Ana Cabrera Reports : MSNBCW : June 21, 2024 7:00am-8:00am PDT : Free Borrow & Streaming : Internet Archive (2024)

and will farrell. >> a lot of reasons, the fabulous four. that's the fab four. >> there it is, the new fab four. lest end the week right there. that does it for us this morning. thank you all for watching. we of course will see you again monday, 6:00 a.m. eastern here on "morning joe." ana cabrera picks up msnbc's coverage right now. right now on "ana cabrera report" breaking news from the supreme court. 19 cases left including the all important absolute immunity argument from donald trump, we're live at the court. more breaking news out of a florida courthouse this time in the classified documents case as we learn about efforts to remove the judge. and later, conviction cash cow. donald trump eats away at president biden's cash leap. the big numbers both men are reporting with less than a week until that first presidential

debate. and then disaster mode, wildfires in new mexico prompt action from president biden while tens of millions of americans battle a brutal heat wave. good friday morning. it is 10:00 eastern, i'm ana cabrera reporting from new york, and we begin with breaking news this hour at the supreme court where we are expecting more decisions any moment with 19 cases still undecided, including the biggest one of all, donald trump's immunity argument. let's go right to nbc's julia ainsley live outsides supreme court this morning. julia, the clock's ticking until the end of the term. what should we expect this morning? >> reporter: that's right, we know we should be getting multiple cases today. this is likely the second to last week of this term, so we expect all these decisions to be made at least by the end of next week. you mentioned the big one, ana,

that's whether or not former president trump can claim presidential immunity in the election interference case given his role in 2020 election interference including january 6th and whether or not presidential immunity could keep him from being prosecuted. his attorneys have argued that he was performing official acts but have conceded if what he did falls outside the bounds of official acts he would not get that immunity. other big cases are whether or not people who are under domestic violence restraining orders can have firearms. also we're looking at another abortion case. that's why you hear the protesters from both sides right in front of the court today. this is over an idaho law that's a near total ban on abortion and whether or not that violates a federal law called entall la, and whether or not emergency room doctors in idaho can be allowed to perform abortions. also looking at a lawsuit over the opioid epidemic whether or

not purdue pharma's bankruptcy settlement can be blown up, which would allow billions to go to the victims of the opioid ep epidemic. we will get to you momentarily as we hear more about what the justices have decided. >> we know that first case they revealed today, the first decision they put out was not one of those big ones you're watching, julia ainsley, thank you. we'll continue to wait for them to reveal other cases that may be decided or may be released today. we're also tracking some breaking news in another critical case, this time out of florida. right now a hearing is underway for the classified documents case against former president trump. this time the trump team is arguing that the special counsel here, jack smith, was improperly appointed and that the whole case should be dismissed. it comes as some new reporting from "the new york times" details how two federal judges privately urged judge cannon to decline this case, when it was assigned to her.

joining us now from outside that courthouse in florida is nbc's ken dilanian. ken, let's start with today's hearing. this isn't the first motion to dismiss in this case. take us deeper into the arguments at the heart of this bid. >> reporter: that's right, good morning, from fort pierce where we begin the start of a day long hearing that's really the start of three days of pretrial hearings in this case, which is crystalizing the notion among legal experts that judge aileen cannon is not handling this as a typical federal judge would, and it's one reason this case has not gone to trial sooner. the argument today is about the question of whether the special counsel appointment was constitutional under the appointments clause. that's an argument that has been made and ruled against in the case of special counsel robert mueller and in the case of special counsel david weiss. what's different about jack smith is unlike those two men and previous special counsels, jack smith was never confirmed by the senate as a u.s.

attorney. will is a unique argument in that case that presumably, potentially the supreme court grab onto. what's so unusual is that judge aileen cannon is allowing outside attorneys not involved in this federal criminal case, so-called friends of the court, to argue on this issue in her courtroom. experts tell me that is unheard of in a federal criminal trial. it's just not done and it's one of the reasons this hearing is going to take a day and it's one of the reasons this case is taking so long to get to trial. >> there have been a lot of questions and some scrutiny into how she's handled this case. what more are we learning about these previous efforts, apparently, to get her off the case? >> reporter: yes, "the new york times" is reporting that two federal judges made an outreach to judge cannon when she was randomly assigned the case after donald trump was indicted asking her not to accept it, and the first judge according to "the new york times" made the argument that this is a case that really should be tried in miami or closer to miami given

its national import and given the issues around classified documents. when she didn't entertain that request, the chief judge of the district according to the times called her and said, you know, maybe the optics aren't great for you to take this case given that you were soundly reversed by the appeals court when you imposed a special master on the fbi's search of mar-a-lago. she had an outside party reviewing all the documents the fbi seized, wasn't granting the fbi access to them on the grounds that donald trump was a former president. the appeals court rejected that notion. judge cannon, she's a lifetime appointed federal judge, she didn't have to agree to those requests, and she did not agree to those requests, and she took this case. this is only the fifth criminal trial that she's ever presided over, and it's taking many longer than many experts say is normal. >> ken dilanian, please stay close and keep us posted. joining us is msnbc legal

