Supreme Court's Next Term Could Be As Controversial - podcast episode cover

Supreme Court's Next Term Could Be As Controversial

Jul 12, 202239 min
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Episode description

Constitutional law expert Michael Dorf, a Professor at Cornell Law School, discusses the Supreme Court's controversial decisions this term, and the upcoming term which promises to be just as contentious with decisions on affirmative action, gay rights, and elections.
Second Amendment law expert Andrew Willinger, Executive Director of the Duke Center for Firearms Law, discusses New York's new gun legislation passed after the Supreme Court invalidated its century old law.
June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloomberg Law with June Brasso from Bloomberg Radio. It was a Supreme Court term marked by turbulence, the unprecedented leak of a draft abortion opinion, protests across the country, including at the Johnstice's homes, an alleged assassination attempt, all leading to a court surrounded by a high security fence. Justice Sonya Sotomayor sounded alarms about the court during the

oral arguments in the abortion case. Will this institution survive the stench that this creates in the public perception that the Constitution and it's reading are just political acts. I don't see how it is possible. And Justice Clarence Thomas said it plainly, the court has changed. And when you lose that trust, especially in the institution that I'm in, Uh, it changes the institution fundamentally. You begin to look over

your shoulder. It's like kind of an infidelity joining me is constitutional law expert Michael Dorff, a professor at Cornell Law School. Would you say this term was the most momentous in the Court's history or the most tumultuous. I don't know about in the Court's history. Certainly the term that they decided the dread Scott case was extremely tumultuous,

Brown against Board of Education and so forth. But the combination of cases and what it portends about the future, I think together make this one of the most tumultuous terms we've encountered, certainly the most in the last forty years. I'm looking at the numbers, and last year with the same justices, the court issued more unanimous decisions than the previous six or seven years. But this term, unanimous decisions dropped sharply. Only cases were unanimous, and six to three

was the most common alignment. Why such a big change from term to term, Well, part of that is just a product of small numbers the court. Here's fewer than a hundred cases a year. Many of them are resolving circuit splits, others involved big cases, and there's also a lag that is Justice Barrett joined the court to fall of So this concluded term it was really her first full term where they were considering cases, where she was

there to vote to decide what cases to take. That is to say they had a quoted conservative supermajority the previous term, but that conservative supermajority hadn't been selecting cases with an eye towards moving the law. So I think that it takes a little while for a new court to come into its own, and various of the justices like to say, whenever there is a single change in personnel, there's a whole new court because the dynamic shifts. Chief

Justice Roberts is no longer the median justice. That title I think belongs to Justice kavan On, although depending on the issue, it could be barred or core as such. But the basic answer is that this was the year in which the Conservative supermajority solidified. Doesn't mean there won't be unanimous cases going forward. There are issues that are largely a political or where the law is very clear.

But I do think we are likely to see a six to three division, occasionally five to four, with Roberts swinging to the Democratic appointees. But that's the basic configuration, certainly on the high profile cases, with the abortion case in particular, where we saw the leak of the draft and then we saw that nothing had changed when the

opinion came out. Does that show that Justice Roberts doesn't have the influence he used to have, that he couldn't convince one of the Conservatives to not be so radical not actually do away with Roe v. Wade. I think that's basically right. I would add um some other thoughts on that. One is that the very fact of the

league might have affected the dynamic. You know, there's still no good answer to the question of who leaked this and why, But one of the leading hypotheses is that it was somebody who wanted to hold the other Conservatives to justice the leader's opinion, and the thought was that if they leaked it, then there wouldn't be a defection. I don't know whether that's true or not, but but if it is, that could be part of the explanation.

I think a bigger piece of the explanation is that Chief sus As Roberts didn't really offer that much of an alternative. You read his opinion and he says, well, we can uphold the Mississippi ban, but we don't need to say where the line is. We we're just going to get rid of viability and we'll do something else eventually. I think for the justices who might have been amenable to some sort of compromise, and the theory was that Justice Kavanaugh was the most likely one, he didn't really

get something that looked like a real alternative. What he got was well, let's wait and see. Uh. And I think that, um, that was just not enough for him. I do realize that Chief Justice roberts basic orientation is towards wait and see, right, and it's not necessary to decide a question. It's necessary not to decide the question. He actually says that in his concurrence in the Dobb's case. But that's a sort of procedural posture, it's not an alternative,

substantive compromise. Looking at the reasoning of the majority in these six to three cases, in the hot button issue cases, can you describe in general the theory that the conservative majority used to come to their conclusion? Was it TEXTUALI is um originalism? It certainly wasn't the living Constitution. Well, so, first we want to distinguish between constitutional cases and statutory cases.

