My name is robert barnes. I cover the Supreme Court for the washington post. Thanks for coming on this crisp, fall day to hear about the Supreme Court. Id like to thank the federalist society, particularly the Facility Division and practice groups for putting together what we think will be an interesting panel on what looks to be a very interesting term at the Supreme Court. After the trauma of last years confirmation hearings, theres been a thought from those who watched the court that it went out of its way not to look partisan last term, to look for ways to bust up the ideological divide on the court in some cases and to slow walk some controversies to keep them off that years docket. Its been welldocumented that each of the conservative justices at least once joined the four liberals to make up a majority in a case. And it went the other way, too. Each of the liberals at least once abandoned his or her usual voting partners and joined the conservatives in a case. Harmony could be harder to find this year. Heres a look at the docket so far. Whether gay or transgender workers are protected under title 7 of the Civil Rights Act of 1974, whether the Trump Administration acted legally in moving to end the daca program initiated by president obama, the courts first Second Amendment case in a decade, the president s power over appointments, a case about a Montana Tax Credit Program that was shut down rather than be extended to cover religious schools, an Abortion Case thats almost sure to be added. Theres a chance obamacare might return. You heard the justice might need to moonlight and cover an impeachment trial. We will be locked in on john roberts, once again, the first chief justice in decades who is also the median justice on the court. We saw how he operated a little bit last term in the two most important cases he we saw how he used his power. He sided with fellow conservatives to say the federal courts have no role in placing electoral maps for excessive partisan gerrymandering and then he stopped wilbur ross plan to add a Citizenship Question to the 2020 census saying the reasons he gave were not believable. Well try to explore all of this with the distinguished panel of experts we have up here and well take your questions as well. So, be thinking. Im going to give short introduction to them, so as not to use up much of our time. If you want to know more, as i heard chief as i heard Justice Clarence thomas once say say to a house panel about a question he didnt particularly want to answer, google it. So, robert cottrol, is the harold Paul Research green professor of law and professor of history and sociology at the George Washington university. As well as specializing in american legal history. Professor cottrol has taught torts and criminal law. Hes an expert on the Second Amendment, as you will shortly hear. Josh blackman is associate professor of law at south Texas College of law in houston. He specializes in constitutional law, the Supreme Court and the intersections of law and technology. Josh is the author of three books, unprecedented, the constitutional challenge to obamacare, unraveled obamacare, and i forget the name of the other one. He also writes joshblackman. Com and usually writes more about the court than those who are paid to write about it to make our living. Carrie severino and coauthor with Molly Hemingway of the bestselling book i didnt bring a copy. Oh, my gosh. Okay. Ill say it. I didnt know it was Product Placement day. Ill say it. Jt justice on trial claish the kavanaugh confirmation and the future of the Supreme Court. She clerked at the Supreme Court for justice thomas. Megan brown is a partner at wiley rhine. She represents companies and associates including the u. S. Chamber on preemption and First Amendment constitution. And amy howe is the cofounder of scotus blog, that indispensable website for all of us who care about the court. Shes a reporter for her own blog, amyhowe. Com and scotus blog. Shes the only person i know of in the Supreme Court press room who has argued two cases there. So, as you can see, we have a real panel of experts. Theyre going to break down some of the issues that are before the court and were going to start with bob, who will talk to us about the Second Amendment case. Yes, the court has before it what is actually the first meaningful Second Amendment case that its been asked to consider since mcdonald, which incorporated the right to bear arms against the state. The court did consider in 2016 briefly considered by a procure yum vote reversed the Massachusetts Supreme Judicial Court in the case of qitano which dealt with whether or not stun guns, electric guns might be protected under the Second Amendment. The case the court is looking at right now is new york state rifle and Pistol Association versus city of new york. And there are several important issues here. One, the court in heller and mcdonald did not set a standard of review for Second Amendment cases. It simply pronounced the fact the Second Amendment was an individual right and in mcdonald that it applied to the states through the 14th amendment. Since then i think many observers have looked at what has happened in the lower federal courts and how they have applied heller and mcdonald and felt the lower federal courts have basically