correspondent lisa rubin, defense attorney misty maris, and kenji yoshino. thanks for being here. we're waiting on more supreme court decisions today. in the meantime, let's talk more about this mar-a-lago case. lisa, just how unusual is it for two federal judges to come to a trial judge and say you should remove yourself from this case, and how unusual is it that she didn't? >> it's not unusual that she didn't only in the sense that federal judges have the prerogative to keep cases that are wheeled out to them. it used to be literally that there was a wheel and you would spin it almost like a lottery and a bingo game and you would get a random assignment that way. that is how aileen cannon got this case notwithstanding the fact that she was involved in the earlier civil litigation challenging the search. let's go back to the conversations themselves. we do event have a lot of insight into how federal judges communicate with each other. it is cloaked in secrecy and by design. while federal judges sometimes will discuss their cases with

one another or seek guidance from one another, the conversations hear are of a type that i've never seen reported before or even heard about in rumor before. that two federal judges called a colleague of theirs and suggested for different reasons that she give up the case sounds virtually unprecedented, and what's even more unprecedented, ana, is that we know about it. the fact that this has made "the new york times," is somewhat analogous to me to "politico's" reporting of the draft decision in dobbs or the reporting about the ways in which the court had agreed to hear the dobbs decision but hadn't formized that and made it public for several months because of the optics. somebody associated with that federal judiciary or perhaps with the u.s. attorney's office or the defense bar knows those conversations happened and they want the public to know that the concerns about judge cannon that we have aired on this network and aired on other places, those aren't concerns that the

judiciary itself didn't share, at least two judges, both of them shared those concerns as well. >> i noted in "the new york times" those judges did not respond to their request for comment, neither did judge cannon's office. misty, today's hearing is one of five judge cannon scheduled over the next five days. one is about whether jack smith's position is legally funded. so are these hearings important, or are they just delaying things needlessly? >> well, this hearing is actually so unusual relating to jack smith's appointment and the constitutionality. first of all, it would be normal for this type of argument to be decided on the papers. you wouldn't necessarily need a hearing. you could decide it on the briefs and you would generally see that. you would also usually see the trial judge send this to the magistrate judge. she has not done that with any of the motion practice in that courtroom. that's something that keeps the

wheels moving and keeps these cases on track. that's not something she's doing, and the most unusual part of this is that three lawyers are going to testify as friends of the court, two regarding donald trump's position, one regarding the doj's position, and that simply does not happen at the trial court level. this is a trial court. you see those friend of the court briefs at the supreme court and sometimes in the appellate court stages, but not at the trial court level. this is a very, very unusual hearing relating to jack smith's appointment. >> kenji, today's hearing is about this motion to dismiss the indictment because trump's team believes jack smith's appointment is not constitutionally valid, to reiterate all of that. you are the constitutional law expert here. is there any merit to that argument? >> i think that's really a threat. i mean, going back to the special counsel during the nixon era, we've had special counsels of this vein, she's relying on

whether or not he was confirmed as a u.s. attorney. as discussed, she's playing keep away not just from the lower court or the magistrate judge who's kind of assigned to the case, but also to the supreme court precedent. she's really going it on her own in this way. >> everybody stay with us, as we continue to await the supreme court decisions today. lisa, we have now seen, then revealed two decisions today. none are the big ones, but what do we know? >> we know that there are three boxes full of decisions. now, you're asking what does that mean? that literally means that there are three physical boxes that the public information office of the court has taken out to distribute to reporters including those from nbc news who show up in person to the supreme court. there's probably another decision coming. does it tell us exactly how many? as you and i were discussing before we went to air, sometimes a decision can be particularly lengthy, or there can be

multiple concurrences or dissents. we're doing a little bit of prognostication. it's sort of an educated prognostication. i expect we'll see at least one more decision today, but exactly how many we'll see, i can't tell you. >> two have already come out, any understanding of what those decisions are yet? >> yeah, the first of the decisions is about -- it's what they call an original jurisdiction case between texas, new mexico, and colorado having to do with the rio grande compact and how water is literally distributed from the rio grande river. i raise that only because you'll remember post-january 6th -- i'm sorry, pre-january 6th after the election, there was this theory that you could have an original jurisdiction case. there were folks close to former president trump who believe that if one state sued another, they could go straight to the supreme court, and that's because the supreme court is the only court that can hear disputes between states. they have what's called original jurisdiction of disputes between states. that legal strategy did not pan out for former president trump, but in this texas versus new

mexico case, we see what the supreme court is doing when it legitimately presides over real disputes between states. the second decision that we're seeing here is one by the department of state against an individual. i haven't had time yet to distill what that's about, but it is not one of the core decisions that we're waiting for on guns, on abortion, on presidential immunity, and on the scope of the regulatory state there, is a long-standing federal doctrine known as the chevron doctrine that sort of discusses when federal agencies are allowed deaf reference to make decisions in interpreting statutes. this case that we are expecting to come down in the next few days, known colloquially as the bright decision, that could turn the chevron doctrine on its led, restrict the power of executive agencies to interpret statues and -- statues.

