Category: reason

The Changing Face of the SEC Restitution Remedy

In Liu v. SEC, the Court trimmed the sails of the SEC’s ability to get equitable restitution under the name “disgorgement.” Justice Thomas’s dissent correctly said there was no traditional equitable remedy of disgorgement. The majority correctly said that although the name “disgorgment” may have been new, there was a longstanding practice of equitable restitution, under names like “accounting for profits.” And the majority reined in the SEC practice, requiring it to conform more closely to traditional equitable requirements (including the principle that there are no penalties in equity, a principle best explained in the Heydon opinion in the Australian case of Harris v. Digital Pulse).

But what tied together the majority and dissent was that the SEC suits for restitution, if they were to be allowed, had to be justified by recourse to the history of equity. The reason for this focus on equitable restitution was plain enough, because the statutory basis for relief was an authorization of “equitable relief.”

Now restitution comes in two flavors: legal and equitable. Legal restitution comes from the old common counts, Moses v. Macferlan, etc., and for a while the term in vogue for this category was “quasi-contract.” Other terms are “restitution via money judgment” or simply “legal restitution.” Equitable restitution is organized according to a set of distinctive remedies–accounting for profits and then various proprietary remedies (constructive trust, equitable lien, subrogation).

Although the SEC has typically sought equitable restitution (understandably, given the statutory authorization), one could imagine the SEC being authorized to sue for legal restitution, which would be subject to different powers and limits.

An aside: note that the word disgorgement doesn’t tell us anything about whether the remedy sought is legal or equitable. The word is a late twentieth-century coinage (as Justice Thomas correctly notes). It’s used sometimes as a term for non-proprietary equitable restitution (i.e., accounting for profits), sometimes as a term for any gain-based equitable remedy (covering both accounting for profits and constructive trust, e.g.), and sometimes as a term for any gain-based remedy whether legal or equitable (covering accounting for profits, constructive trust, quasi-contract).

So where does this leave us? Well, the SEC has been seeking a remedy it calls “disgorgement,” and that remedy is characterized as equitable because the statute authorizes equitable relief, and the Supreme Court has recently upheld the SEC’s ability to obtain that equitable relief while also reasserting some of the traditional limitations on equitable restitution.

But the statute just changed. Section 6501 of the Defense Authorization Act, enacted a few days ago over the veto of President Trump, changes the statutory authorization for remedies available to the SEC. (You can find the law here, but it’s massive: search for “disgorgement.”)

In part the changes to the statute shore up the SEC’s authority. Now the SEC is specifically authorized to seek and obtain “disgorgement.” The statutory amendment also seems to support Liu v. SEC‘s criticism of joint-and-several liability, criticism which the Court based on traditional equitable practice. (Critique of joint-and-several liability was a point developed in the restitution scholars’ brief in Liu.)

Now this is where things get interesting. The statutory revision classifies the remedy of “disgorgement” as not being an equitable remedy. It sets up two statute of limitations periods. One is for “disgorgement” (with qualifications, five years) and the other is for “any equitable remedy, including for an injunction or for a bar, suspension, or cease and desist order” (with qualifications, ten years). The structure of the statute is very clear. Subsection (a)(8) is called “Limitations Periods”; and under that heading subsection (A) is titled “Disgorgement” and subsection (B) is titled “Equitable Remedies.” It is inescapable from the text and headings that the authorized remedy of “disgorgement” is not being classified as an equitable remedy.

The conclusion that follows is that the remedy Congress has authorized the SEC to seek is a legal restitutionary remedy. Because this remedy, which it still calls “disgorgement,” is not equitable, it is not subject to the traditional requirements of equitable restitution (including the avoidance of penalties). So the limits of Liu v. SEC do not apply (though they would apply to other agencies with statutes similar to the prior statute for the SEC).

But the SEC restitutionary remedy is subject to other rules and principles. And, because the SEC remedy is now one for legal restitution, the defendants have a right to a jury trial under the Seventh Amendment and the remedy cannot be enforced with contempt. A current overview of the distinction between legal and equitable restitution can be found in the “Remedies” chapter in the Oxford Handbook of the New Private Law. And here’s a paragraph from p. 326 of Ames, Chafee, and Re on Remedies (edited by Emily Sherwin and me):

To be a successful litigator, the essential thing is for you to recognize the range of terminology and learn the usage in your own jurisdiction. Whatever label is used, when a plaintiff prevails on a legal restitutionary claim, the court will award a judgment for a certain amount of money. That judgment resembles an award of damages (except, of course, that it is measured by the defendant’s gain and not by the plaintiff’s loss). That the restitutionary claim is legal, as opposed to equitable, has several important consequences. These include the possibility of a jury, the lack of various equitable defenses, the lack of equitable enforcement powers such as contempt, and the lack of preferential treatment in bankruptcy. The opposite is true for a claim for one of the equitable restitutionary remedies, such as accounting for profits, constructive trust, and equitable lien.

