This is Bloomberg Law with June Graasso

from Bloomberg Radio.

>> About 6,600 non-citizens were improperly

registered to vote in New Jersey in 2023

and 2024,

and up to 400 of them went on to

improperly cast ballots. Governor Mickey

Cheryl blamed a software error in the

Motor Vehicle Commission system that

registered people to vote even though

they had indicated they were

non-citizens when obtaining driver's

licenses and identification cards. This

entire situation is unacceptable. It's

unacceptable that the vendor released

software with such a glaring error. It's

unacceptable that the MVC took a year to

get this issue fixed. And it's

unacceptable that no one in the previous

administration brought this to light,

demanded accountability, or took action

when it happened years ago.

>> The state is removing ineligible voters

from the roles and replacing the vendor

that oversees the system. But this

revelation comes less than a week after

President Trump and Department of

Homeland Security Secretary Mark Wayne

Mullen claimed that hundreds of

thousands of non-citizens are on voter

roles across the country. In just four

states, we've identified 250,000

noncitizens

registered to vote in California and

Pennsylvania,

New Jersey, and Nevada.

>> My guest is Jonathan Diaz, director of

voting advocacy and partnerships at the

campaign legal center. Jonathan, explain

what happened in New Jersey. So, it

appears that there was some sort of

technological error in New Jersey's DMV

system where about 6,000 or so

individuals who correctly identified

themselves as non-citizens, you know,

they weren't trying to register to vote,

nevertheless were erroneously

registered. New Jerseys election

officials and governor made this

announcement. They identified this

problem. They've directed officials to

remove them from the roles. They are

fixing the glitch in their driver's

license system that caused this problem.

And this is, I think, an example of how

the system is supposed to work. The

state and local officials who are

responsible for overseeing voter

registration identified a problem, made

it clear to the public, and announced

steps to mitigate the problem. You know,

they don't need the federal government

to step in and do it for them. The

governor said that fewer than 400 of

these non-citizens cast ballots. So that

means that hundreds of noncitizens did

cast ballots improperly in the New

Jersey elections.

>> Well, I think it's important to remember

that more than 4.1 million ballots were

cast in New Jersey in 2024. So that

number, you know, even if it was 400 in

total, that's less than 1% of 1%. It's

0.009%

of the total votes cast in New Jersey in

2024, which is nowhere near affecting

the outcome of any federal election that

took place in New Jersey in that year.

>> Will this give ammunition to the Trump

administration in its quest to show that

there are non-citizens on voter roles

and non-citizens are voting? you know,

it shouldn't because there's nothing in

any of the proposals that the federal

government has put forward that would

have addressed this scenario. This was a

simple case of human error of

technological error. Somebody

misprogrammed the system. And so, you

know, requiring, as the Trump

administration wants, requiring voters

to provide additional proof of

citizenship to show a passport or a

birth certificate to register to vote

wouldn't have stopped this because these

people said that they were not citizens.

They weren't trying to register to vote.

But, you know, elections are run by

people. Sometimes people make mistakes.

Sometimes there is a glitch in the

system. And, you know, that's why we

have safeguards built in to ensure that

it can be caught and fixed for the next

time. And even in a scenario like this

where there was a technological problem

that did result in some people being

erroneously registered, it's not

happening anywhere near in the numbers

on the scale that the president and the

White House are suggesting that it is.

You know, this is a tiny tiny tiny

percentage of the votes so small that it

doesn't affect the outcome. And so, you

know, in my view, this technological

error, which is really all that it is,

does not justify the kind of draconian

restrictions that the Trump

administration is proposing for voter

registration because those things a

wouldn't have solved this problem and b

would have prevented many more people

than this who are eligible from actually

registering and voting. Mark Wayne

Mullen, DHS secretary, said that in New

Jersey reviews found 35,52

non-citizens registered. The governor

said that we've asked them for any

evidence of this where they got that

number, who this is. We've received

nothing back yet.

