Subdued and noncontroversial panel of the day. I am sure nobody spent any part of june debating relatives over any certain opinions. Where is dave . Dave gets opioids. I will introduce them before they speak. We will start off with abortion. And we will start off with evan, who i first met when he was an intern and he has gone on to bigger and greater things. A professor of law at northern illinois. He was a visiting person professor at georgetown law school. I am in the middle of his excellent book and hopefully that book will be one of the definitive books Going Forward. Trevor failed to notice that i was a very obnoxious cato intern. It was hard enough even with the aid of people to predict dobbs. Supreme court overruled roe v. Wade. As of this state come abortion has been banned in 16 states. Other states are expected to follow suit. A federal ban on abortion after 15 weeks has been proposed. No Supreme Court decision has so quickly resulted in the criminalization of so much conduct that was so much afford the highest constitutional protection. Roe v. Wade states were number since the appointment of amy coney barrett. Justice sam alitos opinion takes a scorched earth approach. It leaves nothing left of a row roe v. Wade or casey. It has cast a cloud of uncertainty and other constitutional rights. I regard dobbs as a disaster. I want to explain how we got to dobbs, but he says and where it leads us. We need to start with roe v. Wade. In 1970 three, abortion was a crime in most states. Most criminal abortion laws where the product of the antiabortion campaign. These criminal laws broke with the common law of abortion which generally permitted abortion, roughly 10 to 14 weeks into pregnancy. In the late 1960s the majority of americans believed abortion should not be a crime but decriminalization efforts stalled. Before the Supreme Courts, lawyers representing jane roe and the state of texas argued the constitution took sides on abortion. Texas defended its abortion ban by arguing the 14th amendment requires states to protect prenatal persons. Texas law 1972. At the time, criticism was limited to the prolife circle. And so it is, for example, the justice says the answer to the question whether the constitution protects abortion turns on the right of privacy. Blackman never identifies where in the constitution this purpose to comes from. And then we get this declaration that this right to privacy is broad enough to encompass a womans decision whether or not to terminate her pregnancy. Why . Blackman does not explain. The highest level of constitutional stripping is constitutional required. The most important stage of the pregnancy is by ability, the point of which the fetus has the capability of meaning life outside the womb. Why . Again, blackman does not explain. Roe v. Wade is not constitutional law and gives almost no sense of an obligation to try to be. His critique resembled a conservative law professor. Both regarded the use of the due process of law clause to protect fundamental rights with great skepticism. They considered the doctrine of substantive due process and legitimate. As did Justice Scalia. Roe v. Wade did not start the abortion rose fight. What began as a strategy for targeting catholics was expended to make conservatives into republicans. Roe v. Wade helped make control of those Supreme Court the central issue for rankandfile republican voters. It was president reagan who prioritized antiroe v. Wade judicial selection. What president bush replaced per roe v. Wade justices, roe v. Wades overruling seemed certain. That did not happen. In planned parenthood b casey, five justices voted to preserve roe v. Wade. Casey produced several opinions, the most significant of which was entered school he is starting to sign. Justice scalia us stirring dissent. He argued value judgments were left to democratic majorities. Yet another thing was tradition. Scalia cast roe as a variation on the broader theme. In washington, the courts enshrined. Only rights deeply rooted would qualify as fundamental. They claim to rights had to be given a careful description. Consider angel rach who challenge the controlled substances act. She claimed a prohibited her from using marijuana. The ninth circuit did not look to history for a right to preserve ones own life, rather he looked it looked by using medical marijuana. The courts commitment proved unstable thanks in large part to Justice Anthony kennedy. A swing vote evenly divided an ideological line. The court held unconstitutional a texas ban on samesex sodomy. The court held that samesex couples had the right to marry. The burden fell. The court applied it and recognize substantive Due Process Rights to keep and bear arms. On the 2016 campaign trail, donald trump promised he would appoint prolife justices. As president , he had the opportunity to point three justices. On may 3, political published a leaked draft opinion indicated that the courts would overturn roe v. Wade. Justice alitos opinion mostly resembles Justice Scalias casey dissent both in tone and traditionalism. Justice alitos analysis begins with his summary dismissal of an argument that abortion restrictions violates equal protection laws. He takes note of dynamic can breeze amicus brief, but he declined to give way to the evidence saying this court has long disfavored arguments based on legislative voters and pointed out that the evidence consisted only of statements of supporters of the laws. Then we get the main event, substantive due process. The argument that liberty includes abortion. Alito dives into abortion history. All authorities indicate that the abortion of a