It’s a great day for the Constitution. Why? Because the 6-3 Supreme Court decision announced today should OVERTURN a New York City law that severely restricts concealed carry rights. Legal expert Josh Hammer joins Glenn to discuss what he says is a ‘career-defining’ majority decision by Clarence Thomas, what the ruling means for gun rights throughout America moving forward, and how this decision will ‘suck the wind’ out of the Republicans who supported the Senate’s current gun restrictions bill…
Below is a rush transcript that may contain errors
GLENN: The huge gun case up in New York, where I couldn't get a gun in New York. I had 15 active threats. I had Gavin de Becker and associates. Which were -- they were probably the best security detail in the country. In the world, really.
And they were following these threats. You know, my kids were looking at pursuer lists on our refrigerator. If these people approached. Go run. Get mom or dad.
I mean, it was really bad. And I couldn't get a gun. In New York City. Because they deemed that I didn't have enough cause. To have a gun.
That's been thrown out now. So tell me what they've done. What does this mean for New York? And the rest of the country?
JOSH: So it's a fantastic ruling. Look, I've not had the chance to pore through it. Looks like they have a Justice Thomas majority opinion, clocked in at 63 pages. You know, including concurrences and dissents, we're up to 130. One hundred 40 pages. So I have my reading cut out for me, for the rest of the day.
But based on my quick skimming of it, this is a thoroughly well-researched. I might even say, thus far, career-defining majority opinion. From Justice Clarence Thomas. I was thinking about this recently.
It's unclear to me, today, or at least before today. Whether Clarence Thomas has a career-defining majority opinion. He's written so prolifically for so long, but most of his greatest writings, especially on the hard-hitting cases. Have been in concurrence. Or more often than not, oftentimes in defense. I think in another gun case in 2008, (inaudible) versus Heller had his landmark career-defining opinion. And at least until affirmative action I predict is likely overturned next term. You can get that if you want to. At least until that day where I predict Thomas will also have the majority opinion. This is his career-defining opinion.
This is an issue that is very near and dear to Justice Thomas. He wrote an amazing concurrence in the courts, last major Second Amendment case. McDonald versus the city of Chicago case in 2010, where you had a magisterial 55 to 60-page concurrence. Just working through the history. This issue was very near and dear to him. He's a personal gun owner. He enjoys hunting. And from what I can tell, it's just a really thoroughly well-researched opinion, that reaches the clear and obvious result, that anyone with any degree of familiarity with the Second Amendment text could tell you. Which is that this is a right.
And the very act of talking about burying arms. Not just keening them. But the burying them obviously entails the ability to do so, outside the home, without oppressive restrictions. The likes of which, again, it sounds like you face in my home state. In my home state of New York. The point that Justice Kavanaugh makes in his very brief concurring opinion. He kind of drives down this point, which is, the vast majority of states, which have so-called shall issue regimes for their gun licensing permits. Which means that you have to give the applicants a permit, as long as they go through X, Y Z tests. You know, they shoot the right number of targets. The permit years ago. Those laws are all untouched. The only laws that are jeopardized by today's decision are the more problematic, quote, unquote, may issue laws. Not the shall issue laws, where they basically give the licensing authorities a ton of discretion to arbitrarily decide, where you have to show that you truly, truly -- whatever the heck that means. But, and then, the fact that --
GLENN: Yeah. It's nuts.
JOSH: Go ahead.
GLENN: So I want to ask you, doesn't this make the Senate gun bill a joke? I mean, that will have no teeth to it, after this ruling. Would it?
JOSH: Yes and no.
It's real interesting. I have tracked a lot of the commentary over the next 24 to 48 hours. Next week is a focus on this exact question, right? So in theory, they are different issues. The ruling here today is talking about concealed carry, and open carry regimes in the states. The Senate gun bill is in theory focused on other measures. It's focused on things like red flag laws. But it is a little intellectually inconsistent. Or at least at a bear bare minimum. It would be a little peculiar, right? To have the liberalize. I say that in a good way. A more liberalized concealed carry licensing regime, while at the same time, having a red flag law, in place that would just infringe upon due process rights, willy-nilly. Those two things would seem to be intentioned with one another. At a bare minimum, the timing of this opinion --
GLENN: But it's not the same.