>> I don't know where DHS's numbers came

from, nor does New Jersey. You know, the

announcement from New Jersey's governor

today seems to me to be completely

unrelated from what DOJ sent them. This

was their own investigation into their

own system, which every state is doing

all the time. And I think that's that's

the key takeaway here is that state

governments who are the ones legally

responsible for running our elections

are constantly going through their voter

registration rules and their election

systems to fix errors and to make sure

that they are as accurate as is humanly

possible. And what they don't need is

wild accusations from the federal

government based on no evidence that

they're doing it wrong. You know, I

think this incident in New Jersey shows

that states are more than capable of

maintaining clean voter roles and

addressing the problems as they arise

because, you know, we have a very

complicated election system and it's

totally decentralized. It's run by

states and in most important ways by

counties and municipalities. You know,

one of the things that makes it so

resilient is that we don't have, you

know, a single national election

infrastructure that could be compromised

or, you know, have some problem with it

that would affect everybody. You know,

every state runs its election slightly

differently. So, that's a lot of

different structures and different

systems where there could be a

technological issue or a data entry

problem or just a human mistake. But

that's why state officials like, you

know, the governor and in many places

the secretary of state or the attorney

general have oversight authority and are

looking into things like this and, you

know, being transparent about, you know,

where the system falls short and what

they're doing to fix it.

>> So, the same software is going to be

used for the midterms because they can't

switch it over fast enough. So that

leads me to believe that if there's a a

result in New Jersey that the Trump

administration doesn't like that they'll

use this to try to attack the result.

>> I'm sure that no matter what New Jersey

officials say or do that the Trump

administration is going to point to this

incident and you know claim that New

Jersey's results can't be trusted. But

that's why New Jersey, like every state,

has audits and recounts and, you know,

handmarked paper ballots that can be

checked after the fact. And, you know,

that's why they're making this

announcement now and removing these

ineligible individuals from the roles so

that this can't happen again in

November. But regardless of what New

Jersey does, I expect the White House to

use this as ammunition, not just in, you

know, any claims that they make about

the results in November, but also in

their push to pass the Save America Act

and to, you know, enable federal

agencies to have a bigger role or take

control of certain election

administration functions despite their

lack of legal authority to do that.

I mean, it doesn't seem likely that DHS

got the numbers out of thin air. Might

some of them be reliable?

>> If you look at the numbers, Secretary

Mullen, you know, released last week on

Friday, and you compare not just these

New Jersey numbers, but, you know, DHS

and the White House released data about

a number of states who have voluntarily

shared their data with the federal

government. And the White House and

DHS's numbers for states like Texas and

Louisiana are incredibly inflated

compared to what those states themselves

are reporting. And even Texas reported

lower numbers than the White House did

about, you know, suspected non-citizens

on their roles and then had to backtrack

because they had wrongfully identified

naturalized citizens as being

ineligible. So whenever a federal or

state agency makes you know inflated

claims about huge numbers in the tens of

thousands of you know ineligible

registrants I think we have to look at

those with some skepticism because

almost inevitably they get walked back

and especially in the case of DHS

there's just nothing that they have

given us in terms of where they got

their data what methodology they used we

don't know where those numbers came from

they could have pulled him out of a hat.

So, if we're going to take those numbers

seriously, I think we need a lot more

information from DHS about how they came

up with them.

>> Coming up next, more about the threats

against election officials and the

Department of Justice is 0 and16 in its

attempts to get unredacted data roles.

This is Bloomberg. Last Friday, Homeland

Security Secretary Mark Wayne Mullen

advanced an unsubstantiated claim that

the federal government has found 250,000

non-citizen voters on the roles in

several states. Mullen pledged to

aggressively monitor public voter lists

to pursue potential voter fraud cases

before and after the 2026 election. He

also threatens state officials who don't

go along with the administration's

election security demands.

>> If the election officials once we gave

them the information they need to secure

their elections and they chose not to,

then those individuals can also be held

accountable by fines, by penalties, and

even depending on how far it goes,

prison time.

>> What does Mullen want the states to do?

Is he demanding that they put their

voter roles through the federal

database, which by the way using the

program was recently blocked by a

federal judge over concerns about

privacy and wrongful purges of eligible

voters?

>> That's a good question. DHS sent letters

to these four states and those letters

were pretty tame. They said, you know,

DHS had done an analysis and identified

suspected, you know, potential

non-citizens on the roles, reminded the

states that, you know, federal law

requires them to maintain accurate voter

roles and that non-citizens are

prohibited from voting in US elections,

but then otherwise just kind of said,

you know, DHS is ready to help you if

you need it. The letters were very, very

tame. His remarks on Friday were not.