child was a commonlaw practice. None indicates abortion was ever a legal right. By the time the 14th amendment was ratified, many stead states banned abortion. Alito distinguishes abortion from other Due Process Rights. He says they do not implicate fetal life. So how are judges to review abortion laws Going Forward . The courts standard review of government restrictions can take two forms. One form, rationality review, is meaningful. The other is conceivable basis review. Dobbs applies conceivable basis review. Alito set allow regulating abortion must be sustained if there is any basis on which the legislature could involve that it would serve a legitimate state interest. It does not matter whether it actually did say that. The courts easily upholds mississippis 18 week ban. Now for the critique. Roe talked a lot about history. Alitos critique focuses on roe s viability line. Neither of the tears of scrutiny apply. Still weaker is alitos criticism of ignoring precedent. He offers no text in history. The only cases he cites are roe v. Wade and casey. His own inquiry into the meaning of the 14th amendment is dictated by president s. Precedents. It does seem obvious that focusing on legal history but help us understand what a constitutional provision guaranteeing liberty original meant. It requires that rights be defined narrowly at a low level of generality. No defender has ever said why that is. Why is framing rights at a low level of generality more able to read lee blurted to encompass rights. Liberty to encompass rights. Speaking of discrimination, originals agree the 14th amendment imposes some kind of anti. There is not a word in Justice Alitos opinion about any of it. The antidiscrimination arguments is the best known argument that roe v. Wade has. It requires some people to endure physical burdens. Alito says nothing about whether the constitution will require life or Health Restrictions to abortion restrictions. The argument goes they do so because of stereotypes of women. In one paragraph, Justice Alito dismisses the argument. He distant that she dismisses argument of discriminatory intent. He dismisses arguments of discriminatory intent. Alito does not cite a single legislative. His attempt to withdraw the court from the field of abortionrelated conflict will also fail. Dobbs does not embrace fetal personhood. Prolife legal scholars have submitted amicus briefs arguing that Supreme Court protection clause requires states to prohibit abortions. Republican senator Lindsey Graham floated up ban on abortion after 15 weeks. Stay conflicts over abortion will generate a range of legal questions. The court that decided roe v. Wade held this. The fda regulates medication abortion drugs. There will be conflicts over other substantive Due Process Rights. Some prolifers consider contraception. The states since her belief that a drug that acts as an abortion is enough to justify prohibition even if that belief runs against the current Scientific Consensus about whether it does. You may be hard to imagine the court overturning certain laws, then again, since roe v. Wade. So we end where we begin. With the constitutional conflict. Roe did not start a and dobbs will not finish it. There will be more battles. It is conceivable that the court is prepared for this. But after dobbs, it does not seem implausible. [applause] thank you. I am sure nobody has any questions. We will get to that later. Coming up next, an associate professor of law at Creighton University school of law. She holds a phd from st. Louis university before attended law school. She was a nurse in neurosurgery. She is uniquely qualified to talk about opioids. Thank you. Thank you to everybody at the Cato Institute that put this together. It was my honor to be part of this. I want to start by acknowledging a couple of people. The first is a professor of law at uc hastings who was my coauthor on two briefs rewrote. We wrote. The other person i would like to think is that jamie henderson, with whom i had the honor of working in the late 1990s and early 2000s, in part taken care of a small cohort of patients with chronic pain. Those and other experiences i had at the bedside and in nursing people he the work i do now in a different place. Drugs always elicit very strong reactions, so i want to make one disclaimer before i say more. My disclaimer is that drug poisonings are among our most Serious Health problems in the United States. Where i have deep disagreements are with the Public Policy responses to these crises and they are almost never tailored to the underlying goal of decreasing the overall terms related to drugs. And i want to acknowledge, because when i talk about this case i often am viewed as the person defending the pill, no duct or i want to acknowledge there will be a small number of physicians who will use their profession licensure at the state level to engage in a criminal enterprise. To engage as drug dealers. Those are the very people that the controlled substances act for whom there should be the potential of conviction and the possibility of life in prison and 1 million in fines. But that number is far smaller than the number of prescribers who have been investigated and prosecuted in recent years as federal Law Enforcement and some federal judges have transformed their existing ranges into hammers to erode the standards for prescriber convictions to the point that it leaves to a strict liability. Such that proving that the prescriber departed from the usual course of professional practice, was enough to secure a conviction for this for money felony offense. That standard was judged not by the rigorous