No “Disciplinary Actions Against Physicians Simply Because They Prescribe Ivermectin or Hydroxycholoroquine”

From the opinion, released yesterday:

[T]he available data does not justify filing disciplinary actions against physicians simply because they prescribe ivermectin or hydroxychloroquine to prevent or treat COVID-19. If, on the other hand, healthcare providers neglect to obtain informed consent, deceive their patients, prescribe excessively high doses, fail to check for contraindications, or engage in other misconduct, they might be subject to discipline. But based on the evidence that currently exists, the mere fact of prescribing ivermectin or hydroxychloroquine for COVID-19 will not result in our office filing disciplinary actions….

Based on the available data, we do not find clear and convincing evidence that a physician who first obtains informed consent and then utilizes ivermectin or  hydroxychloroquine for COVID-19 violates the UCA [Uniform Credentialing Act]. This conclusion is subject to the limits noted throughout this opinion. Foremost among them are that if physicians who prescribe ivermectin or hydroxychloroquine neglect to obtain informed consent, deceive their patients, prescribe excessively high doses, fail to check for contraindications, or engage in other misconduct, they might be subject to discipline, no less than they would be in any other context.

As we have stressed throughout, this opinion is based only on the data and information available at this time. If the relevant medical evidence materially changes, that could impact our conclusions. Also, though an opinion from our office about possible UCA violations would ordinarily focus on healthcare practices within Nebraska, the context of a global pandemic necessitates looking for evidence far beyond our State’s borders, as we have done here. Thus, the analytical roadmap in this opinion likely has limited application outside the circumstance of a global pandemic….

[O]ur office is not recommending any specific treatments for COVID-19. That is not our role. There are multiple treatment options outside the scope of this opinion—including treatments that have been officially approved by the FDA—that physicians and their patients should carefully consider. This opinion takes no position on them.

Rather, we address only the off-label early treatment options discussed in this opinion and conclude that the available evidence suggests that they might work for some people. Allowing physicians to consider these early treatments will free them to evaluate additional tools that could save lives, keep patients out of the hospital, and provide relief for our already strained healthcare system.

The opinion is long and highly detailed, with detailed analyses of various other agencies’ views on the matter; I can’t speak to whether or not it’s correct, but if you’re interested in the subject, it’s worth reading, and I expect that it will prove important, not just in Nebraska. Thanks to James Creigh for the pointer.

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Queens Is a Highly Entertaining Hip-Hop Soap Opera


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Queens. ABC. Tuesday, October 19, 10 p.m.

Television writers rooms can run slightly amok. A sexual harassment lawsuit a few years back revealed that the writers on Friends spent considerable time working out a story arc where lovable stud-muffin Joey turned out to be a serial rapist. That one didn’t make the air, but other, much-discussed fantasies about the characters Rachel and Monica may have. In fact, that one was so popular that it stretched over to Courteney Cox’s next show, the tabloid-journalism drama Dirt.

The writers-room weirdness at ABC’s new soap Queens is apparently less salacious but far more eccentric. The loons there have come up with an entire series that crosses St. Paul’s lecture to the Corinthians—”When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things”—with a season-long episode of the tawdry old VH1 documentary show Behind the Music. Stranger still: It’s actually rather entertaining.

The queens of the title are four age-40ish women who, two decades ago, “stood on top of the world for a hot minute” as the Nasty Bitches, a hip-hop group that had one smash album before the members got in an epic punchout over the romantic attention of their male manager. Now, on the cusp of middle age, they’re getting attention again after one of their songs is played on a popular rap radio show. There’s even talk of a reunion—except that…

Brianna (rapper Eve, who appeared in the Barbershop movies), is the married mother of five. “I’m a mom,” she declares. “I don’t rap anymore.” And her old nom de hip-hop, Professor Sex, seems ironic since she just caught her professor husband diddling a student who told her not to worry, hubby would be back after finishing his trophy boink: “There’s nothing more attractive than mature beauty.”

Jill “Da Thrill” (Naturi Naughton, Notorious) has become a devout Catholic, and isn’t wild about grinding her hips and shouting about bitches and bling on stage, or the advice of another group member: “Splash some holy water on that ass and keep it moving.”

Valeria (Nadine Velazquez, My Name Is Earl and The League) has left music behind to become a daytime TV host in Los Angeles—and then left that job behind when caught playing a dirty on-air trick on a co-host. And Naomi (rapper Brandy and a regular on The CW’s The Game) is playing singer-songwriter folk in a Nashville bar. As Valeria observes, they’re a collection of “wives, moms, and ambitious hos.”