environment to labor to health regulations depend on that chevron doctrine. if it's turned over, look to see old school conservatives claiming a major victory in their efforts to restrict the power of federal agencies. i'll also flag for you, that's not how the maga movement seeing federal agencies. when we think about project 2025 and what its objectives are, it relies -- >> which is supposed to be some kind of a road map for a second trump administration. >> correct. >> although trump's team is saying this isn't their official document. >> correct. >> and they've said that many times in public statements and you are -- i appreciate your clarifying that. that having been said, to the extent that project 2025 is a living, breathing recitation of what some affiliated with former president trump would like to see happen in a next trump administration, a lot of their vision for that relies on sort of a robust theory of agency

power and executive power that are somewhat at odds with overturning chevron. so see this potentially as a real cleavage in the conservative legal movementist. maybe a division between people like justice coney-barrett on one hand. >> one of those big ones dealing with abortion, gun right,s, presidential immunity. as we're watching the supreme court dealing with these, ultimately i'm wondering on the immunity question specifically, could that decision impact multiple trump cases, or is it just going to be impacting the d.c. election interference case? >> it's only going to impact the federal court cases, although i'm sure if the decision is favorable to trump, he would argue and his attorneys would argue that it has some impact over the state level cases as well. however, it will directly impact that d.c. case.

it will be the governing law relating to that case, so this immunity decision, this is really going to be a landmark decision, and speaking about how it impacts trump and the d.c. case, of course it's absolutely going to matter so much with respect to that case. it's also setting a precedent about where the line is relating to presidential immunity moving forward. so this is one of the biggest decisions we're going to see coming out of the supreme court, not just with respect to trump, but with the law of the land moving forward when it comes to presidents. >> kenji, as we're watching these rulings to come down, and we are expecting more today, is there any rhyme or reason as to how they're release ds? >> well, generally the court -- everyone sort of thinks that they save the big cases for last. i think they just save the hard cases for last. usually the unanimous opinions come earlier on in the term in terms of when they're released and then the hard cases are just

hard cases. that's why they're released last. l the opinions are read from the least senior to the most senior justice on the bench, and so we currently just had, you know, an opinion handed down by justice kavanaugh, i believe, and so there's still a lot of running room with regard to seniority on the court for other opinions to be read. >> we just got a fourth opinion today, not one of those big ones we've been talking about that we're still watching. we'll continue to wait until they tell us they're done with decisions for today, but you know, we're talking about more than a dozen cases that remain, kenji. at this point in the term, one week left, is that unusual? and why do you think there's this backlog, it seems, and what's the impact of this? >> yeah, it's really hard to know, but if -- one speculates, right? certainly we're having more and more of a pileup in recrenn recent years, the court is taking fewer cases and taking

longer to issue them. i don't want to say that, you know, next week is going to be the last week, but the one time they went over is because of covid. we might, you know, expect next week to be the last unless they are really unusual. in terms of speculating, i mean, part of this is that, you know, despite the historic collegiality of the court and the idea that they get along with each other and there's a lot of mutual respect and comedy, ever since the dobbs decision if not earlier, there are signs that that kind of familial feeling was breaking down and justice thomas and others have even commented publicly on that issue. that may contribute to the delay in these big ticket cases. >> kenji, i'm wondering if you've seen any notable departures from the conservative part of the court, it's a 6-3-balance as we've discussed. have there been any divisions in the conservatives that might

indicate they were divided on some of these most controversial cases? >> it's a really good question. just yesterday thinking about this, i was reading justice barrett's opinion this a trademark case where she concurred and she said history and tradition are not the be all and the end all and looking at whether or not there's an exact fore bear of a particular regulation isn't the way we've done constitutional interpretation. for someone who styles herself as an originalist, that's a really striking departure from her colleagues on the court. and has direct bearing on the cases like the rahimi case, whether or not there's a second amendment right to bear a firearm if you have been sort of deemed to be a domestic abuser. you know, the big deal about that is of course, like back in the day there was no historical antecedent for depriing individuals who were domestic abusers. domestic abuse wasn't a thing that the law -- back in the 19th or 18th centuries.

that departure could have serious knock-on effects for how she decides to go in the rahimi case. >> again, we are awaiting 15 decisions left from this supreme court after the ones we've already seen come out today, and you mentioned the rahimi case. lisa, that was a case, i double checked. it was argued back in november 7th of 2023. that was a long time ago. how do you explain it taking this long for that decision? >> decisions are iterative processes oftentimes. so the dobbs decision, i think when we saw that draft, for example, the difference between that draft and the final decision was very, very minor, but that is a typical as professor yoshino can tell you, particularly in a court this large with nine justices, decisions are iterative. there's immediately after argument. there's a conference where the justices discuss amongst themselves generally what camps they might fall into or what reaction they had to the argument. based on that the decision is

assigned. they have a generalized understanding of who's going to be in the majority, who's not going to be there. the decision is designed by the chief justice. there might be multiple it ear -- iterations of drafts as people decide which part they're going to sign onto. they want to tinker with the wording here or there for their own comfort. sometimes hard decisions take the longest. rahimi, which might seem to some of us to be an easy decision, somebody with a domestic violence restraining order should not be in possession of a gun. based on the court's recent jurisprudence, that robust conception of the second amendment and squaring that "with the federal law that prohibits gun ownership to people with a domestic violence restraining order. you might see people who were in the majority in bruin not going to go along with invalidating that federal law here in this decision.