standard for determining the standard of care in a civil state tort action, but judged by the startup amorphous generally accepted standard of medical practice and in the United States, which is very much up i standard of care a quasistandard of care. In our second brief on the merits, the professor wrote a beautiful section at the end that details what that would look like in alabama. It is very persuasive. I cannot take credit for it. These types of responses and in particular, the interpretation and erosion of standards were just one of a myriad of incoherent responses to the growing awareness of the opioid crisis, which is truly a drug poisoning crisis, that really reached the public in a significant way in 2013. But i have argued that these responses were part of an availability cascade or a moral panic in which doctors became the devil in this moral panic. These responses were pretty universal in their over simplicity, but they were also pretty devastating universally. The evidence continues to roll in that targeted laws or lost targeted at the supply only of opioids actually increased the death count. And drastically increase the number of patients in urgent need of care who had been driven away from doctors and the medical field altogether and into the shadows, which was another repeat of what we saw after the passage of the harrison narcotic tax act in 1914, where we knew by 1925 that we had succeeded in creating the first real elicit underground elicit market, but we had succeeded in taking people with addiction out of the medical realm and into the criminal realm. The effects of such hamhanded legal intrusions into the nuanced area of Clinical Care have elbow documented history a well documented history in inducing a rush to the safe middle of medical practice, where innovation and care complicated patients like those with Substance Use order, where that died. Even mistaken belief about what clinical behaviors are powerful drivers that are adverse to the wellbeing of their patients. Look no further than the aftermath of the state laws that have emerged after dobbs to see that even in states where certain procedures are not illegal, the fear and the uncertainty about the line between lawful and unlawful conduct drives behaviors that are bad for patients. Criminalization of otherwise appropriate Clinical Care and patients in need of care always induces harm and harms that tend to be disproportionately harmful to people already in marginalized groups. These consequences are foreseen and represent who matters most in society. I want to turn to the language in the statute. The controlled substances act was an attempt to marry a whole diversity of drug laws and bring them under one umbrella under the authority of the department of justice. Along with efforts to control the supply of drugs, these efforts included explicit findings in the legislation that patients in need of care were not getting it under the previous regime. And so, there were at least initially real efforts to try to bring people back into the fold. One provision of the comprehension controlled substances act starts with the finding that many of the drugs that are controlled substances, which this act created the schedule of controlled substances, have legitimate medical purposes. This is the first line. Section 841 says it shall be unlawful for any person to intentionally distribute a controlled substance. That is the language of the statute under which prescribers are prosecuted, just like anybody else is prosecuted for drug distribution. Under the language, at least three circuits have removed knowing and intentional leak from the law. But we have to know what authorized means and that is not clearly defined. That definition had to be cobbled together. There was one main regulation that is foundational. That is the effect of prescription regulation, which requires that a practitioner prescriber controlled substance for a legitimate purpose in the usual course of professional practice. For the first 3040 years of the act, the circuits generally applied this law with what we called in our first brief a shaky consensus among the circuits. But they all had some version of the good faith dissent that until very recently was seen not so much as a defense. And they almost interpreted that legitimate medical purpose in the usual course language conjunctively, meaning the government had to prove that the dr. Or prescriber had done neither of those. But we start to see at the beginning of the 2017, the steady erosion in three areas. The first is some courts began reading legitimate medical purpose disjunctively. Most of them chose to interpret that to mean that the governments only had to prove that the dr. Had knowingly departed from the usual course of professional practice. Some of them had a strange bifurcation where it applied to a departure from legitimate medical purpose. That made prosecution much easier and most of the time they chose to prosecute under that. The good faith defense was gutted in three circuits by collapsing the idea of a reasonable belief into reasonable action. You only had a good faith if your prescriptions were reasonable. A reasonable description was when they had not departed from the usual course, so good faith was meaningless. I feel like they should be a warning to everybody. If your judicial opinion says unlike the rest of criminal law, it only applies to the act of writing the prescription. So the good faith dissent only negated the idea that you did not know you were writing a prescription, so you had a defense if you wrote in your sleep. Because that happens a lot and it makes