been using a rational bases lens in terms of judging Second Amendment cases. Even though theyve been calling it intermediate scrutiny. There are four justices, i believe, justice thomas, alito, and kavanaugh from their writings in the court and lower courts seem to favor a fairly strong reading of the Second Amendment and one might add roberts to that list as well. Let me just give a little backgrou background. New york state has a highly restrictive pistol licensing scheme. First of all, new york city has two types of licenses. One is a carry per met, permit to carry a firearm, a pistol for selfdefense. These are highly restrictive and basically one can only get them if one has large sums of money or if one is rich and famous. Donald trump as a citizen in new york had a carry permit as do a lot of other notables in the city, but ordinary citizens, aside from people who are professional security guards, find it impossible to get such. The other is a premises permit. The city has a very high clause to allow you to own a pistol for protection in your own home. The fees run something around on the order of about 700. Usually it takes several months wait before one is approved. At the end of the day, a citizen can, in fact, get a premises permit, although every effort is made to discourage that. The nub of this case is traditionally or previously new york city prohibited people who had pistol permits, that is, the premises permit, even though they had gone through a long screening process of taking their permitted pistols outside of the city either for practice on ranges outside the city or for defense in second homes they might have. A suit was brought under the Second Amendment on the theory that this was, in fact, a violation of the Second Amendment as outlined in heller and mcdonald. It was brought before the Federal District court for the Southern District of new york, which sustained the ordinance and the Second Circuit as well. The Second Circuits reasoning seemed to indicate that almost any claim on the part of the government as to an interest would be sufficient to cause the city to, in fact, sustain or, rather, the court to sustain such an ordinance. For example, even though were talking about people who, again, were high ly screened and screened over a long period of time, the city asserted its interest very much in the way of evidence, well, perhaps they might misuse their guns on the way to their second home or range outside the city. Or they might get into a road range situation and bring out their guns. Well, theyre not doing it within the subcommittee, why are they going to be particularly worse once they get outside . Though, having driven in new york, thats not totally beyond the realm of possibility. In any event, the Second Circuit upheld the ordinance and the Supreme Court granted cert on this case on january 22nd of this year, 2019. What the other interesting issue, though, that this case is raising is that new york city and new york state have made strenuous efforts, in fact, to moot this case because they dont want it to get to the court, fearing what, in fact, the court might do. So, new york city altered its ruling, changed its ruling with respect to taking ones permitted pistols out of town and new york state legislator basically rad fied that and set it in concrete by saying the city could not go back on that. One of the questions asdz from the Second Amendment question this raises are the issues now moot and is there still something for the court to consider . Those who want the case to go forward argue they are reversible at some subsequent point and also that the Second Circuit opinion is still the law of the Second Circuit and need to be addressed by the Supreme Court as to whether or not its consistent with heller and mcdonald. But there is still the question of is there now a case in controversy as new york City Residents with pistol permits can travel outside of town. This is an interesting case that has attracted amicus briefs by some 45 different parties on obviously on all sides of the gun control issue. The solicitor general has filed a brief in support of the petitioners, that is new york state rifle and Pistol Association, a number of briefs have been filed arguing this is now moot. There was the brief of senators sheldon whitehouse, marie hironon, richard blumenthal, and Kristin Gillen brand ibrand arg for not in a persuasive kind of way. Basically telling the court, if you dont rule our way, were coming after you. That may cause, who knows, even maybe the notorious rbg will look at that and say, you dont threaten my court. In any event, yesterday the court had a session in chambers to resolve the mootness issue and they have not publicly announced their ruling on that, though presumably well get a decision on friday. If this case is considered to be moot, and my prediction is that the court will not take that view, but if they do, the next likely Second Amendment case to come before the case is george young versus state of hawaii. The state of hawaii has a prohibition on the carrying of pistols outside of the home and does not grant permits for carrying for selfdefense. The District Court sustained this law against a Second Amendment challenge, but the ninth circuit in a threejudge panel reversed basically