Make that wives, moms, and ambitious hos with issues. The jealousies and enmities that broke the group up in the first place still smolder and, regularly, burst into flames. Estranged children and husbands, secret love affairs and addictions, CAT scans, and all the other afflictions of middle age take their toll. So do the delusions of age. When the Nasty Bitches learn that their prospective reunion is to be fronted by a young flavor-of-the-day rapper named Lil Muffin (Pepi Sonuga, Ash vs. Evil Dead, and, honest to God, something called Cheerleader Death Squad), they’re enraged to learn they aren’t the headliners. “We are not a sideshow,” snaps one member. Retorts a promoter, with ruthless clarity: “You’re not a show at all anymore.”

That’s a lot of storylines to cram into a single hour, but writer-creator Zahir McGhee (Scandal) deftly juggles them all, and the actresses are surprisingly good at keeping their characters from lapsing into cliches or archetypes. (Tim Story, who directed the pilot, was a music video director back in the day and his experience shows in the frequent dance numbers.) Queens is undeniably a soap opera—a highly entertaining one—but it’s also a wry and often endearing commentary on both the wisdom and the decrepitude of advancing age. “Hey nonny nonny, my nonny drips in gold,” the young rapper exults. Enjoy it while it still shines, babe.

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Refusing to Sell Rifles and Shotguns to 18-to-20-Year-Olds Violates Oregon’s Ban on Public Accommodation Discrimination

Oregon is one of the states that bans retailers from discriminating based on age against customers age 18 and above. (Some states don’t have such rules, or have an age 21 cutoff.) The Oregon statute says it generally applies to any person who is “of age,” which appears to mean 18, the age of majority in Oregon, at least for those products that are legal to sell to 18-to-20-year-olds (as long guns are in Oregon). Indeed, the statute specifically mentions alcohol and marijuana sellers for special treatment, but makes no such special provision for gun sellers (emphasis added):

659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors …;

(b) The enforcement of laws governing the use of marijuana items … by persons under 21 years of age …; or

(c) The offering of special rates or services to persons 50 years of age or older….

659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older….

And in Wednesday’s decision in Dalbeck v. Bi-Mart Corp., the Oregon Court of Appeals (in an opinion by Presiding Judge Erin Lagesen, joined by Judges Bronson James and Jacqueline Kamins) held that the statutory text indeed generally protected customers age 18 and above against age discrimination, including as to sales of long guns. The court added:

Gun violence is an escalating problem in this country….

The law, though, limits the solutions currently available to solve that problem. In particular, current Oregon law, by generally prohibiting discrimination based on age against a person who has reached the age of majority, does not allow for the problem of gun violence to be solved by discriminating against people aged 18 to 20 based on their age.

We, as a court, are not empowered to craft an exception to the legislature’s bar on age discrimination that the legislature itself did not write …. If there is to be an exception to the prohibition on age discrimination contained in ORS 659A.403, it must come from the legislature itself, not from the courts.

Judge Kamins’ concurrence concludes that the question is closer than does the majority, but ultimately agrees with the majority.

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Breaking: DOJ Will Appeal S.B. 8 Case to Supreme Court

DOJ Spokesman Anthony Coley released a short statement:

“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8.”

There are risks here. The Court could hold, in a short shadow docket order, that the United States lack an equitable cause of action. There is precedent for such an order. In 2019, the Supreme Court granted a stay in Trump v. Sierra Club. The majority observed that the Plaintiffs lacked a cause of action:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.

(Seth Barrett Tillman and I wrote about the order here.).

The Supreme Court could turn away DOJ’s application in a single sentence. Ironically, that holding would actually help the Justice Department in the long run. Usually, DOJ argues in favor of a narrow scope of equitable jurisdiction. But here, the Biden Administration has reversed that position.

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Joe Biden’s Proposed Ban on Fast, Effective Dishwashers Is a Gift to Big Business


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Supply chain bottlenecks have Americans waiting longer for the dishwashers and washing machines they’ve ordered. President Joe Biden’s regulatory onslaught means that consumers will also spend extra time running whatever home appliances they do manage to get their hands on.

Earlier this week, the public comment period ended on the U.S. Department of Energy (DOE) proposal to ban “short-cycle” dishwashers and laundry machines, which clean pants and plates much faster but consume more energy and water to get the job done.

These products were legalized under the Trump administration as part of its crusade to undo stifling energy efficiency limits and make America’s appliances great again. Dishwashers, in particular, were an issue that provoked the former commander in chief’s passions.

“The dishwashers, they had a little problem. They didn’t give enough water, so people would run them 10 times, so they end up using more water. And the thing’s no damn good. We freed it up,” said former President Donald Trump on the campaign trail in October 2020.

His characteristic bravado had a lot of truth to it.

The past few decades have seen the default cycle times of dishwashers more than double—from an average of 69 minutes in 1983 to 140 minutes in 2018—as manufacturers struggle to maintain the cleaning performance of their machines while complying with ever stricter energy standards.