>> bruin being the bump stock case -- >> no, bruin not being the bump stock case, bruin being the case that invalidated a new york law about what it meant to have a concealed carry. bruin being a sea change, now based on that bruin decision, there might be people who were in the majority on bruin who don't believe invalidating this federal law is the right thing to do and trying to square that circle might be more difficult than it seems to the layperson's eye. >> that one of many cases we're still awaiting. misty, on a separate case we've been following here, the manhattan d.a. just responded to trump's motion to terminate the gag order arguing that this request should be denied, given that the trial is over, at least through the portion where they decide whether he's convicted or acquitted, we are still waiting on sentencing, of course. but why wouldn't the manhattan district attorney be okay with

lifting the gag order at this point, if it was to avoid witnesses being intimidated, et cetera. >> that's trump team's argument, is that the guilt phase of the trial is over. the gag order to have witnesses be able to testify without that fear of intimidation and also specifically to protect the jurors in that case. prosecutors are arguing that the gag order -- >> hey, misty, i'm so sorry to interrupt you. we just got one of the big ones from the supreme court, we've been waiting on. the united states versus rahimi. this is that gun case we were just talking about moments ago, again, questioning whether somebody who is a domestic violence abuser and has a restraining order against them should have access to a gun and can legally have access to a gun. lisa, we were just talking about this. i know you're quickly trying to get to the bottom line of what the decision is. do you have that answer? >> i do. i don't necessarily have the division, but the holding of the

decision is when an individual -- and i'm reading to you from the front page of the decision, when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed, consistent with the second amendment. that is an upholding of that federal statute that is, as i was just speculating with you, where this was headed. and you know, based on the oral arguments in this case, many legal observers believed that a majority of the court would uphold the statute. they didn't understand necessarily who that majority was going to be. i will tell you that this is -- ooh, this is a difficult decision to parse in terms of the number of -- we were talking earlier about the number of pages, the number of concurrences. chief justice roberts wrote the decision for the court and it has one, two, three, four, five, six, seven other justices joining it. it is an 8-1 decision, ana.

there are some concurrence, and the only dissenting justice is justice clarence thomas in the rahimi decision. i did want to talk a little bit, if we could, for a moment about the manhattan d.a. in their brief today with respect to the gag order. >> let's hit pause on that and try to circle back. i want to dig into this are he mee decision and give you a second also to take a look at that. let me get to yamiche alcindor, who is also looking through this decision right now. yamiche, what stands out to you? >> what stands out is that the supreme court is saying here that if you are found in violation of a domestic violence law that you can't have temporarily your rights to guns be taken away from you, and that's really important in this case because the government was essentially arguing that if you are someone who's a threat to someone and been found to credibly violate laws you should not be allowed to have guns. it was in 2022 that the supreme court for the first time found that you have a right to bear

arms outside of your house, which meant that there were a lot of questions about whether or not other kinds of laws that were restricting people's access to guns, related to domestic violence, related to other breaking laws, whether or not those laws would be in some ways come into question here, and the supreme court here is standing on that and saying, absolutely. in this case, domestic abuse violators have the ability to get their guns taken away. i also think it's important to point out this is an 8-1 decision. we talk about the fact this is a 6-3 conservative majority court. here you're seeing a decision that's written by chief justice roberts and the liberals and conservatives, other than justice clarence thomas are finding they agree on this issue. it is striking to see this split. i think it's important to note that. we could talk a little bit about who brought this case. it was rahimi, he was found to allegedly have domestically violated his partner.

he allegedly dragged her through a parking lot and abused her in several ways and he's saying i should have access to my gun. the supreme court is saying that is not what can happen here. it's a striking decision given the fact with a conservative majority court, you would some gun rights activists saying maybe this court will be a court that's going to be more sympathetic to rahimi's claims here and they're going to go with him and say that he does -- he should have access to his guns. i also want to point out during oral arguments, there's a lot of questions about history and traditions. whether or not because in the past, historically you haven't had laws dating back to the beginning of this country where people were not having access to their guns because of violating domestic violence laws. this is a court seen as wanting to go to the original definitions of the constitution. here's the supreme court saying there are times where people need to temporarily lose access to their firearms. so i think it is striking, if you think about the context of this and the history of this

court. >> i'm glad you pointed out who it was who was petitioning the supreme court, this domestic violence accused man, his name was rahimi, and he allegedly knocked a woman to the ground, dragged her through a parking lot, banged her head on the dashboard, allegedly fired a shot from his gun at witnesses nearby, and then while the protective order was in place he's implicated in a series of other shootings. justice roberts who, again, wrote the majority opinion here upholding the ban of guns that are not to be in the hands of people like rahimi, he asked rahimi's lawyer during arguments, you don't have any doubts that your client's a dangerous person do you? and his lawyer responding it would depend on the definition of a dangerous person's conduct. >> roberts responded someone

