Category: reason

As more people get vaccinated and America reopens, a year’s worth of canceled or delayed vacations are returning to our calendars. But a pending deadline for American air travelers to get a federally compliant ID could wreck a lot of travel plans.

Starting on October 1, airports are supposed to enforce the part of the REAL ID Act that requires domestic travelers to have federally approved ID. A driver’s license or state identification is not enough unless that identification is compliant with the REAL ID regulations. (U.S. passports are compliant.)

The REAL ID Act was passed in 2005. It was sold as a post-9/11 national security measure, though it was ultimately more about making it harder for immigrants who are in the country illegally to travel—another reminder that oppressive anti-immigrant regulations will eventually fall on legal citizens too.

States have been resisting compliance with the REAL ID Act ever since it was passed, and the deadline has been pushed back repeatedly. There was another deadline last October, but the pandemic delayed it for yet another year. Nonetheless, only 43 percent of driver’s licenses are currently REAL ID–compliant. The pandemic has led to even longer wait times for anybody attempting to get to get anything done at their local Department of Motor Vehicles.

ABC reports that the feds are under pressure to delay the deadline again. You can see why: Just imagine the airport nightmare when nearly six out of every 10 travelers is told he or she can’t board a plane.

What the ABC report doesn’t ask is whether the rationale for these REAL IDs holds up more than 15 years after the law was passed. If these federal IDs were actually necessary, surely we would have seen some examples of them protecting us from terrorism in the decade and a half it has taken to implement the cards.

In fact, it has not. Instead, the government is demanding that Americans give up more of their privacy to the feds, subject themselves to additional inane bureaucracy, and carry around proof that we’re citizens to be able to fly, even though none of that makes us more secure. Americans attempting to fly internationally are now being pushed to submit to facial recognition scans in order to travel. This is ostensibly to catch impersonators, but it has caught zero imposters traveling through airports.

Dump the law. It was bad when it passed, which is why individuals and groups across the political spectrum opposed it. It’s even more clearly bad now. Rather than trying to figure out how to get half of America to the DMV to get a new license, Homeland Security should take note the 15 years that showed they aren’t needed to keep us safe.

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On April 8, President Joe Biden requested that the Department of Justice (DOJ) issue a new rule banning the creation of so-called ghost guns as one of a handful of executive actions meant to curb gun violence following the recent mass shootings in Atlanta, Georgia, and Boulder, Colorado.

Ghost guns are unregistered firearms that weren’t assembled by licensed gun manufacturers or sold in highly regulated gun shops, and they’re most closely associated with Cody Wilson, the founder of Defense Distributed. Wilson first drew attention as the creator of the Liberator, a functional plastic gun that could be manufactured at home using a 3D printer. 

Today, Defense Distributed’s signature product is the Ghost Gunner, a do-it-yourself milling machine the size of small printer that enables anyone with enough time and interest to create unregistered firearms simply by purchasing parts online, downloading specs from an online library like Wilson’s DEFCAD, and assembling the final product.

Wilson says the units fly off the shelves every time a major politician so much as mentions gun control.

“As soon as Biden says, ‘in 30 days you’re going to lose your ghost guns,’ everyone’s like, ‘I gotta buy a ghost gun!'” says Wilson.

Wilson is back at the helm of Defense Distributed after stepping away in 2018, following allegations that he paid a 16-year-old for sex after they met on the adult app Sugar Daddy Meet. The legal age of consent in Texas is 17 years old, and Wilson’s defense team maintained that he believed her to be an adult. His plea deal required him to pay restitution, perform community service, register as a sex offender, and serve seven years probation that discourages him from purchasing new firearms. 

Defense Distributed has been fighting off federal and state legal challenges since its founding in 2012. Biden’s requested rule change is the latest front in that legal battle. The president was vague on the details, but he has asked the DOJ to issue a new rule on ghost guns within 30 days. 

Wilson anticipates that the proposed regulation will classify more gun parts, such as the unfinished lower receiver that the Ghost Gunner modifies, as firearms that would each require registration numbers branded on them.