A slower cycle, notes a 2016 DOE report, “allows more time for the smaller volume of water to be circulated within the cabinet, helping to maintain wash performance” while decreasing the use of both water and electricity needed to heat that water.

In 2018, the Competitive Enterprise Institute (CEI), a libertarian think tank, petitioned the Trump administration’s DOE to create a new regulatory product class of dishwashers with a default cycle of less than one hour that would be subject to higher energy and water limits. “This would allow manufacturers to create those [faster] dishwashers and then be able to sell them to consumers,” says Devin Watkins, an attorney at the CEI.

The Trump administration proved receptive, finalizing new regulations in October 2020 that exempted dishwashers with a default cycle of an hour or less from energy efficiency standards. The plan was to craft new, lower standards later on. In December 2020, Trump’s DOE also created similar, looser product classes for washing machines and driers.

This dishwasher deregulation proved popular with red-blooded Americans.

Some 98 percent of the 2,244 individuals who submitted comments on the Trump administration’s rule change supported the idea of legalizing a faster dishwasher product class.

“Please allow more options for dishwashers that actually work,” said one commenter. “We waste large amounts of hot water and fuel re-washing dishes that are not clean after the first 2+ hour cycle. It’s a complete waste of time and energy.”

“IT IS TIME TO WASH AWAY THIS STUPID RULE!” hyperventilated another commenter. “If this type of a rule applied to the space program, we would still be trying to send chimpanzees into orbit!”

Special interest groups were less pleased with the idea of a faster, more effective rinse cycle.

In one regulatory filing, a coalition of environmental groups including the Sierra Club and Earthjustice warned that the legalization of faster dishwashers “threatens to wipe out decades of progress” in energy efficiency.

Trade associations representing appliance manufacturers also came out against the new rule. They argued, paradoxically, that consumers weren’t demanding faster dishwashers, and if they were legal, companies would have to invest a lot of money in making the new machines (presumably because people would be interested in buying them).

“Not only would investments in efficiency innovation be stranded, but also new investments would be required in order to design dishwashers that could fall into the new product class,” wrote the Association of Home Appliance Manufacturers in an October 2019 public comment.

The New York Times published several critical articles on Trump’s dishwasher changes as well, alternatively charging that the quick cycle function of existing dishwashers did a good enough job already and that marginally loosening dishwasher standards was a plot by fossil fuel interests.

Watkins says that businesses have an anti-competitive interest in keeping new products off the market.

“They’ve already designed dishwashers on the market that they’re selling right now. They don’t want to have to spend the money to redesign dishwashers,” he tells Reason. “They would rather the government ban the better dishwasher.”

Nevertheless, the Biden administration has decided to take the side of big business in this conflict between industry and individuals.

In August, his DOE proposed to eliminate the short-cycle product class for both dishwashers and laundry machines. It argued in regulatory filings that legalizing these appliances violated “anti-backsliding” provisions of the Energy Policy and Conservation Act (EPCA) that prohibit the department from loosening energy efficiency standards for existing products.

Watkins, in testimony to the DOE in September, said that the Trump administration didn’t violate the EPCA’s anti-backsliding provisions because it was creating a whole new product class with its short-cycle dishwashers, not loosening standards for existing products.

The CEI has argued that the DOE, rather than eliminating the short-cycle dishwashers, should complete the unfinished work of the Trump administration and create new energy efficiency requirements for these products. That would let manufacturers know what standards these new products would have to meet so they can get to work designing them.

That doesn’t appear likely. The DOE is currently considering the public comments it received. Within a few months, it will likely issue a final regulation once again banning fast, effective dishwashers.

That will suit the interests of incumbent businesses that won’t have to invest money in making a better product for consumers. The losers from this whole process are the hardworking American families sitting around the kitchen table, wondering when the dishes will be done.

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The Last Duel Is More Than a Medieval #MeToo


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You could be forgiven, upon hearing the premise for The Last Duel, for thinking that the movie is essentially a medieval Title IX case with a bit of bloody, muddy jousting thrown in. The trailers sell the 14th-century story as a sort of he said/she said—or, more accurately, as a he said/he said/she said—about a knight named Jean de Carrouges (Matt Damon), a nobleman named Jacques Le Gris (Adam Driver), and the knight’s wife, the lady Marguerite de Carrouges (Jodie Comer), who claims the nobleman raped her.

But while the movie tells the story from three different perspectives, it affords no ambiguity about what happened when the nobleman barged his way into the Carrouges home and forced himself on the lady. What the trailers present as an uncertain accusation, the movie presents as fact. He raped her. It happened. Watching the assault on screen, even from different points of view, leaves no room for doubt from the perspective of a contemporary viewer.