It is clear that this statutory revision is a response to Liu v. SEC. But it is not a straightforward repudiation of that case. The focus on the statute of limitations might derive from the predecessor case, Kokesh v. SEC (a point for which I’m indebted to Caprice Roberts). But whatever the reason for Congress’s choice, its decision to reclassify the SEC’s restitutionary remedy as legal winds up meaning that it is outside of Liu v. SEC entirely—outside of its approval, and outside of its limitation. It’s a new world ahead, and I suspect securities lawyers, inside and outside the government, are going to start reading up on legal restitution.

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Don’t Give the Capitol Rioters Power Over Tech and Policing Policy

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Pundits are learning all the wrong lessons from the Capitol riot. Despite yesterday’s chaos, Joe Biden has now been certified as the president-elect. The vote to certify his victory was completed this morning at 3:33 a.m. Along the way, what is normally a standard and unremarkable procedure was instead interrupted by the first breach of the U.S. Capitol since the British burned down much of Washington, D.C., during the War of 1812. By the end of it, four people were dead.

What the hell happened yesterday and how it happened will take some time to answer properly. But as tends to be the case in times of crisis, people are proving eager to cram this unprecedented experience into familiar frames and take from it evidence for their pet policy proposals.

Exhibit A: the techlash. Because the groups who broke into Congress yesterday organized through online platforms, or were motivated to organize by information on them, people with perpetual axes to grind against social media want to put the blame on Big Tech.

Once again, we see neutral communications tools taking the fall for the things people communicate through them. But had Wednesday’s mob not had Facebook Messenger, or Parler, or whatever else they were allegedly using to organize, does anyone really think they would’ve just called the whole thing off? There are plenty of private web forums and endless options for digital chat. No apps, no problem, either: Text messages, emails, and phone calls can spread the word just fine.

Attaching magical significance and responsibilities to particular platforms may make people feel like they’re Doing Something to address a confusing and distressing situation, and it may hit at entities that mainstream politicians and their tribes love to loathe anyway. But it doesn’t address any root causes of the phenomenon that distress people, and it leaves American politics mired in an eternal game of whack-a-mole with communication facilitators that simply squelches the speech rights of law-abiding people while distracting from the hard work of addressing the underlying issues that drove that communication.

Techlash is only one of many destructive frames developing around yesterday’s events. A lot of people are calling for Trump and other Republican lawmakers who disputed the election results and encouraged protesters to show up in D.C. to be prosecuted for incitement.

It’s certainly not wrong to call out Trump’s obvious role in making this happen, or the way senators like Ted Cruz (R–Texas) and Josh Hawley (R–Mo.) contributed to the conspiracy theories driving it. But we absolutely don’t want to open the can of worms that is broad interpretations of criminal incitement. Or treason. Or terrorism.

By all means, prosecute specific people for specific criminal acts, like vandalism and physical attacks on Capitol cops. But we don’t need to reach for the highest possible criminal charges, or prevent protesters from flying home, or prosecute literally everyone who entered the building, or aim for punishment beyond people directly responsible for bad behavior.

Another disturbing and unproductive trend has been lamentations about why more excessive force was not used.

Of course, there was some serious, even lethal, force used. One woman protesting was shot to death by police inside the Capitol. “By day’s end, four people would be dead: one from gunfire and three from medical emergencies officials have yet to explain,” notes The Washington Post.

To be sure, there are still a lot of unknowns about how rioters were able to break deep into the heart of Congress and remain there for quite some time without much resistance. But there are also some plausible explanations, such as that Capitol police were outnumbered, that D.C. didn’t want the National Guard called in since Trump control it, and that authorities had expected a smaller crowd and were trying to avoid an excessive and potentially escalating presence.

“Defense Department officials had previously said they anticipated around 350 members of the D.C. national guard would be enough to support Washington, D.C., police during the protests this week, mainly to assist with traffic control,” reports The Wall Street Journal. “They wanted to avoid the optics of having any U.S. military personnel on the steps of the U.S. Capitol, and ordered the officers to avoid straying east of 9th Street in downtown Washington, blocks from the Capitol grounds, officials said.”