And you know, in his speech, he did both

say that DHS is directing the states to

remove all of those individuals from the

roles, which number one, DHS doesn't

have the authority to direct states to

do anything with their voter roles, and

number two, the states can't just take

thousands of people off the roles

because somebody in the federal

government tells them to. There's a

process that they have to go through

under both state and federal laws to,

you know, verify those claims. They have

to do their due diligence. They have to

check. I imagine that the states will

they will take this seriously. But

Secretary Mullen also much like

Assistant Attorney General Har Dylan did

a couple of weeks ago threatened

election officials and said that they'll

be prosecuted if they don't cooperate

with the federal government. And I don't

think that's an empty threat. I think

that this administration is very willing

to, you know, lean on its criminal

enforcement authority and go after

election officials if they don't go

along with the administration's policy

priorities when it comes to elections.

Fortunately, I don't think that those

charges would hold up. And election

officials have, you know, very good

counsel kind of across the board, have

litigated against a lot of them. They

know what they're doing. But it is

alarming when senior officials in the

federal government are threatening state

and local election officials with

criminal prosecution. You know, it's

almost like it's like watching a mob

movie. You do what we want or else. And

that's just not the relationship that we

have seen between the federal government

and the states in the past when it comes

to elections. And you know, the federal

government typically provides resources

and support and assistance to state and

local election officials in carrying out

their responsibilities. This kind of

aggressive posture towards election

officials is really something new.

>> As you mentioned, the Justice Department

sent letters warning election officials

in all 50 states, you know, threatening

criminal prosecution if election

officials count any ballots cast by

non-citizens. What law would they

prosecute them under?

>> I mean, there is a federal statute that

says that only US citizens can vote in

federal elections. I'm not sure that

that statute attaches liability to the

chief election official of a state. You

know, that's the statute that DOJ would

use to prosecute an individual who voted

while ineligible. And you know, I think

that that that is reflected in the

responses that DOJ got from some of the

state election officials, including

several Republicans who did not take

kindly to this, you know, explicit

threat from the Justice Department. The

Secretary of State of Idaho sent a

pretty harsh response to the Department

of Justice that was, you know, made

public that basically said, "Don't bully

us. We know what the laws are. It is our

job to enforce them. It is our job to

carry them out. This is not the way to

to, you know, get what you want, and

this is not how a partnership between

government officials is supposed to

work." the lieutenant governor of Utah,

who is the chief election official for

that state, similarly had a very kind of

angry public response to, you know, the

the Department of Justice sending these

threatening letters out, you know, 4

months out from an election that were

not tied to any sort of evidence or any

specific investigation. It was the same

letter that went out to every state. And

so, you know, it's just

it's just political messaging really.

It's the administration trying to show

that they are being tough on this issue.

It's, you know, people in DOJ and DHS

trying to signal to the president that

they are taking it seriously and it's

really having an effect on the state and

local election officials who are the

ones being put on the chopping block

here and they're the ones doing all the

work. They're the ones maintaining clean

voter roles and and you know running

elections with no help from the federal

government and in fact now just just

threats and bullying. I have to say

though, prosecuting election officials

because a non-citizen

votes sounds like an empty threat

because that would be such a difficult

prosecution. Of course, the Trump

administration has been known to file

charges even when the proof is weak.

>> I think you're probably right, but you

know, if they do that, you know,

election officials jobs don't end on

election day. They have, you know, lots

of responsibilities in the weeks and

months that follow to canvas the

results, to tabulate the results. They

have to do audits and recounts and

certify and all of that stuff. And even

if they are baseless charges, it takes a

lot of time and a lot of resources to

defend against uh prosecution by the

federal government. And election

officials are already

spread very thin as far as resources are

concerned just to do their jobs, just to

run the elections. And you know, if

you're a secretary of state or even

worse, if you are a county election

official with limited resources and you

are trying to complete your legal

obligations to canvas and tabulate and

certify election results and then all of

a sudden you have to go to a federal

courthouse to, you know, to an

arraignment because DOJ has filed

criminal charges against you. Even if

those charges are ultimately dismissed a

few months later, it's a huge resource

drain. It's incredibly disruptive to the

administration of the election and it's

you know emotionally and physically

taxing for election officials who

haven't done anything wrong. So even if

ultimately the threats are empty and DOJ

is not able to convict anybody of

anything, even just the threat of

prosecution or you know charges that

maybe ultimately get dropped that puts a

huge strain on election officials on the

election system and I worry that that

DOJ is trying you know along with the

DHS and the White House to undermine the

election system both by putting this

pressure on election officials and by

trying to convince the public of, you

know, their imagined problems with how

our elections are run in an effort to

make it easier for them to overturn the

results if they don't like them.