JOSH: It really kind of sucks the wind out of John Cornyn and the other 13-Senate Republicans' momentum. That's for sure.
GLENN: So how will this affect other states? New York, by the way, has just come out. And I'm going to talk about this in a minute. New York has already come out. And said, it's not going to change anything. We're not going to abide by this. Which is ironic, because that's what the Second Amendment is for. To stop an out-of-control, lawless government, doing what they want. And not abiding by the Constitution. I just want to point that out.
JOSH: Well, that's wild. I have not seen that. But that's just wild stuff, that they said that bluntly here. Hook, the entire idea behind the incorporation of the Bill of Rights. Which in itself is a legally debatable matter, I should say. But they have held. The court has held that the overwhelming majority of enumerated rights, in developed rights, including the Second Amendment. By the way. That's the McDonald versus Chicago case in 2010. The court has held that these rights are incorporated against the states. Which, you know, to escape the legalese for a minute, means that a state cannot infringe on these rights. The federal government already cannot. But a state cannot as well. So this case is right out of New York State. If New York State wants to go flip two middle fingers at the court, when they themselves are a party to the lawsuit. Look, parties to the lawsuit aren't balanced.
GLENN: Well, let me -- let me read impala what governor Kathy Hochul said. She said, it's outrageous that in a moment of national reckoning on gun violence. The Supreme Court has recklessly struck down a New York law that limits those that can carry concealed weapons. By the way, I don't know if she knows this. But Buffalo is in New York.
So her law didn't do anything. In response to this ruling, we are reviewing our options, including calling a special session of the legislature. Just as we swiftly passed nation leading gun reform legislation. We will continue to do everything we can in our power, to keep New Yorkers safe from gun violence. So she didn't say, we're not going to do it. She said, we're just not going to find a way around it.
JOSH: Right. I mean, that statement is about what I would expect from a left-wing hack like the governor of New York State. We'll see what they try to do. I mean, they'll try to pass some law. Meaning, they will try to issue something administrative. Inevitably both find themselves, in court again.
And, you know, with the occurring composition of the court. If that ultimately makes its way up to the Supreme Court itself, you have to like the odds of the side of gun rights. The reality is, if I have the number correctly, I think it's 43 of the current states in the country. If I recall the number from the Kavanaugh concurring opinion today. Forty-three of the states are either, quote, unquote, shall issue states. Or just straight up constitutional county states. They simply do not need a license to exercise a right to give them their arms outside the home. So we should note that this opinion did not actually apply to the vast majority of states. We're only talking here about the blue states such as New York State. And look, I mean, cynically speaking. Someone born in New York, and fled many years ago. If it is oppressive laws like this. That incentivizes more people, to flee blue state tyranny or red state freedom. Far be it from me to criticize people to do so. The statement that you read, Glenn, I would expect them to say something along those lines.
GLENN: All right. We're going to -- if you don't mind holding for just a minute. I will do a commercial and come back. And I just want to ask you, if you looked at any of the others. Is there any that you think is a really good sign, on where things are headed. Just some of the other decisions, that came out today from the Supreme Court. Back with Josh Hammer in a minute.
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So my producers are freaking out. Because they want to make sure that I clarify something here. That I just said.
Historically, the reason why the Second Amendment exists, is not for hunting.
Not a sport. I want to go shoot Clay pigeons. Okay. That's not what it was about. Otherwise, you might be able to find, like bowling in the Constitution, and the Bill of Rights.