It certainly can’t be stressed enough how differently D.C. protesters against police brutality were treated over the summer. But however unfair the disproportionate responses are, we should never condemn de-escalation and restraint from authorities. The point is that police and those in charge should show all protesters—regardless of cause, skin color, or perceived political party alliance—the same restraint they (mostly) showed yesterday.

Which brings us to another bit of ridiculous rhetoric cropping up around the Capitol protests, riots, and break-ins yesterday: If you didn’t condemn vandalism, looting, and violence at summer Black Lives Matter protests, you’re a hypocrite for being aghast now.

The group of people who supported Black Lives Matter and anti-police abuse protests generally but did not oppose violence and destruction is actually fairly small. While many opponents of the protests insisted that support for any of the protests equated to support for everything that took place during them, the vast majority of people (at protests and commenting from afar) were against non-civil acts and did disapprove of, speak out about, and even try to stop those who were using the protests as an excuse to smash shit up, steal, and start chaos. So while this sort of gotcha isn’t exactly aimed at strawmen, it does describe a rather small group.

But we needn’t sort all that out for this line of logic to be lacking. A mass break-in to the U.S. Capitol to interrupt presidential certification on behalf of a man who did not win is quite a bit beyond a few trash can fires and spray-painted monuments, or even whatever more serious violence did break out in isolated patches at summer protests. The MAGA hordes yesterday sent the entirety of Congress and the Vice President into hiding. They forced Capitol police to barricade the House chamber to stop them from storming in. They broke Capitol windows and rifled through lawmakers’ offices. You have to be willfully obtuse to see that as on par with some localized acts of petty vandalism.

QUICK HITS

  • Stop calling them anarchists:

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Don’t Give the Capitol Rioters Power Over Tech and Policing Policy

zumaamericastwentynine619349

Pundits are learning all the wrong lessons from the Capitol riot. Despite yesterday’s chaos, Joe Biden has now been certified as the president-elect. The vote to certify his victory was completed this morning at 3:33 a.m. Along the way, what is normally a standard and unremarkable procedure was instead interrupted by the first breach of the U.S. Capitol since the British burned down much of Washington, D.C. during the War of 1812. By the end of it, four people were dead.

What the hell happened yesterday and how it happened will take some time to answer properly. But as tends to be the case in times of crisis, people are proving eager to cram this unprecedented experience into familiar frames and take from it evidence for their pet policy proposals.

Exhibit A: The techlash. Because the groups who broke into Congress yesterday organized through online platforms, or were motivated to organize by information on them, people with perpetual axes to grind against social media want to put the blame on Big Tech.

Once again, we see neutral communications tools taking the fall for the things people communicate through them. But had Wednesday’s mob not had Facebook Messenger, or Parler, or whatever else they were allegedly using to organize, does anyone really think they would’ve just called the whole thing off? There are plenty of private web forums and endless options for digital chat. No apps, no problem, either: Text messages, emails, and phone calls can spread the word just fine.

Attaching magical significance and responsibilities to particular platforms may make people feel like they’re Doing Something to address a confusing and distressing situation, and it may hit at entities that mainstream politicians and their tribes love to loathe anyway. But it doesn’t address any root causes of the phenomenon that distress people, and it leaves American politics mired in an eternal game of whack-a-mole with communication facilitators that simply squelches the speech rights of law-abiding people while distracting from the hard work of addressing the underlying issues that drove that communication.

Techlash is only one of many destructive frames developing around yesterday’s events. A lot of people are calling for Trump and other Republican lawmakers who disputed the election results and encouraged protesters to show up in D.C. to be prosecuted for incitement.

It’s certainly not wrong to call out Trump’s obvious role in making this happen, or the way senators like Ted Cruz (R–Texas) and Josh Hawley (R–Mo.) contributed to the conspiracy theories driving it. But we absolutely don’t want to open the can of worms that is broad interpretations of criminal incitement. Or treason. Or terrorism.

By all means, prosecute specific people for specific criminal acts, like vandalism and physical attacks on Capitol cops. But we don’t need to reach for the highest possible criminal charges, or prevent protesters from flying home, or prosecute literally everyone who entered the building, or aim for punishment beyond people directly responsible for bad behavior.

Another disturbing and unproductive trend has been lamentations about why more excessive force was not used.

Of course, there was some serious, and even lethal, force used. One woman protesting was shot to death by police inside the Capitol. “By day’s end, four people would be dead: one from gunfire and three from medical emergencies officials have yet to explain,” notes The Washington Post.

To be sure, there are still a lot of unknowns about how rioters were able to break deep into the heart of Congress and remain there for quite some time without much resistance. But there are also some plausible explanations, such as that Capitol police were outnumbered, that D.C. didn’t want the National Guard called in since Trump control it, and that authorities had expected a smaller crowd and were trying to avoid an excessive and potentially escalating presence.