sense. And so the court eventually takes the case, consolidates it and there were a number of defense presented. Whether you are talking about what the good faith exception means or whether you are dealing with this issue of putting knowledge into being whether where you are doing something, and this is where the court and not unanimous opinion focused on that. And made the decision not on the federalism concerns, but squarely on the language of the statute and longstanding thoughts about criminal law. In cases like this, the ability of the defendants to know the line between lawful and unlawful behavior, especially when there engaged in activity. And so there were some procedural questions that went with that, which we can defer to the questions period because i am out of time. I thank you very much for listening. Trevor thank you, kelly. For those that were not completely aware of how things are in the medical practice, i definitely commend her article, figuring out how much pain medication a patient needs within the bounds of the law while cops are basically practicing medicine. Coming up next is david kopel who works at my alma mater, Sturm College of law. He is my professor. He is the reason i do gun policy. I didnt know about gun policy. I didnt own a gun. Theres no one more qualified than dave to talk about the bruin case which dealt with the right to carry a gun. Dave. David good afternoon. The u. S. Supreme courts decision in new york state rifle and Pistol Association v. Bruin in one sense is very narrow in its effects because it directly affects only three particular states where the right to bear arms was completely negated. New jersey, maryland, and hawaii. And it also effects parts of three other states where the right to arms was respected in some places within the state but not in others. Those would be california, massachusetts, and new york. But in addition, bruin announces a new rule for how a new judicial standard that applies to all gun control laws and the standard is . This is based on what the court did in heller and mcdonald. The lower courts werent exactly going along with it, as well discuss. The gun control laws that are constitutional are the ones that are consistent with the american tradition of the right to keep and bear arms and the lawful regulation thereof. And laws that are not consistent with that tradition are not constitutional. One week after bruin was announced, the Court Vacated three decisions from lower federal courts of appeals that had upheld bans on common rifles or on magazines in laws from maryland, connecticut, and new jersey. The Court Remanded those cases to lower court back to the courts of appeals to reconsider in light of bruin. And then just a few weeks later in colorado, the United States district court, judge Raymond Moore who was appointed by president obama and unanimously confirmed by the senate issued a temporary restraining order against a gun and magazine ban that had been enacted by the town of superior, colorado, which is within boulder county. And soon, similar laws bans in other boulder municipalities and in the county itself were also brought under temporary restraining orders and those t. R. O. s will remain in effect until january when theres going to be a hearing on preliminary injunction motion. U. S. District courts in other states have also issued some important rulings against the constitutionality of some other gun control laws. What happened last june is a big change from what had been judicial twarper in enforcement of the Second Amendment. There was a period that began after 1939 when the Supreme Court upheld a tax and registration federal tax and Registration System on sawed off shotguns and then for decades after the Second Amendment appeared in Supreme Court cases in cameo roles, such as in Justice John Marshall harlan the court began taking cases that involved the rights of gun owners but they were always argued and decided on issues other than the Second Amendment. And one of those cases was prince v. United states. Congress in 1993 had enacted a law requiring background checks for buying handguns in gun stores. And had ordered local Law Enforcement to carry out the check. Sheriffs all over the country sued and said, congress, you want to get this done, go hire some federal employees to do it. You cant come and have us carry out a congressional statute. The Supreme Court agreed by 54 in the opinion by Justice Scalia joined by Justice Thomas. But in that case, he also concurred two points. Concurred to point out there was a Second Amendment issue in this case and he suggested that it was time for the court to start addressing that. He wrote, perhaps in some future date this court will have the opportunity to determine whether justice story was correct when he said the right to bear arms has justly been considered as the palladium of the liberties of the republic. And the court eventually did that in 11 years later in the heller case written by Justice Scalia and then in 2010 mcdonald v. Chicago by Justice Alito held that the Second Amendment is applicable to the states via the 14th amendment, as most of the bill of rights is. And then the court went back into twarper. Now, some postheller, some Lower Court Judges, including thenjudge Brett Kavanaugh of the d. C. Circuit, observed that the heller decision had been based on tax history and tradition and he argued the lower courts should follow that same methodology. He was in the minority. Most of the lower courts postheller adopted the test that Justice Breyer proposed in his dissent in heller and had been repudiated by the heller majority. Under this