But The Last Duel is much more than a medieval #MeToo. Rather, it’s a gripping remix of many of the ideas that director Ridley Scott has engaged with for decades, in films as diverse as Alien, Thelma & Louise, G.I. Jane, and Kingdom of Heaven. It’s a movie about female agency and power, religious complicity in barbarism, the primal physical demands of existence, and the nobility of survival in a harsh and unforgiving world. More intriguingly, it’s a subtly subversive movie about cultural perception and perspective, and how power is preserved by institutional systems that everyone involved takes for granted.

The movie is told in three chapters, each from a different point of view. At first, we see things as Jean de Carrouges sees them: He understands himself to be a loyal soldier, slightly awkward but essentially honorable, who is betrayed by a better-looking, more worldly friend who first takes land that was supposed to be his, then claims a title de Carrouges deserved by birth, and then assaults his wife. In the second chapter, we not only see Le Gris as he sees himself—intelligent, careful, and possessing superior social and political judgment—but de Carrouges as Le Gris sees him: stubborn, stiff, foolish, whiny, and not particularly clever.

Near the end of his chapter, we see the rape of Marguerite de Carrouges as Le Gris sees himself committing it. He pins her down and listens to her cry no, but this sort of response is familiar to him, for it plays out just like a game we saw him play earlier with more willing targets. He understands his actions as sins, and asks forgiveness—but only for adultery, not for rape.

Thus the movie at least raises the possibility that he does not believe it was genuinely an act of force. Partly that’s because it so clearly fits the gamelike template in his mind. At one point, he dismisses the notion of rape by insisting that Marguerite only gave the “usual protestations,” as if he understands some amount of resistance as ordinary.

And partly that’s because the entirely male-dominated social structures of the era reinforce the idea that what he did was not rape, indeed could not be, because the woman was attracted to her attacker. The movie doesn’t excuse him—quite the opposite—but it does attempt to reveal how Le Gris might have understood his actions in the cultural context in which they were committed.

That context and its relevant social structures come most clearly into view in the movie’s final chapter, told from Marguerite’s perspective, which the movie strongly indicates is the real truth. And the real truth is that both men are selfish and despicable, that the assault was far more brutal than Le Gris understood or imagined, that her husband has abused her in different ways as well, and that she had little recourse, because the religiously inflected God-and-king-driven political and legal systems of the era treated women as men’s property, not as individuals with their own rights.

Scott’s films have often depicted cruelty and violence justified on religious grounds, and he’s similarly been interested in female agency and survival in male-dominated spaces, so in some ways, this is familiar—if effectively orchestrated—thematic territory.

But there’s something else going on here too. The Last Duel isn’t just a movie about how bad men brutalized women under the cover of social approval, though it is certainly that. It’s about how powerful elites justify their inhumane behavior, and protect their own, through lies dressed up as scientific, legal, or cultural consensus.

The film is bookended by a savage and satisfyingly rendered jousting match that turns two hunky Hollywood leading men into narcissistic dirtbags and then lets them beat the crap out of each other.

But the movie’s key moment is a courtroom scene in which Carrouges and Le Gris both plead their cases. The assembled legal minds—all men, for it was men who ruled the day—determine that it could not have been rape, for Marguerite conceived a child, and children, they explain, can only be conceived when a woman enjoys the act. “That’s just science,” one exclaims.

The line is arguably too on the nose, and yet it hints at something lurking just beneath the film’s relatively conventional left-leaning surface. Scott has always been a feisty individualist, a humanist with little regard for authoritarian systems or conformist ideologies, and in The Last Duel, he seems to be wondering, if not quite outright saying: If government and religion—the institutional authorities that ruled 14th-century France—could deploy false scientific authority to such inhumane ends so many centuries ago, what sort of barbarism could the facade of science be used to justify today? And how would today’s cultural attitudes and expectations blind people—and specifically those in positions of power and authority—to their own complicity?

After all, Damon’s de Carrouges and Driver’s Le Gris were just ancient-times elites jockeying for their own status within a cruel and abusive system. But it was the only system they knew.

The movie’s best trick, then, is to slyly suggest that many of us cannot truly understand what is around us, what we are doing, and what we are idly accepting, because of embedded cultural assumptions that have blinded us to the larger truth. The Last Duel explicitly presents three perspectives, but there’s a fourth hidden in every viewing: your own.

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More Confusion Over Boosters as FDA Panel Recommends Additional Moderna Shots


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Weeks after President Joe Biden effectively told Americans to seek out off-the-books COVID-19 booster shots, his health officials are finally getting around to giving their stamp of approval. Unfortunately, there’s still plenty of confusion about who needs boosters, when they should get them, and how recipients of the Johnson & Johnson vaccine should approach the whole matter.