“Defense Department officials had previously said they anticipated around 350 members of the D.C. national guard would be enough to support Washington, D.C., police during the protests this week, mainly to assist with traffic control,” reports The Wall Street Journal. “They wanted to avoid the optics of having any U.S. military personnel on the steps of the U.S. Capitol, and ordered the officers to avoid straying east of 9th Street in downtown Washington, blocks from the Capitol grounds, officials said.”

It certainly can’t be stressed enough how differently D.C. protesters against police brutality were treated over the summer. But however unfair the disproportionate responses are, we should never condemn de-escalation and restraint from authorities. The point is that police and those in charge should show all protesters—regardless of cause, skin color, or perceived political party alliance—the same restraint they showed yesterday.

Which brings us to another bit of ridiculous rhetoric cropping up around the Capitol protests, riots, and break-ins yesterday: If you didn’t condemn vandalism, looting, and violence at summer Black Lives Matter protests, you’re a hypocrite for being aghast now.

The group of people who supported Black Lives Matter and anti-police abuse protests generally but did not oppose violence and destruction is actually fairly small. While many opponents of the protests insisted that support for any of the protests equated to support for everything that took place during them, the vast majority of people (at protests and commenting from afar) were against non-civil acts and did disapprove of, speak out about, and even try to stop those who were using the protests as an excuse to smash shit up, steal, and start chaos. So while this sort of gotcha isn’t exactly aimed at strawmen, it does describe a rather small group.

But we needn’t sort all that out for this line of logic to be lacking. A mass break-in to the U.S. Capitol to interrupt presidential certification on behalf of a man who did not win is quite a bit beyond a few trash can fires and spray-painted monuments, or even whatever more serious violence did break out in isolated patches at summer protests. The MAGA hordes yesterday sent the entirety of Congress and the Vice President into hiding. They forced Capitol police to barricade the House chamber to stop them from storming in. They broke Capitol windows and rifled through lawmakers’ offices. You have to be willfully obtuse to see that as on par with some localized acts of petty vandalism.

QUICK HITS

  • Stop calling them anarchists:

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via IFTTT

After a Chaotic Day, Congress Finally Confirms That Joe Biden Won the Presidential Election

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The usually routine congressional process of certifying the final results of a presidential election was disrupted Wednesday by a riot that drove lawmakers off the floor to seek shelter as hundreds of President Donald Trump’s supporters ransacked the U.S. Capitol.

But that only delayed the inevitable conclusion. Joe Biden has been confirmed as the president-elect of the United States.

Even before the protest-turned-riot that interrupted the proceedings for more than six hours, an attempt to block certification of the results was more about appeasing Trump’s bruised ego than anything else. Only a handful of Republicans—led by Sen. Ted Cruz (R–Texas) and Sen. Josh Hawley (R–Mo.)—supported the effort.

Trump collected the first 12 electoral votes—nine from Alabama, three from Alaska—before the first objection, to Arizona’s results, disrupted the process. After lawmakers adjourned to their respective chambers to debate the objection in the afternoon, Senate Majority Leader Mitch McConnell (R–Ky.) encouraged his members to drop their doomed bid to overturn the election.

“We cannot simply declare ourselves a national board of elections on steroids. The voters, the states, and the courts have all spoken. If we overrule them, it would damage our republic forever,” McConnell said. “I will not pretend that such a vote would be a harmless protest measure while relying on other people to do the right thing.”

Then a far greater disruption occurred. Vice President Mike Pence was hustled out of the Senate by security, and both chambers abruptly entered recess as rioters crashed through windows and doors around the Capitol. Trump supporters raided offices and looted public spaces. One woman was shot and killed by Capitol police outside the House chamber. It was a wild, unprecedented, and embarrassing afternoon for a nation that holds itself out as a shining example of democracy.

It was a little after 8 p.m. when the House and Senate finally reconvened. “This is still the people’s house. and as we reconvene in this chamber, the world will again witness the resilience and strength of our democracy,” Pence said as the Senate resumed. “Let’s get back to work.”

Trump and some of his supporters had pushed a false theory that Pence had the sole authority to accept or reject the Electoral College votes certified by the states. But the vice president rejected that idea—reportedly angering Trump in the process.

In a session that stretched late into the evening, senators and members of the House debated the Arizona objection. In the end, only six members of the Senate voted to support the objection, while 122 Republicans in the House did. The effort failed, and a later objection to Pennsylvania’s election results was similarly defeated. Hawley, Cruz, and other Republicans dropped plans to object to the vote count in Georgia, Michigan, Nevada, and Wisconsin.