approach, judges engage in interest balancing and then they decide for themselves if an infringement on traditional of Second Amendment rights is acceptable. This should have been called the breyer test but the courts somewhat called it the twopart, twostep test or the twopart test. And there certainly were an important number of Lower Court Judges who really conscientiously applied that test. But many others skewed the rules even further so that the government would always win. For example, many adopted a principle that all the government had to do was introduce some evidence in favor of the law and that would be enough. And the fact that the challenger of the law had also introduced evidence which undercut the governments evidence, that was irrelevant. The second, fourth, and ninth circuits were particularly egregious. In the ninth circuit, there were decisions sometimes before threejudge panels where a Second Amendment litigant would prevail, but then, the full circuit would always order a hearing even if they didnt have an unbunk. So the 50 postheller Second Amendment cases, the government won all 50. Now, Justice Breyer interest and balance test is similar to intermediate scrutiny but without the intermediate scrutiny some rules. Sub rules. Law professor alan, who is a attorney for gun gun control, incorporated, called this Justice Breyers triumph in the third battle over the Second Amendment. The Supreme Court, while all this was going on, only took one Second Amendment case. In 2016 they struck down in a procurium reverse the massachusetts ban on stun guns since the Massachusetts Supreme Judicial Court had been particularly flagrant and thumbing its nose at heller in upholding the ban based on the fact stun guns didnt exist in 1791 and didnt seem to be militia arms. Both rationales, which the court expressly repudiated in heller. And then in 2020, the situation appeared even particularly bleak. The court had granted certiorari in a case involving new york citys rule that licensed handgun owners who lived in the city could never take their handgun out of the city, not to a target range in new jersey, not even to a second home outside the city. The second court upheld it in a rather brusk manner and they granted certiorari. They used it to modify the law partly given the plaintiffs sum some but not all of the relief they had sought and then as the merits briefing was going on, five democratic u. S. Senators, sheldon whitehouse, mazie hirono, richard blumenthal, Richard Thurman and Kristen Gillibrand sent the court a threat letter in an amicus brief saying unless they say the case is moot they would restructure the court. For whatever reason, six justices complied and dismissed. Justice alito and Justice Thomas dissented. Justice barrett joining the court changed everything. They granted the certiorari. Under new york statute, an app i an applicant for a concealed carry permit which is the only way to carry lawful in new york had to have a proper cause. Many jurisdictions in new york set out proper cause and could include lawful selfdefense, for example. To exercise their constitutional rights. But in many others such as one county, they had to prove a special need for selfprotection distinguishable from another community. The opinion by bruin and Justice Thomas and for six justices explained the constitutional right to bear arms in public for selfdefense is not a secondclass right subject to an entirely different body of rules than the other bill of rights guaranteed. We know of no other constitutional right than an individual may exercise only after demonstrating to government officers some special need. And, therefore, the new york law and some other states were unconstitutional. Bruin affirmed that using text, history, and tradition as the basis for a decision is the correct methodology of Second Amendment cases, not interest balancing. In other words, the government has the burden of proof to justify its regulation by demonstrating that it is consistent with the nations historical tradition of firearms regulation. And as with everything else, judges dont have to be experts in legal history. The burden is on the government to come forward with the evidence and its not even that burdensome on the government because these days virtually every case where a gun control law is challenged, either Michael Bloombergs every Town Organization or the giffords law school will come in and advise the local government and provide all the Historical Research possible. Now, the bruin says you can this tradition can be looked at in two ways. Sometimes the governments going to win because a particular law is very similar to historic law. For example, laws against reckless discharge to say you cant shoot off a gun in the air inside a municipality. But the government can also win with analogical reasoning. They represent a historical analogue. Not a historical twin. And this is meant to be neither a regulatory straitjacket nor a regulatory blank check. So the question to ask is whether a modern gun control and historic law is similar. And bruin says there are at least two things to consider. The how and the why of the regulations burden on lawabiding citizens right to have selfdefense. How is whether modern regulations has a comparable burden on the right of armed selfdefense, and why means whether the burden is comparably justified. So for example, there might have been in the past Fire Prevention laws regarding the storage of certain quantities of gunpowder. The black powder of that time was easily ignitable. Including by accident. But modern gunpowder invented in the 1870s and 1880s is