>> So, do you think this would be then a

repeat of 2020 where Trump and his

allies went to court and claimed the

election was fraudulent or do you

anticipate something different or even

worse? It's hard to say and I don't I

don't want to speculate too much because

I don't want to just like spin out you

know every single possibility in a way

that you know might might scare people

with things that are not realistic. But

I think the big difference between now

and 2020 is that you know during the

2020 election most if not all of the

challenges to the results came from

outside of the government. It was the

campaign side of things that was really

kind of driving the car there because

you had people like Bill Bar, you know,

who was a a loyal foot soldier in the

Trump administration for much much of

his tenure, but who drew the line at,

you know, getting the Justice Department

involved in challenging the results with

no evidence. I don't think Todd Blanch

would have the same hesitations. I don't

think that Cash Patel is going to be a

guard rail here and, you know, keep the

FBI from getting involved in pursuing

whatever false claims the president

wants to pursue. Donald Trump has much

more unified control of his party, of

his government now than he did in 2020.

And we've already seen the law

enforcement arms of the federal

government, both through DOJ and DHS,

already leaning on election officials

and getting trying to get themselves

involved in election administration in

ways that they didn't during the first

Trump term. You know, he's issued

executive orders about elections this

time around. And he didn't do that last

time. You know, those orders have been

largely blocked by the courts, but but

he's doing a lot more with different

arms of the federal government already.

So, you know, if the midterms don't go

his way or his party's way, I expect

that there'll be a lot of spaghetti

thrown at the wall. I think he's going

to try, you know, and pull every lever

at his disposal to change those results.

And the reason he's doing that is

ultimately he doesn't have any power to

decide how the midterms go. That is up

to the voters. And so, you know, he's

getting increasingly desperate. I think

the the speech and the declassification

of documents and everything that's

happened in the last week is proof of

that. But, you know, ultimately it is

going to be up to up to voters, up to

the public, up to, you know,

organizations like like campaign legal

center who are litigating these issues

to, you know, ensure that the will of

the voters ultimately prevails in

November, no matter which way it goes.

>> Let's turn now to the Department of

Justice's quest to get states to hand

over unredacted voter roles. DOJ is 0

and16 in that quest. So 16 consecutive

losses in court handed to them by both

Democratic and Republican appointees.

Why does the Justice Department want

these unredacted voter roles?

>> It's a good question because the Justice

Department doesn't really have a role

when it comes to voter registration. You

know, I think that it has become

apparent over the last several months,

year and a half, that the administration

is engaged in an increasingly desperate

attempt to manufacture some kind of

evidence to support the president's

false claims about elections. And the

folks at DOJ are either convinced or

just trying to make the president happy,

but they're convinced that they will be

able to find evidence of illegal

registrations or non-citizens on the

rules if they can just get their hands

on the states unredacted voter files and

wave some kind of magic wand to, you

know, investigate all of those millions

of voters. But unfortunately for them,

the federal government has no legal

authorization to obtain those files or

do anything with them. And so when 30

states and DC refused to turn over their

citizens private data to the federal

government, DOJ sued. They filed 31

lawsuits. And I think as of this

morning, they have lost 16 of those and

won zero.

>> Yes. So that's uh 16 consecutive losses

in court. and that was handed down by

both Democratic and Republicanappointed

judges. A bad streak and one loss at the

Sixth Circuit. So, what are the reasons

that judges across the ideological

spectrum are turning DOJ down?

>> Well, so there's a few different

rationes that the judges are offering,

but you're right that it has been

consistent uh in all of the cases that

have reached a decision so far in from

judges from across the ideological

spectrum, including judges appointed by

Donald Trump. But, you know, DOJ is

claiming that it needs the full

unredacted voter files to enforce either

the Civil Rights Act or the Help America

Vote Act. You know, two federal statutes

that that DOJ does have the

responsibility to enforce, but the

judges are just not buying it. You know,

DOJ is giving conflicting ration

that are inconsistent with the purpose

of the statute and their basis for the

request. These requests are highly

unusual. You know, DOJ has enforced

these statutes for decades without

making these kinds of requests. And it's

clear based on other kind of outofc

court statements that DOJ leaders and

folks at DHS have made that the real

purpose for DOJ seeking this information

is to not just attempt to verify the

citizenship of voter registrants, which

is again not DOJ's job, but also to

facilitate immigration enforcement. and

DOJ just does not have the legal

authority to demand this data from the

states and certainly doesn't have the

legal authority to do what they are

planning to do with it.