So the big constitutional cases are, of course the abortion decision, Bruin, the Second Amendment case, and then two of the three main religion cases, although the big ones Kennedy against Bremerton and the main case involving the subsidies for the religious schools. So those are all constitutional cases, and they all purport to use originalism. Or in Bruin they say the method of text, original understanding and history or text and tradition, history, etcetera.

So they all are very historically focused. In the biggest statutory case, which is the West Virginia against E. P A. There, of course it's not about original meaning of the Constitution. It's about the scope of the delegation from Congress to the agency, and there that is purports to be textualism. Now you'll notice I said in both cases purports to

be originalists, purports to be textualists. That's because I think that it's very hard to take seriously the notion that what we're seeing here is a methodological disagreement as opposed to an ideological disagreement. Long ago there were liberal originalists who Go Black was the leading one. There are some of them in the legal academy, and there have been

conservative purposivests or conservative living constitutionalists. So I think that this court is keen to speak the language of text, history and tradition, but that is mostly a sort of post talk rationalization for results that are being reached on ideological grounds. And I'll say that that's largely two of the dissenters as well. The democratic appointees also have ideological drawers,

and they have a preferred methodology. But in these cases in which the law is underdeterminate, that is to say, you know, there are arguments for overturning, the arguments for retaining, the arguments for extending, for cutting back right, the justices predispositions, their values are going to do the work regardless of the rhetorical register in which they write the opinion at the end of the day. I've asked this question of others because it stands out in my mind. What will

oral arguments look like next term? Will the lawyers be arguing the history of the seventeen and eighteen hundreds? Does precedent matter anymore? Starry decisive? You know, it's very hard. That's a very good question. I think that in one's briefs it will be very important to load up on textual arguments, historical arguments, and then the traditional doctrinal reasons to retain precedent if that's what you want to do,

or overturnative that's the way you want to go. It's harder to engage in that kind of nitty gritty historical back and forth during an oral argument, right that is to say, if you if you think about the way professional historians practice history, they don't do it through oral arguments. They do it through archival research. They publish papers, they have lengthy footnotes, they have excerpts. It's not the kind of question that is amenable to the mechanisms by which

appellate courts have traditionally decided cases. And that's frankly one reason why this methodology has not traditionally been used, Right, the fact that we have typically expected justices to pose hypothetical questions and then the lawyers sort of explain why the rule for which they're arguing leads to one result or another result. All of that leads one to think that this is a kind of common law enterprise, one in which the courts build case by case, they explore

the implic cations of one rule versus another rule. And this idea that one is going to reach down deeply into the history and find something analogous in the eighteenth or nineteen centuries, as Justice Thomas says you ought to do in the Second Amendment case. Right, that's quite radical and quite different. So I actually don't know whether the

oral arguments are going to start looking very different. I suspect they won't because the justices are not historians, their lawyers, and so while they might ultimately write opinions that, you know, tell us what Lord Hale thought and what the state of play was in the colonies, that's not going to be the driver of the decisions. When I was looking through the cases, I saw only one high profile case where the liberal justices were able to form a majority

with the conservatives. The remain in Mexico case. As far as high profile, do the liberal justices have any power at all now except in dissent. But one case I would add to that is the vaccine man for healthcare workers, which was did come out five to four to uphold that that mandate. Right, they split. They heard two cases and decided them around the middle of the term. In one they upheld the vaccination mandate for healthcare workers, and in the other they invalidated the the OCEHA mandate for

large private employers. And in the case upholding the mandate, they were able to swing enough justice to make to make a difference so that you could say that the liberals won that one. Well, yeah, that's just one additional case, and it was one in which the procedural posture made

it relatively easy to do that. I think that there still will be cases going forward in which it's possible to peel off, you know, both Chief Justice Roberts and, depending on the issue, one of Justices Kavanaugh, Barrett or Gore such But you know, you've got to get to to do that, and that's very hard. Right. So, on a five to fourth court, it's relatively easy for the Ford occasionally to pick up a fifth vote. It's much harder for three to pick up a fourth and fifth vote.

Does this term support the idea in your mind of adding justices to the court. Sure? That is to say, I think that the Supreme Court right now is both a symptom and to some extent a cause of our dysfunction.