saying the Second Amendment does, in fact, encompass the right to carry as well as the right to possess. The ninth circuit was looking at that and going to do an enbank review of the Panel Determination but they have suspended that, first to see what, indeed, happens in new york state rifle and Pistol Association, which may address the question of what extent does the Second Amendment extend beyond the home. So, thats sort of where we are at this point. Thank you very much. Wall street Journal Editorial Board memorably called senator whitehouses brief an enemy of the court brief. And then the republican senators weighed in with a letter saying, dont Pay Attention to them. So, this is really, you know, john roberts favorite thing, is to have democrats and republicans arguing about the court. When does robert add the stripes to his sleeve . When does that happen . Well get to that, josh. Josh blackman is going to take us through a couple of cases. Thank you so much. Its a pleasure to be here and to bob and bob and all my friends on this panel. I have two case says, second daca, first ramos versus louisiana. The first case presents the question of whether the sixth amendment requires unanimous jury to convict. Louisiana and oregon have a different law. For certain types of cases, you can convict with ten members, that is two vote to acquit. Louisiana has subsequently appealed this law. This case only rovlz retro active cases. This focuses on an issue of incorporation. The first eight amendments restricted federal power. After the 14th amendment that calculus changed. The Supreme Court said certain rights are socalled fundamental rights. And as fundamental rights, the states cannot deprive people of those rights, such would be a violation of the due process clause. Virtually the entirety of the bill of rights has been incorporated, the Second Amendment was only incorporated about a decade ago in mcdonald v. Chicago. A few outliers is the right to unanimous jury verdict. You might say, wait a minute, i have my constitution, the sikd amendment says you have the right to a speedy trial, impartial jury, the trial must be in the place where the crime was committed. It says something about a unanimous jury verdict. Youre right. This is what makes this case a little more difficult. Last term we had a case calls timms versus indiana which asked if the excessive fines clause incorporated, all the justices agreed. They disagreed on, perhaps, the rationale. The majority preferred due process but they all agree on the same front. This case is different. Because there is no express enumerated right to a unanimous jury verdict, i think there will be incorporation for sure but i think perhaps justices thomas, maybe gorsuch will agree with enumerated rights and due process. I ask you to read a brief i say it with all the love he basically wrote the brief for the attorney jem general of louisiana. It shifted my thinking on it. Its a tough case,incorporation and thames and the second is the deferred policy known as daca. In 2012 after Congress Said no to the dream act, president obama said, yes, i k. And he listened to daca and this is a policy that i agreed with who wholeheartedly had congress enacted. It is going like this. Minors brought here under no will of their own, it said we will not prioritize you for removal and give you lawful presence. What is lawful presence . It is a status that is not sit zensh citizenship or amnesty, but you will get a Social Security number to work and federal benefits, and this policy has been in effect for the entire obama administration, but after President Trump came to office, he decided to repeal the policy and in large part because texas planned to sue him, and he decided to repeal the policy. So that is relevant later, but you would think that one policy that the president changes due to executive action would be appeal, but no. District courts held that President Trump could not rescind daca and the rationale is important, because they did not say that daca must be remaining in stone and chiseled in stone like the ten commandments, but even those were smashed. So instead, they said that the rational is arbitrary and capricious, and they said that President Trumps animus towards hispanics contempts the decision, and also violates the protection component of the fifth amendment. All of the lower courts except for one ruled against the Trump Administration, and the Supreme Court granted review. Generally when the Supreme Court grants reverse, it is to grant reverse so the good money is that trump wins this one, and i dont know how he wins this, and the how is more important than the what. Perhaps the court holds that this policy, and sorry that the rescission is not like review or some jurisdictional ground, but that is going to allow trump to do what he wants to do, but not weigh in on the components, and why is that important, because Elizabeth Warren or whoever may decide to reenact daca, and so i am hoping that the court will decide if this is legal and john roberts disappoints me every year, but we will give them three stripes and that is all i have. And we have other cases. You will be surprised to learn that women on this panel volunteered to do more case thas than the men, and so we will not take up anymore of their time. Go