We are back with an unexpectedly concise episode focused on last week's "ghost guns" decision, Bondi v. Vanderstok. But first we talk about the calls to reconsider the Court's Confrontation Clause doctrine and also return to the number of votes needed to call for the views of the Solicitor General (CVSG).
We are back with an unexpectedly concise episode focused on last week's "ghost guns" decision, Bondi v. Vanderstok. But first we talk about the calls to reconsider the Court's Confrontation Clause doctrine and also return to the number of votes needed to call for the views of the Solicitor General (CVSG).
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, we are aiming to keep this one short today. We'll see if we succeed. But our strategy for that was I have a set in time when I'm supposed to go home. So, that does mean we're going to scale down the ambition a little bit, rather than saying we're going to talk about two merits opinions and then only going to get to one, I think we're going to say we're only going to get to one and presumably, we can neither over promise and under deliver, nor under promise and over deliver we're just going to promise and deliver.
Will: Not yet had an episode where we said were going to get to one and then didn't get to any? [Dan chuckles] That may yet happen.
Dan: I'm not even sure that's true. I'm sure, [Will laughs] listeners, could you find an example of that please, because I bet there's something like that. So, we'll dig into some stuff, maybe a couple pieces of follow up. One is from Will Frankel, 1L at Stanford Law School and a fan of the show. We talked last time about, I am stunned, which was in Justice Alito's dissent in a shadow docket case and how that was unusual.
Will found a couple examples where something like that had appeared in prior Supreme Court decisions. So, one is the phrase, perhaps almost anyone would be stunned if a state sought to take away a man's house, because he failed to prove his political loyalty, refused to answer questions about his political beliefs.
That's from a dissent by Justice Black in a 1971 case Law Students CR Research Council v. Wadmond, and then a dissent by Justice Marshall in Kleindienst v. Mandel in 1972, where he said, “I too am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission.” So, a couple examples, early 1970s, hasn't come back up since then, as far as we can tell. Not sure what to make of that.
Will: That's interesting.
Dan: But there's very little new under the sun. I've got one thing that's new under the sun that we'll get to in a little bit. One other piece of feedback from friend of the show and noted Supreme Court advocate, Willie J. We were talking last time about the question about how many votes are necessary for the Court to call for the views of the Solicitor General, as we say, a CVSG. He suggested that maybe people have overread the statement by Justice Breyer in Medellin, the Medellin case, as suggesting it's for, he says, “Possible that even the famed treatise writer Stern and Gressman may have misinterpreted this.” And so, to the extent that there's other evidence out there, including the Rehnquist letter that you alluded to last time, Will, suggesting it's three, we shouldn't necessarily read the Breyer letter to contradict that.
The question in the Medellin case was whether they should grant a stay in light of the CVSG. And Justice Breyer says the following. “A sufficient number of Justices having voted to secure those views,” meaning, those views of the Solicitor General. And then he says in parenthesis 4, “It is particularly disappointing that no Member of the majority has proved willing to provide a Courtesy vote for a stay so that we can consider the Solicitor General’s view once received.” And Willie says, “I always thought that by a sufficient number of Justices,” four, he meant there were four Justices having voted to CVSG in that case, and that four votes were sufficient, but didn't speak to whether fewer votes might be sufficient.
Will: Right. So, in this view, I guess we often do distinguish between sufficient and necessary conditions. So, you might say four is sufficient, but it doesn't mean that four is necessary. It could be that only three is necessary. But of course, four is more than three, so it exceeds the necessary number. It's sufficient even if you don't need all four.
Dan: Yeah. Nine would be sufficient.
Will: Right. A sufficient number of Justices-- [crosstalk].
Dan: [crosstalk] Pack the Court, fifteen would be sufficient.
Will: That's interesting. If we pack the Court, does the rule of four change or do we stick to the rule of four?
Dan: I don't know. It'd be up to the Justices, right? It's not-- [crosstalk]
Will: What is it? Would it be up to Congress or is-?
Dan: I think that the rule of four is not statutorily codified. It was something that the Justices talked about with the Court when the modifications were being made to the Court's appellate jurisdiction way back when. But I don't think there's any statute that explicitly says, that's the rule. But my point is, whatever the rule would be 15, 100% of the Court would be sufficient in that universe.
Will: Yeah. Okay. It's an interesting point. Just further shrouds in mystery, how many votes it takes to CVSG. Maybe we know even less about that than I suggested we did last episode.
Dan: Yeah. Lots of uncertainty behind the velvet curtain at the Court. Is the curtain velvet?
Will: What else would it be?
Dan: I don't know, it's soft and plush. I think it's velvet. Other shadow dockety stuff. There's some Trump applications coming down the pike on the shadow docket, but the Court hasn't acted on them as of recording time. So, we're not going to dig into those unless there's anything you want to flag.
Will: No, we can wait and see what happens. I'll just say, it's been interesting to see the Solicitor General plainly deciding which issues to take to the Court right away and which ones not to, and how to try to frame them in a way that they might have a chance in front of the Court. But we can wait and see how those shape up.
