speaker-1 (00:21.166)
Glad to be on the show again Alex, was on your program last year.

speaker-1 (01:26.542)
Well there's a pending Supreme Court decision that's going to come down at least by June on that very statute. But what does the statute do or say? It says that

who is an unlawful user of or addicted to a controlled substance may not perceive or possess a firearm. The firearm has to have crossed state lines at some point in its history. That's kind more of a technicality. But that gives Congress jurisdiction under the interstate commerce laws to regulate felons and illegal aliens and a lot of other people who might possess firearms. But here we're focusing on

A person who is an unlawful user of or addicted to a controlled substance. Federal law has a listing of controlled substances. Particularly schedules one and two are the most highly restricted. Schedule one is there's no medical use for the drug. Now marijuana is on schedule one. And heroin, encyclopedic, some of the drugs that are both hard

and also what people call soft drugs. the administration is thinking about deregulating marijuana from schedule one to schedule three where it would be less restricted. But nonetheless, I don't care what state law says. If you're in Massachusetts and you're smoking pot, it's illegal for you to have a gun. Just because the state says it's it's not okay by the federal government.

government. And so a case was argued in the Supreme Court, it's been a couple of months ago now, US versus Hameen-e, and it tests whether a person who uses marijuana can be dispossessed of firearms, whether it's a felony for that person to possess a firearm.

speaker-1 (04:03.756)
Right, for one thing, sympathetic or unsympathetic, the guy was caught with marijuana and he admitted to using it three or four times a week. It would have been a lot worse

had he been caught with PCP or heroin and actually owned the drugs at the time while committing criminal acts. Because a lot of people, they're stopped or they get in fights or whatever and they're hard drugs. Something like PCP, mean, those people get crazy and very violent.

So in the government's brief though, they point out that this guy's from the Middle East and he's got sympathies for maybe some... Yeah, maybe. Nothing hard enough to arrest him with. They put that in the government brief, but it's really irrelevant to the issue. They're just trying to muddy the water a little bit.

Yeah, because, and here's what's interesting, the Fifth Circuit says, applied to him, this law is unconstitutional. And the reason being,

speaker-1 (05:23.598)
said in the New York v. Bruin case is that you look at the text from the Second Amendment, so is the activity involved keeping and bearing arms? And of course in this case it was, the guy had a gun, he was in his home, and so he was keeping an arm. So then the burden shifts to the government to show

that there are historical analogs from the founding period that this current law would be parallel with somewhat, such that we could say that the founders, when they said, shall not be in friends, that they would have either considered this law to be legitimate or not legitimate. And so the government's argument is that, well, you could disarm somebody who was intoxicated back at the founding. And nobody objects to that.

But when Hamini was caught with the drug, was not apparently intoxicated. so you look for parallels. the issue is going to be whether the arguments that the government is making is sufficiently analogous to a founding error restriction.

speaker-1 (06:53.582)
other problem with the burden that the government has

speaker-1 (07:01.336)
It's an as applied challenge. They might send it back to the Fifth Circuit and let the jury decide whether they consider him to be an unlawful user of and keep in mind it says is an unlawful user of so is means presently and unlawful user of means he's a user. Not a previous user.

so that's there's a great deal for a relation yet the said oh it's enough if you use uh... substance within here that's crazy that's not what the law says right and uh... when the government argued it's case to the supreme court they didn't even mention the a-tif regulation and what they said

is an awful user of means that you use something with regularity and constantly and so granted those terms are a little bit vague but it's a lot better than saying oh yeah a year ago you smoked a joint and therefore you know 364 days later it's illegal for you to have a gun so at the very beginning of the argument

The presentation was being made by

And she was questioning the government's fact-finding about scheduling marijuana under schedule one. Because if you remember the Rahimi

speaker-1 (08:34.891)
the upheld law where if a court determines that you

Thrift.

What does it say?

speaker-1 (08:50.926)
safety of a domestic partner, then that law is legitimate. That federal law is legitimate. You can't have a gun. Rahimi. But in this case, there's no determination of dangerousness because the Drug Enforcement Administration puts these drugs on schedule 1, 2, 3, whatever.

speaker-1 (09:14.936)
drug being dangerous.

speaker-1 (09:20.014)
or crazy.

speaker-1 (09:55.768)
solid determination that will be a can of oil for one because

speaker-1 (10:12.878)
case raises this issue about

speaker-1 (10:24.886)
It's just somebody at the agency put it on that schedule.

speaker-1 (10:53.537)
Exactly.

speaker-1 (11:07.598)
Well, official challenge is where you say under any circumstances, under all circumstances, the law is invalid. So in the Rahimi case, he made that challenge. He said there's no condition under which this law is valid.

and the court said, well, it sure as valid as a plan to you, because he was a real dirtbag. mean, he was a dangerous guy. was a court finding he had beaten up his girlfriend. And then outside of that part of the violation, him and a buddy drove up to a fast food place. They wouldn't take the invalid credit card, so he fires pistol into the building. I mean, this guy was out of control.

