Michael O'Neil SCOTUS Texas Heartbeat Case Second Amendment New York Rifle Case 110421

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Thank you. Well, big stuff going on. Big, big stuff going on. I want to give a quick overview of your thoughts on the Texas abortion heartbeat bill situation that happened and the hearing that happened there. You mentioned about the Mississippi case that's coming up. We can nuance that, you know, for a minute, and then we want to get into the Second Amendment case because this is gigantic. So take it away, Michael.

Sure. Well, it was an interesting week in the Supreme Court. First of all, we heard oral arguments on SB 8. That's the Texas abortion prohibition law that empowers and this is a law that empowers private individuals to bring suits against abortion providers and any time after six weeks of gestation. So once there's a heartbeat that's detectable, individuals can bring private suits against those providers, those individuals who are providing the abortion and can pursue civil damages in excess of ten thousand dollars and then obtain attorney's fees. And what it did was it empowered, it was designed to deter abortion post-heartbeat, so basically post six weeks. And so individuals challenged this, abortion providers challenged this law. They were alleging that it violated the fundamental right of abortion. It violated, it constituted an undue burden on the right to have an abortion. Well, the interesting thing about this law is that it empowered individual citizens. It did not involve state actors. So it was kind of a work around against previous cases that had failed because courts were always able to say, well, this is a state actor.

We're going to stop the action from the state actor from stopping these abortions. And so traditionally courts have not had jurisdiction to enjoin private individuals in this capacity. I mean, they couldn't, you couldn't bring a suit against an individual to stop them from doing this sort of thing. So this was kind of a carve out exception that the Texas legislature had actually found. And they were very intelligent. It was kind of a smart way to get around the previous precedent of earlier cases.

Okay. Well, the justices weren't really amenable to that kind of work around, unfortunately. So what we're looking at here is you saw kind of the middle of the road justices were making, were really questioning that work around. And we're saying that they really didn't want to extend that exception to privates. They didn't want to really extend that doctrine into private citizens. So essentially how it works is that you have to, if you're going to bring a lawsuit, you have to stop a state. If you're going to bring a lawsuit against the law, you have to stop the state official from enforcing that law. And traditionally it works like you have to stop a district attorney from enforcing that law. You have to stop a prosecutor from enforcing that law.

And they've never, courts have never extended that doctrine into private citizens from enforcing a law like this. So what the question is, is whether we're going to be extending that doctrine into stopping judges or county clerk from enforcing the law. And so whether you're going to join or stop these cases from being filed and say, who do you stop from filing?

Well, you're going to extend this to judges and court clerks. And the court seems, the Supreme Court seems amenable to that, unfortunately. So it's kind of, it's kind of a sticky wicket here, but the bigger picture here is what is the law that's underlying this? You know, they're, they're, they're ruling that this law involved is an unconstitutional law because it unduly burdens abortion.

Well, of course, what are we going to have in a few weeks? We're going to have the big case out of Mississippi where the court actually considers, again, whether you have a constitutional right to an abortion. And so if the case, if the court, which, you know, fingers crossed, if the court rules that don't have a fundamental constitutional right to an abortion, then a lot of these arguments kind of go out the window regarding SBA and the liability. It kind of might move out a lot of these arguments for it, for this Texas abortion law and say, well, we're no longer, the law no longer burdens a constitutional right.

So states can take reasonable measures to, to, to regulate it. So this is where we are with it. So it seems like, it seems to me that a few of the middle of the road justices, Justice Kavanaugh, Justice Barrett, weren't too amenable to the, to the regime that Texas has implemented.

That's kind of bad news. The good news again, of course, the law has been in effect since September 2nd and has prevented a whole, you know, petitioners, thousands of abortions from occurring. Hopefully you're going to have a part, you know, hopefully after December 2nd, or actually after June when the court, hopefully a rule that abortions are unconstitutional, or you don't have, excuse me, you don't have a constitutional right to have an abortion, then we'll be able to come back to this regime and that states will again be able to start to implement these sorts of laws. Well, Michael, real quick though, real quick though, it, it also though speaks to the tenor of this court and, and their concept of individual sovereignty and who actually has, you know, the right standing. Is, is, is government more prevalent than the, than the individual citizen, right?