not and so you couldnt have gunpowder storage restrictions just because you dont like people making their own ammunition at home. Today, with quantity limits that might have been justifiable in, say, 1750 based on Fire Prevention. So what are some of the permissible controls on bearing arms . Well, as of 1791, carrying a firearm openly was lawful in every state and so was carrying a firearm concealed. The first state law against concealed carry was enacted by kentucky in 1813. The kentucky Supreme Court held it violated the kentucky constitutional right to bear arms. But most other concealed carry laws were upheld in other jurisdictions. Bruin adopts that and says the legislature has the right to regulate the mode. Concealed carry was considered sneaky in 1870 but now its preferable socially. If you go to the malls who were obeying the Second Amendment you would certainly be encountering people carrying concealed arms. Theyre concealed so nobody gets upset about it. Thats more compliant with modern social standards. Additionally, carrying can be prohibited in what are called sensitive places. Heller had said laws forbidding affirmed crater to rebuttal presumption in favor of laws forbidding to carry a firearm in a sensitive place such as a cool a school or government buildings. The bruin opinion, citing a law review article i wrote, added to this list legislative assembly, polling places, and courthouses. And so the opinion says, as for new types of places, not old places that already existed, but new types of things, airplanes, rocket ships, among others, that courts can make analogies to those historic sensitive places, limits. Now, even though permits were not needed in 1791, and even though theyre not needed today in the majority of states for open carry and in 25 states for concealed carry, bruin holds a licensing system can be valid. Whats called shall issue licensing. Like a drivers license but stricter and tougher. But you have to meet certain objective criteria. And bruins view, thats perfectly fine. And would only become a problem limit the exorbitant fees were charged or lengthy waiting times or other abuses of the licensing process. In terms of how new yorks the ban in some parts of new york on carry against history, the new York Attorney general didnt carry her burden of proof. There were some examples to cite. For example, after the United Kingdom conquered new netherlands and took it from the dutch, what we call new jersey today was two separate colonies. One of which was east jersey, the part near new york city. And for eight years, they not only banned concealed carry, they forbid frontiersmen from carrying handguns either openly or concealed. This solitary example, as Justice Thomas put it, lasting at most eight years, did not create some tradition. Likewise for a law enacted in the 1870s in texas which banned handgun carrying in most cases while allowing long gun carry. And conceitedly, broad restrictions on the right to carry did become more common in the 20th century as in new yorks infamous sullivan ac. But said the court, as with the late 19th century evidence, the 20th century evidence presented by respondents in their amicus does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence. Justices kavanaugh and roberts joined the opinion in full but also reiterated hellers sort of safe harbor list of the rebuttal of presumption in favor of certain gun controls. Justice alito also joined critiqued the dissent argument which was a laundry list of all the bad things people do with guns and said, what does this stuff about suicide and Mass Shootings have to do with licensed, trained adults carrying firearms . And Justice Barrett pointed to an issue that it may become important in the issue but as how much does the 14th amendment period come into play . And she cautioned dont put too much weight on restrictions from the late 19th century because they really dont illuminate the original meaning. Thank you. [applause] trevor we have a little bit of shorter q a period. I do have the first question actually for kelly from twitter. From ken, former attorney general of the state of virginia. He asks i would appreciate you explaining more detail of innovative, please, such as in the sentence, otherwise prescribers can no longer be convicted under section 841 for innovative mistake or neglect or less than careful prescribing, so what do you mean by Innovative Care . Kelly well, anytime doctors are trying to, like, push the boundary. So, for example, many physicians who take care of people with opioid use disorder have found that the dosage needed to properly treat somebody with a pretty significant opioid use disorder of buprenorphine is higher, right . Its innovative, right . Their research is ongoing but the preliminary results are promising. Government can certainly find people to say, gee, thats a very high dose, right . Thats a very high dose. So that would be an example of like an innovative practice that now that here we go. How much of this do you want me to repeat . So there are examples, right, in a addiction medicine of buprenorphine. There is some preliminary evidence that higher doses are needed, higher than what had been previously considered within the standard of care. But if, say, somebody was prosecuted for that now, reading the opinion, right, that government would have to prove that they knew, actually knew they were exceeding their authorization. Meaning, they werent practicing in the usual course. Whereas, it seems quite reasonable that an addiction medicine dr. Would say i have this Certain Group of patients who only do well on this much higher but