Dan: Yeah. Okay, so stay tuned on that. A couple interesting statements off the orders list. I found this one, Franklin v. New York. Kind of interesting. A statement respecting denial of certiorari by Justice Alito and then another one by Justice Gorsuch. This is about the confrontation clause.
Will: Yeah.
Dan: Justice Alito is saying, “Maybe we should grant cert in another case to reconsider Crawford v. Washington,” which is the case that really kicked off the confrontation clause revolution a little bit more than 20 years ago. And the reason being that he says that recent historical research has called into question Crawford's understanding of the relevant common law rules at the time of the adoption of the Sixth Amendment.
And in his understanding of that research, he's a little unclear on exactly which way it would end up cutting. But I think under his understanding, it would dramatically narrow the scope of the confrontation clause. Is that correct? He seems to think that the way we should understand the word witnesses in the confrontation clause should be to limit it only to people who are actually testifying in Court.
Will: Yeah. I think that's right. This dissent is a little bit all over the place in that it's like one point it makes is that Crawford is a mess. And then a different point it makes is that there's a formalist flaw in Crawford that would lead to narrowing Crawford and then there's still another point.
Yeah, I think the core argument, which is a critique that was made in Crawford itself and in earlier cases like White v. Illinois is a point that was made by the second Justice Harlan, and that was originally made by Wigmore in some of his writings about evidence and confrontation. But the basic argument is that when the confrontation clause says, “Confront the witnesses against you,” it means if people show up in Court, you get to cross examine them.
Dan: Yeah.
Will: But that the confrontation clause is silent about who gets to show up in Court. This theory is like that's what the hearsay rules are for. The hearsay rules are not constitutionalized. And the confrontation clause is just a procedural rule that once somebody becomes a witness in Court, you get to cross examine them.
Dan: But it would not implicate out of Court statements that someone else is introducing.
Will: Right. Assuming those are allowed by hearsay rules, then the confrontation clause just doesn't speak to them. You're going to make fun of me for this. I thought about writing this up back when I was clerking. [chuckles] I was going to call it the confrontation clause and its discontents, I think, although I think it turns out that “X and its discontents” is a way overused… [crosstalk]
Dan: Yeah, it is little played out.
Will: Yeah. But most of the good ideas were already in Wigmore and Harlan, and so you could just take them and spin them out a little bit. And then, I decided that the Court had actually answered them sufficiently well in White v. Illinois, and Crawford itself that I didn't really have anything new to add.
Dan: That sounds like too small a ball for you.
Will: Well, I was just starting out. I was trying to learn what an article was. I'm really struck by this. Crawford v. Washington is 2004, and is often held up as one of these originalist triumphs, which Justice Scalia overturns the doctrine in an originalist direction for a mixed coalition of the right and left wing of the Court. It's held up as recently as like Rahimi and Bruen as examples of how the Court is making doctrine more originalist and formalist. And less than 21 years later, now we're already turning on it, maybe that's just the fate of legal doctrines is one generation has a good run and then…
Dan: Well, I mean, who's we? Justice Alito has not really been on the train since the beginning, right?
Will: Well, he wasn't on the Court for Crawford. I think this is-- [crosstalk].
Dan: But in the post Crawford cases, he was really a big dissenter very shortly after, right?
Will: Yeah. I think this is the first time he's actually publicly admitted he's against the Crawford enterprise rather than just trying to-
Dan: Narrow it.
Will: -narrow it or fight over the testimony. This is something I think is very interesting. So, one of his complaints is that Crawford is unstable. He has all these quotes, string cite of law professors saying astonishing, morass, incoherent, unstable, doublespeak, etc., about the Crawford doctrine.
Dan: Can't you do that for every constitutional rule?
Will: Maybe. But also, isn't half of this Justice Alito's fault? [Dan chuckles] You've got a bunch of Justices in the Court fighting a rearguard action against the Crawford rule, and sometimes they succeed [chuckles] and then you get an unstable doctrine and then you complain that it's unworkable?
Dan: Yeah. They end up in some of these cases where the Court does something that's just nonsense, right?
Will: Right. Williams v. Illinois, which is a complete mess of a case about expert witnesses. And Justice Alito tries to push this idea that these are not being offered. These, out of Court statements by the expert witnesses are not even being offered for truth, and so they don't implicate the confrontation clause, which the Court, I think, basically repudiated last year in Smith v. Arizona. Yeah, there's a lot of that.
Dan: Yeah. Because this used to happen in the abortion context too, I guess. There are all these cases where the Court would try to narrow Roe and Casey and then you get these opinions on the Justices saying, “The Roe and Casey rules proved unworkable, as evidenced by the fact that we have sometimes, but not always, succeeded in narrowing it.” I find that a little funny.