That was the rule change proposed by the nonprofit gun control advocacy organization Everytown for Gun Safety, which was founded by former New York City mayor and philanthropist Michael Bloomberg.

Wilson believes the rule change could drive up demand for DIY guns. 

“If it’s actually more difficult to buy an [AR-15] upper receiver…because it’s serialized and now I gotta go through the background check and everything, I’m now going to consider for the first time making an [AR-15] upper receiver,” says Wilson. 

And while Wilson was a pioneer in the DIY gun space, Defense Distributed is now just one of many players, meaning that regulating ghost guns will be more of a challenge. 

“I think the interesting thing with these sorts of laws…is there’s this growing gap between what’s on paper and what is enforceable in law,” says Kareem Shaya, a software engineer and co-founder of Open Source Defense, a gun rights organization mostly made up of engineers and Silicon Valley programmers seeking to distance the debate over the right to armed self-defense from the left-right culture war. 

“If you look at the path gun rights have taken over the past five years, really that is the story of gun rights moving from a world of politics to a world of culture,” says Shaya. “In 2020, between 7 and 15 percent of the people who are gun owners today in the U.S. became gun owners in 2020, and the fastest-growing segments within that were black people and women.”

In the tumultuous year of a pandemic, mass protests, riots, and a contested election, gun sales spiked across America and especially in big cities. The National Shooting Sports Foundation, the firearm industry trade association, says that more than 5 million registered gun sales in the first seven months of 2020 were to first-time buyers.

“The thing we find is as people learn about guns, they tend to be cool with them,” says Shaya. “I think arguably YouTube and Twitter and Instagram are the biggest advances for gun rights of the past several decades…arguably more important than any actual gun technology in terms of spreading gun rights.” 

In the COVID-19 era, the Biden White House is framing gun violence as a public health issue. But Wilson believes the career bureaucrats at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) have long had these regulations ready to go and were just waiting for a president willing to enact them.

“Joe [Biden] was simply able to take advantage of what the [ATF] was already preparing and ready to do and kind of wanted to do for the last four years. So this might feel like a kind of warp drive or acceleration of the problem, but in fact, it’s simply the problem of not being able to replace the permanent government bureaucracy that’s installed in D.C.,” says Wilson.

Biden is also proposing to ban pistol braces, appoint a gun control lobbyist to head the ATF, and push for more “red flag” laws that would allow police to confiscate someone’s firearms if they determine that he “presents an imminent risk” to himself or others.

But Wilson says he isn’t particularly worried about the effect that these rules will have on his business or on gun rights in America. 

Produced by Zach Weissmueller. B-roll shot by Mark McDaniel and Qinling Li. Additional graphics by Lex Villena. 

Photo credits: Jay Janner/TNS/Newscom; Sarah Reingewirtz/ZUMA Press/Newscom; Ted Soqui/Sipa USA/Newscom; Yuri Gripas/POOL via CNP/InStar/Cover Images/Newscom; CNP/AdMedia/Newscom; Jason Bergman/Sipa USA/Newscom

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Sen. Tim Scott (R–S.C.) has reportedly proposed a compromise to rein in qualified immunity, the legal doctrine that makes it difficult for victims to sue government officials when their constitutional rights have been violated.

Scott, who has served as the Republican leader on police reform talks, is suggesting that the doctrine be pulled back for law enforcement and that liability shift from individual cops to the departments that employ them. As of this writing, it was not immediately clear if the plan would curtail qualified immunity or outright eliminate it. (Qualified immunity protects all public officials, though this move would likely apply solely to police officers.)

Legislated into existence by the Supreme Court, qualified immunity currently requires that any misconduct alleged against state actors be outlined almost exactly in a previous court precedent should the victim want the right to bring his suit before a jury. Such a thing often doesn’t exist. Qualified immunity has thus protected a cop who shot a 10-year-old, two cops who allegedly stole $225,000 while executing a search warrant, a cop who ruined a man’s car during a bogus drug search, two cops who beat and arrested a man for standing outside his own house, and a cop who shot an unarmed 15-year-old, among others.

