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Legal News, Part I: Apparently, There ARE Limits to the Second Amendment

On Friday, the Supreme Court handed down its ruling in U.S. v. Rahimi, a case that challenged the federal government's right to bar domestic abusers from owning guns. With Chief Justice John Roberts writing for the 8-1 majority, the Court said that it was acceptable to do so in cases where the abuser has a restraining order against them. Thus did the Supremes overturn a ruling from the arch-conservative Fifth Circuit, much to the disappointment of Associate Justice Clarence Thomas—who was, unsurprisingly, the "1" in the 8-1.

Lawyer-reader A.R. in Los Angeles sent in a few remarks on the ruling:

It turns out that the Fifth Circuit is too far-right even for this Supreme Court, as SCOTUS overturned the Fifth and upheld the federal law banning gun possession by those with a restraining order against them. In writing for the majority, John Roberts goes to great pains to say that they're not retreating from their position that everything is frozen in time in the 18th and 19th centuries when it comes to the Second Amendment. No need to abandon originalism here because, as luck would have it, there were analogous regulations even two centuries ago to keep guns out of the hands of dangerous people. Whew! The Court can continue its march back in time, while also protecting women from the abusers who would otherwise murder them. Of course, Clarence Thomas wouldn't even do that. His lone dissent insists that because, in colonial times, domestic violence was a "private matter" and such "interpersonal" affairs would never have been regulated, modern attempts to prevent spousal abuse by taking away the abuser's gun violate the Constitution. That's the type of tradition he wants to revive.

This could be why Associate Justice Amy Coney Barrett has been doing some line-drawing in the past week. Even more interesting than the outcome is the conversation Associate Justice Brett Kavanaugh and Barrett seem to be having with their concurrences. If there's such a thing as man-splaining in a Supreme Court concurrence, Kavanaugh's is it. He is essentially giving an exhaustive (and boring) lecture over 24 long pages on originalism and all its nuances and applications, as he sees it. He devotes a lot of ink to his mentor Antonin Scalia, as if invoking Scalia will lend more legitimacy to his musings. Kavanaugh responds to Barrett's criticism of the drift of "history and tradition" to encompass the late 19th century, which, last time I checked, was well after the country's founding. According to him, this "post-ratification" analysis is equally important in illuminating how to ascertain original intent. And anything else, like the strict-scrutiny analysis the court has employed for other rights, is just "policy-making" cloaked as judicial interpretation. I found the whole thing to be dripping with condescension.

Barrett, meanwhile, more fully explained her skepticism about this practice (while only taking 4 pages to do it). One note: don't confuse her careful parsing of the practice as a rejection of originalism. Not at all—she just wants it to be actual originalism and not this fake nonsense that the other conservatives are peddling to get to their desired result. As she notes, "particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law." And "historical regulations reveal a principle, not a mold."

So, while encouraging, I'm not prepared to say we're at 3-3-3. We'll know more when the Emergency Medical Treatment and Active Labor Act (EMTALA) decision comes out. If Barrett votes with the other women that states can't deny women emergency healthcare, then we may have an interesting shift happening.

Thanks, A.R.!

To this, we will add the political dimension, which is... there isn't one, we think. Democrats can't take ownership of the Rahimi decision because it was accomplished with more Republican-appointee votes (5) than Democratic-appointee votes (3). Republicans can't take ownership because much of their base will be unhappy about anything that trims the Second Amendment. And Republicans can't rail against the decision because it was their justices who made it, and because "on the side of domestic abusers" is not a great place to be.

However, there are some other decisions likely to come down in the next week that are going to be giant hot potatoes, from a political vantage point. The EMTALA case is one of those, while the Trump immunity case is another. Normally, the Court releases opinions on Mondays and Thursdays, so one or both could come down today. Alternatively, they could drop the hottest of hot potatoes, which is the Trump immunity decision, on Thursday. That might deflect some attention, since there will be so much focus on the debate. On the other hand, it might heighten attention, since there would likely be a debate question or two about the decision.