Will: We do have an another one in this same case, as I mentioned, by Justice Gorsuch, who also is just respecting denial, not dissenting. But he seems to be taking a much more pro-confrontation clause approach here. He's critical of the test that the Court had developed and lower Courts are using to figure out the difference between what's testimonial and thus covered by the clause and what isn't-- this idea, whether that the primary purpose is for producing in Court testimony. He seems to think that distinction doesn't make any sense. Makes some good arguments. I think, and again, he's not giving us all of the right answers, but he seems to suggest maybe where we would land is a broader confrontation clause.
Will: Yes. Right. I think Justice Gorsuch has previously written these questions the testimonial limitation at all, why should you get to confront all the witnesses against you, not just the testimonial ones, and doesn't like the purpose test. I don't quite understand what we would do instead, because this is where Justice Alito has a point is that we have to figure out what of the evidence introduced in Court against you is somebody out of Court serving as a witness against you.
Dan: I guess it would just be all statements, right?
Will: Maybe. Although even statements that are in no way about the-- Like, if I want to come testify about a conversation I have with a store clerk, can I just not mention what the store clerk said in return even if the-- [crosstalk]
Dan: Yeah. I don't know.
Will: Richard Friedman, professor at Michigan and expert in the confrontation clause and author of The Confrontation Blog, a very long running blog on these issues, suggested he agrees with Justice Gorsuch, they should get rid of that test, but replace it with one based on the reasonable anticipation of a person in a position of the purported witness, which might just be the same test but in an objective framework rather than a subjective framework.
Dan: Yeah.
Will: I'm not sure if that would do what Justice Gorsuch wants it to do. So, I don't know. With opinions like this, these are the times I think maybe we should just leave the confrontation clause where it is doing fine.
Dan: Yeah. Maybe it's good enough rather than reopening everything. There was one interesting side note in Justice Alito's opinion which where he says, “Our body of constitutional decisions would be in perpetual turmoil if we reconsidered every decision resting on an interpretation of history that is subsequently challenged in the law reviews.” That does seem important and it does seem like that's something that originalists who put a ton of weight on history need to grapple with. It seems like you either need to accept turmoil or have a fairly strong approach to stare decisis, right?
Will: Well, that is subsequently challenged in the law reviews? Sure.
Dan: Yeah. As phrased that way, that's a little bit silly.
Will: I do think on the whole, the problem is the opposite. On the whole, the problem is that the Court under-reconsiders its cases rather than over-reconsiders its cases. It's not like the Court is currently overturning too many cases or reopening too many things on the basis of the historical evidence. They could stand to reopen some more. I agree there's a point which goes too far, but I don't think we're anywhere in danger of that.
Dan: Okay. All right. Anything else before we, I guess, get to the actual decision?
Will: Should we mention just briefly Hoffman v. Westcott?
Dan: Remind me which one that one is. Oh, yes, that's another Justice Gorsuch, right?
Will: Yeah. He's on a roll.
Dan: Yeah.
Will: This was a recent execution that was in the state of Louisiana, which the Court 5-4, declined to stay. But Justice Sotomayor, Justice Kagan, Justice Jackson would have granted the application for a stay of execution, and so would Justice Gorsuch, who wrote separately just to say that he thought there was a serious question of whether the execution violated RLUIPA, The Religious Land Use and Institutionalized Persons Act, because the use of nitrogen hypoxia was allegedly going to prevent the condemned man from being able to engage in Buddhist mindfulness at the relevant period.
Dan: And focused the right kind of breathing.
Will: Yes. And so, Justice Gorsuch said, “I would have stayed the execution to look more careful at the RLUIPA claim,” which the circuit hadn't even really addressed. It's interesting.
Dan: Yeah. The Buddhist came up was it two years ago?
Will: Well, there was the issue about having spiritual advisors.
Dan: Spiritual advisor in the chamber. Yeah.
Will: Yes. And there were cases involving a Buddhist and a Muslim and a Christian.
Dan: Yeah. They let the Muslim die without the spiritual advisor, but they did let the Buddhist get the guy in the chamber.
Will: Yeah. But I don't think that was why.
Dan: No. No.
Will: Well, I hope it wasn't why.
Dan: It was one of many facts in the mix. I know one of the other explanations given was lawyering choices were a little different in the Buddhist case.
Will: There was a lot of like, “Did you file on time or not?”
Dan: Yeah.
Will: But since there's no rules about this, it was not clear what on time meant. But it's just another interesting spot from Justice Gorsuch.
Dan: Okay. I feel like there was some other Justice Gorsuch thing I was trying to remember where he in a crim pro thing, would have gone even further than Justice Scalia, but now I can't remember what it is. You know what I'm talking about?
Will: Not off the top of my head, but I do think that happens all the time.
Dan: Okay. Yeah, I'll see if I can dig it up. Okay. So, let's do our one and only merits opinion today, which is a case, Bondi v. Vanderstok.
Will: Mm-hmm, opinion of the Court by Justice Gorsuch.
Dan: And it's a case about statutory interpretation, and also a case about administrative law?