What was supposed to be a routine, largely ceremonial procedure finally concluded in the early hours of Thursday morning. As expected, Biden won 306 votes and Trump won 232 votes when the alphabetical reading of the states’ Electoral College votes was concluded.

The chaos that Trump helped spark and the final defeat of the president’s nonsensical bid to overturn the election turned January 6, 2021, into a day that won’t be forgotten soon. But the day’s events are more evidence for the resilience of America’s political institutions, which have been much-tested during the Trump years. Wednesday was an unprecedented challenge to the constitutional process that helps ensure a peaceful transfer of power. Trump lost, again.

“We gather today due to a selfish man’s injured pride, and the outrage of his supporters whom he has deliberately misinformed for the past two months and stirred to action this very morning,” Sen. Mitt Romney (R–Utah) said during a fiery speech on Wednesday evening in which he condemned members of his own party for spreading lies that put the president’s self-interest ahead of the nation.

“The best way we can show respect for the voters who were upset is by telling them the truth,” Romney said. “President Trump lost.”

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Will There Be Seditious Conspiracy Charges Against Those Who Stormed the Capitol?

In September, then-Deputy Attorney General said the Department of Justice should consider filing seditious conspiracy charges against rioters and violent protestors who attacked federal buildings or federal agents during protests in multiple U.S. cities. From the New York Times report:

The deputy attorney general, Jeffrey A. Rosen, said in an email to federal prosecutors that they should consider use of the sedition statute and other federal laws to try to stop violence at protests this summer — even in instances where local law enforcement would typically bring charges. . . .

“The attorney general and I recently discussed with you the need to consider the use of a variety of federal charges when they may be appropriate, including seditious conspiracy,” Mr. Rosen wrote.

Their push for prosecutors to consider sedition was proper and that prosecutors did not need evidence of a plot to overthrow the government to consider and bring charges under the statute, “despite what the name might suggest,” Mr. Rosen wrote. . . .

“Critics of the inclusion of Section 2384 in a list of available statutes appear not to have read beyond the section’s title,” Mr. Rosen wrote, citing the portion of the federal code containing the law. “Those who have actually read the statute recognize that the text of Section 2384 could potentially apply to some of the violent acts that have occurred.”

As I noted yesterday, Rosen (who is now Acting Attorney General) is correct about the scope of Section 2384. Further, the text of this provision would seem to be no less applicable to some of yesterday’s events than to some of 2020’s riots and assaults on federal buildings.

Will the Justice Department pursue such charges against those who organized, encouraged, and participated in storming the nation’s Capitol? In a statement yesterday, Acting AG Rosen said “The violence at our Nation’s Capitol Building is an intolerable attack on a fundamental institution of our democracy.” If so, it would seem Section 2384 should apply to at least some of the individuals involved.

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After a Chaotic Day, Congress Finally Confirms That Joe Biden Won the Presidential Election

sipaphotoseleven334140

The usually routine congressional process of certifying the final results of a presidential election was disrupted Wednesday by a riot that drove lawmakers off the floor to seek shelter as hundreds of President Donald Trump’s supporters ransacked the U.S. Capitol.

But that only delayed the inevitable conclusion. Joe Biden has been confirmed as the president-elect of the United States.

Even before the protest-turned-riot that interrupted the proceedings for more than six hours, an attempt to block certification of the results was more about appeasing Trump’s bruised ego than anything else. Only a handful of Republicans—led by Sen. Ted Cruz (R–Texas) and Sen. Josh Hawley (R–Mo.)—supported the effort.

Trump collected the first 12 electoral votes—nine from Alabama, three from Alaska—before the first objection, to Arizona’s results, disrupted the process. After lawmakers adjourned to their respective chambers to debate the objection in the afternoon, Senate Majority Leader Mitch McConnell (R–Ky.) encouraged his members to drop their doomed bid to overturn the election.

“We cannot simply declare ourselves a national board of elections on steroids. The voters, the states, and the courts have all spoken. If we overrule them, it would damage our republic forever,” McConnell said. “I will not pretend that such a vote would be a harmless protest measure while relying on other people to do the right thing.”

Then a far greater disruption occurred. Vice President Mike Pence was hustled out of the Senate by security, and both chambers abruptly entered recess as rioters crashed through windows and doors around the Capitol. Trump supporters raided offices and looted public spaces. One woman was shot and killed by Capitol police outside the House chamber. It was a wild, unprecedented, and embarrassing afternoon for a nation that holds itself out as a shining example of democracy.