SCOTUS could also wait until next Monday for the Trump decision; that's the last "regular" decision-announcing day before the Court's self-imposed, though occasionally disregarded, deadline of July 1 for releasing decisions. Another possibility is to release it on a non-standard day, like this Friday, which the Court does on rare occasions. We'll note that Samuel Alito has been absent from the Court for the past couple of sessions, leading to conspiratorial thinking that he's dragging his feet so as to keep the Trump decision on hold for as long as he can. If so, then any release date is possible, including something well into July, or even August.

One last thing worth noting. Roberts' decision in this case tried to establish two pretty clear standards. The first was that there are historical analogues for bans on abusive people having guns. The second was that if you have a restraining order, that means a judge has weighed in and decided you are dangerous. Not so for accused domestic abusers who don't have restraining orders, and so are still legally allowed to have guns.

So, for a gun ban targeted at specific people to be legal, there has to be historical precedent, and there pretty much has to be a judge involved in making the determination. You know what they didn't have 200 years ago? Laws banning drug users from buying guns. And you know who was never subjected to court scrutiny during his period of gun ownership? Hunter Biden. So, he and his lawyers (privately) cheered Friday's ruling, because they now have all kinds of ammo (no pun intended) to try to get his conviction overturned. (Z)

Legal News, Part II: Fake Electors Case Dismissed in Nevada

It took a long time for Nevada Attorney General Aaron Ford (D) to bring a case against his state's fake Trump electors. And when he did it, he chose to pursue the matter in Clark County, which is where Las Vegas is located. Ford had an argument for doing so, since some of the fake electors live in Clark County, and since the scheme was effectively an attempt to defraud all Nevada voters (or, at least, all Nevada voters who voted for someone other than Donald Trump). However, it surely did not escape Ford's attention that Clark County is the state's bluest county, while most of the rest of Nevada is very red. Here is the state's 2020 electoral map:

One county in the south, and one in the northwest, are blue. All others are red.

The only other blue county, besides Clark, is Washoe, which is where Reno is located.

Judge Mary Kay Holthus thought this decision was kosher enough that she allowed the trial to be calendered (it was supposed to start in January). But, asked by the defense to consider the question of venue, she concluded that they had a point. Announcing her decision on Friday, she said that Carson City County (yes, that is the correct name) is where the case should have been filed, since that is where the fake electoral certificates were signed. So, she dismissed the case without prejudice. Note that Carson City County is roughly 20 points redder than Clark County.

This decision left Ford with three choices. First, he could attempt to refile in Washoe County, which is much closer to the "scene of the crime," but is still blue. That is defensible (and Holthus hinted as much) because Washoe is much larger than Carson City and so is better equipped to handle a high-profile case. Second, he could attempt to refile in Carson City, where there would be no question of venue, but plenty of fanatically Trumpy voters. The issue with either of these options is that the statute of limitations (3 years) has run on the underlying crimes. That may or may not be an issue, since the clock theoretically stops once an indictment is filed. But it's an angle that the defense has vowed to pursue if Ford tries to re-file.

The third option is to go to the Nevada Supreme Court and ask them to overrule Holthus. This is the option that Ford says he will pursue. This makes sense, since he's going to end up arguing procedural questions one way or the other, and this route is the only one that gets him the Clark County jury he wants. If he loses on this line of argument, he can still go back, try to re-file, and argue that the statute of limitations does not apply.

After Holthus announced her decision, Republicans were curiously quiet about it, despite its ostensibly being an exoneration. Why? We don't know, but here are some theories:

Anyhow, this story is at an end for now. We'll see soon if the case rises from the dead. (Z)

There Are Some High-Profile Primaries Tomorrow

Another round of primaries is nigh, and there are some biggies this week. (V) normally writes these previews, but given his current travels, it's up to (Z) to take a crack at it, so keep your fingers crossed. Here we go:

And now you have your viewing guide for Tuesday night. (Z)

It's Debate Week!

The stars have aligned in such a way that this week's presidential debate could be the most impactful in recent memory. Maybe the most impactful ever. So, we'll probably have an item each day this week, running down that day's storylines. Here's the first round:

And there you have the weekend's storylines.

Also over the weekend, we asked the readership if they would prefer we liveblog the debate, as opposed to doing a write-up after. The response was substantial and it was a massive landslide—we're talking 98% here. And what that 98% said was "stick with the write-up." Many readers explained their (very solid) reasoning. For example, reader A.H. in Newberg, OR:

My $6.45

There is enough live commentary out there on every other website and cable channel as well as the blogosphere. Electoral-Vote.com does analysis and write up exceedingly well (IMHO), stick with what you do best.