What's happened over the past, you know, ten twenty years, is that the increasing polarization we see in our politics has spread to the court right so that for the last several years and going forward, it's been true that every Democratic appointee is substantially more liberal than every Republican appointee. That wasn't true prior to Justices Suitor and Stevens leaving the court, and even when Justice Kennedy was still on the Court, he would occasionally be more liberal than one

of the Democratic appointees. So the Court has become a highly part of an institution, and question is would adding justices stop that? My answer is probably not, probably continue that. But you know, if the country is on fire, as it appears to be, you do whatever you can to put out the fire. My view is sort of that, Yeah, I'm not against it. I'm not actively proposing it though,

because it seems dead on arrival in the Senate. I mean, Senators Mansion in Cinema can't even be moved to end the filibuster for the purpose of adopting election law rules to preserve the rudiments of democracy. I don't see that they would do that to expand the Supreme Court, which is a position that even President Biden doesn't seem to support. So yeah, in a different political world, I might say that's something worth doing. But in that different political world,

you might not need to. Coming up, Professor Michael Dorf and I are going to talk about some of the high profile cases coming up next term at the Court, including affirmative action. You're listening to Bloomberg, please raise your right hand and repeat after me, I Katanji Brown Jackson, do solemnly swear, I, Katanji Brown Jackson, do solemnly swear that I will support and defend the Constitution of the

United States against all enemies, foreign and domestic. That I will support and defend the Constitution of the United States against all enemies, foreign and domestic. On the last day of the term, Katangi Brown Jackson was sworn in as the one hundred sixteenth Associate Justice of the Supreme Court, the first black woman to serve on the Court, and her first term will include divisive cases on affirmative action,

gay rights, the environment, and election law. I've been talking to constitutional law expert Michael Dorff, a professor at Cornell Law School. It's always said that when a new justice comes on the Court, there's a change in the dynamic. But with this court, do you think that Justice Katanji Brown Jackson will make a difference. I think yes. I think that her presence will affect the dynamic at oral argument. I think it will affect the dynamic of how descents

get written. I think it's significant now that all of the justices likely to be in the minority in these divided cases are women, and so all of that effects the way in which cases are argued, the way in which opinions and descents are written. The fact that we now have to African Americans sitting on the court at the same time, I think that takes away a little bit of the rhetorical power that Justice Thomas might have had.

But the bottom line, of course, is that you're just substituting Justice Jackson for the justice for whom she clerked, Justice Brier, and that doesn't affect outcomes in you know, more than a handful of probably low profile cases. Let's discuss some of the cases for next term. There's one involving gay rights where a website designer in Colorado used to start creating pages for same sex weddings because it would be at odds with her faith. So in principle,

this isn't a gay rights case. In principle, this is a case about exemptions from anti discrimination law. And if I were arguing this to defend the Colorado Anti discrimination Provision, I would emphasize that this is not about gay rights. But if you allow exceptions franti discrimination law for people who are opposed to gay rights or same sex marriage or whatever it is. Then you need some good reason why you're not going to allow exceptions from race discrimination,

sex discrimination, veteran status discrimination. That in that sense, this really isn't a gay rights case at all. It's a case about whether people get to say that they don't like complying with some law because it violates either their religious principles or their expressive principles, and whether you're going to allow that to undercut anti discrimination law. The last time this issue was up before them, they ducked it in the Masterpiece cake Shop case by finding that there

was subjective illicit motive to discriminate against religion. Here, I don't think it will be so easy to duck the case, but I do think that the case's main implications will go well beyond gay rights, and in that sense, I would think of it as a question more about the scope of free speech and pre exercise of religion and less about gay rights, although of course you could imagine

the justices. Certainly, Justice Alito has hinted at this, saying, well, it would be different if this were a race case, because there's a compelling interest in overcoming race discrimination, and maybe there isn't such an interest in overcoming bias against lgbt Q plus individuals. I think that would be a terrible mistake, but I could see them doing that, and in that case, I would say, well, then they've turned

it into a gay rights case. There are two affirmative action cases coming before the Justices challenging admission policies at Harvard College and the University of North Carolina, and several of the justices have ex rest distrust or disapproval of

the theory of affirmative action, not just express distrust. I think that there are probably six votes on this Court that includes Chief Justice Roberts, who has been pretty strong on this, to say that the Constitution in the University of North Carolina case, because that's a state actor, and the federal statute in the Harvard case simply forbid any use of race in university admissions, and then maybe by

extension in later cases in employment and other contexts. Their view is that the Constitution and federal anti inscrimination law require color blindness, meaning you can't take race into account even as a so called plus factor, which has been the way that colleges and universities have been doing it under the approval of the Supreme Court since at least

eight in the Hockey case. The Roberts Court has in the hasked purported to apply the University of Michigan decision for the Grooder case from early in the two thousands, but they haven't had a case that presented that since Justice Kennedy retired. So now I think the dynamic shifts. So I would be very surprised to see the Court uphold the current standard under which race is permitted as a so called plus factor but not as a quota.