who's, you know, shooting at people, that's a good start. that's a good indication where his head was. it was an 8-1 decision with justice clarence thomas being the lone dissenter here. it will be interesting to know his reasoning for that as we'll have our reporter yamiche and lisa continuing to look through those documents as this decision just came out. kenji yoshino, what's your reaction to this decision upholding the ban or the gun restrictions for people who have domestic violence restraining orders against them? >> well, certainly it's a sigh of relief that's going to be breathed for any individuals who are for sensible gun regulation in this country. looking at it from a constitutional law perspective. it's also a relief for those of us who believe that the methodology embraced in bruin was way too narrow. if we interpret the methodology in bruin, the 2022 case lisa was talking about earlier, to be you

cannot regulate the second amendment unless there's a historical analog for that restriction back in the history of this country, in the 18th or 19th centuries that would allow for that kind of regulation today. in other words, you had to find the historical analog. what the court does in this opinion is to say, look, even heller, which is the case that decided there was an individual right to bear arms said there was going to be exceptions to that for sensitive places or individuals who are engaged in unlawful activity, and so that's now been expanded with regard to the who to think about individuals who should not be holding guns, at least for, you know, particular spans of time. the other thing that the court did, it didn't entirely back away as i read it from the history and tradition analysis, it rather said we're playing kind of levels of generality game here. they said in bruin, the prohibition was really broad,

and so the historical analogs that we were creating were not actually on point, but here the restriction is actually quite narrow saying if you're under a protective order, the subject of a protective order for domestic abuse, you're not allowed to own a firearm, that's a very specific narrow statute, and that narrowness seemed to save it by saying these historical analogs don't need to be as specific because the deprivation of liberty is not as great. >> misty, your reaction, your thoughts on this outcome with u.s. versus rahimi on the gun rights question involving domestic abusers? >> absolutely. looking back and just to piggyback on that point, bruin had expanded the 2022 case so much. this is creating this narrow exception, which in my mind is very, practical, of course the

court is looking back at history and making an assessment based on historical context and finding that historical analog that was just being spoken about. this decision, in my view, this is the right decision, and it speaks a little bit to amy coney barrett and what she had said relating to that trademark case. yes, we're looking at history, of course we're looking back, that's a conservative point of view, but we also have to have some level of understanding that things have changed over time and this is drawing that narrow exception to the rule of an second amendment relating specifically to domestic violence. the decision, i'm interested to get into that dissent though. i haven't gotten there yet. the decision is a good one from the supreme court. >> everybody stay with me. i want to bring in leah litman, a professor of law at the university of michigan, and leah, as we've been discussing this case landed at the supreme court because of their ruling in 2022 that expanded gun rights outside the home.

is it clear now where that line is when it comes to who can or cannot own a gun? >> it is absolutely not clear, so this opinion produced seven writings from seven different justices, all trying to explain exactly how the history and tradition analysis would work. you know, the bruin opinion said you had to show that a gun regulation fell within the medication's tradition of firearm regulation. today's majority opinion by chief justice roberts said the analysis has to be grounded in second amendment principles. a second writing by justice sotomayor, joined by justice kagan says this needs to be done at a fairly general level in other words to avoid courts trying to find an exact historical twin. then you have justices kavanaugh and barrett trying to write opinions that explain how originalism works in general or how history and tradition works coupled in analysis. it's far from clear. the most interest egg separate writing is by justice jackson

who explained that today's decision in rahimi came to the court because of the court's decision in bruin as you suggested, basically the chickens came home to roost after the supreme court greatly expanded the scope of the second amendment and said courts should engage in an originalist analysis in order to determine whether a gun regulation was consistent with the second amendment. now courts are going to be left with a very difficult task of trying to determine exactly how similar does a historical analog have to be to a modern day gun regulation in order to uphold the regulation. they will also have to answer, well, when should we perform an analysis that looks more like the analysis the supreme court used in bruin versus the analysis the supreme court used in rahimi. the author of the bruin opinion that said courts should examine whether a firearm regulation falls within the nation's tradition of firearm regulation, the author of that opinion is justice thomas. who was in dissent in rahimi. there's considerable disagreement over how an originalist or traditionalist

analysis of the second amendment should work, and courts are going to be struggling with that for decades. >> so leah, when it comes to specifically gun rights involving domestic violence abusers or those who are accused of domestic violence who have restraining orders against them, does this ruling settle that issue at least once and for all or does it still leave open the door for more challenges? >> it leaves open the door for some challenges. what the majority opinion by chief justice roberts says so long as there has been a finding that an individual poses a danger to another, then that individual can be disarmed. that is how a lot of domestic violence restraining orders are issued. however, in some instances there might be temporary restraining orders that are issued without such a finding. there could be challenges to disarmament orders that accompany those kinds of