Side note: $6.45 will buy you a Venti Hazelnut Latte with non-fat milk and whipped cream on top at Starbucks, but that is for GAWD. I will stick with Electoral-Vote.com and a classic Oregon Kraft IPA.

If anyone tells you inflation is no big deal, just point out to them that "my two cents" is now "my $6.45." That's an increase of 32,250%! Anyhow, we chose A.H.'s response as an example because it was short and pithy. Other respondents pointed out that liveblogging is only useful for people who are going to watch the debate in real time, or that it doesn't allow for broader conclusions to be drawn, or that it's hard to pay attention to a debate AND a liveblog at the same time.

With that said, there is at least one reader who said it might be nice to have an online chat with other readers. If that is of interest to you, here are the details provided by that reader, B.J. in Arlington, MA:

I suggest that the interested readership of this site have a live chat during the debate. I've created a chat room on Slack for this purpose. Anyone can join via this invite link: https://join.slack.com/t/electoralvote/shared_invite/zt-2l6nlrjd3-kIg6wVCXMn75AP~eByMTEQ

When you sign up, set your "display name" to your initials and location, like on the Electoral-Vote.com weekend posts, so we can recognize each other and also to preserve everyone's privacy. For example, I've set mine to "B.J. in Arlington, MA."

After accepting the invitation to join the chat room, join the #debate-june2024 channel. The direct link to that channel is https://electoralvote.slack.com/archives/C079ASY9EBU. I'll be in the room on Thursday, as soon as I get my kids to bed (which may or may not be by 9:00 p.m. ET).

We hope that some readers find that option appealing.

Also, there were several requests to do something along the lines of "debate bingo" again. That's possible, but we could use assistance in two ways. First, if you have ideas for what the bingo items should be, please send individual suggestions or lists to comments@electoral-vote.com, ideally with subject line "Bingo Squares." Note that the suggestions should be things that are reasonably likely to come up, and that are basically indisputable when they do happen. For example, "Biden cabinet member mentioned by name" or "Someone says 'MAGA.'" Also, note that we would need these suggestions by Tuesday at 11:59 p.m. PDT in order to pull things together in time.

The second thing we could use help with is if a few readers were willing to watch the debate for when the squares are actually checked off. If you're up for that duty, let us know at comments@electoral-vote.com, ideally with the subject line "scorekeeping."

More debate news tomorrow, undoubtedly. (Z)

Odds of Peace in Israel Anytime Soon Are Getting Longer by the Day

We wrote last week that if Joe Biden is going to win reelection, it is exceedingly likely he will have to do it despite the situation in Gaza, because a resolution there anytime soon is becoming a remote possibility. There were even more developments on that front over the weekend.

First up, fresh on the heels of declaring publicly that the White House is withholding armaments, Israeli PM Benjamin Netanyahu made two announcements. The first announcement is that he's backing away from the various ceasefire proposals out there, including the one backed by Biden and the U.N. Security Council. That means that both Hamas and the Israeli government are officially "out" when it comes to the Biden proposal, as currently constituted. The second announcement is that the Israeli army will soon wind down the most "intense" phase of the war with Hamas, so that Israel can focus on its border with Lebanon.

What explains these two shifts in posture? We are not expert enough to say with any certainty. But what we can do is share some theories, one or more of which may be the answer:

If you want to look for good news for Biden here, you have to squint really hard, and even then you might not find it. The best we can come up with is that if hostilities in Gaza really do wind down, then maybe there will be a dramatic reduction in the horrors there, and some angry American voters (e.g., the protesters) will become less angry.

On the other hand, if you want to look for bad news for Biden, that's easy to find. His ceasefire proposal is effectively dead, and it's hard to see what alternative might make headway. On top of that, whatever partnership he had with Netanyahu looks to be fraying, and the PM clearly has no problem poking Biden in the eye, with his speech before Congress just a month away. And finally, if this somehow goes from being one ugly war to, effectively, being two ugly wars, then... yikes. What a mess for the White House. (Z)


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