you have been or even from your clout, unless you were someone who answered legally and then overstate and then got CPS. But if you ainting illegally, you can't

that temporary protective status. That was the understanding until people started doing and saying, well, maybe I can because temporary protective status. The Staton says, we're gonna treat you as if you had a non immigrant visa. And so every person with a non immigrant visa or someone who went to an airport and was added into the country, so

they're they're presenting like I wasn'tmitted into the country. That was the theory of the case, and that case was very successful in many circuits, but it was not successful in the Third Circuit, and so there was an appeal to the Supreme Court about who's right is it the Ninth Circuit or in the Third Circuit, And so that's what the decision was based on, saying that the Third Circuit was Justice Elena Kagan wrote the decision, and she always writes very clearly, and she said that there are

two tracks, so explain the decision. So there are two tracks in this thing. There is who is someone who is a non immigrant to the United States and who is someone who was admitted to the United States. And so what admitted to the United States is that the reason your human body is in the United States is because you either enter through an airport, a landport of entry, or a seaport of entry. You presented a passport to a person with a blue uniform that says Customs and

Border Protection. That person with a blue uniform swiped your passports and simpus. That's called an addition. And so you need to be admitted into the country in order to get a green car. And then there's a separate concept called having nonimmigrant status, and that is many people come to America have non immigrant status. They are students, they are workers, they are visitors, they are religious workers, there's

all kinds of people have done immigrant status. And what the PPS statue says is during the period that you have temporary protective status, you will be treated like one of these people who have amount immigrant visa. And so the question is does best sentence means that you will be treated like that for the purpose of you can't be deported or does it mean you will be treated like that for the purpose of you can't be deported?

And also when all of those people what we talked about, the students, the visitors, and the workers enter the country, they did go through an airport and get their visa. Fam So we're gonna expend the legal fiction to you that you went to the airport and that you're the faan. And what Justice Kagan and the nine in Justice and said was, no, we're not going to say that legal fiction. We're gonna say that this just means the bare minimum it means, which is that you're treated as being legally here,

but it doesn't mean that you care legally. So this is another unanimous decision. There have been three immigration decisions in three weeks. They've all been unanimous. How do you account for that? This is a very impressive have run that there have been three basically major confessions by the liberal justices of these immigration matters. And I think there's

a couple of things going on here. Number One, I think there's definitely trying to trade for some of the bigger cases that they think are coming down the pipe where they know they're going to need the help of Justice Horseheads or Justice Pony Barrett or Justice Roberts, and they're saying, let's show our magnanimity to our conservative collegues in cases where you can limit the damage and reach these decisions, hoping that let's say, in a case come

from DOCTA, they'll be with us whether DOCCA is legal or not, or some of these asylum cases, and they go about they'll be on our side. So I think there's a little bit of that horse trading going on.

But I also think that, for instance, in a case like Fanchase, this can actually be fixed very easily by the administration, so sort of a low cast year to the conservative side, which is all the administration has to do to fix this problem is to give every single person with CPS a document called that advanced parole which allows them to travel outside of the United States while

they are on the CPS SATUS. And what that advanced parole actually does is it allows for the person to lead and re enter and w they reaverer legally, they solved the problem that they couldn't solve previously before this state. So I think you will eventually see the administration announce those advanced paroles which are perfectly legal, and this case will then have very limited practical meaning at that point. If you look at the reasoning in this case, does

this affect Dreamers in any way? The reasoning so it doesn't affect dreamers because the Dreamers don't have the CPS sat uns. But what it does sort of fortend this needs vote for Dreamers and TPS individuals to be able to get this document I get discuss called an advance for all as the only basis that they're gonna be able to use to get a green card meaning doctor is viewed as legal and PPS egregal. But now you can get a green card CPS on its own unless

you pay you illegality. What all of those people are gonna have to do is get a document from U S, c I S that allows them to travel abroad and then return. And only when they do that, that's when they're can apply for a freesta. Let's turn for a moment to the Vice President's trip to Central America. She warned Central Americans not to migrate to the US. Do not come, Do not come. If you come to our border, you will be turned back. Is that in fact the

case are they being turned back at the border. So there are three groups of people who are arriving at the United States, and depending on which group you're in, your outcome is different. So if you are a single adult, those in new adults are currently being excluded from the

United States. They're just switched back there, not even letting nobody puss to under an authority called Tindle forty two, which is a CEC authority that says during communicable disease crises, you could just be pushed back without any further analysis. That's what's happening to single adults. For unaccompanied miners. On the other perspective, every unaccompanied miners being allowed to come into the United States and make a claim for either

asylum or special immigrant juvenile status. And that's where you're seeing these convention centers in California and u And I'm exactly fighting the existence of these convention centers, but you're seeing them all along the southern border for housing children until you can put them with an adult pomper and then you can go through their case. And then there's a third group that the hybrid group that's called family units.