Will: Maybe. Yeah.
Dan: Yeah. So, what's going on here?
Will: All right. So, this is one of the more high-profile cases the Court has, I think, often just thought of as referred to as the ghost guns case. It's about an ATF rule about the federal regulation of firearms that do not have serial numbers, because they are put together out of kits, right?
Dan: Yup. And kits that are designed in various ways to require more or less labor to take them from the kit into a usable gun. It seems like there's a spectrum of how these kits work.
Will: Yes. And obviously, there's just a general philosophical problem you can imagine the abstract, which is that guns are regulated. Random pieces of metal and plastic are not regulated. But take enough random pieces of metal and plastic, and at some point, they become a gun. And so, one natural question for the law is, when do a bunch of pieces of metal and plastic become a gun?
You could imagine a rule which is now what we have that's like, well, only if that's a thing that you can pull the trigger and it fires. But then, of course, somebody would just take one little piece off the gun, say, it's not a gun, and you could sell it and replace the piece. And these kits, in a way, are just pushing that question back several more steps, right? These are all regulations under the Federal Gun Control Act of 1968, which contains a definition of firearms which is part of what the Court has to work with here. So, should I read the definition?
Dan: Yeah, it’s helpful.
Will: Page two of the opinion for those following along. But a firearm includes, A, “Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” B, “The frame or receiver of any such weapon.” C, “Any firearm muffler or firearm silencer,” or D, “Any destructive device.” So, this case is about A and B, a weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, and B, the frame or receiver of any such weapon.
Dan: And B is maybe a little harder than A.
Will: A harder, which way?
Dan: Harder for the government.
Will: Really?
Dan: I think so?
Will: So, let's talk about it.
Dan: Okay. And just to be clear, the ATF has interpreted this text in one way, and then they to address this problem, they interpreted it a little more broadly to make clear that they understand this provision to apply to these ghost gun kits.
Will: And so, maybe the first thing to say before we get into those two definitions then is first two things to say. So, one is the basic procedural history. This rule was held invalid by none other than the Northern District of Texas and then largely affirmed on appeal by the Fifth Circuit. And so, the Solicitor General brought it to the Supreme Court. So, it's another one of these North District of Texas and the Fifth Circuit rule against the Biden administration.
The administration goes to the Supreme Court to try to be vindicated. The Trump administration, so far as I know, didn't do anything to say, “We rescind the rule or we're not on the side,” or whatever. But the action came from there. And the Supreme Court is now 7:2 ruled that the Biden administration was right, and the Northern District of Texas was wrong.
One other interesting thing is how they frame this. This is the administrative law point you mentioned. So, the Court begins by saying, “Well, this is a facial challenge to these rules.” So, the government wins as long as some gun kits fall within the scope of the statute, because that means the rule is at least valid in some applications. And we won't get into whether any particular gun kit does or doesn't satisfy the statute.
Dan: And this mode is not obviously the normal mode for a statutory challenge to an administrative rule, right?
Will: Well, what would the alternative be? I think you're right, but what would the alternative be? The alternative be, if you can imagine any hypothetical gun kit that's covered by the rule but not the statute, then the rule's invalid?
Dan: Is there not something in between those two things? I mean, is it not possible to have a rule that just says, “You look at what the petitioner, the challenger, actually wants to do”? Is that not possible? Do we want to be able to do a broad challenge to the rule generally?
Will: Well, you could. So, I think we 50 years ago-ish adopted a rule that allows facial challenges to rules before they've been enforced. You could not have that and say, “No, everybody's just got to go on the basis of their own specific facts. That might be good.” But if you're going to let people come in advance, because this is not a criminal prosecution.
You could just say, it's a criminal statute. When they prosecute any given gun kit maker, they can come and argue about their gun kit, or maybe even that specific gun kit maker can seek injunctive relief about their specific gun kit in advance. But that's not normally how we do administrative law either. People come in and challenge the whole clean power plant or the whole regulatory framework.
Dan: Yeah. And in a pre-Loper Bright world, I guess you would look at the rule and say, “Is this an unreasonable interpretation of the statute,” right?
Will: Yeah.
Dan: Is this a question that we now have to deal with a lot more?
Will: I do wonder if that might be right now. I'm not sure that the ATF ever got Chevron deference.
Dan: Yeah, I'm not sure about that.
Will: Maybe this is the kind of thing that we'll see for more rules, because you want people to just as categorically say, “I'm not sure.”
Dan: Yeah. It does seem like the fact that the rule is slightly imperfect probably shouldn't doom it. Maybe there's reasons to not always require as applied challenges, but it does seem like maybe there should be some middle ground, substantially in excess of statutory authority, something like that.
Will: Yeah. Although you wonder also, is this really just a question of severability, in which case, could the rule just say every application of this rule should be severed and treated as its own independent rule? In which case you have to do this? I'm not sure. This is one of the complaints that the dissenters make. I'll just say now, so this framing is not unanimously accepted. Justice Alito complains in dissent that this is not how the parties frame the case. So, maybe the Court is doing this to dodge some more deeper problems about how to actually interpret the harder cases.