It's not about a sport. It's about protecting yourself. And protecting your community against an out-of-control rogue government. That's what it's about. So I just find it ironic. That if they're like, we're not going to obey Biden's rule. That's what the Second Amendment. That's what the Founders were talking about. As somebody that just decided --
STU: As you just read that statement. That's not exactly what's happening. You're not exactly calling for a Civil War against Albany. Are you? I want to make sure here.
GLENN: Oh, my God. No. No.
STU: Because you were talking about this was the motivation at the time. You have to follow these traditions and these rules. But this is a much, much different case here, as we're talking about it now. As a statement from a --
GLENN: Anyway, I'm just talking about how ironic it is, that that's what the Founders, you know, said, that that's really important.
Because if they're -- as George Washington said. When the people fear the government, there is tyranny. When the government fears the people, there is liberty.
And, you know, part of that, is being able to question them. To speak out. To have a free press, to assemble. And also, to own a gun.
Anyway, josh, anything else that -- that you see, that came out today, that you think is -- is good news in a -- in a far-reaching way?
JOSH: Well, first of all, let me chime in briefly on the conversation that you and Stu were just having. I obviously could not agree with you guys more on the philosophical underpinning of the Second Amendment. Glenn, I know that you all. You will uniquely appreciate this. Just because I know how much you care about this issue. You know, I'm Jewish obviously.
I keep it on my desk at all times. A rock that a rabbi gave to me years ago, that he smuggled out of the crematorium at Auschwitz. And I keep next to that rock.
A rock that I myself took from Treblinka. And then across my room, I have my -- you know, my game of defense AR, with lots of ammunition.
And mags and all that. And to me, I refer to that, as to my friends. As my Warsaw ghetto gun. So no one understands the philosophical underpinning of the Second Amendment more than I do. So I just want to echo your sentiments on that.
And, you know, the Germans gave -- the Germans gave all of the information of where their guns were, to the Weimar Republic. You give it in gun faith. Because the Weimar Republic said, oh, we'll never use this. Well, then the Nazis came in, and guess who took all the information. And knew where all the guns were. That's why you just don't do these things. But, anyway, go ahead.
JOSH: Exactly. Shifting a little bit, as far as the other cases that came across today. There's an Eighth Amendment case about an execution that I have not had a chance to review yet. A state in Georgia called Nancy Ward. Long story short. All sorts of activist litigation for many years now, where the ACLU, groups like that, will sue -- and they have the effect of the incrementally outlawing or seeking to outlaw various forms of execution, which you have to look harder and harder to find the right cocktail. A very pernicious people passed it with the obvious, not so subtle end goal of trying to re-abolish the death penalty in America.
It looks like the wrong side won today. But I -- a glimmer of hope, though, I see that Justice Barrett actually filed a dissenting opinion in that case. Even though Kavanaugh defected, it's good to see that Justice Barrett is on the right side of this Eighth Amendment issue.
Another case that I've not fully had the chance to break down. It's out of the fourth circuit. It's a case in North Carolina. They basically -- it's a case called Berger versus North Carolina state conference of the NAACP. The court rules, and it's notable. Because it's an 8-1 ruling. An 8-1 ruling. They ruled that Republican state lawmakers in North Carolina are able to intervene to defend their state's voter ID law. That the NAACP challenged. So the procedural posture there, it's not a substantive claim. It's more a procedural claim. The reason why I want to bring it to your listeners. I think it's worth discussing a little bit. Is because it's an 8-1 opinion. The only person who dissented here is preemptively speaking, Sotomayor. And that's a real read into the U.S. Court of Appeals for the fourth circuit. The lower court that heard this. When you, again, reverse won by the court. When Sotomayor sort of disagreed. And it really paints a stark picture as to how much the Obama presidency, changed the Fourth Circuit amongst the other circuits. We do really have a long road ahead of us, to get the lower court in order unfortunately. This case did come out the right way.
GLENN: Josh. Josh, thank you so much. This is Josh Hammer. He'll be joining us tomorrow. More rulings are coming out tomorrow.
And we're coming close to really big ones.