It was a little after 8 p.m. when the House and Senate finally reconvened. “This is still the people’s house. and as we reconvene in this chamber, the world will again witness the resilience and strength of our democracy,” Pence said as the Senate resumed. “Let’s get back to work.”

Trump and some of his supporters had pushed a false theory that Pence had the sole authority to accept or reject the Electoral College votes certified by the states. But the vice president rejected that idea—reportedly angering Trump in the process.

In a session that stretched late into the evening, senators and members of the House debated the Arizona objection. In the end, only six members of the Senate voted to support the objection, while 122 Republicans in the House did. The effort failed, and a later objection to Pennsylvania’s election results was similarly defeated. Hawley, Cruz, and other Republicans dropped plans to object to the vote count in Georgia, Michigan, Nevada, and Wisconsin.

What was supposed to be a routine, largely ceremonial procedure finally concluded in the early hours of Thursday morning. As expected, Biden won 306 votes and Trump won 232 votes when the alphabetical reading of the states’ Electoral College votes was concluded.

The chaos that Trump helped spark and the final defeat of the president’s nonsensical bid to overturn the election turned January 6, 2021, into a day that won’t be forgotten soon. But the day’s events are more evidence for the resilience of America’s political institutions, which have been much-tested during the Trump years. Wednesday was an unprecedented challenge to the constitutional process that helps ensure a peaceful transfer of power. Trump lost, again.

“We gather today due to a selfish man’s injured pride, and the outrage of his supporters whom he has deliberately misinformed for the past two months and stirred to action this very morning,” Sen. Mitt Romney (R–Utah) said during a fiery speech on Wednesday evening in which he condemned members of his own party for spreading lies that put the president’s self-interest ahead of the nation.

“The best way we can show respect for the voters who were upset is by telling them the truth,” Romney said. “President Trump lost.”

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Will There Be Seditious Conspiracy Charges Against Those Who Stormed the Capitol?

In September, then-Deputy Attorney General said the Department of Justice should consider filing seditious conspiracy charges against rioters and violent protestors who attacked federal buildings or federal agents during protests in multiple U.S. cities. From the New York Times report:

The deputy attorney general, Jeffrey A. Rosen, said in an email to federal prosecutors that they should consider use of the sedition statute and other federal laws to try to stop violence at protests this summer — even in instances where local law enforcement would typically bring charges. . . .

“The attorney general and I recently discussed with you the need to consider the use of a variety of federal charges when they may be appropriate, including seditious conspiracy,” Mr. Rosen wrote.

Their push for prosecutors to consider sedition was proper and that prosecutors did not need evidence of a plot to overthrow the government to consider and bring charges under the statute, “despite what the name might suggest,” Mr. Rosen wrote. . . .

“Critics of the inclusion of Section 2384 in a list of available statutes appear not to have read beyond the section’s title,” Mr. Rosen wrote, citing the portion of the federal code containing the law. “Those who have actually read the statute recognize that the text of Section 2384 could potentially apply to some of the violent acts that have occurred.”

As I noted yesterday, Rosen (who is now Acting Attorney General) is correct about the scope of Section 2384. Further, the text of this provision would seem to be no less applicable to some of yesterday’s events than to some of 2020’s riots and assaults on federal buildings.

Will the Justice Department pursue such charges against those who organized, encouraged, and participated in storming the nation’s Capitol? In a statement yesterday, Acting AG Rosen said “The violence at our Nation’s Capitol Building is an intolerable attack on a fundamental institution of our democracy.” If so, it would seem Section 2384 should apply to at least some of the individuals involved.

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Record Gun Sales and Diverse Ownership Mean Rocky Prospects for Restrictions

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Joe Biden will enter the White House this month at the head of a political party that in recent years has been overtly hostile to self-defense rights, even to the point of advocating impossible-to-enforce bans on popular firearms. But the opportunity has passed for the restrictions he peddles as “common sense reforms.” In an era of political instability and distrust in government, Americans of varying political beliefs are purchasing guns in record numbers. And those millions of new weapons and their owners are bound to remain beyond the reach of politicians’ wish lists of restrictive laws.

Nine of the ten busiest weeks ever for the FBI-administered National Instant Criminal Background Check System (NICS)—which performs background checks for most firearms purchases from licensed dealers—occurred in 2020. While background checks don’t directly correspond to gun sales since they can be used for other purposes or for multiple simultaneous purchases, they’re an important indicator. The year ended with a total of 39.7 million background checks, the highest annual count recorded.