>> So in that sixth circuit decision, the

sixth circuit has a conservative

majority. It was 2 to1 with the

dissenting judge a Trump appointee. The

DOJ is asking for a rehearing by the

full sixth circuit where the balance

will be Republican appointees, I assume.

So, might things change when the full

sixth circuit hears the case?

>> It's certainly possible. And despite

their, you know, 16 district court

losses, uh, they've also appealed many

of those to other circuit courts. So,

you know, the 1st, the 4th, the 7th, the

9th, circuit courts across the country

are now hearing these appeals. But I

think that the Trump administration is

really banking on, you know,

conservative circuit courts seeing

things their way. I don't know that

that's a really safe bet given how many

conservative district court judges have

really strongly ruled against them. You

know, this isn't the sort of ideological

really politically charged sort of issue

that, you know, we've sometimes seen

judges break across partisan lines on.

It's been across the board just

resounding losses for the Justice

Department because the statutes are very

clear. It's not it's not just DOJ, you

know, DHS, the White House. There are so

many arms of the federal government that

are attempting to insert themselves into

election administration in ways that

we've really never seen before. And I

think especially, you know,

conservative-minded judges who maybe are

more inclined to favor small government

or be skeptical of federal overreach are

looking at these actions with with a lot

of skepticism because it really is so

far outside what the traditional role of

the federal government in elections is

and and what very limited authorities

DOJ has been given by Congress in this

area. They have gotten voter roles from

some Republicanled states. Right.

>> That's right. There are several states

about 15 or 16 maybe um who did

voluntarily turn over their full

unredacted voter files so that uh the

federal government could run them

through the save system which is a

program within DHS that used to be

fairly limited. It was limited really to

verifying the immigration status of

folks who were seeking to apply for

federal benefits. The federal government

under the second Trump administration

has radically modified that system to

introduce a whole bunch of different

data sources about non- immigrants from,

you know, the Social Security

Administration, from USCIS, from the

State Department in an effort to try and

build a kind of national citizenship

registry that they can then use for

things like verifying voter eligibility

or immigration enforcement or, you know,

whatever whatever purpose they That

effort has also been blocked by federal

courts. Um, you know, there's an

injunction from a court in DC that found

that, you know, DHS was not authorized

to make all of these changes to the safe

system, um, which is, of course, you

know, directed by Congress. They

violated the Federal Privacy Act, um, by

taking all of these data sources from

other arms of the federal government and

using them for purposes that they were

not authorized to use them for, um, or

sharing them with agencies who were not

authorized uh, to have that data. And

so, you know, it's again, it's another

example of really shocking overreach by

the federal government inserting itself

into the voter registration and uh

election administration process that is,

you know, entirely

handled by state and local governments.

The federal government doesn't run our

elections. They don't, you know, they

don't check our voter roles, you know.

So, it's it's really, I think, part of a

broader effort by the Trump

administration to cast doubt on the

integrity of our elections to find or

manufacture evidence in support of the

conspiracy theories threat spread by the

president and his allies about the 2020

election and any other election that he

or his his allies lose. And you know,

fortunately, the courts are really kind

of holding the line and saying, you

know, no, DOJ and DHS, you can't just

build election administration

infrastructure without congressional

authorization. The Constitution gives

the responsibility to run elections to

the states unless Congress passes a

bill, and they haven't done that.

>> Thanks so much for sharing your insights

with us, Jonathan. That's Jonathan Diaz,

director of voting advocacy and

partnerships at the campaign legal

center. Coming up next on the Bloomberg

Law Show, the third circuit strikes down

New Jerseyy's assault weapons ban,

sending a circuit split to the Supreme

Court. I'm June Graasso and you're

listening to Bloomberg.

The Court of Appeals for the Third

Circuit struck down New Jerseys assault

rifle ban, ruling that the state can't

stop residents from purchasing

semi-automatic rifles and magazines that

hold more than 10 rounds of ammunition.

The ruling conflicts with decisions from

other federal circuits that upheld

assault rifle bans in other states.