In other words, right? You're, you're, you're, you're also addressing, you know, I mean, we're also kind of looking into the minds of these justices to determine, because if we are a constitutional republic with representatives that are, that are serving us in Washington DC and, and every government entity falls under that auspices, then, then the supreme right to be able to have disagreement and bring disagreement and see your, you know, disagreements resolved is the sovereign citizen's right to be able to do such things. So there's an, that's kind of an underlying, I know that's probably not going to come to the forefront in this situation, but as I listened to what you're saying, ultimately, that really is a determinant because a constitutional origin is just going to, is going to understand that our constitution was meant to hold back government interference in civil issues and let citizens resolve these issues independent of government interference.

Right. And well, interest and interestingly enough with, you know, again, with, with fingers crossed here is the issue of abortion will also, you know, if abortion is ultimately found not to be a constitutional right, then the issue of abortion will revert back to the political arena. Again, state legislatures will be able to determine how and when to regulate abortion.

And that's exactly what you're talking about. You're removing the power from the justices in Washington DC, and you're putting it back into the hands of the people, i.e. the state legislatures who are directly accountable to the citizens of the individual state. And again, if there's a, there's a political outlet for this, if, if individuals want to have, you know, free and open abortion as forbid, then those individuals who will enact that agenda, conversely, if you want to have limited abortions, or if you want to prohibit abortion, then you can vote for state legislatures who are direct legislators who are directly accountable to you, who can act on your behalf.

So what you're saying is exactly right. You want to return the power back to the individual states and individual people. And as, and as that went in our history, it has been such that if you had certain belief systems, you might live in a state with other like-minded people that have those belief systems, and, and other states are going to have differing opinions on that, as are the citizens of that state.

And that's kind of how it's, it's why we have 50 individual states, not one, and yet they are a United States. All right, listen, we've got about, we're going to have about 10 minutes on the other side. So folks, don't go anywhere. We're going to be diving into the second amendment issue coming up when we get back here at Children Generation Radio with Michael J. O'Neill from Landmark Legal Foundation, this 2A case of the New York Rifle Association. And it's really a decision on whether or not do, do we really have the, the uninfringed right to bear arms? Well, that's what, I mean, the plain language of the constitution is, is just that. It's plain. And yet we have somehow convoluted this into believing in, and it's interesting.

I was watching Blue Bloods last night and they were talking about cop suicides, which is a horrible thing, but several of the writers in there wrote in, well, it's because they have access to guns. That's... This is Adam Mundall with State Air, and we are sponsors of Chosen Generation and Pastor Greg. Sponsoring this program has been a real blessing to our business. And I want to encourage you to join me in sponsoring Chosen Generation and Pastor Greg. Call him today at 830-446-3624.

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And welcome back to Chosen Generation Radio where no topic is off limits and everything filtered through biblical glasses. Well my special guest is Michael J. O'Neill Landmark Legal Foundation and ladies and gentlemen this case that we are about to discuss is probably one of the most important Second Amendment cases that's been heard certainly in the last 20 years or more. New York State Rifle and Pistol Association versus Bruin.

Michael give us a quick overview. What are the issues at stake here relative to the Second Amendment? Okay so first of all the Supreme Court doesn't hear Second Amendment cases very often so when you get one it's a big deal. The last case before this one was a Heller decision out of Washington D.C. which I think was 10 plus years ago. So you don't have a lot of, interestingly enough, you don't have a lot of Supreme Court precedent or guidance on this. So the Supreme Court they're bound essentially to follow what they laid out in Heller and there's not really a lot of other cases to talk about from a precedent standpoint.

So what you had yesterday in arguments was a lot of talk about this. That aside let's talk about the New York law. So the New York State law says to individuals that you cannot carry a firearm outside the confines of your house for protection unless you go through this extra, you have to present this, you have to appear before an administrative body and you have to present a reason why you want to carry the firearm outside your house. And it really is an unduly burdensome regulation, a state regulation on what are what is what is what is your fundamental right to bear arms. And what's interesting is that 43 states don't have this law. New York and a handful of other presumably blue states do have this law.

And so New York is kind of, New York and a few other states are the exception. The rule is that you can of course carry a firearm outside the confines of your house. So essentially what this law really really does is designed to keep law-abiding citizens from obtaining firearms for their carrying firearms for their own protection. And we had a lot of discussion about as I said before, what this really fell out into is a lot of discussion about the history. There was a lot of debate about what were the original intent of the Second Amendment, what was the history. The court even got into some of the things, some of the debate about English law and of this thing called the Statute of North Hampton. So they really delved back into kind of hundreds and hundreds of years ago to see what the tradition of the law, the tradition underlined the text of our Second Amendment rights.