Let’s start with what we know. On Thursday, a panel of medical experts at the Food and Drug Administration (FDA) voted unanimously to recommend a half-dose Moderna booster shot for people over age 65 or otherwise deemed to be at high risk from COVID due to other medical conditions. Those same groups were given the go-ahead to get a booster shot of the Pfizer/BioNTech vaccine last month. The same panel will meet on Friday to discuss possible boosters for the Johnson & Johnson vaccine.

Thursday’s vote is not the same thing as granting full FDA approval for Moderna booster shots, because of course nothing can ever be that straightforward for the federal bureaucracy that’s slow-walked vaccine approvals, limited the availability of at-home testing kits, and otherwise made a mess of its responsibilities during the pandemic. But, as The New York Times notes, the FDA usually follows the recommendations of its panels and is expected to issue a full approval “within a few days.” No rush, fellas.

What if you’re not over 65 or at high risk from COVID? Go with your gut, because the official guidance is a total mess. When the FDA approved booster shots of the Pfizer vaccine last month, it and the CDC disagreed about whether people in certain occupations—like service sector jobs that might require meeting lots of people face to face—should get boosters. Then, CDC Director Rochelle Walensky contradicted her own team, sided with the FDA, and unofficially told workers in higher-risk occupations to seek out a booster shot.

Maybe this time around the messaging will be more informative when the FDA gets around to issuing its official guidance on Moderna boosters, but don’t hold your breath.

There’s also confusion about what Johnson & Johnson vaccine recipients should do—some of which might be cleared up by today’s meeting, but, again, don’t expect much. Unlike the Pfizer and Moderna shots, which use mRNA, the Johnson & Johnson jab is based on old-school antivirus tech: It contains a weakened version of the virus to teach your body’s immune system how to combat the real thing. The roughly 15 million Americans who got the Johnson & Johnson vaccine received just a single shot, as opposed to the double dose required for Pfizer and Moderna.

Understandably, that’s left some people confused about what to do next. Should Johnson & Johnson recipients seek out Pfizer or Moderna booster shots? Is that dangerous?

A National Institutes of Health study published Wednesday says “mixing and matching” vaccines like that is just fine. CNBC reports:

There were no serious side effects tied to the additional shots and no new symptoms emerged after participants received the booster shots, researchers said. Two participants vomited after their boosters; one had received Moderna and the other J&J. Two other people who got a J&J booster reported fatigue or insomnia.

“These data suggest that if a vaccine is approved or authorized as a booster, an immune response will be generated regardless of the primary Covid-19 vaccination regimen,” researchers wrote in the study. “Heterologous prime boost strategies may offer immunological advantages to optimize the breadth and longevity of protection achieved with currently available vaccines.”

But don’t expect the FDA to weigh in on these important questions when its panel meets Friday to discuss the Johnson & Johnson vaccine. “The FDA panel seems likely to duck the question and rule only on whether J. & J. recipients should receive a J. & J. booster,” writes the Times‘ David Leonhardt. “It is the latest example of a recurring Covid problem. Again and again, government officials have chosen to follow pre-existing bureaucratic procedures even when doing so has led to widespread public confusion and counterproductive behavior.”


FREE MINDS

A return to normalcy. Most Americans surveyed in a new Gallup poll say they would prefer the government play a less active role in managing their lives, a reversal from last year when the same survey found more support for government problem solving.

“All party groups are less likely now than a year ago to favor a more active government role, but independents’ opinions have changed the most. In 2020, 56 percent of independents wanted the government to do more to solve problems, compared with 38 percent now,” the pollsters note. “Independents are even less inclined to want a more active government role today than they were in 2019 before the pandemic began, when 45 percent held that view.”


FREE MARKETS

Consumer spending increased by 0.7 percent during September, the Commerce Department announced on Friday morning. It’s a signal that Americans are unfazed by ongoing supply chain issues, rising inflation, and the lingering pandemic, The Wall Street Journal reports.


QUICK HITS

• In an effort to woo Sen. Joe Manchin (D–W.Va.) to vote for the $3.5 trillion reconciliation bill, Democrats might make coal-fired power plants eligible for green energy grants.

• A Los Angeles city councilman who has championed a ban on flavored vape products was indicted on federal corruption charges this week.

• Robert Durst, who unintentionally admitted to murdering Susan Berman during filming for an HBO documentary about his life, was sentenced to life in prison.

• Journalists discovered that Missouri was putting teachers’ private information at risk online. Guess what happened next:

• A attempt to save America’s only barrier reef from a strange, deadly disease.

• The big question no one is asking about America’s supply chain issues:

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The Right to Bear Arms in Historical Context

The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.

A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that “here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to.” 3 Adams, Legal Papers 248 (1965).

Adams’ oration provides several key insights into the right to bear arms at the Founding.