I expect them to say something like it's absolutely forbidden except to remedy specific instances of identified unconstitutional Now, the only way they could avoid doing that is they could strike down either the Harvard or the University of North Carolina admissions program, or I guess both on some narrower basis. There are allegations and some evidence in the record that the colleges are just engaged in sort of open discrimination against Asian Americans, and you could say that that's illegal

without saying anything about it firmative action more broadly. So that's a possibility, but again you would need a court that inclined to want to find a narrow ground and I don't think they took these cases to find a narrow ground. There's a North Carolina redistricting case where the Court is going to consider adopting this theory called the independent state legislature theory, and three or four justices, depending on how you look at it, have already expressed some

approval for this. But this could throw a real ranch into elections in some states. Right, So the spaces for this theory is that the Constitution, both in Article one with respect to congressional elections and an Article two and by extension the twelfth Amendment with respect to presidential elections, gives to state legislatures the power to set the rules

governing elections. Now, up until a little over twenty years ago, everybody understood that legislature meant well the state legislative process, which includes the governor's signature, and it includes judicial review

by the state courts pursuing too the state constitutions. But beginning in two thousand, in a concurrence by three justices in bush Bee Gore, we have had this idea that when exercising its role to set election rules with respect to federal elections, state legislatures have some independent authorities and I should say, although none of the justices except for Justice Thomas, who were part of that concurrence, the other two Justices Ran Kishins Clere have passed away, Justice Thomas remains,

and the architects of that theory were the Bush lawyers, including Chief Justice Robert and I believe Justices Kavanaugh and Barrett, as relatively young attorneys, worked on that case as well. And so there is reason to think that there will be five votes for some version of this theory that says that the state legislature acts in a way that's independent of the state constitution, state judicial review. And so with so, do you think it's a lot that the

Court will adopt this theory. I have some hope that they won't endorse the most aggressive view of that, based in part on the fact that there has been considerable research in the last several years by scholars going back at to look at the history to say that this idea just is made up. That is, it's pretty clear that the original meaning of state legislature was state legislature

within the context of the state constitutional systems. Because if it doesn't mean that, then you have all sorts of weird paradoxes like what happens if the governor of the state vetos a bill. Does that mean that that bill is now law with respect to federal elections but not with respect to the state elections that are conducted simultaneously. How does that affect voto qualifications, etcetera. So there are all sorts of problems with the sort of most robust

version of the independent state legislature theory. And of course it's that theory that President Trump, aided by the likes of John Eastman and others, were pushing as the excuse for overturning the results of election. If it's endorsed by the Supreme Court, then they could do it potentially in a way that's legal in the next election. Approval of

the Court is at the lowest in modern history. Yet, just as a leader in the abortion decision said, the Court isn't concern with public opinion, but should they be? Does the public have to have confidence in the Court as an institution. So over the long run, whatever they say, the justices do in fact act in a way that shows that they almost certainly care about public opinion. Right, there's this famous line, and Mr Dooley, you know whether

the Constitution follows the flag. The Supreme Court follows the election return. That was at the turn of the nineteen twenty centuries, and so that's been true throughout our history. Right, the Court has been a political and politicized institution forever. It was true at the end of the Adams administration, going into the Jefferson administration. It was certainly true leading up to the Civil War, it was true leading up to enduring the New Deal, and it's true today. It's

also the case that we have an ideal of blind justice. Right, the judges and justices are not supposed to be swayed by public opinion, and I think everybody who believes in the rule of law believes that that's true to some extent. So they shouldn't vow to pressure, they shouldn't vow to threat.

We can all agree on that. At the same time, their role in interpreting the Constitution is one that constrains and to some extent defines the democratic process, and so it's inevitable that the democratic process is going to push back, and that gets us to a sort of basic debate about what it is that they're doing. Right, So, the justices who purport to be originalists say, well, they're just

preserving the Constitution. Uh. And so modern public opinion is completely irrelevant because it didn't affect what people met in seventeen eight or sev or eighteen sixty eight, whenever the relevant provision came into effect. Um. But if you think that the reason the Constitution binds us today is not that a bunch of people, um that excluded women, that included enslaved African Americans, that excluded Native Americans, that excluded

white men without property at least the original Constitution. If you think that it's not their act that made the Constitution law, but a sort of ongoing experiment across generations, then public opinion is relevant not only to you know what you're fraid because you don't want to people to try to assassinate you, but it's relevant to the actual meaning of the Constitution because it's the understanding and tacit consent that ultimately makes the Constitution legitimate. Thanks so much, Michael.