Joining me is Bloomberg Law senior

correspondent Alex Eert. Alex, tell us

about the third circuit's reasoning in

striking down this law.

>> The third circuit here steps into the

breach created after we've had Helder,

Breuan, Raheem, and now Wolford to say,

where is the Supreme Court going here

and how would they decide this case? And

they say like Heler, because these

firearms are commonly used for a lawful

purpose, self-p protection, hunting,

etc. then they fall under protection of

the Second Amendment and states can't

ban their use. You know, we're talking

here about one of the most popular

firearms in the country. They're

ubiquitous. Millions of these things are

owned. And so the question that these

judges tried to tackle is looking at

Heler because of the popularity here and

the fact that the Supreme Court has told

us we need to look for historic

analoges. How do we square those things?

And do we stop New Jerseyians from

purchasing one of the most common

popular firearms in the country?

>> And so they couldn't find any historical

analoges or they

>> analog piece of it was really fraught

and complex. We've had a couple oral

arguments in this case. In it, New

Jersey has pointed to historic analoges

referring to weapons like Bowe knives,

slungshots, which are, you know, weapons

that were used mainly by sailors, and

other weapons that were banned in part

or restricted greatly, especially around

the time of reconstruction in the 1860s.

But the majority here, they're going

back to 1791, and they're saying around

the time of the founding, these analoges

matter more. And we didn't see those

kind of bans.

>> This was a decision by the full third

circuit. So on bank it was 10 to five.

Is this circuit more conservative or

more liberal?

>> The third circuit has a slight tip

toward conservative appointed judges.

This happened just recently with the

appointment of Emil Bove and mascot two

recent Trump appointees. And so they

have slightly tipped the court toward a

conservative bent. Once that's happened,

we've seen them take onbunk cases like

this one to move the law in a direction

that comports with how these judges see

it.

>> This came to an onbank hearing in a

weird way. So normally you have a three

judge panel making a decision and then a

losing party may request an hearing. But

here they just scrapped a decision by

the three judge panel.

>> They scrapped it. That's right. They did

it before a decision was issued, which

is uncommon. This might be because we

had a panel decision in sensitive

places. Another issue regarding New

Jersey regulation of where you can take

your firearms and especially on private

property where safety is an issue. And

the judges here decided, we're going to

take this firearm ban and magazine ban.

We're going to take it on bank and have

it heard by the whole court before the

panel can even issue a decision.

>> That is unusual to say the least. Tell

us about the dissenting opinion.

>> The split we have here is really

interesting because we have some liberal

judges or those appointed by liberal

presidents in the majority and we have a

conservative judge in the descent. And

the disscent says here, listen, you're

creating what amounts to a popularity

test. You're saying that if gun owners

and the gun industry can sell and people

purchase something ahead of where states

can regulate it, then that imports a

right to own this regardless of how

dangerous something might be. That's the

big contention that you'll hear from

folks that are in favor of restricting,

right? You can't just decide that

something is protected because it's

popular or you can't decide something's

unprotected because it's unpopular.

That's the thrust of what the descent is

saying. But they're also saying, look at

these analoges from the 1860s. They're

going to give you some sort of close

historic precedent for states regulating

in this area. This is the first time a

federal appeals court has struck down a

state's assault weapons ban, right?

Other circuits have ruled on this.

>> Yes, other circuits have ruled on it. It

is the first one against the dog pile

that we've seen in other circuits,

including um opinions with judges on

them that have been appointed by

President Trump. And the folks I've

spoken with on background that are

familiar with this litigation from the

firearm rights perspective, they're

really hopeful that this could tee up a

strong argument before the US Supreme

Court who is going to be taking this

issue on an assault rifle ban in the

next term. They see a lot of promise in

this idea of something being considered

dangerous and unusual being tied to

whether or not it's popular and giving

power to the people to choose what they

see they need for self-defense. So,

they're really encouraged by this ruling

and they're also, frankly, really

encouraged by um a Biden appointee um

being the person to write a decision

saying, "We're going to look for

president in the 1790s instead of the

1860s where you just have a lot less

regulation of firearms." Because these

sort of weapons were not um as

concerning and they were really

essential to fighting off the British.

The Supreme Court agreed to hear appeals

of rulings upholding assault rifle bans

in Illinois and Connecticut even though

there was no split in the circuits at

that point.