“[Democrats] have been as responsive in this recent conversation than they have ever been, in my opinion,” Scott told CNN, noting that the discussion is “on the verge of wrapping soon.”

Some progressives have pushed back on the idea, according to the network, instead insisting that individual officers be held accountable personally. That’s misguided. As I’ve previously written, police departments already finance the vast majority of lawsuit payouts when a police officer loses a suit in his or her professional capacity.

“Sen. Tim Scott’s proposal—requiring the city to bear the costs of these suits, instead of officers—would make transparent what already happens in over 99 percent of cases,” writes Joanna C. Schwartz, a professor of law at the University of California, Los Angeles and an expert in qualified immunity. “We absolutely need to find ways to increase officer accountability—by, for example, changing union protections that make it difficult to fire bad officers.”

The GOP has historically resisted change on this issue. After the death of George Floyd sparked a national conversation on issues of police misbehavior and accountability, the issue of qualified immunity went from an obscure doctrine discussed in legal and academic circles to something the majority of the American public now supports reforming. Former Rep. Justin Amash (L–Mich.) unveiled a bill to eliminate the doctrine for all government officials and achieved tripartisan support—though with only one Republican co-sponsor.

Sen. Mike Braun (R–Ind.) introduced his own proposal to curb the doctrine, but withdrew it after Fox News host Tucker Carlson lambasted him for it and after the law enforcement lobby made its resistance known. Former President Donald Trump said that reform on the issue would’ve constituted an automatic veto, and Scott himself said last summer that it would have been a “poison pill.”

But a few states have picked up the mantle where Congress has refused to act. The New York Times reports that legislators are studying reforms in Colorado, which passed a law last summer allowing people to bring claims against police officers in state court. New Mexico and Connecticut have greenlit similar pieces of legislation.

Virginia also mulled such reforms. Lawmakers eventually abandoned the idea after encountering opposition from a group of predictable dissenters: police unions.

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The so-called “duty to retreat” has long been in the news. Today, 12 states recognize such a duty—which is to say, outlaw deadly force in self-defense (even against threat of death or serious bodily injury) if one could safely avoid the necessity of self-defense by retreating—but until recent decades there used to be more.

But it turns out that six of the duty-to-retreat states (Connecticut, Delaware, Hawaii, Maine, New Jersey, and Nebraska) also have a much less talked-about “duty to comply with negative demands.” For instance, under Connecticut law, one can generally use deadly force when one “reasonably believes that [the target] is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm” (including sexual assault). But:

a person is not justified in using deadly physical force upon another person

if he or she knows that he or she can avoid the necessity of using such force

with complete safety

[1] by retreating, except that the actor shall not be required to retreat … [from] his or her dwelling … or place of work …  or

[2] by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.

Other statutes are similar, though the Maine and New Jersey statutes don’t exclude “place of work” from the duty to retreat.

The logic of the duty to retreat and the duty to comply is similar: Both stem from an interpretation of the requirement that self-defense be “necess[ary]”:

• If I know I “can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary.
• Likewise if I know I can avoid the necessity of using such force with complete safety by complying with a demand to abstain from some act—perhaps a demand that I stop burning a flag, or that I stop playing my music too loudly, or even that I stop kissing the threatener’s ex-girlfriend.

Indeed, deadly force isn’t strictly necessary under this definition even when the person is faced with a demand to engage in an act rather than abstain from one. Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (It’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes “know” that one can retreat with “complete safety.”) Under the “necessity” definition we’re discussing, here too deadly force isn’t really necessary, since I can avoid the need to use deadly force by handing over the wallet.

Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person. Again, under the “necessity” definition we’re discussing, deadly force wouldn’t really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Connecticut rule, I could refuse to beg without losing my right to use lethal self-defense, since this demand is a demand to do something rather than to abstain from something.