The “why” of the surge in firearms purchases is no secret in a year that seems drawn from the plot of an apocalyptic novel. January of 2020 opened with a politically polarized population and the news that “nearly six in ten Americans agree that there will be protests or rioting in the United States over the next year in response to how the country is being run,” according to Ipsos pollsters. They were right, though for unpredictable reasons.

Chaos got a boost when the COVID-19 pandemic dropped by for a visit in late winter, prompting prosperity-killing lockdowns and protests against the same. Many people were furious at the federal government’s conduct and/or their state governments’ policies.

With people already tense and at each other’s throats, police killings of George Floyd, Breonna Taylor, and other black Americans sparked demonstrations and riots against law enforcement abuses. In some cases, police were overwhelmed and told members of the public they would have to defend themselves. Along the way, many Americans lost faith in law enforcement officers. “Confidence in the police fell five points to 48%, marking the first time in the 27-year trend that this reading is below the majority level,” Gallup noted.

The cops’ ultimate bosses aren’t too popular, either. “For years, public trust in the federal government has hovered at near-record lows,” Pew Research found. “That remains the case today, as the United States struggles with a pandemic and economic recession.”

So, Americans bought guns. And they weren’t just adding to existing collections—many are new owners.

“Retailers reported an increased number of first-time gun buyers, estimating that 40 percent of their sales were to this group,” announced the National Shooting Sports Foundation (NSSF), a trade organization, in June. “This is an increase of 67 percent over the annual average of 24-percent first-time gun buyers that retailers have reported in the past.”

In recent years, whites and Republicans have been far more likely than minorities and Democrats to report owning guns, but many of the new owners come from different backgrounds than the traditional stereotype. “The highest overall firearm sales increase comes from Black men and women who show a 58.2 percent increase in purchases during the first six months of 2020 versus the same period last year,” noted the NSSF.

“First-time gun buyers favor Biden over Trump,” the Dallas Morning News reported of pre-election Texas survey results. “In fact, 51% of first-time purchasers surveyed favored Biden, while 43% favored Trump.”

As you might expect, this complicates matters for Democrats who have long used gun restrictions as an easy way to bash political enemies while doing minimal harm to their own constituents. With gun ownership becoming a nonpartisan taste, restrictive laws threaten to inconvenience and anger supporters as much as opponents.

Sure enough, “Americans’ appetite for gun control is the lowest it has been since 2016,” according to Gallup. And while a large majority of Democrats still favor tighter restrictions, support has declined even in that group by five points. New gun owners, along with long-time shooters, are likely to respond to stricter gun laws with prickly defiance.

“Previous studies have proposed two sides of gun culture: one focused on recreational use and a second on self-defense. But the new BU study identifies a third mentality, made up of people who view the defense of the Second Amendment as necessary to freedom in the United States,” Boston University (BU) announced last summer. “This so-called ‘gun culture 3.0’ has increased the most in states that have strengthened their gun laws to the greatest degree, suggesting it may be triggered by perceived threats on individual liberty by the government.”

In states with secure gun rights, owners tend to be non-political and dedicated to recreation and self-defense, the study found. But restrictive laws prompt people to become resistant and to view their firearms as hedges against the state.

“The result is a few million people who are convinced that any genuine firearm violence prevention effort is the first step in a scheme to take away all of their rights and disenfranchise them,” groused Claire Boine, one of the BU researchers.

We saw the results just a few years ago in terms of massive noncompliance with “assault weapon” registration laws in Connecticut and New York. “Empire State gun owners are largely ignoring one of the signature elements of the watershed legislation,” the New York Daily News observed in 2015.

At the national level, if Biden blows the dust off the various proposals for bans, registration requirements, and other restrictions advocated by his party, he’s going to infuriate a great many Americans who view firearms as protection against threats to their liberty. That’s not new of course—prohibitions have always provoked anger and resistance. This time, however, many of the alienated gun owners scoffing at the law would be voters on whom the new president and his allies rely.

Government fell on its face in 2020 and left many Americans to arm themselves for self-protection amidst political turmoil and failing institutions. With a record number of guns in the hands of an increasingly diverse cross-section of the population, gun control just isn’t a serious policy proposal.

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Record Gun Sales and Diverse Ownership Mean Rocky Prospects for Restrictions

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Joe Biden will enter the White House this month at the head of a political party that in recent years has been overtly hostile to self-defense rights, even to the point of advocating impossible-to-enforce bans on popular firearms. But the opportunity has passed for the restrictions he peddles as “common sense reforms.” In an era of political instability and distrust in government, Americans of varying political beliefs are purchasing guns in record numbers. And those millions of new weapons and their owners are bound to remain beyond the reach of politicians’ wish lists of restrictive laws.