He's not a guy you would want to have as your next-door neighbor. He's not a Sunday school teacher. So he couldn't make an as-applied challenge because that's applied to him. And what the court could say in his case, well, as applied to you, it's a valid law. So certainly you can't say it's invalid in all applications.

speaker-1 (12:28.718)
money. Yeah, and they still need those historical analogues. So I mentioned earlier that they cite that you could disarm a drunken person. You you're out on the street shooting up in the air and you're drunk and you're dangerous. And the government also used the analogy of if you were

speaker-1 (12:58.19)
It's a difficult argument to make as applied to this

speaker-1 (13:08.44)
certainly not equivalent to an insane person.

speaker-1 (13:46.038)
And saying that, admitting that he had used it two or three times, four times a week maybe regularly. So the government's burden is it's a stretch to use those historical analogs that it's trying to use. On the other hand, it is an as applied challenge. The court might well just say, well, let's let the jury decide that. If it went back to the,

for trial or district court, the jury would decide whether it sufficed whatever his use was. But I mean, we still have a lingering problem, don't we?

because the jury instruction would be something like is he unlawful user of and they would both talk about what is is is and what is the user is. So, yeah, I don't know. It seems kind of like an easy case in some ways. If the court wanted to rule in favor of Hameen,

It would be kind of easy to do that. But they might not want to go there. I mean, certainly even if they're ruling in his favor, they're going to in no way that this law is invalid in all applications. And so the people are going to continue to be arrested if they're unlawful users of it.

speaker-1 (15:46.352)
No, it was not in there.

speaker-1 (16:05.576)
Well, I think, you know, some people said Rouhimi weakened the Bruin standard. I don't think it did because the two analogies they used, as you said, the Afraid Law going armed in a way to terrorize other people and then the surety laws where if you threaten other people, you're required to put up some kind of what we call bond today, which you would forfeit if you were naughty again.

And the court said that's close enough. And the reason it's close enough is that under the current federal law, there has to be a judicial finding that the person is a physical danger or a danger to the physical safety of a domestic partner. so...

And Justice Thomas, he dissented and Rahimi, he was the only one who dissented. And he said that's not close enough, but eight members of the court said it was close enough. It's not for me to, both sides gave good arguments. But that's the standard. And I think...

speaker-1 (17:26.242)
Well, I think we will and don't forget also there's another pending case about

speaker-1 (17:43.374)
carry in public. so the Hawaiian law makes it where you can't carry in public basically. Okay, carrying out a permit, which you can't carry anywhere to speak of. And so there, I think that's going to be an easy case, an easy victory for the Second Amendment, because that is such an unprecedented law from the founding period. And so there you've got the state of Hawaii making an argument that,

Here's what, there were two laws they said are relatively similar. One was a kind of a no trespassing no hunting law from New Jersey in 1777 or something like that. And the other one was an 1865 Louisiana law, which was really one of the black codes. It was like they wanted freed slaves not to be able to have guns.

And so they made it into a kind of a trespass law if you carry a gun in certain kinds of public places. I mean, that's an embarrassment to, I think, rely on that kind of law because it was part of the black vote provisions that the 14th Amendment did away with. So anyway, there's another opportunity for the court to pronounce on what's relevant.

speaker-1 (19:16.526)
So think what most people are hoping for is they'll consider a case banning semi-automatic rifles and standard

speaker-1 (19:31.342)
We've got a handful of states now with laws that ban what they call assault weapons. There's nothing to assault about them. Virginia, the state where I'm from, is in the process of enacting such a law right now. It was passed by the legislature, the governor, sent it back with some suggestions or something, but it'll pass. in turning down a cert petition about

the justice Kevin all made a statement when the court denies her saying that we think that these cases are percolating on this issue and he basically gave his prediction that these laws are adverse to the second amendment and the court may well take one of these cases and that's

speaker-1 (20:33.94)
Well, they don't tell me anything about what happens in their chambers. yeah, I don't know. Maybe they want to do some other second-memor cases first and everybody knows this is very highly controversial.

speaker-1 (21:02.222)
DC, he rendered a dissent in the Heller 2 case saying that the DC ban on so-called assault weapons was unconstitutional. I litigated that case. at that time, Brett Kavanaugh was not a well-known judge. And then some years go by and lo and behold, he gets nominated for the Supreme Court. But mean, he really had it nailed down correctly about the DC law.

he would be a sure vote for invalidating one of these fans.

speaker-1 (21:51.488)
Right. But I have to say, most of the cases on that issue have been summary judgment or denial of

The case about the Illinois law that's still in the Seventh Circuit Court of Appeals, they had a full trial, had experts on both sides, and so they have the heck of a record in that case.

Well, but we need them to decide it because it's been like nine months and there's no decision. Are they waiting for the Supreme Court to say something or is the Supreme Court waiting for them to say something? And so time goes on and we still have these bans. I all of us would wish, I think we all hope that they'll take on one of these cases and then the magazine issue obviously too. And there has been at least one

really thorough trial.

Southern District of California and the Nats Circuit.

speaker-1 (22:59.8)
need much more percolation on the magazine issue.

speaker-1 (23:25.154)
think every challenge to any of the 922G provisions are going to have to be applied as applied challenges. As far as the felon in possession provision, that's subsection one. No court has recognized that as being invalid in all applications. I mean, look.

If your felonies murder or rape or something nobody's gonna have a chance in arguing that that doesn't have a founding-era analog but if it was food stamp fraud, and you were like

20 years old and now you're 50, that's a different story. so some courts, they recognize as-applied challenges on the felon in possession provision. Other courts do not recognize that, the fourth and the seventh, for example. So I think with most of these,

is going to be as applied and some of them I don't think there's any chance that they would ever win an as applied challenge like if you're an illegal alien you're not a citizen you don't even have a right to be here and so why would a court say you have second amendment rights you have a right to have a gun when you even have right to be here so but on the other hand you have the attorney general now

going to start considering disability removal petitions and so there's some alternatives to second amendment litigation to challenge some of these provisions. If you're in one of those categories you have a chance of having your gun rights restored.

speaker-1 (25:21.014)
Well, I finally found the collector's section on the map. It's right over here to your backside. That's the part I like the best with some of these historical arms that are on display. That's a real treat to see those every year or so. So, good to be on the show again, Alex, and hope to see you next year.

speaker-1 (25:43.0)
There. Okay.

speaker-1 (25:56.056)
You can

speaker-1 (26:18.798)
I