So that's adult with kids, and it seems like at the moment, about six to seventy percent of those family the units are being allowed to enter to make their claim for asylum, and then another thirty per centers are being excluded under Title forty two. And so the outcome of you will be returned even exactly what's happening on the border right now, unless you are a single adult. One of the point I will make is that this rhetoric is very short of counter productive and complicated. In

this set. The Bising administration, unlike the Trump administration, sort of has this moral problem where they don't want to make a decision about what constitutes central American migration. The Trump administration was very comfortable pay that they believed one of the central American migration was economic migration, and none of them were genuine refugees speaking to come into avoid persecution. That is not a sentiment of the Buiding administration believes.

But the problem is if you use rhetorics don't come to America because you'll be turned away. That's not what you would say if you thought that there were some group within the larger groups that are legitimate refugees. Because you would never say, for instance, to people in the Holocaust, they don't come, you'll be turned away, because that's not the lage, of course and any way, that wouldn't to turn anyone anyway because of your only choice in bed

of course, you're going to come into the country. And so the point of that rhetoric is almost the reason why it's creating controversy under democratic but is because when you say things like don't come, you won't be allowed in, you're saying basically the same thing as the Trump administration that at least the large majority of not the entire bucket of people in Central America are not refugees. And

so that's why you're seeing this push. What I want to ask about, So, as you mentioned, AOC representative, Alexandria Ocasio Cortez was very critical of Kamala Harris's remarks. Do integration advocates want everyone who comes to the borders to be allowed in? What are they looking for exactly? I think there are different groups. I think there are some

people that are out on that extree. Let's say, look at the end of the at the end of the day, people don't remember that the United States, for the first count that it had not nothing. There was no immigration code, so you could just come to the United States and be here, and the United States they collapse or by during that period, and so there's no reason why you

couldn't continue that. And that that is actually not just a liberal viewpoint that is held by alpha libertarian from place of like the Cato Institute and upper places like that, where that's one group of people. And so you know, I don't know if that's perfected perfect the opinion out there,

but that that is a group. There's another group that I would say, maybe he is another six that says no, not everybody, but people should have basic opportunity to be able to apply for asylum and they're realistically refugees, you should be able to give them a fair process at determents that that we're not actually pushing back a refugee that would then have something very bad happen to them because we mistakenly push them back. So that's another group.

And then obviously you have the perspective of the Trump folks, which were that this group from Central America with laws was economics based migration, and so the idea was don't let any of them in and and and try to take away all of the basis by which they might

prove they are a refugee. And that's perhaps was also you know us as these extree from that perspective because there were legitimate refugees within that group, and so it's just a matter of how you get that dollars right, um, deterring economic base migration because the point is that all migration that you can migration to offense through channels that exist in the system, albeit that those channels are not exactly easy to access, nor are they available in many cases,

but still you must access that you should just show up at the border illegally. But when there are genuine, real refugees to allow people to make those claims so that they can actually fairly be protected and they need that protection. The idea is they're going to try to address the root causes of immigration by helping these countries.

Has that worked before? Well, this is what's complicated, and I've been saying this and people pretty much uh, and to ignore this because it just makes its time hopeless. But an important thing to really consider, which when you take the growth domestic products for capita of the three mains and the immigration countries in Central America, Gatemala, darth and no savodors. We're talking about a three to four

thousand dollar per person GW semestic products. And even if you compare that to Mexico, which has about a nine to ten thousand dollars for tappitt products, you then look at the fact that at the moment it's haven't been

true for the last few years, but it's true. Right at the comment, we are seeing a certain of migration also from Mexico, and that's partly because COVID has done from damage in Mexico, and it's also because obviously there's a worker shortage here in the United States where a lot of workers are being needed for things like home

construction and other things of that nature. And so what you're saying is, Okay, let's say I get four billion dollars to a place, and let's say all of that four billions you constructively, that's still not gonna get you anywhere near swippling the size of the economies of Guatemala,

Al Favador and Honduras. And so people just has to be realistic about this, which is, you know, there's gonna be always a comparison between what life is like in the United States and what life is like in Guatemalaham, Durus and al Pavadore. And so there's always going to be a push factor to get people or a pull proctor to get people to am going into the United States.

What what needs to happen is all of that needs to be needed realistically and to say, fine, some of this root caused investments matters because because you to make a plate say I'm not talking about economically vibrant, but say state actually does solve some of the push factors that lead people to leave and to migrate to the United States. But I think that's the best you're gonna

be able to do. If you think that you'd ever be able to make the three Central American countries completely oblivious to the attractiveness of the United States most a venture, I don't think there's worked pursuing because the United States is attractive against almost every country in the world vise of the economic opportunity, and because that will certainly always be the case and in Central America as well. Thanks for being on the show. Leon, that's Leon Fresco of

Hollanden Night. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal moves on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law. I'm June Grosso and you're listening to Bloomberg