Nine of the ten busiest weeks ever for the FBI-administered National Instant Criminal Background Check System (NICS)—which performs background checks for most firearms purchases from licensed dealers—occurred in 2020. While background checks don’t directly correspond to gun sales since they can be used for other purposes or for multiple simultaneous purchases, they’re an important indicator. The year ended with a total of 39.7 million background checks, the highest annual count recorded.

The “why” of the surge in firearms purchases is no secret in a year that seems drawn from the plot of an apocalyptic novel. January of 2020 opened with a politically polarized population and the news that “nearly six in ten Americans agree that there will be protests or rioting in the United States over the next year in response to how the country is being run,” according to Ipsos pollsters. They were right, though for unpredictable reasons.

Chaos got a boost when the COVID-19 pandemic dropped by for a visit in late winter, prompting prosperity-killing lockdowns and protests against the same. Many people were furious at the federal government’s conduct and/or their state governments’ policies.

With people already tense and at each other’s throats, police killings of George Floyd, Breonna Taylor, and other black Americans sparked demonstrations and riots against law enforcement abuses. In some cases, police were overwhelmed and told members of the public they would have to defend themselves. Along the way, many Americans lost faith in law enforcement officers. “Confidence in the police fell five points to 48%, marking the first time in the 27-year trend that this reading is below the majority level,” Gallup noted.

The cops’ ultimate bosses aren’t too popular, either. “For years, public trust in the federal government has hovered at near-record lows,” Pew Research found. “That remains the case today, as the United States struggles with a pandemic and economic recession.”

So, Americans bought guns. And they weren’t just adding to existing collections—many are new owners.

“Retailers reported an increased number of first-time gun buyers, estimating that 40 percent of their sales were to this group,” announced the National Shooting Sports Foundation (NSSF), a trade organization, in June. “This is an increase of 67 percent over the annual average of 24-percent first-time gun buyers that retailers have reported in the past.”

In recent years, whites and Republicans have been far more likely than minorities and Democrats to report owning guns, but many of the new owners come from different backgrounds than the traditional stereotype. “The highest overall firearm sales increase comes from Black men and women who show a 58.2 percent increase in purchases during the first six months of 2020 versus the same period last year,” noted the NSSF.

“First-time gun buyers favor Biden over Trump,” the Dallas Morning News reported of pre-election Texas survey results. “In fact, 51% of first-time purchasers surveyed favored Biden, while 43% favored Trump.”

As you might expect, this complicates matters for Democrats who have long used gun restrictions as an easy way to bash political enemies while doing minimal harm to their own constituents. With gun ownership becoming a nonpartisan taste, restrictive laws threaten to inconvenience and anger supporters as much as opponents.

Sure enough, “Americans’ appetite for gun control is the lowest it has been since 2016,” according to Gallup. And while a large majority of Democrats still favor tighter restrictions, support has declined even in that group by five points. New gun owners, along with long-time shooters, are likely to respond to stricter gun laws with prickly defiance.

“Previous studies have proposed two sides of gun culture: one focused on recreational use and a second on self-defense. But the new BU study identifies a third mentality, made up of people who view the defense of the Second Amendment as necessary to freedom in the United States,” Boston University (BU) announced last summer. “This so-called ‘gun culture 3.0’ has increased the most in states that have strengthened their gun laws to the greatest degree, suggesting it may be triggered by perceived threats on individual liberty by the government.”

In states with secure gun rights, owners tend to be non-political and dedicated to recreation and self-defense, the study found. But restrictive laws prompt people to become resistant and to view their firearms as hedges against the state.

“The result is a few million people who are convinced that any genuine firearm violence prevention effort is the first step in a scheme to take away all of their rights and disenfranchise them,” groused Claire Boine, one of the BU researchers.

We saw the results just a few years ago in terms of massive noncompliance with “assault weapon” registration laws in Connecticut and New York. “Empire State gun owners are largely ignoring one of the signature elements of the watershed legislation,” the New York Daily News observed in 2015.

At the national level, if Biden blows the dust off the various proposals for bans, registration requirements, and other restrictions advocated by his party, he’s going to infuriate a great many Americans who view firearms as protection against threats to their liberty. That’s not new of course—prohibitions have always provoked anger and resistance. This time, however, many of the alienated gun owners scoffing at the law would be voters on whom the new president and his allies rely.

Government fell on its face in 2020 and left many Americans to arm themselves for self-protection amidst political turmoil and failing institutions. With a record number of guns in the hands of an increasingly diverse cross-section of the population, gun control just isn’t a serious policy proposal.

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