First, Adams’ understanding of the right to bear arms is fundamentally incompatible with New York’s assertions in NYSRPA v. Bruen about the meaning of the Statute of Northampton and its analogs. Massachusetts had enacted a Statute of Northampton analog in 1694, yet Adams—against the interests of his clients—acknowledged that the inhabitants of the colony had the right to carry arms for their defense.

Second, Adams provides further evidence that carrying arms was unlawful only if done in a threatening or offensive manner, and not if done defensively. As I explained in my second post in this series, New York has attempted to explain away or elide this distinction, but it cannot be escaped.

Third, Adams completely undermines the notion, pushed by New York and some of its amici, that at the founding, citizens would risk being thrown in prison if they carried arms in “populous areas.” (NY Br. at 33.) The Boston Massacre occurred in 1770, and at that time Boston was one of the most populous cities in America, trailing only Philadelphia and New York. Neither history nor text supports the notion that the Second Amendment is limited to the countryside.

Fourth, Adams’ statement underscores the importance of engaging in a careful contextual inquiry when evaluating the Founding-era understanding of the right to keep and bear arms and other constitutional rights. Real-world events like Adams’ speech and the habits of prominent Founders discussed in my initial post provide an important backdrop against which to evaluate the Founding-era understanding of archaic and ambiguous language such as that contained in the Statute of Northampton, which was enacted over two hundred years before the birth of Shakespeare.

Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a “corpus linguistics” analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like “bear arms” through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.

There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term “bear arms” may be used most often in a military sense, the correct search term is “the right to bear arms,” and it can only refer to an individual liberty.

The relevant context for the Second Amendment includes not only historical events but also the conceptual understandings of the Founders. New York displays a deficient understanding here as well. For example, in attempting to make the case that public carrying was generally banned in populous areas in England, New York states that carrying in such circumstances “suggested that the King was ‘not willing or able to protect his subjects.’ ” (NY Br. 24 n.14, quoting one of the reports of Sir John Knight’s Case.) Whether or not this was true—and, as I explained in my second post, Sir John Knight’s Case supports a general right to carry for self-defense—this rationale cannot possibly have been accepted in the United States. After Independence, American citizens no longer had a king, and they no longer were subjects. Sovereignty in our republican form of government lies in the People themselves, and the People are not at the mercy of a king (or any other Government official) for their protection. The notion is anathema to our Nation’s deepest ideals. New York is seeking to strip its people of their rights as free citizens.

Another conceptual blind spot is evident in New York’s insistence that barring typical law-abiding citizens from carrying arms promotes public safety. The Founders, however, many of whom were influenced by the Italian criminologist Cesare Beccaria, likely would have been extremely skeptical of this argument. See, e.g., Mark. W. Smith, Enlightenment Thinker Cesare Beccaria & His Influence on the Founders: Understanding the Meaning & Purpose of the Second Amendment’s Right to Keep & Bear Arms, 2020 Pepp. L. Rev. 71 (2020). Adams quoted Beccaria in the first sentence of his argument for the defendants in the Boston Massacre trial. And Thomas Jefferson copied into his commonplace book Beccaria’s statement that “laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes” and therefore “make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

In conclusion, I again thank Eugene for giving me the opportunity to blog here this week, and I hope my posts have been informative. Those interested in digging deeper into these issues can consult my recently published book on the right to carry, which also has a thought-provoking Forward by Renée Lettow Lerner.

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California Voters Might Have a Chance To Ban Government Unions in 2022


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In the heat of the recall election, California progressives were hyperventilating over the supposed awfulness of a direct-democratic process that has been embedded in our state’s constitution since the early 1900s. That’s when Gov. Hiram Johnson introduced the recall, referendum, and initiative to give the people a chance to thwart special interests.

It’s always dangerous to make drastic long-term changes in response to short-term political frustrations. As it turned out, Gov. Gavin Newsom survived the recall vote by an overwhelming margin. The system worked as intended. Just because a measure qualified for the ballot didn’t mean that a majority of voters would necessarily approve it.

Fortunately, Newsom acted sensibly in the wake of his victory. He last week vetoed legislation by Sen. Josh Newman (D–Anaheim), who was recalled from office in 2018 and still wants to change the rules. Senate Bill 660 would have banned campaigns (for recalls, initiatives, and referenda) from paying signature-gatherers on a per-signature basis.

Newsom correctly noted that the bill would “make the qualification of many initiatives cost-prohibitive for all but the wealthiest interests, thereby having the opposite effect.” It would have damaged our direct democracy, which—despite its flaws—remains the best check on our government overseers.

We also learned last week of two new ballot measures for the 2022 ballot that embody the spirit of Gov. Johnson. They’re certainly longshots—but one of the most compelling aspects of the initiative process is that it enables governmental outsiders to force out-of-the-box ideas onto the agenda. It is unquestionably a costly process to collect enough signatures to place measures on the ballot and win a majority of voters.