temporary restraining orders in domestic violence cases or other kinds of cases. we will have to wait and see. >> i'm going to read from justice roberts opinion. since the founding our nation's firearms laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. as applied to the facts of this case, section 922 g 8 fits comfortably within this tradition. so again, it's narrowly applied to this specific case when it comes to people who are deemed harmful to others. i'm wondering, kenji, when it comes to other firearms restrictions, when you think of, you know, the felon in possession law or, you know, banning people from under 21 from buying firearms or bars users from, you know, who have used illegal drugs like we have

been discussing in the hunter biden case who are addicted from getting firearms, do any of those other cases -- are they impacted by this decision? >> they are not in the sense that we can predict their outcome, but the methodology is now becoming a little bit clearer. so the chief justice doesn't reject methodology in bruin. he doesn't overrule that case, and that case is once again, if you want to regulate, you know, the right to bear arms, you have to show there's an analogous regulation that has been accepted according to history and tradition. so he softens that approach, although he doesn't change it. the way he softens it is to say these laws are not frozen in amber, and one of the ways in which he makes the analogy is to say in the same way we wouldn't say that because arms like, you know, ak-47s didn't exist back at the founding we can't regulate them at all. that would be completely nonsensical. he draws an analogy between that technological advance and other

advances and social morays. one of the people who should be happy about this opinion is solicitor general, one of the ways in which he was very commanding in that case is to say i'm not actually going to fight the methodology. i'm going to ask you to look at the methodology in a different way. rather than looking for exact historical analogs for regulation, i'm going to ask you to look at that history to discern a principle. the principle here is dangerousness toward others. he does accept this idea of dangerousness to others as a potential criterion. it will have to play itself out across all of the examples you just raised in litigation after litigation to figure out whether or not regulations of those kinds of individuals, those kinds of firearms fall within that definition. >> i'm going to bring in the executive of the director of the organization giffords, an

organization determined to combat gun violence. emma, thanks so much for coming on with us. what is your reaction to this ruling that says bans of guns from getting in the hands of abusers can stand? >> yeah, well, thanks so much for having me this morning. so look, this is a huge relief for women, for kids in this country. it's a big win for common sense gun safety, and the vast majority of americans across party lines agree wholeheartedly. it's very clear that domestic abusers shouldn't have firearms, right? so this is not a controversial issue in the slightest, and u.n. yo, i think what we saw today is the gun lobby losing, you know, we saw the court ruling on the side of the gun safety, and at the same time, i think it's really important to remember that all this decision does is preserve the status quo in this country, right? we have prevented a backslide. this remains a tremendously dangerous country for women. american women are 21 times more

likely to be killed by a firearm in this country than women in other developed countries and, you know, gun violence, particularly homicides, are the leading cause of death for pregnant people and postpartum people in this country. we still have a gun violence crisis on our hands disproportionately impacting women. the supreme court didn't set us back, and that's a big win. >> emma, are you surprised at all that this is the outcome in this case given the earlier bump stock ruling? >> yeah, and i think you raise a really important point here, this is a court that has been fundamentally hostile to women and gun safety measures. last week we saw this court essentially legalizing machine guns, which is unbelievable, and it puts all americans at significant risk. this is the same court that two years ago restricts women to their right to an abortion and reproductive freedom. i think while we saw the court

preventing a backslide today, we still have a fundamentally dangerous crisis on gun violence, and we need to see our leaders doing more to solve that. >>. the reaction is rolling in right now. i want to read for you, emma, what we're getting from shannon watts who's involved with moms demand action. she writes, the rahimi case should never have been taken up by scotus to question whether domestic abusers should have access to guns just shows how extreme this court has become. what's your take. >> i think that's exactly right. this case should never have been up at all. the only reason it was is because of a court ruling several years ago where the court decided in the bruin decision that firearm safety laws in the united states needed to be grounded in the 1700s, right? there needed to be some sort of historical analog. you think about this nation in the 1700s, women were not

citizens. we were using muskets and we still had slavery. so that is not the right framework to be thinking about gun safety, particularly with the modern nra and the modern gun industry, and its developments. i think it's worth pointing out that in this case the nra filed an amicus brief where they argued that domestic violence restraining orders are inherently unconstitutional. if that sounds unbelievable to folks, it's because the nra has become an increasingly extreme political organization over the previous couples of years, and in this case argued that people shouldn't even be able to file domestic violence restraining orders, let alone be separated from their firearms after they had been determined to pose a threat to women. >> emma, let me read to you now from the dissenting opinion oaf justice clarence thomas. he writes at first glance these laws targeting dangerous persons might appear relevant. after all, if the second amendment right was historically

understood to allow an official to disarm anyone he deemed dangerous it may follow that modern congresses can do the same. yet, historical context compels the opposite conclusion. the second amendment stems from english resistance against dangerous person laws. how do you respond? >> well, i would say that, again, you know, looking at the origins of this country and the 1700s, you know, and where we were when the second amendment was written, this is a very different country. you know, we did not -- we did not have assault rifles. we did not have machine guns, and we need to be creating laws and protections that fit the current, you know, the current status of the united states, and so i think, you know, we saw justice thomas a couple of years ago in bruin providing a very, very narrow and dangerous point of view on gun safety in this country, and i think, you know, what you saw today is the court acknowledging 8-1 that it wasn't -- it wasn't appropriate