>> That's correct. Even though there was no

split in the circuits at that point. And

you hear folks um on background from the

liberal perspective who advocate for

more restriction in the guns sort of

concerned that the third circuit would

go into this gap here created by the

Supreme Court and make a decision when

perhaps they wouldn't have to and they

could have waited. But you also have to

recognize that the Supreme Court at this

point hasn't taken on the high-capacity

magazine question. So whether or not you

can have um you know magazines that have

10 or more bullets or you know dozens

more in some cases and so the third

circuit here is pushing into something

that the Supreme Court may not get to um

in their case this year.

>> Why would they take that up unless there

are at least four votes who want to

reverse those decisions because

otherwise they would just leave the

decisions in place until there is a

circuit split. But I've been proven

wrong before. And so how many states

about have similar regulations?

>> Yeah, so there's about a dozen states

that have assault rifle bands and a few

more that have high-capacity magazine

bands. And so the tricky thing here is

that these things are extremely common,

June, and folks on the left or the right

or you know restriction and and rights

advocacy will agree these are incredibly

common weapons and incredibly common

tools. So, you know, you're going to see

little girls in Wisconsin, where I'm

from, using them for hunting, right?

They're very common. And so, you know,

part of the argument is, can these

states restrict and do they have the

right to while the rest of the country

doesn't want to? And does the court step

in and at what point

>> and why did they remand the case back to

the district court? So New Jerseyy's law

here is somewhat expansive from the

perspective of gun rights advocates. It

covers, you know, different features on

weapons and some shotguns and things

like that, certain things that make them

more likely or able to be used in mass

shootings, which is what New Jersey is

putting its foot down and saying, "We

want to prevent." So from the state's

perspective, they have broader

categories beyond semi-automatic rifles.

they're trying to limit access to

because they're worried about its use in

gun violence. And from the state of the

gun rights advocates, they're saying,

"Listen, a lot of these things are

really common for use in other lawful,

you know, things, shooting tournaments,

hunting, you name it." Advocates in this

space find this third circuit decision

really interesting because it touches on

something they're going to be watching

Justice Amy Conan Barrett on. We have

the situation where the Chief Justice

and Barrett haven't really come down

either way for or against rights to

owning assault rifles. And we also have

this big question out there about how

Justice Amy Coney Barrett will treat

either lack of conflict or conflict

between precedents that states are

relying on from the 1790s and what

states are relying on in the 1860s. And

so what advocates tell me is a big

question floating out there is can

states rely on restrictions when there

were more restrictions, you know, at the

time of the 14th amendment enactment

about guns if there was nothing touching

on that at the time of the founding or

does that silence at the time of the

founding limit what states can rely on

when they're reaching back and saying we

have a history of regulating firearms in

this way? Have you talked to legal

experts about how they think the Supreme

Court might handle this?

>> It is not an open and close thing. We

have, you know, liberal advocates

looking at this decision and saying they

don't see how the Supreme Court could

adopt exactly this because it creates

questions about, you know, when you make

a call on if something is popular and

when you make a call on if the state

could regulate it. We also have

conservative advocates hoping that the

justices will, you know, lean in and

consider the things that these judges

are saying in the third circuit because

it could give gun owners, you know,

stronger latch into the law to fight for

the rights that they seek.

>> I think the Heler decision instead of

clarifying things has just made it more

confusing and ever since Heler, the

lower courts are trying to figure it all

out. When Heler came down, we had this

like scrutiny regime, right? And the

idea of like a test as to whether

something is unusual and dangerous works

in a in a scrutiny regime because then

it's balancing between like the rights

of the gun owners and the public to

protect. But in a world where we're

talking about historical analoges, it

doesn't make as much sense because now

that's like living constitutionalism.

It's like against the idea that you look

back in time to history because you have

these perpetual slices in time for when

guns become popular or regulated. It's a

time machine problem. And the like more

I peel back this onion and the more I

talk with people, the more I'm not like

satisfied with like how you square heler

and this idea that if something is not

unusual or unusually dangerous, you

know, you can have a right to it. and

this idea that there has to be a

historical analog because newly unusual

and historically dangerous stuff comes

up all the time. And so I'm not

satisfied. I don't see a path forward

that's easy.

>> I think a lot of experts on the Second

Amendment may agree with you, Alex.

Thanks so much. That's Bloomberg Law

senior correspondent Alex Eert.