Triple Threat

Will: [laughs] Fifth Circuit is the new Ninth Circuit, I think. And then, one quick correction on-- I think, it was our last episode. We're talking about Jones v. Hendrix. We were talking with this underlying case, Rehaif, about the knowledge requirements for the rules about possessing a gun, which I described as being about being a felon and knowing you're a felon or not, but Rehaif himself in the Rehaif case was not a felon. His issue was his immigration status. The issue was, did he have knowledge of his immigration status? [unintelligible the gun. Not a felon. Sorry, Mr. Rehaif.
Dan: I think it's really interesting. So, I read all three of the opinions, and I found things to like about each of them. The Kagan opinion is interesting, and it has some of the same features of some of her substantive criminal law opinions that we've talked about here and there. Insofar as it relies on a lot of model penal code type concepts, it doesn't really say that's what it's doing, but it sort of lays out this hierarchy of mens rea standards that comes from the model penal code. It says, "The law of mens rea offers three basic choices. Purpose is the most culpable level. And then next down is knowledge, and the next is recklessness." And it sort of uses the definition of recklessness that comes from the model penal code, which is conscious, disregard, but substantial and unjustifiable risk that the conduct will cause harm to another, quoting a case called [unintelligible , another Kagan case from a little while ago.
Will: Okay, we can argue with the tone in a second, but yeah, it's a spicy dissent. It sort of has to be, right? Because if you're going to say, "Look, this is wrong because of MOHELA [unintelligible standing, those don't immediately get the blood flowing if you're not a fed court professor. So, Justice Kagan's trying to make it understand why you care about this, why this is an important constitutional guardrail intended to keep courts acting like courts.