and that we needed to provide better gun safety parameters for folks that meet the modern day. >> emma, thank you so much for taking the time to speak with us. i want to go back to the supreme court and our yamiche alcindor who's been reading through the multiple opinions. again, it was 8-1 in terms of the decision, but multiple opinions involved in this. what more are you finding? >> reporter: well, first of all i want to say that it's striking the number of concurring opinions here. while this is an 8-1 decision you have a number of the justice wanting to also sort of really explain why they are voting to continue to uphold this ban on domestic violence abusers when it comes to owning guns. i want to point out that in a concurring opinion by justice kagan and sotomayor, they say in the founding of this country, the laws might have protected a husband abusing her wife more than the wife herself, they were

really wanting to lay out that and say even if the founding of this country doesn't have dmiems protections, we shouldn't continue in that vein. justice amy coney barrett, a conservative appointed by donald trump, she writes this striking part of her concurring opinion, she says the second amendment is not absolute. that's really important. she's saying there should be and can be limits to the second amendment. i want to in some ways talk about the dissenting opinion here by justice clarence thomas. he writes at one point that the second amendment is being violated by domestic violence abusers, people who have been convicted or who have restraining orders against them, that that's going against the second amendment. he writes it's not giving them due process. i want to read part of his dissent. he writes in part, this law violates the second amendment. first, it targets convict possessing firearms. the government failed to produce any evidence that this law is consistent with the nation's historical tradition of firearm regulation, to the contrary the

founding generation addressed the same societal problem and it's not materially different means and they did not want to have those laws. i think it's interesting to see that you have justice clarence thomas looking at the founding o'this have country saying what the founding of this country, we didn't have domestic violence laws. we couldn't take people's guns because of that, so as a result we should continue in that ein. you have justices on the liberal and conservative side, women writing that that shouldn't matter, that the second amendment should have limits on it. >> yamiche, keep reading for us and flag when you've got more to come back. lisa, you've been digging as well. just give me your thoughts at this point. >> a couple of broader points. one is the fifth circuit, which is sort of the court of appeals in this country that conservatives love more than others is not having a particularly great week, and that's because this case, rahimi came from the fifth circuit as did the mifepristone case. now you're seeing panels of that circuit being smacked down by the supreme court, one on something as technical as the

person's standing to even bring the suit in the mifepristone case. here just saying you've over read our decision in bruin. it doesn't have to be a precise analog historically. we've always allowed flexibility in the second amendment to protect people from those who are dangerous. you are over reading this precedent. and to that point, i will say justice jackson's concurrence as yamiche pointed out, one of many, many concurrences essentially says, look, in the wake of our bruin decision, lower courts are struggling with how to interpret our insistence that they look back to the history and tradition of constitutional text in order to give it meaning and to the extent that they're struggling and i'm reading from her concurrence, in my view, the blame may lie with us. not with them. essentially saying, look, we have created a monster of our own making and while we -- while we describe it as a misunderstanding and chief justice roberts majority opinion, really this is something that we have created and we need to own as a problem.

i will also say that both chief justice roberts and justice barrett in her own concurrence seem to be struggle with this sort of method logical problem, we need to look back at what constitutional text meant at the time it was enacted. there's an ongoing debate about how we understand individual rights under the 4th amendment. do we understand them based on how they existed at the ratification date or some later point. we don't need to solve that problem now but that is a battle that is raging inside the court, and then the final thing i will say is that justice roberts, we were talking earlier about what takes so long. pages 9 through 15 are why it takes so long. pages 9 through 15 are a very long discussion of the history of the second amendment. that's there to assuage the people who are the the history buffs and fetishes among the court. >> and so kenji, on that point this what appears to be tension,

seems to be division over originalism and whether that should still lead the way in terms of interpreting the laws and deciding some of these cases, and it appears that that is diviing conservatives on this court, no? >> yes, and i would say more particular play what originalism means. i'm just scanning through justice barrett's concurrence, and we are right, ana, to flag that case, the trademark case where she departed from thomas's, you know, opinion in her concurrence in saying that, you know, just kind of looking at, you know, fore bearers of regulation in this kind of stream of time way is not as relevant because what she explicitly says in this concurrence, my originalism looks at slices of time rather than streams of time. this is our phrasing here. the slice of time that's relevant is the, you know, founding moment of, you know, proposal and ratification of a

constitutional amendment, the second amendment's case 1791, right? and then we might look at the reconstruction period as well for its application against the states in the 1860s, but if you actually look at those particular moments, what she's focused on is kind of laser focused on this intent of the framers and the ratifiers in those amendment moments, not this kind of long sweep of time in between. you know, i think that that helps a little bit, you know, with regard to cases like this, but it doesn't necessarily mean a kind of signature departure by any means from her originalist methodology. >> and then there was the mifepristone case that we got earlier and now this one, which, again, maybe were decided in ways that a lot of people didn' given the makeup of the court. do you think there would be, like, back room negotiations going on leading to these decisions? >> yeah, there is never any pleasing me, on the one hand if you say, you know, oh, you know,