Likewise if someone credibly tells me “Say you renounce your apostasy or I’ll kill you” or “reveal this-and-such secret to me or I’ll kill you” or “apologize or I’ll kill you.” In all these cases, using deadly force wouldn’t really be necessary under the definition of necessity that’s used to justify the duty to retreat. But the Connecticut rule wouldn’t apply here, because it’s a demand to act and not to refrain, so I’d be free to use deadly force in self-defense without complying with the demand. (Note that this theory wouldn’t go so far as, say, a duty to comply with a demand for sex; since you’re entitled to use deadly force when necessary to prevent rape, you can’t comply with this demand “with complete safety,” since such safety includes safety from rape.)

Yet of the 12 states that recognize a duty to retreat, only 6 recognize a duty to comply with negative demands (demands to abstain). And none recognizes a duty to comply with positive demands (demands to act).

So let me ask those readers who support one of these duties: Would you say that:

1. You only support only the duty to retreat, and not a duty to comply with negative demands (or with positive demands). If so, why do you distinguish the two, given that both stem from the idea that people shouldn’t use deadly force unless it’s really necessary?
2. You support the duty to retreat and a duty to comply with negative demands, but not a duty to comply with positive demands. Again, why, given that both stem from the idea that people shouldn’t use deadly force unless it’s really necessary?
3. You support the duty to comply with negative demands, but not a duty to comply with positive demands, but not the duty to retreat. That turns out to be the rule in New Hampshire (possibly as a result of legislative oversight or inertia when the duty to retreat was essentially repealed in 2011 but the duty to comply with negative demands was untouched). Again, why?
4. You support the duty to retreat, the duty to comply with negative demands, and the duty to comply with positive demands. How far do you take these duties?

I don’t think these questions are unanswerable: For instance, one possible answer would be something like this:

“Could avoid the necessity of using deadly force” means “could avoid the necessity of using deadly force without undue sacrifice of your other rights.” And having to sacrifice the right to be in some place temporarily isn’t undue sacrifice, but having to sacrifice the right not to beg or not to apologize or to keep your money is undue sacrifice.

(But then why exactly should one so conclude, and where would one draw the line?) In any event, I’d love to hear your own answers.

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The Supreme Court issued three opinions this morning, though not in any of the term’s most watched cases concerning religious liberty, administrative agencies, and the Affordable Care Act.

First, in Jones v. Mississippi, the Court split largely on traditional ideological lines to hold that, under existing Eighth Amendment jurisprudence, the judicial factfinder need not make a separate factual finding that a juvenile defendant is permanently incorrigible before imposing a sentence of life without parole. Justice Kavanaugh wrote the majority, joined by the Chief Justice and Justices Alito, Gorsuch and Barrett. Justice Thomas wrote separately, concurring the result, repeating his objections to some of the Eighth Amendment precedents upon which the majority relied. Justice Sotomayor wrote in dissent, joined by Justices Kagan and Breyer.

In a potentially significant administrative law decision on when litigants must exhaust administrative remedies, the Court held, in Carr v. Saul, that the lower court improperly imposed an issue-exhaustion requirement on Social Security benefit claimants who had sought to press Appointments Clause challenges against Social Security Administration Administrative Law Judges in the wake of Lucia v. SEC.  Justice Sotomayor wrote the opinion for the Court, joined by the Chief Justice and Justices Alito, Kagan and Kavanaugh. Justice Thomas concurred in part and concurred in the judgment, joined by Justices Gorsuch and Barrett. Justice Breyer also concurred in part and concurred in the judgment.

Finally, in AMG Capital Management v. Federal Trade Commission, the Court unanimously concluded that Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, equitable monetary relief such as restitution or disgorgement for “unfair or deceptive” practices. Justice Breyer wrote for the unanimous court.

Earlier this year, I predicted that we would see an opinion in California v. Texas by the end of April. Time is running out for this prediction to prove correct. I am fairly confident in the ultimate outcome of that case, though I expect the Court may be splintered on standing and remedy (and there may be some need to harmonize how this case handles severability, in particular, with the Court’s pending decision in Collins v. Mnuchin).

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