And essentially in the bottom line here, I'll cut through all the nonsense. Bottom line is, from listening to the oral arguments, it was a good day for Second Amendment rights advocates. It was a good day for the Second Amendment.

The justices really seemed amenable to the argument that this was an unreasonable infringement upon a fundamental constitutional right. Now if you compare it to say, it's interestingly, because the right to bear arms, the Second Amendment gets this special treatment, and I don't mean in a good way, this exceptional treatment, and again I don't mean that in a good way, as opposed to the other way. If you were going to burden the right to free speech in the way the Second Amendment is burdened, no court in their right mind would have any problem throwing those laws out. But somehow, and I guess this is a question that one of the justices really asked, was why is the Second Amendment always picked on? Why is the Second Amendment carved out and taken to this, and somehow states have gotten the impression that it's okay to unduly burden your right to bear arms. It's okay to make you jump through all of these administrative hoops that you would never have to jump through when you're exercising any other constitutional right. Right. So if you're talking about your right to free speech, for example, we all conclude, we have all reasonable people can all agree, that everything is subject to reasonable regulation. But again, when it becomes unduly burdensome, when I want to put a political, you know, I'm going to put a political sign in my yard, nobody's going to make me jump through some sort of administrative hoop or go in front of some sort of judge or some sort of clerk and say why I want to put a political sign in my front yard. Similarly, why should I have to go in front of a judge or some sort of administrative clerk to tell to explain the exceptional reasons why I have for carrying my weapon, my gun outside my house, my own self protection?

Right. So I think that I think what you saw was you saw a lot of the justices were available to that argument. I think you saw that the advocate for for the Second Amendment rights for the gun rights advocates was one of the strongest Supreme Court advocates we have in our country. He is very exceptional as he is exceptional arguing these cases. So I think it was a good day for them. The individual who was arguing for the New York State really was put through the wringer by the justices.

And I think I don't want to get over my season. I think you're going to see a fingers crossed I'm going to be optimistic that we're going to see a good case for the Second Amendment. And let me and let me let me put this into for for layman's terms as well. Folks that what you know, because somebody might say, well, I mean, I don't you know, so you have to go through this process. What's the big deal? Here's here's the big deal. The big deal is, is that when you have to go through one of these committees, everything becomes subjective. So basically it is the mood, the attitude and the belief of the person sitting on that panel who will determine whether or not they think you have a good enough reason to want to save your own skin. Okay, that's the issue. It's not objective.

There's no objectivity in this at all. It really depends on who's sitting on that panel and what and what they think about guns. And I started to mention this as we were going into the break, you know, the question of well, and again, it was Blue Bloods and an episode about, you know, police suicide, which is horrible. I'm a veteran. We have a major issue with veteran suicide.

But listen, the problem is is helping the individual with the mental challenges and getting to that place of absolute hopelessness. But on Blue Bloods, they said, well, it's because they have, you know, part of the reason is they have easy access to guns, Michael. That is the mantra of the gun control left. And it's what we've got to unwind in our education system. Right.

And again, here we go. Justice Alito posited a hypothetical of, you know, a lot of, a lot of the, I should say this, a lot of the advocates, a lot of the New York, at those arguing in favor of the New York law, we're saying that in cities, you need to have, you know, you have control of New York city. You need to have control of the gun. You need to be able to, you can't have the proliferation of firearms in New York city. And Justice Alito positive, the hypothetical of, you know, made the obvious point. Well, that the individuals who are committing the crimes don't have the guns legally.

Absolutely. People who are going to commit crimes are going to have guns despite the fact. Law abiding citizens are the ones who are being denied guns. And he, he posited this hypothetical of an individual who works until midnight, you know, maybe somebody in your clean, you know, somebody who works in the cleaning services of an office building has to go through a scary neighborhood, has to rise the subway, has to walk by some neighborhoods where some individuals might be threatening to them. That individual can't protect themselves. And the only argument that the New York state solicitor could make was, well, they can call the police. Well, we can't be everywhere.

And by the time the police get there, they could well be dead. Here's something I was looking at. Hello real quick. And you had Alito Thomas and Scalia and Roberts that were, that were on that right now we've got Gorsuch, Alito Thomas, and probably Roberts based on his history that are, that are more than likely in our corner. That's for the question is going to be Cavanaugh and Coney Barrett. And where do they stand? Pray over that folks. We must have the right to defend ourselves back in more children's generation radio right after this brief break.