In this process, however, Californians can debate ideas that legislators have ignored. The first proposal would ban collective bargaining for government workers. The second measure would require 2 percent of the state’s general-fund revenue each year to fund water projects until the state amasses an additional 5 million acre-feet of available water supplies.

“After the Legislature authorized collective bargaining by public employee unions, public employment costs have exploded, including taxpayer-funded pensions and lifetime health benefits not enjoyed by employees in the private sector,” explained the union-related initiative’s official statement.

That’s an accurate description, based on extensive news coverage and audits of public schools, law enforcement agencies, and the state’s administrative agencies. Public-sector unions usually are the single biggest obstacle to even the most modest reforms to improve public services given their vested interest in preserving the status quo.

The teachers’ unions try to undermine educational alternatives such as charter schools and defend tenure and other employee protections that make it impossible to fire bad teachers or to reward the good ones. Police unions accomplish the same task for their members. The disturbing impact on the quality of the state’s public services is immeasurable.

Billionaire venture capitalist Tim Draper from Silicon Valley is its proponent. “If you go back to 1976, the unions were not involved in the negotiations, and the outcomes were excellent. California was Number 1 in K-12 education and Number 1 as a place to do business,” he told me, via email. “Now, since the unions have been involved, California has dropped to Number 47 in education and dead last…as a place to do business.”

He’s right, but it’s going to be tough to take on all of the state’s major unions at once. Draper was the proponent of a 2014 initiative that would have broken California into six states. That never got legs, but it was a cool thought experiment. If nothing else, it got Californians talking about the way that our current politics, which concentrates power in two mega-metropolitan areas, shortchange the state’s less-populated regions.

The water initiative is sure to be less controversial than Draper’s idea given that the drought is a top concern among voters. It already is building support. For instance, the Orange County Water District’s board of directors voted 8-2 last week to support it. It even has Democratic legislative backers.

California has built little water infrastructure since the 1970s, when our population was roughly half its current size. It’s better to fund such projects through revenue bonds rather than general-fund expenditures, but that’s, well, water under the bridge. We need to do something to assure an adequate amount of future water supplies—rather than resign ourselves to rationing.

Right on cue, the Sierra Club blasted the initiative by telling the OCWD that it would better “funnel its resources towards increasing conservation, storm-water capture…repairing leaks and replacing old pipes” and other green projects. Yet those types of projects—they’re fine, but none would appreciably increase supply—could easily grab funding under the initiative’s guidelines.

A robust initiative process doesn’t guarantee the state will rein in the power of public-sector unions or build up its water infrastructure, but at least the decision ultimately will be made by the people.

This column was first published in The Orange County Register.

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Review: Dune and The Velvet Underground


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Dune

Say what you will about David Lynch’s 1984 version of Dune—many people have said many unkind things about it over the years, because it’s a mess—but the movie has some indelible components. The bladder-headed Guild Navigator in his interstellar traveling tank. The floating lunatic Baron Harkkonen. The incomparable Brad Dourif with his classic litany of giddy gibberish (“It is by the juice of Sappho that thoughts acquire speed, the lips acquire stains, the stains become a warning”). And let us not forget Sting, in his wing-embossed codpiece.

Lynch didn’t have final cut on Dune, his third feature film, and so was at the mercy of his producers, who demanded a manageable two-hour movie to keep theatre owners happy. This forced the director to jam the whole of Frank Herbert’s weighty 1965 novel into a runtime too cramped to accommodate it. It was an experience Lynch has cursed ever since.

Now director Denis Villeneuve, whose last film, Blade Runner 2049, was also an ’80s exhumation, has taken his own run at Dune. Villeneuve has only been given a bit more time for his picture than Lynch was (this film runs just over two and a half hours)—but then his new Dune only covers the first part of Herbert’s book. The second part, which contains much of the story’s action, will require a second movie, the making of which will presumably be contingent upon the ability of this one—which is long and dark and slow—to find an audience.

Maybe it will. Because the picture is gorgeous to look at, filled with moody grey interiors, imposing brutalist architecture, and endless reaches of wind-sculpted desert. The story, more clearly presented this time, remains the same. It’s set 10,000 years in the future, in part on the ocean planet Caladan, home of the noble Atreides family; in part on the ugly industrial planet Giedi Prime, stronghold of the unspeakable Harkkonens; and principally on Arrakis, the parched planet known as Dune, which is the source of the coveted spice called melange. The spice enables space travel and psychic abilities, among other things, and on Arrakis it is ferociously guarded by giant sandworms, and by a native tribe called the Fremen, who resent their long oppression by off-world colonizers and now are fighting back.