are they thinking about, you know, the election, are they thinking about their own legitimacy and things like that, i think these cases on legal grounds can really be distinguished. the mifepristone case is really about a very technical doctrine called standing about whether the right person has the case. the bump stock, that was about statutory interpretation and therefore this was whether or not congress needs to go back and make it clearer that bump stocks are banned, not whether or not there is a constitutional right, that no government can regulate with regard to the use of a particular weapon. so there are those distinctions. on the other hand, when people say, the supreme court is the temple of principle and they do everything without regard to public opinion polls or anything like that, i also think that's a little bit too far on the other extreme. so, we don't know. we know those who don't tell, those who don't tell don't know. we can speculate from the outside and looking at this mashup of decisions to say this

is not the kind of usual kind of ideological one after the other kind of sequence that we sometimes have come to expect from this court. >> everybody, thank you so much for bringing us your interpretations, your perspectives and your analysis. i want to go to nbc news white house correspondent aaron gilchrist who is getting reaction from the biden campaign. what are we hearing? >> reporter: we did just get this statement from a senior biden campaign adviser, not from the white house, though this is the sort of decision we would anticipate getting a statement, potentially from the president himself, or from someone at the white house, but the campaign released this statement that says no american should overlook the startling reality behind today's decision, protecting domestic abuse survivors from gun violence should never be a question, but the fact it even had to be considered shows just how extreme donald trump and the gun lobby are. there is only one candidate in this race fighting to save lives from gun violence and that's joe biden. of course, finishing there with

the sort of line that you might expect from a campaign on something like this. we know that it was just a week ago last week when the white house put out another statement from president biden after a supreme court decision that addressed the use of bump stocks, essentially making guns into machine guns, effectively. the biden white house and the biden campaign both saying that that -- that overturning that ban on bump stocks was not the right move, that the biden administration has been working over the course of the last three and a half years to try to create common sense restrictions on the use of guns in situations where we have seen so many mass shootings over the last several years in particular. the biden administration has been trying to do what it can from an executive perspective to try to address some of the violence that results from the use of firearms. and also has been pushing congress to do more. of course, we saw this week an effort in congress to try to ban bump stocks, one that failed in

the senate, i should say, and so at this point, that is the statement we have gotten from the biden campaign. as i said, we are waiting to see if we will hear from the kwhouz white house or from president biden himself on this decision. >> joining our conversation, former democratic congressman max rose of new york and former republican congressman david jolly of florida. let me start with you, david. do you see this decision as a smackdown on the gun lobby? >> well, we know all of the other decisions this court is capable of making, but what we do know is the nation is safer today because of the court's decision. had they reversed this, it is a very dangerous place for the nation and, look, coming out of mass shootings, we talk about red flag laws and other small measures to try to remove guns from people who are known to have a propensity for violence that is common sense gun violence prevention legislation and rules, and i think what you heard from that biden statement is important, because anytime

that the biden administration or the campaign has an opportunity to talk about gun violence prevention, they are in a good space politically for this country, because democrats today represent the majority opinion on gun violence prevention, donald trump and republicans are outliers to this, remarkably it was the roberts court that sided with biden administration position on this. we can set politics aside very briefly, just say this is a good decision and a good day for the country. >> max, how do you see it? >> politics of this are fascinating. the one side you have the biden campaign, there has been a clear ideological thread among the democratic party that gun rights, while to be respected, are clearly not absolute. that's what the supreme court said today. so you have one day that the biden campaign saying this supreme court is radical and the next standing with them. but that's an uninteresting very predictable position. >> that is interesting. that is part of the argument that the biden campaign is making, right?

you have this rogue supreme court, they could get more extreme if you elect donald trump. here, like you said, they're standing with the biden administration. >> they are. but the biden campaign is not in a political pickle. they come out in support of this, you live to fight another day. trump campaign and the republicans, they are in a real pickle right now because they have this extraordinarily extremist base that is supported by equally extremist gun rights advocacy organizations that absolutely hate this ruling. and are ready to mobilize against it. so, what do they do? do they come out and criticize this supreme court and say, this supreme court that has executed some of the most radical right decisions, one could ever imagine is too liberal, the one that donald trump himself appointed? or do they turn around and say that, no, they were correct and we have to tack to the middle? i'm interested to see what they say here because they're in an awful political position. >> david jolly, you look at the

polls, gun violence is not necessarily one of the top issues for voters this election cycle. do you see this ruling motivating pro gun republicans for the election to turn out and vote? >> i do. and, look, unfortunately sometimes it takes a tragedy for that number to spike. it is one where joe biden and democrats are on the right side of history and, look, i think democrats today, in modern american politics, can always talk about the fact that if you have a democratic-led legislature and can reshape the court, america will be safer from gun violence, that is a democratic message that resonates with voters. >> thank you so much for joining us. that does it for me for now. i'll be back again at 1:00 p.m. eastern. jose diaz-balart picks up our coverage right after this. jose diaz-balart picks up our coverage right after this.

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