That's Professor Michael Dorff of Cornell Law School. Eight days after the Supreme Court struck down New York Central gun law, the state's lawmakers approved a sweeping overhaul of New York's handgun licensing rules. The new gun legislation severely limits where guns can be carried, includes a strict permitting process for concealed carry licenses, and requires background checks to buy ammunition, among other things. The law will almost certainly be challenged

in court. My guest is Andrew Willinger, executive director of the Duke Center for Firearms Law. So, even though this is a redo, there is this strict permitting process for concealed carry licenses, which includes in person interviews for character references, turning in a list of social media accounts, etcetera. Is

there a problem with having a strict permitting process like that. So, as you mentioned, so that the new New York law, you know, gets rid of the proper cause requirement which the Supreme Court struck down, but it does make other moves to shore up the permitting process by requiring these types of you know, submissions of information, coming in person for an interview, And the Court in its opinion actually says that, you know, in general, a shall issue permit regime,

which is what New York will now be placed in that category is permissible but still subject to an as applied challenge. So this will really depend how the new system functions and practice if it results in a long waiting period. For example, for applicants that are seeking a permit, they may actually have a challenge they can bring saying

that in practice the system is too burdensome. What about the applicants having to complete sixteen hours of in person firearms training, two hours of training at a firing range, and they have to prove their shooting proficiency. Right, So this is uh an aspect of the law that I think UH many people expected, right that, in conjunction with removing the proper cause requirement, that there would be additional training requirements. That's an area that some states have focused on.

I think that's something that is likely to be a permissible even under Bruin. Bruin doesn't say anything about training requirements, um and to the extent that these are actually, you know, requirements that an applicant go you know, to to shooting range for example, you know, prove that they are able to safely handle the gun. Those are things that seem probably fine under the Court's approach and Bruin. The legislation sets out a list of sensitive places where you can't

carry conceal weapon and it's quite extensive. Airports, bars and restaurants that serve alcohol, courthouses, daycare facilities, playgrounds, etcetera. Educational institutions, emergency shelters, entertainment venues, federal, state, and local government buildings, health and medical facilities, houses of worship, libraries, polling sites, public demonstrations and rallies, public transportation including subways and buses, and Times Square. Some are already complaining that that list

is too extensive. With that list pass Supreme Court review, what what's your analysis of that list of sensitive locations which takes in a lot. That's a great question, and this is a place where I think we're likely to see litigation in the near future. The Court and Bruin doesn't undertake an extensive analysis of what places can be designated sensitive by a state government such that gun possession

can be banned there. So, all the Court says is New York can't designate the entire island of Manhattan as a sensitive place, But it doesn't engage in any kind of detailed analysis about what places can be designated sensitive. All the Court's opinion says is that you have to analogize to historical places where guns were prohibited, where I think that leaves us is that there are certain locations on this list that New York has enacted that are

completely fine, right, government buildings, polling places. You know that there's a limited set of places where we have a historical tradition of banning guns in those locations, and that's perfectly fine. But it's not as clear for things like mass transit, Times Square, stadium, anywhere where alcohol is sold or consumed. These are the types of locations where it will be interesting to see how courts apply the Bruin tests.

And I think you know, this expansive list does come relatively close to what the court cautioned against and Ruin, which is that you can't simply say that because people congregate in a given location and law enforcement officers are available, that that is a sensitive place and guns are banned. Also, private businesses will be presumed to be gun free zones unless their owners put up signs saying guns are welcome.

And one of the Republican state senators said, that's going to allow criminals to find soft target areas more easily. Is that a good idea? You know? Having to put signs up, this aspect of the law is is a

pretty novel approach. I'm pretty sure that New York is the only state that has now taken this approach of having the default rule be that if you are a business owner, if you own private property, um, the default is that no guns are permitted unless you put out a clear sign or otherwise give permission for guns to be brought into that location, you know, regardless of the

of the policy debate about it. In some ways a clever move by New York, because there are cases out there saying that the Second Amendment cannot trump the right of a private property owner to exercise control over land or a place of business or something like that. So I think that's what you know, New York in some ways is trying to insulate this from a legal challenge, and it will be difficult for somebody to challenge this aspect of the law under the cases that are out there.