Dan: Yeah. And interestingly, there's some evidence of that. If you look at footnote two on page seven of the opinion, the Court basically reiterates its view that that is how the parties framed it below. And then, it says, “Nor on remand may the party seek to inject arguments about the proper tests they did not pursue here, citing a case about forfeiture of arguments, setting another case about law of the case,” the idea that earlier rulings in a case are presidential with respect to that case. So, it's really like very clearly saying, this is done, right?
Will: Yeah. Yeah.
Dan: Which I thought was a little aggressive.
Will: Yeah. Although in a sense, not surprising. They're surely anticipating if they don't do this, the Fifth Circuit will, on remand, just try to strike down most of the rule over again.
Dan: Yeah. But that suggests they really want this to go away.
Will: Yeah.
Dan: But yeah, the weird thing about this approach the Court does seem to be drawing on a test I'm more familiar with in the constitutional context, the Salerno test, where we do have this rule, although we can debate how rigorously it's applied. But we do have this rule that, if you're making a facial constitutional challenge, you have to show that the law is unconstitutional and basically all of its applications.
Will: Yeah.
Dan: It does seem like we're transporting that to this context. Maybe for good reasons, you raise some good points.
Will: Yeah.
Dan: Okay. So, we're going to do this facial challenge reasoning. And then, can you help us with the reasoning of how the Court is going to determine that this interpretation of the statute is permissible?
Will: Okay. So, we have both a part A question and a part B question. Part A try to keep repeating it, but it's the-- [crosstalk]
Dan: It's the weapon part.
Will: The weapon part. The weapon is something that a will or is designed to or may readily be converted to expel a projectile by the action of an explosive, and then we get to the frames or receivers. So, the first question is, can these weapons kits qualify as a weapon, right?
Dan: Yeah. And the answer is yes. Part of the reasoning relies on this concept of an artifact noun. [Will laughs] Were you familiar with this concept prior to this?
Will: No.
Dan: An artifact noun is a word for a thing created by humans.
Will: Yes, which are characterized by an intended function rather than by some ineffable natural essence. So, the problem here is the gun kit is not a weapon. It's a thing you use to make a weapon. In more ordinary, that would be the Fifth Circuit's view.
Dan: Yeah. Right.
Will: And so, Justice Gorsuch has to in textualist fashion, explain why you can think of a kit to build a weapon as a weapon, even though you wouldn't hit somebody with it and try to kill them. And so, first, he cites the various linguistic authorities and this artifact noun thing. But then-- [crosstalk]
Dan: Which, by the way, that phrase has never appeared in a federal judicial opinion. I did a search. Never in the Supreme Court, never in any other court.
Will: Now, here's what Justice Gorsuch means, and I'm curious what you think of these examples. “Reflecting as much, everyday speakers sometimes use artifact nouns to refer to unfinished objects at least when their intended function is clear. An author might invite your opinion on her latest novel, even if she sends you an unfinished manuscript. A friend might speak of the table he just bought at IKEA, even though hours of assembly remain ahead of him. In both cases, the artifact noun fits because the intended function of the unfinished object is obvious to speaker and listener alike.” You buy that?
Dan: I buy the second one, but not the first one.
Will: Yeah. I like the IKEA table. [crosstalk]
Dan: The IKEA table seems clearly right. The novel doesn't, because I don't think the author would say, “Yes, I asked my friend to read my novel.” They would say, “I asked my friend to read part of my novel, and that feedback they're going to give me is relevant to whether it's a good novel.”
Will: Yeah, although how finished and finished could it be? Like if I say, “Can I send you my article” and the article doesn't have the footnotes filled in, I don't think you would say, “Well, this is not an article.”
Dan: Yeah. Although, I guess that raises what strikes me as a slightly different question about like, when does an article become an article.
Will: Yeah.
Dan: Which is maybe not the same thing as here when there is a thing which is broken down into constituent parts and requires further labor, when does it actually become the weapon? I don't know, maybe those are the same thing. They seem feel a little different to me.
Will: Well, again, certainly if my article was in parts. So, if I had the text of the article, and then I had a bunch of sources and I just hadn't gone to the work yet to put the sources in the right footnotes.
Dan: Or, if you had five-word documents, one for each part in the introduction.
Will: And I hadn't assembled them.
Dan: Yeah.
Will: Right. Then that's an article. Now, another thing I have is a Dropbox folder with like 341 things that are going to be the basis for my article and I have a thesis.
Dan: Like an outline.
Will: Yeah. Certainly, if I had thesis and no outline, there's no way that's an article.
Dan: Yeah.
Will: Even if I have an outline, it's probably not in an article. I would say, “I'm working on my article,” and you would say “Can I see it?” and I would say “It doesn't exist yet.”
Dan: Yeah. And think about this. So, the IKEA example.