innovative dose, right . And so the government might find somebody who certainly would find an expert to say that was outside the usual course but now the doctor would be saved by knowledge, right . But they dont think they they believe theyre having legitimate practice of course. Trevor another for dave. Are you aware or assess the possibility under bruin of any challenging the n. F. A. s regulations on s. B. R. s, silencers, regulators . Is there more possibility there postbruin . National firearms act. David National Firearms act of 1934 which has a National Prohibition on short barrel models or suppressers, they dont really make the gun silence. You have to pay a 200 tax and go through a registration process that takes months. Yes, its theoretically possible. Under bruin, i think theres some good arguments to be made. Nevertheless, im not that optimistic about wins on that. I think you at a minimum, courts will be comfortable with normal people having normal guns. And thats the big picture. And unless theyre convinced that these things are normal, then however good ones i dont expect victories out of it. Sound suppressers are common in lots of european countries. Actually often typically sold with a gun because it reduces Noise Pollution from the neighbors point of view and it protects hearing. And short barrelled rifles actually are quite common in puerto rico because the National Firearms act which is a tax measure doesnt apply in puerto rico and they dont seem to be a big problem in puerto rico. So the answer is maybe but dont plan on it soon. Trevor whos doing my mics . Roger. You got it. 36 seconds, roger. Ok. My question is for evan bernick. I quite agree that the opinion of alito left much to be desired. Not least because of its reliance on glucksberg. I wonder if you think the result was right in sending the issue back to the states . And i give you this. If a doctor took the life of a baby a day after birth, we would have a clear criminal law case. Well, whats the difference if the doctor took the life of the baby a day before birth . Or two days . Or three days . And so on down the line . In other words, weve got a question of when does murder begin. That is a criminal law question properly decided under the state police power which is exactly the result that we get. And this is the result that was pointed to by no less than Ruth Bader Ginsburg in her madison lecture in 1992 at n. Y. U. So what say you about the idea that this is properly decided by the states given that weve got an issue about which reasonable people can have reasonable differences . Evan i do not think that you can extract from the original meaning of the 14th amendment a plausible defense of roe v. Wade. I do think, however, that the idea that states, because they are free to define and punish crimes generally have anything resembling an unlimited discretion to define and punish crimes however they should choose is something that is dependent upon premises about the status of prenatal persons under the constitution. In important respects, they cant be captured to a leave it to the states approach. Let me be a little bit more concrete about that. There is no doubt that compelling people upon paying of incarceration or fines to go through pregnancy and to give birth is an infringement upon their liberty. In order to justify that under the Police Powers, you are going to need to make a reasonable argument that you are furthering an interest within the proper scope of the state Police Powers the protection of life, liberty, or property. And so the question is what is the status of a prenatal person . I dont think if you left it entirely up to states to decide that you could get to a Police Powers doctrine that is limited in scope in any meaningful respect. Theres got to be some floor on what states can do and insofar as thats the case i think while roe is probably indefensible and arguments to defend it on originalist grounds are probably unsuccessful i regret to agree i regret the degree to which alito cast this to the states without having constitutional limits on what they can do in the space of abortion. Not even to the extent of chief justice rehnquists dissent in roe said it would doubtless ban irrational treatment to compel people to give birth even at the risk of their own lives. Trevor we have one minute. Professor, can you ask a question in one minute . [laughter] maybe take it up after. Trevor congratulations to david for all your work. In principle, analogic reasoning is not perfect. Costbenefit analysis good but imperfect. Is analogic reasoning sort of in principle better or is the real problem that the lower courts just werent taking seriously a kind of serious analysis . David i say in the First Amendment on freedom of speech theres plenty of costbenefit analysis. Thats what the scrutiny and intermediate scrutiny is. I think it works out pretty well. The state of speech in this country is pretty good. So i think the answer is your other choice that only some courts were cheating the second treating the Second Amendment intermediate scrutiny the same way they would treat First Amendment intermediate scrutiny and they were allowing governments get away with anything. Trevor great answer. Join me in thanking our panel. [applause] well have a 15 minute break to get some coffee and turn with ilya somin. Walter, amy howe and amy saharia. Thank you. [captions Copyright National cable satellite corp. 2022] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] legal scholars looking ahead at some anticipated cases involving affirmative action. And state legislative control of election procedures