Of course, there's still going to be some uncertainty after Bruin, but my guess is that he would need to make some kind of arguments that the cumulative effect of you know, the private property ban and the Sensitive Places list taken together nullify the right to carry arms in public for self defense. It seems like in many respects, the law

is stricter than the old law. That's right, And I think this is a really important observation about this New York law is that you know, under the prior system that the court struck down and bruin, New York had this proper cause requirement, and that mandated that an applicant shows some exceptional circumstance. Right, they had to show that they themselves were threatened or that they had an extraordinary reason why they needed to carry a gun in public.

But at the same time, New York was granting especially you know, outside of New York City, in more rural areas, they were granting permits to people to carry concealed weapons. It was just a very high bar to meet, and those permit holders had a pretty broad ability once they received the permit to carry weapons in a number of different public places. Now you have a system after this new law where it might be easier as an initial

step to get the permit. Right, the proper cause requirement is no longer there, But once you obtain a permit, it doesn't give you the ability to carry guns in anywhere near as many places as you could under the prior system. So in many respects, it is going to be stricter because people who have permits will be limited in where they can actually bring up. Most experts look at this, even you know, lawmakers say it's almost certain that this is going to be challenged in court. I

agree with that. I think that we will certainly see challenges to this loss. Some of them I think will take a longer time to play out. Right, So I think if you you know, if you imagine a challenge to the permitting system itself, that's going to take time because we'll need to see how this new system actually works in practice, how long it takes an applicant to go through the process of you know, going to an in person interview, compiling all this information, submitting it, having

it reviewed by the licensing official. Right, And if this, if this ends up taking a long time, then you'll probably see people bringing as applied challenges to the permitting system itself. You know. The other big area where I think we'll see challenges is to the sensitive places probe action UM. And this is something that will probably happen earlier, you know, as soon as this as this band kicks in UM, and it's going to be very interesting to

see how those challenges play out. Again, we don't have a ton of guidance from the Court on what constitutes a sensitive place. All we know is that it isn't any place where people congregate, but it is things like

government buildings and schools. The courts has said those are fine. Um, And so there's going to be you know, some some challenges coming forward, I would expect, um, and it will be kind of a similar exercise as the Court went through and bruin of you know, trying to figure out what historical laws were similar in prohibiting guns in certain places of public assembly. New York's Democratic leaders, both on the state and city level, are very adamant about gun control.

I'd sort of envisioned a situation where, you know, this case is litigated, goes up to the Supreme Court, comes back, and New York rewrites the law and then I mean, it just seems like it might be a never ending process, right, Um. And I think that, you know, it's it's very possible that that could play out. Um. It's it's also important to note I think that we haven't gotten a ton

of guidance from the Supreme Court. Right. It took ten twelve years between McDonald and Bruin, Right, So we could be entering a sort of period of time where as with you know, the past decade, we we don't get a lot of Supreme Court guidance, right, And we may see some of these provisions upheld, and it's not totally clear whether the Supreme Court wants to weigh in again, right, that the Supreme Court may decide that it's best to let things play out and see how the lower courts

rule on these types of challenges, and maybe, you know, five or ten years down the road, we'll see them, uh, we'll see them grant search in another Second Amendment case. But that's really speculation, but I think we could see that happen. Any fine thoughts on a legislation, sure, so. I think you know, one thing that I think we haven't discussed about the law that I just wanted to

comment on briefly is the review of social media accounts. Um. That's another sort of along with the sensitive places expansion and the you know, the private property approach, this is another sort of novel aspect of the law. Um. And I think it you know, we could see that become increasingly common and you know, we could see other states consider something similar, especially in light of the fact that

in some of these recent mass shooting tragedies. Um, it has come out after the fact that there were disturbing social media posts. UM, you know, a year back, two years back, whatever it may be. UM, And I think you know New York's approach, you know, it mandates that an applicant submit a list of social media accounts from the past three years. UM. I think there's you know, it may be subject to criticism to the extent that it doesn't go too far and that the applicants themselves

is responsible for submitting that list. So it's not clear at the moment what kind of independent research the state might do to verify those accounts or find out if there are other accounts out there. But I think that's you know, that provision is something that we might see pop up in other states as well. Thanks so much for joining me. That's Andrew Willinger, executive director of the Duke Center for Firearms Law. And that's it for this

edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

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