Will: Yeah.
Dan: So, IKEA table has pieces of wood, it has pieces of hardware. Those pieces of wood are typically pre-drilled. When you buy it, it might not be assembled any more than that. I think we agree that that's a table. I think we would also agree that if you went to Home Depot, and bought the same size pieces of wood and bought the similar hardware and brought it home, you would not say I have a table.
Will: I agree.
Dan: You would say I bought the parts necessary to build a table.
Will: Right. So, I think what's doing the work in these examples, and this is good for Justice Gorsuch, is partly the kit-ness. Like, the fact that this is a pre-curated set of stuff that somebody has decided is enough to make the finished object. Like IKEA is warranting you buy all this stuff together. It's a table kit.
Dan: Yeah. There's really nothing else you could use it for.
Will: You can. Look, people sometimes buy the IKEA tabletop and instead use it for something else. Hit somebody's legs if you wanted to [Dan chuckles] as a weapon. But there's nothing else you would use it for. Both the seller and the buyer understand the purpose of the kit to build the table. Maybe it's also related though that there's just not that much discretion, although there is some time in getting from the table kit to the table.
Dan: Yeah.
Will: If I sold an article kit that again consisted of thesis, the outline and 500 sources, that still probably just feels like there's a lot of ways to turn that into an article.
Dan: Yeah.
Will: Maybe when ChatGPT Pro gets a little better, so that I can just give all that to ChatGPT Pro and it'll produce the article-- [crosstalk]
Dan: It will produce the same article.
Will: Right. And produce consistently the same article will eventually understand that to be an article kit. But right now, that's more even like even if I just bought a bunch of lumber and said this is a table kit, I think.
Dan: Yeah.
Will: This gets to the point that maybe not all weapons kits are alike. There's a spectrum of weapons kits and how IKEA-like they are. But there are probably some that are sufficiently IKEA-like that they are tables, which is to say weapons.
Dan: And that just seems like it has to be right to me.
Will: Okay. I think it's right. The IKEA table really does it for me. [laughs] But it did not seem intuitively right to me when we started.
Dan: Well, what if you bought a gun and put aside the other provisions of the statute. But you bought a gun and just like the barrel was unscrewed or something. I don't even know how guns work. You got it in the mail. No one would say that's not a weapon.
Will: I don't think you unscrew the barrel, by the way, because it's part of the…[crosstalk]
Dan: I don't know. I don't know. I don't want to have guns in my house. They don't keep you safe. For part A though, we have the language, will or is designed to or may readily be converted to expel a projectile by the action of an explosive.
Will: Right.
Dan: Does that help us?
Will: Well, that clearly sweeps in your hypothetical gun with a missing piece.
Dan: Yeah.
Will: That's a weapon that's readily converted. We know the definition has to include not just totally finished weapons, but weapons that are to some extent unfinished. The question is just how far down the slope to a pile of parts can you go, and still be a-- [crosstalk]
Dan: Still be a weapon.
Will: When do you stop being an unfinished weapon and become a pile of parts that will one day be a weapon.
Dan: Yeah. Okay.
Will: The Court doesn't really answer that question as long as it's just confident that some of the kits are weapons and not just--
Dan: Okay. And in figuring out that some of these things are weapons, the Court does seem to be putting weight on how they are marketed and the kind of instructions they come with.
Will: Yes, which is, again, the IKEA test a little bit. IKEA sells it as a table. They include instructions that will turn it into a standardized table. And that's part of what distinguishes it from Home Depot, which sells big, flat pieces of wood and things to drill holes and pieces of metal.
Dan: Okay.
Will: Okay.
Dan: So, part B, frame or receiver.
Will: All right. That leaves us with the regulation of unfinished frames or receivers, which is regulated under a separate position of the statute, which again, we get a handy picture of on page 18 of the opinion.
Dan: And the pictures are kind of compelling. We see the difference between these two. One thing that's clearly a complete frame and the other is a partially complete frame. Basically, the difference seems to be incredibly slight. Plastic tabs, that can be removed by a person with novice skill using common tools within minutes.
Will: Yeah. So, what's the problem?
Dan: Well, again, same issue. It's not complete, right?
Will: Right. Let's see. Although-- [crosstalk]
Dan: So, it's this we go back to this idea of artifact nouns.
Will: Right. There is some point at which a frame ceases to be a frame, right?
Dan: Yeah.
Will: So, how do we know whether or not we've hit the point where a frame ceases to be a frame? But according to the Court, it refers back to the IKEA kit, that's a table, and say, “Look, you would call this a frame, even though you need a little bit of work left to complete it.” Page 19, just look again at the second photo. What else would you call it?
Dan: Again, I find this reasonably persuasive on common sense grounds.
Will: So, you started by saying that this one was harder than the first one. Is that because there's not the same language about readily converted?
Dan: Yeah. But maybe you've persuaded me that that doesn't matter, because you still have to answer the weapon question, I guess.