Presiding over this universe is an emperor, unseen here, who is setting the Atreides clan up for a fall. He has tasked them with responsibility for all spice-mining on Arrakis, which is currently being supervised by the brutal Baron Harkkonen. As played by the late Kenneth McMillan, the Baron was the most grossly entertaining character in Lynch’s film; here, portrayed by an unrecognizable Stellan Skarsgård, rising up from a vat of black mud to begin his daily round of despicable activities, he is a darker, less amusing presence.

The Baron’s goal is to crush the hated Atreides family: Duke Leto (Oscar Isaac); his concubine Lady Jessica (Rebecca Ferguson)—who’s also a member of the witchy Bene Gesserit order of black-robed female schemers; and their son, Paul Atreides (Timothée Chalamet). Like Kyle MacLachlan, who played Paul in the earlier Dune, Chalamet isn’t given a lot to do in the movie’s early innings, being mainly called upon to keep his hair tousled and endure a bit of excruciating pain. And since Isaac is heavily burdened with the weight of familial nobility, charisma duties fall to Ferguson (a veteran of the ongoing Mission Impossible franchise), who gives a subtly commanding performance as a woman of fearless devotion to her family and her spiritual order.

Dune‘s cast of characters is as crowded as ever, although a little less confusingly this time. Weighing in on the Atreides side are Jason Momoa, Josh Brolin, and Stephen McKinley Henderson. Doing their dastardly best for the Harkkonens are Dave Bautista and David Dastmalchian (occupying the role of wily stooge Piter de Vries in a more subdued fashion than Brad Dourif once did). And tiptoeing through Paul’s dreams is the Fremen beauty Chani (Zendaya), who’s due to get a little more screen time in the next movie, if it gets made.

The film benefits greatly from Hans Zimmer’s score—a jolting, hammer-of-the-gods electronic assault that’s sometimes more interesting than what’s happening onscreen. But while you’d expect contemporary computer-animation technology to have improved on the effects in Lynch’s film, that’s not quite the case. There’s one great shot of Chalamet and Brolin running through the desert with a titanic sandworm rising up behind them, but generally the worms seem quite similar to their predecessors of 30-some years ago. And the huge, clunky techno dueling armor worn by MacLachlan and company back then—one of the most ungainly creations in big-budget FX history—has been improved only slightly by Villeneuve’s fizzling update, which makes it seem as if the duelers are blowing a fuse. Like so much else in the movie, not a cause for great excitement.

(Dune will open theatrically and on HBO Max on October 22.)

The Velvet Underground

One of several unusual things about the Velvet Underground, who recorded four albums’ worth of incomparable music from 1966 to 1970, is that they’ve never sounded dated. There’s no annoying phasing on their records, no phony neo-Beatles string-quartets. In its two classic lineups, the band consisted of a couple of guys with guitars; a self-taught drummer who was partial to mallets and tom-toms; and, in the beginning, a German actress and fashion model named Nico, who also wrote songs. The music they left behind must have sounded great at the time, you’d think, because it still does. But very few people cared.

Writer-director Todd Haynes (Velvet Goldmine) is clearly a passionate Velvets fan, and he has managed to put together a documentary about the group, which couldn’t have been easy given that they left behind so little live footage. Haynes has finessed this challenge by broadening the scope of his film to take in the downtown arts scene of Manhattan in the early 1960s—the place from which the band emerged and roping in such witnesses as John Waters, Jackson Browne (Nico’s onetime guitarist), Jonathan Richman, noted scenemaker Danny Fields, and avant-garde eminence La Monte Young, all of whom have interesting or at least piquant things to say.

The story is by now well-known. In a metropolis rich in experimentation in music, writing, and cinema at the time, droll singer-songwriter Lou Reed came together with college pal/guitarist Sterling Morrison, sister-of-a-friend/drummer Maureen Tucker, and classically trained Welsh expatriate John Cale, who played piano, bass, and a very edgy viola. They hit it off, and since Reed had some songs—some great songs, like “Femme Fatale,” “Venus in Furs,” “All Tomorrow’s Parties”—the group went into a studio and had their mentor, Andy Warhol, cough up the $1500 required to record them. Warhol also contributed an additional vocalist, the emphatically blonde-and-beautiful Nico.

Neither that first album nor its followups (including the brilliant Loaded) did much business. But the magic of the Velvets’ music is vividly suggested here in live clips—not always of the band itself but of its environment: downtown clubs like the Dom, and Warhol’s Factory, and a clip of Nico’s small part in Fellini’s La Dolce Vita, a token of the art-film frenzy of that moment. All those things are gone, and, to the detriment of Haynes’s documentary, so are Nico, Morrison, and Reed. But the music they once made with the Velvet Underground won’t likely to be fading away any time soon.

(The Velvet Underground is now in theatres and playing on Apple TV+.)

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