Will: Yeah. And then, there is also the B itself-
Dan: I'm not sure.
Will: -refers back to A. So, it's the frame or receiver for any such weapon in A?
Dan: Yeah.
Will: So, once we know that A can reach various kinds of kits that require various kinds of guided construction, then I think the idea is B just follows.
Dan: Yeah. We still need to figure out whether the thing is a frame or receiver.
Will: Sure.
Dan: And so, you could imagine it being disassembled into so many parts that there's nothing that we can describe as a frame or receiver.
Will: Yes. I do think technologically, yeah, that's not too likely. Like, that's a part of the--[crosstalk]
Dan: Just because they need to be solid to have structural integrity?
Will: Yeah. But there is a way-- Now, I’ve got to step back for just a second. There is a way in which this reminds me a little bit of tax law, that there's a regulatory category and there is obviously great demand to come up with something that is as close as possible to the regulatory category without being in the regulatory category.
Dan: Yeah.
Will: People want to buy guns that are not covered by the Gun Control Act. And so, people want to sell them a thing that isn't whatever the definition is just outside of it. They thought that tabs would be the answer. If tabs are not the answer, they'll do something else. If the problem is the instructions, maybe you'll buy a kit that comes with no instructions, but everybody will know to google the right YouTube video or if the problem is that they all come in one kit, maybe you'll have to buy two kits. So, I feel like the regulation and the analysis just push us back one step down that basic problem.
Dan: Yeah. Maybe that there is enough power to reach things that are weapon-like that the only way to get around it is to do something quite inconvenient. And maybe that will, at least, not make these guns impossible, but impose enough costs that it reduces their utility for crime. I don't know.
Will: Yeah.
Dan: Okay. But yeah, this whole opinion, I think it’s written like a Gorsuch hardcore textualist opinion. He's got his artifact noun thing, which I guess comes from linguists, but not a phrase I'd ever heard and not a phrase that any other judges have ever used for whatever reason. But it also seems to be behind the surface does have a little bit kind of a, “Come on, feel to it. The pictures.”
You look at the pictures, and these things look so similar and it's so obvious what's going on here, which is this attempt to evade a pretty serious law in a way that is seemingly quite harmful, potentially quite harmful. And I guess seven Justices are willing to say, “You can't do that,” at least sometimes.
Will: Yeah. I was going to say, do you remember the bump stock case?
Dan: I do. Cargill.
Will: Wasn't this kind of the argument that was made by the dissent in the bump stock case?
Dan: [crosstalk] kind of the common sense?
Will: Yeah. These bump stocks are obviously just there to convert these things into machine guns.
Dan: Yeah.
Will: And they serve no real purpose other than to convert things into machine guns. And so, as a matter of common sense, we should let ATF regulate them like machine guns.
Dan: Yeah. I guess that the majority in that case just found the textual argument the other way, more persuasive, as you did, as I recall. You thought single action of the trigger just had a meaning and there was just no way around that.
Will: Right. Again, I think that's right. But it's interesting that in the face of the same general policy concern, single action of the trigger, you can't get around that. But weapon--
Dan: Yeah, it is. It is-
Will: Weapon could be-- [crosstalk]
Dan: It is interesting that this divides the Court differently.
Will: So, I'm with you. The other thing that made me wonder was the discussion about machine guns towards the end of the majority opinion. So, one of the counterarguments raised by the plaintiffs is, “If you believe this logic, that the regulation of frames or receivers includes things can be readily converted into frames or receivers, that things that are not yet weapons but could become weapons, actually are weapons that stage 23.”
The plaintiffs and the dissent contend our interpretation of subsection B could invite a serious unintended consequence under a separate statute, the National Firearms Act, which bans the possession of machine guns, a term Congress has defined to include the frame or receiver of any such weapon. They go on to explain that, “If you count as a machine gun frame or receiver anything that can be readily converted into a machine gun frame or receiver, that'll include a lot of nonmachine guns.”
Dan: Yeah. The Court's response seems to be not super textual.
Will: Yeah, [chuckles] indeed.
Dan: Right. They just say, “Plaintiff spheres are misplaced.” The government says. “They don't qualify.” ATF has never suggested “otherwise, you got to look at context, and these are different statutes passed at different times to address different problems.” Not totally satisfying.
Will: As we have stressed, a statute's text and context are critical to determining whether and to what extent Congress used an artifact noun to reach unfinished objects. But did they stress that? I felt like we were working off of the IKEA table analogy, which didn't really rely on a lot of the text and context of the 1968 Gun Control Act.
Dan: [chuckles] That's true. That's true. Relied on context of--
Will: So, why is a machine gun not like an IKEA table, but a ghost gun is like an IKEA table?
Dan: I don't know. Maybe it's different, if they sell machine gun kits that are AR-15s with all the tools necessary to turn them into machine guns.
Will: Maybe. That's not what they tell us. Maybe that's what they mean, is that if you sell the non-repeating rifle with instructions about how easy it is to convert it, that'll do the work.
Dan: Is that the context?
Will: Maybe. Although I don't think the Court really wants it all to rest on the instructions, because as they discuss at various points, a lot of this stuff is just available on the internet.
Dan: Okay. Well, an interesting one. I found it just a strange and surprising opinion. I'm running out of time. So, we have a couple things to note. First, Justice Sotomayor has a concurrence, and she writes to address this fear that this is going to leave manufacturers in doubt. She says, “You can always go ask the ATF, and the ATF will give you a ruling.” And so, maybe that will solve the problem.
The second point I address is the suggestion that the act permits ATF to regulate only all but assembled weapon parts, kits and frames as close to completion as possible,” citing Justice Alito's dissent. She basically says, “That's not what we said. Go look at the majority.” So, it is the Court's ruling, not the one set forth by the dissents, that binds the lower Court. So, she's trying to get out in front of a seeming attempt by Justice Alito maybe to paint the majority's opinion narrowly.
Will: Right. Although, of course, this is a concurring opinion painting the majority's opinion broadly.
Dan: Yes.
Will: So, you got to read it yourself.
Dan: Yes. Concurring opinion by Justice Kavanaugh, who says, “Well, let's remember that there's a mens rea issue. Under the Gun Control Act, someone can be penalized for violating the licensing, recordkeeping or serialization requirements only if he does so willfully.”
He cites cases from other contexts where the Court has interpreted willfully to require not just knowledge of the facts that make your conduct illegal, which is the normal rule in criminal law, at least when knowledge is required. But actually knowledge that the conduct was unlawful, which is an unusual feature of federal criminal law. Most of the time in criminal law, we don't require that. But the Court has done that, at least in some contexts where that language appears.
Will: Yeah. But then the statute actually has only knowingly for background check violations?
Dan: Yeah.
Will: But then he got the government to concede that they probably wouldn't charge someone.
Dan: And he says, “I expect the government will seek to avoid the potential fair notice problem by adhering to its oral argument representation that it would likely decline to bring charges in those circumstances.” Okay, so he's got you covered. You got mens rea one side, and then you've got his promise extracted from the government on the other.
Short concurrence by Justice Jackson, where she's talking about the proper mode of analysis, the proper standard review. She says, “Proper excess of authority review must focus on actual statutory boundaries, not on whether the agency's discretionary choices overlap precisely with what we, as unelected judges, would have done if we were standing in the agency's shoes. And whereas here, the statutory's boundaries do not foreclose the agency's action, the excessive authority claim should meet its end.”
Is this like an attempt to bring back Chevron light?
Will: Yes. Yes, there's some real anti-Chevron energy there. It's technically consistent with Loper Bright. But anti-Loper Bright energy? But yes.
Dan: Again, this is an interesting case because it does maybe tell us a little bit more about what the post-Loper Bright world will look like and what the battle lines are going to be. There's going to be a lot more cases where the Court has to look at regulations and figure out whether they're consistent with the statute.
Maybe this case suggests that the Court is going to be looking for really clear violations rather than nitpicking every possible implication of an agency's interpretation of a statute. We will see. Long opinion by Justice Thomas in my limited time remaining, not sure I'm going to say anything about that. Do you have anything you want to say about it?
Will: No. People should read it.
Dan: Now, I'll say one thing about it. He's talking about the standard review. I do think he raises some interesting questions about the standard review. He said, “Consider a hypothetical statute that defines motorcycle as a motor powered two-wheeled vehicle with pedals. If a regulatory definition copied the same language and then added that the term shall include any motorized vehicle, the regulatory definition would obviously be wrong.
The argument there being that the agency shouldn't be able to defend that interpretation by just saying, ‘Well, there are some things that are motorcycles that would be covered.’” Do motorcycles have pedals? I thought they didn't have pedals. I thought like mopeds had pedals.
Will: I guess I don’t-- I've never owned a motorcycle.
Dan: I don't know.
Will: Okay.
Dan: It seems right, doesn't it? Not the pedals part, but just the thing I--
Will: The intuition there is that the only thing the reg is adding to the definition of motorcycle is stuff it shouldn't include.
Dan: Yeah.
Will: And so, the reg is in a way, like the delta of the reg is 100% unconstitutional.
Dan: Yeah.
Will: But I'm not sure it's technically right. Like, if the reg is okay as applied to motorcycles, then--
Dan: Okay. I'm getting my curtain call.
Will: All right.
Dan: So, I think we should wrap it up there. There's an Alito dissent, but as much as we're going to say about that. So, I will close this out.
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Dan: Thanks very much for listening. Please rate and review, and please go to our website dividedargument.com, go to store.dividedargument.com for merchandise. Send us emails at podividedargument.com, leave us a voicemail 314-649-3790.
Will: Yup. Don't forget blog.dividedargument.com for our new blog. And thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: And if a long time goes by between this and our next episode, because I am no longer allowed to podcast, because I podcasted past my deadline.
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